MUHAMMAD SULEMAN Versus ABDUL GHANI

ORDER

KARAM ELAHEE CHAUHAN, J.‑The subject‑matter of this case was a sale dated 19‑2‑1973 in favour of Abdul Ghani vendee‑defendant‑respondent. The petitioners, namely, Muhammad Suleman and Muhammad Hanif (pre‑emptors) filed a suit to pre‑empt the aforesaid sale on 29‑3‑1973. A preliminary objection was raised by the vendee‑defendant that the suit was not maintainable. The precise objection was that in order to succeed, a plaintiff must have a right to pre‑empt at three stages, namely, the date of sale, the date of suit, and the date of the decree. It was submitted that the land in dispute was situated in an area (which is generally known as a) colony area where on account of a Notification No. 196‑8, dated 28‑2‑1944, issued under section 8(2) of the Punjab Pre‑emption Act, 1913 (Act I of 1913) a right of pre‑emption did not exist. The said notification, however, was rescinded vide Notification No. 662‑73/447‑RI‑111 dated 19‑2‑1973 published in the Provincial Gazette of March 2, 1973. It was pleaded that the notification withdrawing the prohibi?tion of pre‑emption was published in the Gazette on 2‑3‑1973 with the result that prior thereto on 19‑2‑1973, when the sale took place, the prohibition still existed and as such the suit of the plaintiffs in the circumstances could not proceed. The learned Civil Judge accepted this objection and b means of his order, dated 27‑7‑1973, rejected the plaint under Order VII, rule 11, C. P. C. (Act V of 1908).

2. The plaintiffs‑pre‑emptors filed an appeal which was accepted by the learned Additional District Judge, Sargodha, by means of his order, dated 31‑5‑1975, whereby he reversed the order of the learned Civil Judge holding that the notification withdrawing the ban on institution of pre‑emption suits being of 19‑2‑1973, was effective from that day and not from the date of its publication in the official Gazette, namely, 2‑3‑1973. In this way, he held that the right of pre‑emption was available on the date of sale and the plaint did not merit rejection. After giving the aforesaid finding, the learned Additional District Judge, remanded the case to the learned Civil Judge for further trial in accordance with law.

3. The vendee‑respondent filed an appeal being F. A. O. No. 152 of 1975 which was accepted by a learned Single Judge of the Lahore High Court on 6‑3‑1978. The learned Single Judge agreed with the learned Civil Judge and held that the notification was effective not from its own date but from the date when it was published in the official Gazette, namely, 2‑3‑1973, with the result that on 19‑2‑1973, when the sale took place, the ban duly existed and the suit about the sale of that date was not maintainable. The learned Single Judge in support of his view referred to a number of cases with reference to other analogous law on the subject in hand namely, Mian Akbar Hussain v. Punjab Government (P L D 1954 Lah. 188) and Mst. Bibi Jan and others v. Miss R. A. Monny and another () P L D 1961 S C 69), Mian Abdul Majid and 7 others v. The Chief Administrator of Auqaf. West Pakistan, Lahore (P L D 1972 Lah. 67) and Mehreen Zaib‑un‑Nisa v. Land Commissioner etc. (P L D 1974 Note 115 at p. 168). The plaintiffs have come up in a petition for special leave to appeal against the same to this Court.

4. The learned counsel for the petitioners argued that in the cases referred to by the learned Single Judge, the phraseology used in the relevant statutes for doing the concerned thing or taking the concerned action was "by publication of Notification in the official Gazette, whereas in the instant case the language of subsection (2) of section 8 of the Punjab Pre‑emption Act I of 1913 was not exactly the same and as such the aforesaid precedents or case‑law had no relevancy to the facts and the circumstances of the present case. The aforesaid subsection states that "the Board of Revenue may declare by notification that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales no right of pre?emption or only such limited right as the Board of Revenue may specify shall exist." Learned counsel with reference to this provision of law, submitted that all it required was a simple declaration by the Board of Revenue and that the moment the declaration was made it came into operation at once and its commencement was not to depend on its publication in the official Gazette because subsection (2) of section 8 did not lay down any requirement of publication of the relevant notification involved in any given case. According to the learned counsel to "declare" means to announce; to make it known; reveal one's intention or contemplated action. The word "declare" does not express any particular mode or circumstance of making known. We may, according to the learned counsel, declare it publicly or privately. However, where the words are like "publish" or "proclaim", then they mean publicity or proclaiming in a public manner. Declaration in abstract may be by word of mouth or by writing. On these lines, he submitted that the moment a notification was signed it amounted to a declaration and became effective from that time or date. We need not enter into the abstract niceties advanced by the learned counsel because according to us each case will depend upon its own facts and circumstances, and confining ourselves to the instant case, we may observe that the phrase "declare by notification" in section 8(2) is clear enough to show that it is to be a public declaration and not a private declaration in the secrecy of the office of the Board of Revenue. Secondly, the section itself lays down the mode of declaration and that is by a notifica?tion: The word "notification", according to section 2(41) of the West Pakistan General Clauses Acts VI of 1956 "shall, mean a notification published A under proper authority in the official Gazette." This negates the contention of the learned counsel that in the instant case, there was no requirement of doing the relevant thing by publication of a notification in the official Gazette. In this state of affairs the case is in no manner different from the precedents referred to by the learned Single Judge in his judgment. Section 8(2) refers to curtailing the right of pre‑emption and according to the principle laid down in section 20 of the West Pakistan General Clauses Act, if the curtailment was to be by a notification to be published in the official Gazette, the withdra?wal of the aforesaid curtailment was also to be done in the same manner, B namely by a declaration of withdrawal which, in its own turn should also be published in the form of a notification in the official Gazette, and will obviously be effective from the date of the publication of the Gazette and not any prior date. This is clear from the above reproduced language of section 8(2) though we may mention, that even otherwise it is well settled as laid down in Sh. Fazal Ahmad v. Raja Ziaullah Khan and another (PLD 1964 SC ? 494 ? ) and Sh. Rehmatullah v. The Deputy Settlement Commissioner, Centre 'A', Karachi and others (PLD 1963 SC 633) that such notifications which curtail or extend rights of the citizens, cannot be retrospective and this is all the more so in such cases when a state of things is to take place by publication of a notification which means from the date of its publication in the Gazette and not from any prior date or to be more precise, not from the date of the notification itself if it is prior to the actual date of the publication in the Gazette, because then it will tantamount to giving that notification a retrospective effect not from its publication but from a date prior thereto which as explained above is not premissible according to the relevant law involved in this case.

5. The result is that the view taken by the learned Single Judge is quite in accord with the language of section 8(2) of the Punjab Pre‑emption Act, 1913 and calls for no interference. The petition has no merit and is dismissed. s. A. H. ? Petition dismissed.