1983 PLP 1912 (CLC)

in this part of the State litigant public engage lawyers in Court premises and deliver the brief on the last leg of limitation. In the circumstances, lawyers generally depend on the drafting of petition writers and. submit matter in Court, even without having a look at it. Others, who are better part of the noble profession, draft the pleadings in hurry, without applying mind to vital legal aspect of the cases. This is -also because of _ their pre-occupation in cases fixed for hearing in that hour of the day. Disorganised and ill planned system of practice, occasionally results in omissions and failure to pje i ta' points of facts and. law. This has generally impaired and i ct v, h r the expeditious dispensation of justice. The other aspect of the which of course is not in the present case, is that a counsel may abandon or give up an important point due to collusion and connivance with the opposite party or for any other ulterior motive. In such .like situations ,t it is an equal duty of Courts to protect the.rigtits of illiterate, ignorant and; laymen and not to allow a wrong to perpetuate. An identical situation arose in Muhammad Yasin s case (1) wherein an objection was raised that issues abandoned in first appeal before the District Judge could not be re-opened in the High Court. On examining the pleadings and. evidence of the parties, it was held that issues in question -were abandoned due io inaptitude 'Of the counsel or lack of his grasp over the case. It was further held that where a concession was erroneously shown by a counsel on a question of law, it would not bind his client to raise such a point of law again at the appellate stage. The relevant part of the observation is reproduced below "A pleader's general powers in the conduct of a suit, no doubt includes powers to abandon an issue which in his discretion he thinks inadvis able to press and his client is bound by such action as a situation can arise in which an Advocate may consider proper in the general interest of his client not to press a point but there is one exception to it and that is where concession is erroneously shown by an Advocate on a matter of question of law it does not bind his client and the matter may be raised again at the appellate stage."

5. This Court has consistently adhered to the view that a point which is not averred in the pleadings or raised at the stage of trial and before the first appellate Court or the High Court ; such a point ordinarily cannot be allowed to be raised for the first time in the Supreme Court. For settin B up of a new case or raising a point of fact or law for the first time in this Court would obviously mean to take the opposite party by surprise. There fore, case is always taken to avoid such a situation in order to eliminate re-, motest chances of prejudice and injustice. In support of the view reference may be made to Muhammad Lal's case (2) wherein in an identical preposi tion, it was held that "A party who does not raise a point at the trial stage or before the first appellate Court or the High Court cannot be allowed to raise such point for the first time before the Supreme Court at the time of arguments."

6. But there is one exception to the aforesaid rule and it is that when a question of law raised for the first time in this Court, is of public impor tance or relates to the interpretation of Constitution and it is closely allied to C the question of law already under consideration, such a point is generall allowed to be raised in order to resolve the legal controversy in true lega perspective. This Court settled such a proposition in Faqir Ali's case (3). In that case the High Court granted certificate for filing an appeal in the Supreme Court to determine the question of payment of interest on bank's loan in the light of interpretation of Article 31 (5) of the Interim Constitu tion Act, 1974. During the arguments the learned counsel for the appellant sought permission to support his plea by reference to section 48 of the Courts and Laws Code Act, 1949. This was strongly objected to by the opposite counsel, but permission 'was allowed as the question raised involved public importance and interprel"ation of the Constitution. The finding on the re levant point is reproduced as under "Normally we do not allow a point to be agitated if it is not covered by the certificate granted by the High Court; a fortiori, when it is not taken even in the memorandum of appeal. But if a question raised is of public importance or involves interpretation of Constitution we arc not debarred from allowing it to be argued. In the instant appeal before us the question precisely is whether under the aforementioned laws of the land the banks operating in Azad Kashmir can charge and claim interest on the loan advanced to a debtor especially when he has contracted to pay the prevalent bank interest 7 This, in our view, is a key legal point affecting the vital interest of the public and banking business in Azad Kashmir and as such we are allowing it to be raised and argued before us even though section 48 of the Courts and Laws Code, 1949 is neither mentioned in the memorandum of appeal nor in the fitness certificate granted by the High Court."

