1995 PLP 1299 (MLD)

Explanation. In the case of a sale by a female of land or property, to which she has succeeded for her life tenure, through her husband, son, brother or father, the word agnates in this section shall mean the agnates of the person to whom she has to be succeeded:"

21. The change which has led to the dispute which is to be resolved in this appeal was brought by enacting the Jammu and Kashmir Right. of Prior Purchase, (Amendment) Act, 1993, which we may refer to as the Amending Act. This Act became law en 13th of March, 1993 and came into force at once. It has only two sections. Essential parts of the section are reproduced:

"

2. Amendment of section 14 Act II of 1993 (Bikrami) .

In the Right of Prior Purchase Act, 1993 (Act 11 of 1993 Bikrami) for section 14 of the following shall be substituted,. namely:

"14.

(1) Subject to the provisions of section 13 the Right of Prior Purchase in respect of agricultural land and village immovable property shall vest

(a) firstly in Shafi-Sliarik;?????????? (b) secondly in Shafi Khalit; and (c) thirdly in Shari Jar. Explanation:- 1. "Shah Sharik" means ?????????????? 2. ' Shafi Khalit means ............................... 3. "Shafi Jar means ................................... (2) Where all the clauses ............................ (3) Where there are more ............................ (4) Where there are more ??????..????????????????? ??????????? (5) A participator in the ???????. ????????????????? As may be seen the Act which came into force on 13th of March, 1993 was called as Amendment Act. The change brought about by it was in respect of section

14. It is said in section 2 of the Amending Act that section 14 shall stand substituted.

22. What is an amendment? This term implies existence of a provision of law and of certain new facts to be added thereto. It involves the superseding of the original. By very definition it connotes alteration or correction when an amendment is carried out with respect to statutes. Amendment is defined in Corpus Juris Secundum, Vol.-82, page 411 as:

"a legislative Act designed to change some prior and existing law by adding or taking from it some particular provision;" An amendment may be express or implied. To quote from Corpus Juris Secundum: "Amendments to statutes are not regarded as if they had been parts of the original instruments, but are considered rather in the nature of codicils or second instruments, altering or rescinding the originals to the extent to which they are in conflict, with a force superior to the originals to the extent of such conflict." Express amendment may take different forms. One form is when a provision is added to an existing statute. Another form is when a provision in an existing statute is deleted. Yet another form is substitution by which addition and deletion both are carried out by the same measure.

23. If by legislation certain provision of law or part thereof is added, by substitution or fresh incorporation it is a new legislation, taking effect, unless provided otherwise, from the date of such addition. If such new provision creates a right or imposes a liability it, unless otherwise provided, operates from the time of its enforcement. It is in that sense altogether a new legislation. However, if a provision of a statute or part thereof is deleted or is, substituted by another provision the particular provision deleted or substituted stands annulled or revoked. Repeal of a statute also has the effect of recalling or revoking of a statute or a portion thereof. It signifies abrogation of one statute by another. In repeal also the provision in old law disappears. If a law is repealed section 6 of the General Clauses Act becomes applicable with the result that: "

6. Effect of appeal.

Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereinafter to be made, then unless a different intention appears, the repeal shall not

(a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repeating Act or Regulation had, not been passed:"

24. The important question which arises is whether amendment is the -same thing as a repeal. On this point the view of the Supreme Court of Pakistan is that the effect of substitution or deleting a provision is the same as the repeal of a provision. We may quote from the judgment in Saeed Ahmad v. The State PLD 1964 SC 266:

"It will be observed that in accordance with this section all rights, liabilities, etc. continue in spite of repeal and all proceedings can be taken and continued which could have been taken or continued if the repealing Act did not come into force. When I asked learned counsel for the appellant what he had to say in reply to this section his only answer was that this section applies to a repeal and not to an amendment and before us there is a case of an amendment. Every amendment contains a repeal for the law in the form in which it stood previously disappears and a new law comes into force. There is no difference at all between a case where the Legislature says that a particular section will stand amended in a particular way and a case where it says that the section stands repealed and its place will be taken by a new section, if the new section is the same as the amended section. Whenever there is an amendment the Legislature could very well have said that the previous provision would be omitted and the provision as amended would be inserted. There is no reason for giving any different effect to these two methods which achieve the same result. At the same time there is no difference in principle between repeal and amendment and if in the case of a total repeal a proceeding can be continued as if there was no repeal why should the proceeding not be continued in the case of an amended provision?"

