Himachal Pradesh High Court
Prem Kumar And Another vs Of on 4 December, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. : 73 of 2015 .
Reserved on : 05.09.2023
Decided on : 04.12.2023
Prem Kumar and another ...Appellants
Versus
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Tilak Raj and others ...Respondents
Coram
rt
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 Yes.
For the appellants : Mr. N.K. Sood, Senior Advocate, with Mr. Aman Sood, Advocate.
For the respondents : Mr. N.K. Thakur, Senior Advocate, with Mr. Karan Veer Singh, Advocate, for respondent No. 1.
None for other respondents.
Virender Singh, Judge.
The appellants have preferred the present appeal against the judgment and decree, dated 2nd January, 2013, passed by the learned Civil Judge (Senior Division), Court No. 1, Hamirpur, H.P. (hereinafter referred to as the 'trial 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 06/12/2023 20:32:39 :::CIS 2Court'), in Civil suit No. 13 of 2011, titled as Prem Kumar and another versus Tilak Raj and others.
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2. Vide judgment and decree, dated 2nd January, 2013, the learned trial Court has dismissed the suit of the plaintiff. The said judgment and decree has been affirmed by the Court of learned Additional District Judge, Hamirpur, of H.P. (hereinafter referred to as the 'First Appellate Court'), vide judgment and decree, dated 6th September, 2014, rt passed in Civil Appeal No. 58 of 2013, titled as Prem Kumar and another versus Tilak Raj and others.
3. For the sake of convenience, parties to the present lis, are, hereinafter, referred to, in the same manner, in which, they were referred to, by the learned trial Court.
4. Brief facts, leading to the filing of the present appeal, before this Court, may be summed up, as under:
4.1. Plaintiffs have filed the suit for possession by way of pre-emption of land, bearing khata No. 252, khatauni No. 315, khasra Nos. 1495, 1496, 3494/1497, 3499/1499, kita 5 area 4 kanal 8 marlas, alongwith one kacha room slateposh, measuring 4.50 x 4.50 meters and khata No. 253, khatauni No. 316, khasra No. 3493/1497, 3496/1498, ::: Downloaded on - 06/12/2023 20:32:39 :::CIS 3 3498/1499, kita 3, area 19 marlas of ¼ share area 4 marla, alongwith one kacha room slateposh, measuring 4.20 x 4.20 .
meters, situated in Tika Sujanpur, Tappa Bhaleth, Tehsil Sujanpur, District Hamirpur, H.P. (hereinafter referred to as 'the suit land').
4.2. The said relief has been sought on the ground of that the plaintiffs are having the preferential rights of pre-
emption. According to the plaintiffs, the suit land was owned rt by defendants No. 2 to 8 and the plaintiffs, as, they have also been recorded as co-sharers alongwith the other co-sharers.
Defendants No. 2 to 8, without any notice to the plaintiffs, have sold the suit land, alongwith structure, in favour of defendant No. 1, vide sale deed, dated 8 th February, 2010.
The amount of sale consideration, as shown in the sale deed, is also stated to be not as per the market value, rather, the sale consideration is stated to have wrongly been mentioned in the sale deed. According to the plaintiff, value of the suit land was not more than ₹ one lakh.
4.3. The plaintiffs have further asserted that defendants No. 2 to 8 have not served notices, as required, ::: Downloaded on - 06/12/2023 20:32:39 :::CIS 4 under the provisions of Himachal Pradesh Pre-Emption Act, 2010 (hereinafter referred to as 'the Act').
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4.4. According to the plaintiffs, the cause of action, for filing the suit has arisen on 8th February, 2010, when the sale deed was executed and lastly, in the month of January, 2011, when the defendants refused to acknowledge the right of of the plaintiffs in Village Sujanpur, Tappa Bhaleth, Tehsil Sujanpur, District Hamirpur, H.P. rt
5. On the basis of the above facts, a prayer has been made by the plaintiffs to decree the suit.
6. The suit has been contested by the defendants.
Defendant No. 1 has contested and resisted the suit, by filing separate written statement, by taking the preliminary objections that the suit is not legally maintainable in the present form; that the plaintiffs have got no cause of action to file the present suit; that the plaintiffs are estopped from filing the suit by their own act and conduct; and that the defendants are entitled to special costs under Section 35-A of the Code of Civil Procedure.
