1989 PLP 648 (CLC)

TANZIL‑UR‑REHMAN, J.‑‑This is a Constitutional Petition under 14 Article 199 of the Constitution cf Islamic Republic of Pakistan, 1973. The petitioners, namely, Allahditta, Achar and Fateh Mohammad claim to be haris on the land consisting of 217‑36 acres in Deh Jhangro and 21‑2 'acres in Deh Dubar Wahah, taluka Rohri, District Sukkur. It is averred that the land was originally granted in the year 1966 to late.Justice Inamullah Khan under Retired Government Servants Scheme .who got the said land developed through mechanical farming and that certain survey numbers as mentioned in para 3 of the petition were sold by late Inamullah Khan to respondents Nos.3 to

5. It is further averred that after the death of Justice Inamullah Khan, his wife sold certain other survey numbers to the said respondents. Thereafter, some other survey numbers were also sold by their son, Hasan Inamullah. Thus, the transfer of the entire land by sale was made by late Justice Inamullah, his wife and son in favour of respondents Nos.3 to

5. The petitioners thereupon filed application before the Deputy Commissioner challenging the said sales and on the basis of their right as haris to pre‑empt the said land under Martial Law Regulation No.115 read with Sind Pre‑emption Rules. 1974. This application was dismissed by the Deputy Commissioner by his order dated 12‑9‑1984. The petitioners being aggrieved of the said order preferred an appeal before the Commissioner, Sukkur, respondent No.2. The appeal was, however. dismissed on a short ground that the same was not maintainable ?n view of the decision of the Shariat Appellate Bench of the Supreme Court in the case of Government of N.‑W.F.P. v. Malik Said Kamal Shah (P L D 1986 Supreme Court 360). The petitioners have now filed the above Constitutional petition challenging the said orders praying for the following reliefs:‑ (a) declare that the impugned order Annexure 'B' as void unlawful and of no legal consequence. (b) and further direct the respondent No.2 to proceed with the pre‑emption appeals and decide the same on their merits. (c) award any other relief Honourable Court deems fit and proper." Mr. Mohammad Sidik Kharal, learned counsel for the petitioners submits that the judgment in Malik Said Kamal Shah's case is not attracted to the facts of the case of t11e petitioners as the proceedings in respect of the land in question under R 115 read with Sind Pre‑emption Rules of 1974 were pending before the Deputy Commissioner/ Commissioner, Sukkur. Reliance is placed by the counsel on Article 264 of the Constitution of Pakistan. 1973 which, according to the counsel, saves the said pending proceedings. Article 264 reads as under:‑ "

264. Eeffect of repeal of laws: Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repn;~1 shall no. except as otherwise provided in the Constitution, (a) revive anything not in force or existing at the time at which repeal takes effect; (b) affect the previous operation of the law or anything duly done or suffered under the law; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or (e) affect any investigation. legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be institute, continued or enforced and any such penalty, forfeiture or punishment may be imposed. as if the law had not been repealed." Learned counsel seems to have overlooked the provisions of Article `'03‑A, Chapter 3‑A of the Constitution relating to matters falling within the jurisdiction of the Federal Shariat Court. It says that: "Provisions of Chapter to‑ override other provisions of Constitution.‑‑The provision` this Chapter shall have effect not with standing anything contained in the Constitution." The, above provisions of Article 203‑A make it evident that the provisions of Chapter 3‑‑A will have an overriding effect vis‑a‑vis,A the above provisions of the Constitution. Reliance is also placed by the counsel on a Full Bench judgment of the Lahore High Court in the case of Abdul Ghafoor Khan and others v. Saghir Ahmed and others (P L D 1987 Lahore 358). Paragraph 33 of the above judgment P L D 1987 Lah. 358, as referred to by the counsel is quoted below:‑ "Article 264 is couched in language similar to the one employed in section 38 (2) of the Interpretation Act, 1889 (52 and 53 Vict. c. 63), section 6 of the General Clauses Act, 1897 (X of 1897), section 4 of the Punjab General Clauses Act, 1898 (I of 1898) and section 4 of the West Pakistan (now Punjab) General Clauses Act, 1956 (VI of 1956). The provisions pertaining to preservation of the previous operation of the repealed law, any right, privilege, obligation or liability acquired, accrued or incurred there under as also continuance of investigation. proceedings or remedy in respect of such right, privilege, obligation or liability contained in the aforementioned Acts. have received consist interpretation by the superior ,Courts over a long span of their lives, and no one could enter caveat in this behalf, in favour of allowing the lis to be decided by and under the law though repealed, that prevailed at the time the lis started and permitting the parties to pursue various stages of litigation and to have the dispute settled, in accordance with the repealed laws unless a contrary intention appears from the repealing enactment. There is no reason to place different interpretation upon the provisions of Article

