Shabir Ahmad Bati vs Mohammad Younis & Anr

Sanjay Dhar, J

1) The petitioner has filed the instant revision petition against order dated 27.07.2016 passed by learned Sub Judge, Uri, whereby the objections filed by the petitioner against the execution of judgment and decree dated 16.02.1967 passed by learned Munsiff, Uri, have been rejected.

2) Briefly stated, the facts emanating from the pleadings are that respondent No.1, who was a minor at the relevant time, filed a suit for pre-emption with respect to land measuring 3 kanals comprised in Survey No.819/561 situated at Uranboha Uri, against one Wali Mohammad, the predecessor-in-interest of the petitioner and respondent No.2. The said suit was decreed in exparte in favour of respondent No.1 (hereinafter referred to as “the decree holder”) vide judgment and decree dated 16.02.1967 by learned Munsiff, Uri. The predecessor-in-interest of the petitioner applied for setting aside of the aforesaid judgment and decree dated 16.02.1967 but the same was dismissed by learned Munsiff, Uri, on 06.12.1977. The appeal against the said order was preferred before the District Judge, Baramulla, and the same was dismissed on 23.05.1968.

3) It seems that judgment and decree dated 16.02.1967 was challenged by the predecessor-in-interest of the petitioner of the petitioner, Shri Wali Mohammad, by way of a separate suit before the learned Sub Judge, Baramulla, but the said suit was dismissed on 18.08.1971. The appeal against the said judgment was also dismissed by District Judge, Baramulla, on 16.05.1974. Thus, the judgment and decree passed by Munsiff, Uri, on 16.02.1967 has acquired finality.

4) It seems that during execution proceedings, the judgment debtor, the petitioner herein, filed an application before the Executing Court pleading therein that in view of the authoritative pronouncements of the Supreme Court and this High Court, the right of prior purchase based on the ground that the person enforcing the right to prior purchase and the vendor of the property were agnates, has been declared as unconstitutional, therefore, the judgment and decree sought to be executed, has become unexecutable. The application for urging the aforesaid additional ground filed by the judgment debtor was declined by the Executing Court. The said order came to be challenged by the judgment debtor by way of a Civil Revision Petition bearing No.110/2009 before this Court. Vide order dated 18.12.2009, the order of the Executing Court was set aside and the case was remanded to the Executing Court with a direction to take the additional objections filed by the judgment debtor on record and decide the matter afresh. It is in these circumstances that the matter again landed before the Executing Court.

5) By virtue of the impugned order, the Executing Court has rejected the objections of the judgment debtor as regards the executability of judgment and decree dated 16.02.1967 by holding that the doctrine of prospective overruling would come into play in the instant case, as such, the cases which have attained finality prior to declaration of right of pre-emption as unconstitutional, cannot be reopened.

6) The petitioner has challenged the impugned order, primarily, on the ground that there is a clear distinction between a declaration of law as unconstitutional and repeal of a law or overruling of a legal precedent. It has been contended that while the declaration of a law/statute as unconstitutional operates retrospectively but repeal of a statute or overruling of a binding precent of law would always operate prospectively unless otherwise specifically provided.

7) I have heard learned counsel for the parties and perused the record of the case.

8) The facts narrated hereinbefore are not in dispute. It is also not in dispute that the Supreme Court has, in the case of Atam Prakash v. State of Haryana and others, AIR 1986 SC 859, held that right of pre-emption based on consanguinity is a relic of the feudal past and that the same is ultra vires the Constitution. It is also not in dispute that this Court in the case of Fazal Khan & Ors. Vs. Yaqoob Khan & Ors. 1988 KLJ 371, has declared that 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 Purchases Act as unreasonable, unjustified and against the constitutional scheme. The same has been declared as ultra vires and unconstitutional.

9) The question that arises for determination is as to whether the declaration of the provisions of Section 14 (b) ‘ firstly’ and ‘fourthly’ of the Jammu and Kashmir Right of Prior Purchases Act as unconstitutional, has retrospective effect or it is to be treated so with effect from the date of the judgments passed in the cases of Atam Prakash and Fazal Khan & others, (supra). Both these judgments have been delivered after the judgment and decree sought to be executed had attained the finality.

10) The learned counsel for the respondents has vehemently argued that unless it is specifically provided in a judgment passed by this Court or by the Supreme Court that the law laid down in the said judgment would operate retrospectively, it has to be assumed that the law declared in such judgments would have prospective application. In this regard, the learned counsel has relied upon the judgments of the Supreme Court in the case of M/S Somaiya Organics (India) Ltd. vs. State of UP, AIR 2001 SC 1723 and M/S Raymond Ltd. and another vs. M. P. Electricity Board and others, AIR 2001 SC 238.

