RIGHT OF PRE-EMPTION Dr. Shahista Inamdar, Assistant Professor, - PowerPoint PPT Presentation

RIGHT OF PRE-EMPTION Dr. Shahista Inamdar, Assistant Professor, Navjeevan Law College

Educational Qualifications of the author:

Educational Qualifications of the Author: ◦ BSL.LL.B (Five Years Law Course) From N.B.T Law College in April 2006 with First Class under University of Pune ◦ LL.M( Master of Law)from University of Pune in April 2008 with First Class, stood 3rd in the Order of Merit. ◦ NET in Law 28th June 2009. ◦ SET in Law 13th September 2009. ◦ Certificate Course in Forensic Science & Medical Jurisprudence from University of Pune in 2005 with First Class, Stood 1st in the Order of Merit. ◦ Diploma Course in Intellectual Property Rights Law from University of Pune in April 2009 with first class, stood 3rd in the Order of merit. ◦ Diploma Course in Alternative Dispute Resolution System from NBT Law College in April 2010 , first class with distinction. ◦ Diploma in Business Law from Asian schools of Cyber Law in 2010 with first class. ◦ Diploma in Cyber Law from Asian Schools Of Cyber Law in 2009 ,First Class with distinction. ◦ Certificate Course in Human Rights from YCMOU Nashik in Feb.2009 with first class. ◦ Awarded Doctorate(Ph.D) in Aug 2016 from Rashtra Sant Tukadoji Maharaj Nagpur University, Nagpur (Notification dated 27 sept 2016) on the topic “Status of Muslim Women in India – A Critical Study of Constitution & Statutory provisions in the light of judicial Approach” under the guidance of Dr. (Mrs.) Asmita A.Vaidya, Principal NBT Law College Nasik.

Books Authored

Books Authored: 1. Constitutional And Judicial Paradigms Of Indian Muslim Women – A Move Towards Equality, First edition 2017, ISBN 978-93-83334-97-1,Published by A. K. Publications and Printed at Thomson Press, Delhi, India. 2. Domestic Violence And Gender Justice In India - A Quest For Human Rights Protection, First Edition, 2019, ISBN 978-93-88465-13-7. Website : www. shahistainamdar.com

Pre-emption definition

Pre-emption defined ◦ Merriam Webster Dictionary defines Pre-Emption as “ 1a : the right of purchasing before others especially : one given by the government to the actual settler upon a tract of public land . b : the purchase of something under this right. 2 : a prior seizure or appropriation : a taking possession before others” . ◦ Oxford dictionary defines the Pre-emption as” the opportunity given to one person or group to buy goods, shares, etc. ” ◦ Microsoft Encarta thesaurus defines Pre emptive action as “Preventive action, preventive measures, prevention, anticipation” . ◦ Collins Dictionary defines it as “ 1. the act or right of buying land, etc. before, or in preference to, others; esp., such a right granted to a settler on public land 2. action taken to check other action beforehand” . ◦ Wikipedia quotes”A pre-emption right , right of pre-emption , or first option to buy is a contractual right to acquire certain property newly coming into existence before it can be offered to any other person or entity.It comes from the Latin verb emo, emere, emi, emptum , to buy or purchase, plus the inseparable preposition pre , before.

History of Pre-emption

History of Pre-Emption ◦ The history of pre - emption has been given by Sir Jon Edge in Digambar Singh v Ahamad Sayed Khan ,25 Nov 1914,Equivalent Citations(1915)17 BOMLR 393 ◦ Mughal rulers introduced the concept of Pre-Emption in India. It was used by the local communities and ultimately became a custom. ◦ The judges at that time used the Mohammedan law of pre-emption. ◦ Each village community suitably modified the Mohammedan pre-emption and had its own customs without affecting the core principle of Islamic pre- emption. ◦ Rights of Pre emption in some provinces were granted by Indian legislation. ◦ Rights of pre-emption have also been created by contract between sharers of the village. ◦ It was adopted by Islam in general to prevent the introduction of stranger among co- sharers and neighbors likely to cause inconvenience and vexation.