25. According to Corpus Juris Secundum, Vol. 82, page 901, "An amended Act is ordinarily to be construed as if the original statute has been repealed and a new and independent Act in the amended form had been adopted in its stead". Then on page 904 of the same volume:

" ....Similarly where a section of a statute is so amended, the substituted f amendment becomes for all purposes in the future the section of the original Act, the new section is substituted for the old one and every provision of the old section is repealed." In the above quotations the view is the same as adopted by the Supreme Court II of Pakistan that between amendment and repeal there is no difference.

26. In order to attract the provisions about effects of repeal it is not necessary that the word repeal should have been used. It may be seen that it is I an everyday occurrence that at times the law-maker does not use any specific word while intending to revoke or annul a legal provision. These are the cases which fall in the category of implied revocation or annulment. To illustrate the point that repeal may be inferred although this specific word has not been used, we may refer to the following extract from Corpus Juris Secundum, Vol. 82: "An express repeal is the abrogation or annulment of a previously existing law by the enactment or a subsequent statute which declares that the former law shall be revoked and abrogated. A statute, or portion thereof, may be repealed directly by an express provision or declaration in a subsequent statute,

27. The following recitals from Halsbury's Laws of England, Vol. 44, are also instructive: "A statute or a part of a statute may be repealed by a subsequent statute, or an intention that the earlier statute should be repealed may be inferred from the nature of the provision made by the later statute." "The rule is that one provision repeals another by implication if, but only if, it is so inconsistent with or repugnant to that law that the two are incapable of standing together:" (p.603). We may also notice that in Osborn's Concise Law Dictionary the word "repeal" has been assigned the following meaning:

"The abrogation of a statute or part of a statute by a subsequent statute. It may be either i.e. specially enacted, or it may be implied, i.e. the necessary result of the subsequent enactment."

28. We thus form the opinion that, unless the intention gathered from the subsequent enactment is otherwise, if a law or provision of law is superseded or revoked through a legislative measure it is to be taken as a repeal. In this view of the matter we respectfully own the view of the Supreme Court of Pakistan that an amendment is the same thing as repeal.

29. We now turn to the argument of Ch. Muhammad Sabir, which is based on Sardar Ali's case, that pending cases ought to be dismissed as was done in Pakistan. In the Constitution of Pakistan Chapter 3-A was added to make provision of Islamization of laws and, in order to achieve that purpose, for setting up of a Shariat Court. It was provided in Article 203-A that the provisions of Chapter 3-A shall override other provisions contained in the Constitution. Article 203-C provided that there shall be constituted a Federal Shariat Court consisting of, apart from Judges of the Supreme Court/High Court, some Ulema well-versed in Islamic laws. Under Article 203-D provision was made for examination of laws and the Shariat Court was given the power to decide the question whether or not any law or provision of law was repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (p.b.u.h.). If a law or any provision of law was found repugnant to the Injunctions of Islam, the Court was to specify the date on which the decision was to take effect. The subsequent steps and effects were to the following effect:

"(3) If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam, ??????????? (a) The President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List or the Governor in the case of a law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam; and (b) such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect."

