SAGHIR AHMED through Legal Heirs vs PROVINCE OF PUNJAB through Secretary, Housing and Physical Planning Lahore and others

FAQIR MUHAMMAD KHOKHAR, J.- The petitioners seek leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, against judgment dated 1-1-2002 passed by the Lahore High Court, Rawalpindi Bench in Civil Revision No,224 of 1993.

2. The petitioners were owners of land situated at Hasan Abdal, District Attock. They filed a civil suit for declaration and perpetual injunction against notifications dated 28-5-1976 and 7-6-1976 issued by the respondents under the provisions of sections 3 and 4 of the Punjab Acquisition of Land (Housing) Act (VIII of 1973) (hereinafter referred to as the Act) regarding approval of an Area Development Scheme for Low Income Housing at Hassanabdal (hereinafter referred to as the Housing Scheme) and acquisition of land for that purpose. Their civil suit was decreed by the Senior Civil Judge, Attock, by judgment and decree dated 23-12-1979. The appeal of the respondents was allowed and the suit of the petitioners was dismissed by the District Judge, Attock, by judgment and decree dated 23-2-1993. The Civil Revision No,224 of 1993 of the petitioners there against was also dismissed by the Lahore High Court, Rawalpindi Bench, by the impugned judgment dated 1-1-2002. Hence this petition for leave to appeal.

3. The learned counsel for the petitioners argued that the notification dated 28-5-1976 of the approval of the Housing Scheme by Government of the Punjab had not been published in the official Gazette as required by the mandatory provisions of section 3 of the Act. Therefore, the subsequent notification dated 7-6-1976, issued and published by the respondents in the official Gazette, under the provisions of the section 4 of the Act and all other proceedings for the acquisition of land of the petitioners and others were void ab initio and nullity in the eye of law.

Reliance was placed on the cases of Mst. Sobia Hanif v. The Collector (Deputy Commissioner), Lahore District, Lahore and 5 others (1993 CLC 2073 (Lahore) and Muhammad Suleman v. Abdul Ghani (PLD 1978 SC 190). It was further submitted that the utility services and other facilities had not been provided to the residents of the housing colony as envisaged by clause (e) of section 2 of the Act.

4. On the other hand, the learned Assistant Advocate-General, Punjab, submitted that the housing colony had already been developed with necessary provision of utility services to its residents. The learned law-officer argued that there was no specific requirement of the Act for the publication of Government's approval of the Housing Scheme in the official Gazette.

5. We have heard the learned counsel for the petitioners and the learned Assistant Advocate- General, Punjab at length. The learned counsel for the petitioners frankly admitted before us that except for failure of non-publication of approval of the Housing Scheme in the official Gazette, all other proceedings for the acquisition of land of the petitioners were taken in accordance with law.

The relevant provision of section 3 of the Act reads as under:-- "Liability to acquisition.--Notwithstanding anything to the contrary contained in the Land Acquisition Act, 1894 or any other law for the time being in force, all land within the Province shall be liable to acquisition at any time under this Act for a housing scheme approved and notified by Government or Official Development Agency."

From the above provision of law, it would appear that after a housing scheme has been approved and notified by the Government, there is no specific stipulation of publication of such an approval in the official Gazette. The word "notified" does not always mean publication of a notification in the Official Gazette as a mandatory condition.

6. The question as to the meaning of the words "notified" and "notification" was considered by this Court in the case of Karachi Metropolitan Corporation, Karachi v. Messrs S.N.H. Industries (Pvt.)

Limited (1997 SCMR 1228), wherein it was held as follows:-- "The term 'notification' and 'notified' convey completely different meaning. The 'notification' is issued by publication under a proper authority in the official Gazette. While the term `notify' means to give notice, proclaim or publish in any recognized manner. From the literal meaning of the term 'notify' and the meaning as understood in legal proceedings and public natters, it means to convey information in a manner which ensures that the person sought to be notified shall receive it. The method of conveyance of information, order or notice may be by post, publication, public proclamation or announcement, direct service on the address effected personally on him by the person issuing it or his authorized representative, or any other recognized or customary mode of service."

The word "notified" having not been defined in the Act is to be construed in its ordinary sense and not as a term of art. According to Shorter Oxford Dictionary, the word 'notify' means, "to make known, publish, proclaim, to announce, e.g. The King, there fort, notified to the country his intention of holding Parliament". In Words and Phrases, Permanent Edition, Volume 28-A, page 568, it is stated that "by common usage, the word "notify" simply means to make known, and should be construed according to its ordinary usage in the absence of a different meaning expressed or clearly implied except in the case of a notice in a judicial proceeding". We have also noticed that the petitioners did not raise the question of non-publication of notification dated 28-5-1976 in their plaint nor an issue was struck by the trial Court in regard thereto. The said notification was challenged by them and their suit was decreed by the trial Court on altogether different grounds.

