Full Judgment Text
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CASE NO.:
Appeal (civil) 4680 of 1993
PETITIONER:
SHYAM SUNDER AND OTHERS
RESPONDENT:
RAM KUMAR AND ANOTHER
DATE OF JUDGMENT: 31/07/2001
BENCH:
S.P.BHARUCHA & V.N.KHARE & SANTOSH N.HEGDE & Y.K.SABHARWAL & S.V.PATIL
JUDGMENT:
JUDGMENT
DELIVERED BY:
V.N.KHARE,J.
V. N. KHARE, J.
Leave 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 the date of adjudication of the suit and during
pendency of appeal would not affect the decree of the first court ) and
Ramjilal & Ors. etc. vs. Ghisa Ram etc. [JT 1996 (2) SC 649]
(wherein it was laid down that appeal being continuation of the suit,
the right to claim pre-emption 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 the appeal therefrom, and since the Amending
Act came into force during pendency of appeal, the right and remedy
of the plaintiff stood extinguished and as a result suit must fail.) In
order to resolve the conflict between the aforesaid two decisions
rendered by two different Benches, the Bench referred the appeal for
decision by a Bench of five Judges. It is in this way, the matter has
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come before us.
Since common question of law is involved in this group of
appeals, we would notice the facts which have given rise to Civil
Appeal No. 4680/1993.
The defendants/appellants herein purchased land measuring 54
Kanals, situated in village Rithal Phogat, being 1/2 share of the land of
Khewats Nos. 204, 205 and 206, measuring 108 Kanals for a sum of
Rs. 84,000/- from vendors viz., Bharpai, Chhoto and Pyari -
daughters of Bhagwana vide sale deed dated 17.7.1985. The
plaintiffs/respondents herein claimed preferential right to pre-empt the
sale in favour of defendant-appellants on the ground that they are co-
sharers by means of a civil suit laid before the Sub-Judge, 1st Class,
Gohana. In the said suit, issues were framed and the trial court
decided all the issues in favour of the plaintiffs/respondents and
consequently on 30.5.1990 the suit was decreed. The respondents
after passing of the decree by the court of the first instance deposited
the purchase money as required under Order 20 rule 14 CPC. The
appeal preferred by the appellants before the first appellate court and
the second appeal before the High Court were dismissed and the
decree of the trial court was affirmed. The appellants thereafter
preferred this appeal by way of special leave petition. During
pendency of the appeal, Section 15(1)(b) of parent Act, on the basis of
which the suit was filed by the plaintiffs/respondents was amended
and was substituted by new Section 15 whereby the right of a co-
sharer to preempt a sale was taken away. The substituted Section 15
of the Act runs as under:
"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 construction and in
that event amending Act would have retroactive operation. On the
other hand the contention of respondents’ counsel is that in a suit for
pre-emption a claimant has to prove his right on the date of the decree
of the first court and loss of right after the date of decree by an act
beyond his control or subsequent change in law did not effect his
claim in the suit and, therefore, the amending Act subsequent to the
date of decree of the first court has no effect on the maintainability of
the suit. It was also contended that assuming the appeal being
continuation of the suit, the amending Act having no retrospective
operation does not effect the decree of the first instance court. It was
also urged that in view of provisions of Order 20 rule 14 CPC the title
to the property had already been passed on to the claimant on deposit
of purchase money and, therefore, the amending Act does not affect
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the title acquired by the claimant.
On the arguments of learned counsel of the parties the questions
that arise for consideration are : (i) whether the appeal being
continuation of the suit, the amendment in Section 15 of the parent
Act whereby the right of a co-sharer to pre-empt a sale has been taken
away during the pendency of the appeal would effect the
maintainability of the suit and the rights of a co-sharer and (ii)
whether the Amending Act has retrospective operation so as to affect
the rights of parties in litigation.
Learned counsel for the parties in support of their arguments
relied upon number of decisions rendered by Privy Council, Federal
Court, this Court and various other High Courts. In order to have
complete picture of the views expressed in these decisions and
thereafter to arrive at the conclusion, it is appropriate to categorise the
decisions cited at the Bar which shall hereinafter be referred as first,
second and third categories of decisions. The first category of
decisions are those wherein the view of law expressed is that in a suit
for pre-emption, the pre-emptor must possess his right to pre-empt
right from the date of sale till the date of decree of the first Court, and
loss of that right after the date of decree either by own act, or an act
beyond his control or by any subsequent change in legislation which
is prospective in operation during pendency of the appeal filed against
the decree of the court of first instance would 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
dismissed the claim, the plaintiff cannot be prejudiced by her share
having been subsequently sold in execution of a decree in another suit.
