P L D 2004 Azad J&K 17 (PLP)

‑‑‑Ss. 20‑A, 6, 14 & 21‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.56‑C‑‑‑General Clauses Act (X of 1897), S.6‑‑‑Suit for pre‑emption ‑‑‑Superior right of pre‑emption ‑‑‑Improvement in' status ‑of vendee ‑‑‑Effect‑‑‑Plaintiff filed suit claiming superior right of pre emption on ground of contiguity and right of easement attached to suit land‑‑‑Defendant repudiated claim of plaintiff contending that he had improved his status after filing of suit by plaintiff and that after said improvement he having become co‑sharer in suit‑land, plaintiff had no right of prior purchase as against him‑‑‑Suit was dismissed by Trial Court on ground of said improvement in the status of defendant, but Appellate Court reversed findings of Trial Court on ground that under amended law in shape of S.20‑A of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993, improvement in status of vendee after institution of suit, was not permissible, and decreed suit of plaintiff‑‑ Validity‑‑‑Any improvement in status of vendee after institution of suit by plaintiff, would not defeat the right of pre‑emptor as it was against Islamic Injunctions‑‑Section 20‑A of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 was a new legislation keeping in view Islamic jurisprudence and it had affected pending cases‑‑‑Suit filed by plaintiff which was pending when said new legislation came into being, could not escape the effect of said new, legislation‑‑‑Alleged improvement in the status of vendee/defendant was not a right recognized by any enactment of law, but it was simply an intentional act of vendee/defendant or a natural event and it could not be given status of right accrued to a person in view of some old enactment and was not protected under S.6 of General Clauses Act, 1897‑‑‑Section 20‑A of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 was a new legislation allowing a right of prior purchase to continue after institution of suit. "Fazal‑Dad v. Khadim Hussain 1995 MLD 1299 and Muhammad Rashid v. Muhammad Khaliq 2001 CLC 1124 ref. (b) Interpretation of Statutes‑‑‑ ‑‑‑‑Legislation is always supreme‑‑‑Legislature could take away a right accrued under old law‑‑‑Intention of law maker however was to be kept in view and was to be gathered from the phraseology used in Legislation‑‑If a piece of Legislation was added or made part of statute and it appeared that the intention of law maker was not to affect the rights, liabilities and privileges available to a person under un amended or repealed law, then definitely its application was prospective. This appeal arises out of the following facts:‑‑

2. Muhammad Aslam Khan respondent herein brought a suit for possession on the ground of right of prior purchase regarding suit‑land measuring 14 Kanals 13 Marlas out of Survey Nos. 421, 426, 427, 429, 430 and 437 total measuring 44 Kanals 6 Marlas in the Court of Sub Judge Pallandari against Aqal Hussain appellant herein on 20‑6‑1997. The sale‑deed under challenge was executed on 26‑2‑1997 for a consideration of Rs.2,50,000 however, according to pre‑emptor the actual price paid to the vendor was two lac only. The suit was brought on the ground of contiguity and right of easement attached to the suit land. The defendant‑appellant repudiated the claim put forwarded by the plaintiff‑respondent and contended that he was co‑sharer in the suit‑land therefore, the respondent had no right of prior purchase as against him. The trial Court after due process of law disallowed the suit on the ground of improvement in the status of vendee. The respondent challenged the Judgment and decree of the learned trial Judge before learned District with success. The learned District Judge observed that under amended law in shape of section 20‑A of Prior purchase Act the improvement in the status of vendee after the institution of the suit was not permissible therefore, the suit by the respondent was allowed.

3. The learned counsel for the appellant while assailing the findings of First Appellate Court submitted that the amendment in section. 20‑A of Prior Purchase Act took place on 20‑11‑1998 whereas the vendee had improved his status through a decree, dated 11‑8‑1997 on account of which he became a co‑sharer in the suit‑land therefore, through the improvement in the status of vendee, the learned trial Judge rightly disallowed the suit by respondent. He during his arguments relied upon a case law titled "Fazal‑Dad v. Khadim Hussain (1995 MLD 1299) ant contended that in view of settled law the amendment in section 20 of Right of Prior Purchase Act could not affect the improvement in the status made prior to the said amendment.

4. Conversely, the learned counsel for the respondent while controverting the arguments on the side of appellant argued that the improvement in the status of vendee after the institution of suit was not permissible as it was against injunctions of Islam. According to the learned counsel, the improvement in the status of vendee was not permissible in view of section 20‑A of Right of Prior Purchase Act and a case law titled "Muhammad Rashid v. Muhammad Khaliq 2001 CLC 1124.

