1968 SCMR 320 (PLP)

S. A. RAHMAN, J.-The facts giving rise to this appeal, preferred under Article 158 of the late Constitution, are as follows :-- Abdul Majid, the second respondent, transferred certain lands by oral sale, to the appellants. I he land were situate in Chak No. 341, Bahawalpur territory. The sale was pre-empted by means of a suit on behalf of Abdul Khaliq, the first respondent. The suit was resisted on the grounds that the plaintiff was not related to the vendor, or a member of an agricultural tribe and that according to a notification issued by the Government of Bahawalpur, the lands were not subject to pre-emption. The learned trial Judge found that the plaintiff was a cousin of the vendor and for that reason, had the right to pre-empt the sale. He was also found to be a member of an agricultural tribe. On the point whether the lands were situate in Colony area and as such, the suit for pre-emption did not lie, he decided in favour of the vendee and dismissed the suit. On appeal, a Division Bench of the High Court of West Pakistan reversed the decision and held that the pre-emption suit was competent, As the other issues in the case had been found In favour of the plaintiff-pre-emptor, the suit was decreed on condition that the plaintiff deposited. Rs. 20,000 the sale price, in the trial Court, within one month from the date of the order of the High Court, failing which the suit was to stand dismissed. Mian Muhammad Shafi, for the appellants, mentioned that he intended to raise the point that an oral sale was prohibited in the Bahawalpur territory, but that in view of the decision of this Court in the case of Abdul Karim v. Fazal Muhammad Shah (PLD 1967 SC 411), he was not in a position to press it. The contention, therefore, to which he has confined the appeal, is that the land in suit was not subject to pre-emption because of a notification issued by the Bahawalpur Government. The learned Counsel invited our attention to the notification printed at page 66 of the record. This was issued by the Govern ment of Bahawalpur on the 15th of June 1944. It declared that the lands of the State which were included in Colony area and to which the Punjab Colonization of Lands Act, 1912 had been applied, or would be applied, would be exempt from pre-emption. By a notification dated the 13th May 1924 the Punjab Colonization of Lands Act, 1912 was apparently applied to the State of Bahawalpur with certain adaptation which are not material for our purpose. Learned Counsel maintained before us that the letter of the Revenue Minister, Bahawalpur, to the Colonization Officer, appearing at pages 69 and 70 of the record and dated the 7th November 1934 has to be read with the notification of 1944 and according to learned Counsel, the two documents taken together would establish that the lands in suit were included in the Colony area and the Act of 1912 applied to them. The contention, in our opinion, is clearly untenable. The letter dated the 7th November 1934 from the Revenue Minister, merely accorded approval to the transfer of areas marked in certain blue-printed plans as Chaks Nos. 1 to 21, from the Mushir Mal's control to that of the Colonization Officer. The latter officer was henceforth to be incharge of the revenue administration of all lands, including proprietary lands in the areas in question. This letter cannot be construed as a notification applying the 1912 Act, to the lands in suit, which, it may be conceded, formed part of Chaks Nos. 1 to 21 mentioned in the letter. A notification under the Act of 1912 by virtue of section 4 thereof, has necessarily to issue in the Government Gazette, and is applicable solely to lands which belonged to Government at the date of the notification. The land which is the subject-matter of the suit herein, is obviously privately owned lands, as was made clear in the plaint. There was not specific plea taken in the written statement that this was State-owned land. All that was urged, was that the area having been included in the Colony area, would also become amenable to the notification issued under the Act of 1912. This is not an argument which we can accept. By the letter of the 7th November 1934 proprietary lands may also have been given into the control of the Colonization Officer, as an administrative Measure. But that fact alone would not make them subject to the provisions of the Colonization of Lands Act, 1912. For that purpose, a notification had to issue under the Act and the notifica tion must be confined, in the face of section 4 of the Act, to State-owned lands only. The letter cannot be treated as a notification. Consequently it must be held that there was no notification under the Act, applying to these lands and these being, privately owned lands, could not in fact be the subject of such a notification. The mere circumstance that they were located in an' area known as the Colony area, would not bring them within the purview of the notification, exempting certain lands from pre-emption. The decision of the High Court was, therefore, plainly right and no ground appears for interference with that order by this Court. The appeal is dismissed with costs. Appeal dismissed.