7. It is well-settled that the acts performed by public authorities deserve due regard by the Courts and every possible explanation for their validity should be explored and the whole gamut of powers in pursuance to which they act, or perform their functions and discharge their duties should be examined. A presumption of regularity is attached to the official acts. In, this regard, reference may be usefully made to the Full Court judgment in the case of Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs and others v. Aftab Ahmed Khan Sherpao and others (PLD 1992 SC 723 at page 746) and the cases of Government of , Sindh through Chief Secretary and others y. Khalil Ahmed and others (1994 SCMR 782), Syed Muhammad Khurshid Abbas Gardezi and others v. Multan Development Authority and others (PLD 1983 SC 151), Lahore Improvement Trust v. Custodian, Evacuee Property (PLD 1971 SC 811), Chairman, East Pakistan Railway Board, Chittagong and another v: Abdul Majid Sardar, Ticket Collector (PLD 1966 SC 725) and Federation of Pakistan and others v. Ch. Muhammad Aslam and others (1986 SCMR 916).

8. The Provincial Government seems to have followed it as a rule of practice not to notify its approval of a Housing scheme under section 3 of the Act in the official Gazette, and has treated the same as an internal matter. The departmental construction of a statute, although not binding on the Court, can be taken into consideration. See the cases of Nazir Ahmad v. Pakistan and 11 others (PLD 1970 SC 453) and United Netherlands Navigation Co. Ltd. v. Commissioner of Income Tax, South Zone (West Pakistan), Karachi (PLD 1965 SC 412). In Crawford's Statutory Construction, 1940 Edition, section 221 at page 399, the author has expressed his opinion as under:-- "Construction by the Executive Department analyzed.--Of course, the construction placed: upon a law by the executive department is not the law of the statute but only evidence of what the law is. It is simply an aid to which the Courts may resort in their efforts to ascertain in the legislative intent. It may be set forth as an argument or a reason for the acceptance of a certain construction, for where the executive places a certain interpretation upon a law that fact would seem to indicate that that interpretation represents the legislative will. At least, the interpretation given the statute by the executive officer would seem to be the obvious one and therefore the one actually intended by the law-makers. But to give the construction placed upon a law the power to control the Court in its interpretation thereof, would clearly vest legislative, if not judicial power, in the executive department. As we have already pointed out, where the executive construction has been followed for a long time, an element of estoppel seems to be involved. Naturally, many rights will grow up in reliance upon the interpretation placed upon a statute by those whose duty it is to execute it. Often grave injustices will result should the Courts reject the construction adopted by the executive department. But actually, in many cases of this type, that is, in those where the executive construction does not actually give the legislative intent effect, the official who administer the law exercise legislative or judicial power, or both. Practical consideration and considerations of justice, however, seem of more importance in these instances than a strict adherence to the tri parte theory of Government."

9. It depends on the language employed in a particular statute as to whether the provisions regarding publication of a statutory instrument or a notification in the Official Gazette are to be treated as mandatory or directory. In the present case, the Legislature itself has made a distinction between the provision of sections 3 and 4 of the Act. Under section 3, a Housing Scheme is required to be approved and notified by the Government or an Official Development Agency. At that stage the rights or interests of landowners are not likely to be affected. There is no clear, indication as to the manner in which such an approval is to be notified. The provision of section 3 of the Act itself is bifurcated. The approval of a Housing Scheme by the Government or the official Development Agency, as the case may be, is a matter of substance. The manner or mode of notifying the same is a matter of procedural formality as no consequences have been provided for failure of strict compliance thereof. In other words, mere non-publication of a notification under section 3 of the Act in the official Gazette would not affect its validity. However, a notification under section 4 of the Act specifically requires its publication in the official Gazette, if it appears to the Deputy Commissioner that a particular land of a particular locality is needed or is likely to be needed for any housing scheme. This is followed by another legal requirement of a public notice of the substance of such notification to be given at convenient places in that locality. The publication of notification under section 4 in the official Gazette has been made necessary as the rights and interests of the land owners, are likely to be adversely affected by the acquisition proceedings.

According to definition of word "notification" as given in section 2(41) of West Pakistan General Clauses Act, 1956, "it shall mean a notification published under the proper authority in the official Gazette" in the absence of anything repugnant in title subject or context.

