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TMI Blog2001 (7) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... granted. "What is the effect of substituted Section 15 introduced by the Haryana Amendment Act, 1995 (hereinafter referred to as the Amending Act 1995) in the parent Act i.e. The Punjab Pre-emption Act (hereinafter referred to as the parent Act) as applicable to the State of Haryana whereby the right of a co-sharer to pre-empt a sale has been taken away during the pendency of an appeal filed against a judgment of the High Court affirming the decree passed by the trial Court in a preemption suit". That is the short question which we are required to answer in this group of appeals which has come on reference before us. When Civil Appeal No.4680/93 came up for hearing before a Bench of this Court, the Bench, on the question of the effect of the amendment made in 1995 in the parent Act, found that there is conflict in the view taken in the decisions of two three-Judges' Bench of this Court ,which are Didar Singh etc. etc. vs. Ishar Singh (dead) by Lrs. etc. etc. [1995 (1) Scale 1] (wherein it was held that in a suit for pre-emption, the pre-emptor must prove his right to preempt upto the date of decree of the first court and any loss of right or subsequent change in law after th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "15. Right of pre-emption to vest in tenant. The right of pre-emption in respect of sale of agricultural land and village immovable property shall vest in tenant who holds under tenancy of the vendor or vendors of the land or property sold or a part thereof." Learned counsel appearing for the appellants, on the strength of the decision of this Court in Ramjilal v. Ghisa Ram (supra) and the amending Act of 1995 urged that the right of a co-sharer to pre-empt sale having been extinguished by substituted Section 15 of the Act, the appeal being continuation of the suit, this Court is competent to take into account the legislative changes and in that event the plaintiff-respondents suit must fail. Secondly it was urged that the amending Act being declaratory in nature, it has retrospective effect and consequently, whatever the right a co-sharer had on the date of decree of the Court of first instance stood extinguished after the amending Act came into force. The third contention was that in any event, the amending Act being beneficial legislation passed for general good of citizens, this Court while construing new substituted Section 15 is required to apply rule of benevolent constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not affect the right of preemptor. Second category of decisions deals with the cases where right of a preemptor was taken away after the date of decree of the first court and during pendency of the appeal by statutory enactment which had retroactive operation. In such cases it was held that the appellate Court is competent to take into account legislative changes which are retrospective and accordingly affect the rights of the parties to the litigation. The decisions in third category of cases are those where it has been held that appeal being continuation of suit, the right to pre-empt a sale must be available on the date when the decree is made and is finally to be affirmed or needs to be modified at the time of disposal of appeal and in case of loss of right by legislative changes during pendency of appeal, the suit for pre-emption must fail. The first case in the first category of decisions is judgment by Allahabad High Court in Sakina Bibi vs. Amiran and others [1888 ILR (10) Allahabad 472] wherein it was held that a court of appeal is required to see what was the decree which the court of first instance should have passed, and if the court of first instance wrongly dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must maintain his qualification to preempt on the date of decree of the first court only and any subsequent loss of qualification by preemptor by his own act or by an act beyond his control does not affect the maintainability of the suit. In Bhagwan Das (d) by Lrs. ors. vs. Chet Ram [1971 (2) SCR 640] a Bench of three Judges of this Court held that a preemptor must maintain his qualification to preempt upto the date of decree for possession by preemption. This decision approved the decision of Full Bench rendered by Punjab Haryana High Court in Ramji Lal vs. State of Punjab (supra). In Rikhi Ram anr. vs. Ram Kumar ors. [1975 (2) SCC 318] a Bench of three Judges of this Court reiterated that a pre-emptor who claims the right to pre-empt the sale on the date of the sale must continue to possess that right till the date of the decree. If the claimant loses that right before passing of the decree, no decree for pre-emption can be granted by the Court even though he may have had such right on the date of the suit. In Didar Singh vs. Ishar Singh (supra) a Bench of three Judges of this Court laid down that in a suit for pre-emption, the claimant must prove that his right to pre-em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decree was regarded as final and the Courts below retained jurisdiction. The principle