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Constitutional Petition No. 101 of 1982, decided on 10th August, 1986.

‑‑‑Para. 25‑‑Tenant's right of pre‑emption‑‑ Requirements. Para. 25 of the Land Reforms Regulation, 1972 (M.L.R. 115) has four parts containing in four sub‑pares. Sub‑pare. (1) prohibits the ejectment of a tenant from his tenancy except on proving in a Revenue Court one or more facts mentioned in clauses (a) to (d) of sub‑pare. (1) whereas, sub‑pare. (2) per ‑flea that crop grown at any time during Rabi 1971‑72 on any land in a tenancy shall be apportioned between the tenant and the landlord in accordance with the law for the time being in force. Sub‑pare. (3) apart from spelling out the liabilities as to the payment of land revenue, other taxes, cesses, water‑rate and providing seed and sharing of cost of fertilisiers and pesticides. Clause (d) of sub‑pare. (3) confers on a tenant the first right of pre‑emption in respect of the land comprised in his tenancy subject to other provisions of the M.L.R., whereas, sub‑pare. (4) prohibits the owner or person in possession of any land from levying any cess on or taking of any free labour from any of his tenants.

Para. 3 provides that the provisions of the M.L.R. and any rule or order made there under shall have effect notwithstanding anything to the contrary in any other law or in any order or decree of a Court or Tribunal or other authority or in any rule or custom or usage or in any contract, instrument, deed or other document.

‑‑‑Para. 25‑‑Islamic Jurisprudence‑‑Pre‑emption‑‑Pre‑emption right conferred on tenant under M.L.R. 115, relating to tenancy rights of agricultural land being creation of statute, held, was foreign to Muslim Law.‑‑[Islamic Jurisprudence].

Abdul Razzaq and 19 others v. Khudaidad and 5 others P L D 1974 Quetta 18; Noor Ahmed Shah v. Member, Board of Revenue etc. 1981 S C M R 337; Muhammad Khan v. Abdul Khaliq Khan P L D 1981 S C 155 and P L D 1981 SC 153 ref.

Government of N.‑W.F.P. through Secretary, Law Department v . Malik Said Kamal Shah P L D 1986 S C 360 rel.

‑‑Preamble‑‑North‑West Frontier Province Pre‑emption Act (XIV of 1950), Preamble‑‑Land Reforms Regulation, 1972 (M.L.R. 115), para. 25‑‑Applicability and scope of Punjab Pre‑emption Act, North‑West Frontier Province Pre‑emption Act and right of pre‑emption under M.L.R. 115 discussed.

Punjab Pre‑emption Act, 1913 and the North‑West Frontier Province Pre‑emption Act, 1950 are not applicable to Muslims alone, but equally apply to non‑Muslims, which is evident, inter alia, from sections 4, 5, 14 and 15 of the Punjab Pre‑emption Act, 1913. The M.L.R. was also applicable to both Muslims and non‑Muslims as it speaks of tenants and has not referred to Muslim tenants.

P L D 1974 Quetta 1R Muhammad Hussain v. Hassan Muhammad and others P L D 1984 S C (A J a K) 122; Allah Dad aind another v. Hakam Dad and others P L D 1960 Lah. 900; Muhammad Iqbal v. Ghulam Ali Shah P L D 1975 Lah. 1205 and Mehram Shah v. Muhammad Rashid and another reported in 1983 CLC 1 ref.

‑‑‑Para. 25‑‑Islamic Jurisprudence‑ ‑Pre‑emption‑‑'Two Talibs'‑‑Requirements under Islamic Law‑‑Applicability of, to right of pre‑emption claimed under M.L.R. 115‑‑Object of M.L.R. 115 being to provide land to landless peasants, technical requirement of "two Talibs" under Muslim Law, held, could not be pressed into service to defeat suit for enforcement of statutory right.‑‑[Islamic Jurisprudence].

Ghulam Muhammad v. Muhammad Hussain and another P L D 1978 Lah. 478 and Messrs National Carriers Limited v. Messrs Pestonji Bhicanjee, Karachi P L D 1973 Kar. 309 ref.

‑‑‑Art. 199‑‑Land Reforms Regulation, 1972 (M.L.R. 1151 pares. 2(4) a 25‑‑Constitutional jurisdiction, exercise of‑‑Concurrent findings of Courts on facts‑‑Effect‑‑Concurrent findings of Courts below on question of fact and in consonance with evidence on record, held, could not be disturbed by High Court in exercise of constitutional jurisdiction.

Lala Khazanchi Shah v. Haji Niaz Ali A I R 1940 Lah. 12t, ref.

‑‑‑Arts. 203‑D, 203‑F & 203‑GG‑‑Repugnancy to injunctions of Islam‑‑ Declaration as to repugnancy by Federal Shariat Court or Shariat Appellate Bend of Supreme Court‑‑Effect.

In case the Federal Shariat Court or the Shariat Appellate Bench of the Supreme Court declares any law repugnant to the injunctions of Islam and if the same relates to the Federal Legislative List and if the President does not take steps to amend the law so as to bring such law of provision into conformity with the injunctions of Islam, the same shall cease to have effect on the day on which the decision of the Court takes effect, whereas, under Article 203‑GG of Constitution of Pakistan (1973) the decision of the Federal Shariat Court and of the Shariat Appellate Bench of the Supreme Court, on a point within its jurisdiction is binding on a High Court and all Courts subordinate to it..

