2007 SCMR 576 (PLP)

MIAN SHAKIRULLAH JAN, J.

The appellant (pre-emptor) by leave of the Court has challenged the judgment and decree of the Lahore High Court, whereby while concurring with the Appellate Court, High Court dismissed his revision petition with 'the resultant consequence of dismissal of his suit for pre-emption. Leave granting order reads as under:-- "Submits that the suit of the plaintiff/petitioner was decreed by the learned trial Court on 1-11-1982 which was dismissed by the appellate Court on 25-9-1984 and that finding was maintained in revision through the impugned judgment. The plaintiff/petitioner was non-suited mainly on the ground that through certain notification the disputed property had been included in Khushab Town Committee Area and as this property during the course of time had obtained the status of urban immovable property therefore, it was exempt from pre-emption in absence of proof of custom. The learned counsel submits that the notification under Municipal Law would not govern the exemption from pre-emption about the property lying in the Municipal area as a separate notification in term of section 3(3) of the Punjab Pre-emption Act, 1913 is to be issued. He referred to "Chiragh Muhammad Khan v. Mst. Naseeban Bibi" 1993 SCMR 1308 to support this submission. Leave is granted, inter alia, to consider the correctness of the impugned judgment in view of the above submissions. Moreover, it is also to be determined; whether, disputed property had obtained; the status of urban immovable property as allegedly brick kiln existed therein or it had continued its status of agricultural land in spite of the brick kiln.

2. The necessary facts of the case in brief are that the appellant has instituted a suit for Pre-emption for the disputed property on the ground of superior right of Pre-emption. As a contest of the suit by the respondent, a number of issues were framed including as to "whether the suit-land is not pre-emptible" under Issue No.4, which is the only issue under contest right from the First Appellate Court and before the High Court, with the same position here before us. The variance of the parties i.e. the plaintiff and the defendant which has given rise the aforesaid issue is two-fold (i) that the property has lost its status as agriculture property on account of establishment of the brick kiln over it (ii) in view of the Notification Exh.D.3 dated 1-7-1944, the property has been included in the Municipal Limits of Khushab Municipal Committee and thus has attained the status of Urban Immovable Property which is not pre-emptible under section 15 of the Punjab Pre-emption Act, 1913 (hereinafter may be referred as Act). The learned trial Court after discussing evidence under the above Issue No.4, arrived at a conclusion that the brick kiln has been established on a partial area of the total area under Pre-emption and which did not render the whole property as non-agricultural and the property still retain the status of being an agriculture one and that the Notification for inclusion of the area in the Municipal Committee, Khushab has been issued under the Punjab Municipal Administration Act, 1911 and not for the purpose of the pre-emption under section 3(3) of the Act, so on both counts that it is not an Urban Immovable Property and also that being an agriculture one, even if included in the Municipal' Committee, still pre-emptible. The First Appellate Court did not agree with the findings of the trial Court and that Court, after discussing the evidence in detail, arrived at a different conclusion by holding that the property has lost the status of being agriculture because of converting into a brick kiln and being an Immovable Property as contrast to the agriculture one after its inclusion in the Municipal Committee, it has become an Urban Immovable Property is not liable to Pre-emption. The High Court, in the exercise of its revisional jurisdiction for the reasons recorded in the judgment, concurred with the First Appellate Court and dismissed the revision of the appellant, now the present appeal with the leave of the Court.

3. Learned counsel for the appellant has argued with vehemence on the points noted in the leave granting order and placed reliance on Hafiz Hasan Muhammad and 2 others v. Abdul Hameed and 2 others PLD 1982 SC 159 and has also additionally argued that in view of the divergent judgments of the two Courts below i.e. of the trial Court and of the Appellate Court, the High Court ought to have discussed the evidence in detail and had to give reasons for upholding the judgment of the Appellate court as against that of the trial Court and to have comparative analysis of the reasons given by both the Courts below arriving at any conclusion and reliance was placed on Muhammad Din and others v. Mst. Naimat Bibi and others 2006 SCMR 586; Abdul Qadir and 3 others v. Haji Ghulam Qadir and 4 others 1996 CLC 1216; Asadullah Khan v. Abdul Karim NLR 2000 SC (J) 441; Muhammad Abdullah and others v. Noor Muhammad and others 1990 CLC 726; Alloo v. Sher Khan and others PLD 1985 SC 382; Mst. Parveen Akhtar and 2 others v. Muhammad Abdullah Mahmood PLD 1998 Lab" 435 and Mst. Ameer Begum v. Muhammad Naeem Khan PLD 2000 SC 839.

