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Civil Appeal No.17 of 1987, decided on 11th April, 1987.

-----S. 6(2)‑‑Scope and authority of the Government under S.6(2).

Section 6, subsection (2) of the Azad Jammu and Kashmir Rights of Prior Purchase Act provides that the Government may declare, by notification in the Government Gazette, that in any local area or with respect to any property or class of property or with respect to any sale or class of sales no right of prior purchase or only such limited right as the Government may specify, shall exist.

Under the provisions of subsection (2), the legislature conferred wide authority on the Government and authorised it that it may declare that in any local area or with respect to any property or class of property or with respect to any sale or class of sales, no right of prior purchase or only such limited right as the Government may specify, shall exist. The word "any" used in subsection (2) invites attention to appraise the true scope of the provisions. The word "any" has been interpreted by assigning it wide meaning irrespective of any restrictions or limitations. Word "any" is described as not to confine to plural sense and is to exclude limitation or qualification. It is used in terms as wide as possible. Thus, the provisions of subsection (2), obviously, indicate that the Government is conferred wide powers to exempt any sale or class of sales of property or class of property from the operation of right of prior purchase. Next, the expression "any" incorporated in the notification is equally of wider connotation as the Government felt necessary to declare that no right of prior purchase shall exist with respect to any sale of land including built up property within the municipal limits of all the towns in Azad Jammu and Kashmir. The use of the word "any" in the notification, again, is to be construed in a wider possible sense to include all sales of land within its scope.

The reference to term "land" in the notification necessarily includes agricultural land within the municipal limits of all the towns of Azad Jammu and Kashmir.

P L D 1973 Azad J & K 14 and Stroud's Judicial Dictionary ref.

‑‑‑ Ss.3, 14 & 15‑‑Right of prior purchase is enforceable in respect of (i) agricultural land; (ii) village immovable property; and (iii) urban immovable property.

The scheme of the Act reflects that the rights of prior purchase are conferred in relation to agricultural land, village immovable property and urban immovable property. The provisions are contained in sections 14 and 15 of the Act, which are analogous to the provisions of sections 15 and 16 of the Punjab Pre‑emption Act. Section 15 pertains to right of prior purchase in respect of urban immovable property. "Urban immovable property" is defined under section 3, subsection (3), as "immovable property within the limits of a town". It does not, in any way, exclude agricultural land. Section 14 confers right of prior purchase in respect of agricultural land and village immovable property. "Village immovable property" finds its definition under subsection (2) of section 3 and it means "immovable property within the limits of a village other than agricultural land". It is clear from the definition of "village immovable property" that it excludes agricultural land. Agricultural land is rightly excluded from the expression "village immovable property", as under section 14, the terms "agricultural land" and "village immovable property" are used disjunctively. It is, therefore, described that the right of prior purchase under the Act is enforceable in respect of different classes of property, namely:

(i) agricultural land;

(ii) Village immovable property; and

(iii) Urban immovable property.

‑‑‑ S.6(2)‑‑Notification under S.6(2) containing reference to term "land" refers to agricultural land situate within the municipal limits of a town‑ Such notification includes the built up property situate within a town‑ Land and built up property, both situate in a town are expressly covered by such notification‑‑Scope of such notification, therefore, is very wide as it includes all sales of agricultural land as well as built‑up property.

P L D 1973 Azad J & K 14 ref.

‑‑‑S.3(3)‑‑Determination of limits of town‑‑Modes‑‑Where Government, for any reason fails to declare limits of a town, Courts have the power to determine such limits on basis of evidence on record.

Under section 3, subsection (3) of the Act, it is postulated that for the purposes of the Act, any specific area may be considered as a town‑‑----

(a) if it is declared as such by the Government by a notification in the Government Gazette, or

(b) if so found by the Courts.

The Act itself describes two modes to determine the limits of a town. The first method is that such limits may be declared by the Government by a notification. When the Government, for any reason, is unable to declare the limits of a town, then Courts are authorised to determine such limits.

In case vendees were unable to produce a notification describing the municipal limits of a town, the Courts were empowered to determine such limits on the basis of evidence on record.

Ali Muhammad for Appellants.

Raja lmdad Ali Khan for Respondents.

Date of institution, 22nd February, 1987.

Muhammad Akram, Ali Asghar and Muhammad Aslam, three brothers, purchased the suit land, 10 Marlas comprising survey No.420 and 4 Kanals 11 Marlas out of 9 Kanals 11 Marlas, on the southern side, comprising survey No.421, in addition to share in Shamilat‑e‑Deh, situate in village Bhalote, Tehsil Mirpur, from Abdul Majid, through a registered sale‑deed executed on January 7, 1984. Mst. Tazeem Akhtar, wife of vendor, pre‑empted the sale on the ground of her relationship. The vendee‑appellants resisted the suit, among others, on the ground of exemption of sale by virtue of notification issued by the Government in exercise of its powers under section 6(2) of the Jammu and Kashmir Rights of Prior Purchase Act, dated June 27, 1976. The subordinate Courts overruled the objection of vendees for want of proof and decreed the suit.

