1. CH, RAHIM DAD KHAN, J.--This second appeal by defendant-vendee, arises out of a suit for pre- emption, in which a pre-emption decree was passed in favour of plaintiff-pre-emptor by the Court of first instance on 30-11-63, subject to the payment of Rs, 9,516. The sale took place in year 1959.
2. The first appellate Court by its order dated 16-10-1964 confirmed the decree of the trial Court but increased the amount to Rs, 12,367 on payment of which the pre-emptor was held entitled to exercise his right of prior purchase.
3. The Azad Government issued the Notification No, 1332-60/ SL/64 (hereinafter to be called the Notification) on 15-10-1964 which was published in Extraordinary Gazette issued on 17-10-1964. In this Notification the Azad Government of the State of Jammu and Kashmir was pleased to declare that "no right of prior purchase shall exist with respect to any sale of land, including the built-up property in Azad Kashmir Territory outside the Mangla Dam affected area, in favour of displaced persons affected by the construction of Mangla Dam, certified to be so affected by the Commissioner, Mangla Dam". Consequently in the second appeal the vendee-appellant also agitated before this Court that the Notification subsequently issued had taken away the right of the pre-emptor, therefore, he was non-suited. He also moved an application for permission to amend his pleadings in view of the changed law. The permission for amendment was granted and a further issue was framed to the effect: "Are the vendees displaced persons affected by the construction of Mangla Dam within the meaning of this Notification No, 1332-60/SL/64 and what is its effect on the present suit ?"
4. The trial Court to whom the file was sent for recording evidence submitted its report through the District Judge to the effect that there does not exist the right of prior purchase against the vendee who was affected by the construction of Mangla Dam.
5. As there were two divergent rulings of this Court on the point of applicability of the Notification, the case was referred to Full Bench for decision. The questions that arise in this case relate to the applicability of the Notification and interpretation of certain words and phrases used in the Notification, The question regarding the applicability may be formulated as follows :-
1. (a) What is the effect of the Notification on pre-emption suit in respect of post Notification sales in favour of displaced persons affected by Mangla Dam ?
6. (b)Whether the Notification is fatal to pre-existing suits in which no decree has been passed by the trial Court ?
7. (c)Whether the Notification is also fatal to pre-existing suits in which a decree has been passed in favour of a pre-emptor ?
8. (d)Whether the principle that is applicable to a pre-existing decree in favour of pre-emptor would also apply to a suit which had been dismissed and an appeal is pending when Notification is issued ?
9. II. While interpreting the Notification it is to be ascertained: (a)What is expressly meant by the words 'displaced persons' affected by the Mangla Dam ; (b)What the Certificate that is to be issued by the Commissioner, Mangla Dam should expressly declare; and (c)Whether a Certificate issued by Commissioner, Mangla Dam can be challenged by person feeling aggrieved.
10. We have the advantage of studying the judgment prepared by our learned brother Mr. Justice M. Y.
11. Saraf for delivering. We would decide questions Nos, 1(a), 1(b) & 1(c) that the Notification is fatal to all pre-emption suits whether pre-existing at the time of Notification or brought after the issue of Notification in respect of sales of land or built-up property in favour of displaced persons affected by construction of Mangla Dam, except where the right of prior purchase had been incorporated in a decree in favour of a pre-emptor, generally for the reasons given in that judgment, as we were in agreement on these points at the time of discussion.
12. The position, of a case, of a pre-emptor that had been dis-missed by the trial Court and the Government issued Notification while the appeal was pending taking away the right of prior purchase is different. Our learned brother Mr. Justice M. Y. Saraf has left the point undecided after referring to AIR 1924 All. 448, wherein it is laid down that a Court of appeal is not competent to take into consideration any fact happening after the date of the decree and if a pre-emptor is entitled to succeed, even though his right of prior purchase is not embodied in a decree, provided he had subsisting right on that date and a decree ought to have been passed in his favour. The point is not directly involved in the instant case but since all the members of Mirpur Bar were invited to address arguments in this case and there may be many pending cases of the nature stated above, in which the point might be directly involved, as such it would not be proper to leave the matter undecided particularly when the arguments were addressed by members of the Bar on the point.
13. This point came up for determination before this Court in Sahib Din v. Fazal Dad . The facts of that case were that the pre-emption suit filed by Sahib Din was dismissed by the trial Court on 30-12- 1963 on the ground of waiver. An appeal was filed before the District Judge on 24-1-1964. During the pendency of the appeal, the Azad Government of the State of J & K, on 23-1-65, issued a Notification extinguishing the right of prior purchase in respect of sale of immovable property within 11 miles radius of old College Building at Rawalakot. The District Judge dismissed the appeal in view of the Notification but at the same time reversed the finding of the trial Court on the point of waiver. The Division Bench held: "The right of pre-emption is effective only if this right is exercised and merges in a decree of the1 Court but if this right is not exercised or the right is not incorporated in the decree of the Court, the right cannot be enforced and has no effect. The plaintiff-preemptor may possess a superior right than the vendee but if he had waived his right before the institution of the suit he cannot enforce his right and his claim shall not be decreed."
14. It was further laid down at page 13 of that judgment that : "No decree having been passed in favour of the plaintiff-pre-emptor by the trial Court, the lower Court should have stayed its hand after the publication of the Government Notification No, 155.92/SL, dated 23-1-1965 and should have dismissed the plaintiff's suit forthwith."
15. In this judgment, entitled Rani Manraj Kuer v. Lala Basant Rai was also referred to with approval.
16. The facts of Rani Manraj Kuer v. Lala Basant Rai were that :--Rani Manraj Kuer pre-empted the sale of eight annas share in a village Kulanda sold by Ramanug Bhan Baksh Singh in favour of Lala Basant Rai. The trial Court dismissed the suit holding that the sale was not of property but of a law suit. Plaintiff-pre-emptor preferred an appeal. After the dismissal of the suit pre-emptor lost the right of pre-emption on account of a gift deed executed by her transferring her entire interest in the `taluqd of which pre-empted property formed a part. The appeal was resisted on the ground that though the appellant-pre-emptor had the right of pre-emption at the time of the sale she had also the right at the time of the decree but as her suit was dismissed and after dismissal of the suit she had lost the right, therefore, she was not entitled to a decree. The learned Judges relied on AIR 1918 Oudh 309 where it was said : "If lie (the plaintiff in a suit for pre-emption) loses that right after the sale or for eclosure or at any time after the institution of the suit and before a decree for pre-emption can be passed in his favour he is put out of Court and no relief can be granted to him."
17. They also referred AIR 1932 P C 57 where it is laid down : "When a sale has taken place to a stranger the vendee's acquisition by gift of a share in the village, pending a co-sharer's suit for pre-emption instituted before the passing of the Agra Pre-emption Act, 1922, defeats that co-sharer's claim for pre-emption. The decisive date as regards the rights of the co-sharer to pre-empt is the date of the decree."
18. The learned Judges of the Oudh Chief Court also applied this very principle to appeal and said : "This is the very principle on which we think the plaintiff-appellant can no longer prosecute the present appeal since she lost her right before a decree could be passed in her favour in this appeal. The principle that the validity of a claim for pre-emption must be judged on the fact existing on the date when a decree has to be passed on which a suit for pre-emption was thrown out by Allahabad High Court on the ground of the vendee becoming a co-sharer subsequently to the sale in question but prior to the date of decree, was considered by their Lordships of the Judicial Committee in Hans Raj v. Ragu Prashad and the view of the High Court was upheld."
