Need For Amendment Of Punjab Pre Emption Act, 1991

NEED FOR AMENDMENT OF PUNJAB PRE﷓EMPTION ACT, 1991 NEED FOR AMENDMENT OF PUNJAB PRE‑EMPTION ACT, 1991 By Chaudhary Muhammad Bashir, Advocate, Faisalabad The Punjab Pre‑emption Act, 1913 was in force in the Province of Punjab as a settled law. Sections 15 and 30 of the said Act came under examination of the Shariat Appellate Bench of the Supreme Court of Pakistan in its Appellate jurisdiction under Article 203‑F of Chapter 3‑A, Part VII of the Constitution of 1973, as amended by Presidential Order No.3 of 1979, when hearing appeal against the judgment of Federal Shariat Court dated 13th December, 1980 and held section 15 to be repugnant to the Injunctions of Islam, in so far as it granted right of pre‑emption to heirs of the vendor, to the owners of the estate, to the owners of the Patti or other sub‑division of the estate in the limits of which such land or property was situate. It was only the co‑sharer, whose right of the pre‑emption was upheld to be in consonance with the Injunctions of Islam. Section 30, prescribing a period of one year as limitation for enforcing right of pre‑emption, was struck down as being repugnant to the Injunctions of Islam. While doing so, the Bench required the Government of Punjab to enact a consolidated law of pre‑emption, if possible, till 31st July, 1986, failing which the said offending provisions were to cease to have effect from the said date, as per force of Article 203(D)(3)(b) of the Constitution. The Government of Punjab did not comply with the said direction of the Bench and a legal controversy ensued as to the workability of the said Act in the absence of the said struck down provisions. It too was set at rest by the judgment of the Shariat Appellate Bench dated 26th May, 1990 (reported in PLD 1990 SC 865) in which it was held that the whole of the Punjab Pre emption Act, 1913 had become inoperative and no suit for pre‑emption could continue after 31st July, 1986 except those suits in which decrees had been passed before the said date. However when the said controversy was being debated before the Bench, the Government of Punjab, shaking off its proverbial lethargy, promulgated Ordinance V of 1990 on 28th March, 1990, to, bring in conformity the law relating to pre‑emption with the Injunctions of Islam. The said Ordinance could not be converted into an Act within the statutory period of 3 months as required by Article 128(2)(a) of the Constitution, but was instead, followed by a series of Successive Ordinances No.XII of 1990, XIII of 1990, XXVIII of 1990 and IX of 1991 till the enactment of the Punjab Pre‑emption Act, 1991(Act IX of 1991) on 6th April, 1991. Certain provisions of Ordinance XXVIII of 1990 were challenged before the Federal Shariat Court as being repugnant to the Injunctions of Islam and the matter was still sub judice when Act IX of 1991, an exact reproduction of the said Ordinance, was enforced and the Court, preferring to refer to parallel provisions of the Act, gave its judgment on 30th May 1991, reported in PLD 1991 FSC 80 and declared the following provisions of the Act to be repugnant to the injunctions of Islam: (i) Section 2(a); to the extent it excluded urban property from the purview of pre‑emption law. (ii) Section 6(2); which made the exercise of right of pre‑emption dependent on the existence of Zaroorat or to avoid Zarar. (iii) Section 12; which prohibited the exercise of right of pre‑emption within a period of sixty days, if the sale was subject to the stipulation of revocation thereof within that time. (iv) Proviso to subsection (3) of section 13; which made the performance of Talab‑i‑Ishhad in the presence of two truthful witnesses, in rural areas having no postal service, indispensable. The said requirement was subjected to his abilityto do so (v) Section 22; which barred the use of improvement in the status of the vendee‑defendant through inheritance, after the institution of suit, as defence to non‑suit the pre‑emptor‑plaintiff. (vi) Section 29; which empowered the Government, in the public interest, by a Notification in the Official Gazette to declare that in any local area or with respect to any sale or class of sales, no right of pre emption shall exist or only such limited right as it may specify shall exist. (vii) Section 35(2) read with section 1(3); which excluded the application of sections 13 and 30 to suits, filed between the 1st day of August 1986 and the 28th March, 1990 (both days inclusive), whether dismissed or pending, provided the pre‑emptor established that he had made Talab‑i‑Ishhad in the presence of two truthful witnesses. The said judgment was appealed against before the Shariat Appellate Bench which by its judgment dated 2nd of September 1993, reported in PLD 1994 SC 1, set aside the judgment of the Federal Shariat Court to the extent of proviso to subsection (3) of section 13 and section 22 and declared the said provisions to be not repugnant to the Injunctions of Islam and maintained the rest of the judgment of the Court and the aforesaid repugnant parts of the Act were declared to be ineffective from 31st of December, 1993. The Punjab Pre‑emption Act, 1991, as trimmed by the aforesaid judgment of the Shariat Appellate Bench, suffers from the following defects and flaws, which need to be removed by amending it in the manner indicated below:‑‑ "1. Section 3. Interpretation.