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PETITIONER: BACHAN SINGH & ANR. ETC.

       Vs.

RESPONDENT: CHHOTU RAM & ORS. ETC

DATE OF JUDGMENT23/07/1986

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH NATRAJAN, S. (J)

CITATION:  1986 AIR 1910            1986 SCR  (3) 379  1986 SCC  (3) 652        1986 SCALE  (2)136

ACT:      unjab Pre-Emption Act, 1913, Section 15(1)(a) fourthly      & 31-Punjab  Amendment Act,  1960 Amending  Act creating new      rights-Effect of.             

HEADNOTE:

    The respondents in Civil Appeal No. 639 of 1985 claimed possession of the property sold by one Nathu on November 22, 1972 by  way of  pre-emption on  the ground  that  they  had superior rights  being  father’s  brother’s  sons  of  Nathu covered under  Section 15(1)(a)  THIRDLY of  the Punjab Pre- emption Act,  1913. The claim was decreed and the alienees’- appellants appeal  to the  District Judge  as also  the High Court did not succeed. Hence this appeal by Special Leave.      In Civil  Appeal No.  911 of  1971 respondent No. 1 was the owner of some agricultural property in which appellants- plaintiffs claimed to be the cultivating tenants. Respondent No. 1  sold the  aforesaid property  on July  22, 1959.  The appellants-tenants filed  a suit  on July  21,  1960  for  a decree for  possession by  pre-emption. The Trial Court, the first appellate  court as  also the High Court took the view that on  the date  when the  sale took place, the appellants had no right of pre-emption and, as such, the claims was not maintainable.      Allowing the appeals, ^      HELD: (In C.A. No. 639 of 1983)      1. The  decree passed  by the  trial court as upheld in the first and second appeals must be reversed in view of the decision of  the Supreme  Court in  Atam Prakash v. State of Haryana, [1986]  1 Scale 260 holding clauses First, Secondly and  Thirdly   in  section   15(1)(a)  as  ultra  vires  the Constitution. Therefore, section 15(1)(a) THIRDLY is and was not available  to the  respondents-plaintiffs to  base their claim of pre emption upon. [380D] 379 (In C.A. No. 911 of 1971)      2. All  the three  Courts have gone wrong in dismissing the claim  of  the  appellants-plaintiffs.  They  are  found entitled to  pre-empt the  alienees under section (15)(1)(a) FOURTHLY of the Act as amended by Act of 1960.  [381E; 382D-

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E]      3.1 It is a well settled principle of law that when the legislature makes  provision for a deeming situation to give effect  to  the  mandate  of  the  legislature,  all  things necessary to  effect retrospective  intention must be deemed to have existed. [382C-D]      3.2 With effect from February 4, 1960 section 15 of the Punjab Pre-emption  Act 1913  was amended by Act 10 of 1960. The inevitable consequence of the retrospective operation of section 31  is to make the substantive provisions of section 15 also  retrospective.  It  follows  that  by  the  fiction introduced by  retrospective operation, the rigths which the appellants claimed  under the  amended provisions of section 15 must  be deemed  to have  vested in  them at the relevant time. Therefore, the appellants must be presumed to have had a right  to pre-empt  on the  date of  sale. [380F-G;  381G; 382B-C]      Amir Singh  & Anr.  v. Ram  Singh &  Ors., [1963] 3 SCR 884, referred to.

JUDGMENT:

    CIVIL APPELLATE  JURISDICTION: Civil  Appeal No.  91 of 1971      From the  Judgement and  order dated  21.8.1978 of  the Punjab & Haryana High Court in R.S.A. No. 378 of 1963.      Civil Appeal No. 639 of 1985      From the  Judgment and  Order dated  3.12.1984  of  the Punjab & Haryana High Court in R.S.A. No. 1721 of 1976.      S.K. Bagga for the Appellants.      H.K. Puri for the Respondents.      The Judgment of the Court was delivered by      RANGANATH MISRA,  J. These two appeals by special leave are directed against two different judgments of the Punjab & Haryana High  Court in  suits for  pre-emption. The facts of the two cases are different 380 CA. 639/85      In this Appeal the alienation was on November 22, 1972, by one  Nathu  and  his  wife  Smt.  Singari  in  favour  of outsiders, Plaintiffs  claimed possession of the property by way of  pre-emption on  the ground  that they  have superior rights being  father’s brother’s sons of Nathu covered under Section 15(1)(a)  THIRDLY of  the Punjab  Pre  emption  Act, 1913. That claim was decreed so far as Nathu’s half share in the property  was concerned  and the  claim as  against  the alienation of  half share  by his  wife  was  rejected.  The alienees’ appeal  to the  District Judge  as also  the  High Court did not succeed.      A constitution  Bench of this Court in the case of Atam Parkash v.  State  of  Haryana,  [1986]  1  Scale  260,  has recently held:           "There is, therefore, no reasonable classification           and clauses  ’First’, ’Secondly’  and ’Thirdly’ in           s.  15(1)(a)....are,   therefore,  declared  ultra           vires the Constitution." The result  of this  decision in Atam Parkash’s case is that s. 15(1)(a)  THIRDLY is,  and  was  not,  available  to  the plaintiffs to  base their  claim of  pre-emption  upon.  CA. 639/85 has,  therefore, to  be allowed and the decree passed by the trial Court as upheld in the first and second appeals must be reversed. Plaintiffs’ suit for pre-emption has to be dismissed. Since  the reversal  is the outcome of a judgment delivered by  this Court  during the  pendency of  the civil