19. They further held : "We are, therefore, of opinion that since the plaintiff-appellant had already lost his right of pre- emption owing to the gift on October 5, 1936, no decree can be passed in her favour. We, therefore, uphold the preliminary objection and dismiss the appeal with costs."
20. In PLD 1961 SC 69 at page 75 it has been said: "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 cases of the second type, of which Kaju Mal v.2 Soling Rain 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 to) narrowly in their anxiety to save vested rights. The words of the notification appear to us to be plain and to be faifly 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 recognized 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-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."
21. In this view of the matter, with utmost deference for the learned Judges, we cannot subscribe to the view expressed in AIR 1924 All. 448. For the reason that in case of a successful pre-emptor it can be said, as it has been held in PLD 1967 Azad J& K 7 and PLD 1961 SC 69 and a number of other cases, that he is defending his decree in which his right of pre-emption has been merged but to a pre emptor, whose suit is dismissed by a Court of first instance, this argument, is not available.
22. He has yet to assert and establish a right that had been taken away by Notification. In such an eventuality he is non-suited. With the loss of a right of the pre-emption he loses the right to prosecute and carry on his appeal. There does not exist a right of pre-emption in favour of the appellant when the Court is called upon to adjudicate this point. The effect would be that the pre- emption right of the plaintiff would be deemed to have never existed. In Muhammad Anwar Ahmad v. Monwara Khatun S. M.Murshed, C. J. observed : "Obviously, the duty of the Court is to apply the law which is existing at that time when the Court is called upon to adjudicate this point."
23. In a case of unsuccessful pre-emptor whose suit has been dismissed and a Notification taking away the right of prior purchase is issued while an appeal is pending, the appellate Court is not legally qualified, in our opinion, to adjudicate upon the point whether a pre-emption decree ought to have been passed in such a suit by the trial Court or not because the right so claimed, after the issue of the Notification, is extinguished and is no more in existence at that time. For that reason it was held in Sahib Din v. Fazal Dad that "right being no more effective cannot be enforced. The lower appellate Court should have stayed its hand after the publication of the Government Notification".
24. We, therefore, respectfully agreeing with the view expressed in Sahib Din v. Fazal Dad and PLD 1961 SC 69 hold that the Notification is also fatal to those cases where the suit of the pre-emptor is dismissed and the Notification taking away the right of the pre-emption is issued while an appeal is pending.
25. Now we proceed to determine the question of the interpretation of the words and phrases of the Notification. In fact the difference of opinion at the time of discussion was on these points. In our opinion the right way of interpreting any rule of law, or for the matter of that any Notification or document is to read it as a whole and give the words used, the natural meaning and if the meaning of the statute or Notification be clear, to give effect to it. It is not permissible, in the absence of any condition to the contrary to introduce inference and deduction from external circumstances, for example the disinclination of the person interested to part with the land acquired, should not be allowed to influence the interpretation of unambiguous language of the Notification or inconvenience or to meet the unquenchable craze of the interested person for a lot3 of privileges and amenities at the cost of those who have done no harm to them ; even after receiving adequate compensation for every inch of land acquired for the purpose of the construction of Mangla Dam and alternative allotments of fertile land in Punjab and Sind.
26. At page 4 of his Book (11th Edition), Maxwell says : "When the language is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise. It is not allowable, says Vattel, to interpret what has no need of interpretation such language best declares, without more, the intention of the law-giver, and is decisive of it. The rule of construction is 'to intend the Legislature to have meant what they have actually expressed. It matters not, in such a case, what the consequences may be, where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the Legislature, it must be enforced, even though it be absurd or mischievous. The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be entertained by the Court as to what is just and expedient."
27. Similarly their Lordships of the Privy Council in Mt. Ramanandi Kuer v. Mt. Kalawati Kuer , observed: -- "It has often been pointed out by this Board that where there is a positive enactment of the Indian Legislature the proper course is to examine the language of that Statute and to ascertain its proper meaning, uninfluenced by any consideration derived from the previous state of the law--or of the English Law upon which it may be founded."
28. At page 99 of the same volume there is another case namely : `Firm Chhunna Mal Rain Nath v. Firm Mool Chard Ram Bhagat' wherein their Lordships of the Privy Council interpreting section 63 of the Indian Contract Act laid down that it should be interpreted as it stood, uninfluenced by anything outside the section. Again Maxwell while discussing how far a probable intention of Legislature can be invoked, at page 19 of his book, says : "At the same time the language of the statute must not be strained to make it apply to a case which does not legitimately on its term, apply by invoking consideration of the supposed intention of the Legislature."
29. In the light of these guiding principles we have to examine the language of the Notification in some details.
30. In this Notification the Azad Government of the State of Jammu and Kashmir was pleased to declare ; that the right of prior purchase shall not exist i. e. it would not be available; in regard to such sales that are in favour of displaced persons. The word 'displaced person' is further modified by a qualifying clause immediately following this word i. e. 'affected by the construction of Mangla Dam', which is very significant. The qualifying clause limits the category of displaced persons only to those who become displaced persons by construction of Mangla Dam, and it excludes those who became displaced persons on account of War of Liberation or its aftermath or any other reason. It then lays down the authority which is Commissioner, Mangla Dam who can declare that a certain vendee is so affected. After obtaining this Certificate from Commissioner, Mangla Dam affairs a vendee can resist the suit of a pre-emptor on the basis of the Notification.
31. Three expressions in this Notification are very important: (1)"displaced person" ; (2)"affected by construction of Mangla Dam" ; and (3)"certified to be so affected by the Commissioner, Mangla Dam".
32. Now let us consider what is expressly laid down in the Notification in the part quoted above. There is no reason to assume that the Notification was issued for the benefit of all those persons who were affected by construction of Mangla Dam or to enlarge the scope of the words 'displaced persons' so as to include all the affected persons. The construction of Mangla Dam completely over-turned4 the composure of the people, not only of those residing in the area submerged in the Dam but also of those living on the periphery of the Dam in the north and the north-west. All roads leading to their district H. Q. and marketing place--namely Mirpur are submerged in water. These people have been deprived of the right of way over roads they had been using from time immemorial, and have to cover longer distances for reaching their Tehsil and District H. Q. For instance Dadyal which was 12 miles from Old Mirpur is now some 40 miles from New Mirpur where District H. Q. has been established. The distance between Kotli and Mirpur has also been lengthened by 30 miles. Thus it would appear that those; who were not directly interested in the land acquired, they too have been affected in one or other way. By no cannon of inter-pretation the scope and the meaning of the term 'displaced person' can be enlarged to include such persons, who though can be called affected but had not been deprived of their habitual place of residence or immovable property.
33. There is another class of affected persons who have not been removed from their habitual place of residence but have been deprived of their immovable property. They are those who were residing outside the Mangla Dam affected area or were already settled in other part of the State of Punjab but had some property in the area now submerged in Mangla Dam. Whether such people are covered by the term 'displaced person' or not is to be decided after ascertaining the meaning of the word 'displaced person'.
