Mohammad Younis vs Shabir Ahmad Bati

Sanjay Dhar, J

1) Through the medium of present petition, the petitioner has sought review of judgment dated 17.11.2023 passed by this Court in Civil Revision No.36/2016.

2) The facts giving rise to the filing of the instant petition are that the respondent had filed a revision petition against order dated 27.07.2016 passed by learned Sub Judge, Uri, whereby the objections filed by him against execution of judgment and decree dated 16.02.1967 passed by learned Munsiff, Uri, were rejected.

3) By virtue of the objections filed by the respondent-judgment debtor before the Executing Court, it was contended that judgment and decree dated 16.02.1967 is not executable because this Court in the case of Fazal Khan & Ors vs. Yaqob Khan & Ors. 1988 KLJ 371, has declared the right of pre-emption based on agnatic rule of succession and consanguinity as contained in Section 14 (b) ‘firstly’ and ‘fourthly’ of the Jammu and Kashmir Right of Prior Purchase Act as unreasonable, unjustified and against the constitutional scheme. On this ground it was urged that the declaration made by this Court in the aforesaid case would operate retrospectively and, as such, judgment and decree dated 16.02.1967, that was based on right of pre-emption in terms of 14 (b) ‘firstly’ and ‘fourthly’ of the J&K Right of Prior Purchase Act, has become unexecutable.

4) The aforesaid objections of the respondent were rejected by the Executing Court by holding that the doctrine of prospective overruling would come into play in the instant case and, as such, the cases that have attained finality prior to declaration of right of pre-emption as unconstitutional cannot be reopened.

5) The aforesaid order of the Executing Court was challenged by the respondent by way of Civil Revision No.36/2016 which came to be decided by this Court by virtue of the judgment under review. It was held by this Court that in view of the ratio laid down by a Constitution Bench of the Supreme Court in the case of CBI vs. R. R. Kishore, 2023 SCC Online SC 1146, once a Statute is declared as unconstitutional being violative of fundamental rights enshrined in Part-III of the Constitution, the same has to be treated as void ab initio.

6) The review petitioner has sought review of the aforesaid judgment, primarily, on the ground that the Supreme Court in the case of Atma Prakash vs. State of Haryana and others, AIR 1986 SC 859, while holding that clauses 'firstly', 'secondly', and 'thirdly' of Sectionl5(1)(a), clauses 'firstly', 'secondly' and 'thirdly', of Section 15(1)(b), Clauses 'firstly', 'secondly' and 'thirdly' of Section15(1)(c) and the whole of Section 15(2) of the Punjab Pre-emption Act are ultra vires the Constitution, protected the suits where the decrees had become final and no appeals had been filed against those decrees. It has been contended that the judgment in Fazal Khan’s case (supra) is based upon the ratio laid down in Atma Prakash’s case (supra), as such, the protection afforded to decrees that have attained finality under the provision which has been declared ultra vires the Constitution are saved and that this aspect of the matter has not been considered by this Court.

7) Heard learned counsel for the petitioner and perused record of the case.

8) It is correct that the judgment in Fazal Khan’s case (supra), whereunder the provisions contained in Section 14 (b) clauses ‘firstly’ and ‘fourthly’ of the J&K Right of Prior Purchase Act have been declared as unconstitutional, is based upon the ratio laid down by the Supreme Court in Atma Prakash’s case (supra) which related to a similar provision of Punjab Pre-emption Act, 1913, but it is also a fact that in Fazal Khan’s case (supra), this Court, while declaring the provisions of Section 14 (b) clauses ‘firstly’ and ‘fourthly’ of the J&K Right of Prior Purchase Act as unconstitutional, the judgments and decrees passed by the Courts that had acquired finality have not been saved. There is no such declaration made by this Court in Fazal Khan’s case (supra). This aspect of the matter has been clearly dealt with in para (15) of the judgment under review. Therefore, in view of the law laid down by the Constitution Bench of the Supreme Court in R. R. Kishore’s case, judgment and decree dated 16.02.1967 passed by the trial court in favour of the review petitioner is not saved, as has been clearly indicated in para (15) of the judgment under review. So, contention of the review petitioner that this aspect of the matter has not been considered by this Court is without any substance.

9) For the foregoing reasons, I do not find any merit in this review petition. The same is, accordingly, dismissed