7. The factual position, with regard to the sale of the suit land by defendants No. 2 to 8, has not been disputed.
::: Downloaded on - 06/12/2023 20:32:39 :::CIS 5According to defendant No. 1, the plaintiffs were duly apprised and requested to purchase the suit land, but, they .
have refused to purchase the suit land. The suit land was sold for a sum of ₹ 2,25,000/- and it has been denied that the value of the suit land is not more than ₹ one lakh.
8. Defendant No. 1 has also taken the stand that of when the sale deed was executed, the Act, on the basis of which, they have sought the relief, was not in operation.
rt Rest of the contents of the suit were denied.
9. Defendants No. 2 to 8 have filed their separate written statement, taking almost the similar stand. Thus, the defendants have prayed for the dismissal of the suit.
10. The plaintiffs have filed the replication, denying the contents of the written statement, by re-asserting that of the plaint.
11. From the pleadings of the parties, the following issues were framed, by the learned trial Court:
"1. Whether the plaintiff has got preferential right of pre-emption in comparison to defendant No. 1 as alleged? OPP
2. If issue No. 1 is proved in affirmative, then whether plaintiff is entitled for a decree of possession by way of pre-emption of the suit land as alleged? OPP ::: Downloaded on - 06/12/2023 20:32:39 :::CIS 6
3. Whether the market value of the suit land is Rs. 1,00,000/- as alleged? OPP
4. Whether the market value of the suit land is Rs.
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2.25 lacs as alleged? OPD-2 to 8
5. Whether the suit is not maintainable as alleged? OPD-1, 2 to 8
6. Whether the plaintiff has got no cause of action to file the present suit as alleged? OPD-1, 2 to 8 of
7. Whether the plaintiffs are estopped from filing the present suit by his own act and conduct as alleged? OPD-1, 2 to 8 rt
8. Whether the defendants are entitled for special costs as alleged? OPD-1, 2 to 8
9. Relief."
12. Thereafter, parties to the lis were directed to adduce the evidence. Plaintiff No. 2 has appeared in the witness box as PW-1, whereas defendant No. 1 appeared in the witness box as DW-1 and defendant No. 6 appeared in the witness box as DW-2.
13. The learned trial Court, after considering the evidence of the parties, has dismissed the suit, vide judgment and decree, dated 2nd January, 2013, mainly on the ground that the suit land was sold before coming into force of the Act. As such, according to the learned trial Court, the provisions of the Act are not applicable in the dispute, as involved in the suit, filed by the plaintiffs.
::: Downloaded on - 06/12/2023 20:32:39 :::CIS 714. Aggrieved from the said judgment and decree, the plaintiffs have unsuccessfully assailed the same, by way of .
Civil Appeal No. 58 of 2013, which has been dismissed by the First Appellate Court, vide judgment and decree, dated 6 th September, 2014.
15. Feeling aggrieved from the said judgment and of decree, the plaintiffs have filed the present Regular Second Appeal, on the ground, that the impugned judgment and rt decree is not sustainable in the eyes of law, as the same is result of misinterpretation, misconstruction and misreading of the pleadings. The evidence led by the parties is stated to have not been considered properly, by the Courts below.
16. The findings have further been assailed on the ground that the learned trial Court, as well as, the learned First Appellate Court have failed to take into consideration Section 26 of the Act, which, specifically provided for the period of limitation of one year from the date of sale.