34. The word 'displaced person' has not been defined in the Notification or Right of Prior Purchase Act under which this Notification had been issued by the Azad Government of the State of Jammu and Kashmir. Mr. A. K. Ansari, the learned Advocate for the appellant, argued that since the word 'displaced person' has not been defined in the Act we should look into the enactment other than the Notification ; for instance, Pakistan Rehabilitation Act and Registration of the Claims (Displaced Persons) Act. It is not possible for us to accede to his request, for the reason that every Act has a particular object in view and the definitions are provided for the purpose of shortening the words to be used in the Act and for the purpose of avoiding repetition. Unless, therefore, there be, two Acts that might have been enacted for the same object in view, it would not only be futile but also risky to read one enactment by the definition given in the other. The Notification issued under section 6
(2) of the Right of Prior Purchase Act cannot be for the same object or purpose for which Pakistan Rehabilitation Act or Registration of Claims (Displaced Persons) Act was enacted. In this view of the matter we do not feel called upon to discuss the ruling of Lahore High Court cited at the Bar by Mr. Ansari which ascribes certain meaning to the word 'displaced person' in certain other enactments.
35. As the word is not expressly defined in the Right of Prior Purchase Act or in the Notification so only popular and natural meaning ought to be assumed to them. In a D. B. case of Dacca High Court reported as PLD 1968 Dacca 874 at page 878 Siddiky, C. J. observed : "We do not disagree with the learned Advocate that the law is mainly for the benefit of the employee and, if possible, it should be given the widest construction so that the employee's case may not be jeopardised. But the question is how far can we go in construing a legislation. A Court can go so far to construe a piece of legislation as is permissible within the ambit of it, that is, to give effect to the intention of the Legislature where such an intention is couched in ambiguous language. But where the language used in the legislation is clear and unambiguous and the wordings therein do not call for any interpretation, it is the duty of the Court to interpret the legislation and/or to construe it after giving the ordinary dictionary meaning to the words used therein."
36. Now let us see what is the dictionary meaning of the word `displaced person'. Readers' Digest Great Encyclopedic Dictionary, 1st Edition at page 256, 1st Volume gives the meaning of `displaced person' as: "One belonging to racial or other minority who has been obliged to leave his native country and settle elsewhere; orig. civilian deported from a Germany occupied country to Germany during the War of 1939-45 for forced labour."
37. Shorter Oxford Dictionary has given the meaning in addenda and corrigenda which is: "One who has been removed from his native or home land by military force or civil pressure: 1946."
38. Webster's New International Dictionary Second Edition has defined the word 'displaced person' as: "Person expelled, deported or compelled to flee from his country or nationality or habitual residence by force of War of their aftermath." `Displaced persons' in the context, in our opinion, could mean only those persons who have been expelled or removed from their habitual place of residence ; or obliged to leave their habitual place of residence, as a consequence of the construction of the Mangla Dam.
39. Whether the scope of the word 'displaced person' can be enlarged so as to include those persons who have not been removed from their habitual place of residence as a consequence of construction of Mangla Dam, we are of the opinion that it would be wrong to enlarge the scope of the word to such persons who are still living at their habitual place of residence, even though their immovable property has been partially acquired for the construction of Mangla Dam, for the simple reason that such persons cannot be held to be displaced persons. They, of course, have been deprived of some of their property and are interested persons but they have not been compelled to leave their habitual place of residence. The immovable property of which they have been deprived was acquired by the Government after paying adequate compensation and it cannot be gathered from the language used in the Notification that the Government intended to deprive a pre-emptor from his right of prior purchase in case of the sale in favour of such people who are not obliged to leave their habitual place of residence. Otherwise, if the object was, to extend the benefit of this Notification to all those persons whose property was acquired for the construction of Mangla Dam irrespective of the fact whether they had to leave their habitual place of residence or not, or they were already residing elsewhere then the phraseology would have been sufficiently clear to express that intention of the executive. In that case the Legislature could easily say that the benefit of this Notification would extend to all the vendees whose land or other built-up property is to be acquired or has been acquired for the construction of Mangla Dam. In other words had it been the intention of the Legislature to eclipse the right of the pre-emptors in all cases of sale in favour of all persons whose property, large or small, has been acquired or was to be acquired without their becoming displaced persons then the use of the term 'displaced person' affected by construction of Mangla Dam was unnecessary. That object could be achieved by taking away the right of prior purchase in case of sale in favour of all the persons whose property small or large had been acquired. Obviously, the executive knew that it was depriving the citizens of their statutory rights, therefore, it restricted the benefits of the Notification to 'displaced person' and not all the "interested persons". In other words the language of the statute cannot be strained to make it apply to those people who were already settled elsewhere or who had not been removed from their residence but have been deprived of some immovable property, by invoking, supposed intention of the Legislature.
40. There is no dispute as to the authority that can certify that certain persons fall within the category of the specified class of the affected persons. Commissioner, Mangla Dam obviously has been authorised to issue a Certificate but the question arises : (a)What the certificate should contain ?
41. (b)Whether the initial presumption of correctness of the contents of the certificate can be challenged by the aggrieved party?
42. No particular form has been prescribed under the Notification. The material portion of the Notification reads: "to be so certified by the Commissioner, Mangla Dam."
43. This shows that Commissioner, Mangla Dam had been authorised to issue a certificate declaring a person to be so affected. The word 'so' has many meanings. Webster's New International Dictionary defines the word 'so' when used as thus : used as a prefix to mean in the aforesaid manner or in accordance with the aforesaid ; as, the so-formed, crystle. Aforesaid manner in the Notification as discussed above is that the affected person must be a displaced person. Consequently the certificate must specify two things, (a) that the incumbent is a displaced person (b) he is affected by the construction of Mangla Dam. If the certificate does not disclose that the person is a displaced person affected by the construction of Mangla Dam and only states that he is affected by the construction of Mangla Dam that would not be sufficient to non-suit a pre-emptor on the basis of this Notification.
44. A certificate issued by the Commissioner, Mangla Dam Affairs raises an initial presumption of correctness of its contents but the accuracy of the recital can be questioned in a civil Court because such certificate is issued without hearing the other party. A party being affected by mischief of such an ex parte order has a right to challenge its accuracy and the civil Court, when such a situation arises, must provide an opportunity for rebuttal.
45. In the case in hand the right of the pre-emptor was already incorporated in a decree of the trial Court which was maintained by first appellate Court when the Notification was issued. He is defending the decree passed in his favour, therefore, the Notification is not fatal to the present suit of the pre-emptor as has been held above.
46. The appeal is therefore dismissed. Parties shall bear their own costs.
47. MUHAMMAD YUSUF SARAF, J.--This is defendants-vendees' second appeal against a decree passed against them originally by the Sub-Judge, Mirpur in a pre-emption suit. Important legal points being involved and conflicting decisions of this Court being in existence on one of these points it was referred to a Full Bench for decision.
48. On 30-11-1963, Sub-Judge, Mirpur passed a pre-emption decree in favour of Maqbool Khan on payment of a sum of Rs, 9,516 which was deposited in time. The vendee went in appeal to the District Judge on the question of price which the latter vide his judgment dated 16th of October 1964, raised by Rs, 2,484. It is against this judgment and decree that the vendee has now come in second appeal.