4. The learned counsel for the respondent, on the other hand has strongly opposed the arguments advanced by the learned counsel for the appellant while defending the judgment of the two Courts below has submitted that both the Courts i.e. Appellate Court and Revisional Court have given reasons for arriving at a different conclusion and their findings are based on the true interpretation of law and correct appreciation of evidence and which judgments are not open to interference unless there are strong reasons for the same and which are absent in the instant case.

5. We have attended to the contentions so raised before us and also perused the record with the assistance of the learned counsel for the parties.

6. The controversy as has already been noted above between the parties is over Issue No.4 as to "Whether the suit-land is not pre -emptible". This issue then in its turn give rise to two fold questions for resolution (i) as to whether the property is an agricultural one or not (ii) if not agriculture then whether it is a village immovable property or Urban Immovable Property. Regarding first question, it may be appropriate to refer to the plaint, the initial document filed in the Court on the basis of which the superstructure of the suit is to be built wherein the plaintiff has described the nature of the property in plaint in Para No.

1. The learned counsel, however, referred to other evidence on the record of the case, which in his view supported his case and particularly i.e. the Revenue Record in the form of Khasra Girdawari. He submitted that according to the Khasra Girdawari while referring to certain stray entries, has submitted that the whole of the property has not been shown as Ghair Mumkin Bhatta but only a part of it about 10 Marlas out of 4 Kanals or sometimes over 2-1/2 Kanals have been shown as "Ghair Mumkin Bhatta" while the rest shown as irrigated one. We have also examined that aspect of the case and found that the Khasra Girdawari is not consistent one and varies from time to time mentioning the brick kiln, sometimes as over 10 Marlas, sometimes over 2-1/2 Kanals and somewhere as a whole and hence the Khasra Girdawari by itself shown to be not worth reliance. In addition to the oral evidence some other documentary evidence will have to be examined. There is another document Exh.D.2 (Roznamcha Waqiati) which has been prepared by the Patwari during the demarcation proceedings qua the property of the respondent/pre-emptor and the other contiguous owner with reference to a report of the Commission who inspected the spot in the presence of the respondent and showed the property to be a brick kiln. Anyhow what has been discussed above that is in view of the submissions made by the learned counsel for the appellant, otherwise the averments made in the plaint, referred to above, leaves no room for the appellant to insist upon such a question further to hold it other than "Ghair Mumkin" Moreso, it is a question of fact on which two Courts i.e. the Appellate Court and Revisional Court have concurred and as noted above for valid reasons and we also hold that it is a non-agriculture immovable property.

7. Regarding the other question as to the inclusion of the property in the Municipal Committee, Khushab, the learned counsel did not controvert the issuance of notification under the Municipal Administration Act, 1911 by bringing it within the limits of Municipal Committee but according to him, the notification has not been issued under section 3(3) of the Pre-emption Act but only for the purpose of Municipal Administration and which does not render it an Urban Immovable Property for the purpose of Pre-emption Act.

8. The other grounds taken by him that the High Court has not undertaken the comparative analysis of the reasons advanced by two Courts below for arriving at a conclusion, we see that if it not in detail, the aforesaid process has been undertaken but for the purpose of the settlement of the issue/lis, reasons given are sufficient to uphold the findings of the Court. In case of divergent findings of the two Courts below, the High Court will have to give due attention to the findings of the Appellate Court unless it suffers from grave irregularity or the same are perverse or the reasons given by the Appellate Court are not sustainable. Moreover, that was a revision petition before it which is a discretionary jurisdiction and the exercise undertaken by the High Court meets the said requirement.

9. Before further proceeding a little background of the provisions of the Act, which has got relevance, contained in sections 3, 5, 6, 7, 8, 15 and 16 is appropriate to be given. These provisions are discussed hereinbelow, not in a chronological order but in order of preference. According to section 4 of the Act, a right of Pre-emption is a right to acquire the property sold in preference to others. Section .3 of the Act defined, amongst others, the agriculture land, village immovable property and Urban immovable property. The definition of the agriculture land has been adopted as given in the Punjab Alienation of Land Act, 1900, according to which land means which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agricultural or for pasture, and includes the sites of buildings etc. the essence of the definition of agricultural land is its agricultural or pastoral character which is the main criteria to distinguish it from other immovable property. The other two properties have been defined which means immovable property other than agriculture and to be named accordingly situated in two respective areas in the village or a town as village immovable property or Urban immovable property respectively other than the agriculture one. Though the town and village have not been specifically defined in the Act, however, according to section 3(3) of the Act as specified place shall be deemed to be a town

(a) if so declared by the Board of Revenue by notification in the Official Gazette, or (b) if so found by the Courts. Thus according to the aforesaid provisions, it is the Board of Revenue which. shall declare by a notification in the Official Gazette that certain area shall be deemed to be a town and in addition to such a declaration by the Board of Revenue, the Court have also been empowered to consider a specified area to be within the limits of a town keeping in view the facts and circumstances in each case.