30. By availing the aforementioned provisions, petitions were filed in the Federal Shariat Court to challenge some provisions of the Punjab Pre-emption Act, North-West Frontier Province Pre-emption Act and paragraph 25 of the 'Martial Law Regulation No. 115 (which related to the land reforms in Pakistan) in which it was provided that a tenant was to have right of pre-emption in respect of the land under his possession. After the judgments of the Federal Shariat Court appeals were taken to the Supreme Court of Pakistan which were, in pursuance of a provision in Chapter 3-A of the Constitution, decided by the Shariat Appellate Bench of the Supreme Court. In Government of N. W. F. P. v. Said Kamal PLD 1986 SC 360 the provision of the Land Reforms Regulations as well as some provisions of the Pre-emption Acts were found repugnant to the Injunctions of Islam. The Court fixed 31st of July, 1986 as the date before which a consolidated law of pre-emption was to be enacted, As it happened, the laws found to be repugnant to the Injunctions of Islam were not amended before the date fixed by the Supreme Court of Pakistan and the decision took effect from that date. It appears that the Courts continued with the pre-emption cases at different levels of the trial. In these circumstances in some cases questions were raised in the High Courts about the effect of the decision of the Supreme Court in Said Kamal's case. High Courts in Pakistan adopted different interpretations which may be broadly summarised as follows:

(i) suits filed before 31st of July, 1986 would be decided in light of the provisions of old laws till the final stage; (ii) notwithstanding the change in law, a decree of pre-emption obtained prior to that date will continue to have effect; however, if no such decree was passed prior to that date it could not be passed subsequent to it; and (iii) not only the suits pending on that date will be affected but also the decrees obtained prior to it will be annulled by superior Courts on the basis of the change of law.

31. Ultimately this issue was decided by the Supreme Court of Pakistan in Sardar Ali v. Muhammad Ali PLD 1988 SC 287 by which large number of appeals were decided. According to that judgment it was declared that

(i) a suit pending on 31st of July, 1986 could not be decreed after the said date; (ii) a plaintiff in a pre-emption suit having failed in the trial forum cannot be granted a decree by any higher forum; and (iii) a plaintiff who had obtained a pre-emption decree before the said date could not be non-suited on the ground that the relevant law ceased to have effect on 31st of July, 1986. These opinions were formed on the basis of the phraseology used m section 203-D that the "law shall cease to have effect". It was observed that the provisions of the pre-emption laws had not ceased to have effect by virtue of any amendment, repeal or even re-enactment thereof by another law but it was the result achieved directly by the decision of the Supreme Court. It was argued before the Supreme Court that in absence of any provision to the contrary in the Constitution various rights, privileges etc. of the parties to the litigation (which had taken birth before 31st of July, 1986) will continue to be governed and determined till the end of the litigation. In support of the submission of Full Bench judgment of the Lahore High Court Abdul Ghaffar Khan v. Saghir Ahmad Aslam PLD 1987 Lah. 358 was cited. The learned Judges from the Lahore High Court had relied on Article 264 of? the Constitution of Pakistan which deals with the effect of repeal of laws (in Azad Jammu and Kashmir Interim Constitution Act the parallel provision is contained in section 56-C) and it was held by the Lahore High Court that the term "ceased to have effect" was synonymous with the term "repeal". This view was overruled. We may reproduce the following passage from the judgment of Nasim Hasan Shah, J. (as he then was) who wrote a note of concurrence:

"I cannot agree with this reasoning. It is to be noted that Article 264 does not employ the phrase `cease to have effect' at all. It is concerned only with the effect of repeal of laws and deals with the situation of a law being expressly repealed or deemed to be repealed by, under, or by virtue of the Constitution. Resort to the analogy of repeal was made because the learned Judges thought that the phrase `cease to have effect' was not employed anywhere else in the Constitution. But we observe that the phrase `cease to have effect' has been used in the Constitution, namely, in Article

233. Thus, in sub-Article (1) of Article 233 it is said:

`233.

