1. ' IFTIKHAR MUHAMMAD CHAUDHRY, J.---Petitioner seeks leave to appeal against the judgment dated 10th January, 2001 by Lahore High Court, Lahore whereby R.S.A. No,118 of 1984 has been dismissed.
2. ' Precisely stating facts of the case are that Mst. Ghulam Fatima predecessor-in-interest of the petitioners on September 1, 1973 filed a suit for pre-emption in respect of property measuring 334 Kanals sold by vendor Mst. Noor Jehan Bibi alias Noor Jehan Begum widow of Muhammad Fazalur Rehman Khan to respondents for sale consideration of Rs,1,70,000 vide Mutation No,211 attested on 13-9-1972.
3. ' The suit was contested by the respondents chiefly on the ground that the land in dispute is situated in Colony area, therefore, the sale was not preemptible.
4. ' Learned trial Court settled issues arising out of pleadings of the parties including the one "whether the suit-land is not pre-emptible?" OPD. After recording of evidence the suit filed by predecessor- in-interest of the petitioner was decreed holding that the sale is pre-emptible.
5. ' The respondent preferred appeal before District Judge, Sargodha who accepted the same vide order/decree dated 12th May, 1984 wherein it was held that "the sale in dispute was not pre- emptible because the land was situated in an area to which the Colonization of Government Lands (Punjab) Act, 1912 was applicable and the notification dated 28th February, 1944 exempted the sale from pre-emption and also non-suited the plaintiff for the reason that the suit was barred by time."
6. ' Aggrieved from this order/decree of the Appellate Court the petitioners preferred appeal before Lahore High Court, which has also been dismissed, vide impugned order. As such instant petition has been filed.
7. ' Mr. Gul Zarin Kiani, learned Advocate Supreme Court inter alia contended that following proposition of law needs to be considered by this Court in the public interest:- ' "as to whether notification dated 28th February, 1944 exempt the sale from pre-emption of the property owned by private owners of the land or its operation is confined to the extent of the State- owned land?
8. ' Learned counsel explained that this Court has already settled above proposition of law in the follows cases that the notification exempting the sale from pre-emption is applicable only on the State-owned lands but it would not apply on the private-owned lands:-
(4) Sher Muhammmad and others v. Abdul Khaliq and others (1968 SCM R 320) This judgment was authored by Mr. Justice S.A. Rehman (as he then was) for the Bench comprising of 4 Hon`ble Judges of this Court. In this report it was held as under:-- ' "All that was argued that the area having been included in the Colony area, would also become amenable to the notification issued under the Act of 1912. This is not an argument, which we can accept. By the letter of the 7th November, 1934 proprietary lands may also have been given into the control of the Colonization Officer, as an administrative measure. But that fact alone would not make them subject to the provisions of the Colonization of Lands Act, 1912. For that purpose, a notification had to issue under the Act and the notification must be confined, in the face of section 4 of the Act to State-owned lands only."
(ii) Noor Muhammad through his Legal Heirs v. Muhammad Tufail and others (1991 SCM R 512)
9. ' This judgment was delivered by a Division Bench of this Court wherein ratio decidendi in Sher Muhammad's case was followed making distinction with another case reported in PLD 1969 SC 197 wherein the land in dispute was Government-owned land and not privately-owned land. Relevant para. From this judgement thus reads:- "3. Leave was "granted to consider whether the land in dispute was subject to pre-emption or was exempted under the Notification of the Bahawalpur Government relevant on the subject and also to see whether there is any conflict between the two judgements of this Court as reported in Mst.
10. Rehmat Bibi v. Nathe Khan and others PLD 1969 SC 197 and Sher Muhammad and others v. Abdul Khaliq and others (1968 SCM R 320) and which of them is applicable to the facts and circumstances of the case".
(4) Learned counsel for the appellants referred to statutory provisions and the notifications. Section 4 of the Colonization of Government Lands (Punjab) Act, 1912 is as follows:-- "Application of the Act.---This Act, shall, unless the Provincial Government otherwise direct, apply to land to which the provisions of the Government Tenants (Punjab) Act, 1893, have been applied and to any other land to which the Provincial Government may by Notification in the Official Gazette apply it and which at the time of the Notification was the property of the Provincial Government: ' Provided that unless the Provincial Government by general or special order otherwise directs nothing in sections 20, 21, 22 and 23, or in the proviso to section 14, of this Act shall, apply to tenancies specified in Schedule 1 of this Act, or to any class of tenancies created hereafer which the Provincial Government may declare to be scheduled tenancies.
