P L D 1987 Peshawar 24 (PLP)

‑ Art. 203‑F‑Land Reforms Regulation, 1972 (M. L. R. 115). para. 25‑Civil Procedure Code (V of 1908), S. 115‑Revisional jurisdiction of High Court‑Right of pre‑emption of tenant ‑Validity of‑Where a decree was passed in terms of para. 25 of Land Reforms Regulation, 1972, prior to decision of Supreme Court (P L D 1986 S C 360) such decree, held, would be maintained Revisional jurisdiction declined by High Court in circumstances. Alhaj Sardar Bahadur Khan for Petitioner. Haji Ghulam Basit for Respondent. Date of hearing: 3rd December, 1986. A sale effected in favour of Fazalur Rehman respondent a tenant in occupation vide Mutation No. 999, dated 21‑1‑1978 was pre‑empted by Siddiqqe Gohar Khan a contiguous owner vide Suit No. 282/1 on 29‑11‑1978 Additional Civil Judge, Haripur decreed the suit by his judgment and decree dated 31‑5‑1980 after holding, that a tenant stood divested of his right of pre‑emption in view of the judgment of the Shariat Bench of the Peshawar High Court published in P L D 1979 Pesh. 104 declaring the respective provision of M. L. R. 115 ' repugnant to the injunction 9f Islam. On appeal the learned Additional District Judge, Abbottabad at Haripur reverted the aforesaid judgment decree of the Court of Additional Civil Judge and dismissed the pre‑emption suit after holding that. the judgment of the Shariat Bench of Peshawar High Court was not to have the force of law for having not specified a day on which the decision was to take effect. He further held that paragraph 25 of M. L. R. 115 vesting a first right of pre‑emption in the tenant continued unamended and remained intact till the day and that a tenant‑vendee in occupation can successfully defeat a pre‑emption suit based on inferior qualification of contiguous ownership. The instant revision petition has been directed as against the aforesaid judgment and decree of the Court of Additional District Judge dated 6‑2‑1982 and was admitted to hearing mainly on ground that when the tenant purchases the land he ceases to be a tenant and cannot claim superior right of pre‑emption on the ground of tenancy. Anyhow at the bar today the learned counsel for the pre‑emptor was not to press any longer the argument on the point, of admission of his revision petition. There cannot be taken any cudgel to the proposition of law that respective qualification of the pre‑emptor and vendee in a preemption suit are to be weighed and if a pre‑emptor is found with a superior right of pre‑emption qua the vendee he will succeed in his pre‑emption suit otherwise failure will be assured in his fate. Further a right vested in a person available for defence can be, simultaneously availed with success in his defence. Again assuming for the sake of argument that inferior right of tenancy '9 merges into superior right of ownership on purchase even then a sale made in favour of a tenant in occupation will disentitle the pre‑emptor with inferior right of pre‑emption on the basis of contiguity for at one of the three essential stages i. e. sale, institution and decree of the suit he will not have a superior right of pre‑emption. The argument on the point of admission of the revision petition thus stands repelled.

2. Reliance was mainly placed on P L D 1979 Pesh. 104 vide clause (d) of sub‑para. (3) of paragraph 25 of M. L. R. 115 relating to the investment of first right of pre‑emption of a tenant was declared repugnant to the injunctions of Islam and recommended that the aforesaid clause should be deleted with immediate effect. He contended that infact the said law become operative from the date of its decision i. e. 2nd July, 1979, and that it should be deemed also to have specified the said day when the decision of the Court was to take effect. To appreciate his argument I shall better below reproduce Article 203‑D, clause 2 and clause (3)(a) and (b) of the Constitution:‑ "(2) If the Court decides that any law or provision of law is repugnant to the injunctions of Islam, it shall set out in its decision‑ (a) the reasons for its holding that opinion; and (b) the extent to which such law or provision is so repugnant; and specify the day on which the decision shall take effect: (3) If 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 List, or the Governor in the case of a law with respect to a matter not enu merated 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." The above provisions lay down that a decision of the Shariat Bench of the High Court/Federal Shariat Court shall set out the reasons for its holding that any law or provision of law is repugnant to the injunctions of Islam and shall specify the day on which the decision of the Court shall take effect when meanwhile the President or Governor as the case may be with powers of legislation in the field shall take steps to amend the law into conformity with the injunctions of Islam and that the law or provision of law declared repugnant to the injunctions of Islam shall cease to have effect on the day on which the decision of the Court takes effect. It thus comes to that the aforesaid judgment of the Shariat Bench of the Peshawar High Court was deficient in mandatory constitutional requirement to specify a day enabling the President or Governor, as the case may be with legislative powers in the field to take steps to amend the law into confirmity with the injunctions of Islam and that' being the position it cannot be said that the said judgment shall be deemed to have taken effect immediately. Even otherwise the said judgment has only recommended to the Legislature‑ to delete the aforesaid clause with immediate effect. The said judgment is infact. in the nature and form with recommendatory character and not a mandatory operative judgment.

3. Next the learned counsel for the pre‑emptor petitioner has drawn the attention of the Court to the admissions of two Writ Petitions Nos. 69 and 57 of 1986 by this Court on the point that the vested right of pre‑emption of the tenant under paragraph 25 of M. L. R. 115 cannot be taken away by giving retrospective effect to the judgment of Shariat Appellate Bench of the Supreme Court before its operative date of 31‑7‑1986. The judgment of the Shariat Appellate Bench of the Supreme Court published in P L D 1986 S C 360 has declared inter alia paragraph 25 of M. L. R. 115 relating to the first right of pre‑emption of the tenant repugnant to the injunctions of Islam and accordingly directed the Federal Government to amend the law in confirmity with the injunctions of Islam till 31‑7‑1986 when after the date set, out the said law shall be deemed void. In this context it is, however, humbly submitted that the proposed amend ment in the Land Reforms Regulation of 1972 falls in the sphere of the Provincial Legislature which has to take steps to amend the law in con firmity with the injunctions of Islam. Anyhow paragraph 25 of M. L. R. 115 relating to the first right of pre‑emption of tenant shall be deemed to continue and operate till 31‑7‑1986 in view of the judgment of the Shariat Appellate Bench of the Supreme Court which has the overriding and binding effect on the judgments of, all other Courts including the Shariat Bench of the High Court or Federal Shariat Court and the latter's decisions shall accordingly give way to the decision of the Supreme Court.

4. Since in the instant case a decree was passed prior to 31.7‑1986 when the decision has to take effect, hence this Court shall maintain the judgment and decree of the Court of Additional District Judge which has D upheld the statutory first right of pre‑emption of the tenant and would accordingly dismiss the revision petition with no order as to costs. A. A.1492/P Revision dismissed.