Such a sale would not affect the preemptor’s right to maintain the
decree if she had obtained the decree in her favour in the court of first
instance. In short, the view of the Court was that the right of pre-
emption has to be found which existed on the date of the decree and
any subsequent sale of the land in execution proceedings during
pendency of the appeal would not affect the maintainability of the
suit. In Baldeo Misir vs. Ram Lagan Shukul [1923 ILR (45)
Allahabad 709], it was laid down that what is to be seen is whether
the pre-emptor has the right on the date of the decree of the first
Court. Any subsequent change of right during pendency of the appeal
would not affect the right of the pre-emptor. In Hans Nath and others
vs. Ragho Prasad Singh [59 The Law Reports (Indian Appeals) 138],
the Privy Council following the decision in Baldeo Misir vs. Ram
Lagan Shukul (supra) held, that a pre-emptor’s claim may be
defeated by losing his preferential qualification to pre-empt after the
sale and at any time before the adjudication of the suit. In short, it
was held that a pre-emptor must have the right to pre-empt on the date
of sale, on the date of filing of the suit and on the date of passing of
the decree by the trial court. This decision by the Privy Council
related to the right of preemption prevailing in the then Agra
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Province, but the same was followed and applied in the then
undivided Punjab before partition of the country by the Lahore High
Court in Madho Singh vs. Lt. James R.R.S. Kinner [1942 ILR(23)
Lahore 155] and Zahur Din and another vs. Jalal Din Noor
Mohammad and others [ 1944 ILR (25) Lahore 443]. In both the
cases, two Full Benches of Lahore High Court held that it is not
possible to extend the date by which a vendee in a pre-emption suit
may improve his status beyond the date of litigation of the suit by the
court of first instance and he cannot, therefore, by improving his
position during pendency of the appeal defeat the right of the pre-
emptor. In Ramji Lal & anr. vs. State of Punjab & ors. [1966 ILR 19
(2) Punjab 125] it was held that preemptor must have his qualification
to preempt on the date of sale, on the date of institution of the suit and
on the date of decree of the trial Court. The preemptor 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-empt is subsisted till the date
of the decree of the First Court and the loss of right after the date of
the decree by an act beyond his control or by statutory intervention
during pendency of the appeal against the decree of the trial Court
would not disentitle the claimant to maintain his claim of preemption
already exercised and decreed. In this case again decision by a Full
Bench of Punjab & Haryana High Court in Ramji Lal vs. State of
Punjab (supra) was approved.
An analysis of the aforesaid decisions referred to in first
category of decisions, the legal principles that emerge are these:
1. The pre-emptor must have the right to pre-empt on the date of
sale, on the date of filing of the suit and on the date of passing
of the decree by the Court of the first instance only.
2. The pre-emptor who claims the right to pre-empt the sale on
the date of the sale must prove that such right continued to
subsist till the passing of the decree of the first court. If the
claimant loses that right or a vendee improves his right equal or
above the right of the claimant before the adjudication of suit,
the suit for pre-emption must fail.
3. A pre-emptor who has a right to preempt a sale on the date of
institution of the suit and on the date of passing of decree, the
loss of such right subsequent to the decree of the first court
would not affect his right or maintainability of the suit for pre-
emption.
4. A pre-emptor who after proving his right on the date of sale, on
the date of filing the suit and on the date of passing of the
decree by the first court, has obtained a decree for preemption
by the Court of first instance, such right cannot be taken away
by subsequent legislation during pendency of the appeal filed
against the decree unless such legislation has retrospective
operation.
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Coming to the second category of decisions it may be noted that
while the view of law laid down in first category of decisions held the
field, the Federal Court in the case of Lachmeshwar Prasad Shukul &
Ors. vs. Keshwar Lal Chaudhuri & Ors. [AIR 1941 Federal Court 5]
while interpreting Section 7 of the Bihar Money-lenders Act, 1939
which was found retrospective held that once the decree of the High
Court had been appealed against, the matter becomes sub-judice again
and thereafter the appellate Court had seisin of the whole case, though
for certain purposes, e.g., execution, the 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 accrued before coming into force of the
amending Act stood defeated. The Constitution Bench also noted and
explained that in Lachmeshwar Prasad Shukul vs. Keshwar Lal
(supra), the Federal Court was construing Section 7 of the Bihar
Money-lenders Act which had retrospective operation.