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appeal, we  direct parties  to bear  their respective  costs throughout. CA. 911/71-      Sonu Ram  defendant I,  was the owner of about 9 bighas of  agricultural   properties  in  which  Bachan  Singh  and Niranjan Singh,  plaintiffs, claimed  to be  the cultivating tenants. Sonu  Ram sold the property under a registered sale deed dated  July 22,  1959. The  tenant filed a suit on July 21, 1960,  for a  decree for  possession by preemption. With effect from  February 4, 1960, Section 15 of the Punjab Pre- emption Act,  1913 (’the Act’ for short), was amended by Act 10 of  1960. Under  the amendment,  inter alia, a new clause was inserted  in s.15(1)(a),  namely, "FOURTHLY" which reads as under:           "FOURTHLY, in  the tenant who holds, under tenancy           of the  vendor the land or property sold or a part           thereof."      The Amending  Act brought  in a new provision by way of Section 31 to the following effect: 381           "Punjab  Pre-emption  (Amendment)  Act,  1960,  to           apply to all suits-No Court shall pass a decree in           a suit for preemption whether instituted before or           after the  commencement of  the Punjab Pre-emption           (Amendment) Act,  1960, which is inconsistent with           the provisions of the said Act."      The trial  Court as also the first appellate Court took the view  that on  the date  when the  sale took  place  the plaintiffs had no right of pre-emption and as such the claim was not maintainable. Before the High Court in Second Appeal the appellants  placed reliance  on the  Constitution  Bench decision of  this Court  in Amir Singh & Anr. v. Ram Singh & Ors., [1963] 3 S.C.R. 884. The High Court took the view that on the  date of  sale the  plaintiffs had no right infringed though they  had such  right on the date of the suit. As one of the  requirements of  the law  was that the plaintiffs to succeed in  a suit  for pre-emption  should have  a superior right  of   pre-emption  on   the  date  of  sale  also  the plaintiffs’ claim  could not  be decreed.  The  High  Court, therefore, upheld the decree of the courts below.      We have  heard learned  counsel for  both the  sides at some length  and are  inclined to agree with the submissions advanced on  behalf of  the appellants  that all  the  three courts  have   gone   wrong   in   dismissing   the   claim. Gajendragadkar, J.  (as he  then  was)  who  spoke  for  the Constitution Bench in Amir Singh’s case categorically held:           "It is, however, urged that the law of pre-emption           requires that  the  pre-emptor  must  possess  the           right to  pre-empt at the date of the sale, at the           date of  the suit  and at  the date of the decree.           This position  cannot be  disputed. But when it is           suggested that  the respondents  cannot claim that           they had  the right  when they brought the present           suit or when the sales were effected, the argument           ignores  the  true  effect  of  the  retrospective           operation of  s. 31  and s.  15. If the inevitable           consequence of  the retrospective  operation of s.           31 is  to make the substantive provisions of s. 15           also retrospective,  it follows  that  by  fiction           introduced by  the  retrospective  operation,  the           rights  which  the  respondents  claim  under  the           amended provisions of s. 15 must be deemed to have           vested in  them  at  the  relevant  time.  If  the           relevant provisions  are made retrospective by the           legislature, the  retrospective operation  must be

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         given full effect to, and that 382           meets the  argument that the right to pre-empt did           not exist  in the respondents at the time when the           sale  transactions   in   question   took   place.           Therefore, we  are satisfied  that the respondents           are entitled to claim that they should be given an           opportunity to prove their case that as tenants of           the lands  in suit they have a right to claim pre-           emption."      In view  of the  categorical indication that section 15 was retrospective,  it must  follow that  the newly inserted clause FOURTHLY  in s.  15(1)(a) of the Act was in existence at all  relevant times.  So far  as facts  of this  case are concerned, the  plaintiffs must  be presumed  to have  had a right to  pre-empt on the date of sale. Admittedly, the suit was filed  subsequent to the amendment. It is a well-settled principle of  law that  when the legislature makes provision for a deeming situation to give effect to the mandate of the legislature,  all   things  necessary   to  effectuate   the retrospective intention  must be deemed to have existed. All the courts  in our  view clearly  went wrong in dealing with the   legal    situation.   The   High   Court   erroneously distinguished the  rule in Amir Singh’s case even though the ratio applied in all fours. The judgments and decrees of all the three  courts are  set aside.  The plaintiffs  are found entitled to  pre-empt the alienee under s. 15(1)(a) FOURTHLY of the  Act as  amended by  the Act  of 1960.  We allow  the appeal, reverse  the decrees  of all  the courts  below  and direct  that   the  plaintiffs’   suit  shall   be  decreed. Plaintiffs shall  be entitled to their costs throughout. The trial Court  is directed to give effect to the decree passed by this Court. M.L.A.                                       Appeal allowed. 383