7. In the instant case, the point sought to be challenged is not alto gether a new point. It was explicitly raised in the pleading. Air issue was framed to that effect and decision was also recorded by the trial Court. We are persuaded to accept that it escaped attention of the counsel in the Court of District Judge and again' in the High Court due to his inexperience, inaptitude or negligence or lack of his grasp over the case. The fact remains that appellant is not shown to contribute in any manner to abandon the issue in the lower appellate Court and the High Court. Be it as it may, we do not feel advised to punish the appellant for the fault of his counsel. This is more so because the point reagitated before us purely confines to interpretation of the Notifications, applicable to the case.

8. Now we proceed on to examine the issue in the light of inter pretation of the relevant Notifications and the validity of the finding of the trial Court. Before we take up the main objection of the learned counsel for the appellant, we would like to reiterate, in short, the back ground of the promulgation of the relevant notifications. Mangla Dam which is spread over an area of hundred square miles, included in it populated areas of about. hundred villages including Dadyal Town and Mirpur city, the old District Headquarter. The Government was faced with a colossal problem of rehabilitation of large population. In one estimation it was a record biggest population's migration, after the migra tion of refugees at the time of the war of liberation of 1947, in the State of Jammu and Kashmir. Government of Pakistan arranged alternate lands for the displaced persons in Punjab and parts of Sind Provinces, but they felt compelled by centuries old attachment with the land, people, customs and local environment and were unwilling to migrate to Punjab and Sind. Some of them did depart but many stayed behind and started purchasing lands and built-up property outside the Mangla Dam reservoirs limits. But soon they felt the pinch of the law of pre-emption and their alternate rehabilitation became difficult. Consequently the Government, being under a heavy obligation to provide proper alternate rehabilitation, felt advised to exempt the sales made in favour of the Mangla Dam affected and displaced persons from the operation of the right of pre emption in Azad Jammu and Kashmir. Consequently the first legislation was made in October, 1964 and a notification under section 6 (2) of the Jammu and Kashmir Right of Prior Purchase Act, 1993 Bk. as adapted in Azad Jammu and Kashmir was promulgated, on 15th October, 1964. It is reproduced below "In exercise of the powers vested in it under section 6 (2) of the Jammu and Kashmir Right of Prior Purchase Act, the Azad Government of the State of Jammu and Kashmir is pleased to declare that no right of prior purchase shall exit with respect to any sale of land, including built-up property, in Azad Kashmir Territory outside the Mangla Dam affected area, in favour of a dis placed person by the construction of Mangla Dam, certified to be so affected by the Commissioner Mangla Dam Affairs."

9. This raised a controversy relating to the retrospective effect of the notification and its effect on pending matters in the trial and appellate Courts. In order to resolve the controversy relating to its retrospectivity, Government issued another notification, on 7th April, 1966. This notification was in the nature of declaration and explanation of the scope of the previous notification. The Government through another notification, dated 17th January, 1972 modified the first notification and restricted the suspension of pre-emption right to the size and scale of the property, actually acquired for the construction of Mangla Dam. In supersession of both earlier notifications, Government promulgated yet another notification on 18tb November, 1972. By this notification the scope of exemption from pre-emption was further reduced retrospectively to the sales made before 31st July, 1972. Last two notifications, being relevant to the proposition under consideration, are reproduced below (Notification dated 17th January, 1972). "In partial modification of Government Order No. 1332-60/SL/64, dated October 15, 1964 the Azad Government of the State of Jammu and Kashmir is pleased to declare that no- right of prior purchase shall exist with respect to any sale of land including built-up property in Azad Kashmir Territory outside Mangla Dam affected area against a person who bas lost any share of the landed property regardless of its size subject to the condition that this experimentation of right shall prevail only to the extent of that much landed property as was actually acquired by the Government for the cons truction of Mangla Dam." (Notification dated 18th November, 1972). "In supersession of Government Orders No 1332-60/SL/64, dated 15th October; 1964 and No. 146-49/SL/72, dated 17th January', 1972 and in exercise of the powers vested in it under section 6 (2) of the Jammu and Kashmir Right of Prior Purchase Act, 1993 (Bikrami) the Azad Government of the State of Jammu and Kashmir is pleased to declare and to notify that no right of prior purchase shall exist with respect to any sale of land made before 31st July, 1972 in Azad Jammu and Kashmir Territory outside Mangla Dam affected area, in favour of a person whose land - has been acquired in connection with construction of Mangla Dam, certified to be acquired by the Mangla Dam Affairs."

