P L D 1969 Supreme Court 197 (PLP)

The learned counsel for the appellant has contended that as the respondents failed to produce any notification applying the Act to the land in suit the learned Judges of the High Court could ‑not hold on the basis of the Jamabandi papers and the other facts relied upon by them that the Act applied to the same. It will be seen that it is not in dispute that the Colonization of Government Lands (Punjab) Act, 1912, was applied to the State of Bahawalpur. This was done by an order passed by His Highness the Amir of Bahawalpur on the 30th of April 1926. Section 8 (2) of the Punjab Pre‑emption Act as applicable to the Bahawalpur State reads as follows: "The Government of Bahawalpur 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 Government of Bahawalpur may specify shall exist." In exercise of the power under the above provision the Govern ment of Bahawalpur issued Notification No. 74 dated the 12th of June 1944, in Urdu. The translation of the same will read as under "Under subsection (2) of section 8 of the Punjab Pre‑emp tion Act, which is in force in the State, the Government of Bahawalpur orders that no right of pre‑emption shall exist in respect of lands which are situate in the colony area and to which the Colonization of Government Lands (Punjab) Act, 1912, has been applied or may hereafter be applied." at will be seen from this notification that no right of pre‑emption exists in respect of any land which "is situate in the colony area" and to which the Act "has been applied." Mr. Abdul Haque has contended that as no notification under section 4 of the [Colonization of Government Lands (Punjab)] Act was issued by the Government of Bahawalpur applying the said Act, to the land in suit, no exemption from pre‑emption could be claimed on the basis of the Notification No. 74 dated the 12th of June 1944. The respondents have failed to produce any notification issued under section 4 by the Government of Bahawalpur and the learned Advocate‑General who asked to file the notification under section 4 (if any), has, on the authority of a letter written by the Deputy Commissioner, Bahawalpur, stated that no such notification was issued. Section 4 of the Act ;provides :‑ "This Act shall, unless the Government directs, apply to land to which the provisions of the Government Tenants Act, 1893, have been applied and to any other land to which the Govern ment may by notification in the official Gazette apply it and which at the time of the notification was the property of the Crown for the purposes of the Province. Provided that unless the Provincial Government by general or special order otherwise directs nothing in sections 20, 21, 22 and 23 or in the proviso to section 14 of this Act, shall apply to tenancies specified in Schedule I of this Act, or to any class of tenancies created hereafter which the Provincial Government may declare to be scheduled tenancies under this section." The notification by which the Act was applied to the State of Bahawalpur made the following modifications in the Act:‑ (1) That wherever the word (Punjab) occurs in the Act, it shall be substituted by the word `Bahawalpur'. (2) That the words `Local Government' occurring in the Act shall be substituted by the word `Bahawalpur Government'. (3) That the `Government' occurring in the Act shall be substituted by the word 'Bahawalpur'. It was further said in the notification that wherever the word `Punjab Land Revenue Act' and `Punjab Tenancy Act', occurred in the Colonization of Government Lands (Punjab) Act, 1912, a. reference shall be deemed to those Acts. it is also said that (1) sections 13, 14, 27 and 31 shall not have application in the State, (2) reference to the Government Tenants (Punjab) Act, 1893, shall be inapplicable, (3) Schedule I shall not be applicable, and (4) wherever in reference to the Crown Grants Act, 1895 the words `Commissioner' and `Financial Commissioner', occurred reference for the purposes of the State shall be deemed to be to the Revenue Minister of the State. The learned Judges of the High Court in repelling the conten tion of the present appellant that the Act was not applicable to, the land in question observed as follows:‑ The Colonization of Government Lands (Punjab) Act, 1912, has been promulgated in the State of Bahawalpur and is appli cable to lands to which it is applied by notification in the official; Gazette and to which Government Tenants (Punjab) Act, 1893,. applied, subject to the conditions that the land was property of the Government of the State. No notification applying the Act to the land in question is proved on the record, but from copy of Jamabandi Exh. D. A., Exh. P. Z. and Exh. P. Z./2: and the sale deed in favour of the original grantee it is proved: that the land in suit was Government land and was situate in the new colony to which the Colonization of Government Lands (Punjab) Act applied, as the Jamabandi mentions that the land was granted on bara conditions. It can even be presumed in, case of Government land situate in a colony area that it is, governed by this Act. The proof of the notification would have been conducive, but the application of the Act to the land stands proved despite the non‑production of the notification under section 4 of the Act. The notification if proved would, have been the best evidence but its absence does not bar other proof of the application of the Act to the Colony. On the documents on the record, the inference is irresistible that the Act which applied to the Colony by the necessary notification". It is worthy of note that in the Notification No. 74 dated the 12th of June 1944, the words used are "to which the Colonization o: Government Lands (Punjab) Act, 1912, has been applied . . . . .". (The underlining is by us). The facts to which reference has been made by the learned Judges of the High, Court may not be sufficient to hold that a notification under section 4 of the Ace was issued by the Government of Bahawalpur but they, however, unmistakably point to the conclusion that the Act had beer applied to the land in suit. As the words used in the notification are "has been applied" and not "is applicable", the question A that falls for determination is whether the Act was as a matter of fact applied to the land in suit. The land was situate in the colony area. It was first granted to the vendors on bara con ditions under the Act. The original owner of the land was the Bahawalpur State and it was sold only after acquiring proprie tary rights. The jamabandi papers, the application made by the vendors for permission to sell and the order of the Deputy Commissioner according permission clearly go to indicate that the Act was applied to the said land by the Government of the State of Bahawalpur. The land, therefore, came within the purview of Notification No: 74 dated the 12th of June 1944. The plaintiff is not entitled in view of that notification to pre‑empt the sale. We, therefore, hold, that the suit has been rightly dismissed by the High Court. The appeal is dismissed but we direct the parties to bear their own costs. K.B.A. Appeal dismissed. [Here in italics]