P L D 1986 S C 360 ref.

‑‑‑Art. 199‑‑General Clauses Act (X of 1897), S. 6‑‑Land Reforms Regulation, 1972 (M . L . R . 115) , para. 25‑‑Repeal of a statute Provision of M. L. R. declared to be repugnant to injunctions of Islam by a competent Court of law‑‑Enforcement of such repugnant provision of law through constitutional petition‑‑Constitutional petition not falling within compass of remedies provided under M.L.R. or hierarchy of forums provided there under‑‑Proceedings on Constitutional petition, held, would not be a proceeding in continuation of suit‑‑Section 6 of General Clauses Act, 1897 would not apply to a suit for pre‑emption which was dismissed by forums below‑‑No decree having been passed in favour of pre‑emptor on date when M.L.R. stood declared as repugnant to injunctions of Islam and its losing effectiveness from a specified date‑‑Suit on basis of such repugnant provision could not be saved.

‑‑‑Arts. 199, 203‑D, 203‑F & 203‑GG‑‑Land Reforms Regulation, 1972 (M . L . R . 115) , para. 25‑‑Constitutional jurisdiction, exercise of‑ Constitutional jurisdiction being discretionary, High Court, held, would decline to exercise its jurisdiction, in respect of decision given by Shariat Appellate Bench of Supreme Court declaring Martial Law Regulation No. 115 as repugnant to Injunctions of Islam with effect from specified date.

Muhammad Moquim Ansari for Petitioner.

Iftikhar Muhammad for Respondents.

Date of hearing: 28th July, 1986

This Writ Petition has been remanded by the Hon'ble Supreme Court in Civil Appeal No. Q/8 of 1985 to this Court by a judgment, dated 3rd May, 1986 in the following terms:‑‑

"The learned counsel for the parties have agreed to the remand of the case to High Court for decision on merits.

The learned counsel for the respondent has made statement that 'Talab' in the instant case was not made as it was not necessary for a tenant pre‑empting under the provision of M.L.R. 115.

In view of this the appeal is allowed and the case is remanded to the. High Court for decision on merits as well as on the question whether 'Talab' is or is not necessary under the provinces of M.L.R. 115."

The brief facts leading to the filing of the above petition as averred therein, are that Khasra No. 917/157/158/159 (hereinafter referred to as 'the suit land') Mahal Khushkaba, Yasinzai Mauza Shaidara Tappa Saddar Tehsil Quetta, measuring 45 rods and 17 poles belonged to one Mrs. B. Clubwala, whereas one Khuda Bux son of Khair Muhammad and Mst. Nawanda daughter of Mool Chand were Lath‑band Bazgars in respect thereof. There existed a brick‑kiln in the portion of Khasra No. 159 even before the creation of Pakistan, inasmuch as, the same was reflected in the settlement of 1941‑45, as the above Khasra number was shown as 'Ghair‑mumkin Godi". It is averred in the petition that the petitioner in 1956 acquired the brick‑kiln and started running it on the above Survey No. 159. It has been further averred that in 1969, the petitioner purchased Lath‑band Bazgar rights from Muhammad Yousuf son of Khuda Bakhsh for a consideration of Ra.41,900 to the extent of half share of the above three survey Nos. against mutation entry No. 91, dated 15th March, 1969 It has also been averred that on 12th June, 1973, the respondent No. 1 had purchased the remaining half share of Lath‑band Bazgar rights in the above survey Nos. for a consideration of Rs.21,000 from Nazir Khan against mutation entry No. 254, dated 12th June, 1973. It has been further averred that on the basis of the above entry No. 254, the respondent No. 1 represented to hold 10331 shares out of 1817 in the Lath‑bandi rights over the entire land including the above Khasra No. 159, which he sold to the petitioner for a sum of Rs. 65, 000 against the mutation entry No. 319, dated 4th September, 1974. It has also been averred that respondent No. 1 after having sold his half share of Lath‑bandi rights alongwith one Nazir Ahmed and Ejaz Hussain purchased the proprietary rights of the suit land and two other survey numbers namely, 918 and 918/157, measuring 6 rods and 10 poles, in addition to the area of the suit land from Mrs. Sheren Jamshed for Rs.1,00,000 by means of mutation entry No. 329, dated 2nd November, 1974. It has also been averred that as soon as the petitioner came to know of the purchase of the proprietary rights in the suit land, he forthwith claimed pre‑emption under para. 25 of the M.L.R. 115 (hereinafter referred to as the "M.L.R.") and also sent a notice, dated 6th January, 1975 to respondent No. 1 and showed his willingness to pay Rs.87, 500 for the suit land being the proportionate price after excluding the price of the above additional survey numbers. It has further been averred that after the service of the above notice, respondent No. 1 purchased 1/3rd share from Ejaz Hussain and Nazir Ahmed for a consideration of Rs.21,800 against mutation entry No. 341, dated 12th January, 1975. It has also been averred that since the respondent No. 1 had not acceded to the above demand of the petitioner, he filed a suit for pre‑emption originally in the Court of Civil Judge, Quetta, but later on, due to amendment in the law, the suit was transferred to the Deputy Commissioner‑cum‑Collector. The above suit was contested by the private respondent. On the basis of the pleadings of the parties, the following four issues were framed:‑‑

"(1) Whether the plaintiff is in unauthorised possession of the suit land. If so to what effect.

