1. ANWARUL HAQ, C. J.--This petition seeks Leave to appeal against the judgment dated the 17th of December, 1979, of the Peshawar High Court, by which a constitutional petition, moved by the petitioner to call in question a revisional order made by the learned Member, Board of Revenue, was dismissed in limine.
2. The petitioner Noor Ahmad Shah had filed a suit for pre-emption in the Court of the Collector Malakand, under paragraph 25 (d) of the Land Reforms Regulation, 1972 (M. L. R. 115) in respect of the sale of the land in suit by the land owner Haji Faqir Khan in favour of respondents Noor Hassan etc. The Collector had directed the petitioner on 8-12-1973 to deposit half of the sale money in cash and furnish security for the remaining half within a week and the case was adjourned to 22-12-1977.
3. The petitioner did not comply with this direction, and instead filed an application on the 15th of December, 1977, for extension of time, which was granted until 22nd of December, 1977. However, even within the extended period the pre-emption money was not deposited as directed. It is stated that the necessary deposit was made on the 26th of December, 1977. On the 1st of June, 1978, the Vendee moved an application that the petitioner's plaint be rejected in terms of subsection (4) of section 23 of the North-West Frontier Province Pre-emption Act. After hearing arguments from both sides, the learned Collector rejected the plaint by his order dated the 28th of June, 1978.
4. Aggrieved by this order of the Collector, the petitioner filed an appeal, which was accepted by the learned Additional Commissioner, Malakand, and the case was remanded to the Collector for fresh decision on merits in accordance with law. Before the learned Additional Commissioner the main ground taken on behalf of the petitioner was that the learned trial Court had not properly complied with the provisions of section 23 of the North-West Frontier Province Pre-emption Act, according to which the Court had to first determine the probable value of the land or property in suit, but in the instant case the learned Collector had not done so and had merely directed the plaintiff to deposit one half of the sale money.
5. The vendee thereupon preferred a revision petition before the Board of Revenue, which was accepted by the learned Senior Member of the Board by his order dated the 15th of November, 1979. He held that the probable value of the land in suit stood determined by the Collector at Rs.
6. 1;80,000 according to the sale deed dated the 6th of August, 1977, and that this value was also admitted by the present petitioner in the application, which he made on the 15th of December, 1977, for the extension of time after the expiry of the one week originally allowed to him by the Collector for depositing half the pre-emption money. The learned Member, Board of Revenue further held that according to section 6 (5) of the North-West Frontier Province Land Reforms Amendment Act, 1976 read with sub--section (8) of the same section, the pre-emption suit filed by the petitioner was to be tried by the Collector as a civil Court, with the result that the Collector had the power to pass an order under section 23 of the North-West Frontier Province Pre-emption Act for the deposit of the whole or part of the pre-emption money before the commencement of the suit, and as the petitioner had failed to make the deposit within the time allowed to him by the Collector, his plaint had been rightly rejected.
7. When the matter was brought to the High Court by the petitioner the only point urged on his behalf was that the Collector had no jurisdiction to order the deposit of money as provided for in section 23 of the North-West Frontier Province Pre-emption Act, 1950, as the right of pre-emption in favour of the petitioner had been created by the Martial Law Regulation 115, and not by the North-West Frontier Province Pre-emption Act, and the Regulation did not provide for the deposit of pre- emption money. This argument was repelled by the learned Judges of the High Court on the ground that the Martial Law Regulation in question only laid down the substantive provision conferring the right of pre-emption on the tenant, and also created a forum for the enforcement of that right, but it did not lay down any procedure whatsoever for the hearing of such pre-emption suits, and, accordingly, the provisions of the North-West Frontier Province Pre-emption Act would be fully applicable. On this view of the matter, they held that no exception could be taken to the order of the Collector rejecting the plaint of the petitioner for non-deposit of the money within the prescribed time, as required by subsection (4) of section 23 of the North-West Frontier Province Pre-emption Act.
8. Leave to appeal in sought on the following grounds :--
(a) The High Court was in error in thinking that the procedure in pre--emption suits filed under paragraph 25 (d) of M. L. R. 115 is governed by the provisions of N.-W. F. P. Pre-emption Act, as there is no such stipulation in the M. L. R. Concerned, nor in any other law for the time being in force, with the necessary consequence that the penal provision contained in section 23 (4) of the Pre- emption Act could not be invoked for rejecting the plaint ;
(b) That even otherwise the time for making the deposit had been furtherextended by the Collector up to and including the 26th of December,,1977, on an application made by the petitioner on the 22nd of December, 1977, as the 25th of December, 1977, was a gazetted holiday on account of Quaid-e-Azam's birthday, and, accordingly, there was, in fact, no default in complying with the Collector's order.
9. Paragraph 25 (3) (d) provides that; "Subject to the other provisions of this Regulation a tenant shall have the first right of pre-emption in respect of the land comprised in his tenancy."
10. Sub-para. (5) of the same paragraph, inserted by Act XLYIII of 1976 lays down that "All suits for enforcing the right of pre-emption in respect of land comprised in a tenancy shall be exclusively entertained,, and heard and decided by the Collector, within whose jurisdiction the land in respect of which the right of pre-emption has been claimed is situated, and all such suits, which may be pending in any Court immediately before the commencement of the Land Reforms (Amendment) Ordinance, 1976), shall on such commencement stand transferred to, the Collector concerned."
11. Sub-para. (8) further, stipulates that; "For the purposes of this paragraph a Collector; a Commissioner and the Member, Board of Revenue shall be deemed to be a civil Court and shall have all powers of a civil Court, under any other law for the time being in force, and the final order in such suit shall be deemed to be a decree of a civil Court and shall be executed as such."
12. 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 suit instituted for the exercise of this right. It is significant that the Martial La 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 area accordingly, in agreement with the learned Judges of the High Court that the pre-emption suit file 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. Preemption 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.
13. As to the second contention raised by the learned counsel for the petitioner that, in any case, the deposit had been made within the extended period allowed by the Collector on the 22nd, of December, 1977, we notice that this position was not canvassed before the Collector, the Additional Commissioner, the Member, Board of Revenue, aril the High Court. In the circumstances, it is not possible for us to entertain this new plea, even though the learned counsel has placed on the record' a Photostat copy and application said to have been made by the petitioner to the Collector on the 22nd of December, 1977, which contains an order in-the margin that the time is extended to the 26th of December as 25th was a holiday. It is not for us to say whether any such order was indeed made by the learned Collector, except to observe that if the petitioner bad obtained an extension of time up to the 26th of December 1977, there is no reason why this point was not pressed before the learned Collector, nor was there any reason for the Collector to exclude from consideration the extension of tune which he bad granted to the petitioner on the 22nd of - December, 1977. We can only surmise that no such order was in existence when the petitioner's case came up before all the Revenue Courts, as well as the High Court, otherwise there is no explanation why this simple point was not taken before all these authorities, as it would have obligated the need for elaborate arguments as to the applicability of the provisions of the N .-W. F.
14. P. Preemption, Act, as well as the question whether such provisions had been properly applied or complied with by the Collector when making the initial direction for depositing the pre-emption money on the 8th of December, 1977.
15. For the foregoing reasons, the petition fails and is hereby, dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.