10. The contentions of the learned counsel for the appellant, and on which more emphasis was placed, was that in order to bring an area within the limits of town for the purpose of pre-emption, a notification must have been issued under section 3(3) of the Act and not under any other law specifying it to be a town and if there is any then that would not be of any consequence. So his emphasis was that 'a reference to section 3(3) of the Act must have been given in the notification and he was laying much stress on the case Hafiz Hasan Muhammad and 2 others v. Abdul Hameed and 2 others PLD 1982 SC

159. We have gone through the said judgment and examined this aspect of the case also and found that the notification was issued during the pendency of the suits. It was also observed in the cited judgment that "by the notification, the areas mentioned therein had become urban area for the purpose of" the Basic Democracies Order 1959. The notification, therefore, was not for the purpose of the Punjab Pre-emption Act. Nevertheless, it was contended that the same had the effect of excluding the lands in question from the purview of the Act as the lands had become urban property and that the lands no longer being pre-emptible on the date of the decree, the pre-emptor could not succeed." It was further observed "learned counsel, however, argued that as the property fell in an urban area, the pre-emptor was required by section 7 to have established that a right of pre-emption did exist in respect of the same. This argument, too, we are afraid, is misconceived because section 7 concerns only "urban immovable property" and as already pointed out the lands in question are not "urban immovable property". The contention, therefore, that an agricultural becomes excluded from the purview of the Act merely on account of its inclusion in an urban area is not tenable." And further stated "In the case in hand, however, there is no evidence apart from the notification to show that there are other accompanying circumstances to justify a view that the property had lost its character as "agricultural land" and had acquired that of "urban immovable property" within the meaning of section 3 of the Act." Thus this judgment proceeded quite on different premises and is distinguishable. It is being also highlighted that it is not all the properties situated in the urban area which would come within the purview of section 7 of the Act, unless the same is proved to be an urban immovable property as distinguished from an agriculture land which even situated in the town is not covered by section 7 rather the same be pre-emptible under section 6 of the Act. The tenor of the cited judgment indicates that the property not being an agriculture one was not substantiated. This judgment was referred to in Chiragh Muhammad Khan v. Mst. Naseeban Bibi" 1993 SCMR 1308, referred to in leave granting order, however, the case was decided mainly on other considerations i.e. the notification, with regard to the bringing of the area within the limits of the town, was not placed on record. In another judgment of this Court Safia Begum and 5 others v. Noor Muhammad PLD 2001 SC 438, a reference was made to the aforesaid judgment but the case was decided mainly on the ground that the notification has not been brought on record at the relevant time before all the Courts below. Moreover, the property was not proved to have been included in an urban area through the referred notification. Similar is the case in a judgment from the Lahore jurisdiction reported as Parveen Akthar's case in PLD 1998 page 435, where the notification was issued by the Local Government for creating wards for election under the Basic Democracies Order 1959 and again also a notification was not placed on the record of the case.

11. By reading section 3(3) and clauses (a) and (b) one finds that in clause (a) the two conditions have been prescribed for deeming an area within the limits of the town i.e. (i) the authority competent to issue such a notification which is the Board of Revenue and (ii) to be through a notification in the official gazette, which property is then deemed to be an Urban Immovable property for the purpose of the Pre-emption Act.