(2) Whether the plaintiff has a right of pre‑emption in respect of; land in suit‑.

(3) What is the sale consideration of the land in suit.

(4) Whether the plaintiff has no cause of action on averments under para. 7 of the written statement."

The parties produced ocular as well as documentary evidence. The Deputy Commissioner‑cum‑Collector, Quetta by his judgment, dated 16th November, 1978 decreed the above suit, against which, the respondent No. 1 filed Appeal, which was allowed by the Additional Commissioner, Quetta by means of judgment, dated 31st May, 1980. The petitioner being aggrieved by the above judgment filed revision, but the same was dismissed by the learned Member‑III of the Board of Revenue Baluchistan through his judgment, dated 18th April, 1982. Being aggrieved by the above two judgments, the petitioner filed the above petition on 17th May, 1982, which was disposed of by a judgment of a Division Bench of this Court, dated 12th March, 1984, whereby all the three judgments were set aside and the case was remanded to the Collector to try it afresh after allowing the parties to make amendment in the pleadings, if they so choose and re‑casting of the issues including on the question of 'Talabs'. Against the above judgment, respondent No. 1 filed the above appeal in the Honourable Supreme Court, which was disposed of in terms of the above‑quoted judgment.

2. In terms of the above judgment of the Honourable Supreme Court, this Court has to decide the case on merits as well as the question, whether 'Talabs' was or was not necessary under the M.L.R.

Before taking up the above points, it may be pointed out that as per statement of the learned counsel for the petitioner before the Honourable Supreme Court recorded in the above‑quoted judgment, the petitioner had not made any 'Talab', as according to him, it was not required. The case is, therefore, to be proceeded with on the factual assumption that no 'Talab' was made.

3. Mr. Muqim Ansari, learned counsel for the petitioner in support of the above petition has urged as follows:‑‑

(i) That since the pre‑emption in question is creation of the M.L.R there is no requirement of making any 'Talab' as the principles of Muslim Personal Law cannot be imported into the M.L.R.,

(ii) That respondent No. 1 is estopped from urging that Survey No. 159 was not an agricultural land as to attract para. 25(3)(d) ,of the M.L.R.;

(iii) That even on merits, the petitioner has proved his case that he was holding Lath‑band Bazgar rights which are tenancy rights at the relevant time.

On the other hand, Mr. Iftikhar Muhammad, learned counsel for the private respondents has contended as under:‑‑

(i) That since the M.L.R. does not contain any procedure or any other guideline in respect of pre‑emption in question, and as Muslim pre‑emption law is applicable in Quetta District, the principles of the same including as to the requirement of two 'Talabs' will be applicable in order to claim pre‑emption right;

(ii) That the petitioner had not pleaded any estoppel against respondent No. 1 in the suit or by filing any replication to the written statement;

(iii) That factually the petitioner himself is estopped from urging that Survey No. 159 is agricultural land in terms of para. 2(4) of the M.L.R. as he himself admitted even in this petition that the above survey had a brick‑kiln much before first settlement of 1941 and that he was using as such since 1956; and

(iv) That the petitioner has failed to prove his case on merits.

Mr. Yaqub Khan, learned Advocate‑General appearing for the official respondents has submitted as follows:‑‑

(i) That the right of pre‑emption in question is a creation of the M.L.R.;

(ii) That though the right of pre‑emption in question is a creation of the M . L. R . , but all the incidents of Muslim Law shall be applicable :n order to claim the same.

3‑A. Before touching upon the merits of the above first contention e the learned counsel for the petitioner, it may be pertinent to observe that the M.L.R. was issued on 11th March, 1972 containing the following preamble: ‑‑

"Whereas Islam enjoins equitable distribution of wealth any economic powers and abhors their concentration in a few hands

And whereas it is in the supreme national interest to improve the economic well‑being of the peasantry, by making agriculture a profitable vocation;

Now, therefore, the Chief Martial Law Administrator is pleases ‑ to make the following Regulation."

It may be observed that sub‑pare. (4) of para. 2 of the M.L.R, defines the land as follows:‑‑

"'Land' means land which is not occupied as the site of a town, village, factory or industrial establishment, and is occupied or has been or can be let for agricultural purposes or for purposes allied or subservient to agriculture, and includes the sites o1 buildings and other structures on such land."

Whereas, para. 25 deals with the rights of tenants including the right of pre‑emption. It may be advantageous to reproduce the same, which reads as follows:‑‑

"25. Rights of Tenants.‑‑(1) A tenant shall not be ejected from his tenancy "unless it is established in a revenue Court that he has‑‑

(a) failed to pay the rent in accordance with the terms of his tenancy; or

(b) used the land comprised in the tenancy in a manner which renders it unfit for the purpose for which he held it; or

(c) failed to cultivate or arrange for the cultivation of the land comprised in the tenancy in accordance with the terms thereof, or if there are no express terms in this behalf, in accordance with the , customary manner of cultivation in the locality; or

(d) sub‑let his tenancy.

(2)The crop grown at any time during Rabi 1971‑72 on any land comprised in a tenancy shall, on its maturing, be apportioned between the tenant and the landlord in accordance with the law for the time being in force.

