1. MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court is directed against the judgment dated 2-2-1988 of the Lahore High Court; whereby the appellant/vendee's Civil Revision arising out of a decree for pre-emption passed in respondent's favour was dismissed.
2. The appellant who claims to be an oustee from Islamabad purchased land in dispute and sought exemption against the suit for pre-emption filed by the respondent on the basis of the notification dated 15th June, 1976 issued under section 8(2) of the Punjab Pre-emption Act.
3. "In exercise of the powers conferred by subsection (2) of section 8 of the Punjab Pre-emption Act, 1985 (Punjab Act I of 1913), the Board of Revenue is pleased to declare that in the districts of Compbellpur, Rawalpindi and Jhelum no right of pre-emption shall exist, for a period of two years with respect to the sale of agricultural land not exceeding 12--1/2 acres of canal irrigated area or 50 acres of un-irrigated area and other immovable property not exceeding the market value of Rs.10,000 (Ten thousand only) in favour of a person displaced on account of construction of the capital at Islamabad and certified to be so displaced by the Capital Development Authority Islamabad".
4. The suit was filed by the respondent in March, 1976. The notification, as already said, was issued on 15-6-1976. The exemption was for two years. The learned counsel for the respondent stated that there was no earlier notification on the subject and that there was no subsequent notification extending the period of two years. He, however, candidly stated that a fresh notification was issued in 1982 which would not be relevant here because it had no nexus with the notification issued in 1976. The suit of the respondent was decreed in November, 1981. The appeal was filed in December, 1981. The Civil Revision of the appellant was filed in June 1986 while the same was dismissed in February, 1988. Leave to appeal was granted in order to examine the question raised and noted as follows:----- "The question raised in this petition for leave to appeal is whether the petitioner a vendee- defendant, in pre-emption suit could clamp exemption on the ground that he had been displaced on account of the acquisition of his property for Islamabad Capital and further that it has been so notified by the competent authority.
5. The petitioner's plea has not been accepted and respondent's pre-- emption suit has been decreed on the ground that although his land was acquired by the Capital Development Authority in 1968, his house was acquired in 1979 while the sale in question is of 1975, hence he was not a displaced person in 1975.
6. Learned counsel has contended that the land and houses were acquired by an order passed in 1968 -- compensation for land awarded in 1969 but compensation for houses was awarded in 1979.
7. He has also contended that after the order of acquisition -- in 1968, the occupation of the residential property (so acquired) by the petitioner could not be more than that of a licensee. He could not alienate his property, therefore, for the purposes of the notification of exemption in question it did cover the case of the petitioner also."
8. It needs to be noted at the very outset that this appeal came up for hearing before another Bench in January, 1991 and it was observed that the appeal might require hearing by a larger Bench because a view expressed in (Mistre) Abdul Hamid v. Malik Amir Khan and others PLD 1984 SC 418 might require consideration. It was also observed that "the elementary requirement that the pre- emptor's right might .Subsist till decree demands that it should remain uninterrupted, but it was not accepted in Abdul Hamid's case". This order was later on withdrawn by the same Bench with the following order: "While hearing Civil Appeal No.176/1990 involving the same question of law, we re-examined the relevant dates of exemption notification, sale, institution of suit. We consider that review of (Mistre)
9. Abdul Hamid v. Malik Amir Khan and others PLD 1984 SC 418 may not be required as that case can be distinguished. So, we recall our order dated 22-1-1991 in Civil Appeal No.58 of 1988 which shall be listed for hearing independently."
10. Today, two main questions have come up for consideration. One, that admittedly only after three months of the institution of the respondent's suit when even the written statement had not been filed the notification of 15-6-1976 had come into force. If on that day or on any other day before the decree was passed more than five years later, the trial Court would have come to know about the notification, admittedly the suit would have been consigned to record as having abated on account of loss of contemporaneous support of law of pre-emption. There was no need for even passing an order of abatement. This of course would have been subject to the conditions laid down in the notification having been satisfied. Learned counsel for the respondent, however, has tried to resist the foregoing conclusion again on the basis of the case of Abdul Hamid. The same as already observed in the order of this Court dated 22-1-1991 is distinguishable. It is true that the following observation was made in Paragraph 16 of the said judgment: "Thus to obtain benefit of the said notification it was necessary for the vendee to get the suit or appeal filed against him by a pre-emptor dismissed by obtaining an order of the Court wherein the said suit or appeal was pending. The notification did not have the effect ipso facto dismissing a suit or an appeal pending on them on which it was issued. The appellant, before us, therefore should have applied to the High Court, where the appeal filed by the pre-emptor was pending, praying for the dismissal of the appeal on the ground that the appellant, no longer had any right of pre- emption with regard to the property in dispute on account of the issuance of the notification mentioned above. However, no such application was ever submitted nor any order of this effect passed by the High Court ---------"
11. It appears that the ratio in the said judgment had nexus with the failure of the party to seek an order from the Court concerned (trial or appellate stage). It is not denied that there would have been no need for seeking an order of the Court to the effect that the suit had abated but the learned Judges, we reiterate, in the case of Abdul Hamid were right in insisting upon the party seeking the application of the concerned notification to satisfy the Court concerned that the conditions laid down therein had been satisfied. If this was done and the Court having duly examined the plea had held that the conditions had been satisfied then from that stage the suit or appeal would have abated automatically and for that matter any formal order except for disposal thereof for consigning the same to record was not necessary. However, the question arises if no inquiry was necessary, (i.e. It would have been admitted that the conditions of the notification had been satisfied) then except for recording such like facts and admissions there would have been no need for a formal order of the Court regarding abatement. But this is not the position in every case.
12. The discussion on the point next falling in this very matter shows that the conditions laid down in the notification may not be always satisfied nor it can be presumed that the facts relating thereto would ordinarily be admitted.
13. The second question raised from the respondent's side is one of fact on which all the Courts have rendered concurrent findings against the appellant. It is admitted that one of the conditions laid down in the notification was that the vendee seeking exemption should be a "displaced person" and that in that behalf a certificate should have been issued. Learned counsel for the respondent stated that although the appellant's land had been acquired and compensation awarded, his house had not yet been fully acquired when he purchased the land. He is still living in it. He further stated that the land in dispute which he has purchased is also in the same estate in which his acquired land was situate, therefore, he is not a displaced person.
14. We might have further examined these conditions in the light of the point toted in the order for grant of leave to appeal but another condition with regard to a subsisting certificate issued by the competent authority, has not been satisfied in this case. There are two certificates relied upon by the learned counsel one, stating only that his land had been acquired. There is no certification with regard to his having been "displaced person". The second certificate does make a declaration regarding the appellant but not to the effect that he has been "displaced" but to the effect that he is an "oustee".
15. After some discussion learned counsel for the appellant could not satisfy us that the oustee in this case, viz-a-viz, the land of the appellant would necessary render him as a person "displaced".
16. Again, be that as it may, the requirement regarding the certificate, as held by this Court in earlier cases, has to be strictly construed. Following same rule it has to be held in the circumstances of this case that the certificate which declares the appellant as an "oustee" does not satisfy the condition. It should have been to the effect that he is a person who has been "displaced".
17. In the light of the foregoing discussion, we find no force in this appeal and the same is dismissed.
18. There shall be no order as to costs.