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Civil Appeal No. 444 of 1980, decided on 7th May, 1985.

(On appeal from the judgment and order, dated 23rd May, 1978, passed by the Lahore High Court in R. S. A. No. 561 of 1966).

‑‑ Art. 185(3)‑Punjab Pre‑emption Act (I of 1913), S. 8(2)‑Board of Revenue Notification, dated 15th September, 1965 ‑ Leave to appeal granted to consider whether right to pre‑empt sale could be exercised if it did not subsist on date of decree viz. 16th May, 1966 by reason of Notification by Board of Revenue, dated 15‑9‑1965, issued under S. 8(2), Punjab Pre‑emption Act, 1913.

‑‑‑S. 8(2)‑Board of Revenue Notification, dated 15‑9‑1965‑Pre‑emp tion suit‑Right to pre‑empt sale which was completed before pro mulgation or notification or continuity of suit to enforce same Notification whether prospective or retroactive.

The question as to whether the notification is prospective or retro active in operation will entirely depend on the language of the notifica tion itself and the section of the Act under which it is issued. It is only when the words are not plain, that the principle of construction is that it should be construed in a manner so as to interfere as little as possible with the rights which had already accrued. It is also abun dantly clear that the right to sue is a vested right and accrues to the pre emptor on the date of sale, but this right has to exist both on the date of the suit as well as on the date of decree in order to successfully pre empt the sale. By section 8(2) of the Punjab Pre‑emption Act, 1913, the Board of Revenue is empowered to declare by notification that in any local area or any land or property or class of land or property or sale or class of sales, no right of pre‑emption or only such limited right as the Board of Revenue may specify, shall exist. The impugned notifi cation has behind it the statutory mandate and is also couched with such words of the section as "no right of pre‑emption shall exist" fol lowed by the categorization of the land and the description of the person in whose favour the sale is made. The tenor of the notification is that it declares that for three years from the date of its promulgation no right of pre‑emption shall exist with respect to the sales of agricul tural land which plainly refers not only to the completed sales but also to the sales to be made thereafter. Therefore, although the pre‑emptor, possessed the right to pre‑empt both at the time of the sale and on the date of the suit, yet the statute under which this right was exercised did not permit him to preserve his right free from interference beyond his control up to the date of decree and that the Court trying the suit could not also insist upon such preservation of right. Accordingly as the impugned notification was issued during the subsistence of the suit it could not be claimed that this right could not be taken while it remained pending for decision.

Held : If in the face of the impugned notification there has been no adjudication then full effect has to be given to the notification, but not so as in the case where a decree has been passed before the promulga tion of the notification in which case he gains the status of a full owner immediately on payment of the decree money, and the impugned noti fication cannot come into the way of the affirmation of the decree unless for some other fault the decree is set aside.

Mst. Bibi Jan v. Mst. R. A. Monny P L D 1961 S C 69 and Abdul Wahid v. Amir Khan P L D 1984 S C 418 ref.

Mazharul Haq Sheikh, Advocate Supreme Court of Pakistan for Appellant.

Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Respondents.

Date of hearing : 7th May, 1985.

Leave to appeal was granted to consider whether the right to pre‑empt the sale could be exercised if it did not subsist on the date of decree, that is, 16th of May, 1966, by reason of the notification of the Board of Revenue, dated 15th of September, 1965 issued under section 8(2) of the Punjab Pre‑emption Act, 1913. This notification reads:

"In exercise of powers conferred by subsection (2) of section 8 of the Punjab Pre‑emption Act, 1913 (Punjab Act 1 of 1913), the Board of Revenue West Pakistan, is pleased to declare that for three years from the date of publication of this notification no right of pre‑emption shall exist with respect to the sale of agri cultural land not exceeding 50 Acres in a canal irrigated area or 100 Acres in non‑irrigated area and other immovable property not exceeding the market value of Rs. 10,000 (rupees ten thousand only) in favour of a person displaced from the Azad Kashmir who is affected by the construction of Mangla Dam and certified to be so affected by Commissioner Mangla Dam Affairs Azad Government of State of Jammu and Kashmir."