12. The contention of the learned counsel is misconceived. What will have to be seen, are the conditions which have referred to above i.e. the competent authority and the notification to be published in the Official Gazette and also the fact of deeming clause. The judgment referred to by the learned counsel for the appellant and cited above are distinguishable. The authority mentioned in section 3(3) of the Act, has been changed from time to time. Originally it was the Local Government which was empowered to issue notification under the Act and which provisions were subsequently amended by the A.O. 1937 and was substituted by the words Provincial Government and which was again amended and substituted by the words, the Board of Revenue by West Pakistan (Adaptation and Repeal of Laws) Act, 1957 (Act XVI of 1957). The provisions contained in the Pre-emption Act, relating to the inclusion or deeming a specified area to be a town and also the provisions provided in the election laws for the inclusion/exclusion or considering the specified area to be a town for the purpose of election. The main players in the field, playing an important role to declare an area to be a town or not, are the Municipal Laws or the laws dealing with the Local Government Administration e.g. the Municipal Administration Act, 1911, the Basic Democracies Order 1959 and the Municipal Administration Act, 1960 and so on as it is the Local Government which provides facilities as required for a town i.e. Electricity, Roads, Street Lights, Water Supply etc. and then levied taxes accordingly. Sometimes the Authority competent to declare a specific area to be a town or not are the same in different laws and sometimes the competent authorities may be different. If the authorities are different mentioned in different laws for declaring an area to be a town then the same may not be good for other laws to consider the area to be a town, however, if the authorities in different laws is the same then if the other conditions are fulfilled prescribed in that law for holding a specified area to be a town then irrespective of the fact that any reference to the relevant provisions of that Act has been given or not, rather, if the said declaration has been made with reference to other law then the same may be considered for the other law under which the declaration has not been made and particularly as in the instant case in the Act, a deeming clause has been, inserted i.e. the area will be' deemed to be a town. In the present case, though the notification has been issued with reference to the Municipal Administration Act, 1911 but the other conditions that is the Authority mentioned in section 3(3) of the Act i.e. the Provincial Government and the publication of the notification have been fulfilled and that leaves no room for any other consideration as the declaration has been made by a competent authority through a notification published in the Official Gazette as required under section 3(3) of the Act and thus for the purpose of the Act, the said area shall be deemed to be considered as a town, as in the relevant time, it was the Provincial Government under both the laws which were competent to issue such a notification for declaring an area to be a town. The submission of the learned counsel for the appellant that the conditions required for treating an area to be a town have not been adverted to in the case and there is no evidence that the said condition/requirement of a town were present and hence the same cannot be considered as a town. His this submission also holds no ground as such consideration have also been catered for in another, subsequent, provisions of section 3(3)(b) of the Act which has empowered the Court to considering such-like circumstances to hold that a specified area to be a town for example the facilities and amenities provided in a town which have been highlighted in the judgments of this Court, thus it can safely be said that the area specified to be a town through a notification under the Municipal Administration Act, 1911 by the Provincial Government, and authority competent to issue' such a notification even under section 3(3) of the Act then this area shall be deemed to be a town. After holding a specific area to be a town, the next question for determination would be as to whether it is an urban immovable property or agriculture property as the later is pre emptible in the same manner as agriculture property situated in the village or Rural areas and it is only the urban immovable property which has been defined as a property other than agriculture which require the conditions as provided under section 7 to make it pre-emptible. The word "town" has not been defined anywhere in the Pre-emption Act or in the Municipal Administration Act, 1911, however, under the Basic Democracies Order, 1959, a Commissioner under section 8 has been authorized to divide the Thana and Tehsil into Rural and Urban Area to be called towns and under the relevant election Rules, the population of a town may not exceed that of 14000. The word town sometimes has been interchangeably used for the word urban or municipality as in section 56 or the Municipal Administration Act, 1911 whereby property vested in the committee one of them was described (a) all public town walls. Hence for the purpose of the Pre-emption Act, if an area has been included in the municipality will be considered as a part of a town. The system of the Basic Democracy was introduced under the Basic Democracies Order, 1959. Municipal institutions are a part of a system of Basic Democracy. However, in view of the complexities of urban life, some additional provisions are necessary for municipal administration which may not be required for the administration of local councils for Rural areas and thus it was promulgated. The object of Municipal Ordinance, was to supplement the provisions of the Basic Democracies Order, 1959, with reference to urban areas. The judgment referred to above very rightly have excluded the notification issued by the Local Government for the purpose of election etc. as the Local Government under the aforesaid election laws had also been authorized under the said laws to issue notification for the purpose mentioned therein and when the authority competent to issue notification under section 3(3)(a) does not issue the notification but by different authority as Basic Democracies Order 1959, the same cannot be valid for the purpose of the Act. Any Notification after 1937 by the Local Government would not be considered a notification for the purpose of Pre-emption Act as it is only the Board of Revenue which is competent and can issue a notification under the aforesaid provisions. In the instant case, the notification has been issued in the year 1944 by the Provincial Government which was surely after 1937 and it was the Provincial Government which was empowered to issue notification under section 3(3) of the Act also.

13. In view of what has been discussed above, we are not inclined to allow this appeal and therefore, the appeal is dismissed. The parties arc left to bear their own costs. M.H./M-217/SC Appeal dismisse