(3) As from Kharif 1972‑‑

(a) Land revenue and other taxes, cesses, surcharge and levies on land shall be payable by the owner;

(b) The liability for payment of water‑rate, and providing seed for any land shall be that of the owner or other person in possession thereof, other than the tenant;

(c) The cost of fertilisers and pesticides required for the land comprised in a tenancy shall be shared equally between the owner and the tenant;

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

(4) No owner or person in possession of any land shall levy any cess on or take any free labour from, any of his tenants. "

4. In order to bring the land within the above‑quoted definition given in para. 2(4) of the M.L.R. one has to prove the following ingredients:‑‑

(i) that the land is not occupied as site of a town, village,‑ factory or industrial establishment;

(ii) that the land is occupied or has been or can be let out for agricultural purposes or for purposes allied or subservient to agriculture, which will include the sites of buildings and other structures on such land.

Whereas, above‑quoted para. 25 of M.L.R. 115 has four parts, containing in four sub‑pares. part 1 prohibits the ejectment of a tenant from his tenancy except on proving in a Revenue Court one or more facts mentioned in sub‑pares. (a) to (d) of para. 1, whereas, part‑2 provides that crop grown at any time during Rabi 1971‑72 on any land comprised in a tenancy shall be apportioned between the tenant and the landlord in accordance with the law for the time being in force Part‑3 apart from spelling out the liabilities as to the payment of land revenue, other taxes, cesses, water‑rate and providing seed and sharing of cost of fertilisers and pesticides. Sub‑pare. (d) confers on a tenant the first right of pre‑emption in respect of the land comprised in his tenancy subject to other provisions of the M.L.R., whereas; Part 4 prohibits the owner or person in possession of any land from levying any cess on or taking of any free labour from any of his tenants

It may also be pertinent to point out that para. 3 provides that the provisions of the M.L.R. and any rule or order made thereunder shall have effect notwithstanding anything to the contrary in any other law or in any order or decree of a Court or Tribunal or other authority or in any rule or custom or usage or in any contract, instrument, deed or other document.

5. Having referred to the relevant paras. of the M.L.R., it may be appropriate to revert to the submissions made by the learned counsel for the parties. It may be pertinent to observe that Mr. Muqim Ansari, learned counsel for the petitioner has not cited any case law in support of his submission that the requirement of two 'talabs', namely, Talab‑‑i Mowasibat i.e.; jumping demand and Talab‑i‑Ishhad i.e.; demand with invocation of witnesses, cannot be imported into the M.L.R.

On the other hand, Mr. Iftikhar Muhammad, learned counsel for the private respondents has cited the following cases furtherance of his submission that the principles of Muslim Personal Law of pre‑emption shall be applicable:‑‑

(I) Abdul Razzaq and 19 others v. Khudaidad and 5 others, reported in P L D 1974 Quetta 18, in which, a learned Single Judge of the erstwhile High Court of Sind and Baluchistan while hearing two second appeals and three revisions arising out of five pre‑emption suits in respect of agricultural land considered the question whether pre‑emption right was inheritable or not, and held that since the right of pre‑emption is governed by Hanafi Law, it did not devolve on the legal heirs of Muslim Personal Law Shariat) application Act, 19622. It was firth held that after the death of the pre‑emptor, suits had abated. It w also held that section 2 of the West Pakistan Muslim Personal L (Shariat) Application Act, 1962 was applicable to Quetta Division whih provided that notwithstanding any custom or usage, in all question regarding succession (whether testate or in testate), the rule of decision subject to the provisions of any enactment for the time being in for shall be the Muslim Personal Law (Shariat) in cases where the parti are Muslims. It was also held that since unlike Punjab and the North‑We Frontier Province, there is no statute governing pre‑emption in t Province of Baluchistan, therefore, the rights of the appellants are be governed by Hanafi Law and their reliance on local customs, if an is misconceived.

(ii) Noor Ahmed Shah v. Member, Board of Revenue etc. report in 1981 S C M R 337. In the above case, a petition for leave again the judgment of the Peshawar High Court was filed, in which, it w inter alia, held that to a suit for pre‑emption under para. 25(3)(d) the M.L.R. the provisions relating to procedure contained in N.‑W.F. Pre‑emption Act (XIV of 1950) including the requirement of pre‑empter money deposit in terms of section 23(4) of the said Act shall applicable. The Honourable Supreme Court while dismissing the petiti for leave made the following observations on the above point:‑‑the deceased pre‑emptor in view of section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. It was further held that after the death of the pre‑emptor, suits had abated. It was also held that section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 was applicable to Quetta Division which provided that notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), the rule of decision, subject to the provisions of any enactment for the time being in force shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims. It was also held that since unlike Punjab and the North‑West Frontier Province, there is no statute governing pre‑emption in the Province of Baluchistan, therefore, the rights of the appellants are to be governed by Hanafi Law and their reliance on local customs, if any, is misconceived.