The decision in Ram Sarup vs. Munshi (supra) was followed
by another Constitution Bench of this Court in Amir Singh & Anr. vs.
Ram Singh & Ors. [1963 (3) SCR 884] wherein, this Court while
interpreting section 31 introduced by the Punjab Amending Act 1960
reiterated that 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 preemption or one refusing that relief.
The legal position that emerges on review of the second
category of decisions is that the appeal being continuation of suit the
appellate court is required to give effect to any change in law which
has retrospective effect.
We shall now proceed to notice the third category of decisions
cited at the Bar. The first decision in this category of cases is decision
in Karan Singh & Ors. vs. Bhagwan Singh (dead) by L.Rs. & ors.
[1996 (7) SCC 559] wherein it was held that an appeal being
continuation of the suit, the right to claim preemption must be
available on the date when the decree is finally to be affirmed and
needs to be modified at the time of disposal of the appeal and since
substituted Section 15 of the Act came into force during pendency of
the appeal, the right and remedy of the preemptor stood extinguished.
This decision was followed in Ramjilal vs. Ghisa Ram (supra)
wherein it was held that since substituted section 15 introduced by
amending Act of 1995 having come into force during pendency of
appeal which is continuation of the suit, the right and remedy of the
plaintiff stood extinguished and as a result of which the suit for pre-
emption was not maintainable.
The legal principle that emerges out of the aforesaid decisions
is that an appeal being continuation of suit, the right to pre-empt must
be available on the date when the decree is made and is finally to be
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affirmed or needs to be modified at the time of disposal of the appeal
and where right and remedy of plaintiff has been taken away
statutorily during pendency of appeal, the suit must 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 either based on custom or
statutory law is to be prevent intrusion of stranger into the family
holding or property. A co-sharer under law of pre-emption has right
to substitute himself in place of stranger in respect of portion of the
property purchased by him meaning thereby where a co-sharer
transfers his share in holding, the other co-sharer has right to veto
such transfer and thereby prevent the stranger from acquiring the
holding in an area where law of pre-emption prevails. Such a right at
present may be characterised as archaic, feudal and out-moded but
this was law for nearly two centuries either based on custom or
statutory law. It is in this background the right of pre-emption under
statutory law has been held to be mandatory and not mere
discretionary. The Court has no option but to grant decree of pre-
emption where there is a sale of a property by another co-sharer.
And for that reason the Courts consistently have taken view that
where there is a sale of holding or property by a co-sharer, the right
of a pre-emption is required to be settled at the earliest either on pre-
emptor’s proving his qualification to pre-empt on the date of the sale,
on the date of filing of suit, and on the date of the decree of the Court
of the first instance or vendee improving his status till the
adjudication of suit for pre-emption and after adjudication of suit any
loss of qualification by the pre-emptor or vendee improving his status
equal or above to right of pre-emptor is of no consequence. In Zahur
Din vs. Jalal Din (supra) a full Bench of Lahore High Court while
expressing necessity for settlement of rights of the parties at the
earliest, held thus:
"It seems to be essential that a line should be
drawn at some stage when the race between
a pre-emptor and a vendee ought to come to
an end and after having the well-known
landmark of the date of the sale behind - as
one now must - the farthest limit that can be
granted to a vendee is that of the time of
adjudication of the suit by the trial court."
