1983 PLP 1842 (CLC)

NAZIR AHMAD BHATTI, J.‑This petition, filed by Abdul Muqtadir Khan, calls in question the order dated 21st October, 1979 of respondent No. 1 as being without lawful authority, null and void.

2. The facts giving rise to this writ petition are that one Haqnawaz Khan son of Ghulam Mustafa, was owner of the suit land who sold it to Major Ghilmi Khan, respondent No. 2, on the basis of a decree granted on 10th June, 1974 in suit No. 241/1 of 1974. Abdul Muqtadir Khan, the petitioners, being a tenant of the suit land, instituted a suit for possession by pre‑emption against respondent No. 2 in the Court of Senior Civil Judge, Dera Ismail Khan on 20th July, 1974. Right to pre‑empt the sale of a land by its tenant was granted under clause (d) of sub‑paragraph (3) of paragraph 25 of the Land Reforms Regulation, 1972 (Martial Law Regulation No. 115,).. This pre‑emptive right, granted by the aforesaid Regulation, was to be a first right of pre‑emption. The suit, was still pending in the Court of the learned Senior Civil Judge, Dera Ismail Khan, when by an amendment made by the Land Reforms (Amendment) Ordinance, 1976, a new sub‑paragraph (5) was added to paragraph 25 of the Land Reforms Regulation, 1972 whereby all suits for enforcing the right of pre‑emption in respect of a land comprised in a tenancy were to be exclusively entertained, heard and decided by the Collector within whose jurisdiction the land in respect of which the right of pre‑emption had been claimed was situated and all such suits which were pending in any Court immediately before the commencement of the said Ordinance stood transferred to the Collector concerned. This Ordinance was promulgated on 19th May, 1976 (sic). After the promulgation of the said Ordinance, the learned Senior Civil Judge, Dera Ismail Khan vide his order dated 27th July, 1976. The suit was still pending before the learned Collector, Dera Ismail Khan, when the President, in 1979, promulgated Constitution (Amendment) Order, 1919 (Presidential Order No. 3 of 1979), whereby Shariat Benches were established in superior Courts by inserting a stew Chapter 3‑A in Part. VII of the Constitution. This Order was promul gated by the President on 7th February, 1979. Under the provisions of Article 203‑B of this newly‑added Chapter to the Constitution, the High Courts were empowered, on the petition of a citizen of Pakistan, or the Federal Government, or a Provincial Government, to examine and decide the question whether or not any law or provision of a law was repugnant to the Injunctions of Islam, as laid down in, the Holy Quran and Sunnah of the Holy Prophet. It was further provided in this Article that if the High Court decided that any law or provision of law was repugnant to the Injunctions of Islam, it shall set out in its decision the extent to which such law or provision of law was so repugnant and specify the day on which the decision shall take effect.

3. After the addition of this new provision in the Constitution, Shariat Benches were constituted in every High Court including the Peshawar High Court. One Haji Naimatullab Khan, who was effected by a suit brought under the provisions of clause (d) of sub‑paragraph (3) of paragraph 25 of the Land Reforms Regulation, 1972, filed a Shariat Petition No. 1 of 1979 in the Shariat Bench of the Peshawar High Court wherein he challenged the first right of pre‑emption granted to the tenant under the aforesaid paragraph as being repugnant to the Injunctions of Islam. This petition was heard by the Shariat Bench of the Peshawar High Court, consisting of Abdul Hakeem Khan, Chief Justice, S. Usman Ali Shah and Sardar Fakhre Alam Khan, Judges, and by accepting it on 2nd July, 1979 Haji Naimatullah Khan and others v. Government of Pakistan (P L D 1979 Pesh.104), their Lordships ‑` held as under in paragraph II of their judgment " It would follow that in addition to the universally recognized and acknowledged Ahadis of Holy Prophet (be peace and blessings of Allah upon him) there is consensus of opinion of all the writers on Mohammadan law that there are three classes of persons in whom right of pre‑emption vests, namely ; (1) Co‑sharer. (2) Participator in ammunities and appendages ; and (3) Contiguous owners." And that it is the right of ownership in the property or rights which invest a pre‑emptor with the preferential right of pre‑emption and that mere possession will not give a right of pre‑emption. It is, therefore, clear to us that a tenant is possession on behalf of the landlord who has been given a right of pre‑emption in preference to the right holders recognized by the Muslim Writers on the Law of Pre‑emption has no right of pre‑emption whatsoever and the question of giving preference to him over the three classes of persons, enumerated above, is in flagrant violation of the Injunctions of Islam. We will, there fore, declare that clause (d) of sub‑paragraph (3) of paragraph 25 of M. L. R. 115 is repugnant to the Injunctions of Islam and recommend that the aforesaid clause shall be deleted with immediate effect."

4. However, their Lordships did not specify as on what date this judgment had to take effect which was a mandatory requirement under clause (b) of sub‑paragraph (2) of paragraph 203‑B of the Constitution. Taking advantage of this judgment of the learned Shariat Bench of the Peshawar High Court, the learned Collector, Dera Ismail Khan, decided the question of superior pre‑emptive right of the petitioner on the basis of tenancy in the negative vide his order dated 21st October, 1979 and returned the suit to the learned Senior Civil Judge, Dera Ismail Khan, for further proceedings. It is also noteworthy that in the meantime, the Supreme Court, in the case of Muhammad Riaz v. Pakistan and others (1979 S C M R 509), had also held that the High Court was possessed of the powers to decide on its original side about the repugnancy of any law to the Injunctions of Islam, but the High Court was also to specify in its judgment the day on which its decision had to take effect. However, the non‑specification of any date by the learned shariat Bench of the Peshawar High Court, in its judgment of Haji Naimatullah Khan and others, it is stated with utmost respect, caused some misunderstanding in the minds of the litigant public and the learned Collector, Dera Ismail Khan, in obedience to the judgment forthwith decid ed the question of superior pre‑emptive right of the petitioner in the negative.