(ii) Noor Ahmed Shah v. Member, Board of Revenue etc. reported in 1981 S C M R 337. In the above case, a petition for leave against the judgment of the Peshawar High Court was filed, in which, it was inter alia, held that to a suit for pre‑emption under para. 2 .;3)(d) of the M.L.R. the provisions relating to procedure contained N.‑W.F.P. Pre‑emption Act (XIV of 1950) including the requirement of pre‑emption money deposit in terms of section 23(4) of the said Act shall be applicable. The Honourable Supreme Court while dismissing the petition for leave made the following observations on the above point:‑‑

"There is no other provision in the Martial Law Regulation defining the procedure to be followed in such pre‑emption suits. In these circumstances, the High Court appears to us to be right in taking the view that paragraph 25(3)(d) of the Regulation creates a substantive right of pre‑emption in favour of the tenants, but it does not seek to override or depart from the procedure embodied in the N.‑W.F.P. Pre‑Emption Act for dealing with suits instituted for the exercise of this right. It is significant that the Martial Law Regulation does not even attempt to define the term 'pre‑emption' for the obvious reason that the intention appears to be that it will carry the same meaning and definition as already stand embodied in the relevant pre‑emption law obtaining in the province concerned. We are, accordingly, in agreement with the learned Judges of the High Court that the pre‑emption suit filed by the petitioner was to be heard by the Collector, as a civil Court, following the procedure already prescribed by the N.‑W.F.P. Pre‑Emption Act. The Collector was, therefore, acting within his jurisdiction in prescribing a period for the deposit of the pre‑emption money, and in rejecting the plaint on account of non‑compliance with his direction, as envisaged by subsection (4) of section 23 of the Pre‑Emption Act."

(iii) Muhammad Khan v. Abdul Khaliq Khan reported in P L D 1981 (SC) 155. In the above case, the Honourable Supreme Court while maintaining the judgment of the Lahore High Court held that to a suit for pre‑emption under para. 25(3)(d) of the M.L.R., the provisions of Punjab Pre‑emption Act, 1913 (1 of 1913) as to the procedure shall be applicable. It was further held that the M.L.R. simply grants a preferential pre‑emptry status to tenants with regard to land comprised in their tenancy and this is in continuation of the right under the Punjab Pre‑emption Act and in fact the pre‑emptor enforces the right of pre‑emption basically granted by the above Act. It may be advantageous to reproduce the relevant observation, which reads as follows:

"Section 21 provides that any person entitled to a right of pre‑emption may, when the sale or foreclosure ha3 been completed, bring a suit to enforce that right. The phraseology of section 21 is very significant. The prefix of word 'any' before 'person entitled to a right of pre‑emption' above that entitlement need not flow necessarily from this Act but may emanate from any other law for the time being in force as well. No doubt, whenever any special law‑makes any changes in respect of any particular matter, that law may prevail in respect of that matter but the basic position will remain that the law granting right of pre‑empting sales of agricultural land in Punjab is the Punjab Pre‑emption Act I of 1913. In this way if we examine para. 25(3)(d) of the Land Reforms Regulation 115 of 1972, we notice that by itself it does not define what is a right of pre‑emption it does not state regarding which transactions it can be enforced, and about which transactions it cannot be enforced. It does not state for instance when there are joint tenants in a particular area of land, how the right is to be regularised and enforced; it does not state as to what is the procedure for the determination and enforcement of that right namely whether a deposit or security for 'Zari‑Panjum is to be asked for from a plaintiff or not; and what would be the procedure for fixing the price; whether the Court would have the power to determine the market price in place of price pleaded by the parties and if so, how and on which basis and in what manner. Similarly it does not deal with various other subject‑matters contained in the Punjab Pre‑emption Act. All this will show that para. 25(3)(d) of Land Reforms Regulation 115 of‑1972 cannot be said to be a law which regulates or provides any procedure to enforce a right of pre‑emption. It simply grants a preferential pre‑emptor status to 'tenants' with regard to land comprised in their tenancy. In the Punjab Pre‑emption Act occupy tenants were entitled to pre‑empt but now all that para. 25(3)(d) has done is that besides granting this right to all types of tenants; it gives them the first right placing the other classes entitled to pre‑empt below and next to them. The words 'first right' show that they are to be read into (for example) section 15 of the Punjab Pre‑emption Act, for the purpose of their enforcement, because otherwise the concept of the phrase 'first right' would neither be clear nor first anywhere by itself just in the abstract. In this manner, these words have impliedly become a part of section 15, and as such a suit by a tenant to enforce his 'first right' of pre‑emption 'can rightly' be called a 'suit to enforce a right, of pre‑emption under the provisions of this Act' namely Punjab Pre‑emption Act, to which section 30 can safely be applied. Even otherwise emphasis in section 30 is on institution and filing of suits under this Act and not merely to preference which flow under this Act because as already clarified above preference may flow from any other law for the time being in force, but so long as the basic right of pre‑emption itself originates from this Act, all suits in that respect shall be suits "to enforce a right of pre‑emption under this Act".

6. In our view, the above judgments relied upon by the learned counsel for the private respondents are not directly applicable to the instant case, as there is no parallel enactment in force in the Province of Baluchistan as in the cases of N.‑W.F.P. and Punjab referred to hereinabove in S C M R of 1981 and P L D S C of 1981 respectively. The question in issue before us is, as to whether the requirement of Muslim Law of two 'Talabs' can be pressed into service in a suit under para. 25(3)(d) of the M.L.R. Learned counsel for the private respondents has not cited any case either under N.‑W.F.P. Pre‑emption Act or Punjab Pre‑emption Act to indicate that even for a suit under the above two enactments, the requirement of two 'talabs' are imported. The pre‑emption right in question is creation of a statute relating to tenancy rights of agricultural land, which is not recognized by Muslim B Law and, therefore, it is foreign to the Muslim Law. In this connection, reference may be made to a recent judgment of the Shariat Appellate Bench of the Honourable Supreme Court, namely, Government of N.‑W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah, reported in P L D 1986 S C 360, wherein vires of para. 25(4)(d) of the M.L.R. was considered and the majority view was that it was repugnant to Islamic tenets. Mr. Justice Muhammad Afzal Zullah, Chairman while concurring with the judgment of Mr. Justice Pir Muhammad Karam Shah and Mr. Justice Muhammad Taqi Usmani on the above point observed as follows:‑‑