‑‑‑In the interpretation and the application of provisions of Act, the Court shall seek guidance from the `Holy Qur'an and Sunnah'." The Punjab Pre‑emption Act, 1991 is an exhaustive and self‑sufficient Legislation. It has provided in sufficient detail the right of pre‑emption and the method of enforcement thereof. The provisions thereof are specific and emphatic. The above section does not provide that the said Legislation is subordinate to the Holy Qur'an and Sunnah. If it were so then it was not necessary, at all, to legislate. It would have been enough to say that the law of pre‑emption will be that which is contained in the Holy Qur'an and Sunnah. But it was neither the intention nor was said so. The law of pre‑emption has been spelled out in detail. After having so done, to say that in the matter of interpretations and the application of the provisions of the Act, the Court shall seek guidance from the, Holy Qur'an and Sunnah is nothing but a sheer mockery of Islam. It is like enacting a law to permit drinking without any let and inserting therein a clause that in the interpretation and the application of the provisions of that law, the Court shall seek guidance from the Holy Qur'an and Sunnah. The admitted rule of interpretation of a statute is to give its words their natural meaning in the light of the object of legislation. In this behalf reliance is placed on PLD 1952 PC 29, PLD 1961 SC 61, PLD 1963 SC 704 and PLD 1966 SC 828. The said rule excludes from‑ consideration anything inconsistent with the express words of the Statute. The fact that the Federal Shariat Court has struck down certain provisions of the Act as being repugnant to the Injunctions of Islam exposes the hollowness of the interpretation clause. Could the same object be achieved by pleading in a Civil Court in a Pre emption suit that a certain provision of the statute is inconsistent with the Holy Qur'an and Sunnah and, as such, it may be ignored by giving preference to the provisions of the Holy Qur'an and Sunnah? The answer will be in the negative. If the provisions of the Act cannot be moulded or altered to accommodate the dictum of the Holy Qur'an and Sunnah in the garb of interpretation then the existence of that section is ineffective or superfluous. If it is so then why to provide it in the Act. There is yet another aspect which cannot be overlooked in this connection. Section 4 provides that the provisions of this Act shall have effect notwithstanding any thing in any other law for the time being in force. It is indicative of the intention of the legislature that the provisions of the Act shall reign supreme even if they are in contradiction with parallel previsions existing in any other law on the subject. If Shariat be taken to be operative in Pakistan and it provides something different from the said Act, then the Act is to prevail and the Shariat is to give way to it. So no good purpose is served by the said interpretation section in such a situation: Section 3 thus needs to be deleted. 2. Explanation (II) of section 6 and Illustration (1) of section 7 in so far as these relate to right of passage, of water or right of irrigation. Explanation (II) Shafi Khalit of section 6" means a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation. Section 7. Priorities in the right of pre‑emption.‑‑‑Where there are more than one participators in the special rights attached to the immovable property sold, the person having a special right shall have precedence over a person having a general right. Illustrations (I). A garden is irrigated by a water course which opens from a small canal. If this garden is sold, the person having right of irrigation from the water course shall have precedence over a person having right of irrigation from the canal. But if such garden is irrigated from the small canal, the person having right of irrigation from the water course as well as the person having right of irrigation from the canal shall have the right of pre‑emption. The said combined provisions have the effect of extending right of pre emption to participators in water course and small canal. There is no mention of such right in the Holy Qur'an and Sunnah and as such it runs counter to the preamble of the Act which declares that it is to re‑enact the existing law relating to pre‑emption so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Qur'an and Sunnah. The well system was the only source of irrigation in old days and as such the right of pre‑emption should be granted to those people who