Jammu & Kashmir High Court Rules Repeal of Right of Prior Purchase Act Nullifies Pending Pre-emption Appeals: “Appeals Abate Without Retrospective Protection for Substantive Rights”

Court’s Decision

The Jammu & Kashmir High Court dismissed the appeals arising from suits filed under the J&K Right of Prior Purchase Act, 1993. The court held that the repeal of the Act during the pendency of the appeals rendered the right of pre-emption non-existent and thus abated the appeals. Justice M.A. Chowdhary observed:
“With the repealing of the J&K Right of Prior Purchase Act, 1993, the appeals on hand cannot be continued for hearing and are liable to be abated.”

The court emphasized that the appellants’ rights never crystallized, as their Suits were dismissed at the Trial Court and upheld in appeal.

Facts of the Case

1. Initial Suits and Appeals:
   The original plaintiff, Sukhdev, filed three Suits in the Trial Court in 1989 under the J&K Right of Prior Purchase Act, seeking to enforce his right of pre-emption. The Trial Court dismissed these Suits.
   • The First Appellate Court upheld this dismissal in 1995.
   • The appeals were further pursued before the High Court, which dismissed them in 2005, declaring Section 14(a) of the Act unconstitutional.
2. Supreme Court’s Intervention:
   The appellants sought relief from the Supreme Court, which remanded the case to the High Court for reconsideration on merits.
3. Repeal of the Act:
   During the pendency of the appeals, the J&K Right of Prior Purchase Act, 1993, was repealed on October 26, 2020, through the Jammu & Kashmir Reorganization Act, 2019. This raised the central issue of whether the appeals could survive after the Act’s repeal.

Issues

1. Can the appeals continue after the repeal of the J&K Right of Prior Purchase Act, 1993?
2. Does the repeal abate the substantive rights of pre-emption accrued to the appellants?

Petitioner’s Arguments

• The appellants argued that their right of pre-emption accrued at the time of filing the Suits and could not be extinguished by the repeal, as it lacked retrospective effect.
• They cited Shyam Sunder v. Ram Kumar (2001) and Didar Singh v. Ishar Singh to assert that substantive rights vested at the time of institution of Suits or decrees could not be abrogated without express retrospective intent.
• They also contended that a repeal does not affect proceedings initiated before the enactment, especially when substantive rights have been crystallized.

Respondent’s Arguments

• The respondents argued that the repeal of the Act nullified the appellants’ claims and rendered the proceedings void.
• They relied on Punyadeo Sharma v. Kamla Devi, where the Supreme Court held that pending proceedings under a repealed law must abate unless explicitly saved.
• It was argued that the right to pre-emption was extinguished as soon as the Act was repealed, making the appeals redundant.

Analysis of the Law

• The court delved into the legal principles governing the effects of a repeal on pending proceedings.
• Key Precedents Considered:
  • Shyam Sunder v. Ram Kumar: Rights existing at the time of decree or suit cannot be affected by repeal unless the repeal is retrospective.
  • Punyadeo Sharma v. Kamla Devi: Proceedings under pre-emption laws must abate if the law is repealed, emphasizing that such rights are “feudal and archaic.”

The court highlighted that the appellants’ rights were never crystallized, as their Suits were dismissed at every stage. It distinguished the appellants’ reliance on Shyam Sunder, explaining that the right of pre-emption had not vested due to the adverse judgments at the Trial and Appellate Courts.

Precedent Analysis

1. In Favor of Appellants:
   • Shyam Sunder and Didar Singh emphasized the continuity of rights accrued before repeal.
   • The appellants argued these principles applied since their rights were accrued when the Suits were filed.
2. In Favor of Respondents:
   • Punyadeo Sharma categorically held that proceedings under repealed pre-emption laws must abate, aligning with modern legal philosophy.
   • This principle was reinforced by decisions of Co-ordinate Benches of the High Court in Roop Singh v. Pritam Singh and Mohammad Jamal Parray v. Ghulam Qadir Mir.

Court’s Reasoning

• The court reasoned that the appellants’ claims to the right of pre-emption had not survived due to their consistent dismissal at the Trial and Appellate stages.
• The repeal of the Act nullified any potential rights under it, as the appellants lacked a decree in their favor at any stage.
• Justice M.A. Chowdhary observed that:
  “The repeal of an enactment does not affect substantive rights unless expressly stated. However, in the present case, the appellants’ rights never fructified, as their Suits were dismissed before the Act’s repeal.”

The court concluded that the repeal of the Act abated all pending proceedings, following the precedent set in Punyadeo Sharma.

Conclusion

The High Court dismissed the appeals as abated, holding that the repeal of the J&K Right of Prior Purchase Act extinguished all rights under it. Interim directions, if any, were vacated, and the case records were returned to the Trial and Appellate Courts.

Implications

• This judgment underscores the principle that rights under repealed legislation cease to exist unless explicitly protected.
• It emphasizes the importance of obtaining favorable decrees before legislative changes to safeguard accrued rights.
• The decision reflects the judiciary’s role in aligning older laws with contemporary legal principles, particularly in rejecting feudal concepts like the right of pre-emption.

Also Read – Gauhati High Court Quashes Compulsory Leave Order for Lack of Legal Authority; Upholds Transfer of Principal as Non-Punitive, Ensuring Administrative Accountability Post-Student Fatalities