17. The another ground to assail the findings of the Courts below is that the Act was published in the Himachal Pradesh Gazette Notification (Rajpatra) on 28th January, 2010, whereas, the sale in question was made thereafter, on ::: Downloaded on - 06/12/2023 20:32:39 :::CIS 8 8th February, 2010. As such, the appellants-plaintiffs have asserted their right of pre-emption over the suit land.
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18. The appellants-plaintiffs have also assailed the impugned judgment and decree, on the ground that even if, the Act is presumed to be having come into force on 22 nd January, 2011 and even, counting the period of one year of from 8th February, 2010, the suit has been filed within one year, i.e. on 3rd February, 2011, by the time, the Act had rt come into force.
19. The impugned judgment and decree has also been assailed on the ground that the Act is retrospective in operation.
20. On the basis of the above facts, a prayer has been made to allow the appeal, by setting aside the judgment and decree, passed by the learned trial Court, which has been affirmed by the learned First Appellate Court.
21. This appeal has been admitted, by this Court, on the following substantial questions of law, on 5 th March, 2015:
"1. Whether in law the Himachal Pradesh Pre- emption Act, 2010 once published in H.P. Rajpatra on 28th January, 2010 can be said to exclude the sales from its operation which are made after the ::: Downloaded on - 06/12/2023 20:32:39 :::CIS 9 above date, but before the date of assent by the Governor which was given on 22.01.2011 thereby excluding sale deed (Ex. PA) from the operation of the Act?
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2. Whether the sales made prior to 22.01.2011, but within one year prior to the said date can be said to have been excluded from the operation of Himachal Pradesh Pre-emption Act, 2010 (Act No. 10 of 2011) particularly wen the retrospective operation of the said Act has not been barred under the provisions of Act itself?
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3. Whether the findings of both the courts below are bad in law to hold that the plaintiffs had no right of pre-emption particularly by 22.01.2011 rt when the Himachal Pradesh Pre-emption Act, 2010 (Act No. 10 of 2011) is said to have taken effect, the right to assail sale deed (Ex. PA) dated 08.02.2010 had matured with the coming into force of the Act and the suit was still filed within a period of one year as prescribed under Section 26 of the Act.
4. Whether findings of both the courts below are vitiated for misinterpretation, misconstruction and mis-appreciation of the pleadings as also the evidence especially statements of DW-1 and DW-2 and other material on record to hold that defendants No. 2 to 8 had complied with the provisions of Section 15 of the Himachal Pradesh Pre-emption Act, 2010 (Act No. 10 of 2011) before executing sale deed (Ex. PA) in favour of defendant No. 1?"
22. Before deciding the above substantial questions of law, this Court deems it fit to mention certain points, which are required to be highlighted.
23. The sale of the suit land by defendants No. 2 to 8 in favour of defendant No. 1, on 8 th February, 2010, vide sale ::: Downloaded on - 06/12/2023 20:32:39 :::CIS 10 deed, Ex. PA, has not been disputed, in this case. It is also not disputed that the plaintiffs are the co-sharers.
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24. The plaintiffs have pleaded these facts in para 2 of the plaint. The contents of para 2 of the plaint have been admitted by the defendants. A fact, which is admitted, need not be proved by the opposite party.
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25. The plaintiffs are seeking the relief, in the present suit, on the ground of non-compliance of Section 15 of the rt Act and, according to the plaintiffs, their suit is under the provisions of Section 17 of the Act.
26. The Act has received the assent of the Governor of Himachal Pradesh, on 22nd January, 2011. In such situation, the moot question, which, arises for determination, before this Court, is with regard to the fact as to whether the provisions of the Act are applicable to the sale deed, which, admittedly, was executed prior to receiving the assent by the Governor of Himachal Pradesh, to the Act.
27. The learned counsel appearing for the appellants-
plaintiffs could not satisfy the judicial conscience of this Court as to how the Act will be applicable to the sale deed, which was executed prior to the promulgation of the Act. A ::: Downloaded on - 06/12/2023 20:32:39 :::CIS 11 Bill becomes a law, as soon as, it is assented to by the President or the Governor, as the case may be.