"On the other hand, I agree with the propositions laid down on the law of pre‑emption in the leading judgment of my learned brother Pir Muhammad Karam Shah, J. as also with the similar propositions and specific points contained in the judgment of my learned brother Maulana Muhammad Taqi Usmani, J.

In particular I would also emphasise that paras. 4 to 10 of the latter judgment ‑besides establishing the fundamental question that the law of pre‑emption in Islam is a specified exception to the general law of freedom of contract and purchase in Islam, also answers the point regarding repugnancy in case new exceptions are created. If it is once established that there are only three categories of pre‑emptors, then it would be repugnant to the‑relevant injunctions if they are curtailed property wise or increased, person wise. The injunctions and these infringements will not be able to co‑exist in the context of definition of repugnancy.

I am further of the view that the distinction made by Hazrat Shah Waliullah Sahib in the two categories of Moamilat as distinguished from Ibadat when occurring in the Sunnah of the Holy Prophet (S.A.W.S.), so ably highlighted in the judgment of my learned brother Maulana Muhammad Taqi Usmani, J., is extremely relevant to the understanding of the 'Injunctions' contained in the Sunnah. And would only add that even if a Sunnah does not on that test, with respect, to Shah Waliullah Sahib qualify to be a command and remain only a Ghuman as in the stated instance, it nevertheless remains the Sunnah of the Holy Prophet (s.a.w.s.). And unless the occasion exhaustive itself and is not to occur again, it will command respect from the believers, at a much higher padestal than the Ghumans of others. It has to be reconciled with all the Commands of Allah in the Holy Qur'an which enjoin upon the believers to follow the Sunnah of the Holy Prophet (S.A.W.S.)."

7. The above cited judgment of a learned Single Judge of the erstwhile High Court of Sind and Baluchistan, P L D 1974 Quetta 18 has also no direct application to the point in issue as the question of 'Talabs' was not involved in the aforesaid case. However, it can be urged that indirectly the above ruling supports the contention of Mr. Iftikhar Muhammad, learned counsel for the private respondents, as it has been held that Hanafi law would govern the case of pre‑emption in the Quetta district in relation to the question whether the right of pre‑emption is inheritable or not. It may be pertinent to point out that a contrary view has been taken recently by the Honourable Supreme Court of Azad Jammu and Kashmir in the case of Muhammad Hussain v. Hassan Muhammad and others, reported in P L D 1984 S C (A J & K) 122, in which, while construing section 14 of the Punjab Pre‑emption Act, 1913, it has been held that the right of pre‑emption conferred by statute would survive to legal representatives of a pre‑emptor in case of his death and that the matter of survival of such right should be decided in view of principles of English jurisprudence and not in light of personal law as enunciated by Fiqah Hanafi or any other school of thought. In the above case, in support of the above view, reliance has been placed on a number of cases, namely, (i) Allah Dad and another v. Hakam Dad and others reported in P L D 1960 Lah. 900, (ii) Muhammad lqbal v. Ghulam Ali Shah reported in P L D 1975 Lah. 1205 and (iii) Mehram Shah v. Muhammad Rashid and another, reported in 1983 CLC 1.

In this regard, it may be pointed out that the Punjab Pre‑emption Act, 1913 and the N.‑W.F.P. Pre‑emption Act, 1950 are not applicable to Muslims alone, but equally adply to non‑Muslims, which is evident, inter alia, from sections 4, 5, 14 and 15 of the Punjab Pre‑emption Act, 1913. The M.L.R. was also applicable to Muslims and non‑Muslims as it speaks of tenants and has not referred to Muslim tenants. It may also be pertinent to point out that the right of pre‑emption was recognizes among Arabs prior to Islam. It was also recognized under Roman Law. It may aso be pointed out that even among Hindus in certain areas ofl pre‑partitioned India, pre‑emption right was enforceable on account of customs. In t1Tis regard, reference may be made to Para. 229 of Mullal Principles of Muhamedan Law, 1976 print, which reads as follows:‑'

"229. Pre‑emption among Hindus.‑‑ The right of pre‑emption is recognized by custom among Hindus who are either natives of or are domiciled in Bihar, Sylhet and certain parts of Gujrat, such as Surat, Broach and Godhra, and it is governed by the rules of the Muhamedan law of pre‑emption except in so far as such rules are modified by such custom.

Where the existence of any such custom is generally known and judicially recognized, it is not necessary to assert of prove it."

We are inclined to hold that since the right of pre‑emption in question is a creation of a statute and is available not only to Muslims but also to non‑Muslims, as the object of the M.L.R. was to provide land to the landless, peasants, the technical requirement of two 'Talabs' under the Muslim law, cannot be pressed into service to defeat a suit for enforcement of the above statutory right.

