SARDAR MUHAMMAD RAZA, J.---This is an appeal filed by Muhammad Aslam son of Muhammad Siddique and his 5 brothers against the judgment and decree dated 27-10-1999 passed by a learned Single Judge Of Lahore High Court, Bahawalpur Bench, whereby the Regular Second Appeal of Shabbir Ahmad etc., the respondents, was accepted and the appellants, who were pre- emptors in a civil suit, were non-suited.
2. One Muhammad Siddique son of Noor Din was given 200 Kanals of land in Chak No,413/6-R, Tehsil Haroonabad of former Bahawalpur State, by the Government under the statement of conditions defined by section 10 of Colonization of Government Lands (Punjab) Act, 1912 (hereinafter to be referred to as Act V of 1912). As per conditions, the grantee was to remain as Government tenant till the final payment of stipulated installments and till then the Government was to remain as owner.
3. Muhammad Siddique had only paid a few installments when he proposed to sell the land in favour of one Atta Muhammad, the predecessor of present respondents. Necessary permission for sale was undisputedly obtained under section 19 of Act V of 1912. After this important formality, Mutation No,29 was attested in favour of Atta Muhammad on 23-12-1974. Muhammad Aslam and others, the sons of Muhammad Siddique vendor brought a pre-emption suit which, after contest, was decreed by learned Civil Judge First Class, Chishtian, vide his judgment and decree dated 26- 3-1977, which was upheld by learned Additional District Judge-II, Bahawalnagar in his judgment and decree dated 25-2-1987. The vendee succeeded in the Second Appeal whereby the pre- emptors were non-suited and hence they have filed the instant appeal under Article 185(d) of the Constitution.
4. Learned High Court while relying on this Court's judgment in Aziz Hussain etc. v. Rashid Alunad etc. (1992 SCM R 1018) held that transfer of tenancy rights under Act V of 1912 cannot be equated with a sale of agricultural land for the purposes of pre-emption and that such tenancy rights A cannot be treated as village immovable property within meaning of section 3(2) of Pre-emption Act. The aforesaid judgment provides a complete answer to the arguments before us of Mr.Amjad Hussain Syed, learned counsel for the appellants that what the -vendor had sold was occupancy tenancy or right to occupy the land and hence was pre-emptible.
5. It may be added at this juncture that Act V of 1912 is a special law dealing with special kind of lands and hence various definitions of land, occupancy tenancy and tenant are strictly to be followed as provided in the Act itself irrespective of the fact as to what definition of the aforesaid terms are contained in the Punjab Tenancy Act, 1887. Etc. Under section 3 of Act V of 1912, a tenant is a person holding land in a colony as a tenant of Government with terms and conditions defined under section 10 of the Act. Such tenant of Government is not defined in the relevant parallel laws.
The right and manner to acquire a property is, as said earlier, defined by section 10 and no acquisition can be made otherwise than in the course of law provided by the Act. The right of alienation by a tenant of Government is also not absolute and is governed by section 19 of Act V of 1912. All these manners of acquisition and alienation are altogether different from the rights of occupancy tenants given in the Punjab Tenancy Act of 1887. The rights of tenancy under Punjab Tenancy Act, 1887 are not only alienable but liable to attachment in execution of decrees, whereas, the tenancy rights under Act V of 1912 are not alienable without the written sanction of the Collector under section 19 thereof. All this phenomena goes to negate the arguments advanced by Mr.Amjad Hussain Syed, learned counsel for the appellants. The matter has amicably been dealt with by Lahore High Court in Majeed Ahmad's case (1987 CLC 1891).
6. Mr. Gul Zarin Kiani, learned counsel for the respondents not only relied upon the case of Aziz Hussain (supra) in support of his arguments that the transaction in question was not a sale for the purposes of Pre-emption Act but went on to make another strong assertion that the sale in question was not pre-emptible at all. From the arguments on either side, we have visualised a legal and factual background which requires to be elaborated.
