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Civil Appeal No. 13-A of 1954 decided on 16th February 1955, against the judgment and decree of the Senior Sub-Judge, Rahimyarkhan dated the 7th February 1954.
S. 9 Repeals by implication--S. 5 of the Punjab Alienation of Land Act (X111 of 1900) to the extent of repugnancy between the two sections.
'There is no right of pre-emption, according to section 9df the Pre-emption Act, in respect of a sale sanctioned by the Deputy Commissioner under section 3 (2) of Alienation of Land Act.
Section 9 therefore by implication repeals S. 5 of the Punjab Alienation of Land Act (XIII of 1900) to the extent of repugnancy between the two sections.
124PR388ref.
S. 21 (2)-Civil Court debarred from taking cognizance of whether the Deputy Commissioner made sufficient enquiries before sanctioning a sale under S. 3 (2).
(c) Interim Constitution Act, 1952 (Bahawalpur), Ss. 72 and 75--Punjab Alienation of Land Act (X111 of 1900) not rendered invalid by S. 72.
The Punjab Alienation of Land Act (XIII of 1900) remains unaffected by section 72 of Interim Constitution Act, 1952 by virtue of section 75 of the latter Act.
S. Mahmood Khan and Saleem Aslam, foe Appellant.
Allah Din and Mustafa Khan, for contesting Respondent.
-This is an appeal from a judgment and decree of the Court of Senior Sub-Judge Rahimyarkhan dated 7th February 1954, dismissing the suit.
The plaintiff Mst. Sharam Khatoon brought a suit, against the defendants, for possession of certain land, situate in Mouza Gahi Tehsil Sadiqabad, by pre-emption. The land in suit was sold by Hazoor Din, the father of the plaintiff to the defendants in lieu of Rs. 15,000. The requisite deed of sale pertaining to the land was registered in favour of the defendant on 26th March 1952. Thereafter, on 15th June 1953, the plaintiff instituted the pre-emption suit out of which the present appeal has arisen on the ground that, as daughter of the vendor, she was entitled to the land in suit in preference to the vendees. It was also alleged in para. 2 of the plaint that the vendees (Ali Muhammad and Muhammad Abdullah) were strangers and that they were not proprietors in the village 'mahal ; and that therefore the plaintiff had a superior right of pre-emption. In the written statement the defendants pleaded that the sale of the land had been sanctioned by the Deputy Commissioner under section 3(2) of the Punjab Land Alienation Act of 1900 and that therefore the land in dispute was not pre-emptible under section 9 of the Pre-emption Act. This plea of the defendants prevailed with the trial court with the result that the suit of the plaintiff was dismissed. The plaintiff has now come in appeal before this Court.
The learned counsel for the appellant has contended, (i) that section 9 of the Punjab Pre-emption Act of 1913 does not repeal section 5 of the Punjab Land Alienation Act of 1900, 60 that proper enquiry was not made by the Deputy Commissioner before sanctioning sale under section 3 (2) of the Punjab Land Alienation Act in favour of the vendees, and (iii) that section 72 of the Interim Constitution Act 1952 of Bahawalpur renders the Land Alienation Act of 1900 inoperative and void.
Regarding the first contention of the learned counsel for the appellant, we note that in section 9 of the Pre-emption Act the legislature has in clear and unequivocal terms laid down that "A right of pre-emption shall not exist in respect of any sale sanctioned by the Deputy Commissioner under section 3 (2) of the Punjab Land Alienation Act". This being the position, the only inference is that the legis lature repealed by implication so much of section 5 of the Land Alienation Act as was repugnant to section 9 of the Pre-emption Act. The intention of legislature is manifest in explicit language. We are also reinforced, in our view by a ruling of the Chief Court Lahore reported as 124 P R 388, where it was held that "section 9 of the Pre-emption Act must be held to repeal by implication so much of section 5 of the Punjab Land Alienation Act of 1900 as conflicts with itself and consequently no right of pre-emption exists in respect of any sale sanctioned by the Deputy Commissioner under section 3 (2) of the latter Act".
We find ourself in respectful agreement with the ruling cited above and therefore hold that section 9 of the Pre emption Act repeals by implication so much of section 5 of the Land Alienation Act as conflicts with itself.
Coming now to the second contention of the learned counsel, we may say that section 21 (2) of the Punjab Land Alienation Act debars a Civil Court from taking cognizance of the manner in which a Deputy Commissioner exercises any power invested in him by this Act. Reference may be made to an unreported ruling of this High Court dated 27th October 1952 where it was held that "sections 21 (2) clearly lays down that a Civil Court shall not have juris diction in any matter which a Revenue Officer is empowered by this Act to dispose of". Hence it is not within the province of a Civil Court to take cognizance and to decide whether or not a Revenue Officer exercised any power vested in him under the Punjab Land Alienation Act properly. In these circumstances, we do not find any force in the contention that .the Deputy Commissioner did not make proper enquiry before sanctioning sale under section 3 (2) of the Punjab Land Alienation Act in favour of the vendees.
Coming now to the third point raised by the learned counsel we may say that section 75 of the Interim Constitu tion Act of 1952 (Bahawalpur) is a complete answer to the contention of the learned counsel. We note that the phraseology employed in section 72 of the Interim Constitution Act is the same as employed in section 298 (1) of the Government of India Act. The relevant sections runs as follows :--
"No citizen of the State shall on grounds only of religion, place of birth, descent, colour or any of them be ineligible for office in the State or be prohibited on any such ground from acquiring holding or disposing of property or carrying on any occupation, trade, business or profession in the State".
It is correct that Land Alienation Act is repugnant to the prohibition clause contained in section 72 of the Interim Constitution Act. It is also correct that the entire restrictive provisions contained in the enactments such as the Punjab Land Alienation Act could have been illegal for being in conflict with section 72 referred to above but, we find that section 75 of the Interim Constitution Act remedies the defect. The relevant section runs as follows :-
"Notwithstanding the repeal of the Government of Bahawalpur Act, 1949, all the laws, rules or regulations having the force of law, in force in the State immediately before the commencement of this Act shall continue in force in the State until altered or repealed or amended by the State legislature or other competent authority".
This section obviously saves from the operation of the provisions of section 72 of the Interim Constitution Act, all the laws and rules etc. having the force of law in the State until altered or repealed by the State legislature. It is not denied that the Land Alienation Act was in force in the State immediately before. the commencement of the Interim Constitution Act of 1952 and has neither been altered nor repealed nor amended by the State legislature or other competent authority. We have therefore no hesitation in holding that Land Alienation Act is still in force and does not offend against section 72 of the Interim Constitution Act of 1952. It is clear that section 75 saves from the operation of section 72 of the Interim Constitution Act, all laws in force in the State prior to the commencement of Interim Constitution Act. That being the position, the whole Land Alienation Act is valid and binding and is not repugnant to the provisions of section 72 of the Interim Constitution Act of 1952. The net result is that the con tentions of the learned counsel are unfounded. It is admitted that the sale was sanctioned by the Deputy Commissioner under section 3 (2) of the Land Alienation Act. This being so, the sale of the land in dispute is immune from pre emption under section 9 of the Pre-emption Act.
We, accordingly, agree with the judgment of the Court below and dismiss this appeal. As the question of inter pretation of law was involved in this appeal, we order the parties to bear their own costs.
This appeal is hereby dismissed.
FAIZ MUHAMMAD, C. J.---I agree.
A. H. Appeal dismissed.
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