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Petitioner: ROZI MUHAMMAD VS Respondent: GUL MUHAMMAD
1988 S C M R 929
1988 S C M R 929
Present: Nasim Hasan Shah and Ali Hussain Qazilbash, JJ
ROZI MUHAMMAD‑‑Petitioner
versus
Haji GUL MUHAMMAD and another‑‑Respondents
Civil Petition No.252‑R of 1987, decided on 21st March, 1988.
(From the judgment of the Peshawar High Court, dated 23rd June, 1987, passed in Writ Petition No.538 of 1982).
(a) Land Reforms Regulation, 1972 (N.L.R.115)‑‑
‑‑‑Paras'. 25 & 2(13)‑‑Land Reforms (.North‑West Frontier Province Amendment) Ordinance (XI of 1981)‑‑Constitution of Pakistan (1973). Art. 185(3)‑‑ Pre‑emption‑‑Tenant‑‑Exclusion of lessee from definition of tenant‑‑Effect of‑‑Leave to appeal granted to re‑consider the effect of the provision of amending Ordinance (XI of 1981).
Naimatullah Khan v. Government of Pakistan P L D 1979 Pesh. 104; Bakhtawar Shah v. Member, Board of Revenue 1985 S C M R 348 and Muhammad Rafique v. Faqir Muhammad etc. P L D 1986 S C 2 31 ref.
(b) Land Reforms Regulation, 1972 (M.L.R.115)‑‑
‑‑‑Paras. 25 & 2(13)‑‑Land Reforms (North‑West Frontier Province Amendment) Ordinance (XI of 1981)‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Leave to appeal granted to consider question whether provisions of Ordinance (XI of 1981) were retrospective in operation.
Naimatullah Khan v . Government of Pakistan P L D 1979 Pesh. 104; Bakhtawar Shah v. Member, Board of Revenue 1985 S C M 8 348 and Muhammad Rafique v. Faqir Muhammad etc. P L D 1986 S C 2 31 ref.
Mian Inam‑ul‑Haq, Advocate Supreme Court and Ch. Ghulam Dastgir, Advocate‑ on‑Record for Petitioner.
Nur Ahmad Khan, Advocate‑on‑Record (absent) for Respondents.
Date of hearing: 21st March, 1988.
ORDER
ALI HUSSAIN QAZILBASH, J.‑‑This is a petition for leave to appeal against the judgment of a learned Single Judge of the Peshawar High Court, dated 23‑6‑1987.
2. Rozi Muhammad petitioner was successful in securing a pre emption decree from the Court of the Assistant Collector, Dargai, on 6‑1‑1981 as being a tenant over the suit land. This decree was, however, set aside by the. Additional Commissioner, Malakand, vide order dated 28th October, 1981, by basing his finding on the decision of the Shariat Bench of the Peshawar High Court reported as Naimatullah Khan v. Government of Pakistan P L D 1979 Pesh. 104 and on Land Reforms (North‑West Frontier Province Amendment) Ordinance (XI of 1981) issued by the Government of N.‑W.F.P. on 28‑9‑1981, amending M.L.R. 115 whereby the lessee was excluded from the definition of a tenant. On revision by the petitioner, the Member, Board of Revenue, N.‑W.F.P., vide his order dated 20‑10‑1982, set aside the order of the Additional Commissioner, dated 28‑10‑1981, and restored that of the Assistant Collector, Dargai. As per the judgment` of the Shariat Bench of the Peshawar High Court, the learned Member, Board of Revenue, held that since the law pursuant to the above judgment was yet to be amended, the existing law continued to operate and so far, as the amendment brought through Ordinance XI of 1981, it was held that the decree in favour of the petitioner was passed prior to the notification, the same, therefore, was inoperative against his rights. The High Court on being approached by the respondents vide its impugned order held the petitioner as a lessee and relying on Ordinance XI of 1981 non‑suited him.
3. We have heard the learned counsel for the petitioner. He submitted that neither the decision of the Shariat Bench of the Peshawar High Court nor Ordinance XI of 1981 would be applicable to his case because the suit was decreed in his favour by the Assistant Collector as back as 6‑1‑1981. But when his attention was invited to the case of Bakhtawar Shah v . Member, Board of Revenue 1985 SC MR 348, wherein it ,has been held that the amendment made in the said) Ordinance was retrospective in operation, he referred us to the case of Muhammad. Rafique v. Faqir Muhammad etc. P L D 1986 S C 231, wherein ‑leave has been granted by this Court on 15‑2‑1986 to re‑consider the provision of amended Ordinance XI of 1981. Leave in t this case is also granted. Security Rs.5,000. The operation of the order of the High Court is suspended. The appeal shall be heard on the present record with permission to the parties to file additional documents if any.
4. This appeal shall be placed for hearing alongwith the appeals arising from Civil Petitions Nos.1040, 1041, 1066 and 1067 of 1985.
M.I. /R‑43/S Leave granted.