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Petitioner: Raja KHURSHID ALI VS Respondent: Dr. ABDUL MALIK And 5 OTHER
Court Name: Balochistan High Court Judge(s): Ajmal Mian, Amir-ul-Mulk Mengal Title: Raja KHURSHID ALI vs Dr. ABDUL MALIK And 5 OTHER Case No.: Constitutional Petition No. 101 of 1982 Date of Judgment:1986-08-09 Reported As: 1986 CLC 2995 Result: Petition dismissed
JUDGMENT
JUDGMENT AJMAL MIAN, ACTG. C.J.--This Writ Petition has been remanded by the Hon'ble Supreme Court in Civil Appeal No. Q/8 of 1985 to this Court by a judgment, dated 3rd May, 1986 in the following terms:-- "The learned counsel for the parties have agreed to the remand of the case to High Court for decision on merits. The learned counsel for the respondent has made statement that 'Talab' in the instant case was not made as it was not necessary for a tenant pre-empting under the provision of M.L.R. 115. In view of this the appeal is allowed and the case is remanded to the. High Court for decision on merits as well as on the question whether 'Talab' is or is not necessary under the provinces of M.L.R. 115." The brief facts leading to the filing of the above petition as averred therein, are that Khasra No. 917/157/158/159 (hereinafter referred to as 'the suit land') Mahal Khushkaba, Yasinzai Mauza Shaidara Tappa Saddar Tehsil Quetta, measuring 45 rods and 17 poles belonged to one Mrs. B. Clubwala, whereas one Khuda Bux son of Khair Muhammad and Mst. Nawanda daughter of Mool Chand were Lath-band Bazgars in respect thereof. There existed a brick-kiln in the portion of Khasra No. 159 even before the creation of Pakistan, inasmuch as, the same was reflected in the settlement of 1941-45, as the above Khasra number was shown as 'Ghair-mumkin Godi". It is averred in the petition that the petitioner in 1956 acquired the brick-kiln and started running it on the above Survey No. 159. It has been further averred that in 1969, the petitioner purchased Lath- band Bazgar rights from Muhammad Yousuf son of Khuda Bakhsh for a consideration of Ra.41,900 to the extent of half share of the above three survey Nos. Against mutation entry No. 91, dated 15th
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March, 1969 It has also been averred that on 12th June, 1973, the respondent No. 1 had purchased the remaining half share of Lath-band Bazgar rights in the above survey Nos. For a consideration of Rs.21,000 from Nazir Khan against mutation entry No. 254, dated 12th June, 1973. It has been further averred that on the basis of the above entry No. 254, the respondent No. 1 represented to hold 10331 shares out of 1817 in the Lath-bandi rights over the entire land including the above Khasra No. 159, which he sold to the petitioner for a sum of Rs. 65, 000 against the mutation entry No. 319, dated 4th September, 1974. It has also been averred that respondent No. 1 after having sold his half share of Lath-bandi rights along with one Nazir Ahmed and Ejaz Hussain purchased the proprietary rights of the suit land and two other survey numbers namely, 918 and 918/157, measuring 6 rods and 10 poles, in addition to the area of the suit land from Mrs. Sheren Jamshed for Rs.1,00,000 by means of mutation entry No. 329, dated 2nd November, 1974. It has also been averred that as soon as the petitioner came to know of the purchase of the proprietary rights in the suit land, he forthwith claimed pre-emption under para. 25 of the M.L.R. 115 (hereinafter referred to as the "M.L.R.") and also sent a notice, dated 6th January, 1975 to respondent No. 1 and showed his willingness to pay Rs.87, 500 for the suit land being the proportionate price after excluding the price of the above additional survey numbers. It has further been averred that after the service of the above notice, respondent No. 1 purchased 1/3rd share from Ejaz Hussain and Nazir Ahmed for a consideration of Rs.21,800 against mutation entry No. 341, dated 12th January, 1975. It has also been averred that since the respondent No. 1 had not acceded to the above demand of the petitioner, he filed a suit for pre- emption originally in the Court of Civil Judge, Quetta, but later on, due to amendment in the law, the suit was transferred to the Deputy Commissioner-cum-Collector. The above suit was contested by the private respondent. On the basis of the pleadings of the parties, the following four issues were framed:-- "(1) Whether the plaintiff is in unauthorised possession of the suit land. If so to what effect. (2) Whether the plaintiff has a right of pre-emption in respect of; land in suit-. (3) What is the sale consideration of the land in suit. (4) Whether the plaintiff has no cause of action on averments under para. 7 of the written statement." The parties produced ocular as well as documentary evidence. The Deputy Commissioner-cum- Collector, Quetta by his judgment, dated 16th November, 1978 decreed the above suit, against which, the respondent No. 1 filed Appeal, which was allowed by the Additional Commissioner, Quetta by means of judgment, dated 