11) In M/S Somaiya Organics (India) Ltd.’s case (supra), the Supreme Court has held that when the Court declares a law as void, it is only then that it can be said that it is non-est for all purposes. The Supreme Court has further held that the principle of prospective over-ruling is too well enshrined in our jurisprudence for it to be disturbed. Similarly, in M/S Raymond Ltd.’s case (supra), the Supreme Court held that the law declared in the said case would apply prospectively.

12) The learned Executing Court has in its impugned order, after referring to various judgments of the Supreme Court, held that the law declared by the Supreme Court does not have retrospective effect. It has also been observed by the learned Executing Court that once a statute is repealed, unless there is contrary intention expressed in repealing the statute, the repeal has to be inferred prospectively.

13) There is no dispute to the legal position that has been laid down by the Supreme Court in the afore-quoted two judgments as also to the legal position discussed by the Executing Court while passing the impugned order, but there is a clear distinction between the circumstances in which the afore-quoted judgments were passed and the facts of the instant case. In the case quoted above, the Supreme Court had either overruled its earlier judgment or there was repeal of a Statute which did not provide for retrospective repeal. In M/S Somaiya Organics (India) Ltd.’s case (supra), though the Supreme Court declared a provision of law providing for imposing of vend fee on industrial alcohol as void and non-est for all purposes, yet the Supreme Court specifically provided that this declaration would have only prospective effect. In the instant case, certain provisions of Jammu and Kashmir Right of Prior Purchases Act have been declared as unconstitutional by this Court vide its judgment passed in Fazal Khan’s case (supra). In the said judgment, it is nowhere stated that the said declaration will have prospective effect. Unless it is specifically provided that a declaration of a Statue as unconstitutional will have prospective effect, the same has to be treated as void ab initio.

14) In the above context, reliance can be placed on the Constitution Bench judgment of the Supreme Court in the case of CBI vs. R. R. Kishore, 2023 SCC Online SC 1146. In the said case, the Supreme Court, after declaring Section 6A of Delhi Special Police Establishment Act as unconstitutional, held that the said declaration has to be applied retrospectively in view of the provisions contained in Article 20 of the Constitution of India. The Court, after noticing and discussing its previous judgments, laid down the following principles:

The principles that can be deduced from the law laid down by this Court, as referred to above, are:

I. A statute which is made by a competent legislature is valid till it is declared unconstitutional by a court of law.

II. After declaration of a statute as unconstitutional by a court of law, it is non est for all purposes.

III. In declaration of the law, the doctrine of prospective overruling can be applied by this Court to save past transactions under earlier decisions superseded or statutes held unconstitutional.

IV. Relief can be moulded by this Court in exercise of its power under Article 142 of the Constitution, not with standing the declaration of a statute as un constitutional.

(emphasis supplied)”

From the above discussion, it is crystal clear that once a law is declared to be unconstitutional, being violative of Part-III of the Constitution, then it would be held to be void ab initio, still born, unenforceable and non-est in view of Article 13(2) of the Constitution and its interpretation by authoritative pronouncements. Thus, the declaration made by the Constitution Bench in the case of Subramanian Swamy (supra) will have retrospective operation. Section 6A of the DSPE Act is held to be not in force from the date of its insertion i.e. 11.09.2003.

15) From the foregoing analysis of law on the subject, it is clear that once a Statue 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. In the instant case, the provisions of the Jammu and Kashmir Right of Prior Purchase Act have been declared as unconstitutional in Fazal Khan’s case (supra) on the ground that the same are unreasonable, unjustified and against the constitutional scheme. There is no declaration by this Court that the same would apply prospectively. Therefore, the provisions contained in Section 14(b) ‘firstly’ and ‘fourthly’ of the Jammu and Kashmir Right of Prior Purchase Act have to be treated as non-est and void ab initio. In that view of the matter, the decree sought to be executed by the decree holder, respondent No.1 herein, against the petitioner/judgment debtor, is unexecutable.

16) The learned Executing Court has, while passing the impugned order, ignored the fine distinction between the declaration of a Statute as unconstitutional and overruling of a binding precedent. The learned Executing Court has also failed to draw a distinction between the declaration of a law as unconstitutional and repealing of a Statute. While in the case of overruling of a binding precedent or repealing of a statue the effect would always be prospective unless otherwise provided, but in a case where a statue has been declared unconstitutional, such declaration has retrospective effect unless otherwise provided. Therefore, the learned Executing Court, while passing the impugned order, has landed itself into an error thereby exercising its jurisdiction illegally and with material irregularity. The impugned order is, therefore, not sustainable in law.

17) Accordingly, the instant petition is allowed and the impugned order passed by the learned Executing Court is set aside. The execution petition shall stand dismissed.

18) A copy of this order be sent to the learned Executing Court for information.