' This appeal is directed against an order of remand dated 31-5-1975, passed by the learned Additional District Judge, Sargodha, holding that the removal of the ban on pre-emption of a sale of land situated in the Colony area was to take effect from the date of the relevant notification and not from the date of its actual publication in the official Gazette.
2. It is a common point between the parties that by virtue of the Punjab Notification No, 196-R, dated 28-2-1944, issued under section 8 (2) of the Punjab Pre-emption Act (I of 1913), no suit for pre-emption could lie with regard to lands included in a colony area to which the Colonization of Government Lands (Punjab) Act (V of 1912) had been applied or might be applied. It is admitted that the land in dispute fell in that category. It is also not disputed that the aforementioned prohibition was removed by a later Notification No, 662-73/447-LR-III, dated 19-2-1973 and published in the Punjab Gazette on 2-3-1973. The only controversy which requires determination is whether the notification was to take effect from its date or from the date of its publication in the official Gazette.
3. The land in dispute was sold on 19-2-1973, and believing that the prohibition then stood removed, the respondent-pre-emptors filed a suit on 29-3-1973, to pre-empt the sale which was vehemently contested by the vendee-appellant on the ground that according to law a right of preemption must exist on three stages namely, the date of sale, the date of suit and the date of decree. He submitted that as in the instant case no right of pre-emption existed on the date of sale namely 19-2-1973, therefore, the suit should be dismissed inasmuch as the ban to pre-empt sale of Government lands stood removed from the date when the relevant notification was published in the official Gazette and not merely from the date of the notification itself. The trial Court accepted this plea and being of the opinion that as the earlier prohibitory notification was operative in the field, and as no right of pre-emption existed on the date of the sale, he dismissed the suit, but in appeal the learned Additional District Judge took a different view and held that the prohibition was withdrawn from the date of the notification and not from the date of its publication. He, by. Analogy to the provisions of section 3 of the West Pakistan General Clauses Act (VI of 1956) held that the notification was enforced on 19-2-1973 because of the expression contained therein that it was operative "with immediate effect". He set aside the decree of the learned trial Court and remanded the case for disposal on merits. The relevant notification which is the subject-matter of controversy in this case reads as under :- "Notification No, 662-73/447-LR-HI, dated 19-2-1973, published in the Gazette on 2-3-1973.
' In exercise of the powers conferred by subsection (2) of section 8 of the Punjab Pre-emption Act, 1913 (Act I of 1913) and all other powers enabling him in this behalf, the Governor of the Punjab is pleased to rescind with immediate effect the Government of the Punjab Notification No, 196-R, dated the 28th February 1944."
4. The learned counsel for the respondents argued that it was specifically provided in the Notification that it was to take effect immediately and since it was dated 19-2-1973, therefore, by analogy to section 3 of the West Pakistan General Clauses Act, 1956, it came into force with effect from same date viz., 19-2-1973, when according to him it received the assent of the Government and its operation was not postponed to the date when it was published in the official Gazette.
Section 3 of the Act provides that where any Provincial Act is not, expressed to come into operation on a particular day, then it shall come into operation on the day on which the assent thereto of the Governor is first published in the official Gazette.
5. A question would arise whether a notification can be treated at par with an Act of the Legislature.
Speaking generally, a notification, as defined in section 2 (41) of the Act, means notification published under proper authority in the official Gazette. That is to say there is no notification unless it is given a wide circulation for the information of the subjects of the State. In the absence of any special law or custom, it would be against the principles of natural justice to permit the citizens to be punished or penalised or to be deprived of their right to retain property by laws, of which they had no knowledge and of which they could not even with the exercise of reasonable diligence, have acquired any knowledge. In the circumstances, a notification shall be deemed to take effect from the date it is given wide publicity such as by publication in the official Gazette and not from the date it is issued.
6. Section 8 (2) of the Punjab Pre-emption Act enables the Board of Revenue (previously the Provincial Government) to declare by notification that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales no right of pre- emption or only such limited rights as the Board of Revenue (or the Provincial Government, as the case may be) may specify, shall exist". It is, however, obvious that what the law means is that the Authority may exempt any land or property or any sale or class of sales from pre-emption, but if it does exempt, it must, do so by a notification and no other means would be valid in law.
Correspondingly, according to section 20 of the Pakistan General Clauses Act (X of 1897) :- "Where, by any Central Act, or Regulation, a power to issue any notification, order, scheme, rule, form, or bye-law is conferred, then expressions used in the notification, order, scheme, rule, form, or bye-law, if it is made after the commencement of this Act, shall unless there is anything repugnant in the subject or context, have the same respective meaning as in the Act or Regulation conferring the power."