49. The only questions agitated before this Court are the applicability and interpretation of the Notification issued by the Government under section 6 of the Right of Prior Purchase Act as enforce in Azad Kashmir.
50. On the 6th of June 1957, the Government issued a Notification under section 4 of the Land Acquisition Act declaring its intention to acquire a very large area in the Tehsil of Mirpur for the purposes of the construction of Mangla Dam. As the area, except for small localities immediately needed by the contractor or for the construction of New Mirpur Town was not required before the middle of 1966 when the lake was to take shape, and also on account of the enormous scale of acquisition, the process of acquisition was rather slow and it was not before 1962 or so that people had to come face to face with the problem of their resettlement. A great majority of them were instinctively reluctant to settle in West Pakistan on account of their human urge to be nearer their near and dear ones, unaffected by the Darn and also because they quite naturally preferred their centuries-old familiar surroundings to the dread of the unknown. They, therefore, began purchasing immovable properties in their own district. In the process, they experienced set backs on account of the Right of Prior Purchase Act and frustration at the pursuit of pre-emptors. Finding themselves thus badly entrapped between the devil of Pre-emption Act and the deep sea which the lake was forming, they naturally made frantic representations to the Government which having brought the deep sea itself, was good enough to provide protection against the onslaught of the Prior Purchase Act. It was under these circumstances that the following Notification was issued by the Government on the 15th of October 1964 and published in the Gazette on the 15th of October : "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 exist 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 displaced person affected by the construction of Mangla Dam certified to be so affected by the Commissioner, Mangla Dam Affairs."
51. The Government then issued another Notification on the 7th of April 1966 which is as follows :- "Whereas under Government Order No, 1332-60/SL/64 dated 15th October 1964,it had been declared under section 6 (2) of the Jammu and Kashmir Right of Prior Purchase Act that no right of prior purchase shall exist with respect to sale of land, including built-up property, in Azad Kashmir Territory outside the Mangla affected area, in favour of a displaced person affected by the construction of Mangla Darn, certified to be so affected by the Commissioner, Mangla Dam Affairs ; And whereas the said Notification also applies to sales effected before the date of the issue of the said Notification.
52. And whereas certain doubts have been expressed with regard to the applicability of the said Notification to sales effected before the date of issue of said Notification.
53. Now, therefore, in exercise of the powers vested in it under section 6 (2) of the Jammu and Kashmir Right of Prior Purchase Act and in continuation of Government Order No, 1332-60/SL/64 dated 15th October 1964 the Azad Government of the State of Jammu and Kashmir is pleased to declare that the said Notification shall also apply to sales effected before the date of issue of Government Order No, 1332-60/SL/64 dated 15th October 1964."
54. That the Government can under section 6 exempt sales that may have taken place even before the issuance of the Notification from the operation of the Pre-emption Act has not been disputed before us. The question was directly raised in AIR 1948 E Pb. 14 wherein it was held that the section clearly contemplated the promulgation of a Notification in respect of sales that had already been completed. This ruling was quoted with approval by the Supreme Court in PLD 1961 SC 69.
55. The next question to be considered is, as to whether the Notification in the present case is retrospective in the sense that it affects even sales that had taken place before it was issued. There is no absolute rule against the retrospectively of a statute. Under the General Clauses Act, we start with a presumption that a statute is not retrospective which however stands displaced if either the statute expressly says that it is retrospective or if from the language of the statute or from what has been termed as the "dominant intention of its framers", such an effect can be clearly inferred. To quote Maxwell.
56. "Upon the presumption that the Legislature does not intend what is unjust, rests the leaning against giving certain statutes a retrospective operation. (page 215).
57. If however the language or the dominant intention of the enactment so demands, the act must be considered to have a retrospective operation for the rule against retrospective effect of statute is not a rigid or inflexible rule but is one to be applied always in the light of the language of the statute and the subject-matter with which the statute is dealing. (page 216).
58. If the necessary intendment of a statute is to affect the rights of parties to pending actions, the Court must give effect to the intention of the Legislature and apply the law as it stands at the time of the judgment even though there is no express reference to pending actions. (p. 224)."
59. Lord Reid held in the Sunshine Porcelain Potteries Ltd. v. Nash as quoted by Maxwell at page 225:- "The rule against retrospective operation is a presumption only and as such it may be overcome not only by express words in the Act but also by circumstances sufficiently strong to displace it."
60. In this connection Maxwell has quoted the two following cases:-- In one of them entitled Barber v. Pigden , the question was as to whether section 3 of the Law Reforms (Married Women and Tort-feasor's) Act of 1935 abolishing the vicarious liability of a5 6 husband for his wife's contracts and torts was retrospective. Scott, L. J. ruled it to be retrospective because "its dominant intention was clear".
61. The other case cited is (194i) 2 K B 89. In this case retrospective effect was given even in a case of penal statute. Says the learned author : "A provision increasing penalties for contravention of Defence (Finance) Regulation, 1939 was held applicable to all convictions after the new provision came into force even though they were for offences completed before."
62. The question as to whether a Notification exempting the application of the Pre-emption Act also affects sales that had been already completed has been directly before the Courts in the following cases :- The first of them is Bishen Singh v. Ganda Singh . In this case while the suit in question was still pending in the trial Court, the Lt.-Governor issued a Notification directing that "no right of pre- emption shall exist in such area". The argument at the bar, of course, was that as the Notification had no retrospective effect, it did not affect pending suits. The argument was rejected and the D. B. consisting of Reid, C. J. and Rattigan, J. held :- "Under the terms of the Notification and the section under which it was framed, the right of pre- emption, now in suits, ceased, in our opinion, to exist immediately on the publication of the Notification and was consequently not in existence on the 2nd February 1911, the date of dismissal of the suit by the Court below although it was in existence in July 1910, when the suit was instituted."
63. The next case is 130 P R 1916=AIR 1917 Lah.
135. The facts here are different. The Notification was issued after the trial Court had decreed the suit. It was, therefore, held that the position of a pre- emptor who had already secured a decree before the issuance of Notification, had to be distinguished from a pre-emptor whose suit was still pending in the trial Court. It was however stated by way of obiter dicta, that had his suit been dismissed and had an appeal been pending against such dismissal, the Notification may perhaps have taken away his right of preemption.
64. Thus, far from dissenting from the earlier ruling as incorrectly appears to have been, assumed in 91 P R 1919, it is in agreement with the same in so far as the facts of the said earlier ruling are concerned.
65. The next case is 91 P R 1919=AIR 1919 Lah, 222 (2). In this case the ruling Bishen Singh v. Ganda Singh was dissented from. No case-law has been discussed. The discussion of the point is extremely brief.
66. This is what their Lordships said : "The ruling was to the effect that a Notification modifying Law of Pre-emption published after the date of the sale on which the right of pre-emption accrued, annihilated that right. 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 provides us the principle that in the absence of a provision to the contrary a Notification has a retroactivity."
67. In this case the property in question had been sold in 1912. The suit was brought on the 1st of October 1912 and the trial Court, the senior Civil Judge delivered his judgment on the 26th of February 1915. The Notification in question was issued on the 6th of March 1916. It is thus a case where at the time of the issuance of the Notification a decree had already been passed in favour of the pre-emption by the Court of first instance. Thus it does not really conflict with the decision in Bishen Singh v. Ganda Singh and in any case the ruling is in the nature of an obiter dicta with regard to cases where the Notification may have been issued before the decision of the case in the Court of the first instance.