31st May, 1980. The petitioner being aggrieved by the above judgment filed revision, but the same was dismissed by the learned Member-III of the Board of Revenue Baluchistan through his judgment, dated 18th April, 1982. Being aggrieved by the above two judgments, the petitioner filed the above petition on 17th May, 1982, which was disposed of by a judgment of a Division Bench of this Court, dated 12th March, 1984, whereby all the three judgments were set aside and the case was remanded to the Collector to try it afresh after allowing the parties to make amendment in the pleadings, if they so choose and re-casting of the issues including on the question of 'Talabs'. Against the above judgment, respondent No. 1 filed the above appeal in the Honourable Supreme Court, which was disposed of in terms of the above-quoted judgment. 2. In terms of the above judgment of the Honourable Supreme Court, this Court has to decide the case on merits as well as the question, whether 'Talabs' was or was not necessary under the M.L.R. Before taking up the above points, it may be pointed out that as per statement of the learned counsel for the petitioner before the Honourable Supreme Court recorded in the above-quoted judgment, the petitioner had not made any 'Talab', as according to him, it was not required. The case is, therefore, to be proceeded with on the factual assumption that no 'Talab' was made.
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3. Mr. Muqim Ansari, learned counsel for the petitioner in support of the above petition has urged as follows:-- (i) That since the pre-emption in question is creation of the M.L.R there is no requirement of making any 'Talab' as the principles of Muslim Personal Law cannot be imported into the M.L.R., (ii) That respondent No. 1 is estopped from urging that Survey No. 159 was not an agricultural land as to attract para. 25(3)(d) ,of the M.L.R.; (iii) That even on merits, the petitioner has proved his case that he was holding Lath-band Bazgar rights which are tenancy rights at the relevant time. On the other hand, Mr. Iftikhar Muhammad, learned counsel for the private respondents has contended as under:-- (i) That since the M.L.R. Does not contain any procedure or any other guideline in respect of pre- emption in question, and as Muslim pre-emption law is applicable in Quetta District, the principles of the same including as to the requirement of two 'Talabs' will be applicable in order to claim pre- emption right; (ii)That the petitioner had not pleaded any estoppel against respondent No. 1 in the suit or by filing any replication to the written statement; (iii) That factually the petitioner himself is estopped from urging that Survey No. 159 is agricultural land in terms of para. 2(4) of the M.L.R. As he himself admitted even in this petition that the above survey had a brick-kiln much before first settlement of 1941 and that he was using as such since 1956; and (iv) That the petitioner has failed to prove his case on merits. Mr. Yaqub Khan, learned Advocate-General appearing for the official respondents has submitted as follows:-- (i) That the right of pre-emption in question is a creation of the M.L.R.; (ii)That though the right of pre-emption in question is a creation of the M . L. R . , but all the incidents of Muslim Law shall be applicable :n order to claim the same. 3-A. Before touching upon the merits of the above first contention e the learned counsel for the petitioner, it may be pertinent to observe that the M.L.R. Was issued on 11th March, 1972 containing the following preamble: -- "Whereas Islam enjoins equitable distribution of wealth any economic powers and abhors their concentration in a few hands And whereas it is in the supreme national interest to improve the economic well-being of the peasantry, by making agriculturea profitable vocation; Now, therefore, the Chief Martial Law Administrator is pleases - to make the following Regulation." It may be observed that sub-pare. (4) of para. 2 of the M.L.R, defines the land as follows:-- "'Land' means land which is not occupied as the site of a town, village, factory or industrial establishment, and is occupied or has been or can be let for agricultural purposes or for purposes allied or subservient to agriculture, and includes the sites o1 buildings and other structures on such land." Whereas, para. 25 deals with the rights of tenants including the right of pre-emption. It may be advantageous to reproduce the same, which reads as follows:-- "25. Rights of Tenants.--(1) A tenant shall not be ejected from his tenancy "unless it is established in a revenue Court that he has-- (a) failed to pay the rent in accordance with the terms of his tenancy; or (b) used the land comprised in the tenancy in a manner which rendersit unfit for the purpose for which he held it; or (c) failed to cultivate or arrange for the cultivation of the land comprised in the tenancy in accordance with the terms thereof, or if there are no express terms in this behalf, in accordance