of law laid down by the Federal Court has to be understood in the context of the provisions of the Act which the learned Judges were interpreting. The view taken in Lachmeshwar Prasad Shukul Ors. Vs. Keshwar Lal Chaudhuri (supra) was followed in Ram Lal vs. Raja Ram anr. [1960 Punjab Law Reporter 291]. The High Court was of the view that appeal being continuation of original proceedings and re-hearing the suit, the amending Act being retrospective has to be taken into consideration and given effect to not only in the fresh suit filed or suit pending but also in cases where appeal is pending and not decided. In nut-shell, the High Court was of the view that appeal being continuation of a suit, the appellate court is entitled to take into account the change in law which is retrospective. The decision of Punjab Haryana High Court in Ram Lal vs. Raja Ram (supra) was approved in Ram Sarup Vs. Munshi ors. [1963 (3) SCR 858]. A Constitution Bench of this Court in Ram Sarup case (supra) held that Section 31 of amending Act 10 of 1960 being retrospective, the right to pre-empt a sale which had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fail. After having heard counsel for the parties and carefully gone into the decisions cited at the Bar we are in respectful agreement with the statement of law expressed in the first and second categories of decisions. However, we regret to express of our disagreement with the decisions in third category of decisions for the reasons hereinafter stated. In modern time, the right of pre-emption based on statutes is very much a maligned law. During hearing of these appeals such rights have been characterised as feudal, archaic and outmoded and so on. But its origin which was based on custom and subsequently codified was out of necessity of the then village community and society for its preservation, integrity and maintenance of peace and security. In changed circumstances, right of pre-emption may be called outmoded, but so long it is statutorily recognised, it has to be given the same treatment as any other law deserves. The right of pre- emption of a co-sharer is an incident of property attached to the land itself. It is some sort of encumbrance carrying with the land which can be enforced by or against the co-owner of the land. The main object behind the right of pre-emption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s instituted and that right should continue to exist on the date of adjudication of the suit. However, it is matter of no consequence whether the trial court decrees or dismisses the suit. It has also been the consistent view of Privy Council and various High Courts that a pre-emptor must possess qualification to pre-empt a sale on the date of decree of the Court of first instance only for maintainability of the suit although it is immaterial that pre-emptor looses the right of pre-emption after the adjudication of suit either by his own act or vendee improving his status equal to pre-emptor during pendency of appeal filed against the decree of the trial court. This view of law is in consonance with the object behind the right of pre- emption and held the field for over a century with which we are in respectful agreement, as nothing has been shown to us which may persuade us to take a contrary view and disturb the settled law. It was argued by learned counsel for the appellant that an appeal being continuation of suit, the appellate court is required to notice and consider the subsequent event, namely, loss of qualification by the pre-emptor during pendency of an appeal. In fact, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt had wrongly dismissed the claim of pre-emptor and it is irrelevant that during the pendency of appeal land was sold in an execution proceeding in another suit. In a pre-emption case where an appeal is filed against the decree of court of first instance, the scope of appeal is confined to the question whether the decision of the trial court is correct or not. This being the legal position which held the field for over a century any subsequent event taking place during pendency of appeal cannot be allowed to be taken into consideration by the appellate court otherwise it may displace the case of a pre-emptor. It was next contended on behalf of appellants that the view of law (i) that subsequent event taking place or change in law during the pendency of appeal filed against the decree in a pre-emption suit cannot be looked into by the appellate court and that (ii) all that is required to be seen by the appellate court whether decree passed by the court of first instance on the basis of rights of the parties on the date of adjudication, has ceased to be good law in view of decision of the Federal Court in Lachmeshwar Prasad Shukul Vs. Keshwar Lal Choudhuri (supra) wherein it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive only.' The rule has, in fact, two aspects, for it, "involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary." In Francis Bennion's Statutory Interpretation, 2nd Edn, the statement of law is stated as follows: "The essential idea of a legal system is that current law should govern current