2000 PLP 2949 (YLR)

Date of hearing: 4th June, 1999. This second appeal is by the plaintiffs in a suit for pre-emption who had succeeded before the learned trial Court but on the appeal of the vendees-respondents, the judgment and decree was reversed and the suit was dismissed.

2. Ghulaman, the father of the appellants pie-emptors, owned land measuring 800 Kanals in Mauza Nausher Thal Kalan of Tehsil Layyah, vide Notifications, dated 4-4-1951 '(Exh. D.W-8/1) and 16-11-1951 (EXh.D.W-8/2) a declaration was made by the Government of the Punjab under section 36 of the Thal Development Authority Act, 1949 and the aforesaid land was acquired. Vide- registered sale-deed, dated 22-1-1953 (Exh.D.W-7/1) he alienated the aforesaid land measuring 800 Kanals to the respondents for a consideration of Rs.5,000.

3. On 20-1-1954 the appellants herein, who are the sons of the vendor, tiled a suit for pre-emption. The said suit was contested, inter alia, on the grounds that the land having been acquired under the Thal Development Act; 1-949, the sale was invalid and the pre-emption suit was not maintainable. It was also contended that the sale was exempt from pre-emption. Necessary issues were famed and the suit was tried. Vide judgment, dated 8-2-1955, the. learned trial Court "rejected the suit". The appellants succeeded in an appeal when the learned District Judge remanded the suit for trial vide order, dated 17-1-1957. Against that SAO 1/57 was filed which was dismissed vide judgment, dated 29-1-1958.

4. On remand the suit was tried and vide judgment and decree, dated 30-6-1967 it was decreed. The learned trial Court was of the view that the Colonization of Government Lands (Punjab) Act, 1912 did not apply and that there was no exemption from pre -emption under the Thal Development Act (No.XV), 1949. The respondents-vendees appealed which was allowed by the learned Additional District Judge, Muzaffargarh on 2-5-1969 and the suit filed by the appellants was dismissed. The learned First Appellate Court relied on the notification, dated 28-2-1944 issued under section 8(2) of the Punjab Pre-emption Act, 1913, whereby the Governor of the Punjab was pleased to direct that "no pre-emption shall exist in any local area to which Colonization of Government Lands (Punjab) Act, 1912 has been or may hereafter be, made applicable". Notification, dated 15-3-1952 from the Government of the Punjab was also relied upon. According to this notification issued under section 4 of the Colonization of Government Lands (Punjab) Act, 1912, the Governor of the Punjab was pleased to "apply all the provisions of the said Act to all the lands in Muzaffargarh District which are the property of the Crown for the purposes of the province in addition to the lands to which the Colonization of Government Lands (Punjab) Act, 1912 has already been applied in Punjab Government Notification No.80-C, dated 7th January, 1938". The judgment and decree of the learned First Appellate Court, dated 2-5-1969 is subject-matter of the present second appeal.

6. The learned counsel for the appellant has contended that the land in dispute vested in private ownership and, therefore, the notification, dated 28-2-1944 was not applicable to the land in dispute. It was further contended that the declaration under section 36 of the Thal Development Act, did not vest title of the disputed land in the Government of the Punjab and, therefore, it was pre-emptible. Relying on Government of Punjab and another v. Jiwan and others (1988 SCMR 76) he contended that all acquisitions between 1951 and 1955 being invalid, the exemption notification was not applicable.

7. On the other hand, the learned counsel, for the respondents vendees contended that by virtue of 1944 Notification all sales in the local area to which Colonization of Government Lands (Punjab) Act, 1912 apply were exempted from pre- emption. According to him the property acquired by the Thal Development Authority vested in the Government of the Punjab and, thus the notification, dated 15-3-1952 had validly been issued. And, therefore, the notification of exemption issued under section 8(2) on 28-2-1944 was clearly applicable. He further submitted that according to the said notification exemption from pre-eruption was available in the entire local area and it was not necessary that there should have been any specific notification about any particular land. He also relied on sections 20 and 22 of the Thal Development Act and section 16 of the Land Acquisition Act to contend that once it was demonstrated that the land was acquired and possession taken it vested in title in the Government of the Punjab and, therefore, was exempt from pre-eruption. Notification. dated 4-4-1951 + 16-11-1951 (Exh.D.W 8/1 and D.W. 8/2) were relied upon in support of the acquisition by the Government of the Punjab. The chart for compensation (Exh.D.W 3/2) prepared on 14-7-1954 and the receipt of Exh.D.W. 3/4, dated 14-7-1954 were also relied upon to submit -that the vendor had received compensation for his land. Exh.D.W 6/1, dated 30-11-1951 report "Roznamcha Waqiati" was pressed to contend that the possession was duly taken by Thal Development Authority. He further contended that after acquisition of the land the vendor was entitled only to the right of return which was neither agricultural land nor village immovable property so as to be pre- emptible.