irrigate their lands situate on a common well. On that analogy it can be extended to those people who irrigate their lands from a common Nakka under the prevalent canal irrigation system in Pakistan. In both the said cases it will be proper to prevent intrusion of strangers, who are likely to injure the harmony already existing among the participators in the well or Nakka, as the case may be. But to stretch it beyond that and to make it available to participators in water course and small canal will amount to make such people rich at the cost of vendee. On a water course turn of water is fixed for the respective lands. So purchasing land on a Nakka does not involve any inconvenience or discomfort to a person owning on different Nakka. The case of participator of small canal is even remorter or worse than that of participator in water course. It suffers from one more defect. There is no definition of small canal in the Pre‑emption Act or in the Canal and Drainage Act. Furthermore right of pre‑emption is considered an encroachment on the freedom of contract and the right of a citizen to acquire, hold and dispose of property. It should remain confined to persons who are, genuinely, likely to suffer if stranger is allowed to intrude: 3. Section 20. "Where the pre‑emptor and vendee equally entitled.‑‑ Where the pre‑emptor and the vendee fall within the same class of pre‑emptors and have equal right of pre‑emption, the property shall be shared by them equally." The said section was upheld by the Federal Shariat Court when it was challenged before it as being repugnant to the Injunctions of Islam. The reasoning adopted by the Court for upholding the said section is reproduced below‑‑‑ "The "The question is what shall be the position if both the pre‑emptor and vendee have got equal right, for example, if the pre‑emptor and the vendee are both co‑owners or both are adjoining neighbours on either side. There is no explicit verse of the Holy Qur'an or the Sunnah of the Holy Prophet (p.b.u.h.) which may be put forward in support of the proposition that the law as framed under section 20 is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an or the Sunnah of the Holy Profit (p.b.u.h.)." The said finding is open to the following objections:‑‑ (i) The English diction of the observations of Burhanuddin‑al‑Marghinani in Arabic in his book `Al‑Hidayah' which was relied upon by the Court, is reproduced hereunder:‑‑ `if there are more than one pre‑emptors in respect of property sold and they are equal in their rights, their rights of pre‑emption in the said property will be equal. The said reproduced English diction does not support the verdict of the Federal Shariat Court as it relates to equality of rights between the contending pre‑emptors and not between a pre‑emptor and the vendee having equal right of pre‑emption. (ii) The definition of "right of pre‑emption" given in section 2 (c) has not been taken note of by the Court. The definition is reproduced hereunder:‑‑ `right of pre‑emption' means a right to acquire by purchase an immovable property in preference to other persons by reason of such right'." The said definition is in direct conflict with equality clause between the pre‑emptor and the vendee given in section 20. At no point of time in Judicial system of the world pre‑emptor has been given right to share sale of property with the vendee, who is possessed of claim or right equal to that of the pre‑emptor. The pre‑emptor has to show superior right over the vendee in order to succeed. It looks iniquitous, if the vendee, who has concluded the sale in his favour by undergoing the ordeal of bargaining, tapping all resources to collect the sale price sometime extending to selling away his land, cattle, ornaments and household goods; and incurring expenses of Registration of Sale Deed, including the payment of incidental taxes and fees, be asked to share the property purchased by hiss with a pre‑emptor having equal right with him. It is unjust and piratical to allow such a patent injustice to be done at this advanced age of civilization. 4. Section 22. "Improvement made in the status of the vendee‑defendant after institution of the suit.‑‑Any improvement made in the status of a vendee‑defendant after the institution of a suit for pre‑emption shall not affect the right of pre‑emptor‑plaintiff." There existed section 21‑A in the Punjab Pre‑emption Act, 1913, which dealt with the effect of improvement by vendee after institution of suit. It read as under:‑‑ "Any improvement, otherwise than through inheritance or succession, made in the status of vendee defendant after the institution of a suit for pre‑emption shall not affect the right of the pre‑emptor‑plaintiff in such suit. The said section was inserted by the Punjab Pre‑emption Act, 1944. Section 22 of the Punjab Pre‑emption Act has brought about a major change by omitting the words "otherwise than through inheritance or succession". The said section was