11. ' In pursuance thereof, his Highness Amir of Bahawalpur on 30th of April, 1926 applied the said Act to the Bahawalpur State. Vide Memorandum dated 7-11-1934, approval of transfer of Chaks Nos.1 to 21 from Mushir Mal to the control of Colonization Officers was accorded and it was further added that all lands, including proprietary are also approved. Section 8 of the Pre-emption Act is as follows:-- "Provincial Government may exclude areas from pre-emption.--(1) Except as may otherwise be declared in the case of any agricultural land in a notification by the Provincial Government no right of preemption shall exist within any cantonment.
(2) The Board of Revenue may declare by notification that in any local area or with respect of 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 right as the Board of Revenue may specify, shall exist."
12. ' Notification No,74 dated the 12th of June, 1944 was issued from the department of the Prime Minister of Bahawalpur, translation of which is as follows:-- ' "Under subsection (2) of section 8 of the Punjab Pre-emption Act which is in force in the State, the Government of Bahawalpur passes an order that no suit for pre-emption would lie with regard to lands included in a colony (colony area) to which Colonization of Government Lands (Punjab) Act, 1912, has been applied or may hereafter be applied".
13. ' All these statutory provisions and the notification were subject-matter of decided cases. The learned counsel argued persuasively and brought out spacious distinction in the case of Sher Muhammad and others v. Abdul Khaliq and others .(1968 SCM R 320) and submitted that the later decision in Mst. Rehmat Bibi v. Nathe Khan and others PLD 1969 SC 197 should govern the case. He also referred to unreported decision in Civil Appeal No,246 of 1979 and Civil Appeal No,52 of 1985, decided on 18th June, 1990.
5. After hearing the learned counsel for the appellants and also for the respondents, we find that the first decision in Sher Muhammad's case (1968 SCM R 320) upholds the decision in Abdul Khaliq v. Sher Muhammad and others PLD 1961 Baghdadul Jadid 79, in which facts were almost identical as far as relevant for the present purpose i.e, that the land in question was privately owned and not by the Bahawalpur Government. The latter case relied upon by the learned counsel for the appellants Mst. Rehmat Bibi PLD 1969 SC 197, came up from the High Court decision reported as Nathe Khan v. Mst. Rehmat Bibi and others PLD 1961 Baghdadul Jadid 96, wherein the land in dispute was Government-owned land and not privately-owned land. Therefore, the later decision has no application to the facts of the cases in hand. Similar is the position in the unreported decision in Civil Appeal No,246 of 1979 and Civil Appeal No,52 of 1985 wherein it was observed that 'the land in dispute under the relevant provisions of law should be treated as Government property' ...."
(iii) Babu and others v. Jalal Din and another PLD 1992 Supreme Court 102.
14. ' In this case leave to appeal was declined to the petitioner against the order of the High Court in view of the fact that at the time of the sale in favour of the petitioner the land was privately owned and was not in any form in the ownership of the Government. Relevant paras. Therefrom are reproduced as under:-- "3. The learned counsel for the petitioner argued that notwithstanding the decision in the case of Mst. Rehmat Bibi, the entire controversy having been re-opened in the leave granting order in case of Ghulam Rasool, the question again needs to be settled preferably by a large Bench. In this behalf, he has further contended that there being an earlier Supreme Court Judge, Sher Muhammad and others v. Abdul Khaliq and others (1968 SCM R 320), according to him, there is conflict, which requires to be resolved. He has also mentioned C.A. 203 of 1980 (Abdul Razzak Khan and others v. Qamar Din alias Fateh Din), as still pending, which according to him relates to the same point and is yet to be decided.
4. We have not been able to find any conflict in so far as the declaration of law is concerned, in the two previous cases of Sher Muhammad and Mst. Rehmat Bibi. One of the learned Judges was common in both the Benches, which decided these matters and the very fact, that the case of Mst.
15. Rehmat Bibi was approved for reporting and the other was not so approved, cannot be ignored in so far as the position of declared law is concerned. In addition, the same controversy again came up before this Court. The said two judgements were noticed in case of Noor Muhammad v.