10. A close study of the notifications suggests that notification; dated 17th January, 1972 imposed restriction on the exemption from pre-emption, to the extent of size of the property actually acquired by the Govern ment whereas the subsequent notification issued on 18th November, 1972 further curtailed the scope of the exemption and redesigned its limit to the sales made before 31st of July, 1972. This notification was repealing and retroactive ill stature.

11. The main objection raised by the learned counsel for the appellant is that notification promulgated by the executive authority being a subordinate legislation the excutive was not competent to make retros pective legislation, nor such a legislation can be construed its retroactive. According to the learned counsel, the second notification shall be deemed to have come in force with effect from the date of its promulgation and not with retrospective effect. On this premises, it was further pointed out that the pre-emptory right of the plaintiff not being in existence on the date of sale, i.e., 7th September, 1972 his suit was not maintainable. This was so, as in pre-emption suit it was necessary in order to succeed, to show that right of pre-emption existed on the date of sale, the date of in stitu tion of suit and the date of decree. Reference was made to Fazal Ahmad v. Ziaullah Khan P L D 1964 S ,C 494, Collector of Central Excise and Land Customs v. Azizuddin Industries Ltd., Chittagong P L D 1970 S C 439 and Muhammad 5uleman v. Abdul Ghani P L D 1978 S C 190. 'A

12. The right of prior purchase is a statutory right. Its life and operation is dependent upon the mandate given by the statute itself. The scheme of the law, as it is reflected by various provisions of the Act, is that at the time of its creation the Legislature by introducing exemption curtailed the sphere of enforcement of this statutory right. These exemptions are (i) permanent and (ii) temporary. The permanent exemptions ate those which are expressly contained in the statute and form its part. Consequently the Legislature while bestowing the right of prior purchase, took it back in the same breath in respect of sale of particular properties situate in certain areas and localities. The relevant exemp tions are contained under sections 5, 7 and 9 of the Act. The transient or temporary exemption was introduced to meet the need of unforeseen urgencies, exigencies or eventualities, likely to arise at any time. In order to deal with such like situation provision was made under section 6 (2) of the Act. Keeping in view the importance of exigencies and need to settle them effectively and efficiently, the power of legislation was delegated to the Government. The Government was authorised to tackle an urgency or eventuality by legislating effectively, efficiently and expeditiously.

13. We have noticed above the categories oft exemptions from the areas of operation and enforcement of the right of prior purchase. In the case of permanent exemption the operation of the right. was extingu ished by the statute itself. But in the other case the right was not obliterated from the statute. It remains on the statute, but its operation is suspended or excluded temporarily. This is called the state suspended animation. And on termination or lapse of time limit the right is restored to play its role effectively. It is resorted sometime automatically and some time through another notification. But this all depends upon the nature and language of the notification through which pre-emptory right is suspended.

14. Section 6 (2) of the Rights of Prior Purchase Act, 1993 Bk. is in pari materia to section g (2) of the Punjab Pre-emption Act and section 7 (2) of the N.-W.F.P. Pre-emption Act. It is reproduced below :- "6. (1)

(2) The Government may declare by notification in the Government Gazette that in any local area or with respect of any property or class of property or with respect to any sale or class of sales no right of prior purchase or only such limited right as the Govern ment may specify shall exist."