challenged as being repugnant to the Injunctions of Islam before the Federal Shariat Court and the Court directed the Province of Punjab to insert the phrase "otherwise than through inheritance" in section 22 of the Act in order to bring it at par with section 21‑A of Act of 1913. The observation of the Court is reproduced as under:‑‑ "45. It appears that the Legislature kept in view the provision of the said section 21‑A but seems to have consciously' omitted the exacting phrase `otherwise than through inheritance or succession'. An improvement made subsequently, by conscious act of the vendee may be objectionable for being tainted with mala fide or having acquired the same by deceitful means but an improvement on account of natural phenomena e.g. inheritance, requires exception and should not have been disregarded which seems to be based on the principle of Istihsan. We would, therefore, direct the respondent that the phrase otherwise than through inheritance be inserted in section 22 of the Act: On appeal being taken to the Shariat Appellate Bench against the said judgment of the Federal Shariat Court, the Bench reversed the judgment of the Court by observing as under:‑‑ "42. It appears that while framing section 22 of the Act, 1991 the legislature kept in view the provision of the said section 21‑A, and has intentionally omitted the phrase `otherwise than through inheritance'. The learned Federal Shariat Court has found the omission of this phrase as against the Injunction of Islam on the ground that the improvement taking place on account of natural factor, such as inheritance should have not been disregarded. But we feel that if the Legislature has deemed it fit to omit this phrase and to protect the pre‑emptor against all kinds of improvements it does not violate any Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, rather it seems more pertinent to treat all kinds of subsequent improvements equally. The question is not whether the vendee has improved his status by his conscious act or otherwise. The question is one of principle. The right of pre‑emption arises on the basis of that state of affairs which existed at the time of sale. If the vendee had no right of pre-emption at that time while the plaintiff had it, the right of the plaintiff is established, which cannot be defeated by any subsequent event which takes place after the institution of the suit. The same principle has been enumerated by the scholars of Islamic Jurisprudence also. It is mentioned in Al‑Fatawa Al‑Almigiryyah, a well known compilation of Fiqh. The principle is that pre‑emption could only be claimed on the basis of ownership existing at the time of sale and not on the basis of a subsequent ownership. 43. A careful study of the relevant details in the books of Islamic Jurisprudence makes it clear that the Muslim jurists are of the opinion that any improvement in the status of the vendee after the institution of the suit does not defeat the right of pre‑emptor, no matter whether the improvement was made by an intentional act of the vendee or has taken place according to some natural event like succession. 44. Therefore, it is held that section 22 of the Act 1991 is not repugnant to the Injunctions of Islam as laid down in the Holy Our'an and Sunnah. The judgment of the Federal Shariat Court in this respect is set aside and the appeal of the Punjab Government is accepted." It is true that the omission of the said phrase from Act of 1991 is not repugnant to Qur'an and Sunnah but it is equally true that the exception of improvement on the part of the vendee through inheritance, after the institution of the suit provided in section 21‑A of Act 1913 to defeat the pre emptor was not violative of the Holy Qur'an and Sunnah, which is silent on the subject. The Provincial Legislature has not given conscious and deliberate reason for departing from the previous law on the point in operation since 1944, when section 21‑A was consciously inserted by the Provincial Legislature at that time. Keeping in view the lack of serious deliberations on legislative measures in our Assemblies it can be legitimately inferred that the departure from the previous law may not have been taken note of by the legislators. It is pertinent to point out that the sole object to re‑enact the Act of 1991 was given to "bring in conformity with the Injunctions of Islam, the law relating to pre‑emption". It is not pointed out as to how section 21‑A of the previous Act was repugnant to the Qur'an and Sunnah. In the absence of dictates of Islam on this point there was no jurisdiction to depart from the settled law, which stood the test of time for half a century. If nature has placed the vendee equal to the status of the pre‑emptor then the pre‑emptor, who is to maintain his superiority of right up to the time of passing of decree must fail. So the phrase "otherwise than through inheritance" be inserted in section 22, as desired by the Federal Shariat Court. 