2. It is an admitted position that the suit property is agricultural land and is situate in village Bhalote. According to vendees, village Bhalote is included within municipal limits of Mirpur town, as such by virtue of notification, the sale is excluded from operation of the provisions of the Rights of Prior Purchase Act (hereinafter referred to as the Act). The concurrent finding of the subordinate Courts on the point is that vendees failed to lead convincing evidence to believe that the suit land is situate within the municipal limits of Mirpur Town, as such the claim of vendees was turned down.

3. Section 6, subsection (2), of the Act provides that the Government may declare, by notification in the Government Gazette, that in any local area or with respect to any property or class of property or with respect to any sale or class of sales no right of prior purchase or only such limited right as the Government may specify, shall exist. In exercise of this power, the Government, on June 27, 1976, issued a notification and declared that from the date of the notification no right of prior purchase shall exist with respect to any sale of land, including built‑up property, within municipal limits of all the towns in Azad Jammu and Kashmir. The notification is reproduced:‑------

"In exercise of the powers conferred by subsection (2) of section 6 of the Jammu and Kashmir Rights of Prior Purchase Act, 1993 (Bikrami) as in force in Azad Jammu and Kashmir and in continuation of this office Notification No.2826‑31/SL/75 dated the 17th September 1975 and No.30‑50/SL/75, dated 4th January, 1976, the Azad Government of the State of Jammu and Kashmir is pleased to declare that from the date of this Notification, no right of prior purchase shall exist, with respect to any sale of land, including built‑up property within municipal limits of all the towns in Azad Jammu and Kashmir."

It is clear from the language of the Notification that the right of prior purchase conferred by the Act on persons or class of persons enumerated therein in respect of any sale of land, including built‑up property, within municipal limits of all the towns in Azad Jammu and Kashmir, is suspended and no such right is exerciseable till such time as the notification remains in force. The authority of the Government in issuing of notification is undisputed in this case. Nevertheless, the controversy confines as to whether the sale of the suit land, admittedly agricultural land, is hit by the notification or not. Raja Imdad Ali Khan, the learned counsel for pre‑emptor emphasised that the land and other immovable property situate within the municipal limits of a town is described as "urban immovable property" under section 15 of the Act. According to the learned counsel, the notification exclusively applies to urban immovable property and not to agricultural land. He cited PLD 1973 Azad J & K 14 in support of his contention.

4. In order to appreciate the proposition correctly, it is permissible to examine the scope of authority of the Government under section 6 of the Act. Subsection (2) of section 6 is relevant to the proposition under consideration. Under the provisions of subsection (2), the Legislature conferred wide authority on the Government and authorised it that it may declare that in any local area or with respect to any property or class of property or with respect to any sale or class of sales, no right of prior purchase or only such limited right as the Government may specify, shall exist. The word "any" used in subsection (2) invites attention to appraise the true scope of the provisions. The word "any" has been interpreted by superior Courts of the Sub‑continent by assigning it wide meaning irrespective of any restrictions or limitations. In Stroud's Judicial Dictionary, word "any" is described as not to confine to plural sense and is to exclude limitation or qualification. It is used in terms as wide as possible. Thus, the provisions of subsection (2), obviously, indicate that the Government is conferred wide powers to exempt any sale or class of sales of property or class of property from the operation of right of prior purchase. Next, the expression "any" incorporated in the notification is equally of wider connotation as the Government felt necessary to declare that no right of prior purchase shall exist with respect to any sale of land including built‑up property within its municipal limits of all the towns in Azad Jammu and Kashmir. The use of the word "any" in the notification, again, is to be construed in a wider possible sense to include all sales of land within the scope.

5. Another aspect of the proposition, which warrants attention of the Court, is as to what is meant by the expression "land" used in the notification. The expression "land" is not defined under the Act and instead under subsection (1) of section 3, "agricultural land" is assigned the definition as described in the Azad Jammu and Kashmir Alienation of Land Act, 1995 BK, previously known as "Jammu Alienation of Land Regulation of 1990 BK". Under section 2(2) of the Alienation of Land Act, the expression "land" is defined as "land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pastures and includes:

(a) the sites of buildings and other structure on such land;

(b) a share in the profit of an estate or holding;

(c) any dues or any fixed percentage of the land revenue payable by an inferior land‑owner to a superior land‑owner;

(d) a right to receive rent;

(e) any right to water enjoyed by the owner or occupier of land as such; and

The term "land" as described under the Alienation of Land Act, obviously, refers to agricultural land. This is how under subsection (1) of section 3 of the Act, the legislature defined "agricultural land" in the manner of its definition under the Alienation of Land Act. Thus, the reference to term "land" in the notification necessarily includes agricultural land within the municipal limits of all the towns of Azad Jammu and Kashmir. It appears that the learned counsel for the respondent‑pre‑emptor misunderstood the application of notification to agricultural land as ordinarily land within limits of a town is called "urban land" or "urban area" and such land is rarely occupied or used for agricultural purposes. The scheme of the Act reflects that the rights of prior purchase are conferred in relation to agricultural land, village immovable property and urban immovable property. The provisions are contained in sections 14 and 15 of the Act, which are analogous to the provisions of sections 15 and 16 of the Punjab Pre‑emption Act. Section 15 pertains to right of prior purchase in respect of urban immovable property. "Urban immovable property" is defined under section 3, subsection (3), as "immovable property within the limits of a town". It does not, in any way, exclude agricultural land. Section 14 confers right of prior purchase in respect of agricultural land and village immovable property. "Village immovable property" finds its definition under subsection (2) of section 3 and it means "immovable property within the limits of a village other than agricultural land". It is clear from the definition of "village immovable property" that it excludes agricultural land.. Agricultural land is rightly excluded from the expression "village immovable property", as under section 14, the terms "agricultural land" and "village immovable property" are used disjunctively. It is, therefore, described that the right of prior purchase under the Act is enforceable in respect of different classes of property, namely;