(emphasis supplied)
As noticed earlier, in Hans Nath vs. Ragho Prasad Singh
(supra) Privy Council held that a pre-emptor to maintain a suit for pre-
emption is required to prove his right of pre-emption on three
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important dates. The claimant must possess right of pre-emption on
the date of sale. The claimant must possess the same right on the date
when the suit is 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, argument is
that where a co-sharer looses the right to pre-empt during pendency of
appeal the pre-emptor’s suit must fail. It is no doubt true that in
certain context an appeal is continuation of suit and appellate court is
rehearing the suit, but such wide appellate power has not shown to be
exercised to affect the vested right of a pre-emptor. It is not disputed
that a claimant’s right to get the property in preference to the vendee
is an inchoate one upto the date of adjudication of the suit but it
becomes effective as soon as a decree is passed in his favour. Order
20 sub-rule (1) of Rule 14 CPC provides that where a court decrees a
claim to pre-empt in respect of a particular sale of property and a
decree holder has deposited the purchase money along with the cost of
the suit in the Court, the vendee is required to deliver possession of
the property to the decree holder and title to the property stands
transferred in favour of claimant. In view of said provision, on
deposit of purchase money in the Court by the claimant the right and
title to the property vest in pre-emptor and it becomes vested right of
the pre-emptor. The right of pre-emption prior to decree may be weak
but after it becomes vested right, it can only be taken away by known
method of law. The loss of qualification of pre-emptor or vendee
acquiring status above to pre-emptor during pendency of appeal
cannot be allowed to influence the Court as a Court of Appeal is
mainly concerned with the correctness of the judgment rendered by
the Court of first instance. As earlier noticed that an appellate court is
entitled to take into consideration subsequent event taking place
during pendency of appeal and a Court in an appropriate case permits
amendment of plaint or written statement as the case may be but such
amendment is permitted in order to avoid multiplicity of proceeding
and not where such amendment causes prejudice to the plaintiff’s
vested right rendering him without remedy. It is thus only those
events which have taken place or rights of the parties prior to
adjudication of pre-emption suit and which the trial court was entitled
to dispose of, can only be taken into consideration by the appellate
court. We find support of our view from decision in Sakina Bibi vs.
Amiran (supra) wherein the High Court of Allahabad held that a Court
of Appeal was only required to see whether the trial court 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.
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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 laid down that an appeal is
rehearing of suit and appellate court is entitled to consider any
subsequent change in law which has come into existence during
pendency of appeal. On the strength the said decision it was
vehemently argued that the powers of appellate court are not restricted
only to see whether the decision of the first court was correct on basis
of rights of the parties on the date of adjudication of suit but also to
consider and give effect to subsequent change in law whereby a co-
sharer’s right of pre-emption has been taken away during pendency of
appeal. It is true that in Lachmeshwar Prasad Shukul (supra) in the
context of the provisions of Bihar Money-lenders Act, it was laid
down that once the decree had appealed against, the matter became
sub-judice again and thereafter the appellate court had seisin of the
whole case and therefore, the appellate court is entitled to take into
consideration any change in law taking place during pendency of
appeal and in such a situation the power of appellate court is not
confined only to find out whether the judgment of the Court of first
instance was correct.
It was also argued that the amending Act being retrospective
whatever the right the plaintiff possessed on the date of adjudication
of suit, the same stood extinguished during pendency of appeal and
therefore, the plaintiff suit must fail. Since both the arguments are
overlapping we shall consider the effect of decision in Lachmeshwar
Prasad Shukul vs. Keshwar Lal Choudhuri (supra) slightly later.
Before that it is necessary to consider the effect of substituted Section
15 introduced by the amending Act of 1995 on the substantive rights
of the parties. We would now proceed to examine whether said
provision of the amending Act is retrospective as urged by learned
counsel for the appellant.
In Maxwell on the Interpretation of Statutes, 12th Edn. the
statement of law in this regard is stated thus:
"Perhaps no rule of construction is more
firmly established than thus - that a
retrospective operation is not to be given to
a statute so as to impair an existing right or
obligation, otherwise than as regards matters
of procedure, unless that effect cannot be
avoided without doing violence to the
language of the enactment. If the enactment
is expressed in language which is fairly
capable of either interpretation, it ought to
be construed as prospective 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.
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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 be regulated ought,
when introduced for the first time, to deal
with future acts, and ought not to change the
character of past transactions carried on
upon the faith of the then existing law."
In Garikapati Veeraya s. N.Subbiah Choudhry 1957 SCR 488
this Court observed as thus:
"The golden rule of construction is that, in
the absence of anything in the enactment to
show that it is to have retrospective
operation, it cannot be so construed as to
have the effect of altering the law applicable
to a claim in litigation at the time when the
Act was passed."
In Smt. Dayawait and another vs. Inderjit and others 1966 (3)
SCR 275, it is held thus:
"Now as a general proposition, it may be
admitted that ordinarily a court of appeal
cannot take into account a new law, brought
into existence after the judgment appealed
from has been rendered, because the rights
of the litigants in an appeal are determined
under the law in force at the date of the suit.