Pre - emption in the Words of Jurists

Pre – emption in the words of jurists ◦ Mahmood J. observes: “The law of Pre-emption is essentially a part of Mohammedan jurisprudence. It was introduced in India by Mohammedan judges who were bound to administer the Mohammedan law. Under their administration, it became and remained for centuries, the common law of the country and was applied universally to both the Mohammedans and Hindus because in this respect, the Mohammedan law makes no distinction between different races and creed. A Mohammedan and a Zimmee being equally affected by the principles on which Shuffa or right of pre-emption is established are equally concerned in its operation are therefore on an equal footing in all the cases regarding privileges of Shuffa(Hamilton’s Hedaya)” In the course of time, Pre-emption became adopted by Hindus as customs.

Right of Pre-emption defined by renowned jurists/scholars/texts

Right of Pre-emption defined by renowned jurists/scholars/texts ◦ “The right of shuffa or pre - emption is a right which the owner of an immovable property possesses to acquire by purchase another immovable Property which has been sold to another person…Sir Dinshaw Fardunji Mulla. ◦ Imam Shati'j held pre-emption to be repugnant to analogy (qiyas), as it involves taking possession of another's property contrary to his inclination; whence it must be confined solely to those to whom it is particularly granted by law….Hamilton’s Hedaya. ◦ Preemption refers the right of purchase a landed property by a person period than other. This is described in section 96 of state Acquisition and Tenancy Act. The pre-emption is also described in the Muslim law. There it is called shufa. The shufa is applicable on people on the basis of religion and local customs. Peoples belonging to Muslims religion may apply right of pre-emption under the state Acquisition and tenancy Act. The right of pre-emption must be exercised upon immovable property … ..A.A.A.Fyzee

Pre emption defined by Mahmood J. in Gobind Dayal v Inayatullah ◦ In Gobind Dayal v Inayatullah(1885) ILR7ALL775, Mahmood J defines Pre-emption(Shuffa) as …… .. A right which the owner of certain immovable property possesses as such, for the quiet enjoyment of that immovable property, to obtain in , substitution for the buyer , proprietary possession of certain other immovable property, not his own on such terms as those o which such latter immovable property is sold to some other person. ◦ Mahmood J then discusses the nature of right. The law of pre-emption ‘creates what I may call a legal servitude running with the land', He translates a passage of the Hedaya and shows that high authority lays down hat sale is not the cause of pre- emption. The real cause is the situation of the properties in question. The right to enforce pre- emptor’s right comes into being after the sale which clearly shows the intention to dispose the property. The right exists independently of and antecedent to the sale.

Mahmood J. on right of Pre-Emption(Shuffa) ◦ Mahmood J. explains the traditions of the prophet that it is morally objectionable, although not legally unlawful, to sell a property without offering it to a pre- emptor. ◦ The Right of Pre- emption is not a right to repurchase from the vendee, but it is a right of substitution, entitling the pre-emptor to stand in the shoes of the purchaser. ◦ He quotes "The rights of pre- emption cannot be said to be merely a restriction on free transfer of property and even in a country like Germany, a similar right(retractrecht) is enforceable” ◦ Bombay and Calcutta High courts have held that right of pre- emption is the right of repurchase from the buyer.Mahmood J., however held that it is a right of substitution,likening it to be a servitude running with the land. ◦ Bombay High court and the Supreme Court agree with the views of Mahmood J.

Applicability of Right of Pre - emption

Applicability of Pre-emption

Applicability of Right to Pre-Emption(Shuffa) ◦ The doctrine of Pre-emption is based on Mohammedan law texts. ◦ The foundation of the right of Pre-emption is the human desire to avoid the inconvenience and disturbance which is likely to be caused by introduction of stranger into the property. ◦ The Muslim law of pre-emption(Shuffa) is to be looked at in the light of Muslim law of succession. ◦ Hedaya states that ‘ a neighbor has a right superior to that of a stranger in lands adjacent to his own. The right of Shuffa holds in a partner who has not divided off or taken separately his share. The neighbor of the house and the neighbor of the land has a superior right to those lands and if he be absent, the seller must await his return’ . ◦ According to Imam Shafi, Shuffa is repugnant to Qiyas. ◦ Thus the right of Shuffa is a feeble right and is granted in India only after looking at the circumstances and after completion of formalities.

Parties to Pre-emption

Parties to Pre-emption VENDOR VENDEE PRE-EMPTOR The seller of The buyer of The co-sharer the property the property or heir The owner of The stranger to The neighbor the property the property

Nature of Pre- emption