10: Even otherwise, the .Provisions of a statute for the publication of a notification in official Gazette are generally regarded by the Courts as directory and where their strict non-compliance does .Not provide any consequences. The legal certainty also requires that ordinarily a statutory instrument should not be treated as invalid because of a failure on the part of public functionaries to publish it in the official Gazette. There may be many things done on the basis of such an instrument. It would seem unfortunate were these things held to be invalid if it were at some stage discovered that there had been a failure by a public authority to go meticulously by the manner and mode of publication of an instrument or notification in the Official Gazette. In the case of Multiline Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC 423) this Court took the view that even if Karachi Building and Town Planning Regulations, 1979 were not published in the official Gazette under section 21-A(3) of the Sindh Buildings Control Ordinance, 1979, they could be construed and acted upon as regulations for the purpose of the said Ordinance. In Pakistan through Secretary, Ministry of Defence and others v. Late Ch. Muhammad Ahsan (1991 SCMR 2180), the factual acquisition of land had not been denied and same had been acted upon for nearly 50 years and there was an airfield in the land for such a long time. The notice/notification although had been Sigrid and issued to all concerned but had not been gazetted: In other words, the purpose of the publication in the ordinary sense was practically 'served almost contemporaneously when the acquisition took place and in fact, it was more substantial publication insofar as the owners were concerned than if it would have been in the official Gazette. It was further observed that mere fact that publication in the Gazette was delayed, would not invalidate the notification. A somewhat similar view was taken in Muhammad Siddique v. Market Committee, Tandlianwala (1983 SCMR 785). In the case of Manzur-ul-Haq v. Controlling Authority, Local Councils, Montgomery and others (PLD 1963 SC 652) it was held, by reference to the provisions of Article 26 of the Basic Democracies Order, 1959, and section 17 of the Municipal Administration Ordinance, 1960, that mere provision in a statute for notifying name of holder of office in Gazette was not a condition precedent to the holding of the office. In Chief Commissioner, Karachi v. Jamil Ahmed and another PLD 1961 SC 145 the Court held that the provision in section 280(1) of the City of Karachi Municipal Act, (1933) relating to general elections being, notified in official Gazette was directory and not mandatory and a substantial compliance with that would be enough. In Regina v. Sheer Metal craft Ltd. And another (1954) 1 Q13 586), Lord Street field, J., took the view that "a statutory instrument, made by a Minister or other competent authority was valid and effective as soon as it was made, notwithstanding that the provisions of the Statutory Instruments Act, 1946, and the regulations made thereunder relating to the printing and issuing of statutory 1nstr14mpts had not been complied with".

11. However, no hard and fast rule of universal application can be laid down on the legal effect of non-publication of a notification in the official Gazette. In certain cases, keeping in view the nature and object of a particular statute and to carry out the legislative intent, the provisions for the publication of a notification in the official Gazette can be treated to be mandatory in nature where rights or liabilities of other persons are involved. See the cases of Muhammad Suleman (supra).

The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 SC 82), Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab (PLD 1977 SC 639), Mahandra Lal Jaini v.

State of Uttar Pradesh (AIR 1963 SC 1019) and Narinderjit Singh v. State of Uttar Pradesh (AIR 1973 SC 552).

12. In view of above discussion, we hold that the publication of notification dated 28-5-1976 of approval of the Housing Scheme by the Provincial Government under section 3 of the Act, in the official Gazette, was not a sine qua non for its legal validity, efficacy and its non-publication was of no consequence. However, we would like to observe that by virtue of insertion of section 20-A in the General Clauses Act, 1897 (X of 1897) by Ordinance No, XXXIII of 2002, all Rules, Orders, Regulations and Circulars having the effect of law made or issued under any enactment are being published by the Federal Government in the official Gazette. The Provincial Governments are expected to follow suit so as to inspire public confidence in the policy M decisions and to promote the system of good governance and transparency.

13. The learned Law Officer appearing for the respondents categorically stated that, after the acquisition of the land, the Housing Scheme had been developed and necessary utility services had been provided for the housing colony. Therefore, the matter has become a past and closed transaction which need not be allowed to be reopened on hyper technical grounds. Neither any prejudice was shown to have been caused to the petitioners nor could any of their legal rights be said to have been affected in any way by mere non-publication of approval of the Housing Scheme in the official Gazette. The impugned judgment by the Lahore High Court (now reported in PLD 2002 Lahore 217) does not suffer from any legal infirmity so as to call for interference by this Court. This is not a fit case for grant of leave to appeal.

14. For the foregoing reasons, we do not find any merit in this petition which is hereby dismissed and leave to appeal is refused accordingly.