Even before the days of Coke whose maxim
- a new law ought to be prospective, not
retrospective in its operation - is off-quoted,
courts have looked with dis-favour upon
laws which take away vested rights or affect
pending cases. Matters of procedure are,
however, different and the law affecting
procedure is always retrospective. But it
does not mean that there is an absolute rule
of inviolability of substantive rights. If the
new law speaks in language, which,
expressly or by clear intendment, takes in
even pending matters, the court of trial as
well as the court of appeal must have regard
to an intention so expressed, and the court of
appeal may give effect to such a law even
after the judgment of the court of first
instance."
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In Hitendra Vishnu Thakur & ors. vs. State of Maharashtra &
ors. [1994 (4) SCC 602] this Court laid down the ambit and scope of
an amending act and its retrospective operation as follows:
"(i)A statute which affects substantive rights
is presumed to be prospective in operation
unless made retrospective, either expressly
or by necessary intendment, whereas a
statute which merely affects procedure,
unless such a construction is textually
impossible, is presumed to be retrospective
in its application, should not be given an
extended meaning and should be strictly
confined to its clearly defined limits.
(ii) Law relating to forum and limitation is
procedural in nature, whereas law relating 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 to
impose 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 the law so far
as they relate to the determination of the
substantive rights and in the absence of a
clear indication of a contrary intention in an
amending enactment, the substantive rights
of the parties to an action fall to be
determined by the law as it existed when the
action was commenced and this is so
whether the law is change before the hearing
of the case at the first instance or while an
appeal is pending (See Halsbury’s Laws of
England, 4th Edn., Vol.44, para 922)".
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From the aforesaid decisions the legal position that emerges is
that when a repeal of an enactment is followed by a fresh legislation
such legislation does not effect the substantive rights of the parties on
the date of suit or adjudication of suit unless such a legislation is
retrospective and a court of appeal cannot take into consideration a
new law brought into existence after the judgment appealed from has
been rendered because the rights of the parties in an appeal are
determined under the law in force on the date of suit. However, the
position in law would be different in the matters which relate to
procedural law but so far as substantive rights of parties are concerned
they remain unaffected by the amendment in the enactment. We are,
therefore, of the view that where a repeal of provisions of an
enactment is followed by fresh legislation by an amending Act such
legislation is prospective in operation and does not effect substantive
or vested rights of the parties unless made retrospective either
expressly or by necessary intendment. We are further of the view that
there is a presumption against the retrospective operation of a statute
and further a statute is not to be construed to have a greater
retrospective operation than its language renders necessary, but an
amending Act which affects the procedure is presumed to be
retrospective, unless amending Act provides otherwise. We have
carefully looked into new substituted section 15 brought in the parent
Act by Amendment Act 1995 but do not find it either expressly
or by necessary implication retrospective in operation which may
effect the right of the parties on the date of adjudication of suit
and the same is required to be taken into consideration by the
appellate Court. In Shantidevi (Smt) and another vs. Hukum Chand
[1996 (5) SCC 768] this Court had occasion to interpret the
substituted section 15 with which we are concerned 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 plaintiff brought a suit for
recovery of money by sale of mortgaged property. The suit was partly
decreed. There was an appeal and cross-appeal to the High Court.
Before the High Court one of the arguments raised was that section
11 of the Bihar Money-lender Act (3 of 1938) which was enacted by
the Bihar Legislature during pendency of the appeal before the High
Court is void. Accepting the arguments, the High Court held section
11 of the Act to be void. Subsequently, the defendants preferred an
appeal before the Federal Court. While the appeal was pending Bihar
Legislature repealed the Money-lender Act of 1938 and substantially
re-enacted it as the Bihar Money-lender Act 1939. Section 7 of the
Act (Act No.7 of 1939) which came for consideration before the
Federal Court runs as under:
"Notwithstanding anything to the contrary
contained in any other law or in any thing
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having the force of law or in any agreement,
no Court shall, in any suit brought by a
money-lender before or after the
commencement of this Act or in any appeal
or proceeding in revision arising out of such
suit, pass a decree for an amount of interest
for the period preceding the institution of the
suit which, together with any amount
already released as interest through the
Court or otherwise, is greater than the
amount of loan advanced, if the loan is
based on a document, the amount of loan
mentioned in, or evidenced by such
document."