15. Delegated or subordinate legislation is generally construed a prospective unless the intention of the Legislature is shown expressly by implication otherwise. But the true test of the scope of authority of subordinate legislation is determined by the statutory mandate behind it Applying the principle to the provisions of section 6 (2) we find that the Government is authorised to declare that no right of prior purchase or only such limited right shall exist among others in respect of any sale or class of sales. The word 'any' is very comprehensive. It includes in its share sales which took place in past, present or which may take place in future. It is quite clear from the language used in the sub-section that Government is empowered to exempt any sale from the operation of the right of pre-emption. The statutory mandate fort retroactive legislation is very much there. The scope of exemption further depends upon the terms contained in notification. Although the subordinate legislation, as a general rule, is always prospective, yet when the intention relating to retrospectivity is clear by expression implication, such an effect cannot be avoided. In Mst. Bibi Jan's case PLD1961SC69 an identical objection was raised with regard to a notification whereby certain area was excluded from the sphere of pre-emption with retros pective effect. The learned Judges adhered to the terms of the notifica tion and upheld its operation with retrospective effect. The observation is reproduced below :- "Held, 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. But 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. It is only when the words of a statute are not plain that the maxim "omnis nova constitio futuris formam imposer debit non-preterits" (which means that except in special cases, t the new law ought to be construed so as to interfere as little as possible with vested rights) would be applied. The words of the Notification No. 4347-L-D, dated 7th November, 1951, are plain and fairly susceptible of the interpretation that with the promulga tion 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 proposition would be in favour of cases in which decrees had already been obtained by the pre-emptors, prior to the notification. In the case of such an existing decree, it could not be said that the 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-emptors 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. The right of pre-emption possessed by the pre-emptor in the case was, therefore, lost on the date the impugned notification was issued and his suit was rightly dismissed by the lower Courts."

16. On promulgation of the first notification, dated 15th October, 1964, its retroactive effect was seriously controverted and consequently Government issued another notification on 7th April, 1966. -Through this notification Government explained its intention and thereby declared that the previous notification was retrospective. Both the notifications received attention of the Full Bench of the High Court in Ghulam Rubani's case PLD1911AzadJ&K68 and afterwards attention of this Court was also invited in Shakur Khan's case PLD1978SC(AJ&K)

129. Full Bench of the High Court and this Court upheld the retrospectivity of the notification in both the cases. No reason has been shown to persuade us to depart from the accepted view of this Court. It is, therefore, held that Government is clothed with the mandate to declare retrospectively (bat no right of prior purchase or only such limited rights shall exist in respect of any sale. The authorities cited by the learned counsel for the appellant are not apt to the proposition.

17. The language and terms of the notification in question are quit clear. Not only that it repeals the earlier notifications, it repeals them retrospectively. Retroactive effect of the notification obviously cannot be avoided. In support of this view we may also quote from `Statutory Construction' by Crawford. At page 564, it is laid down as :-, "But where an intention properly appears that the status was in tended to operate retroactively, such operation must be confine as closely as possible. Still, if the legislative intent clearly require it, complete retroactive effect must be given, and it does not f matter how the statute or its legality is affected. This principle equally applicable where the retroactive effect is required through implication." Again at page 599, while dealing with repealing Act generally, it provided as under :- . Repealing acts, as a general rule operate retroactively, and, in the absence of a legislative intention to the contrary, should not denied that effect. But even a repealing statute must not interfere with vested rights nor impair the obligations of contracts. If any other construction is possible, the act should not be construed as to affect rights which have vested under the old law, or a requiring the abatement of actions instituted for the enforcement of such rights" In view of the aforesaid legal position we are persuaded to hold that the notification in question repeals the earlier notifications retroactively, with effect from 31st July, 1972. As a result, sale of the suit land, which was effected on 7th September, 1972 cannot escape the effete f the operation of the right of prior purchase.

