R.S.A.No. 2018 of 1996 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2018 of 1996 Date of decision: 10.7. 2009 Rulia Singh ......Appellant Versus Dina Nath and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Amandeep Singh Advocate, for Mr.G.S.Hooda, Advocate and Mr.J.K.Goel, Advocate, for the appellant. Mr.Pritam Saini, Advocate, for respondent No.1. **** SABINA, J. The substantial question of law that arises in this case is as to what is the effect of substituted Section 15 introduced by the Haryana Amendment Act, 1955 (hereinafter referred to as 'the Amending Act') in the parent Act i.e. Punjab Pre-emption Act (hereinafter referred to as 'the parent Act) as applicable to the State R.S.A.No. 2018 of 1996 2 of Haryana with regard to the right of a co-sharer to pre- empt a sale during the pendency of an appeal after the suit of the co-sharer to pre- empt a sale has been decreed. Plaintiff Rulia Singh filed a suit for possession by way of pre-emption and the same was decreed by the Sub Judge (Ist Class), Kaithal vide judgment and decree dated 16.9.1994. Aggrieved by the same, defendant Dina Nath filed an appeal, which was allowed by Additional District Judge, Kaithal vide judgment and decree dated 14.6.1996. Hence, the present appeal by the plaintiff. Brief facts of the case, as noticed by the Additional District District Judge, Kaithal in para Nos. 2 and 3 of the impugned judgment, are as under:- “2. The suit for possession of the suit land by way of pre- emption was brought by respondent No.1 Rulia Singh in respect of the land purchased by appellant-defendant No.1 Dina Nath from its owner; namely, Sudesh- defendant No.2 for a fictitious consideration of Rs.31,000/-, while the actual sale consideration was Rs.10,000/- which was actually paid by defendant No.1 to defendant No.2 vide sale deed dated 20.12.1988 in the office of Sub-Registrar, Fatehpur-Pundri, claiming a superior right being co-sharer in the khewat in which the suit land forms part and alleging that no notice of the sale was ever given to him. It is further alleged that the sale R.S.A.No. 2018 of 1996 3 price was shown on the hire side just to ward off the pre- emptor. The defendant has been repeatedly requested to admit the claim of the plaintiff but he was adamant and refused to do so. 3. Defendant No.1-vendee, on the other hand, contested the suit disputing the factum of plaintiff- respondent No.1 being co-sharer in the suit land.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff has a right to pre empt the sale in question? OPP 2. Whether the sale price mentioned in the sale deed is fictitious and was not actually paid if so, what was the consideration paid? OPP 3. Whether the contesting defendant is entitled to stamp and registration charges in case of decree? OPP 4. Relief. ” The facts in the present case are not in dispute. This appeal involves purely a legal question. Admittedly, plaintiff Rulia Singh was a co-sharer in the suit land. Defendant No.2 sold the property in dispute to defendant No.1 for a consideration of Rs.31,000/- vide sale deed Ex.P-1. Plaintiff being a co-sharer was entitled to pre empt the sale. The suit of the plaintiff for possession R.S.A.No. 2018 of 1996 4 by way of pre-emption was decreed. However, in appeal the suit of the plaintiff was dismissed by placing reliance on judgment of the Apex Court in Karam Singh and others v. Bhagwan Singh (dead) by Lrs. and others 1996 HRR-91. Section 15 of the Amending Act, whereby right of a co- sharer to pre empt a sale was taken away, reads as under:- “ 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.” The controversy involved in this case is no longer res integra. The Apex Court in Shyam Sunder and another v. Ram Kumar and another 2001 (SC) 2472 has held that the Amending Act being prospective in operation does not effect 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. The relevant paras of the aforesaid judgment are reproduced herein as under:- “11. An analysis of the aforesaid decisions referred to in first category of decisions, the legal principles that emerges are these: 1. The pre-emptor must have the right to pre-empt the R.S.A.No. 2018 of 1996 5 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 fall. 3. A pre-emptor who has a right to pre-empt 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 pre-emption 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. 14.The legal position that emerges on review of the R.S.A.No. 2018 of 1996 6 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. 35. 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 consequence that follow in the case of an amending Act the same would also follow in the case of a substituted Section in an Act. 36. 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 R.S.A.No. 2018 of 1996 7 operation. Generally rules of interpretations are meant to assit 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 the Act so construed. The second situation is when the words R.S.A.No. 2018 of 1996 8 used in a stature 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 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 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 constructing substituted Section 15 R.S.A.No. 2018 of 1996 9 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 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. 40. 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 R.S.A.No. 2018 of 1996 10 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 Courts 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 law. 45. 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 tomeaning 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 Mithilesh Kumari and another v. 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 provision of Section R.S.A.No. 2018 of 1996 11 4 of the Act has retroactive operation. The reliance on this decision by the appellants' counsel is totally misplaced as this decision was overruled in R.Raja Gopal Reddy v. 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. 46. 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. 47. For the aforestated reasons, we approve the view R.S.A.No. 2018 of 1996 12 of law taken in Didar Singh etc. v. Ishar Singh (dead) by Lrs. etc. (supra) and further hold that the decision in the case of Ramjilal v. Ghisa Ram (supra) does not lay down the correct view of law. 48. The result of the aforesaid discussion is that the amending Act being prospective in operation does not affect the rights of the parties to be 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.” Before the Appellate Court, there was nothing to suggest that the plaintiff had ceased to be a co-sharer. Since vide the decision of a Bench of five Judges in Shyam Sunder's case (supra) in order to resolve conflict between the decisions rendered by two different Benches, it has been held that the Amending Act is prospective in operation and will not effect rights of the parties on the litigation on the date of adjudication of 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, the present appeal deserves to be allowed. Accordingly, this appeal is allowed and the judgment and decree of the learned District Judge, Kaithal, whereby the suit of the plaintiff was dismissed are set aside and the judgment and decree of R.S.A.No. 2018 of 1996 13 the Sub Judge (Ist Class) Kaithal dated 17.9.1994, whereby the suit of the plaintiff was decreed, are upheld. (SABINA) JUDGE July 10, 2009 anita