(emphasis supplied)
After passing of the Act 7 of 1939, it was argued before the
Federal Court that the defendants are entitled to the benefit of section
7 of the Act 1939 whereas the respondents’ argument was based on
the theory that hearing an appeal the appellate court was only
concerned to see whether or not , the judgment of the Court was in
conformity with the law as it stood at that time, that judgment was
given and further that as the Act of 1939 had not been enacted at the
time when the High Court decided the case, the Federal Court was not
competent to give relief to appellants in terms of Section 7 of the new
Act. In the background of the aforesaid facts, the Federal Court
while interpreting Section 7 of the Act was of the view that Section 7
has in terms been made applicable to appeals in suits brought before
the commencement of the Act and that the decree in appeal yet
remained to be passed. The Federal Court after having found that
Section 7 is retrospective 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 decreed
the suit. Second appeal was filed by the vendee before the High
Court. During pendency of appeal, the State Legislature amended the
Punjab Preemption Act by amending Act No.10 of 1960. By the said
amending Act Section 15 of the Parent Act was deleted and in its
place new Section 15 was substituted whereby the grounds on which
the urban property was pre-empted was taken away. New substituted
Section 31 further provided that no court shall pass decree in a suit
for preemption whether instituted before or after the commencement
of the amending Act which is inconsistent with the provision of the
Act. The High Court applying the principles laid down in
Lachmeshwar Prasad Shukul’s case held that an appeal being
continuation of suit, the appellate Court is to take into account the
subsequent change in law which has retrospective operation. The
said decision of Punjab & Haryana High Court in Ram Lal vs. Raja
Ram was approved in Ram Sarup vs. Munshi & ors. (supra). In the
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said case, a Constitution Bench of this Court held that section 31 of
Amending Act 10 of 1960 being retrospective the right to preempt a
sale which has accrued before coming into force of the Amending Act
stood defeated. The Constitution Bench also noted and explained that
in Lachmeshwar Prasad Shukul vs. Keshwar Lal Choudhuri (supra),
the Federal Court was construing Section 7 of Bihar Money-lender
Act which had retrospective operation and in that context held that
appeal being continuation of suit, the appellate court is required to
take into account subsequent change in law. It is appropriate to
reproduce the following passage from Ram Sarup’s case:
"Though we agree that there is a
presumption against the retrospective
operation of a statute and also the related
principle that a statute will not be construed
to have a greater retrospective operation
than its language renders necessary, we
consider that in the present case the
language used in section 31 is plain and
comprehensive so as to require an appellate
court to give effect to the substantive
provisions of the Amending Act whether the
appeal before it is one against a decree
granting pre-emption or one refusing that
relief. The decision of the Federal Court in
Lachmeshwar Prasad vs. Keshwar Lal on
which learned counsel for the appellant
relied fully covers this case. The question
there raised related to the duty of the Federal
Court 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 for pre-emption whether instituted
before or after the commencement of the Act" led the Constitution
Bench of this Court to come to conclusion that there is necessary
intendment in the Act, that it has retroactive operation and has to be
taken into consideration by the appellate court and the powers of an
appellate court is not confined to see whether the judgment of the
trial court was correct or not.
Learned counsel for the appellants strongly relied upon a
decision of Amarjit Kaur etc. vs. Pritam Singh & ors. etc. [1974 (2)
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SCC 363]. In the said case this Court was interpreting section 3 of
Punjab Pre-emption Repealed Act 1973 which provided that on and
from the commencement of the Act no Court shall pass a decree in
any suit for pre-emption. This Court in the said case while applying
principles laid down in Lachmeshwar Prasad Shukul vs. Keshwar Lal
Choudhuri (supra) held that as an appeal is rehearing, it would
follow that if the Court was to dismiss the appeal, it would be passing
a decree in a suit for pre-emption and therefore the only course open
to the High Court was to allow that appeal and that is what the High
Court has done. The said decision in Amarjit Kaur was followed in
Sadhu Singh & Anr. vs. Dharam Dev & Ors. [AIR 1980 SC 1654]
wherein this Court reiterated that Section 3 of the Act interdicts the
passing of the decree even in appeal as the appeal is rehearing of the
suit. In both the cases this Court without examining whether the
Section 3 of the Act is prospective or retrospective applied the
principle laid down by Federal Court in Lachmeshwar Prasad Shukul
vs. Keshwar Lal Choudhuri’s case. We have not been supplied with
the full text of the Act and in its absence, we are unable to conclude
that either the said Act was prospective or retrospective in operation.