(i) agricultural land;

(ii) village immovable property; and

(iii) urban immovable property.

6. The use of term "any sale of land" in the notification is deliberate as in case it was desired to suspend exercise of right of prior purchase in respect of urban immovable property, such an expression ought to have been used instead of referring to term "land". When the notification contains reference to term "land", it obviously refers to agricultural land situate within the municipal limits of a town. Moreover, the notification includes the built‑up property situate within a town. Thus, land and built‑up property, both situate in a town, are expressly covered. The scope of the notification is, therefore, very wide as it includes all sales of agricultural land as well as built‑up property. The observation of this Court in Omar Din's case P L D 1973 Azad J & K 14, relied upon by Raja Imdad Ali Khan, equally supports the aforesaid view. Khawaja Muhammad Sharif, the learned Chief Justice who recorded the verdict of the Court in that case, also arrived at the conclusion that expression "land" used in Land Alienation Act referred to agricultural land. In that case, the proposition relating to agricultural land, was raised in a different context as the dispute confined to qualifications of pre‑emptor instead of suspension of rights of prior purchase.

7. The next aspect of the proposition in the case is as to whether the suit land is situate within the municipal limits of Mirpur Town or not. According to the subordinate Courts, the vendees failed to discharge the onus by proving that the suit land formed part of the Mirpur Town. Under section 3, subsection (3) of the Act, it is postulated that for the purposes of the Act, any specific area may be considered as a town‑‑--

(a) if it is declared as such .by the Government by a notification in the Government Gazette, or

(b) if so found by the Courts.

The Act itself describes two modes to determine the limits of a town. The first method is that such limits may be declared by the Government by a notification. When the Government, for any reason, is unable to declare the limits of a town, then Courts are authorised to determine such limits. In present case, the vendees produced a copy of a certificate issued by Secretary of the Municipal Committee, Mirpur, Exh.D.A., by which it is certified that village Bhalote is included in Mirpur Town. In addition to that Muhammad Akram, vendee, appeared as a witness and deposed that village Bhalote is a part of Mirpur Town. It is supported by Abdul Ghani and Noor Mahi. The testimony of these witnesses is elaborated by pointing out that one Chaudhry Ali Muhammad and Muhammad Aslam, a vendee of the suit land, are elected members of Mirpur Municipality and both of them are residents of village Bhalote. Noor Mahi appeared as plaintiff's witness. The learned Sub‑Judge decided the issue against the vendees as, in his view, the aforesaid evidence was insufficient. The learned District Judge was of the view that the vendees, in addition to the aforesaid evidence, should have produced copies of the town plan and record of rights. The omission to produce the requisite evidence, in the opinion of the District Judge, disentitled the vendees to claim exemption of the sale of the suit land from the operation of right of prior purchase. I do not agree with the finding of the subordinate Courts as, firstly, the certificate, Exh.D.A., being primary evidence, cannot be ignored lightly. The pre‑emptor failed to challenge the correctness of the document Exh.D.A. Secondly, the documentary evidence as well as oral evidence is not refuted by the evidence of pre‑emptor. In case vendees were unable to produce : notification describing the municipal limits of Mirpur Town, the Courts were empowered to determine such limits on the basis of evidence on record. The evidence, as mentioned earlier, is sufficient to uphold the claim of the vendees in order to exclude the sale of the suit land from the purview of the Act. The subordinate Courts fell in error in misconstruing the aforesaid evidence. Chaudhry Ali Muhammad, the learned counsel for the appellant, placed a copy of Notification, dated December 27, 1966, whereby the municipal limits of Mirpur Town are determined. The notification is not issued in compliance with the provisions of section 3, subsection (3) of the Act, but under the Basic Democracies Act for the purpose of elections of the Municipal Committee. According to this notification, Mirpur Town includes village Bhalote. Raja Imdad Ali Khan, the learned counsel for the respondents, has not disputed the vires of this notification. In the circumstances, the evidence on record, coupled with the notification, is sufficient to hold that the suit land is situate within the municipal limits of Mirpur Town. On arriving at this conclusion, it is safe to hold that by virtue of the notification issued in exercise of powers under section 6, subsection (2) of the Act, no right of prior purchase in respect of the suit land vests in the pre‑emptor.

The appeal succeeds. The findings of the subordinate Courts are set aside and the suit is dismissed. No order as to costs.

M.B.A./295/H.A. Appeal allowed.

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