P L D 1988 Peshawar 149 (PLP)

M. Younas Khan Tanoli for Respondents. Date of hearing; 25thJune, 1988. Facts are that a sale effected by mutation No.4530 attested on 19‑12‑1974 for an ostensible price in the sum of Rs.15,400 in favour of Khawaj Muhammad and Jehandad in respect of 17 kanals 4 marlas area situate in Khasra No.277 Village Teer, Tehsil Haripur was pre‑empted by Ali Akbar on the basis of participation in the immunities and appendages and contiguity, also challenging the fixation of the sale price in good faith or/and its actual payment. The suit was contested by the vendees claiming exemption of the transaction from pre‑emption under section 7(2) of the N.‑W.F.P. Pre‑emption Act, 1950 (hereinafter referred to as Pre‑emption Act), Since they were the persons displaced from District Abbottabad in consequence of the construction of Tarbela Dam and ceritified to be such by the Deputy Land Commissioner, Abbottabad. The trial Court an Additional Civil Judge, Haripur extended exemption to the extent, of sale in favour of Jehandad defendant‑respondent No.2 after finding him a displaced person in consequence of the construction of Tarbela Dam and also certified as such by the Deputy Land Commissioner, Abbottabad and consequently dismissed the pre‑emption suit as against him. However, the pre‑emptor was granted a decree as against defendant‑respondent No.1 to the extent of 1/2 share on payment of Rs.6,111/16, the market price since he was found to own no land or residential property to be acquired for the construction of Tarbela Dam and could not as such be declared a displaced person in spite of a certificate endorsed to him by the Deputy Land Commissioner, Hazara. Khawaj Muhammad defendant‑respondent No.1 filed an appeal before the Additional District Judge, Haripur, who, on acceptance of his appeal, also dismissed the pre‑emption suit as against him. The learned appellate Court recorded his findings that defendant/ respondent No.1 was a resident of village Muradpur; the office Qanoongo had given evidence that he was affectee of Tarbela Dam; the Land Acquisition Collector had issued a certificate that Khawaj Muhammad was a displaced person; the Deputy Land Commissioner, Abbottabad had endorsed him a certificate declaring him a displaced person of Tarbela Dam and also authorised him to purchase an area upto 50 acres irrigated or 100 acres unirrigated. He further observed that the property of his father had also devolved upon him on his death and that defendant‑respondent No.l had consequently succeeded to prove himself a displaced person entitled to exemption under section 7(2) of the Pre‑emption Act. The present revision petition is directed as against the aforesaid judgment and decree of the appellate Court.

2. After hearing the learned counsel for the parties and going through the evidence on record the factual position emerging out is assimilated as follows:‑ Per Exh. P.B. the Land Acquisition Collector Tarbela Dam endorsed a certificate to Khawaj Muhammad defendant /respondent No.l that he was the affectee of Tarbela Dam Project and that his houses Nos. 105 to 108 have been acquired by the‑ Government for the public purposes i.e. the construction of Tarbela Dam Project. In view of the certificate issued by the Land Acquisition Collector in the aforesaid terms the Deputy Land Commissioner, Hazara per Exh.D.W.4/1 dated 5‑1‑1976 issued a certificate to Khawaj Muhammad son of Atta Muhammad of village Muradpur to be a displaced person from Hazara District authorising him to purchase land upto; 50 acres irrigated or 100 acres unirrigated and other immovable property not exceeding market value of Rs.10,000 which will be exempt from the right of pre‑emption under section 7(2) of the N.‑W.F.P. Pre‑emption Act read with Notification No.13924/Rev/M‑79/11 dated 13‑3‑1974. Per Exh./D.W.3/1 houses No.105 to 108 were, however, shown in the ownership of Atta Muhammad father of Khawaj Muhammad. Khawaj Muhammad appearing as D.W.4 has admitted that his father had the landed and residential property in his name in village Muradpur as his father was alive. He, however, stated that his father had died about a year back and his estate had devolved on him. He had also stated that he was serving in Karachi for the last 20 years. He, nonetheless, still claimed to be a displaced person of Tarbela Dam.