It appears, this Court proceeded on the assumption that Section 3 of
the Act was retrospective in operation and, therefore, applied the
principle laid down in Lachmeshwar Prasad Shukul vs. Keshwar Lal
Choudhuri (supra). In view of such facts and circumstances, these
decisions are of no assistance to the case of the appellants.
During the course of argument, a half-hearted argument was
raised that a substituted section in an Act introduced by an amending
Act is to be treated having retroactive operation. According to the
learned counsel for the appellant, the function of a substituted 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 the present case. But there are limitations on the powers of
the Court, in a sense that Courts in certain situations often refrain
themselves to apply rule of benevolent or liberal construction. The
judicial precedents have laid down that, ordinarily, where and when
the rule of benevolent construction is required to be applied and not
to be applied. One of the situations is, when the Court finds that by
application of rule of benevolent construction it would be re-
legislating a provision of statute either by substituting, adding or
altering the words used in the provision of the Act. In such a situation
generally Courts have refrained themselves to apply rule of
benevolent construction. Under the cover of application of rule of
benevolent construction a Court is not entitled to re-legislate a
provision of a statute and to do violence with the spirit of the
provision of the Act so construed. The second situation is when the
words used in a statute is capable of only one meaning. In such a
situation, the courts have been hesitant to apply the rule of benevolent
construction. But if it is found that the words used in the statute give
rise to more than one meaning, in such circumstances, the Courts are
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not precluded to apply such rule of construction. The third situation
is when there is no ambiguity in a provision of a statute so construed.
If the provision of a statute is plain, unambiguous and does not give
rise to any doubt, in such circumstances the rule of benevolent
construction has no application. However, if it is found that there is a
doubt in regard to meaning of a provision or word used in provisions
of an enactment it is permissible for court to apply the rule of
benevolent construction to advance the object of the Act. Ordinarily,
the rule of benevolent construction has been applied while construing
welfare legislations or provisions relating to relationship between
weaker and stronger contracting parties. Assuming that the amending
Act is for general good of people, we do not find the presence of the
aforestated situations which may call for application of such rule
while construing substituted Section 15 introduced by the amending
Act. A reading of substituted Section 15 would show that the words
used therein are plain and simple and there is no ambiguity in it. The
words used in the Section do not give rise to more than one meaning.
Further, we 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 be
characterized as procedural. It is in regard
to a matter of substantive law since it affects
the substantive right of the landlord. It may
be conceded that the Act is intended to
provide relief to the tenants and in that sense
is a beneficial measure and as such its
provision would be liberally constructed; but
this principle would not be material or even
relevant in deciding the question as to
whether the new provision is retrospective
or not. It is well settled that where an
amendment affects vested rights the
amendment would operate prospectively
unless it is expressly made retrospective or
its retrospective operation follows as a
matter of necessary implication. The
amending Act obviously does not make the
relevant provision retrospective in terms and
we see no reason to accept the suggestion
that the retrospective operation of the
relevant provision can be spelt out as a
matter of necessary implication."
We are in respectful agreement with the view taken in Moti
Ram Vs. Suraj Bhan & ors. (supra). The right of pre-emption may
be a weak right but nonetheless the right is recognised by law and can
be allowed to be defeated within the parameters of law. A statute
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which affect the substantive right has to be held prospective unless
made retrospective either expressly or by necessary intendment.
Learned counsel appearing for the appellants strongly relied upon a
decision of this Court in the case of Rafiquennessa vs. Lal Bahadur
Chetri (dead) through His Representatives and others [1964 (6) SCR
876 @ 883] for contention that a beneficient provision enacted by
legislation has to be given retroactive operation. In the said case it
was held thus:
"This provision clearly indicates that the
legislature wanted the beneficient provisions
enacted by it to take within their protection
not only leases executed after the Act came
into force, but also leases executed prior to
the operation of the Act. In other words,
leases which had been created before the
Act applied are intended to receive the
benefit of the provisions of the Act, and in
that sense, the Act clearly affects vested
rights of the landlords who had let out their
urban properties to the tenants prior to the
date of the Act. That is one important fact
which is material in determining the scope
and effect of s.5."
In the said case Section 2 of the Act provided that notwithstanding
anything contained 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 ambiguity in substituted Section 15 and, therefore, this
decision has no application in the present case. We accordingly reject
the arguments of the learned counsel for the appellants.
Lastly, it was contended on behalf of the appellants that the
amending Act whereby new Section 15 of the Act has been
substituted is declaratory and, therefore, has retroactive operation.