7. The only conclusion which flows out of the discussion made above is that a notification under the relevant Act comes into force only when it is published in the official Gazette and it is made known to the general public.
8. Dealing with the appointment of an Excise and Taxation Commissioner, which, according to relevant law, was to be made by a notification, it was held in Mian Akbar Hussain v. Punjab Government (1) that no doubt, such an appointment will be made by an order passed by the competent authority on the relevant file, but the appointment will become effective only from the date of the publication of the notification. In Mst. Bibi Jan and others v. Miss R. A. Monny and another (2) it was held that ordinarily a notification issued under statutory powers should be deemed to come into effect on the date when it is published and not from an anterior date. This point was elaborately dealt with in Mian Abdul Majid and another v. The Chief Administrator of Auqaf, West Pakistan, Lahore (3). In that case a question of limitation had arisen on account of lack of knowledge of the notification although it was shown to have been published in the Gazette on a particular day. It was held that the notification would be enforced from the date the Gazette was circulated and not from the date it appeared to have been published. It was held that the period of thirty days, as laid down in section 7 of the West Pakistan Waqf Properties Ordinance (XXV of 1959), runs from the date of publication of the notification and not from the date from which the Chief Administrator of Auqaf directs that his notification should take effect. It is further laid down that it is for the patty trying to take away the rights or liabilities placed on others to prove as a matter of fact as to when did the publication of a notification actually take place because possibility cannot be ruled out that though a Gazette is given particular date or is to be shown to be of a particular date, its actual publication, as a matter of fact, may not have taken place on the same date or may have taken place a day or two or some period earlier. Mehreen Zaib-un-Nisa v. Land Commissioner etc. (4) was cited, on the other hand, to show that a statute would take effect from the date of its making and not from the date it was gazetteer. The words "hereby withdrawn" in the proclamation which was made on 20.4-1972, but gazetted on 21-4-1972, were held not to mean withdrawal of Martial Law with effect from 20-4-1972. It was held that apart from the fact that there is distinction between the date when a law is made and the date when it is to come into operation, each case even otherwise is to depend on its own facts and circumstances and it is the intention of the law- maker himself as to when does he wish to enforce any particular law made by him. In that case it was held that the intention was to enforce Martial Law Regulation 128 with effect from 20-4-1972.
Notwithstanding the opinion expressed in relation to a statute, it was, however, held in respect of the notification that where publication is necessary to give a legal effect to a statute, then it would come into operation from the date of its publication. A recent pronouncement on the subject is made in Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab (5) holding that a clause "within 30 days of the publication of such notification" means within 30 days of time when notification is brought to the notice of the general public by a normal mode. In that case, it could not have happened till 23-10-1929, when the Gazette was first delivered to the book depot in the Printing Press. To hold otherwise would be contrary to justice and good conscience as it would ascribe an intent to the Legislature to deprive a citizen of valuable property rights by merely printing a notification and not giving it proper publication.
(1) PLD 1954 Lah. 188
(2) PLD 1961 SC 69
(3) PLD 1972 Lah. 66
(4) PLD 1974 Note 115 at p. 168
(5) PLD 1977 SC 639
8. In the instant case, the mere giving an immediate effect to the notification and at the same time delaying its publication in the official Gazette and thus withholding its circulation would amount to providing it a retrospective effect which is not within the power of the Authority. Retrospectivity is the work of the Legislature and the Authority has legislative power so as to give the notification a retrospective effect. In this respect Fazal Ahmad v. Ziaullah Khan and another (1) and Rehmatullah v. Deputy Settlement Commissioner (2) can be safely referred to. It is set down that the modified notification has only prospective and not retrospective operation even if modification had been specifically declared to be retrospective in effect. It is to be remembered that in section 8(2) of the Punjab Pre-emption Act, there is no power to issue any retrospective notification.
9. In view of what has been discussed above, the notification issued, on 19-2-1973, is to be considered to have been enforced on 2-3-1973 when it was published in the official Gazette and the same being earlier in times was not pre-emptible, inasmuch as on the date of sale the earlier prohibitory notification was well operative in the field. The appeal is, therefore, allowed, the order of the learned Additional District Judge is set aside and the suit of the respondents-pre-emptors stands dismissed as before. The parties are, however, left to bear their own costs.
(1) PLD 1964 SC 494 (2) PLD 1963 SC 633