19. The next objection. raised by the learned counsel during the argu ments pertains to failures to deposit the purchase money and costs of sale-deed by the terminal date, fixed by the District Judge. The trial Court passed pre-emption decree in favour of the plaintiff (n the terms that plaintiff shall deposit Rs. 3,000, the purchase money, alongwith costs of sale-deed, calculated as Rs. 110 upto 18th March, 1974 otherwise the suit shall be treated as dismissed. The plaintiff considering the price excessive preferred appeal alongwith an application for suspension of the operation of decree pertaining to the time fixed for the deposit of the amount. The District Judge n his order, dated 14th March suspended the operation of time and directed that the amount shall not be paid till the decision of appeal. He dismissed the appeal on 22nd December, 1975 but passed no order as to the time for payment of the amount. In this situation plaintiff applied to the trial Court, which was also the executing Court, for permis sion to deposit Rs. 2,114 the purchase money and costs. The permission was given on 12th January, 1976 and the amount in the sum of Rs. 2,114 (as reflected from the application placed at page 40 of the trial Court's file) was deposited on 14th January, 1976 i.e. within 23 days from the date of decision of the District Judge.

19. In pre-emption suit, when plaintiff's claim is allowed the terms of such decree are necessarily framed in accordance with the provisions of Order XX, rule I1 of the Code of Civil Procedure. Rule 14 (I) provides that where the Court decrees a claim to pre-emption and the purchase money has not been paid into Court, the decree shall (i) specify a day on or before which the purchase money shall be so paid, and (ii) shall direct that if the purchase money and the costs, if any, are not so paid, the suit shall be dismissed with costs. In the instant case two things are to be kept in mind. Firstly, that the time specified in the original decree was enlarged by the District Judge. It was ordered that the purchase money and costs shall not be paid till the decision of appeal. We will examine the effect of this order later on. Secondly, that the decree of the trial Court contained a direction to the effect that if the purchase money and costs are not paid within the specified time, the suit shall be deemed to have been dismissed. This is just to point out that the trial Court disposed of the suit finally and was not left with any control over it. A result it was not competent on its capacity as the Court of or jurisdiction or executing Court to extend time and give permission for the deposit of the amount. We have already noticed that. the time for the payment of the purchase money, fixed by the original Court, was extended and that the original Court having no seizing over the case was incompetent to allow payment after the expiry of the time fixed.

20. Now we proceed to examine the effect of the order of District Judge through which time for payment was extended. It has been observed earlier that the District Judge on the application of the plaintiff suspen ded the operation of the effect of the time specified for payment in the original decree and ordered that such payment shall not be made till the decision of the appeal. It is also noticed that at the time of decision of the appeal no further direction for payment of the amount was recorded in the judgment. The objection raised by the learned counsel for the appellant precisely was that the terminal date for the payment of pur chase money was the day when appeal was decided. According to him, failure to pay-the money by that date rendered the decree null and void. In our opinion, the objection on the aforesaid ground is not sustainable. Our reasons are :- (i) The time fixed for payment in the original decree was changed and extended till the decision of the appeal. The mandatory requirement of law enjoins upon the Court to specify a day on before which the successful pre-emptor shall pay the purchase money and costs, if any. In his order, dated 14th March, 197 District Judge while suspending the operation of time, specified in the original decree, failed to specify any day on or before which payment was to be made in future. The words -till the decision of the appeal" forming part of the order were no sufficient to represent the intention of the Legislature. Rule 1 (1) (a) contemplates that the decree shall specify 'a day' on before which the purchase money shall be paid. The word a day' mean a particular or specific date. The object of this provision of law seems to make it clear to pre-emptor-decree -holder to have clear direction for making payment by the specifi ed time, so that no pretext was made on tile ground of con fusion or misunderstanding in respect of the time for payment o the purchase money. This provision is obviously in the interest of vendee in order to save him from the ordeal of frivolous litigation. Therefore, the words "till the decision of the appeal" were not sufficient compliance with the mandatory provision law. (ii) The District Judge while dismissed the appeal without variation in the original decree, the operation of time for payment of the purchase money was suspended and enlarged till the decision the appeal. By doing so the District Judge definitely mad modification to that end. In the circumstances, it was necessary for the District Judge to fix a date on or before which purchase money could be paid. Failure to do so tantamount to deviation from the mandatory provision of law. Thus, the judgment and decree passed by the District Judge was not conforming to the value laid down in the Code.