Ordinarily when an enactment declares the previous law, it requires to
be given retroactive effect. The function of a declaratory statute is to
supply an omission or explain previous statute and when such an Act
is passed, it comes into effect when the previous enactment was
passed. The legislative power to enact law includes the power to
declare what was the previous law and when such a declaratory Act is
passed invariably it has been held to be retrospective. Mere absence
of use of word ’declaration’ in an Act explaining what was the law
before may not appear to be a declaratory Act but if the Court finds
an Act as declaratory or explanatory it has to be construed as
retrospective. Conversely where a statute uses the word ’declaratory’,
the words so used may not be sufficient to hold that the statute is a
declaratory Act as words may be used in order to bring into effect new
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law.
Craies on a Statute Law, 7th Edition stated the statement of law
thus:
"If a doubt is felt as to what the common
law is on some particular subject, and an Act
is passed to explain and declare the common
law, such an Act is called a declaratory
Act."
G.P. Singh on Principles of Statutory Interpretation quoting
Craies stated thus:
"For modern purposes a declaratory Act
may be defined as an Act to remove doubts
existing as to the common law, or the
meaning or effect of any statute. Such Acts
are usually held to be retrospective. The
usual reason for passing a declaratory Act is
to set aside what Parliament deems to have
been a judicial error, whether in the
statement of the common law or in the
interpretation of statutes. Usually, if not
invariably, such an Act contains a preamble
and also the word ’declared’ as well as the
word’ enacted". But the use of the words
"it is declared is not conclusive that the Act
is declaratory for these words may, at times,
be used to introduce new rules of law and
the Act in the latter case will only be
amending the law and will not necessarily
be retrospective. In determining, therefore,
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
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Chandrasekharan (dead) by Lrs. [1995 (2) SCC 630], it was held thus:
"Declaratory enactment declares and
clarifies the real intention of the legislature
in connection with an earlier existing
transaction or enactment, it does not create
new rights or obligations. If a statute is
curative or merely declaratory of the
previous law retrospective operation is
generally intended....A clarificatory
amendment of this nature will have
retrospective effect and therefore, if the
principal Act was existing law when the
Constitution came into force the amending
Act also will be part of the existing law. 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"
From the aforesaid decisions, the legal principle that emerges is
that the function of a declaratory or explanatory Act is to supply an
obvious omission or to clear up doubts as to meaning of the previous
Act and such an Act comes into effect from the date of passing of the
previous Act. Learned counsel for the appellants strongly relied upon
a decision of two-Judges Bench of this Court in Mithilesh Kumari &
anr. vs. Prem Behari Khare [1989 (2) SCC 95] in support of his
argument. In the said decision, it was held by this Court that The
Benami Transactions (Prohibition) Act 1988 being a declaratory Act,
the provisions of Section 4 of the Act has retroactive operation. The
reliance of this decision by the appellants’ counsel is totally misplaced
as this decision was overruled in R. Raja Gopal Reddy vs. Padmini
Chandrasekharan (supra) wherein it was held that, the Act was not
passed to clear any doubt existed as to the common law or the
meaning of effect of any statute and it was, therefore, not a
declaratory Act.
We have already quoted substituted section 15 of the amending
Act but do not find that the amending Act either expressly or by
necessary implication intended to supply an omission or to clear up a
doubt as to the meaning of previous Section 15 of the parent Act. The
previous Section 15 of the parent Act was precise, plain and simple,
There was no ambiguity in it. The meaning of the words used in
Section 15 of the parent Act was never in doubt and there was no
omission in its phraseology which was required to be supplied by the
amending Act. Moreover, the amending Act either expressly or by
implication was not intended to be retroactive and for that reason we
hold that the amending Act 10 of 1995 is not a declaratory Act and,
therefore, it has no retrospective operation.
For the aforestated reasons, we approve the view of law taken
in Didar Singh etc. vs. Ishar Singh (dead) by Lrs. etc. (supra) and
further hold that the decision in the case of Ramjilal vs. Ghisa Ram
(supra) does not lay down the correct view of law.
The result of the aforesaid discussion is that the amending Act
being prospective in operation does not affect the rights of the parties
to the litigation on the date of adjudication of the pre-emption suit and
the appellate court is not required to take into account or give effect to
the substituted Section 15 introduced by the amending Act.
In view of what has been stated above, these appeals fail and
accordingly are dismissed, but there shall be no order as to costs.
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