5. The controversy here in this case is whether the improvement in the status of vendee after the institution of suit is permissible under law? The case law cited at Bar was examined carefully. 1st dealing with Fazal Dad's case, it may be observed that it deals with the categories of the persons who possessed right of prior purchase in view of un‑amended law (section 14 of Prior Purchase Act) and those recognized under amended law (substitution of section 14). The controversy in the present case, as stated earlier is whether a right available to a pre‑emptor under old law at the time of execution of sale deed or when the suit was instituted can be defeated through an amended law or repeal of law? It was held that the right accrued to a pre‑emptor under old law could not be taken away after the amendment in the law unless it is provided otherwise by the legislation. However, before concluding the judgment the following observation was made:‑‑ "Before parting, we may observe that in his argument Ch. Lal Hussain, the learned counsel for the contesting respondent, also argued, although not at length, that the concept that right of pre‑emption must exist at three stages was not well founded and he described it as a `step motherly treatment' to the pre‑emptors. Ch. Muhammad Yousaf, the learned Advocate General, who was present in the Court during arguments and on being invited as an amicus curiae, expressed the view that this concept had held the field for a long time without any dissent and, therefore, under the rule of stare decisis the concept may be kept intact. As is evident from the Judgment, occasion did not arise in the present case to examine the concept." The above quoted paragraph of the precedent Judgment shows that the question of retention of Right of Prior Purchase at three stages was left to be resolved however, this controversy came before Hon'ble Supreme Court in the year 2002 in Muhammad Rashid case (2001 CLC 1124) in which the following observation was made:‑‑ "A careful study of the relevant details in the books of Islamic Jurisprudence makes it clear that the Muslim jurists are of the option that any improvement in the status of the vendee after the institution of the suit does not defeat the right of pre emption, 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". The above noted observation of the apex Court shows that any improvement in the status of vendee after the institution of the suit does not defeat the right of pre‑emptor as it is against the Islamic injunction or we can say it is permissible before institution of the suit.

6. The case law cited at Bar makes it clear that legislation is always supreme. It can take away a right accrued in view of old law however, the intention of the law maker is kept in view and this is something) gathered from the phraseology used in the legislation. If a piece of legislation is added or made part of a statute and it appears that the intention of law maker is not to affect the rights, liabilities and privileges available to a person under un‑amended or repealed law then definitely its application is prospective. Here in this case, section 20‑A of Right of Prior Purchase Act is a new legislation keeping in view Islamic jurisprudence and it effects pending cases as it appears from its phraseology. The instant case was pending when this new legislation came into being therefore, it cannot escape the effect of new legislation in shape of section 20‑A of Prior Purchase Act. The learned counsel for the appellant laid much emphasis on the point that new legislation came into existence on 20‑11‑1998 whereas the vendee improved his status on 11‑8‑1997 therefore, this act of vendee was protected under section 6 of General Clauses Act and possibly under section 56‑C of the Constitution. However, I am unable to subscribe this view because new legislation in any form or shape unless otherwise provided protects right, liability or privilege recognized by an enactment through legislature. The improvement in the status of vendee is not a right recognized by any enactment of law but it is simply an intentional act of vendee or a natural event therefore, it cannot be given status of right accrued to a person in view of some old enactment as such it cannot be protected under section 6 of General Clauses Act. Had it been a right in view of some old enactment then certainly it could be protected after coming into force a new legislation.

7. No doubt there is consensus of Judicial Authorities that a pre emptor is required to retain his preferential right at three stages i.e. al the time of execution of sale‑deed, institution of suit and decree by the trial Court yet it was so when there was no enactment disallowing improvement in the status of vendee during pendency of a suit. Section 20‑A of right of prior purchase Act is a new legislation allowing a right of prior purchase to continue after institution of suit Here in this case, no doubt the amendment in the shape of section 20‑A has taken place after improvement in the status of vendee yet the fact remains that the suit was pending when the new legislation came into existence. The language used in the amended Act clearly suggested to say that the improvement in the status of vendee after the institution of the suit is not permissible. As stated earlier, the improvement in the status is not al right recognized by any enactment therefore, it cannot be protected as of a right. The case law 1995 MLD 1299 is not helpful to the appellant because in the precedent case the controversy was about protection or defeat of a right available to a pre‑emptor in view of an old enactment. Improvement in the status is simply an intentional act of vendee or natural event not recognized as a right by Islamic Jurisprudence after the institution of the suit.

8. The result is that the appeal being without substance is hereby dismissed. H.B.T./6/AJ&K Appeal dismissed