68. The next case is I L R 3 Lah. 267=AIR 1922 Lah. 344. In this case two sales had taken place on the 11th of October 1916. Two suits were filed on the 10th of October 1917. On the 6th of May 1918, a Notification was issued by the Government which said :- "From the date of this Notification no right of pre-emption shall exist in respect of agricultural land7 and village immovable property."
69. The suits were still pending in the trial Court. They were dismissed on the basis of the Notification.
70. On appeal to the High Court, the judgments were set aside and Bishen Singh's case was dissented from. It was held :- "The statute did not require him to preserve his right free from interference beyond his control up to the date of decree in his suit and we do not think that the Court trying suit was obliged to insist upon such preservation of the right. In the present case we concede that the meaning of the Government Notification must be taken to be what is stated in plain words. But as indicated already we do not believe that it was framed with the intention that it should have greater effect than a repealing Act or for the purpose of causing the dismissal of all pending suits to enforce pre- existing rights of pre-emption and of rendering futile the expenditure of time and money incurred by the plaintiff who started with a sound cause of action."
71. Looking at the wording of the particular Notification it can be said that sales which had already taken place were expressly protected from the operation of the said Notification. There was no such wording in Bishen Singh's case and the two authorities are as such clearly distinguishable at least from this point of view. The ruling does, however, clearly dissent from the generally-held view that a pre-emptor must have a subsisting right of pre-emption even on the date of the decree in the first Court.
72. The same view was taken in A 1 R 1939 Lah. 517. In this case the sale took place by public auction on 31-3-1936 while the Notification was issued on the 14th of August 1936. The Notification stated that : "No right of pre-emption shall exist with respect to any land or property that may be sold by public auction under the orders of the Court of Award."
73. The learned Judge, who decided the case, held. "It appears, I think, that the wording of the Notification clearly refers to future sales. It was not intended to refer to past sales nor can it be considered as having that effect. The plaintiff's right, therefore, subsists at the date of the suit and the date of the decree."
74. The next case is from East Punjab already referred to above. In this case, as it appears from the Supreme Court judgment, the Notification had been issued as in the instant case while a suit was still pending in the Court of first instance and the same, it appears, was rightly held to have been dismissed. The ruling was not available here.
75. All these cases came up for reconsideration before the Supreme Court in PLD 1961 SC 69. This case has to be distinguished from all other cases including the instant one on the following points : --
(i) The Notification was expressly retrospective.
(a) Section 16 of the N.-W. F. P. Pre-emption Act expressly laid down that "no decree for pre- emption shall be passed in favour of any person unless he has a subsisting right of pre-emption at the time of the decree.
76. The express provision in the N.-W. F. P. Act that the pre-emptor must have a subsisting right of pre- emption even on the date of decree in the first Court does not make any difference because this Act was enforced in 1950 by which time it had been held in various cases that the pre-emptor must have a subsisting right of pre-emption on this material date and it seems that the Legislature by incorporating it in the section has given it statutory recognition in the Frontier Province. It was held : "The real difficulty arises in cases of the second type, of which Kaju Mal v. Salig Ram AIR 1919 Lah.
77. 222 and Mohinder Singh v. Arur Singh AIR 1922 Lah. 344 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 pertaining to sales that had already taken place or to those which were to be held here-after. The only exception that could be recognized 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 cases of such an existing decree, it could not be said that the pre-emption was seeking to enforce his right to pre-empt. The right had already been successfully asserted before the date of the Notification. But it 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 Notification."
78. The question came up for consideration in two cases before this Court, namely, an unreported case captioned `Abdullah v. Fateh Begum and others' decided on 15-6-1965 by a learned Single Judge and PLD 1967 Azad J & K 7. The first case related to interpretation of the Notification under discussion in the present case and the second one related to the interpretation of a similar Notification which had exempted sales in Rawalakot Town from the operation of the Prior Purchase Act. In both these rulings, the Notifications were interpreted to have been retrospective in so far as from the date of their issuance no decree for pre-emption could be awarded which meant that even pending suits in the Courts of first instance stood affected by the Notifications even though the sales may have taken place or even the suits may have been instituted before the Notifications were issued. The rulings are conflicting no doubt but on a different point which I shall be taking up at the appropriate stage.
79. Even if a Notification of this type was not or was interpreted not to have been retrospective, pending suits in the Court of first instance are, unless otherwise provided expressly or impliedly by the Notification itself, liable to be dismissed on another ground; namely the disappearance of the right of pre-emption on the date of the decree by the first Court. It proceeds from the view that a pre-emptor in order to succeed must prove the existence of his right of pre-emption on three material dates, namely, the date of sale, the date of institution of the suit and the date of decree in the Court of first instance. It appears that Bishan Singh's case was decided in the light of the same principle because the learned Judges have said that although the right existed when the suit was instituted, it had ceased to exist on the date of its dismissal. Why a pre-emptor should continue to have a subsisting right of pre-emption even on the date of the decision in the trial Court has been elaborately given by Din Mohammad, J. in a D. B. case reported as AIR 1935 Lah. 529. His Lordship stated :- "It cannot be disputed that the actual acquisition by a pre-emptor is made not at the time when the property is sold to another nor at the time when the suit is instituted but at the time when the decree is made. The preferential right that a person possesses at the time of the sale and retains till the institution of suit merely entitles him to move the Court in his favour but in order to succeed he must retain his position up to the time of obtaining the decree. It is no doubt true that in ordinary parlance pre-emption means a right of first refusal and refers to the time when the sale takes place but a Court of law is to take into consideration the legal significance of the term and not its popular meaning."
80. The same view was taken in AIR 1924 All. 82 and 448 ; AIR 1933 Lah. 481 and AIR 1938 Lah. 242.
81. These Khan rulings show that even if a pre-emptor had a right of pre-emption on the date of the sale, as well as on the date of the institution yusuf Saraf, of the suit but had somehow lost it before the decision of j the case in the trial Court, however hard his case might be and howsoever deep the sympathy that he may evoke, lie cannot be granted a decree for pre-emption. It was laid down by Sulaiman, J. in the D. B. case reported as AIR 1924 All. 448 :- "It is well-settled law that a plaintiff-pre-emptor in order to be able to maintain a suit for pre- emption must establish his right to pre-empt on three important dates. He must have a right of pre-emption at the time when the sale took place otherwise he would have no cause of action at all. He must also have the same right at the time when the suit was brought or else he would have no locus standi to sue. A possible view to take might have been that nothing which happens after the institution of a suit can alter the position of the parties. But it has been held in a number of cases by this Court that it is incumbent on the plaintiff to prove that his right to pre-empt continues up to the date when the decree ought to have been passed in his favour namely, the date on which the case was disposed of by the first Court."
82. In Murli Mian v. Ambrca Singh the learned Judges accepted the principle that a person who enforces his right of pre-emption must establish his right not only before he instituted his suit but also at the time when the peree had been given in his favour.
83. It has thus been found that the general trend of authorities is in favour of the proposition that Notifications issued under section 8 (2) of the Punjab Pre-emption Act which correspond to section 6 (2) of our Prior Purchase Act, affects all pre-emption 0 suits pending in the Courts of first instance at the time of issue or those that may be subsequently instituted whether pertaining to sales completed after or before the publication of the Notification.
