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Writ Petition No. 4217 and Civil Miscellaneous Nos. 1 and 2 of 1979, decided on 5th August 1979.

Paras. 25(3)(d), 3 and Punjab Pre-emption Act (I of 1913), S. 8(2)-Vires of statute-Sale made in any area and against any class of persons, tenant has first right to pre-emption -Provi sions of para. 25, held, cannot be overriden by other statute or notification-[Vires of statue-Pre-emption].

Rahim Bakhsh alias Rahim v. Gul Muhammad and another P L D 1968 Lab. 907 ; Muhammad Ghlas and another v. Member, Federal Land Commission, Rawalpindi P L D 1975 Lah. 399 and Shakar Khan v. Muhammad Lal and another P L D 1978 S C (A J & K) 126 ref.

Khawaja Mushtaq Ahmad for Petitioner.

The petitioners are displaced persons affected on account of the cons truction of Mangla Dam and purchased a small piece of land measuring 1 kanal, 19 marlas situate in village Pindori, Tehsil and District Jhelum and described in para. 1 of the petition for a sum of Rs. 4,680 from one Allah Ditta. The transaction was evidenced by Mutation No. 1522, dated 27-6-1974.

2. On 18-6-1975 Sohbat Ali, respondent No. 4 filed a suit in the. civil Court against the petitioners for possession of the aforesaid land through the exercise of his right on pre-emption. The respondent No. 4 claimed his superior right of pre-emption on the basis of his being a tenant having a first right of pre-emption under clause (d) of sub-para. (3) of paragraph 25 of the Land Reforms Regulation, 1972 (Martial Law Regulation No. 115). After the amendment of the law in 1976 taking away the jurisdiction of civil Courts to try such suits the case was transferred to the file of Assistant Commissioner who dismissed the suit on the ground that by Notification No. 8776-76 110 LR-III dated 20-1-1977 Mangla Dam effectees had been exempted from the operation of the Punjab Pre-emption Act. The learned Assistant Commissioner quoted all the notifications issued from time to time under subsection (2) of section 8, Punjab Pre-emption Act and dismissed the suit on 28-1-1978. The respondent No 4 preferred an appeal before the Addi tional Commissioner, Rawalpindi Division, Rawalpindi, who vide his judgment dated 2-5-1978 accepted the appeal. The learned Additional Commissioner held that any notification issued under subsection (2) of section 8 of the Punjab Pre-emption Act of 1973 could not have the effect of overriding the provisions of Land Reforms Regulation, 19 2. The suit filed by the respondent No. 4 was held to be maintainable under the Land Reforms Regulation irrespective of the notification creating exemption in favour of the Mangla Dam affected persons. The case was remanded to the Assistant Commissioner, Jhelum to decide the case on merits. After the remand the Assistant Commissioner/Collector, Jhelum vide his judgment dated 10-1-1979, decreed the suit in favour of respondent No. 4 on the payment of amount of Rs. 4,680 before 11-2-1979.

3. An appeal was again filed against the judgment and decree of the Assis tant Commissioner/Commissioner which was dismissed in view of the earlier decision of the Additional Commissioner made on 2-5-1978. A revision petition was filed before the Member, Board of Revenue which was also dismissed -in limine by the Member, Board of Revenue vide order dated 21-6-1979 and this i3 the order impugned along with the other judgments passed by the authorities below.

4. Learned counsel has argued that the decision of the authorities concerned could not be legally sustained as the petitioners were proved to be displaced persons affected by the construction of Mangla Dam and in view of the notification issued under section 8(2) from time to time the suit filed by the respondent No. 4 was not legally competent and the decisions made are without lawful authority. Under subsection (2) of section 8, Punjab Pre emption Act, creating exemption in favour of Mangla Data effectees are quoted below;-

(i) No. 5658/65-3306-LRIV, dated 15-9-1965.

(ii) No. 4045-69/1031-LRIII, dated 8-6-1.969.

(iii) No. 74P-72/1780-LRIII, dated 4-5-1972.

(iv) No. 2131 / 76 1 C03-LRIII, dated 7-6-1976.

(v) No. 8776/76 110-LRIII, dated 20-1-1977.

5. The only point which calls for determination in this petition is whether in view of the exemptions issued under the Punjab Pre-emption Act, a suit could be filed by a tenant claiming first right of pre-emption as a tenant under the provisions of sub-clause (d) of para. 25(3) of the Land Reforms Act, 1972 [M. L. R. 115]. Sub-clause (d) of para. 25 creating a first right of pre-emption is quoted below:--

"25. Rights of tenants---

(1)

(2) ...

(3)

(a) .

(b) ..

(c) .