activities. Elsewhere in this work a particular Act is likened to a floodlight switched on or off, and the general body of law to the circumambient air. Clumsy though these images are, they show the inappropriateness of retrospective laws. If we do something today, we feel that the law applying to it should be the law in force today, not tomorrow's backward adjustment of it. Such, we believe, is the nature of law. Dislike of ex post factor law is enshrined in the United States Constitution and in the Constitution of many American States, which forbid it. The true principle is that lex prospicit non respicit (law looks forward not back). As Willes, J. said retrospective legislation is 'contrary to the general principle that legislation by which the conduct of mankind is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to right of action and right of appeal even though remedial is substantive in nature. (iii) Every litigant has a vested right in substantive law but no such right exists in procedural law. (iv) a procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or toimpose new duties in respect of transactions already accomplished. (v) a statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation unless otherwise provided, either expressly or by necessary implication." In K.S.Paripoornan vs. State of Kerala others [1994 (5) SCC 593 @ p.636], this Court while considering the effect of amendment in the Land Acquisition Act in pending proceedings held thus: "....In the instant case we are concerned with the application of the provisions of sub-section 1 (1-A) of S.23 as introduced by the Amending Act to acquisition proceedings which were pending on the date of commencement of the Amending Act. In relation pending proceedings, the approach of the courts in England is that the same are unaffected by the changers in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned and held that on a plain reading of section 15 it is clear that it has been introduced prospectively and there is no question of such section affecting in any manner the judgment and decree passed in the suit for pre-emption affirmed by the High Court in the second appeal. We are respectfully in agreement with the view expressed in the said decision and hold that the substituted Section 15 in the absence of anything in it to show that it is retrospective, does not effect the right of the parties which accrued to them on the date of suit or on the date of passing of the decree by the Court of first instance. We are also of the view that present appeals are unaffected by change in law in so far it related to determination of the substantive rights of the parties and the same are required to be decided in light of law of preemption as it existed on the date of passing of the decree. Coming to decision in Lachmeshwar Prasad Shukul vs. Keshwar Lal Choudhuri (supra), which is the sheet anchor of the argument on behalf of appellants, it is necessary to notice the facts of the said case and the provisions of law which were interpreted by the Federal Court. In the said case, the plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etrospective held that the appellate court is required to consider and give effect to legislative changes which have taken place during pendency of the appeal as an appeal is continuation of suit. It is in this context, the decision in Lachmeshwar Prasad Shukul vs. Keshwar Lal Choudhuri has to be understood. Where a repeal of an enactment is followed by fresh legislation, having no retrospective operation, an appellate Court is not required to take into account the change in law but to dispose of the appeal on the basis of right of pre- emption on the date of adjudication of suit. In that view of the matter the decision in Lachmeshwar Prasad vs. Keshwar Lal (supra) has no application in the present case. Subsequently, the view taken in Lachmeshwar Prasad Shukul vs. Keshwar Lal Choudhuri was followed in Ram Lal vs. Raja Ram (supra) by Punjab and Haryana High Court. In the said case the plaintiff brought a suit for preemption on the ground of vicinage. The trial Court dismissed the suit on the ground that the land fell outside the limit of Panipat town and in that locality no custom of preemption prevailed. On appeal the appellate Court reversed the decision of the trial Court and de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when an amending Act enacted after the decree appealed from was passed adversely interfered with the rights of the respondent before the Court. The learned Judges held that the provisions of the Act were clearly retrospective and should be applied to the decree which was the subject matter of appeal before it." (emphasis supplied) The decision in Ram Swarup vs. Munshi (supra) was followed by another Constitution Bench of this Court in Amir Singh Anr. vs. Ram Singh Ors. (supra). In Amir Singh's case also another Constitution Bench of this Court interpreting section 31 introduced by Punjab Amending Act 1960 reiterated that the retrospective operation of section 31 necessarily involves effect being given to the substantive provisions of amended section 15 by the appellate court