P L D 1985 Supreme Court 405 (PLP)

NASIM HASAN SHAH, J.-This order will dispose of Civil Appeal No. 395 of 1980, as also Civil Petition No. 228 of 1976 and Civil Petition No. 229 of 1976, as a common question arises for decision in all these matters. The question is whether some property which was governed by the provisions of the Colonization of Government Lands (Punjab) Act, 1912 and stood exempted from the operation of the Punjab Pre-emption Act, 1913 under a notification issued by the Provincial Government under section 8 (2) of the said Act will remain so exempted even though the Provincial Government has lost all interests in the property on account of the acquisition of that property under the provisions of the Rehabilitation and Settlement Laws. In Civil Appeal No. 395 of 1980 the land in question was exempted from the operation of the Pre-emption Act, 1913 under Notification No. 196-B dated 28-2-1944 issued under subsection (2) of section 8 of the Punjab Pre-emption Act which was in the following terms : "In supersession of ........ and in exercise of the power conferred by subsection (2) of section 8 of the Punjab Pre-emption Act, 1913 the Governor of the Punjab is pleased to direct that no right of pre-emption shall exist in (a) any local area to which the Colonization of Government Lands (Punjab) Act, 1912, has been or may hereafter be made applicable " And the aforesaid local areas were specified, including the area involved in this case. The question, thus, is whether the property involved in this case which after its acquisition under the Displaced Persons (Compensation) or the Land Settlement Act is no longer governed by the Colonization of Government Lands (Punjab) Act, 1912, will continue to be subject to the above notification exempting it from the right of pre-emption 7 The High Court found that the crucial words in the above notification are "has been made applicable" and it observed that since the words in the notification are not to the effect that such lands will be exempt from the right of pre-emption to which this notification is "now applicable" or "is for the time being applicable" but the condition for its applicability only is that it should "have been made applicable". Hence, the lands in question continue to be exempt from the right of pre-emption and the notification in question continues to apply even to lands which have vested in the transferees. Mr. Mahmood Ahmad Qureshi, learned A. O. R. appearing on behalf of the appellant in Civil Appeal No. 395 of 1980 and for the petitioners in Civil Petition No. 228 of 1976 and Civil Petition No. 229 of 1976 did not even attempt to challenge the above finding of the learned High Court or to say a word against it's correctness before us. The only point raised by him was that the above question had formed the subject-matter of a preliminary issue and that this was decided against the respondents before the issues on the merits were decided but the correctness of the finding on the preliminary issue was not challenged in appeal or revision, as such the respondents were estopped from reopening the issue in subsequent proceedings. There is, however, no force in this contention because when an appeal is filed against the ultimate decision the whole case including all the interim orders passed in the case get re-opened and can be challenged before the Court of appeal bearing the appeal filed against the final decision whereby the suit was ultimately disposed of. This was the course followed in this case. The result is that the appeal (C. A. No 395 of 1980) and the petitions (C. Ps. Nos. 228 and 229 of 1976) have no force and must fail. They are, accordingly, dismissed hereby, with no order as to costs. M. B. A, Appeal dismissed.