9. Adverting to Mr. Muqim Ansari's contention that respondent No.l is estopped from urging that the Survey No. 159 was not an agricultural land as to attract para. 25(3) (d) of the M.L.R. it may be observed that this was not pleaded by the petitioner in the plaint or by filing a replication to respondent No.l's written statement in the suit. However, the petitioner has, inter alia, pleaded in the present petition. In furtherance of the above submission, Mr. Muqim Ansari, learned counsel for the petitioner apart from relying upon section 115 of the Evidence Act has also referred to the following cases:

(i) Ghulam Muhammad v. Muhammad Hussain and another, reported in P L D 1978 Lah. 478, in which, a learned Single Judge of the Lahore High Court while construing section 115 of the Evidence Act (equivalent to section 114 of Qanoon‑e‑Shahadat Order, 1984 held that doctrine of estoppel is based on theory that the plaintiff by acting on statement or conduct of defendant having changed his position and is likely to suffer loss if defendant is allowed to back‑out from his statement or conduct.

(ii) Messrs National Carriers Limited v. Messrs Pestonji Bhicanjee, Karachi, reported in P L D 1973 Kar. 309. In the above case, Division Bench of the erstwhile High Court of Sind and Baluchistan while construing section 115 of the Evidence Act, inter alia, held that estoppel need not be specifically pleaded and on the basis of the record it is open to the Court to consider whether a party to the proceeding can be allowed to take a stand contrary to its earlier position or representations made to other party.

10. In the instant case, if the petitioner is entitled to press into service the doctrine of esoppel against respondent No.l, in our view, the latter is equally entitled to urge the same against the petitioner as according to the admitted position the brick‑kiln existed on Survey No. 159 even prior to the settlement of 1941 i.e. ; even prior to partition of India. It is also an admitted position even according to the averment in the petition that the petitioner has been running the above brick‑kiln since 1956 himself. The question, therefore, requires consideration is, as to whether the above survey number can be treated as land in terms of sub‑para. (4) of para. 2 of the M.L.R. quoted hereinabove in para. 3. As pointed out hereinabove, the object of the M.L.R. was to provide agricultural land to landless tenants for the purpose of cultivation and not for any other purpose. Inter alia, the above survey number is situated in Saddar Tehsil, Quetta and a portion of which has been used for running a brick‑kiln. Mr. Iftikhar Muhammad, learned counsel for the private respondents has referred to the case of Lala Khazanchi Shah v. Haji Niaz Ali, reported in A I R 1940 Lah. 126, in which, a learned Single Judge while construing section 2(3) of the Punjab Alienations of Land Act held that the land continuously used for brick‑kiln from long time does not fall within the definition of land given in section 2(3) of the aforesaid Act. It may be advantageous to reproduce section 2(3) of the said Act, which reads as follows:

The expression 'land' means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purpose or for purposes subservient to agriculture or for pasture, and includes‑‑(a) the sites of buildings and other structures on such land; (b) a share in the profits of an estate or holding; (c) any dues or any fixed percentage of the land revenue payable by an inferior landowner to a superior landowner; (d) a right to receive rent; (e) any right to water enjoyed by the owner or occupier of land as such; (f) any right of occupancy; and (g) all trees standing on such land."

It may be noticed that the above‑quoted definition was couched in the same terms as the definition given in sub‑para. (4) of para. 2 of the M.L.R. except that the definition of land given in the latter is more wider in its scope.

11. It may be pertinent to point out that the two forums below have held on the basis of the evidence that the major portion of the above Survey No. 159 is used as a brick kiln. It is according to the statement of Mr. Muhammad Iqbal, a Revenue Officer examined before the Collector by the petitioner, the above survey number is shown as "Chair Mumkin Godi"

It may also be pertinent to quote the relevant portion from the order of the learned Member‑III of the Board of Revenue Baluchistan, which reads as follows:‑

"After hearing the arguments of the learned counsel for the parties and going through the record of the case I have come to the conclusions that the land entering into Khasra No‑159 measuring 40 rods 9 poles has not been proved as agricultural land rather it has been proved as Chair Mumkan Godi and according to own witness of the petitioner namely Muhammad Iqbal Chair Mumkan mean the land actually used for Bhatta (brick‑kiln) even the petitioner himself admits that this land is being used for brick‑kiln which according to the definition of M.L.R. 115 is Industrial Establishment (Brick‑ Kiln) as such it cannot be said that the petitioner is Lathbund Bazger of this land and consequently he has no right or entitlement to claim pre‑emption over this land. In respect of other pieces of land entering into Khasra No. 158, 12 poles and Khasra No. 917/157 4 rods and 36 poles‑‑Sailaba, these lands have been classified as well and Sailaba by the said witness of the petitioner."

12. The above finding recorded by the Court below on the question that the major portion of Khasra No. 159 has been used for a long) period as brick‑kiln seems to be in consonance with the evidence on record and in any case is supported by some evidence on record and, therefore the same cannot be disturbed by this Court while exercising Constitutional jurisdiction.

We are, therefore, inclined to hold that the petitioner was not entitled to claim pre‑emption in respect of the above survey number, as it is not a land within the ambit of the definition given in sub‑para. (4) of para. of the M.L.R. Mr. Muqim Ansari, learned counsel for the petitioner has referred to certain copies of the extracts from the revenue record to indicate that factually the above survey number has been shown as agricultural land. Mr. Iftikhar Muhammad, learned counsel for the private respondents has pointed out that these documents were not filed in the courts below. Furthermore, there is also evidence on record contrary to the above documents, as pointed out hereinabove, coupled with the admitted fact that the above survey number factually has been shown as brick‑kiln even in the settlement of 1941.

