P L D (PLP)

The provincial Government 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 shall exist." In exercise of the powers conferred by this enactment, a notification was issued in the name of the Governor of the Province in these terms :- "In exercise of the powers conferred by subsection (2) of section 7 of the North-West Frontier Province, Pre-emption Act, 1950, the Governor is pleased to declare that no right of pre-emption shall exist in the Municipal area of Abbottabad from the date of the enforcement of the said Act." Mr. A. K. Farooq, on behalf of the appellants, attacked the validity of the notification on the ground that the Governor sought to give it retrospective effect from the date of the enforcement of the Act itself, namely, from the 15th of March 1950, whereas the notification itself bore the date, the 7th November 1951. According to the contention raised, this circumstance deprived the notification of all legal effect. In support of this broad proposition, however, the learned counsel was unable to cite any statutory provision or any authority. It may be conceded that ordinarily a notification, issued under statutory powers, should be deemed to come into effect on the date when it is published and not from an anterior date. Whether it should have any retrospective or retroactive effect, would depend entirely on the terms of ` the notification itself and the statutory mandate behind it. The declaration that the notification would be deemed to be good with effect from a date prior to that of its publication, may, therefore, be disregarded. It is a well-recognised rule of construction that retrospective operation is not to be given to a statute, so as to impair an existing right or obligation otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. It is only when the words of a statute are not plain that the maxim "omnis nova constitutio futuris formam imponere debet non praeteritis" would be applied., which means that, except in special cases, the new law ought to be construed so as to interfere as little as possible with vested rights. Authorities for this view would be found, summed up at pages 359 to 362 and pages 368 et seq of Crates on Statute Law, Fifth Edition, and pages 215 to 222 of Maxwell on Interpretation of Statutes, Tenth Edition. The effect of the notification under consideration is to be assessed in the light of this principle. The right to sue had clearly accrued to the appellants as soon as the sale was effected in favour of the respondents on the 28th March 1951. As has been mentioned above, the notification was issued later, on the 7th November 1951. The law prescribed a limitation of one year for a pre-emption suit from the date of sale, where there is a registered sale-deed. The suit could have been, consequently, instituted within a year of the 28th March 1951, and it was actually brought on the 27th March 1952. There is authority for the view that the right to sue is a vested right. Reference may be made in this connection to Jackson v. Woolley (1858) 27 L J Q B 448). The question however, is whether the impugned notification was effective in taking away that right or not. It maybe noticed that subsection (2) of section 8 of the Punjab Pre-emption Act, 1913 is in pari materia with section 7 (2) of the North-West Frontier Province Act. Notification similar to that in question in the present litigation, have been issued from time to time, under the former provision and have formed the subject of decisions in the Punjab Chief Court and the Lahore High Court. Conflicting views appear to have been expressed as to the effect of such a notification in those decisions. The earliest of these decisions was given in Bishen Singh v. Ganda Singh (10 P R 1913), wherein it was held that the right to sue for pre-emption ceased to exist immediately on the publication of the notification, although it was in existence when the suit was instituted. A suit pending on the date of issue of the notification was, therefore, held to have been properly dismissed. The notification in that case was apparently couched in terms identical to those of the impugned notification, except that the area mentioned therein was different. That decision was followed by two others in the Punjab Chief Court, Niaz Ali v. Muhammad Ramzan (130 P R 1916) and Kaju Mal v. Saling Ram (91 P R 1919). In both these cases the pre-emptor had obtained a decree but his right to pre-empt was declared not to exist, by a notification published after the date of the decree and while the vendee's appeal was pending. The notification was pleaded in support of the appeal in each of these cases, unsuccessfully, the Appellate Court holding that the pre-emptor's right was not affected. In the first of these two cases, the rule laid down in Bishen Singh v. Ganda Singh was not dissented from, but the case in hand was distinguished on the ground that the position of a decree-holder, defending his decree, could not be assimilated to that of a plaintiff merely seeking to enforce a right to preempt. It was remarked that the decree gave the decree-holder the status of full owner immediately on payment of the decree money, and that unless fault could be found with the decree itself, affirmance of it could not be withheld because of the notification. It was added, however, that had the plaintiff's suit been dismissed, the Government notification, issued while the appeal was pending, and taking away the right to pre-empt, would probably have been fatal to his chance of success. No reference was made to Niaz Ali v. Muhammad Ramzan, in the decision (Kaju Mal v. Saling Ram) on which the learned counsel for the appellants relied strongly before us, but the dictum laid down in Bishen Singh v. Ganda Singh was definitely dissented from. The learned Judges expressed themselves as follows "With all deference we are unable to follow that ruling which not only attributes to a notification greater force than to a repealing Act, but proceeds upon the principle that in the absence of a provision to the contrary, a notification has retroactivity." These cases were reviewed by a Division Bench of the Lahore High Court in Mohindar Singh v. Arur Singh (I L R 3 Lah. 267). In that case, the notification in question was issued while the two pre-emption suits were pending in the trial Court and for that reason the trial Judge dismissed both of them. Appeals taken to the District Judge were also dismissed on the authority of Bishen Singh v. Ganda Singh. In second appeal, a Division Bench of the High Court while recognising that the words used in the notification should be allowed, to speak for themselves, felt themselves unable to follow Bxshen Singh v. Ganda Singh. They pointed out that the plaintiff possessed the right to pre-empt, at the time of the sale at the moment when he filed his suit. It was further