whether the appeal before it is one against a decree granting pre-emption or one refusing that relief. It may be noticed that the phraseology and the words "before and after" used in Section 7 of the Bihar Money-lender Act 1939 "no court shall in any suit brought before or after the commencement of this Act" and in Section 31 of Punjab Amending Act 10 of 1960 "no court shall pass a decree in a suit f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tuted section in an Act is to obliterate the rights of the parties as if they never existed. This argument is noted only to be rejected. A substituted section in an Act is the product of an amending Act and all the effects and consequences that follow in the case of an amending Act the same would also follow in the case of a substituted section in an Act. Coming to the next question, learned counsel for the appellants after characterising the right of pre-emption as archaic and feudal, argued that substituted Section 15 being a beneficial legislation enacted for general benefit of citizens, this Court while construing it, is required to apply rule of benevolent construction and on application of the said rule of construction the substituted Section 15 has to be given retroactive operation. Generally rule of interpretations are meant to assist the Court in advancing the ends of justice. It is, therefore, true in the case of application of rule of benevolent construction also. If on application of rule of benevolent construction, the Court finds that it would be doing justice within the parameters of law there appears to be no reason why such rule of construction be not applied in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not find that amending Act either expressly or by necessary implication is retrospective. If we hold that the amending Act is retrospective in operation, we would be re-legislating the enactment by adding words which are not to be found in the amending Act either expressly or by necessary intendment and it would amount doing violence with the spirit of the amending Act. For these reasons, the application of rule of benevolent construction is wholly inapplicable while construing substituted Section 15. Learned counsel then argued that since the amending Act being a beneficial legislation, retrospectivity is implied in it. Assuming, for the sake of argument that right of preemption being a feudal or archaic law and therefore, the amending Act is a beneficial legislation meant for general benefit of citizens but there is no such rule of construction that a beneficial legislation is always retrospective in operation even though such legislation either expressly or by necessary intendment is not made retrospective. In the case of Moti Ram vs. Suraj Bhan Ors. [1960 (2) SCR 896] it was held thus: "It is clear that the amendment made is not in relation to any procedure and cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in any contract or in any law for the time being in force, the provisions of the said Act shall apply to all non-agricultural tenancies whether created before or after the date on which this Act comes into force.. Section 5 further provided protection to the tenants who have raised construction within 5 years from the date of leases executed in their favour on the land let out to them for residential or business purposes. While construing Sections 2 and 5 of the Act, this Court held that Section 2 and Section 5 give an unmistakably indication of the legislative intention to make its provisions retrospective. For the said reasons the decision relied upon has no application to the present case. Learned counsel for the appellant then relied upon a decision of this Court in the case of H. Shiva Rao Anr. vs. Celelia Pereira Ors. [1987 (1) SCC 258] for the proposition that a beneficial legislation has to be given retrospective effect. In the said decision it was held that if the expressions are ambiguous, then the construction that fulfils the object of the legislation must provide the key to the meaning. But that is not the case here. We have already held that there is no ambigu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the nature of the Act, regard must be held to the substance rather than to the form. If a new Act is 'to explain" an earlier Act, it would be Without object unless construed retrospective. An Explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended." In Keshavlal Jethalal Shah vs Mohanlal Bhagwandas Anr. [1968 (3) SCR 623], this Court while interpreting section 29(2) of the amending Act, held thus: "An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. Section 29(2) before it was enacted was precise in its implication as well as in its expression; the meaning of the words used was not in doubt, and there was no omission in its phraseology which was required to be supplied by the amendment." In R. Rajagopal Reddy (dead) by Lrs. Ors. vs. Padmini Chandrasekharan (dead) by Lrs. [1995 (2) SCC 630], it was held thus: "Declaratory enactment declares and clarifies the real intention of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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