5. The petitioner has urged in the writ petition that the impugned order of the learned Collector, based on the decision of Haji Niamatullah Khan's case, was wrong and baseless because in the meanwhile the judgment of the Supreme Court in the case of Muhammad Riaz had come whereby the Shariat Benches of the High Courts were required to specify a day on which the judgment had to take effect and until and unless the law was amended, the provisions which were held repugnant to the Injunctions of Islam, were to continue till the date when the decision had to come into force. It is also noteworthy that under clause (a) of sub‑paragraph (4) of paragraph 203‑B of the Constitution, the President, or the Governor, had to take steps to amend the law so as to bring it in conformity with the Injunctions of Islam. The anamoly, with utmost respect, was two‑fold, firstly, the judgment in Haji Niamatullah Khans case had not specified the date on which the decision had to take effect. and secondly, no steps to amend the law we taken by the President, or by the Governor, to bring the provisions of sub paragraph (4) of paragraph 25 of the Land Reforms Regulation, 1972, in conformity with the Injunctions of Islam with the result that the said provision in paragraph 25 of the Regulation continued to exist.

6. On 27th May, 1980 the President promulgated Constitution (Amendment) Order, 1980 (Presidential Order No. I of 1980) whereby in stead of Shariat Benches in the High Courts, a Federal Shariat Court was established under Chapter 3‑A it.. Part Vii of the Constitution. Under the newly‑added Article 203‑D the Federal Shariat Court was empowered on the petition of a citizen of Pakistan, or the Federal Government or a Provincial Government, to examine and decide the question whether or not any law or provision of law was repugnant to the Injunctions of Islam. And if the Court held any law or any provision thereof to be so repugnant, the Court lead to specify the day on which the decision had to take effect. It was further provided in this Article that the‑ President, or the Governor had to take steps to amend the law so as to bring it in conformity with the Injunctions of Islam and such, law, to the extent to which it was held to be so re pugnant, had to cease to have effect on the day on which the decision of the Court was to take effect. Many petitions were filed before the Federal Shariat Court under the aforesaid provisions of Article 203‑D. Among other petitions, the aforesaid judgment to Haji Naimarullah Khan's case delivered by the learned Shariat Bench of the Peshawar High Court, was also challenged and the learned Federal Shariat Court in Hafiz Muhammad Ameen etc. v. Islamic Republic of Pakistan and others (PLD 1981 FSC23) (citation (ii) at page 34) held that no time at all having been given to make change in the law according to the Injunctions of Islam in the decision reported as P L D 1979 Pesh. 104 and order having been directed to take effect immediately, the same was prima facie without jurisdiction and the impugned law remained effective till actual change. It was also held in the same judgment (tit. (x) page 33) that State was empowered to extend categories of pre‑emptors and could confer right of pre‑emption on tenants as well.

7. It shall thus be seen that the impugned order of the learned Collec tor was passed on the basis of the judgment of the learned Shariat Bench of the Peshawar High Court which had to be interpreted in the light of the limitations provided in the then Article 203‑B of the Constitution and the Supreme Court judgment in the case of Muhammad Riaz. No time having been specified in the judgment in Haji Naimatullah Khan's case, nor an amendment in paragraph 25 of the Land Reforms Regulation, 1972 having B been made by the competent authority, the relevant provisions of the said Regulation continued to exist, leaving aside the fact that the said judgment was subsequently set aside by the Federal Shariat Court, as stated above. The judgment of the learned Collector, Dera Ismail Khan, impugned in this writ petition was, therefore. liable to be set aside. However, the learned counsel for respondent No. 2 raised some objections to the writ petition. His first objection was that writ petition was a discretionary relief and especially after the judgment of the Supreme Court in the case of Muhammad Riaz, the petitioner was not entitled to any relief and in this respect the learned counsel relied upon Ghulam Rasool and others v. Ali Akbar and others (1974 S C M R 64). The learned counsel further urged that the petitioner had not exhausted all his remedies as provided in paragraph 25 of the Land Reforms Regulation and his writ petition was incompetent So far as both these contentions are concerned, it may be stated that at the relevant time the question of super pre‑emptive right of a tenant had assumed a great public importance and in such cases the High Courts have always given relief in the form of writ petitions although the aggrieved party may not have exhausted all his remedies under the ordinary law. In this respect, reference with advantage, be made to Managing Director, Pakistan Agricultural Storage and Service Corporation Limited, Lahore and others v. Nawab Din and 2 others (1981 C L C 284), and Sky Rooms Limited, Karachi v. Assistant Collector of Central Excise and Land Customs, Karachi (P L D 1982 Kar. 244). In both these judgments, the parties bad not exhausted all their remedies under ordinary law and the Lahore and Sind High Courts had entertained the writ petitions on the plea that a question of public importance had come up which required authoritative pronouncement by a superior Court.

8. The learned counsel for respondent No. 2 further urged that the petitioner bad filed this writ petition after about one year of the impugned order and the writ petition suffers from lathes. However, this contention is also not tenable, for the reason that as the question of public importance was involved the point of laches was immaterial.

9. For the aforesaid reasons, we would accept this writ petition, set aside the impugned order of the learned Collector, Dera Ismail Khan, respondent No. 1, and would remand the case back to him for decision on merit and according to law, There shall be no order as to costs. M. Y. H. Petition accepted.