1989 PLP 2012(2) (SCMR)

(viii) The whole of section 60‑A of the Punjab Tenancy Act, 1887 in so far as it makes non‑occupancy tenancy heritable irrespective of the terms of the contract. The question of repugnancy or otherwise of paragraphs 22, 23, 24 of the Land Reforms Regulation was left undetermined, proper and full assistance having not been received and another decision of the Federal Shariat Court having come into field during the interregnum. The decision shall take effect on 23rd March, 1990 whereupon the provisions declared repugnant to the Injunctions of Islam will cease to have effect. The operation of the self‑executory provisions of the Regulation and the Act, and the provisions ancillary thereto shall not in any manner be affected by this decision till the aforesaid provisions cease to have effect Le, on 23‑3‑1990. (c) Constitution of Pakistan (1973) ‑‑‑Arts.203‑D & 203‑F‑‑Land Reforms Regulation, 1972 [M.L.R.115], para. 25(3)(a)(b) & (c)‑‑Provisions of para 25(3)(a)(b)(c) of the Regulation are not repugnant to the Injunctions of Islam. It is unanimously held that the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court have the jurisdiction and the power under Chapter 3‑A of Part VII of the Constitution, to examine the Land Reforms Regulation, 1972 (hereinafter referred to as the Regulation) and the Land Reforms Act, 1977 (hereinafter referred to as the Act) and to decide whether or not provisions thereof are repugnant to Injunctions of Islam.

2. In accordance with the opinion of the majority of the Judges separately recorded, it is held that the following provisions of the Regulation, the Act and the Punjab Tenancy Act, 1887 to the extent indicated against each, are repugnant to the Injunctions of Islam: (i) Para.2 clause (7) of the Regulation in so far as it includes Islamic Wakf for the purposes of other paras of the Regulation which are being held wholly or partly repugnant to Injunctions of Islam. (ii) The whole of paragraphs 7, 8, 9, 10, 13 and 14 and consequentially paragraph 18, of the Regulation. (iii) Paragraphs 15, 16, 19 and 20 in so far as they ignore the rights and obligations, the terms and conditions of the grant, licence or lease, as the case may be, in resuming the stud and livestock farms, Shikargahs and Orchards and dealing further with them under paragraphs 19 and 20 thereof. (iv) Paragraph 17 of the Regulation in so far as it relates to Wakf and all other institutions which can validly fall within the definition of Islamic Wakf, and consequential to that extent paragraph 21 also. (v) Paragraph 25(1) of the Regulation in so far as it does not give sanctity to the grounds of ejectment available in a valid contract between the landlord and the tenant, entered into in accordance with the Injunctions of Islam. (vi) Paragraph 25(3)(d) of the Regulation has already been declared to b repugnant to the Injunctions of Islam in Said Kamal's case (P f, D 1986 S C 360). (vii) The whole of sections 3, 4, 5, 6, 7(5), 8, 9, 10 and consequentially the whole of sections 11 to 17 of the Act. (viii) The whole of section 60‑A of the Punjab Tenancy Act, 1887 in so far as it makes non‑occupancy tenancy heritable irrespective of the terms of the contract.

3. The question of repugnancy or otherwise of paragraphs 22, 23, 24 of the Regulation is left undetermined in these proceedings as the Court feels that proper and full ass1stance has not been received and another decision of the Federal Shariat Court has come into field during the interregnum.

4. In accordance with the opinion of the majority of the Judges it is held that the provisions of paragraph 25(3) clauses (a), (b) and (c) of the Regulation f C are not repugnant to the Injunctions of Islam.

5. Shariat Appeals Nos.1 of 1981, 3, 8, 9, 10, of 1981 and 1 of 1987 are allowed and Shariat Appeal No.4 of 1981 with the reservation contained in para.3 above and Shariat Appeal No.21 of 1984 are partly allowed. All the parties shall bear their own costs but the appellant in Shariat Appeal No.1 of 1981 being a Wakf shall be entitled to claim the costs from the respondent/the Federal Government.

6. This decision shall take effect on 23rd March, 1990 whereupon the provisions declared repugnant to the Injunctions of Islam will cease to have effect.

7. The operation of the self‑executory provisions of the Regulation and the Act, and the provisions ancillary thereto shall not in any manner be affected by this decision till the aforesaid provisions cease to have effect i.e. on 23‑3‑1990. M.B.A./Q‑27/S Order accordingly.