Kuldeep Raj And Others vs Satish Kumar And Others on 30 January, 2025

Jammu & Kashmir High Court

Kuldeep Raj And Others vs Satish Kumar And Others on 30 January, 2025

                                                                         Sr.No. 5

             HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                           AT JAMMU
Case: RFA 3/2025
      CM 312/2025

Kuldeep Raj and others                                          ....Appellant/Petitioner(s)

                    Through :- Mr. P. N. Bhat, Advocate

V/s

Satish Kumar and others                                                 ....Respondent(s)


             Through :-
Coram: HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE


                                      ORDER

30.01.2025

1. In the instant appeal, the appellants seek quashing of order dated 21st

October, 2024 passed by the learned Additional District Judge, Samba in a civil

suit titled ‘Kuldeep Raj vs Satish Kumar and others‘ filed by the appellant No.

1-Kuldeep Raj seeking cancellation of Sale Deed dated 23.10.2010, executed by

respondent No. 1 in favour of respondent no. 4 with respect to suit land claiming

preferential right in favour of the appellant Nos. 1 to 3.

2. Mr. P. N. Bhat, learned counsel for the appellants submits that the

aforesaid civil suit was filed by appellant No. 1-Kuldeep Raj much prior to J&K

Reorganization Act, 2019 came into force. He further submits that in order to

enforce right of prior purchase the party must have the right on the date of sale,

or on the date of filing of the suit and the said right existed in favour of the

appellants on the date the aforesaid Act came into force, as such, the impugned

judgment dated 21st October, 2024 is liable to be set aside as the said Act has

prospective effect and cannot be applied retrospectively. It is further submitted

that in the instant case, there is no retrospective effect on the suit which was filed

before the change of law took place.

2 RFA No. 3/2025

3. In support of his contention, learned counsel for the appellants while

relying upon the judgment passed by the Hon’ble Supreme Court in case tiled

Shyam Sunder and another vs. Ram Kumar and another, reported in (2001) 8

SCC 24, submits that the Hon’ble Supreme Court has categorically 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,

however the learned Additional District Judge, Samba has applied the same

retrospectively to the determent of the appellants which is contrary to the

mandate of law laid down by the Apex Court.

For facility of reference, the relevant portion of the aforesaid judgment

reads as under:-

“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.

3 RFA No. 3/2025

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.”

4. Heard learned counsel for the appellants at length and perused the record.

5. Prima facie, case for indulgence is made out.

6. Issue notice to the respondents, returnable within four weeks.

7. Requisite steps for service be taken within one week.

List on 10.03.2025.

8 Meanwhile, subject to objections from other side and till next date of

hearing before the Bench, impugned order dated 21.10.2024 passed by the

learned Additional District Judge, Samba in File No. 30/COS titled Kuldeep

Raj vs. Satish Kumar and other, shall remain stayed.

9. Alteration/modification/vacation on motion.

(Wasim Sadiq Nargal)
Judge

Jammu:

30.01.2025
Bir