P L D 1980 Peshawar 99 (PLP)

Respondent No. 1, Sher Afzal Khan, who was the plaintiff in the suit, out of which this second appeal arises purchased field Nos. 2265, 1571, 2238 and 2248 measuring 58 kanals, 17 marlas and 3/4th share out of field No. 2773 measuring 11 kanals, 13 marlas and 1/3rd share out of field No. 1570 measuring 17 kanals, 7 marlas from one Syed Jafar Hussain Rizvi for a sum of Rs. 18,000 on the basis of Mutation No. 3332 attested on 4-9-1971. This land is situate in village Bakka of Haripur Tehsil. Before the expiry of the period of limitation for the enforcement of tight of pre emption provided for in section 31 of the N.-W. F. P. Pre-emption Act, 1950, respondent No. I transferred the entire area purchased by him from Syed Jaffar Hussain Rizvi, either by way of exchange or by sale, in the names of Taj Muhammad Khan, defendant-respondent No. 2, Waris Khan, defendant respondent No. 3, Baloor Khan, defendant-respondent No. 4 and Mst. Zohara Bibi, defendant-respondent No.

5. The last transaction took place on 24-4-1972.

2. The sale in favour of defendant-respondent No. 1 was pre-empted by Sher Afzal Khan, plaintiff appellant, by way of a civil suit filed in the Court of Civil Judge, Haripur. The written statements filed by the defendant respondents gave prise to several issues but out of them only issues Nos. 2 and 8 are relevant for the purpose of disposal of this appeal. These issues which, in fact, raise the same question for consideration read as follows:- "(2) Whether the defendants Nos. 1 and 2 are the displaced per sons of the Tarbela Dam and are exempt from pre-emp tion? (8) Whether the transaction is exempt from pre-emption?" The defence giving rise to these two issues is based on a Notification No. 4400 issued by the Board of Revenue, N.-W. F. P. on 16thApril, 1977, This notification reads as under .- "In exercise of rower, conferred by subsection (21 of section 7 of the North-West Frontier Pre-emption Act, 1950 (N.-W. F. P. Act No. XIV of 1950), the Board of Revenue is pleased to declare that for a period of 3 years (three) from the date of publication of this notification no right of pre-emption shall exist with respect to sale of agricultural land not exceeding fifty (50) acres in a canal irrigated and or one hundred (100) acres in a non-irrigated area and other immovable property not exceeding the market value of ten thousand (10,000) only in favour of persons displaced from Hazara and Mardan Districts in consequence of the construction of Tarbela Dam and certified to be so displaced by the Deputy Land Commissioner. Hazara m the Deputy Land Commis sioner, Mardan, as the case may be."

3. The learned Civil Judge. Haripur by his order dated 21-2-1973 dis missed the, suit after deciding Issues 'Nos. 2 and 8 in favour of defendant respondent No. 1 and the order was upheld by the District Judge, Hazara on 19-11-1974. The plaintiff-appellant has now challenged the concurrent finding of the two Courts below by way of this second appeal.

4. Haji Sardar Bahadur Khan, learned counsel for the appellant, has argued that the aforesaid notification could be availed of to the advantage of defendant-respondent No. 1 in case the following three conditions are satisfied:- (a) The area purchased by him was not more than 100 acres. (b) The market value of the area purchased does not exceeds Rs. 10,000; and (c) The purchaser is a displaced person from Hazara or Mardan Dis tricts in consequence of the construction or Tarbela Dam. He has argued that though, in the present case the area purchased is less than 100 acres, the market value, even according to the defendant-respondent 1, was Rs. 18,

000. It was further contended that there was no evidence worth consideration or, record to establish that the defendant-respondent No.1 is a displaced person from Hazara or Mardan Districts in consequence of the construction of Tarbela Dam.

5. With regard to above the learned counsel for the appellant has tried to interpret the notification in his favour by arguing that for claiming exemption both the area restriction and the limit of market value are necessary and that in the absence of either of them the notification of the Board of Revenue referred to above, will not be attracted. Kh. Abdur Rashid, learned counsel for the respondent, however, has argued that on the construction of the language of the notification it is evidently clear that the exemption pro vision would be applicable if the area purchased is agricultural land measuring not more than 100 acres or if any other immovable property is purchased whose market value is not more than Rs. 10,

000. According to him the words "other immovable property" specifically show, that the condition for market value is not applicable to the agricultural land but is applicable where the sale is of any other immovable property.