remarked that the statute did not require him to preserve his right free from interfence beyond his control, up to the date of decree in his suit and that the Court trying the suit was not obliged to insist upon such preservation of the right. In the instant case, as will be shown in the sequel, it was incumbent on the plaintiff to retain his right of suit till the date of the decree. However the question still remains whether the view taken by the learned Judges, of the effect of the notification itself could be accepted as correct. In Alam Sher Khan v. Allah Din (A I R 1939 Lah 517), the notification that called for consideration was to the effect that no right of preemption shall exist, "with respect to any land or property that may be sold by public auction, under the orders of the Court of Wards", and it was held that this notification applied to future sales only and did not affect the suit by a pre-emptor to enforce his right in respect of a sale held previously. Apparently, the decision on the point, which was given by a learned single Judge in that case, turned on the wording of the notification itself. The words "may be sold" occurring in the notification are significant. Clearly, sales to be held in future alone were covered by the notification and not those which had already been held. The case went up in Letters Patent Appeal to a Division Bench, but the judgment of that Bench did not touch this point. This Punjab Pre-emption Act, 1913, is also in force in East Punjab (India). In Chanan Kaur v. Mohan lal Goela (A I R 1948 East Pb. 14), the East Punjab High Court (as it then was) had to consider the effect of a notification issued under section 8 of the Act prohibiting preemption in respect of sales of landed property by the Court of Wards of the estate of the heirs of one Rai Bahadar Boota Singh. The land was situate in Delhi. The suit was dismissed on the ground that the sale sought to be pre-empted had been effected by means of public auction and that in view of the notification issued by the Chief Commissioner of Delhi on the 26th November 1943, and published in the Gazette of India, dated the 4th December 1943, it was not pre-emptable. It was contended in appeal before the East Punjab High Court that the notification issued by the Chief Commissioner was not authorised by the language of section 8 of the Punjab Pre-emption Act, under which it purported to have been issued and that in promulgating it, the Chief Commissioner had exceeded his legal powers. It was moreover urged that the aforesaid section did not empower the Local Government to issue a notification in respect of a sale that had taken place previously, so as to take away a right of pre-emption that had already accrued and that accordingly, the notification in question in so far as it professed to affect sales that had taken place before its promulgation, must be held to be ultra vires. This argument was rejected as untenable on the language of the section itself. It was pointed out that the Local Government had been given the power, by this section, to make a declaration that no right of pre-emption or only a limited right shall exist, not only in respect of any class of sales, but also with respect to a particular sale, and that it was obvious that where a declaration was made in respect of a particular sale, that sale must have preceded the promulgation of the notification. It was, therefore, concluded that the section clearly contemplated the promulgation of a notification in respect of sales that had already completed and that it could not accordingly be argued that a notification with a retrospective operation, was outside the scope of the section. In the instant case, section 16 of the N.-W. F. P. Act may also have some bearing on the decision of the question before us. This is in the following terms:- "No decree for pre-emption shall be passed in favour of any person, unless he has a substantial right of pre-emption at the time of the decree but where a decree for pre-emption has been passed in favour of a plaintiff' whether by a Court of first instance or of appeal the right of such plaintiff shall not be affected by any transfer or sale occurring after the date of such a decree." It would appear, therefore, that it was essential for the pre-emptor to retain his right of pre-emption till the date of the decree in order to be successful. The point, therefore, resolves itself into the question whether the plaintiff had retained his right of pre-emption till the end of the suit, in the face of the impugned notification. The reported cases in which a decree had been obtained by the pre-emptor in the Court of first instance before a notification under section 8 (2) of the Punjab Pre-emption Act, 1913, was issued, are easily distinguishable from those in which the right to pre-empt had not yet been incorporated into a formal adjudication by a Court. In the former type of cases, it could be reasonably argued that the right to sue had merged in the decree of the Court, which would henceforth be regarded as the source of right, for the decree-holder. Such a decree would, therefore, call for no interference on the ground that a notification subsequently promulgated, had taken away the right of pre-emption in similar cases. The real difficulty arises in the cases of the second type, of which Kaju Mal v. Saling Ram and Mohindar Singh v. Arur Singh may be cited as representative. With all respect, it seems to us that the learned Judges in those cases, interpreted the words of the notification too narrowly in their anxiety to save vested rights. The words of the notification appear to us to be plain and to be fairly susceptible of the interpretation that with the promulgation of the notification, all rights of pre-emption would cease to exist, in the area mentioned in the notification, whether they pertained to sales that had already taken place or to those which were to be held hereafter. The only exception that could be recognised to this pre-emptor was seeking to enforce his right to pre-empt. The right had already been successfully asserted before the date of the notification. But in the absence of any such adjudication by a Court, there is no reason why full effect should not be given to the comprehensive words of the notification, so as to non-suit plaintiffs who may have filed suits for pre-emption before the date of the notification, as well as debar all pre-emptors from instituting suits to enforce their right of pre-emption in the area in question, subsequent to the date of the notification. We are, consequently disposed to uphold the decision of the Courts below that the right of pre-emption possessed by the appellants was lost on the date that the impugned notification was issued in the present case. We, therefore, dismiss the appeal with costs. K. B. A. Appeal dismissed.