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with the , customary manner of cultivation in the locality; or (d) sub-let his tenancy. (2)The crop grown at any time during Rabi 1971-72 on any land comprised in a tenancy shall, on its maturing, be apportioned between the tenant and the landlord in accordance with the law for the time being in force. (3) As from Kharif 1972-- (a) Land revenue and other taxes, cesses, surcharge and levies on land shall be payable by the owner; (b) The liability for payment of water-rate, and providing seed for any land shall be that of the owner or other person in possession thereof, other than the tenant; (c) The cost of fertilisers and pesticides required for the land comprised in a tenancy shall be shared equally between the owner and the tenant; (d) Subject to the other provisions of this Regulation, a tenant have the first right or pre-emption in respect of the land comprised fn his tenancy. (4) No owner or person in possession of any land shall levy any cess on or take any free labour from, any of his tenants. " 4. In order to bring the land within the above-quoted definition given in para. 2(4) of the M.L.R. One has to prove the following ingredients:-- (i) that the land is not occupied as site of a town, village,- factory or industrial establishment; (ii) that the land is occupied or has been or can be let out for agricultural purposes or for purposes allied or subservient to agriculture, which will include the sites of buildings and other structures on such land. Whereas, above-quoted para. 25 of M.L.R. 115 has four parts, containing in four sub-pares. Part 1 prohibits the ejectment of a tenant from his tenancy except on proving in a Revenue Court one or more facts mentioned in sub-pares. (a) to (d) of para. 1, whereas, part-2 provides that crop grown at any time during Rabi 1971-72 on any land comprised in a tenancy shall be apportioned between the tenant and the landlord in accordance with the law for the time being in force Part-3 apart from spelling out the liabilities as to the payment of land revenue, other taxes, cesses, water-rate and providing seed and sharing of cost of fertilisers and pesticides. Sub-pare. (d) confers on a tenant the first right of pre-emption in respect of the land comprised in his tenancy subject to other provisions of the M.L.R., whereas; Part 4 prohibits the owner or person in possession of any land from levying any cess on or taking of any free labour from any of his tenants It may also be pertinent to point out that para. 3 provides that the provisions of the M.L.R. And any rule or order made thereunder shall have effect notwithstanding anything to the contrary in any other law or in any order or decree of a Court or Tribunal or other authority or in any rule or custom or usage or in any contract, instrument, deed or other document. 5. Having referred to the relevant paras. Of the M.L.R., it may be appropriate to revert to the submissions made by the learned counsel for the parties. It may be pertinent to observe that Mr. Muqim Ansari, learned counsel for the petitioner has not cited any case law in support of his submission that the requirement of two 'talabs', namely, Talab--i--Mowasibat i.e.; jumping demand and Talab-i-Ishhad i.e.; demand with invocation of witnesses, cannot be imported into the M.L.R. On the other hand, Mr. Iftikhar Muhammad, learned counsel for the private respondents has cited the following cases furtherance of his submission that the principles of Muslim Personal Law of pre- emption shall be applicable:-- (I) Abdul Razzaq and 19 others v. Khudaidad and 5 others, reported in PLD 1974 Quetta 18, in which, a learned Single Judge of the erstwhile High Court of Sind and Baluchistan while hearing two second appeals and three revisions arising out of five pre-emption suits in respect of agricultural
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land considered the question whether pre-emption right was inheritable or not, and held that since the right of pre-emption is governed by Hanafi Law, it did not devolve on the legal heirs of Muslim Personal Law Shariat) application Act, 19622. It was firth held that after the death of the pre-emptor, suits had abated. It w also held that section 2 of the West Pakistan Muslim Personal L (Shariat) Application Act, 1962 was applicable to Quetta Division whih provided that notwithstanding any custom or usage, in all question regarding succession (whether testate or in testate), the rule of decision subject to the provisions of any enactment for the time being in for shall be the Muslim Personal Law (Shariat) in cases where the parti are Muslims. It was also held that since unlike Punjab and the North-We Frontier Province, there is no statute governing pre-emption in t Province of Baluchistan, therefore, the rights of the appellants are be governed by Hanafi Law and their reliance on local customs, if an is misconceived. (ii) Noor Ahmed Shah v. Member, Board of Revenue etc. Report in 1981 SCMR 337. In the above case, a petition for leave again the judgment of the Peshawar High Court was filed, in which, it w inter alia, held that to a suit for pre-emption under para. 25(3)(d) the M.L.R. The provisions relating to procedure contained in N.