Bachan Singh & ANR Vs. Chhotu Ram
& Ors  INSC 149 (23 July 1986)
MISRA RANGNATH MISRA RANGNATH NATRAJAN, S.
CITATION: 1986 AIR 1910 1986 SCR (3) 379 1986
SCC (3) 652 1986 SCALE (2)136
unjab Pre-Emption Act, 1913, Section 15(1)(a)
fourthly & 31-Punjab Amendment Act, 1960 Amending Act creating new
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,  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- 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.,  3 SCR 884, referred to.
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,  1 Scale 260, has recently
"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
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 appeal, we direct parties to bear their respective costs
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
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., 
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 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
M.L.A. Appeal allowed.