13. It was also contended by Mr. Iftikhar Muhammad, learned counsel for the private respondents that since the Shariat Appellate Bench of the Honourable Supreme Court in the above‑cited case of P L D 1986 SC 360 has held that the M.L.R. is repugnant to the injunctions of Islam and that the President was given time to repeal the above law and, therefore, this court cannot enforce the M.L.R. Learned counsel had not referred to the relevant provision:, of the Constitution on the above aspect and, therefore, we had ordered on 6th August, 1986 for hearing as to the effect of Article 203‑D (3)(b) and of Article 203‑GG of the Constitution for today. We have heard the learned counsel for the parties on the above aspect.

14. Mr. Muqim Ansari, learned counsel for the petitioner has contended that since the M.L.R. shall cease to have effect with effect from 1st August, 1986, the proceedings drawn or any order passed prior to the above date shall not be affected.

On the other hand, Mr. Iftikhar Muhammad, learned counsel for the private respondents has contended that this Court will not give effect to the M.L.R. on a date when it has ceased to have any effect.

Before dilating upon the above contentions, it may be advantageous to reproduce para. 3 of Article 203‑D and Article 203‑GG of the Constitution which reads as follows:‑

In any law or provision of law is held by the Court to be repugnant to the injunctions of Islam,‑‑

(a) the President in the case of a law with respect to a matter in the Federal Legislative List or the concurrent Legislative Lists or Governor in the case of a law with respect to a matter not enumerated in either of those lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam; and

(b) such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect."

Subject to Articles 203‑D and 203‑F any decision of the Court in the exercise of its jurisdiction under this Chapter shall be binding on a High Court and on all Courts subordinate to a High Court."

A perusal of the above‑quoted para. 3 of Article 203‑D indicates that I in case the Federal Shariat Court or the Shariat Appellate Bench of the Honourable Supreme Court declares any law repugnant to the injunctions o: Islam and if the same relates to the Federal Legislative List and if the President does not take steps to amend the law so as to bring such law or provision into conformity with the injunctions of Islam the same, shall cease to have effect on the day on which the decision of the Court takes effect, whereas, under the above‑quoted Article 203‑GG, the decision of the Federal Shariat Court and of the Shariat Appellate Bench of the Honourable Supreme Court, on a point within its jurisdiction is binding on a High Court and all Courts subordinate to it. In the present case, as observed hereinabove, the Shariat Appellate Bench of the Honourable Supreme Court had given 31st July, 1986 by which date the President was, to take steps for repealing the M.L.R, as per above‑quoted para. 3 of Article 203‑D of the Constitution and since no steps apparently have been taken, the M.L.R. has ceased to have any effect with effect from 31st July, 1986 or Ist August, 1986. However, Mr. Muqim Ansari, learned counsel for the petitioner has referred to section 6 of the General Clauses Act 1897 which reads as follows:‑

Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made. then, unless a different intention appears, the repeal shall not:‑

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered there under; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation legal proceeding or remedy may be instituted, continued enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."

15. In our view, the above section has no application for more than one reason, namely, (i) that it applies to a Central Act or Regulation and not to the Constitution and (ii) it speaks of repealing of any enactment, which is not the case in the instant case. The M.L.R. has been declared as repugant to the injunctions of Islam and has ceased to have any effect with effect from the above date or at the most from the following day. The petitioner is seeking the enforcement of the M.L.R. through a Constitutional Petition on a day when a competent Court of law has already declared it as repugnant to the injunctions of Islam. It may be observed that a Constitutional Petition is not a proceeding in continuation of the proceedings which were contemplated under the M.L.R. It may be pointed out that under the M.L.R. a suit for pre‑emption was to be filed before a Collector and appeal against his order was provided before the Commissioner of the Division concerned and against the order of the Commissioner, a Revision was provided to a Member of the Board of Revenue. A writ petition does not fall within the compass of the remedies provided under the M.L.R. or the hierarchy of the forums provided there under and, therefore, it cannot be said that it is a proceeding in continuation of the suit. Furthermore, the two Courts below i.e. the Additional Commissioner and the Member of the Board of Revenue had dismissed the petitioner's suit and, therefore, there ,was no decree in favour of the petitioner on a date when the M.L.R. stood declared as repugnant to the injunctions of Islam and it had ceased to have effect Even otherwise, a Constitutional Petition is a discretionary remedy and a High Court may decline to exercise its above jurisdiction for any cogent reason. In the instant case, there is very strong reason for refusing to exercise the above discretionary jurisdiction, namely, that the Shariat Appellate Bench of the Honourable Supreme Court has declared the M.L.R. as repugnant to the injunctions of Islam and the same has ceased to have effect in terms of the above judgment.

16. We would have restored the decree of the Collector to the extent of Survey Nos. 917/157 and 158 measuring 4 rods 36 poles and 12 poles respectively, but in view of the above judgment of the Shariai Appellate Bench of the Honourable Supreme Court, we have to dismiss the petition with no order as to costs for the reasons highlighted hereinabove.

These are our reasons in pursuance of short order of even date.

A . A . Petition dismissed

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