3. In the factual background stated above it was contended that the certificate of exemption stood sufficiently displaced by the ocular evidence of Khawaj Muhammad vendee himself who stated that he did not own any landed or residential property in village Muradpur to be acquired. Further, the certificate of the Deputy Land Commissioner was based on the certificate of Land Acquisition Collector and latter reporting that Khawaj Muhammad owned houses Nos.105 to 108 in village Muradpur had been acquired for the construction of Tarbela Dam which have; however, been found to belong to his father to whom compensation has also been paid. Khawaj Muhammad had also been living at Karachi for the last 20 years and was not a resident of village Muradpur likely to be displaced as a result of the construction of Tarbela Dam. On the other hand it was argued that the certificate issued by the Deputy Land Commissioner laying down that Khawaj Muhammad was a displaced person on account of the construction of Tarbela Dam and further authorising him to purchase land upto certain extent as to be exempt from .the right of pre‑emption was to raise an initial presumption of correctness in his favour and. that it was not necessary to qualify him as a displaced person that his land or residential property must be acquired but if he succeeds to prove that as a result of the construction of Tarbela Dam he has been displaced having lost his abode as living with his father in his house or living on rent or tilling the lands of others or engaged in some other pursuits for livelihood when he has been made to abandon his native place and to settle somewhere else. In the context P L D 1971 AJ&K 68 was cited in which reference was made to the meaning of 'displaced person' in Readers' Digest Encyclopaedic Dictionary, First Edition at page 256, 1st volume as "one belonging to racial or other minority who has been obliged to leave his native country and settle elsewhere". A further reference was made to Webster's New International Dictionary, Second Edition, which has defined the words 'displaced, person' as "person expelled, deported or compelled to flee from his country or nationality or habitual residence by force of War of their aftermath". In the cited authority the words 'displaced person' was interpreted by the Court, reproduced below:‑ "Displaced persons, in the context, in our opinion, could mean only those persons who have been expelled or removed from their habitual place of residence; or obliged to leave their habitual place of residence, as a consequence of the construction of Mangla Dam." Next reference is made to 1981 C L C 680 in which it was held that although acquisition of land is a piece of evidence for determining whether a person has been displaced or not but this by itself is entirely insufficient to give him a status of displaced person. In the said authority the dictionary meaning of the word 'displaced person' were reproduced to put out of or dislodged from usual or proper place. The Court accordingly observed in the said authority that the immunity from the exercise of right of pre‑emption has been created only in respect of those persons who have been put out of or dislodged from the usual or proper place by the construction of Chashma Barrage irrespective of the fact whether their land had been acquired or not for the said Project. On the subject a reference was also made to PLD 1985 Pesh. 13 in which it was held that in case of exemption from pre‑emption claimed on the basis of being a displaced person under a notification issued under section 7(2) of the Pre‑emption Act the certificate must be issued by a person specified in the notification and also declaring the vendee a displaced person in consequence of the construction of Tarbela Dam. In the said authority with reference to P L D 1981 A J & K 79 it was also held that in case of certificate of exemption granted under the notification issued under section 7(2) of the Pre‑emption Act the Court was not debarred to receive evidence in support or rebuttal of such certificate or to prove the fact of being a displaced person by other independent evidence. At then the authority published in P L D 1981 S C 51 was not brought to the notice of this Court in which a rule was laid down that the issuance of a certificate was one of the essential conditions for obtaining the exemption. The Supreme Court of Pakistan had not agreed with the argument that a person may establish himself otherwise to be a displaced person irrespective of the issuance of certificate.

4. To sum up, the correct legal position on the subject emerges out that a person must obtain a certificate to be a displaced person from an authority specified in the notification issued under section 7(2) of the Pre‑emption Act and that the issuance of such certificate is the first and foremost essential condition for availing the exemption from the right of pre‑emption under section 7(2) of the Pre‑emption Act. However, the Court can receive evidence in support or rebuttal of such certificate but the fact of being a displaced person cannot be proved by independent evidence than a certificate. Further it is not necessary that the landed or residential property of an affectee should be acquired for the purpose of dam to entitle him to the issuance of a certificate of a displaced person but if he is a permanent resident of the place and has been obliged to abandon his permanent place of residence as a consequence of the construction of dam he can be validly certified as a displaced person.

5. Applying the above yardstick to the‑case of Khawaj Muhammad defendant‑respondent No.1 who is a permanent resident of village Muradpur, District Abbottabad and has been only temporarily living at Karachi, may be for a number of years, but his father had the landed as well residential property which has been acquired for the construction of Tarbela Dam and resultantly whole family has been displaced, as such in case Khawaj Muhammad has been certified to be a displaced person by a specified authority in the Deputy Land Commissioner, Abbottabad, the certificate in the above terms would be considered valid to entitle him to the exemption from the right of pre‑emption under section 7(2) of the Pre‑emption Act in respect, of the suit land purchased by him.

6. In view of the above this Court, upholds the judgment and decree of the appellate Court, although for somewhat different reasoning and consequently dismisses the revision petition with no order as to costs. A.A./631/P Revision dismissed.