7. Section 4 of Act V of 1912 provides for the manner in which the Provincial Government is authorized to apply the Act to certain specified lands in the Province. The necessary requirement therefor is that the land must belong to the Provincial Government. His Highness Amir of Bahawalpur on 30-4-1926 applied the aforesaid Act to Bahawalpur State. We had the opportunity of having this background through a judgment of this Court in Noor Muhammad v. Muhammad Tufail (1991 SCM R 512). Much after the application of Act V of 1912 to Bahawalpur State, a Notification No,74, dated 12-6-1944 was issued, whereby the lands included in a Colony to which Act V of 1912 applied, were declared exempt from pre-emption. The translated version of Notification No,74 dated 12-6-1944 is reproduced below:
8. "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."
This clearly indicates that all Government lands to which Act V of 1912 applied, were declared non- pre-emptible.
8. A similar Notification No,196-R dated 28th February, 1944 by Government of the Punjab within its own jurisdiction was issued exempting certain lands from pre-emption. Through a subsequent and specific Notification No,662-73/447-LR-III issued on 2nd of March, 1973, the previous notification of exemption was withdrawn from the territories of the Punjab (PLD 1974 Punjab Statutes 211). Till-the merger of Bahawalpur State in 1955 Notification No,74 dated 12-6-1944 remained in force. It is but obvious that after the merger of Bahawalpur State, if the exemption Notification No,74 was to be withdrawn, it had 10 be done through a special Notification to be issued by the successor Government i,e, the Government of the Punjab. The Punjab Government has, no doubt, withdrawn its own Notification No,196-R dated the 28th February, 1944 but has not at all withdrawn Notification No,74 dated 12-6-1944 issued by its predecessor Government. We were not shown at least any notification from the opposite side to such effect and hence we tend to agree with Mr. Gul Zarin Kiani, learned counsel for the respondents that the exemption granted regarding colony area in the Bahawalpur State through Notification No,74 dated 12-6;1944, having not so far been withdrawn, any sale in such area to which Act V of 1912 is applicable is not pre-emptible.
9. While placing reliance on Majeed Ahmad etc. v. Yousaf and another (1987 CLC 1891), learned counsel for the respondents developed the argument that right to acquire land in the colony area vests only in a person who has been granted such permission by the Collector under section 19 of Act V of 1912. That such right cannot be acquired by substitution through a pre-emption suit and so a sale completed under section 19 of Act V of 1912 became impliedly and indirectly non-pre- emptible.
10. A close perusal of Act V of 1912 would indicate that a right to acquire property is a grant by the Government. At the time of such grant in the initial stage referable to section 10 thereof, the Government has all the authority to allot or refuse allotment of a property but to a specific person.
This dominant discretion of the Government to select the person as transferee of colony land is so important that even the original allottee cannot transfer or sell the land in his occupation to a third person unless permitted by the Collector under section 19 of the Act, Meaning thereby that so long as the ownership vests in the Government, there can be no transfer, alienation or sale of rights unless permitted by the Government. Which person is eligible or entitled to acquire the land, is a matter to be appreciated and approved by the Government in the light of all the attending circumstances prevailing with reference to sections 10 and 19 of the Act.
11. What we intend to bring home is that every acquisition of land under Act V of 1912 is specific and not automatic in routine. No one can occupy the land either as original transferee or subsequent vendee' unless permitted by the Collector. Such permission is personal and specific in nature and not general. The same argument, if put in other words, would mean that right to occupy land can neither be acquired by automatic sale nor by substitution because in case of substitution, which essentially is the right of pre-emption, the provisions of section 19 are violated. When a vendee cannot purchase a right without permission, no one can step into his shoes without such permission, provided the land still belongs to the Government. In nutshell, we hold that a right to acquire or purchase property in colony area is a right specifically permitted by the Government and it cannot be substituted by ignoring the provisions of section 19 of the Act. If not susceptible to substitution, the obvious conclusion would be that any such transaction is not pre-emptible.
12. Consequently, we hold that so long as a property in colony area is owned by the Government and not by a private party, any transaction done under section 19 of Act V of 1912 would not be pre- emptible. We also hold that owing to the non-withdrawal by the Government of Punjab of Notification No,74 dated 12-6-1944 issued by the Government of Bahawalpur, the land in colony area falling within the ambit of Act V of 1912 remains non-pre-emptible. No exception can be taken to the impugned judgment of the High Court. The same is upheld and the appeal is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.