(1) Nothing. contained in Artides 15, lb, 17, 18, 19 and 24 shall, while a proclamation of Emergency is in force, restrict the power of the State as defined in Article 7 to make any law or to take any executive action which it would, but for the provisions in the said Article, be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect, and shall be deemed to have been repealed, at the time when the Proclamation is revoked or has ceased to be in force: If the effect of the words `cease to have effect' was synonymous with `repeal', obviously it would have been quite unnecessary to add the words `and it shall be deemed to have been repealed' after the words `cease to have effect'. The significance of these words have and I say so with respect, been quite correctly highlighted in the judgment of my learned brother Muhammad Afzal Zullah, J:' We may also usefully reproduce from the leading judgment of Muhammad Afzal Zullah, J. (as he then was) which would illustrate the point:- "

20. As has been seen the relevant provisions made in Chapter 3-A of the Constitution regarding the effect of the decisions thereunder, are extraordinary and special methodology and phraseology has been used in that behalf. It is not pari materia with the effect of repeal of a law as is provided in Article 264 of the Constitution nor the law becomes void as under Article

8. Moreover, these well-known words have been avoided. Instead; the law in question `cease to have effect' not by virtue 'of any amendment, repeal, or even the re-enactment thereof by another Law

This result is achieved directly by the decision of the Court itself. The new law, if any, in pursuance of the decision is to be made by the legislative organs of the State normally, before the questioned law ceases to have effect, as discussed earlier, by virtue of Article 203-D(3)(a). In the so made law saving provisions can also be made; rather, should always be made, so as to save the citizens from uncertainty and the Courts, from conflicts of judgments. Such provisions, besides being in the nature of saving clauses, could also deal with the interregnum so as to avoid absolute vacuum even of the short period. Such a course would also be in accord with the principle of equality before law. However, it is essential that such provisions are to be made in such a manner so as to avoid any conflict with the decision of the Court under Chapter 3-A on the one hand and with the relevant provisions regarding the effects of the continuance of the proceedings pending final decision, as are being determined in this judgment." It becomes clear that the words "ceased to have effect" are clearly different from the concept of "repeal of law".

32. In Azad Jammu ~and Kashmir the situation is clearly of repeal. The situation which is under our examination has arisen out of the amendment carried out in the Azad Jammu and Kashmir Right of Prior Purchase Act through an Act of the Assembly known as the Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 through which section 14 has been substituted. Since we have held that amendment is the equivalent of repeal section 6 of the General Clauses Act, 1897, as adapted in Azad Jammu and Kashmir, becomes applicable and also possibility section 56-C of the Azad Jammu and Kashmir Interim Constitution Act.

33. In Pakistan the provisions relating to pre-emption were not amended, repealed or superseded by the legislature but came to an abrupt and by virtue of a judgment of the Supreme Court. We may, even on the cost of repetition, observe that it was the requirement of sub-clause (a) of Article 203-D(3) that steps shall be taken to amend the law declared un-Islamic so as to bring it in conformity with Islamic Injunctions. Sub-clause (b) was to come into effect only after failure of the legislature to amend the law within the specified time and in sub-clause (b) the word "repeal", used in clause (a) was avoided and it was instead commanded that un-Islamic provisions of law "shall cease to have effect".

34. The supremacy of the law-maker is well-accepted. The law-maker can, except where otherwise forbidden, bring an end to pending proceedings and can even take away rights which have already accrued. The intention of what the legislature wanted is to be gathered from the phraseology used in a particular case or by provisions like those contained in General Clauses Act. Words similar to those used in clause (b) referred to above were employed in Article 102 of the (now abrogated) Constitution of Pakistan (1956) when dealing with expiry of an Ordinance. The provision was to following effect:

"102.- -(1) ????? ........................................................................................ (2) And Ordinance promulgated under clause (1) shall be laid before the Provincial Assembly and shall cease to operate at the expiration of six weeks from the next meeting of the Assembly, or if a resolution disapproving it is passed by the Assembly, upon the passing of that resolution. (3) ???????????????????????????. (4) ???????????????????????????.."

