P L D 2005 Lahore 190 (PLP)

7. Kh. Muhammad Afzal, Advocate represents the respondents. His contention is that the authentication of the declaration was in discretion of the D.C.O. and it has rightly been exercised against the appellants because of the prohibition spelt out by section 10(2)(b) of Ordinance XCVIII of 2002.

8. When confronted whether the deeming clause would ipso facto become applicable even if the conditions requisite for the valid declaration are not satisfied, his contention was that the question was not examined by the D.C.O. He, however, contends that the appellants, were the printer and publishers of the newspaper and nobody else owned the newspaper. Therefore, section 6(3) of the Ordinance requiring the authority in writing from the owner of the newspaper was not attracted.

9. The submissions made by the learned counsel for the parties have been considered. To appreciate the first contention of the learned counsel for the appellants whether section 10(2)(b) is mandatory or directory, it is necessary to reproduce the relevant provisions from Ordinance No.XCVIII of 2002 and West Pakistan Press and Publications Ordinance No.XXX of 1963:‑‑ Ordinance XCVIII of 2002. Section

10. Authentication of the declaration.‑‑(1) subject to the provisions of subsections (2) and (3) each of the duplicate originals of every declaration made and subscribed under section 6 shall be authenticated by the signature and official seal of the District Coordination Officer before whom the said declaration is made. (2) The District Coordination Officer may not authenticate the declaration if he is satisfied that,‑‑ (a) the declaration has been filed by a person other than the owner or proprietor of the newspaper or the printing press or a person not authorized by such proprietor. (b) that title of the newspaper proposed to be published is the same as the title of any newspaper already being published in the same language at any place in the country, not being a newspaper of different periodicity published by the same publishes or another edition of the same newspaper published from another place. (c) ... ... ... ... ... ... (d) ... ... ... ... ... ... (3) ...... .......... . (4) In case the District Coordination Officer fails to authenticate a declaration under subsection (1) or pass an order under subsection (2), within a period of thirty days, the declaration made by the publisher, printer and news agency shall be deemed to have been authenticated on the‑ expiry of the said period. West Pakistan Press and Publications Ordinance XXX of 1963. Section 12(1) Authentication of the declaration.‑‑Subject to the provisions of subsection (2), each of the duplicate originals of every declaration made and subscribed under section 7 shall be authenticated by the signature and official seal of the District Magistrate before whom the, said declaration is made. (2) The District Magistrate shall not authenticate the declaration unless he is satisfied that‑‑ (a) the proprietor of the newspaper if he himself is not the printer or the publisher has authorized the making of such declaration; (b) the title of the newspaper proposed to be published is not the same as the title of any newspaper already being published in the same language at any place in the Province not being a newspaper of different periodicity published by the same publisher or another edition of the same newspaper published from another place. (c) .... ... ... .... ... ... (d) .... ... ... .... ... ... (e) .... ... ... .... ... ...

10. A provision of law expressed in the negative term is generally to be considered as mandatory unless the intention of the legislature appears to the contrary. Another accepted principle of interpretation is that while enacting a law the legislature is presumed to know the existing state of law. Accordingly to section 12(2) of West Pakistan Press and Publications Ordinance XXX of 1963, refusal to authenticate declaration on the grounds stated in section 12 of the aforesaid Ordinance was mandatory because the negative command was followed by the word "shall". Therefore, if the intention of the legislature was to retain the said provision in the new enactment in the mandatory form the expression "may not" in section 10(2) of Ordinance XCVIII would not have been used. The deeming clause in section 10(4) aforesaid strengthens my view that section 10(2) was not IC intended to be mandatory.

11. The question that, however, attracted my attention was whether the deeming clause ipso facto applies when a declaration is made and not refused within 30 days. In West Pakistan Press and Publications Ordinance XXX of 1963, there was no such provision. The intention of the legislature to incorporate the said deeming clause in Ordinance XCVIII is that authentication of a "declaration" is not unduly delayed. However, to my mind, the "declaration" to attract the deeming clause contemplated by section 10(4) should be a declaration which fulfils the requirements of section

6. Therefore, it does not appear to be possible to give effect to the deeming clause aforesaid in isolation of section 6 because in that case this section will become redundant and redundancy cannot be attributed to‑ the Legislature. Requirements of section 6, except the one in section 6(3), can be met by the applicant because these do not involve any other person. However, the situation is different in case of the requirement of section 6(3). The said provision is reproduced hereunder:‑‑ (3) Where the printer or publisher of a newspaper making a declaration is not the owner thereof, the declaration shall specify the name of the owner and shall also be accompanied by an authority in writing from the owner authorizing such person to make and subscribe such declaration." Perusal of this provision shows submission of authority in writing before the D.C.O. from the owner unless the printer or publisher is the owner himself. Particularly in this case, the National Press Trust is laying claim to be the owner of "Mashriq Lahore". Therefore, I am of the view that unless the requirements of section 6 are complied with, if applicable in a given case, deeming clause was not ipso‑facto applicable. The contention of the learned counsel based on section 10(4) of Ordinance No.XCVIII of 2002 is repelled.

12. I am of the view that by assuming that the provision of section 10(2)(b) of the Ordinance XCVIII were mandatory, the learned D.C.O. failed to exercise jurisdiction vesting in him Accordingly, this writ petition is allowed, the impugned order dated 30‑8‑2003 of the D.C.O. is declared as without lawful authority with the result that applications made by appellant No. shall be deemed to be pending to be decided afresh in accordance with law. No order as to costs. M.H./S‑284/L Case remanded.