84. In the instant case the Government through the Notification has given protection to a particular class of citizens namely those affected by the construction of Mangla Dam. It is, therefore, difficult to say in the absence of any express provision to the contrary that the protection was intended not to them as a class but to those amongst them in whose favour sales were effected after the issuance of the Notification. The argument that it intended to discriminate between those who had made purchases before and those who followed, does not get any support from the wording of the Notification. In the absence of any such provision, discrimination between members of the same class, cannot be assumed. In fact presumption is against any such discrimination.
85. The further fact that the Notification contains the words "any sale in favour of a displaced person. without subjecting it to any timing at all, also shows that the dominant intention of the framers was to make it available for use by even those affected persons who had already secured landed property.
86. Some lower Courts had interpreted the October Notification as not being retrospective. The Government therefore came forward with the second Notification issued on 7th April 1966 which has been already reproduced elsewhere. This Notification is important on two counts, namely (i) it states categorically that the dominant intention of the Government in issuing the earlier Notification was not only to protect the sales that were to follow but also those that had preceded the Notification, and (ii) the second Notification is in the nature of a declaratory statute which are deemed to have a retrospective effect. Declaratory law according to Webster's Dictionary, means a declaration showing what the existing law is. According to Maxwell :- "If a statute is in its nature a declaratory Act, the argument that it is not to be interpreted so as to take away previously vested rights, is inapplicable."
87. In PLD 1963 Kar. 363 accused were convicted by Special Judge, Karachi under section 165-A, Penal Code read with section 5(2) of the P. C. Act. The offences had been committed at Hyderabad. The case was first argued in the High Court on 5-11-1962 when the question was raised that the trial Judge had no jurisdiction to try offences committed at Hyderabad, as no Notification under section 4 of the Criminal Law Amendment Act of 1958 had been issued to that effect. The case could not be concluded on that date and when it was taken up again in December, the Government had already on 20-11-1962 issued another Notification appointing the said officer as Special Judge for Hyderabad and stating that he should be deemed to have been possessed of such jurisdiction from 22-8-1961, the day when he took over.
88. The learned Judge held that it was in the nature of a declaratory statute which had a retrospective8 effect. It was held : "This Notification of 20-11.1962 appears to me to be in the nature of a Declaratory Notification intended for the same purpose and meant to perform the same service as an Explanatory or Declaratory Act. Craies in his book of Statute Law, 5th Edition at page 56 and again at page 364 has dealt with Declaratory and Explanatory Acts and with the purpose that such Acts are meant to serve. Such a purpose often is to remove existing doubts and to set aside a judicial error whether in the statement of the common law or in the interpretation of statutes. The same principles which apply to the interpretation of statutes or Acts also apply to the interpretation of rules and notifications. In dealing with the appointment of a Special Judge we are entirely in the realm of notifications; the appointment is made in the first instance by a notification and, therefore, any correction can also be only made by a notification."
89. Besides, such measures, I believe, are to be liberally interpreted in favour of the class of people in whose cause and for whose benefit it has been issued.
90. Therefore, I hold that the Notification of 15th October 1964, is retrospective in its application and takes away the right of pre-emption in connection with any sale that has been affected in favour of a Mangla Dam affected person. Even otherwise since a pre-emptor must have a subsisting right of pre-emption up to the date of the decree in the first Court, the issuance of the Notification on the 15th of October 1964 has taken away the right of pre-emption of all those people whose suits had not been decided by the trial Court till then or who had not till then brought their suits for pre- emption and in all other cases where sales sought to be pre-empted took place after the issuance of this Notification.
91. The next point to be considered is as to whether it would affect even the decrees that had been already passed in favour of the pre-emptors before the Notification was published on the 17th of October 1964 ? We have two rulings of this Court on the point, namely, Abdullah v. Fateh Begum decided on 15-6-1965 and PLD 1967 Azad J & K 7. In the first case, the decree had been passed by the Sub-Judge before the Notification was issued. The learned Single Judge was of the view that the Notification had even nullified the decree already passed in favour of pre-emptors and the proposition of law was conceded by the counsel for the non-applicant. However, the case actually was not finally decided and was remanded to the trial Court for deciding, after evidence, as to whether the vendee was or was not a Mangla Dam affected person within the meaning of the Notification. The case has not since come back to this Court. In the next case, a contrary view was taken which is that it does not affect the rights of a pre-emptor if a decree had already been passed in his favour. The earlier ruling was not brought to the notice of the D. B. which decided the later case. However, the decision of the D. B. that it did not affect a pre-emptor who has already secured a decree in his favour is merely by way of obiter dicta because in that case no decree for pre-emption had been passed in favour of the pre-emptor. What happened was that his suit had been dismissed as the trial Court found that he had waived his rights of prior purchase. It was after dismissal of the suit that the Government issued a Notification that no right of prior purchase shall exist with regard to sales in the town of Rawalakot. The D. B. held that as no decree had been passed in favour of the pre-emptor by the time the Notification had been issued, it was a complete answer to his suit and the right having been taken away, no decree could now be passed in his favour. In view of the unanimous opinion of all Court as discussed above, I hold that in eases where the pre-emptor had already secured a favourable decree from the Court of first instance before the 17th of October 1964, the Notifications issued by the Government would not affect his rights under the decree. To that extent the Notification was ineffective and inoperative. The ruling `Abdullah v. Fateh Begum' is, therefore, overruled.
92. This brings us to yet another important question, namely ; as to whether the same consequences would follow if, for some reason or other, the pre-emption suit has been dismissed by the trial Court and Notification taking away the right was subsequently issued while his appeal was pending as happened in the Rawalakot case.
93. The only ruling among those cited in the judgment which does positively support the view taken by my learned brothers is 171 I C 891. This ruling was not available here at Muzaffarabad. On the other hand there is a D. B. ruling from Allahabad reported as AIR 1924 All. 448 wherein Sulaiman, J. who wrote the judgment, relying upon four other cases held that even if the plaintiff's suit was dismissed by the first Court and the plaintiff-appellant lost his right pending appeal, he was still entitled to a decree if otherwise entitled to it because in his Lordship's opinion "It matters little whether the Court of first instance did actually dismiss or decree his suit. The date of that Court's decree is the date on which, if the plaintiff's contention is correct, the decree ought to have been passed in his favour . . ."
94. In this case which was not unfortunately brought to the notice of the D. B. the Court of first instance had dismissed the suit. The District Judge on appeal granted a decree. The vendee in second appeal pleaded that the pre-emptor had lost the right of pre-emption before the decision of appeal by the District Judge and therefore he could not now get a decree. The argument was rejected.
95. The question therefore requires extensive examination before one or the other view is adopted. As, however, this aspect of the Rawalakot ruling is not before this Bench, it is unnecessary for me to do so. I, therefore, refrain from giving any opinion on this particular question.