(d) Subject to the other provisions of this Regulation, a tenant shall have the first right of pre-emption in respect of the land comprised in his tenancy."

Section 3 of the Land Reforms Regulation provides as under :-

"The provisions of this Regulation, and any rule or order made there under, shall have effect notwithstanding anything to the contrary in any other law or any order or decree of a Court or Tribunal or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document."

Section 3 therefore overrides the provisions of all other laws and Pre-emption Act is no exception. The argument of the learned counsel that the notifica tions referred to above have not taken away the first right of pre-emption as given in para. 25 of the Land Reforms Regulation but created only an exemption under section 8(2) in favour of certain class of persons and therefore the notifications are valid even for cases falling under para. 25(3)(d). This argument has no force. The point involved in such cases is the frustration of the provisions of special law by invoking provisions of the general law. If the intention of the framer of the Land Reforms Regulation was to make it subordinate to the Punjab Pre-emption Act, the wording in para. 25 should not have been the first right of pre-emption as against superior right of pre-emption and a special forum arid procedure would not have been prescribed. The intention of the framer of the Regulation was to make a tenant owner of the land as soon as its owner bad sold land to any other person. The provisions of this para, cannot therefore be meant to be frustrated by a notification under section 8 of Punjab Pre-emption Act. If the argument- of the learned counsel is carried forward the first right of pre-emption maybe taken away by a notification in a certain area for example Lahore by issuing a notification under section 8 of the Punjab Pre-emption Act. Para. 5 of the Regulation cannot therefore be interpreted in a way that the provisions of para. 25 may be rendered nugatory. Para. 26 further lays down that the provisions of the Regulation, order made thereunder shall not be called in question in any Court. In a case reported as Rahlm Bakhsh alias Rahim v. Gul Muhammad and another (P L D 1968 Lah.907) a decree for possession of the land passed by a Court was not allowed to be executed as it had the effect of frustrating the provisions of West Pakistan Land Reforms Regulation (M. L. R. 64) which contained similar provisions as are contained in the Land Reforms Regulation of 1972. It was in this connection observed as follows :--

"In view of the mandatory provisions of sub-para (4) of para. 25 of the Regulation, the Courts cannot permit the execution of a decree. which will frustrate the object of this para. According to para. 3 of the Regulation, its provisions and any rules or orders made thereunder, shall take effect notwithstanding anything to the contrary in any other law, or in any order, or a decree of a Court, or other authority. Since the execution of this decree passed in this case would be in contraven tion of the clear provisions of sub-para. (4) of para. 25, the execution thereof cannot be permitted. The provisions of Martial Law Regula tion No. 64 will prevail as against any such decree."

6. In a subsequent case paragraph 3 of the Land Reforms Regulation, 1972 came for interpretation in Muhammad Ghias and another v. Member, Federal Land Commission, Rawalpindi (P L D 1975 Lab. 399) in which Mr. Justice Karam Elahi Chauhan as his Lordship then was pleased to observe as follows :-

para. 3 of the Regulation states that it is to take effect notwithstanding any other law to the contrary and as such the point raised on the basis of there being any alleged violation of the provisions of Mohammadan Law cannot have any substance."

in this case the definition of "heir" as given in the Land Reforms Regulation was given effect to though being in violation of the principles of Mohammadan Law Para 25(d) which has the effect of creating the first right of pre-emption in favour of a tenant cannot. be frustrated by a notifica tion under section 8 of the Punjab Pre-emption Act. Therefore, whenever a sale is made, the tenant shall have the first right to pre-empt the same in any area and against any class of persons and the provision cannot be overriden by other statute or notification. The learned counsel for petitioner relied on a reported judgment of the Supreme Court of Azad Jammu & Kashmir in Shakar Khan v. Muhammad Lal and mother (P. L D 1978 S C (A J & K) 126) where Notification No. 1332-60/S L/64 dated 15-10-19(4, made in favour of the displaced persons affected by construction of Mangla Dam was held to be fatal to all pre. emption suits whether pre-existing at the time of the notification or brought after issue of notice except where right of prior purchase incorporated in a decree in favour of pre-emptor. It would therefore be appreciated that in this judgment neither provisions of sub-clause (d) of para. 25(3) of the Land Reforms Regulations was in issue nor section 3 of the aforesaid regulation was involved. The said decision therefore is no avail to the petitioners.

7. It was next argues: that the land in question has been purchases for construction of the house and was a building site and, therefore, the M. L. R. was not applicable to the facts of the present case. The completion has no force as it raises factual controversy which lead never been raised before the Courts below and admittedly respondent No. 4 was cultivating the land in question at the time of the sale.

8. The petition has no force and is dismissed in limine.

M. A., K. Petition dismissed.

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