The appellant purchased 9 Marlas of land in Khewat No. 932 bearing Khasra No. 769 situated in Piragheb, Tehsil Jhelum for a sale consi deration of Rs. 3,500 by registered sale‑deed, dated 31st of March, 1964. Pursuant thereto, the sale mutation was sanctioned on 15th of April, 1964. Here it will be of significance to mention that the appel lant was a resident of village Kakra, Tehsil Alipur. District Mirpur (Azad Kashmir) and his land was acquired for the purpose of Mangla Dam Reservoir and he was, accordingly, a displaced person.

Respondent No. 1 herein filed a suit in the Court of Civil Judge, Jhelum on 1st of April, 1964 for pre‑empting the disputed land holding himself out as possessing a right to pre‑empt on the grounds ; firstly, that he was a co‑owner ; and, secondly that his land was contiguous with the disputed land. The appellant, however, denied that he possessed the right to pre‑empt the disputed land. During the pendency of the suit, the above notification was promulgated on 15th September, 1965, and on its basis the appellant averred that the land was not pre‑emptible. Consequently the trial Court framed issue No. 6 incorporating this controversy. The findings of the trial Court were : firstly, that to view of Exh. D. 2 issued by the Commissioner Mangla Dam Affairs, the vendee was a person affected by the construction of Mangla Dam and this conclusion was conclusive; and, secondly, while construing the notification the trial Court rejected the contention of respondent No. 1 herein that the notification did not affect the sale which bad already been made and so also the suits filed before its promulgation, and held that its language "positively referred to the sales which had preceded its promulgation", and that respondent No. 1 herein ceased to retain the right to pre empt as it was taken away on the date of the decree by the said notifica tion.

The learned trial Court fortified its view by advancing another reason that the purpose of this notification was to protect the persons who were affected by the construction of Mangla Dam and had suffered on account of their houses and land having been acquired for that purpose, and this notification was obviously issued for the purpose to facilitate them to build houses at other places. Having held so, the suit was dismissed on 16th May, 1966.

On appeal, the District Judge set aside the order of dismissal and decreed the suit by judgment, dated 12th of July, 1966. The main ground upon which the dismissal was set aside was that the notification was not retroactive in effect; and, therefore, it did not hit the sale com pleted before its promulgation and so also the right to pre‑empt the sale. A further finding was also given that the certificate Exh. D. 2 was issu ed in pursuance of the Board of Revenue, West Pakistan Circular Letter No. 8295 60/8245, dated 14th of December, 1960 and was "not the one as contemplated by the impugned notification, dated 15th September, 1985."

The appellant went in second appeal before the High Court, but did not succeed as the High Court held that admittedly the respondent No. 1 had the right to pre‑empt on the date of the sale and on the date of the suit and the continuity of this right could only be taken away by explicit words in the notification such as "no right of pre‑emption shall exist or shall continue to exist." In their absence it referred only to the non‑existence of the right which does not affect the continuity of the suit as a result of the right having accrued earlier. The High Court while construing the purport of the certificate held that it did not convey that the "appellant was affected by the scheme on the date on which the scheme was notified or be was dispossessed" and, accordingly, the appellant was not the person referred to in the notification.

In this appeal the only question involved is the true purport of the notification issued under section 8(2) of the Punjab Pre‑emption Act, 1913. Both the appellate Courts have construed the notification to mean that it had not taken away the right to pre‑empt, and unanimously con cluded that it did not affect the right to pre‑empt the sale which was completed before its promulgation or the continuity of the suit to enforce it.

