J&K HC | Evidence is required to show that notice to all persons having a right to prior purchase is given under Section 18 of the J&K Right of Prior Purchase Act

Jammu and Kashmir High Court: A Bench of Dhiraj Singh Thakur, J. allowed a petition involving suit for pre-emption.  The controversy arose from a suit for pre-emption filed by the respondent who was the plaintiff before the Trial Court. The suit was dismissed by the Trial Court, however, in the first appeal, the plaintiff/appellant succeeded. The miscellaneous appeal thus came to be filed by defendants/petitioners in terms of Order 43, Rule 1(U) of the Code of Civil Procedure, which was also dismissed.

The facts of the case revolve around the compliance of Section 18 of the Jammu & Kashmir Right of Prior Purchase Act, 1993 where it is provided that if any person proposes to sell any agricultural land or village immovable property or urban immovable property, or to foreclose the right to redeem any village immovable property, or urban immovable property, in respect of which any person have a right of prior purchase, he may give notice to all such persons of the price at which he proposes to sell such land or property, or of the amount due in respect of mortgage, as the case may be. The aforesaid section further envisaged that notice shall be given through any Court within the local limits of whose jurisdiction such land or property is situated.

A coordinate Bench of this Court came to the conclusion that the provisions of Section 18 of the Act had not been complied with. The appellate court held that any offer made by the seller without the offered price would be a failure on the part of the seller to comply with the requirement of the service in terms of Section 18 of the Act.

Counsel for the petitioners urged that the right of pre-emption was a weak right, as a universally accepted principle of law in the jurisprudence of the pre-emption laws.

The Court allowed the petition.  [Mohd. Amin v. Krishan Lal, 2018 SCC OnLine J&K 1043, Order dated 27-12-2018]

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