1989 PLP 1922 (CLC)

Date of hearing: 23rd January, 1989. IMAM ALI G. KAZI, J‑‑The two petitioners Bhaledino Daheri and Abdul Hakecm Daheri purchased agricultural land measuring 8‑06 acres bearing Survey No.199 in Deh Belharo, Talika Tando Adam, District Sanghar in equal shares through a registered sale‑deed dated 13‑5‑1980 from the third petitioner Mst. Khursheed Khatoon.

2. Matloob Hussain, the respondent No.l in this petition claimed that the land sold to the petitioners comprised in his tenancy and he was entitled to enforce his right of pre‑emption in respect of that land. He, therefore, tiled an application under paragraph 25 (5) of the Land Reforms Regulation, 1972 (M.L.R. 115) before the Deputy Commissioner (Collector), Sanghar to enforce his such right.

3. Matloob Hussain, the respondent No.l through another litigation decided under the Sind Tenancy Act, 1950 was already declared to be the hari of the survey number in question alongwith other areas under order of the competent authority under that Act. Ultimately, the decision made by the final authorities under the Sind Tenancy Act, 1950 in favour of Matloob Hussain was questioned through a Constitutional Petition No.D‑1476 of 1980 filed by Mohammad Umer and Faisal both by caste Dahcri. This petition was, ultimately, dismissed as withdrawn, as such the decision that Matloob Hussain was a sitting tenant of the land become final. Under these circumstances, the Deputy Commissioner, Sanghar passed an order on 24‑8‑1981 whereby his application for enforcement of right of pre‑emption over the land was accepted. It is this order which has been impugned in this petition.

4. Mr. Azhar Ali Siddiqui, learned counsel for the petitioners has mainly contended that the Deputy Commissioner while deciding the application of Matloob Hussain the respondent No.l had acted without any lawful authority as Mst. Khurshecd Khatoon, the third petitioner was neither impleaded as a necessary party to those proceedings nor was heard by him. This is the solitary ground urged by him in support of this petition.

5. Mr. A.A. Mohammadally, learned Additional Advocate‑General Sind contended that the dispute was between the petitioners and the private respondent Matloob Hussain and the official respondents were not directly concerned with the dispute. He however pointed out that the petition itself is not maintainable as the petitioners without availing alternate remedy by way of appeal and revision under the Land Reforms Regulation, 1972 have rushed to this Court.

6. In the Province of Sind unlike the Provinces of Punjab and N.‑W.F.P in absence of any statute on pre‑emption, right of pre‑emption was enforceable under the Mohammadan Law through Civil Courts of competent jurisdiction. Under the Mohammadan Law only three classes of persons viz. a co‑sharer in property (Shaf‑i‑Sharik), participator in immunities and appendages (Shaft‑i Khalit) and owners of adjoining immovable property (Shah‑i‑Jar) were entitled to claim right of pre‑emption. The tenants of agricultural land under the Mohammadan Law did not have a right of pre‑emption in the event of sale of P land cultivated by them. For the first time in the history of the sub‑continent, a right of pre‑emption in the event of sale of agricultural land by the Zamindar was granted to the tenants through the Land Reforms Regulation, 1972 throughout the country. In fact such a right was created by a statute adding fourth category of pre‑emptors to the already existing three categories under the Mohammadan Law. In order to enforce such right an elaborate and simplified procedure was provided by paragraph 25 of the Regulation itself. Sub‑paragraphs 5, 6 and 7 of paragraph 25 of Land Reforms Regulation, 1972 (M.L.R. 115) are reproduced as under:‑ "(5) All the suits for enforcing the fight of pre‑emption in respect of land comprised in a tenancy shall be exclusively entertained, heard and decided by the Collector within whose jurisdiction the land in respect of which the right of pre‑emption has been claimed is situated, and all such suits which may be pending in any Court immediately before the commencement of the Land Reforms (Amendment) Ordnance, 1976, shall on such commencement, stand transferred to the Collector concerned. (6) Any person aggrieved by an order passed by a Collector under the preceding sub‑paragraph may, within thirty days of such order, present an app: at to Commissioner. (7) The Board of Revenue may at any time of its own motion or otherwise call for the record of any case or proceedings under this paragraph which is pending or in which a Collector or Commissioner has passed an order, for the purpose of satisfying itself as to the correctness, legality or propriety of such proceedings or order; and may pass such order in relation thereto as it thinks fit: Provided that no order shall be passed under this sub‑paragraph revising or modifying an order affecting any person unless such person has been afforded an opportunity of being heard: Provided further that the record of any case or proceedings in which a Collector or Commissioner has passed an order shall not be called for under this sub‑paragraph on the application of any aggrieved person made after the expiration of thirty days from the date of such order:" It will thus be clear from the above provisions made in the Regulation itself for institution of such proceedings appeals and revisions therefrom have been, provided but filing of such suits have been taken out of the jurisdiction of Civil Courts and jurisdiction conferred on Revenue Officers so that such matters may be dealt with expeditiously. In the present case the impugned order was passed by the Deputy Commissioner, Sanghar under sub‑paragraph (5) of paragraph 25 of the said Regulation, which was appealable within thirty days of the passing of such order to the Commissioner, and could be revised under sub‑paragraph (7) by the Board I of Revenue. The petitioners did not resort to the legal remedies available to them and have rushed to this Court after the respondent Matloob Hussain had acquired a vested right and order in his case had achieved finality. Mst. Khursheed Khatoon, the third petitioner, according to the admitted facts of the case had completely divested herself of all rights, interests and title in the disputed surveY number m favour of the first two petitioners. Matloob i Hussain, the respondent No. 1, who had filed his said application was in respect of enforcement of his right to pre‑empt the sale in favour of the petitioners. In such proceedings in view of above it was not necessary to implead her as a I necessary party. The contention raised by Mr. Azhar Siddiqui, the Advocate for the petitioners on such score is of no avail to him.

7. The relief under Article 199 of the Constitution of Islamic Republic of IL) Pakistan, 1973 can only be granted if a High Court is satisfied that no other adequate remedy is provided by law. In the present case as pointed out hereinabove the adequate remedy Was available to the petitioners by way of filing appeal and revision before the authorities specified in the law itself, and they having failed to avail of the same cannot approach this Court for remedy under , the said Article.

8. It may be worthwhile to point out here that the right of pre‑emption granted to tenants of agricultural lands by the Land Reforms Regulation, 1972 was declared to be against the Injunctions of Islam by the judgment of the Shariat Appellate Bench of the Supreme Court of Pakistan reported as Government of N.‑W.F.P.through Secretary Law Department v. Malik Said Kamal Shah in PLD 1 1986 Supreme Court 360 and has become non‑existent. This decision can alto not help the petitioners as the decision in favour of respondent Matloob Hussain had long before become final and operative as explained hereinabove.

9. In view of above, we had by our short order, dismissed the petition, while the above are the reasons for the same. A.A./M‑824/x. Petition dismissed.