-W.F. Pre-emption Act (XIV of 1950) including the requirement of pre- empter money deposit in terms of section 23(4) of the said Act shall applicable. The Honourable Supreme Court while dismissing the petiti for leave made the following observations on the above point:--the deceased pre-emptor in view of section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. It was further held that after the death of the pre-emptor, suits had abated. It was also held that section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 was applicable to Quetta Division which provided that notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), the rule of decision, subject to the provisions of any enactment for the time being in force shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims. It was also held that since unlike Punjab and the North-West Frontier Province, there is no statute governing pre-emption in the Province of Baluchistan, therefore, the rights of the appellants are to be governed by Hanafi Law and their reliance on local customs, if any, is misconceived. (ii) Noor Ahmed Shah v. Member, Board of Revenue etc. Reported in 1981 SCMR 337. In the above case, a petition for leave against the judgment of the Peshawar High Court was filed, in which, it was inter alia, held that to a suit for pre-emption under para. 2--.;3)(d) of the M.L.R. The provisions relating to procedure containedN.-W.F.P. Pre-emption Act (XIV of 1950) including the requirement of pre-emption money deposit in terms of section 23(4) of the said Act shall be applicable. The Honourable Supreme Court while dismissing the petition for leave made the following observations on the above point:-- "There is no other provision in the Martial Law Regulation defining the procedure to be followed in such pre-emption suits. In these circumstances, the High Court appears to us to be right in taking the view that paragraph 25(3)(d) of the Regulation creates a substantive right of pre-emption in favour of the tenants, but it does not seek to override or depart from the procedure embodied in the N.-W.F.P. Pre-Emption Act for dealing with suits instituted for the exercise of this right. It is significant that the Martial Law Regulation does not even attempt to define the term 'pre-emption' for the obvious reason that the intention appears to be that it will carry the same meaning and definition as already stand embodied in the relevant pre-emption law obtaining in the province concerned. We are, accordingly, in agreement with the learned Judges of the High Court that the pre-emption suit filed by the petitioner was to be heard by the Collector, as a civil Court, following the procedure already prescribed by the N.-W.F.P. Pre-Emption Act. The Collector was, therefore, acting within his jurisdiction in prescribing a period for the deposit of the pre-emption money, and in rejecting the plaint on account of non-compliance with his direction, as envisaged by subsection (4) of section 23 of the Pre-Emption Act."
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(iii) Muhammad Khan v. Abdul Khaliq Khan reported in PLD 1981 (SC) 155. In the above case, the Honourable Supreme Court while maintaining the judgment of the Lahore High Court held that to a suit for pre-emption under para. 25(3)(d) of the M.L.R., the provisions of Punjab Pre-emption Act, 1913 (1 of 1913) as to the procedure shall be applicable. It was further held that the M.L.R. Simply grants a preferential pre-emptry status to tenants with regard to land comprised in their tenancy and this is in continuation of the right under the Punjab Pre-emption Act and in fact the pre- emptor enforces the right of pre-emption basically granted by the above Act. It may be advantageous to reproduce the relevant observation, which reads as follows: "Section 21 provides that any person entitled to a right of pre-emption may, when the sale or foreclosure ha3 been completed, bring a suit to enforce that right. The phraseology of section 21 is very significant. The prefix of word 'any' before 'person entitled to a right of pre-emption' above that entitlement need not flow necessarily from this Act but may emanate from any other law for the time being in force as well. No doubt, whenever any special law-makes any changes in respect of any particular matter, that law may prevail in respect of that matter but the basic position will remain that the law granting right of pre-empting sales of agricultural land in Punjab is the Punjab Pre-emption Act I of 1913. In this way if we examine para. 25(3)(d) of the Land Reforms Regulation 115 of 1972, we notice that by itself it does not define what is a right of pre-emption it does not state regarding which transactions it can be enforced, and about which transactions it cannot be enforced. It does not state for instance