5. The requirement for making provision for postponement of decision of pre‑emption suits when the claim of the pre‑emptor or the plea in defence by the defendant are already subject‑matter of pre‑emption suit. There was section 28‑A in the Punjab Pre‑emption Act, 1913 which is reproduced below:‑‑ "28‑A. Postponement of decision of pre‑emption suits in certain cases.‑‑(1) If in any suit for pre‑emption person bases a claim or plea on a right of pre‑emption derived from the ownership of agricultural land or other immovable properly is liable to be defeated by the enforcement of a right of pre‑emption, with respect to it, the Court shall not decide the claim or plea until the period of limitation for the enforcement of such right of pre‑emption has expired and the suits for pre‑emption (if any) instituted with respect to the land or property during the period have been finally decided. (2) If the ownership of agricultural land or other immovable properly is lost by the enforcement of right of pre‑emption, the Court shall disallow the claim or plea based upon the right of pre‑emption derived therefrom." The Act of 1991 does not provide a provision to cover such a situation, therefore, it is necessary that the text of section 28‑A of 191? be planted in the Act of 1991. 6. Deletion of section 31.‑‑This section is reproduced as under‑‑ "31. Notice.‑‑‑(1) The Officer registering the sale‑deed or attesting the mutation of a sale shall, within two weeks of the registration or attestation as the case may be, give public notice in respect of such registration or attestation. (2) The notice under subsection (1) shall be deemed to have been sufficiently given if it is displayed on the main entrance of a mosque and on any other public place of the village or place where the. property is situated. (3) The charges for the notices under subsection (2) shall be recovered from the vendee by the Officer registering the sale or attesting the mutation, as the case may be, at the time of such registration or attestation". The said section is superfluous in view of section 30 under which the period of limitation of 4 months to enforce right of pre‑emption has been reckoned from the date‑‑ "(a) of the registration of the sale‑deed; (b) of the attesting of the mutation, if the sale is made otherwise than through a registered sale‑deed; (c) on which the vendee takes physical possession of the property if the sale is made otherwise than through a registered sale‑deed or a mutation; or (d) of knowledge by the pre‑emptor, if the sale is not covered under paragraph (a) or paragraph (b) or paragraph (e)." Unless notice under section 31 is superadded to section 30 and the period of limitation for filing suit is made subject to service of notice contemplated under section 31, it cannot serve any purpose. The said condition of super-addition, in view of the past history of law of pre‑emption, is uncalled for and, as such, section 31 needs to be deleted. 7. Deletion of section 32. The said section is reproduced below:‑‑ "32. Matters ancillary or akin to the provisions of this Act which have not been specifically covered under any provision thereof shall be decided according to Shari'ah." The Act of 1991 is exhaustive of the right of Pre‑emption Act and the method of enforcement thereof. It is difficult to visualize what ancillary or akin matters are there which will be dealt with under Shariah. Moreover the words `ancillary' and `akin' do not fit in the context of this section. The word `ancillary' means `ancillary' or `supporting' and the word `akin' means alike or similar. Neither the Shariat is, to play; ancillary role nor akin. In the first case Shariat is supposed to act as maid‑servant and in the other as parallel. In both the capacities the role of Shariat will be non‑existent. In the first capacity it' will be too much to exact on Shariat to play as subordinate instrument. In the second capacity if the provisions' of Shariat run parallel to the provisions of the Act then the latter is not required at all. It should be taken off the statute book, as Shariah will be there to reign the field. The said section is superfluous for the reason that it makes Shariah applicable to those areas which have not been specifically covered by any provision of the Act. There can be two sorts of provisions, one substantive and the other, procedural. So far as the substantive is concerned, the Act is exhaustive in enumeration of right of pre‑emption under section 6 and the manner of demand of pre‑emption under section 13, which is considered as integral part of the right. These provisions exclude the possibility of intrusion of Shariah in those matters. So far as the matters of procedure are concerned, Civil Procedure Code and Qanun‑e‑Shahadat have been made applicable to the proceedings under the Act by virtue of section 33. So there is no possibility of attraction of Shariah in the enforcement of the Act. Section 32 needs to be deleted.