Holding

The "thirdly" clause is ultra‑vires and cannot be relied upon, while the "fourthly" clause introduced by the 1960 amendment is retrospective and vests a pre‑emptive right at the date of sale.

Summary

The Supreme Court heard two civil appeals concerning pre-emption rights under the Punjab Pre-emption Act, 1913. In Appeal No. 639/85, the plaintiffs claimed a right to pre‑empt a sale on the basis of the "thirdly" clause of s.15(1)(a), but the Court, relying on Alam Prakash v. State of Haryana, held that the first, secondly and thirdly clauses are ultra‑vires the Constitution, so the claim could not succeed and the lower courts' decree was reversed. In Appeal No. 911/71, the plaintiffs, tenants, sought pre‑emption of a 1959 sale, invoking the "fourthly" clause inserted by the Punjab Pre‑emption (Amendment) Act, 1960. The Court interpreted the amendment, particularly s.31, as retrospective, deeming the new clause to have existed at the time of the sale, thereby granting the plaintiffs a valid pre‑emptive right. Consequently, the judgments of the trial, first‑appellate and High Courts were set aside and the plaintiffs' suit was decreed. Costs were awarded to the successful parties throughout.

Issues considered

The constitutional validity of the "thirdly" clause in s.15(1)(a) of the Punjab Pre-emption Act, 1913.
Whether the 1960 amendment introducing the "fourthly" clause in s.15(1)(a) operates retrospectively to confer pre‑emptive rights at the time of the earlier sale.

Legislation cited

Punjab Pre-emption Act, 1913s. 15(1)(a)
Punjab Pre-emption (Amendment) Act, 1960s. 31

Subjects

pre-emptionretrospective legislationultra viresPunjab Pre-emption Acttenancyproperty lawconstitutional validity

Judgment

A
BACHAN SINGH & ANR. ETC.
v.
CHHOTU RAM & ORS. ETC

B JULY 23, 1986

[E.S. VENKATARAMIAH AND RANGANATH MISRA, JJ.]
-+-
Punjab Pre-Emption Act, 1913, Section 15( l)(a) fourthly & 31-
-+
c
Punjab Amendment Act, 1960-Amending Act creating new rights-
Effect of.

The respondents in Civil Appeal No. 639 of 1985 claimed posses-
--
sion of the property sold by one Natho on November 22, 1972 by way of
pre-emption on the ground that they had superior rights being father's
brother's sons of Natho covered under Section IS(l)(a) THIRDLY of -.-1
D 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 !his appeal by Special Leave.

In Civil Appeal No. 911of1971 respondent No. 1 was the owner of
some agricultural property in which appellants-plaintiffs claimed to be
E the cultivating tenants. Respondent No. 1 sold the aforesaid property on
July 22, 1959. The appellants-tenants filed a suit ou July 21, 1960 for a
decree for possession by pre-emption. The Trial Court, the first appel-
late 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

F
such, the claims was not maintainable.
Allowing the appeals,
t
HELD: (In C.A. No. 639 of 1983) -t
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
G Court in Alam Prakash v. State of Haryana, [1986] l Scale 260 holding
clauses First, Secondly and Thirdly in section JS(l)(a) as ultra vires the
Constitution. Therefore, section IS(l)(a) THIRDLY is and was not
available to the respondents-plaintiffs to base their claim of pre-
~....
emption upon. [380D]

H 378
BACHAN SINGH v. CHHOTU RAM [MISRA, J.) 379
(In C.A. No. 911of1971) A
>,
2. AU 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 (IS)(I)(a) FOURTHLY of the Act as amended
by Act of 1960. [381E; 382D-E]
B
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]
)r 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 31is to make the
substantive provisions of section 15 also retrospective. It follows that by
c

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-i'mpt on the D
date of sale. [380F-G; 381G; 382B-C]

Amir Singh & Anr. v. Ram Singh & Ors., [1963] 3 SCR 884,
referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 91 E
of 1971

From the Judgement and Order dated 21.8.1978 of the Punjab &

'-\
Haryana High Court in RS.A. No. 378 of 1963.

Civil Appeal No. 639 of 1985
F
From the Judgment and Order dated 3.12.1984 of the Punjab &
+ Haryana High Court in RS.A. No. 1721of1976.

S.K. Bagga for the Appellants.

H.K. Puri for the Respondents. G
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. H
380 SUPREME COURT REPORTS [1986] 3 S.C. R.

A 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 lll
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
B Nathu covered under Section 15(1)(1) 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.
~

c
A constitution Bench of this Court in the case of Alam Parkash
v. State of Haryana, [1986] 1Scale260, has recently held:
-
''There is, therefore, no reasonable classification and
clauses 'First', 'Secondly' and 'Thirdly' in s. 15(1)(a) .... ·-4
are, therefore, declared ultra vires the Constitution."
D The result of this decision in Atam Parkash's case is thats. 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 de-
E livered by this Court during the pendency of the civil appeal, we direct
parties to bear their respective costs throughout.

F
CA. 911/71-

Sonu Ram defendant I, was the owner of about 9 bighas of
ti
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 pre-
emption. 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
G 1960. Under the amendment, inter alia, a new clause was inserted ins.
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
H 31 to the following effect:
BACHAN SINGH v. CHHOTU RAM [MISRA. J.] 381

"Punjab Pre-emption (Amendment) Act, 1960, to apply to A
all suits-No Court shall pass a decree in a suit for pre-
emption whether instituted before or after the commence-
ment of the Punjab Pre-emption (Amendment) Act,
1960, which is inconsistent with the provisions of the said
Act."
B
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 c
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
D
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
E
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
-\I 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
F
suggested that the respondents cannot claim that they had
the right when they brought the present suit or when the
saies were effected, the argument ignores the true effect of
the retrospective operation of s. 31 ands. 15. If the inevit-
able consequence of the retrospective operation of s. 31 is
to make the substantive provisions of s. 15 also retrospec-
G
tive, it follows that by fiction introduced by the retrospec-
tive 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 provi-
sions are made retrospective by the legislature, the retros-
pective operation must be given full effect to, and that H
382 SUPREME COURT REPORTS [1986] 3 S.C.R.

A 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."
B
In view of the categorical indication that section 15 was retros-
pective, 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
c 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
D Singh's case even though th~ 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
E throughout. The trial Court is directed to give effect to the decree
passed by this Court.

M.L.A. Appeal allowed.

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