when there are joint tenants in a particular area of land, how the right is to be regularised and enforced; it does not state as to what is the procedure for the determination and enforcement of that right namely whether a deposit or security for 'Zari-Panjum is to be asked for from a plaintiff or not; and what would be the procedure for fixing the price; whether the Court would have the power to determine the market price in place of price pleaded by the parties and if so, how and on which basis and in what manner. Similarly it does not deal with various other subject-matters contained in the Punjab Pre-emption Act. All this will show that para. 25(3)(d) of Land Reforms Regulation 115 of-1972 cannot be said to be a law which regulates or provides any procedure to enforce a right of pre-emption. It simply grants a preferential pre- emptor status to 'tenants' with regard to land comprised in their tenancy. In the Punjab Pre- emption Act occupy tenants were entitled to pre-empt but now all that para. 25(3)(d) has done is that besides granting this right to all types of tenants; it gives them the first right placing the other classes entitled to pre-empt below and next to them. The words 'first right' show that they are to be read into (for example) section 15 of the Punjab Pre-emption Act, for the purpose of their enforcement, because otherwise the concept of the phrase 'first right' would neither be clear nor first anywhere by itself just in the abstract. In this manner, these words have impliedly become a part of section 15, and as such a suit by a tenant to enforce his 'first right' of pre-emption 'can rightly' be called a 'suit to enforce a right, of pre-emption under the provisions of this Act' namely Punjab Pre-emption Act, to which section 30 can safely be applied. Even otherwise emphasis in section 30 is on institution and filing of suits under this Act and not merely to preference which flow under this Act because as already clarified above preference may flow from any other law for the time being in force, but so long as the basic right of pre-emption itself originates from this Act, all suits in that respect shall be suits "to enforce a right of pre-emption under this Act". 6. In our view, the above judgments relied upon by the learned counsel for the private respondents are not directly applicable to the instant case, as there is no parallel enactment in force in the Province of Baluchistan as in the cases of N.-W.F.P. And Punjab referred to hereinabove in SCMR of 1981 and PLD SC of 1981 respectively. The question in issue before us is, as to whether the requirement of Muslim Law of two 'Talabs' can be pressed into service in a suit under para. 25(3)(d) of the M.L.R. Learned counsel for the private respondents has not cited any case either under N.- W.F.P. Pre-emption Act or Punjab Pre-emption Act to indicate that even for a suit under the above
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two enactments, the requirement of two 'talabs' are imported. The pre-emption right in question is creation of a statute relating to tenancy rights of agricultural land, which is not recognized by Muslim B Law and, therefore, it is foreign to the Muslim Law. In this connection, reference may be made to a recent judgment of the Shariat Appellate Bench of the Honourable Supreme Court, namely, Government of N.-W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah, reported in PLD 1986 SC 360, wherein vires of para. 25(4)(d) of the M.L.R. Was considered and the majority view was that it was repugnant to Islamic tenets. Mr. Justice Muhammad Afzal Zullah, Chairman while concurring with the judgment of Mr. Justice Pir Muhammad Karam Shah and Mr. Justice Muhammad Taqi Usmani on the above point observed as follows:-- "On the other hand, I agree with the propositions laid down on the law of pre-emption in the leading judgment of my learned brother Pir Muhammad Karam Shah, J. As also with the similar propositions and specific points contained in the judgment of my learned brother Maulana Muhammad Taqi Usmani, J. In particular I would also emphasise that paras. 4 to 10 of the latter judgment -besides establishing the fundamental question that the law of pre-emption in Islam is a specified exception to the general law of freedom of contract and purchase in Islam, also answers the point regarding repugnancy in case new exceptions are created. If it is once established that there are only three categories of pre-emptors, then it would be repugnant to the-relevant injunctions if they are curtailed property wise or increased, person wise. The injunctions and these infringements will not be able to co-exist in the context of definition of repugnancy. I am further of the view that the distinction made by Hazrat Shah Waliullah Sahib in the two categories of Moamilat as distinguished from Ibadat when occurring in the Sunnah of the Holy Prophet (S.A.W.S.), so ably highlighted in the judgment of my learned brother Maulana…
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