264. The Constitution being the supreme and paramount law of land, its provisions, including those contained in Article 264, hold sway over any other statutory law and even over Judge made law. In the absence of any provision to the contrary in the Constitution the various rights, privileges, obligations, liabilities, etc. , of the parties to the litigation (which had taken birth before the 31st July, 1986) will continue to be governed and determined till the end of the litigation (at all stages including suit, appeal, revision, writ, execution of decree and ancillary proceedings) by and the lis (inclusive of suit, appeal. revision, writ, execution of decree and ancillary proceedings) started before the 31st July, 1986, will regulated and decided from the beginning till end in accordance with the repugnant laws which were repealed by virtue of the Constitution. The clear provisions of Article 264 leave no room for doubt that with the repeal of repugnant laws the pre emptors' right will continue to exist' be enforceable and will in no way be impaired during the pendency of any stage of such litigation. Anything; duly done or suffered under the repugnant laws before their repeal took place on the 31stJuly, 1986, as also the previous operation of those laws is to remain intact and is not be disturbed." Counsel seems to be unaware of the recent masterly analysed judgment of the Hon'ble Supreme Court reported as Sardar Ali v. Mohammad Ali (P L D 1988, June Part, S C 287) wherein about 37 appeals by Special Leave and petitions for Special Leave to Appeal appear to have been heard and decided together by the said judgment as the common question of law was involved in all of them. Such cases also include the decision of Lahore High Court relied upon bi the counsel which appears to have been set aside as not laying down correct law. In the said judgment the Supreme Court observed as under:‑ "We have, in the opening pert of this judgment, noted the special character of the provisions in Chapter 3‑A of the Constitution with particular reference to the effect of the examination of laws there under, on the pending proceedings. As already stated, looked at from all possible reasonable hypotheses we have come to the conclusion that the framers of the Constitution did not at all intend that the continuance of the proceeding during the pendency of the said examination of laws, would become a futile exercise. It involved immense time and expense of the litigant public. The results were intended to be preserved. We have also held as a corollary to the foregoing finding that mere pendency of a proceedings would not clothe party concerned with any right. But if a pre‑emption decree has, in the meanwhile been passed in his favour before the 31st July, 1986, this would create a right in his favour as it was envisaged by the Constitutional provisions. " In another case Mohammad Shbib v. Member (Revenue) P L D 1988 SC 355) it was clearly held by the Hon'ble Supreme Court that: "In all these petitions filed by vendees in separate pre‑emption matters, their respective counsel made statements that no decree has so far been passed in favour of the respondents pre‑emptors in these cases at any stage before the 31st of July, 1986 when the judgment of this Court in the case of Malik Said Kemal Shah (P L D 1986 SC 360) came into effect. That being so, as held in this Court's judgment in the case of Sardar Ali and others v. Mohammad Ali and others (C.A. 208/80 and other matters decided on 2‑5‑1988, P L D 1988 S C 287) no decree can be passed now after the said date in favour of the pre‑emptors on any ground‑‑co‑ownership contiguity etc." The above view was also reiterated and reaffirmed by the Honourable SI supreme Court in the most recent ,judgment in a case. Ghulam Qadir v. Nawab Din F

1. D 1988 SC 701 In view of the law laid down by the Hon'ble Supreme Court, it may be stated that if no decree had been passed or decision given) in favour of pre‑emptors at any stage under Land Reforms Regulation (MLR 115), para 25, before 31st July, 1986, when the judgment of B the Hon'ble Supreme Court in the case of Said Kemal Shah (P L D 1986 SC 360) came into effect no decree can now be passed decision given after the said date in a pre‑emption matter in favour of a tenant even on any other ground, such as co‑ownership or contiguity etc. In that view of the matter, the petitioners have no case at all as there was no decree, order or decision in their favour passed by the Deputy Commissioner or the Commissioner before the Supreme Court declared that M L R 115 granting right of pre‑emption to tenants was repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah and the said law ceased to have effect as on and from 31‑7‑1986, as provided in sub‑clause (b) of clause (3) of Article 203‑D of the Constitution. Therefore, the proceedings, even if they were pending before Deputy Commissioner/ Commissioner on that day, lapsed.

8. Learned counsel lastly submits that the petitioners were not given any opportunity of being heard by the Deputy Commissioenr or the Commissioner. It is not clear from the impugned order that they were heard or not. In any case, it will be futile on our part to remand the case to the learned Commissioner for affording to the petitioners an opportunity of being heard, when the law under which they claim their right of pre‑emption in the land has ceased to be effective and is no more on the statute book of Pakistan. It may further be mentioned that the petitioners have neither mentioned the dates of transfers of land by the original owner or his heirs in favour of respondents Nos.4 and 5, nor they have given the date of filing their application claiming the right of pre‑emption. The counsel has also not been able to give the said dates or produce copies thereof during arguments, presumably the disclosure of the said dates might go against them, as there is provided one year's period of limitation under the Sind Pre‑emption Rules, 1974. There is also no material on record to substantiate their claim. However, as we are dismissing the petition on legal grounds, we do not feel inclined to go into the merits. The petition is, therefore, dismissed. In the circumstances of the case there will, however, be no order as to costs. In view of the dismissal of the petition, CMA 651/87 for stay having become infructuous too stands dismissed. A . A . / A‑472/ K . Petition dismissed.