The question as to whether the notification is prospective of retro active in operation will entirely depend on the language of the notifica tion itself and‑the section of the Act under which it is issued. It is only when the words are not plain, that the principle of construction is that it should be construed in a manner so as to interfere as little as possible with the rights which had already accrued. It is also abundantly clear that the right to sue is a vested right and accrues to the pre‑emptor on the date of sale, but this right has to exist both on the date of the suit as well as on the date of decree in order to successfully pre‑empt the sale. By section 8(2) of the Punjab Pre‑emption Act, 1913 the Board of Revenue is empowered to declare by notification that in any local area or any land or property or class of land or property or sale or class o. sales, no right of pre‑emption or only such limited right as the Board of Revenue may specify, shall exist. The impugned notification has behind it the statutory mandate and is also couched with such words of the section as "no right of pre‑emption shall exist" followed by the cate gorization of the land and the description of the person in whose favour the sale is made. The tenor of the notification is that it declares that for three years from the date of its promulgation no right of pre emption shall exist with respect to the sales of agricultural land which plainly refers not only to the completed sales but also to the sales to be made thereafter. Therefore, although the pre‑emptor possessed the right to pre‑empt both at the time of the sale and on the date of the suit, yet the statute under which this right was exer cised did not permit him to preserve his right free from inter ference beyond his control upto the date of decree and that the Court trying the suit could not also insist upon such preserva tion of right. Accordingly as the impugned notification was issued during the subsistence of the suit the respondent could not claim that this right could not be taken while it remains pending for decision. Such like notification issued under section 7(2) of the North‑West Frontier Province Pre‑emption Act, 1950, which is in pari materia with section 8(2)' of the Punjab Pre‑emption Act, was considered in Mst. Bibi Jan v. Mst. R. A. Mohny (PLD 1961 SC69), and it was held that if the language was plain and unambiguous it could also include completed sales and so also sales to be made thereafter and the only question that resolved for consideration was "Whether the pre‑emptor had retained his right of pre‑emption till the end of the suit in the face of the notification", which was answered accord ingly:

"The reported cases in which a decree had been obtained by the pre‑emptor in t he Court of first instance before a notification under section 8(2) of the Punjab Pre‑emption Act, 1913, was issued, are easily distinguishable from those in which the right to pre‑empt had not yet been incorporated into a formal adjudication by a Court. In the former type of cases, it could be reasonably argued that the right to sue had merged in the decree of the Court, which would henceforth be regarded as the source of right, for the decree‑holder. Such a decree would, therefore, call for no interference on the ground that a notification subsequently promulgated, had taken away the right of pre‑emption in similar cases. The real difficulty arises in cases of the second type, of which Kaju Mal v. Saling Ram and Mohindar Singh v. Arur Singh may be cited as representative. With all respect, it seems to us that the learned Judges in those cases interpreted the words of the notification too narrowly in their anxiety to save vested rights. The words of the notification appear to us to be plain and to be fairly susceptible of the interpretation that with the promulgation of the notification, all rights of pre‑emp tion would cease to exist, in the area mentioned in the notification, whether they pertained to sale that had already taken place or to those which were to be held hereafter. The only exception that could be recognised to this proposition would be in favour of cases in which decrees had already been obtained by the pre‑emptors, prior to the notification."

From the above observations, it is obvious that if in the face of the impugned notification there has been no adjudication then full effect has to be given to the notification, but not so as in the case where a decree has been passed before the promulgation of the notification in which case gains the status of a full owner immediately on payment of the decree money, and the impugned notification cannot come into the wav of the affirmation of the decree unless for some other fault the decree is set aside.

In Abdul Wahid v. Amir Khan (PLD1984SC418), the law laid down in 1st. Bibi Jan v. R. A. Monny, was re‑affirmed and the rule was extended further:

"The position would be same, we consider in our opinion, in cases where suits filed by pre‑emptor had been dismissed by the trial Court or the first appellate Court and their appeals were pending in the High Court with the result the such pre‑emptors would lose the right of pre‑emption and would not be able to prosecute and carry on their appeals for the reason that no right of pre‑emp tion would inhere in the appellant when the Court will be called upon to adjudicate on their case."

However, the decision of that case turned on the question as to whether on appeal in the High Court the right of pre‑emption existed on the crucial date as the impugned notification issued earlier taking away this right had in the meanwhile been rescinded:

Accordingly, we are of the view that the Courts below had not attend ed to this question in the light of the decision in Mst. Bibi Jan's case, and erroneously held the impugned notification not to interfere with the subsisting right of pre‑emption of the respondent.

In the result, we allow the appeal, but with no order as to costs.

M. B. A. Appeal allowed.

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