7. I have considered the submissions made by the learned counsel for the parties. The crucial question for determination in this case is as to when the land in dispute vested in title in the Provincial Government and whether. the land subject-matter of the notifications under section 36 of the T.D.A. Act would be covered by the notification, dated 15-3-1952 applying the Colonization of Government Lands (Punjab) Act, 1912 to the entire district of Muzafargarh.

8. The facts relevant for answering the above question are that notifications under section 36 of the Thal Development Act. were issued on . 4-4-1951 and 16-11-1951. Possession of this land was taken on 30-11-1951 (Exh. DW 6/1). The vendor was paid a part of the compensation on 14-7-1954 (Exh. DW. 3/4). The date of award is not forthcoming from the record.

9. There is no provision in the TDA Act expressly saying that the land acquired under the said Act will vest in title in the Provincial Government. Under section 36(2) of the said Act, the land acquired vests in the Thal Development Authority subject to payment of compensation. This vesting, however, in the T.D.A. is only for the purpose of management on behalf of the Provincial Government as indicated in the proviso to clause (a) of subsection (2) of section 30 of the aforesaid Act. The provisions of the aforesaid Act as a whole, particularly sections 4, 20-A, 24, 25 and 26 make it clear that T.D.A. is an agent of the Punjab Government and manages the land acquired under the aforesaid Act on behalf of the Punjab Government. Therefore, when the land stands acquired and compensation paid it vests in title in the Punjab Government. Reference may be made to Administrator Thal Development v. Muhammada and others (1994 Law Notes (Multan Bench) 1091), in which it was held that the landowners continue to retain title till possession was taken and compensation paid. One thing however, is clear that on 15r3-1952 when the Colonization of Government Lands (Punjab), Act, 1912 as , lied to Muzaffargarh District, compensation for the land had not been paid to the vendor. Therefore, on the date of sale, the notification, dated 15-3-1952 was not applicable to the land in dispute. However, on the date of payment of part compensation to the vendor on 14-7-1954, this notification stood applied to the land in question also on the strength of its language. Therefore, w.e.f. the said date the exemption notification under section 8(2) of the Punjab Pre-emption Act became operative, during the pendency of the suit. It is settled principle of law that a- pre-emptor must have superior rights at the three stages i.e., the date of sale, the date of suit and the date of decree. If, therefore, during the pendency of the suit the right is taken away by virtue of notification under section 8(2) the suit of the pre-emptor must fail:

10. Section 36 contemplates acquisition of the property for the purpose of a scheme for development contemplated by section 21 of-the T.D.A. Act, 1949. This scheme was introduced by addition of subsection (2) to section 21 of the TDA Act by the Thal Development (Amendment) Ordinance, (No.l) of 1955. While considering the rights of the vendees from the landowners whose land was acquired under section 36 of the Act, the Supreme Court in the case of Government of Punjab and another (supra) observed that the acquisition made before the amending Ordinance, 1955 (later feplaced by Act No.XX of 1955) were not valid and became valid only on the promulgation of the aforesaid amending Ordinance. It may also be added that the acquisitions made between 1951 to 1955 were, however, validated by the T.D.A. (Validating) Ordinance (No.XV of 1971). Thus, on the date of sale and the date of the suit, the title to the land acquired under section 36 vested in the vendor. And, but of the applicability of notification for exemption the sale would have been pre-emptible. The contention of the learned counsel for the appellant based on invalidity of acquisition is, therefore, repelled.

11. Another contention of the learned counsel for the vendees-respondents was that the land having been acquired in 1951, the vendor was only entitled to right of return and according to him it was not pre-emptible. This contention has do force because on the date of sale, the vendor did not stand denuded of his title to the property as observed in the preceding paragraph. Further, right of pre- emption is right of substitution. The vendor will be entitled to whatever rights were transferred by the vendor to the vendee in the land in dispute subject-matter of the suit for pre-emption.

12. In view of the above, this appeal has no merit and .is dismissed: No order as- to costs. H.B.T./A-135/1. Appeal, dismissed.