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28. In this regard, the provisions of Section 5 of the General Clauses Act, 1897, assumes significance. As per Section 5 of the General Clauses Act, 1897, the Bill becomes a law after, the assent of the President or the Governor, as, of the case may be. It is apt to reproduce Section 5 of the General Clauses Act, 1897, as under:
rt "5. Coming into operation of enactments. -
(1) Where any Central Act is not expressed to come into operation on particular day, then it shall come into operation on the day on which it receives the assent, -
(a) in the case of a Central Act made before the commencement of the Constitution, of the Governor-General, and
(b) in the case of an Act of Parliament, of the President.
*** *** *** (3) Unless the contrary is expressed, a Central Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement."
29. In this case, the Bill has received the assent of the Governor on 22nd January, 2011. If the said admitted factual position is seen in the light of the provisions of Section 5 of the General Clauses Act, 1897, then, the arguments of the ::: Downloaded on - 06/12/2023 20:32:39 :::CIS 12 learned counsel for the appellants-plaintiffs, with regard to the publication of the Bill, by way of the Gazette Notification, .
holds no water, as the Bill becomes an Act, only after receiving the assent of the Governor.
30. While holding so, the view of this Court is being guided by the decision of the Constitution Bench of the of Hon'ble Supreme Court in case, titled as Rajendra Diwan versus Pradeep Kumar Ranibala and another, reported in rt (2019) 2 Supreme Court Cases 143. Relevant para-62 of the judgment, is reproduced, as under:
"62. Article 200 of the Constitution relating to the passage of Bills except Money Bills, requires Bills passed by the Legislative Assembly of a State, or in case of a State having a Legislative Council, a Bill passed by both the Houses of the Legislature of the State, to be presented to the Governor for assent. Such Bills become law on receipt of assent of the Governor."
31. So far as the arguments of the learned counsel appearing for the appellants that the Act is retrospective in nature, are concerned, generally, every law will apply prospectively, but, the Legislature has the authority to implement a law retrospectively, provided, the Legislature must expressly state that it intends to give retrospective ::: Downloaded on - 06/12/2023 20:32:39 :::CIS 13 effect to a law. In the absence of any such declaration, the law is presumed to be prospective in nature.
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32. In a case, titled as Zile Singh versus State of Haryana and others, reported in (2004) 8 Supreme Court Cases 1, the Hon'ble Supreme Court has held that it is a cardinal principle of construction that future statue is, prima of facie, prospective, unless, it is expressly or by necessary implication, made to have a retrospective operation.
rt The
relevant paras-13 to 15 of the said judgment, are
reproduced, as follows:
"13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only -- "nova constitutio futuris formam imponere debet non praeteritis" -- a new law ought to regulate what is to follow, not the past. (See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edn., 2004 at p. 438.) It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole (ibid., p. 440).
14. The presumption against retrospective operation is not applicable to declaratory statutes.... In ::: Downloaded on - 06/12/2023 20:32:39 :::CIS 14 determining, therefore, the nature of the Act, regard must be had 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 .
retrospectively. 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.... An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already of implicit. A clarificatory amendment of this nature will have retrospective effect (ibid., pp. 468-69).
15. Though retrospectivity is not to be presumed rt and rather there is presumption against retrospectivity, according to Craies (Statute Law, 7th Edn.), it is open for the legislature to enact laws having retrospective operation. This can be achieved by express enactment or by necessary implication from the language employed. If it is a necessary implication from the language employed that the legislature intended a particular section to have a retrospective operation, the courts will give it such an operation. In the absence of a retrospective operation having been expressly given, the courts may be called upon to construe the provisions and answer the question whether the legislature had sufficiently expressed that intention giving the statute retrospectivity. Four factors are suggested as relevant: (i) general scope and purview of the statute; (ii) the remedy sought to be applied; (iii) the former state of the law; and
(iv) what it was the legislature contemplated. (p.