21. In presence of the situation stated above the first course open t the pre-emptor was to move the District Judge for removal of the omis sion by amendment of the judgment and decree under section 152 of the Code of Civil Procedure. In our opinion, failure on the part of the District Judge to pass decree consistent with the statutory provision could only be cured through amendment by adding the necessary direction for payment of the purchase money and the costs of sale deed on or, before specified date.

22. The next opportunity for correction of the omission was avail able when the vendee-appellant took his second appeal to the High Court. On entertaining the second appeal High Court became seized of all the matters arising from the decision of the case, including the time within which the purchase money and costs were to be paid. But both the parties, failed to bring this omission in the notice of the High Court.

23. We have examined the terms of the decree passed by the original M Court and District Judge. We have also explored the legal avenues which were available to the plaintiff, but not utilized by her. It has also been noticed that plaintiff has not contributed to the inadvertence of the District Judge. Therefore, she cannot be made to suffer for the fault omission rendered by the Court. Under the circumstances we are of the opinion that the rule of 'reasonable time' shall have to be applied to the case. This rule primarily enunciates that when the decree which is exe citable fixes no time for the payment of purchase money, the deposit may be made within reasonable time. This view found acceptance in Gvpter Tewari v. Dehl Toran Tewari A I R 1914 All. 248 and Kissan Dewaloo Mall v. Ganga Bai A I R 1933 Nag.

279. The dictum found favourable approval in Shah,Walt's case P L D 1,966 S C 983 from the eminent Judges, Mr. Justice A. R. Cornelius and Mr. Justice Hamood-ur-Rahman. As to what could be the reasonable time can very easily be determined by having a look at the time generally fixed by Courts of the country in identical cases. The time fixed for the deposit of price by the original Court in this case can also be a true test. Apart from this we can take judicial notice that generally minimum time for payment of purchase money in all cases of pre-emption is one month. Therefore, we hold that 'reasonable time' for the payment of price of land is one month from the date of the decree of the District Judge. In this manner the amount which is found to have been paid within one month from the date of decision of the District Judge shall be deemed to be paid within reasonable time.

24. Lastly, it has cone to our notice that the purchase money paid by the decree-holder falls short of the amount determined by the Courts below. It is evident that the price of land was fixed as Rs. 3,

000. The costs of sale-deed are calculated as Rs.

110. The total amount liable to be paid by the decree-holder is Rs. 3,

110. Out of this amount it appears that plaintiff paid Rs. 600 on 18th July, 1973 as 1/5th of the sale price and vide application, dated 12th January, 1976 she paid Rs. 2,

114. Thus, apparently it tells short by Rs.

396. This is quite contradictory to the endorsement dated 14th January, 1976 made on the original decree by the Sub-Judge. In case the amount paid by the decree-holder is proved to for short of the requisite amount, the decree shall be a nullity, But before coming to a final conclusion an inquiry seems to be a must. We are not in a position to hold such an inquiry to find out the true position. It is, therefore, considered proper to leave this question to be determined by the executing Court. The appeal is, therefore, disposed of accordingly. The parties are left to bear their own coats. M. Y. H. Order accordingly.