35. In presence of this provision it was held by superior Courts in Pakistan that such a law after expiry would be treated to have never existed. In this connection we may refer to Abdul Aziz v. District Magistrate PLD 1958 Lah. 104 (FB). In the Constitution of Pakistan (1973) now in force, different phraseology has been used in respect of an Ordinance and it has been provided in Article 89 that an Ordinance shall "stand repealed" at the expiration of the stipulated period. The use of word "repeal" has brought about a far-reaching change that, although the Ordinance remains to be a temporary law, provisions parallel to section 6 of the General Clauses Act found in Article 264 of the Constitution (repeal of laws) have become applicable. The result is that an Ordinance, a temporary law, has the same effect as a permanent law and after expiration it does not destroy the rights accrued or liabilities incurred under it and pending proceedings also continue. A view similar to those expressed in Abdul Aziz's case is no longer being taken about an Ordinance. This highlights the effectiveness of the will of the law-maker.

36. The relevant text of the amendment carried out in the Right of Prior Purchase Act has been reproduced. We have already reached the conclusion that section 6 of the General Clauses Act (also reproduced above) is applicable to the present case. This takes us to the argument advanced by Ch. Muhammad Sabir, the learned counsel for the appellant, that the aforementioned provision of General Clauses Act would still not be of any avail to respondent Khadim Hussain because a plaintiff-pre-emptor must possess the superior right on the three essential stages. On this point the learned counsel cited judgments which have been mentioned earlier. Two of these judgments are from this Court. Yet another judgment is Muhammad Khan v. Muhammad Sarwar PLD 1981 SC (AJ&K)

18. These judgments can be divided in two categories. First are those in which the vendee improved status during pendency of the suit. It was held in that situation that the suits had to be dismissed. In the second category fall those cases in which a notification was issued by the Government to exempt certain sales from operation of the right of pre-emption. The exemption notifications are issued in Azad Jammu and Kashmir under section 6 of the Right of Prior Purchase Act which empowers the Government to "declare that .... no right of prior purchases ?..shall exit". These are words of command which have been interpreted to have the affect of destroying a right which had already accrued. We have already discussed the settled position that the law-maker can do so. The position of a repealed law is entirely different. The principle of three stages would apply only if the right has been defeated but repeal of the law has not defeated or taken away the right of pre-emption. In words of section 6 of the General Clauses Act, the repeal has not affected the right which had accrued under the repealed law. Thus, the right is not destroyed but is protected and the change of law does not affect the right in any way. Consequently the legal proceedings will be "continued as if the law lad not been repealed".

37. The result of the foregoing is that section 14 on which grounds Nos. (i) and (ii) of the plaint (being a `Yekjadi' and ownership in the village) were based had been repealed but it continues to be operative for pending cases and the suit will be continued and decided in light of the repealed provisions. However, the position about grounds Nos. (iii) and (iv) still remain to be examined. These grounds were based on contiguity, commonness of thorough? fare and water source. These grounds were not recognised by unamended section 14 and were incorporated by way of substitution on 13th of March, 1993. It means that these rights were not recognised by law when the sale-deed was executed and the suit was filed.

38. As discussed elsewhere the effect of substitution of section 14 is that the new section shall be deemed to have been legislated on 13th of March, 1993 when the Amendment Act was enacted. Since the law was not in force E when the sale-deed under dispute was executed, the rights granted by the new section cannot, be made available to the respondent-plaintiff. The fact that respondent-plaintiff had in his plaint included these grounds does not make any difference in legal position.

39. Before parting, we may observe that in his arguments Ch. Lai Hussain, the learned counsel for the contesting respondent, also argued, although not at length, that the concept that right of pre-emption must exist at three stages was not well founded and he described it as a `step motherly treatment' to the pre?-emptors. Ch. Muhammad Yousuf, the learned Advocate-General, who was present in the Court during arguments and on being invited as an amicus curiae expressed the view that this concept had held the field for a long time without any dissent and, therefore, under the rule of stare decisis the concept may be kept intact. As is evident from the judgment occasion did not arise in the present case to examine the concept. " As an upshot of the analysis of law we find no force in this appeal and order its dismissal. Consequently, for the reasons recorded in this judgment the rejection of appellant Fazal Dad's application for dismissal of the suit is upheld. No party will be burdened with costs of the opposite-party. M.BA./72/SC(AJ&K)????????????????????????????????????????????????????????????????????????? Appeal dismissed.