96. Now coming to the interpretation of the term 'displaced person' it appears that the Notification was unhappily perhaps hastily drafted because the words of the Notification "in favour of a displaced person affected by the construction of Mangla Dam" would mean that the person seeking the benefit of this Notification must not only be a displaced person but must also be one affected by the construction of Mangla Dam. It looks absurd because while every person affected by the construction of Mangla Dam may not be a displaced person so as to benefit from the Notification but there is no doubt at all that every person displaced by Mangla Dam is an affected person for that purpose. However it is clear that the Government did not want to give the benefit of this Notification to all affected persons but only to those amongst them who were also displaced ; otherwise almost every one living in the district could rightly claim that he too was affected by the construction of Mangla Dam; say, for instance, because the road he had been using had been submerged or the distance that stood between him and his place of business or interest had been enlarged so on and so forth.
97. Unfortunately the word 'displaced person' is not defined in the Notification. According to Webster's International Dictionary, the word `place' has been derived from the Latin word 'platea' meaning an area, street or courtyard.
98. The word 'displaced' has, therefore, been defined by Webster as "To change the place of, to remove from the usual or proper place, to put out of place, to take the place of, to crowd out ; to remove from state, office, dignity or the like ; to dislodge, to drive away, banish." In the Shorter Oxford Dictionary it has been defined as :-- "To shift from its place, to be out of its proper or usual place, to remove from a position, dignity or office, to oust from a place and occupy it instead."
99. The Readers' Digest Dictionary defines the word `displaced' as :- "Shift from its place ; remove from office, oust, take the place of ; replace."
100. Displaced person has been defined by this Dictionary expressly as :- "One belonging to racial or other minority who has been obliged to leave his native country and settle elsewhere. Origin ; civilians deported from a German occupied country to Germany during the War of 1939-45 for forced labour."
101. The word 'displaced person' is not even defined in the General Clauses Act. It is, however, defined in some Acts in Pakistan and India dealing with refugees. In Pakistan the term has been defined in section 2 (6) of the Administration of Evacuee Property Act, 1957 as follows :- "'Displaced person' means a person who having been ordinarily resident in any place in the territories now comprising India, or in any area occupied by India, has on account of the setting up of the dominions of Pakistan and India, or on account of civil disturbances or the fear of such disturbances taken refuge in Pakistan."
102. It has also been defined in section 2 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as follows :-- " 'Displaced person' means any person who, on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances or the fear of such disturbances in any area now forming part of or occupied by India, has, on or after the first day of March 1947, left or been displaced from his place of residence in such area and has subsequently become a citizen of Pakistan, or is residing therein; and includes any person who, being a resident of any territory outside India, is for that reason unable to manage, supervise or control any property belonging to him in India or in any area occupied by India, and also includes the successors-in-interest of any such person."
103. In India the term has been defined in section 2 (10) of the Displaced Persons Debt Adjustment Act of 1951 and in section 2 (d) of the Rehabilitation Finance Administration Act of 1948. The definition is the same and is as follows :- "Displaced person means any person who, on account of the setting up of the Dominions of India and Pakistan, or on account of civil disturbance or the fear of such disturbances in any area now forming part of West Pakistan, has, after the 1st day of March 1947, left or been displaced from, his place of residence in such area and who has been subsequently residing in India, and includes any person who is resident in any place now forming part of India and who for that reason is unable or has been rendered unable to manage, supervise or control any immovable property belonging to him in West Pakistan, but does not include a banking company." I have given these definitions from the Dictionaries and various Acts so as to facilitate the determination of the meaning of the term as used in the Notification. It will thus be seen that in both the countries the term not only includes those who were residents of the respective dominions before the 1st March 1947, but also those who may have been residents of the areas where they now live but who had left "any property" in the other country and were unable, due to the setting up of the two countries, to manage, supervise or control such property. The word 'property' has not been defined in any of these Acts. It may even mean movable property but for purpose of this Act it must be immovable property which has been defined in the General Clauses Act in the following words : "Immovable property shall include land benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth."
104. It may be noted that the definition is not restrictive but very wide.
105. It was argued from the appellant's side that the term should, therefore, receive the meaning that it carries in ordinary parlance which meant, according to them, that, howsoever insignificant the size of immovable property acquired by the Government the person entitled to its compensation was a displaced person for the purposes of the Notification. On the other hand it was urged by the lawyers appearing from the respondent's side that the term should receive a restricted meaning and should be confined only to those who were totally uprooted from their homes and lands which means a person whose immovable property must have been acquired in its entirety by the Government for the construction of Mangla Dam.
106. For the following reasons I reject the contention of the respondents and accept the plea taken on behalf of the appellants.
107. The argument of the respondents is actually borne out of a mental notion developed during the last 22 years by the association of the word with the incoming refugees from India as well as Occupied Kashmir. Since they have in various acts and Government orders in the sub-continent been described as displaced persons, and the lawyers and Judges have been used to it for so long the result is that on the very mention of the term "displaced person" their minds effortlessly begin to picture the refugees from India. This situation has led to an erroneous and out of the content definition being drafted to the term. This, of course, would be an incorrect approach unwarranted by the rules of interpretation which lay down that if an expression is used in two enactments, meaning of one should not be given to it in the other enactment. Reference may be made to PLD 1957 Lah. 882. It was held in PLD 1960 Dacca 747 that words should be considered in their context and not in vaccuo.
108. It is settled law that words undefined in a statute carry their ordinary dictionary meaning. No 'artistic' meaning has to be attached to them. In this connection reference may be made v to PLD 1966 Lah. 632, PLD 1969 Lah. 12, PLD 1970 Lah. 140, PLD 1970 Pesh. 31, PLD 1970 SC 185, PLD 1970 Dacca 350 and PLD 1970 Quetta 9.
109. Another important rule of interpreting a statute is that it should be so interpreted as to advance the object of the Legislature. Now, it goes without saying that the Notification was issued to protect the Dam affected people from the operation of the Preemption Act. Keeping this in view let us visualize the following three situations :-
(1) A's entire agricultural land is taken away but not the house where he lives as it is situate just outside the acquisition limits.
110. (ii)A has both agricultural land and a house but only his house and a part of agricultural land is affected by the construction of Mangla Dam.
111. (iii)Again in the case of (ii) illustration, the culturable part has been acquired but the b2njer part being outside the Dam limits, has been left out.
112. If the interpretation offered by the respondents is accepted, it would mean that while the person with no land at all but only having a house can benefit under the Notification and purchase as much land as he can, the poor agriculturist whose entire land has been taken away by the Government but for whose house the World Bank could not provide money or because of the same reasons part of his land could not be acquired, as it was outside the Dam affected area and I may say that there are hundreds of such examples, cannot purchase even a marla of land without the sword of the Pre-emption Act hanging over his head.
113. I have not the least doubt in my mind that the Government could have never intended that a person who has been left without any source of income at the place and who is in dire need of alternate land should be deprived of its benefit. I have no doubt that to interpret the term that way would defeat the dominant intention that the Notification clearly unfolds.
114. After all the unhappy situation created for a man covered by the above illustrations is not a creation of his own. He remains all the time a helpless citizen whose property is being taken away for the greater good of the country against his freewill because if his will had to prevail he may, after all, perhaps prefer to retain his property even if the world Bank were really generous in paying the compensation. I am reminded of a Kashmiri proverb "Tsari chehu kande thare peth karar" meaning that a bird feels bliss on the live branch of a bush even if it is thorny. It is not his fault that his whole property is not being acquired because it happens to be situate on both sides of the lake's boundary. It is not he but the State which is exercising the prerogative of pick and chose. I don't know how such a person can be deprived of the benefit of the Notification not because the framers have expressly said so, not even because the dominant intention could be to deprive him of the same but because the term 'displaced person' can also be interpreted in terms of total banishment. That would be a sadistic approach. Let the approach be utilitarian rather than totalitarian.