388) The rule against retrospectivity does not extend to protect from the effect of a repeal, a privilege which did not amount to accrued right. (p.
392)"
33. The Hon'ble Supreme Court in another case, titled as State Bank's Staff Union (Madras Circle) versus Union of India and others, reported in (2005) 7 Supreme Court ::: Downloaded on - 06/12/2023 20:32:39 :::CIS 15 Cases 584, has elaborately discussed the expressions 'retrospective', 'retroactive' and 'retroactivity'. Relevant .
paras-20 and 21 of the judgment, are reproduced, as under:
"20. Judicial Dictionary (13th Edn.) by K.J. Aiyar, Butterworth, p. 857, states that the word "retrospective" when used with reference to an enactment may mean (i) affecting an existing contract; or (ii) reopening up of past, closed and of completed transaction; or (iii) affecting accrued rights and remedies; or (iv) affecting procedure. Words and Phrases, Permanent Edn., Vol. 37-A, pp. 224-25, defines a "retrospective or retroactive law" as one which takes away or rt impairs vested or accrued rights acquired under existing laws. A retroactive law takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.
21. In Advanced Law Lexicon by P. Ramanath Aiyar (3rd Edn., 2005) the expressions "retroactive"
and "retrospective" have been defined as follows at p. 4124, Vol. 4:
"Retroactive.--Acting backward; affecting what is past.
(Of a statute, ruling, etc.) extending in scope or effect to matters that have occurred in the past. --
Also termed retrospective. (Black's Law Dictionary, 7th Edn., 1999) ' "Retroactivity" is a term often used by lawyers but rarely defined. On analysis it soon becomes apparent, moreover, that it is used to cover at least two distinct concepts. The first, which may be called "true retroactivity", consists in the application of a new rule of law to an act or transaction which was completed before the rule was promulgated. The second concept, which will be referred to as "quasi-retroactivity", occurs when a new rule of law is applied to an act or transaction ::: Downloaded on - 06/12/2023 20:32:39 :::CIS 16 in the process of completion.... The foundation of these concepts is the distinction between completed and pending transactions....' T.C. Hartley, Foundations of European Community Law, .
p. 129 (1981).
* * * Retrospective.--Looking back; contemplating what is past.
Having operation from a past time.
of 'Retrospective' is somewhat ambiguous and that good deal of confusion has been caused by the fact that it is used in more senses than one. In general, however, the courts regard as retrospective any rt statute which operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. Thus, a statute is not retrospective merely because it affects existing rights; nor is it retrospective merely because a part of the requisite for its action is drawn from a time antecedent to its passing."
(Vol. 44, Halsbury's Laws of England, 4th Edn., p. 570, para 921.)"
34. In view of the above, it cannot be said that the Act, in the present case, is retrospective in nature, as, the provisions of Section 10 of Act, which are reproduced as follows, assumes significance:
"10. The law determining the right of pre- emption. - In respect of all sales and foreclosures not completed on the date of commencement of this Act, the right of pre-emption shall be determined under the provisions of this Act."::: Downloaded on - 06/12/2023 20:32:39 :::CIS 17
35. If the facts and circumstances of the present case are seen in the light of this provision, it can easily be held .
that the Act is prospective in operation, as, admittedly, in the present case, sale was completed on 8th February, 2010, much prior to the date, when the Act commenced, i.e. assent of the Governor was accorded.
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36. Having glance of the above discussion, the substantial questions of law, as framed, in this case, are rt decided against the appellants.
37. Consequently, the appeal is dismissed and the impugned judgment and decree, passed by the learned trial Court, as affirmed by the learned First Appellate Court, is upheld.
38. Pending miscellaneous applications, if any, are also disposed of accordingly.
39. Decree sheet be prepared accordingly.
( Virender Singh ) Judge December 04, 2023 ( rajni ) ::: Downloaded on - 06/12/2023 20:32:39 :::CIS