SYED JAMSHED ALI, J.--The order dated 30.8.2003, of the D.C.O., Lahore, refusing to authenticate declaration in favour of the appellants for publication of Daily newspaper "Mashriq" from Lahore, has been assailed in this appeal.
2. Initially the aforesaid newspaper was being public published by Daily (Mashriq Pvt.) Ltd. Since 19.6.1963 when it was taken over by the National Press Trust in 1968. On 21.2.1972, it was taken over by the Federal Govt, under Martial Law Order No.35. The case of the appellants is that till 1994, they have respectively been the Chief Editor and the Chief Reporter of the aforesaid newspaper, In 1994, the aforesaid newspaper was privatized. All assets of the said newspaper including the machinery in the Provinces of Balochistan, Sindh and N.W.F.P, have already been sold by the Privatization Commission. On 24.5.1995, Mr. Raees Ahmad Qureshi, appellant No.2, applied to the District Magistrate, Lahore for the grant of the declaration (Page 189 of the original record). A joint application by the to appellants addressed to the Prime Minister of Pakistan dated nil is also on the record (Page 309). The said application (of appellant No.2) was rejected vide order dated 24.1.2000, against which W.P.No. 18455-1997, was filed which was dismissed on 14.10.1998. The appellants, however, succeeded in I.C.A.No.1084-1998, which was decided on 17.8.1999 whereby the case was remanded to the learned District Magistrate. The declaration was, however, refused vide order dated 24.1.2000 by the District Magistrate and vide his order dated 10.2.2000, it was held that authentication of the declaration in favour of the National Press Trust was null and void. This order, was however, withdrawn on 28.2.2000. The said orders were challenged by the appellants through W.P.No.4618-2000, which was dismissed by this Court on 20.11.2000. Against which C.P.L.A No. 89-L- 2001 was filed before the Honourable Supreme Court of Pakistan which was disposed of vide order dated 19.7.2001, with the following observation:- "Since the Trust (NPT) is out of arena, the District Magistrate, Lahore is directed to take into consideration all the facts and circumstances of the case and decide the question of grant of declaration in accordance with law."
3. Before the application made by the appellant No.2 under West Pakistan Ordinance XXX of 1963, was finally disposed of, the Press, Newspapers, News Agencies and Books Registration Ordinance (XCVII) 2002 was promulgated on 26.10.2002, which repealed West Pakistan Ordinance XXX of 1963.
On 6.11.2002, appellant No. 2, again made an application to the D.C.O, on the basis of the aforesaid order of the Honourable Supreme Court of Pakistan.
4. The said application was dismissed vide order dated 30.8.2003, of the D.C.O., solely on the ground that the Daily "Mashriq" was being published from Karachi and Quetta and Section 10(2)(b) of Ordinance XCVIII, operated as bar to grant the said application.
5. It may also be noted that C.M.No.647-C-2004, was moved by the National Press Trust for being impleaded as respondent to this appeal. The contention in the said application is that the newspaper is owned by the National Press Trust and in view of Section 10(2)(b) of Ordinance XCVIII, declaration in favour of appellant No.2, could not be granted unless authorized by the National Press Trust. Notice was directed on the said application and it was ordered to be heard along with the main case. The learned counsel for the applicant however, did not enter appearance after 11.10.2004. ''
6. Mr. Abid Hassan Minto, Advocate, the learned counsel for the appellants contends that the D.C.O., in refusing authentication of the declaration assumed that the provision of Section 10(2) were mandatory although on a plain reading of the aforesaid provision it was directory, In support of the submission, Section 2(2) of Ordinance XXX of 1963, was relied upon. His next contention was that since the newspaper was being published from Quetta and Karachi, the provisions of Section 10(2)
(b) could not, in the circumstances, be pressed against the appellants, It was next contended that according to Section 10(4), of Act XVCIII of 2002, if the D.C.O, fails to authenticate a declaration or pass an order under sub-section(2) of Section 10, within a period of thirty days, the declaration made, shall be deemed to have been authenticated on the expiry of the said period. The precise contention of the learned counsel for the appellants is that the declaration made on 24.5.1995, will be deemed to have been made under Ordinance XCVIII of 2002 by virtue of Section 45 of the said Ordinance and the period of thirty days for the purpose of Section 10(4) should have been computed from the dated of promulgation of Ordinance 2002 on 26.10.2002. Therefore, by virtue of the operation of the deeming clause the declaration submitted by the appellant No.2, stood authenticated, It is contended that the said provision was altogether omitted from consideration by the D.C.O.
7. Kh. Muhammad Afzal, Advocate represents the respondents. His contention is that the authentication of the declaration was indiscretion 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 would ipso facto become applicable even if the conditions requisite for the valid declaration are satisfied, his contention was that the question was 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 XCVIII of 2002 and West Pakistan Ordinance XXX of 1963., Ordinance XCVIII of2002.
Section 10. Authentication of the declaration.-(1) Subject to the provisions of sub-sections (2) and
(3) each of the duplicate originals of ever declaration made and subscribed under Section 6 shall be authenticated by the signature and official seal of the District Co-ordination Officer before whom the said declaration is made.
(2) The district Co-ordination 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 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 publisher or another edition of the same newspaper published from another place;
(c) XXXXXXX
(d) xxxxxxxx
(3) xxxxxxx
(4) In case the District Co-ordination Officer fails to authenticate a declaration under sub-section
(1) or pass an order under sub-section (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 period.
West Pakistan Ordinance XXX of 1963: Section. 12(1). Authentication of the declaration. Subject to the provisions of sub-section (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 of 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) XXXXXXX
(a) xxxxxxxxx
(b) xxxxxxx
(c) XXXXXXX
10. A provision of law expressed in the negative terms 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 law the legislature is presumed to know the existing state of law. According to Section 12(2) of West Pakistan 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 from 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 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 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 "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 fulfills 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. The contention of the learned counsel based on Section 10(4) of Ordinance 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.2, shall be deemed to be pending to be decided afresh in accordance with law. No order as to costs.