' This is a revision petition against the order of the Additional Commissioner (Revenue), Lahore Division, dated 9-9-1979, whereby the appeal filed against the order of the A. C./Collector, Gujranwala, dated 19-2-1979, was rejected.
2. Briefly the facts of the case are that the petitioners purchased the suit land comprised in field Nos. 250-min., 234, 2148/235, 236, 237, 241, 248, 250-min. 251, 249-min. And 249-min. Measuring 69 kanals, 5 marlas, situated in village Ghulabpura, Tehsil Gujranwala, through registered deed dated 23-4-1978, against a consideration of rupees two lacs from Muhammad Jahangir-ud-Din Khan etc. The respondent instituted a suit for possession by way of pre-emption in respect of field Nos. 234, 2148/235, 236, 237, 241, 245, 250-min. 251 and'249 min. Measuring 62 kanals and 13 marlas on the basis of tenancy in the Court of the A. C./Collector, Gujranwala, who, vide order dated 19-2-1979, decreed the suit in his favour against a consideration of Rs, 1,80,938.62. Against his order the petitioners preferred an appeal before the Additional Commissioner (Revenue), Lahore provision, who rejected it vide the impugned order.
3. The counsel for the petitioners stated that the suit land was situated within the limits of Gujranwala Cantonment up to 4-4-1977, when through Notification No, S.R.O. 296(1)/77, dated 4-4- 1977; the land in dispute was excluded from the limits of Gujranwala Cantonment. He further stated that the land was sold through a registered sale deed, dated 23-4-1976, and the suit pre-empting it was filed, on 30-3-1977. The counsel argued that at the time when the suit was instituted the land stood excluded from the purview of the law of pre-emption. He further argued that the pre-emptor had to establish that he had the right to pre-empt on the day of sale, the day of the institution of the suit and at the time of the decree. In case any one of the above-mentioned conditions were not fulfilled the suit was liable to be dismissed. He contended that the A. C./ Collector and the Additional Commissioner had acted against the provisions of law in not dismissing the suit of the respondent, and, therefore, their orders were liable to be set aside. He further contended that the petitioners had also purchased a cattleshed alongwith the land in dispute and it was 'under the tenancy of the respondent and as the respondent had failed to file the suit for the cattleshed also, his suit was hit by principle of partial pre-emption and on this ground also the suit was liable to be dismissed. The counsel also referred to a Full Bench decision of the Peshawar High Court which had held that clause (d) of sub-para. 3 of para. 25 of M. L. R. 115 of 1972, giving preference to a tenant over co-sharer and contiguous owners was in flagrant violation of injunctions of Islam.
4. The counsel for the respondent argued that the A. C./Collector had decreed the suit in favour of the respondent and the appeal filed against this order had been rightly rejected by the Additional Commissioner (Revenue). He referred to a Ruling contained in Muhammad Yusaf etc. v. Board of Revenue etc. (1), in which the writ petition filed against the order of this Court dated 21-6-1979, alongwith the other judgments passed by the authorities below was dismissed in limine.
5. I have considered the arguments advanced by the two counsel. The point at issue in this case which requires to be decided, is as to whether the powers available to the Board of Revenue under section 8 of the Preemption Act for excluding certain class of transactions of sale or certain class of land from the operation of pre-emption rights also cover the right of pre-emption given to the tenants under para. 25 of M. L. R.
115. A close scrutiny of the provisions of para. 25(3)(d) of M. L. R. 115 shows/ that it only adds one more category of pre-emptors to the list of pre-JA (1) 1979 CLC 284 emptors contained in section 13 of the Pre-emption Act and gives them the first right to pre-empt. It does not take away the authority given to the Board of Revenue under other sections of the Pre-emption Act. Since section 8 of the Pre-emption Act authorises the Board of Revenue roll exclude the rights, of pre-emptors in respect of certain transactions of sale or certain class of land, this authority will cover the rights of the tenants also. Since the land involved in this case was included in the Gujranwala Cantonment area when it was sold, no right of pre-emption existed in respect of this land in accordance with the provisions of section 8 of the Preemption Act.
6. The counsel for the respondent had referred to 1979 CLC 288, in which reference was made to an order dated 21-6-79 of this Court wherein it had been held that since M. L. R. 115 was the overriding law, it overrode the provisions of the Pre-emption Act also and an exemption given under that Act could not take away the right given to the tenants under M. L. R.
115. I must confess that this opinion of this Court was given without a thorough and deep study of the provisions of para. 25(3)(d) of M. L. R.
115. No doubt M. L. R. 115 is an overriding law but it is so only to the extent intended in its provisions.
As has been mentioned earlier in the earlier para. The intention of para. 25(3)(d) appears to be to add another class of pre-emptors in the list of pre-emptors mentioned in section 15 of the Pre- emption Act and to give them the first right to pre-empt. Only to this extent, the provisions of para. 25(3)(d) supersede the provisions of the Pre-emption Act. It does not supersede or change the provisions of other sections of the Pre-emption Act. It is also to be noted that para. 25(3)(d) does not create any new right for pre-emption only a new class of pre-emptors. A careful reading of these provisions 'a tenant shall have the first right of preemption' clearly indicates that the tenant will have first right when this right of pre-emption is available. When this right is not available the tenant cannot ipso facto claim this right. Similarly powers given to Government and Board of Revenue in section 8 of the Pre-emption Act have not been affected by para. 25(3)(d). Therefore, notwithstanding any opinion previously expressed by this Court, the proper law means to be that the provisions of section 8 of the Pre-emption Act are not affected by the provisions of para. 25(3)
(d).
7. Accordingly the revision petition is allowed and the impugned orders of the Additional Commissioner, and the Collector are set aside.
8. The argument was heard and the order was reserved on 8-7-1980. Parties may be informed.