6. The learned counsel for the appellant vehemently contended that inter pretation which the learned counsel for the respondents has put on the construction of the notification, is contrary to the pronouncement of the Supreme Court made by the Full bench in the case of Faqir Muhammad Khan v. Mir Akbar Shah (P L D 1973 S C 110). This was a case under the N.-W. P. F. Pre emption Act, 1950, and the exemption from pre-emption was claimed by the vendee on the basis of section 5 of that Act, the relevant portion of which is as under:- "No right of pre-emption shall exist in respect of the sale of, or the foreclosure of a right to redeem- (a) ... ... ... ... ... (b) ... ... ... ... ... (c) agricultural land or village immovable property consisting of an area measuring not more than two kanals purchased by a resident of the village in which such land is situated, where he neither owns a house nor a vacant site measuring more than one kanal, for constructing a house for hi,, own occupation ; (d) In this case the vendee owned a share in an ancestral house but did not own any land or vacant site. He claimed exemption under section 5(c,) of the N.-W. F. P. Pre-emption Act, 1950, referred to above. but it had been argued that the exemption clause would be applicable only if the vendee did not own a house or a vacant site more than one kanal for constructing a house. The specific plea was that the exemption related to the area of one kanal only and not the house. Since the vendee owned a house in a village, he could not claim exemption even though the share in the house was less than one kanal. Precisely speaking the argument was that the words "one kana!" refer to the: vacant site only and not to the house. The Supreme Court rejected the plea and held that in order to claim exemption the vender has to prove only that he does not own any vacant site measuring more than one kanal or does not own any house built on an area of more than one kanal. The learned counsel for the appellant hag argued that the same interpretation would be applicable for construing the language of the Notification of 16-4-1971, referred to above.

7. In my view the arguments though ingenious in nature rave no substance whatsoever. In section 5(c) of the N.-W. F. P. Pre-emption Act, it was clearly proved that the exemption would be available where the vendee "neither owns a house nor a vacant site measuring more than one kanal" Obviously the words "more than one kanal" qualify the louse as well as the vacant site. In the notification tinder consideration, however, it is clearly mentioned. that for claiming exemption the agricultural land should not be more than 100 acres and in respect of other immovable property the market value should not exceed Rs. 10,

000. Any other interpretation would totally defeat the purpose of the notification: for if the restriction of the market value of 10,000 is laid down on the agricultural land also there would be no sale which would be exempt from pre-emption. The reason is that, in shall cases under the Land Acquisition Act, 1894, the market value for the acquisi tion is not less than Rs. 800 per acres. In several case, which have come to my notice the market value per acre touches five figures I fail to understand how the learned counsel for the appellant is putting an interpretation on the notification which is so clear that there can be no doubt of the same being construed in a way other than which the learned Civil Judge and the learned District Judge have interpreted.

8. For the foregoing reasons I am of the view that the two Courts below have rightly held that .the sale is exempt from pre-emption as it is an agricultural land measuring rot more than 100 acres.

9. The learned counsel, as already pointed out, has argued that there is no evidence on record to show that the defendant-respondent No. 1, in whose favour the sale was, made, was a displaced person. He contended that the defendant-respondent No. 1 has not appeared in the witness-box to claim that he is a displaced person and that the only witness appearing on behalf of the defendant-respondent is Baloor Khan who too did not state that the Fida Hussain Shah was a displaced person front Hazara District in consequence of the construction of Tarbela Dam. No doubt there is no oral evidence in this respect on the respondents' side but on the appellant side also there is nothing to establish that the defendant-respondent No. 1 is not a displaced person. In fact the plaintiff-appellant while appearing before the Court denied his knowledge of residential status of the respondent No.

1. These facts are however, immaterial because the notification under consider ation itself provides that a person, who is certified to be a displaced person by Deputy Land Commissioner, Hazara or the Deputy Land Commissioner, Mardan shall be entitled to claim exemption. In the present ease the Deputy Land Commissioner, Hazara has issued a certificate, which has been placed on file as "Exh. D. A." under the said notification, to the effect that Fida Hussain Shah, defendant-respondent No. 1 is a displaced person. Similarly certificate (Exh. D. B.) has been issued in the name of Taj Muhammad defendant-respondent No. 2 also The second certificate is, however, not necessary because it is the sale in the name of Fida Hussain Shah, defendant respondent No. 1, on which the plaintiff-appellant had enforced his right of pre-emption.

10. In view of the above discussion I agree with the two Courts below that the sale in favour of Fida Hussain Shah, defendant-respondent No. 1, is exempt from pre-emption under Notification No. 4400 dated 16-4-1971 issued by the Board of Revenue. The suit and appeal have rightly been dismissed by them. This second appeal is also dismissed with costs. S. A. H. Appeal dismissed.