16. Muhammad Tufail and others (1991 SCM R 512). The same question has also been decided in C.As.
17. Nos.53 and 54 of 1985 on 6-3-1991."
(iv) Abdullah v. Muhammad Hayat (1994 SCM R 90)
18. ' This judgement was delivered by a Division of this Court taking note of the fact that the suit-land vested in the Provincial Government at the relevant time, therefore, adhering to the principle enunciated by this Court in the case of Noor Muhammad appeal was allowed.
19. ' He further emphasized that the learned Judge of the High Court in Chambers dismissed the appeal of the petitioner in view of judgement delivered by a learned Division Bench of this Court in the case of Bashir Ahmad and three others v. Khushi Muhammad and others (C.A. 676 of 1994).
20. According to him at the time of hearing of this unreported judgement the earlier judgements pronounced by this Court particularly the judgement delivered by four Hon'ble Judges in the case of Sher Muhammad (supra) was not cited at the Bar by the learned counsel appearing for the parties. Besides the above reported judgements a Bench of 5 Hon'ble Judges of this Court in the case of Mst. Rehmat Bibi and others v. Nathe Khan and others (PLD 1969 SC 197) taking into consideration the effect of Notification No,74 dated 12th June, 1944 issued by the Government of Bahawalpur endorsed the opinion of the High Court of Bahawalpur that as the lands are owned by the Government of Bahawalpur, therefore, the plaintiff had no right of preempting the sale in question. Relevant observations read therefrom as follows:-- ' "The learned Judges of the High Court in repelling the contention of the present appellant that the Act was not applicable to the land in question observed as follows:- ' 'the Colonization of Government Lands (Punjab) Act, 1912 has been promulgated in the State of Bahawalpur and is applicable to lands to which it is applied by notification in the official Gazettee and to which Government Tenants (Punjab) Act, 1893, applied, subject to the conditions that the land was property of the Government of the -State. No Notification applying Act to the land in question is proved on the record but from copy of Jamabandi Exh.'D.A., Exh.P.Z. And Exh.P.Z./2 and the sale-deed in favour of the original grantee it is proved that the land in suit was Government land was situate in the new colony to which the Colonization of Government Lands (Punjab) Act applied, as the Jamabandi mentions that the land was granted on bara conditions. It can even be presumed in the case of Government land situate in a colony area that it is governed by this Act.
21. The proof of the notification would have been conducive, but the application of the Act to the land stands proved despite the non-production of the Notification under section 4 of the Act. The Notification if proved would have been the best evidence but its absence does not bar other proof of the Act to the Colony. On the documents on the record, the inference is irresistible that the Act which applied to the Colony by the necessary Notification". It is worthy of note that in the Notification No,74 dated the 12th of June, 1944, the words used are "to which the Colonization of Government Lands (Punjab) Act, 1912, has been applied...." (The underlining is by us). The facts to which reference has been made by the learned Judges of the High Court may not be sufficient to hold that a Notification under section 4 of the Act was issued by the Government of Bahawalpur but they, however, unmistakably point to the conclusion that the Act had been applied to the land in suit. As the words used in the Notification are 'has been applied' and not 'is applicable', the question that falls for determination is whether the Act was as a matter of fact applied to the land in suit. The land was situate in the colony area. It was first granted to the vendors on bara conditions under the Act. The original owner of the land was the Bahawalpur State and it was sold only after acquiring proprietary rights. The Jamabandi papers, the application made by the vendors for permission clearly go to indicate that the Act was applied to the said land by the Government of the State of Bahawalpur. The land, therefore, came within the purview of Notification No,74 dated the 12th of June, 1944. The plaintiff is not entitled in view of that notification to pre-empt the sale."
22. After having gone through the reported judgments noted hereinabove as well as unreported judgement in C.A. 676 of 1994 and carefully perusing the record prima facie in the instant case vendor Noor Jehan Bibi alias Noor Jahan Begum had acquired proprietary rights in the land in dispute from 1930/31 therefore, we are of the opinion that the proposition put forward by learned counsel needs examination to further clarify the impact of Notification dated 28th February, 1944 though the same has "already been repealed in the year 1973 but it was applicable at the time when the suit was filed by the predecessor-in-interest of the petitioners.
23. ' Thus petition is allowed and leave to appeal is granted. Meanwhile status quo to be maintained subject to notice to the respondents.