115. There is a Latin maxim: Judex habere debet duos sales, Salem sapientix, ne sit insipidus, et salem conscientix, ne sit diabolus. It is perhaps an institute of Justinian which means that a Judge should have two salts; the salt of wisdom, lest he be insipid ; and the salt of conscience, lest he be devilish.
116. Frankly speaking, the interpretation put on the term by the respondents' lawyers does not appeal to my conscience and as the term has not been defined by the Notification, it must receive its ordinary dictionary meaning consistent with the objectives of the said Notification.
117. It would, therefore, be wrong to borrow the definition of the term from other acts, which have been enacted under circumstances absolutely different from those that brought the present Notification.
118. To treat them for purposes of definition at the level of the poor Jewish minority liquidated as a community by Nazi Militarism as the "Nazi solution" of the so-called "Jewish problem" or to treat them for this purpose on the level of refugees in the sub-continent would be going too far away and giving it a meaning that must have been never intended by the framers of the Notification.
119. The term, therefore, in my- opinion, has to be given the ordinary dictionary meaning which is to oust a man from a place belonging to him; I have used the word 'oust' because the word displaced' conveys a sense of involunt arinessand the displacement under the Land Acquisition Act is certainly involuntary on the part of the person whose property is acquired. Therefore, in my view, any person whose immovable property, regardless of its size has been acquired for purposes of the construction of Mangla Dam, is a displaced person within the meaning of the Notification. The only "unreasonable consequences" pointed out at the bar which may flow from this interpretation is that even a person whose one sarsai of land only may have been acquired for the purpose would also be able to benefit from Notification. Such a result is immaterial because it is not the function of the Court to make law reasonable; and what is reasonable in the matter, is after all, a matter of opinion which is generally never unanimous.
120. Again, this definition alone leads to the advancement of the object it aims at and prevents the Notification from being reduced to absurdities.
121. Besides, if any one has the good luck of doing the protective cover of the Notification even though his home or substantial part of his property may not have been acquired by the Government, I think it is to his good luck and the Courts should neither display nor entertain anxiety about it; that would be uncourt-like ; one may envy him but it is within nobody's right to deprive these fortunate few from also taking benefit of the said Notification. If by giving the term an interpretation that actually advances and fulfils the objective of the Government though at the same time some such people who may not have been wholly uprooted are also able to benefit, that is no reason why such an intepretation should not be adopted, and why such an interpretation should be adopted which would not only deprive them but also some such people as given in the illustrations above whom the Government could have never intended to exclude from the benefits of the Notifications, because a restricted meaning sought to be given to prevent such persons from taking benefit of the Notification, actually, as seen above, tends to create absurd situations and defeat the very intention of the Government. To approach the question of the interpretation of such statutes from a negative angle as to who should not be allowed to benefit instead of doing so from the positive angle as to who may so benefit, is to say the least, a novel approach, unworthy of the Courts of Justice.
122. It was also argued that by giving the restricted meaning to the term we would also protect the rights of those Dam affected people whose suits for pre-emption are hit by this Notification.
123. Unfortunately, as it is, that would be for the Courts to assume a function which does not belong to their domain. The Notification is not meant for the benefit of preemptors but only for the benefit of the vendees; it does not and for that matter cannot differentiate between a Mangla Dam affected pre-emptor and a non-Mangla Dam affected pre-emptor; to approach the Notification from such an angle would be for us to exceed our functions. If the Government had intended to make this distinction it would have done so when the first Notification was issued or even during the last six years.
124. 'The next question to be considered is the wording of the certificate that the Commissioner, Mangla Dam is empowered under the Notification to issue, the words of the Notification may again be usefully repeated: "In favour of a displaced person affected by the construction of Mangla Dam certified to be so affected by the Commissioner, Mangla Dam Affairs. The question is whether this certificate of the Commissioner should necessarily contain the words 'displaced person'? or it is enough if it says that he is a Mangla Dam affected person. In my opinion it is not necessary that the certificate should contain a certificate of his being a displaced person and it is enough if it says that he is a Man& Dam affected person. The reasons are as follows: (i)As both under the Notification as well as for its purposes only those persons are affected by Mangla Dam who have been displaced by the said construction, the certicate that they are Mangla Dam affected persons itself means that they are persons who have been displaced on account of its construction. It is, therefore, merely a question of form and not one of substance.
125. (ii)If the Government had intended that the certificate should necessarily contain both the terms 'displaced person' as well as being affected by the construction of Mangla Dam then the language of the Notification would have been not what it is but as follows : "In favour of a displaced person affected by the const-ruction of Mangla Dam so certified (or certified to be so) by the Commissioner, Mangla Dam Affairs."
126. The Commissioner, Mangla Dam is empowered to issue certificates not only for purposes of this Notification but also for enabling such a person to purchase land in West Pakistan or to seek exemption from the operation of Pre-emption Act over there which concession was available for three years. In all these categories as the specimen forms on the record and the evidence of Agha Ashiq Hussain, the then Commissioner, Mangla Dam and Mr. Anwar, clerk of the said office shows, the certificate was issued only in favour of those whose immovable property had been or was being acquired. In some of them even the size of such property finds mention. Therefore, it is clear that it is only a question of form and not one of substance and does not affect the merits of the case. Just as a certificate granted to a person found not entitled to it is not binning on a civil Court and does not take away the right of a pre-emptor to get a decree, similarly any 'defect in the form of the certificate, if at all it were treated defective, does not take away the right of a vendee to benefit from the Notification. At the most, he can be put to initial proof of being covered by the Notification.
127. The Commissioner is, of course, bound to satisfy himself before issuing the certificate about the concerned person being displaced on account of the construction of Mangla Dam but he has no statutory obligation to write down these words in the certificate.
128. The next question to be considered is as to whether the civil Court is forbidden from looking into an allegation in course of a pre-emption suit or otherwise challenging genuineness of the certificate.
129. While a certificate issued by the Commissioner is prima facie sufficient to raise a presumption in favour of its holder i,e, he is a person displaced on account of the construction of Mangla Dam, the presumption is rebuttable and if some one alleges fraud in the issuance of the certificate or collusion and claims that the holder in fact is not a displaced person within the meaning of the Notification, it is the duty of the civil Court to go into the question and decide the same. As the certificate has been issued by a competent authority, the effect would be that the burden of proving that it runs counter to facts would lie on the person challenging such a certificate.
130. The result is that although the vendee in this case is a displaced person within the meaning of the Notification in view of the certificate issued by the Commissioner that be is a Mangla Dam affected person, his appeal must fail because the Notification was published long after the pre-emptor had secured a decree in his favour from the Court of first instance. In view, however, of the important questions of law and interpretation involved in the case, we leave the parties to bear their own costs throughout. PLD 1967 Azad J& K 7 171 I C 891 PLD 1968 Dacca 453 AIR 1928 P C 2 1961 A C 927 (1937) 1 K B 664 10 P R 1913=5 P L R 1913 1917 44 Cal. 47 =34 I C 869