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‑‑Art. 185(3) ‑Land Reforms Regulation, 1972 (M. L. R. 115), para. 2(12)(13) [as amended by Land Reforms Regulation (Punjab Amendment) Ordinance (V of 1982), S. 2]‑Pre‑emption‑Tenant-- Definition‑Status of a lessee‑Leave to appeal granted to examine question that previous decisions of High Court on status of lessee and reasoning recorded for view taken therein were not noticed ; that some of sections were specifically made retrospective by S. 1(3) of Punjab Amending Ordinance, 1982, while S. 2 dealing with definition of tenant was omitted therefrom i.e. from S. 1(3) of Punjab Amending Ordinance of 1982 and that if this had been brought to notice of High Court hearing the matter, it might have reached different conclusion.‑[Pre‑emption‑Words and phrases].

Muhammad Yousaf v. Province of Punjab through Collector, Lyallpur P L D 1976 Lah. 328 ; Muhammad Ashraf v. Member (Revenue), Board of Revenue, Punjab Lahore and 18 others 1984 C L C 2950 and Bakhta war Shah and others v. Member, Board of Revenue and others 1985 S C M R 348 mentioned.

Syed Afzal Haider, Advocate Supreme Court and Rana Maqbool A. Kadri, Advocate‑ on‑Record for Petitioner.

Ch. Ijaz Ahmad, Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑on‑Record for Respondents.

Date of hearing : 15th February, 1986.

ASLAM RIAZ HUSSAIN, J.

‑These two petitions are being heard together as they have been filed by the same person and are directed against the same judgment dated 19‑11‑1985. Facts giving rise to these petitions are, briefly, that the respondents (vendees) in each case purchased some agri cultural land in District Faisalabad. The petitioner who was in cultivating possession of the suit land as lessee filed a suit to pre‑empt the sales on the ground that being in cultivating possession of the land in dispute (as a lessee) he had the same right of pre‑emption as a 'tenant' under the Land Reforms Regulation, 1972 (M. L. R 115). The suit was decreed by the learned trial Court in favour of the petitioner plaintiff, holding that being "Patedar/tenant" be had the preferential right of pre‑emption. The respondents filed an appeal against the decision of the trial Court which was dismissed. The respondents then filed a revision petition before the Member, Board of Revenue, who upheld the decision of the trial Court and dismissed the revision. The respondents then filed a writ petition, which was allowed vide the impugned judgment on the ground that in view of the amendment in the law, vide Land Reforms Regulation (Punjab Amendment) Ordinance (V of 1982), a lessee has been taken out of the definition of a tenant and as such the petitioner had no preferential right of pre‑emption.

Hence the present petition for leave to appeal.

2. It would be useful to reproduce the original definition of the word 'tenant' as it existed in section 2(12) of M. L. R. 115 as well as the defini tion as amended by the Amending Ordinance :‑

Section 2(12) of Land Reforms Regulation, 1972 (M. L. R. 115).‑Tenant means a person who holds land under another person and is, or but for a special contract would be, liable to pay rent for that land to that other person and includes the predecessors and successors in‑interest of such person but does not include:

(a) a mortgagee of the rights of a landlord ;

(b) a person holding State land in any manner and for any purpose, or

(c) a person to whom a holding has been transferred, or an estate or holding has been allotted in farm under the West Pakistan Land Revenue Act, 1967, for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear ;

Section: 2 (iii) of the Amending Ordinance (V of 1982).‑"After clause (12) amended as aforesaid the following new clause shall be added, namely :‑

(13) "tenant" means a person who holds land under another person and is, or, but for a special contact, would be, liable to pay rent for that land to that person and includes the predecessors and successors‑in‑interest of such person but does not include‑

(a) a mortgagee of the rights of a landowner ; or

(b) a person holding any land under the Federal Government or Provincial Government, or under any statutory authority or corpora tion set up by any such Government as may be notified by it in this behalf ; or

(c) a person to whom a holding has been transferred, or an estate or holding has been let in farm, for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear ; or

(d) a lessee, whether cultivating the land himself or through another person."

The petitioner's counsel pointed out that the word 'tenant' as defined in para. 2(12) of M. L. R. had been amended by section 2 of the Land Reform Regulation (Punjab Amendment) Act, V of 1982.

3. The learned counsel for the petitioner argued that the afore mentioned amendment in the law had clearly come into force on the 24th of April, 1982, because it is mentioned in section 1, that "it shall come into force at once".

He pointed out further that while, by virtue of subsection (3) of section 1 thereof, sections 3, 4 and 5 of the Amending Ordinance were specifically given retrospective effect yet section 2 was left out and was not given retrospective effect.

The learned counsel, therefore, argued that, by necessary implication, section 2 of the Amending Ordinance which deals with the definition of the 'tenant' must be treated as prospective in effect and would apply to cases filed after enforcement of the Amending Ordinance i. e. after 26‑4‑1082 and since the petitioner's suit had been Fled in 1977 and decided in July, 1980, his case would be covered by the definition of tenant as it existed prior to the amendment. He also relied on the case of Muhammad Yousaf v. Province of Punjab through Collector, Lyallpur (PL D 1976 Lah. 328), according to which a lessee in cultivating possession was equated with a tenant.

4. As against it the learned counsel for the respondents relied on Muhammad Ashraf v. Member (Revenue) Board of Revenue. Punjab Lahore and 18 others (1984 C L C 2950) wherein a contrary view has been taken. Respondents' counsel has also relied on Bakhtawar Shah and other v. Member, Board of Revenue and others (1985 S C M R 348) in which this Court, while dealing with a similar amendment in the Province of N.‑W. F. P. held that the lessee who was cultivating the land himself through a person is a tenant. It held further that the Amending Ordinance being declaratory and clarificatory to nature was meant obviously to supply the omission and as such was retrospective in operation".

5. In reply the learned counsel for the petitioner submitted that apart from the fact that previous decisions of the High Court on the status of a lessee and the reasoning recorded for the view taken therein were not noticed that some of the sections were specifically made retrospective by section 1(3) of the Punjab Amending Ordinance, 1982, while section 2 dealing with the definition of 'tenant' was omitted therefrom i. e. from section 1(3) of the Amending Ordinance of 1982. He submitted that this been brought to the notice of the learned Bench of the High Court hearing the matter it might have reached a different conclusion.

6. The question raised by the learned counsel for the petitioner needs consideration. Leave is, therefore, granted for that purpose.

7. Security in the sum of Rs. 2,000.

8. Status quo shall be maintained in the meanwhile.

9. The case shall be argued on the same record with permission to file additional documents.

M. B. A. Leave granted.

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