' One Captain Aziz-ur-Rehman was allotted one square of land, the subject-matter of this litigation, under Martial Law Regulation No, 9 of 1959 in village Bheri Kalan, Tehsil Shakargarh, District Sialkot.
He obtained proprietary rights in respect of the suit land as transpires from the contents of Annex.
'A', copy of Jamabandi entries relating to the land in dispute for the year 1973-74.
2. Captain Aziz-ur-Rehman sold the land in dispute to Havaldar Muhammad Ilyas, respondent No, 1, by registered sale deed dated 3rd May, 1979 (Annex. B). Muhammad Ibrahim petitioner is the tenant in respect of 67 Kanals and 8 Marlas of the suit land since prior to the aforementioned sale.
He is still in occupation of that land as tenant.
3. The petitioner filed suit for possession of the land under his tenancy by pre-emption. His suit was decreed by the learned Assistant Commissioner/Collector Shakargarh vide judgment dated 16th December, 1980 (Annex. C). Havaldar Muhammad Ilyas, the vendee, preferred an appeal before the learned Additional Commissioner Lahore who vide judgment dated 28th July, 1981 (Annex. D) accepted the appeal and dismissed the suits .Of Muhammad Ibrahim petitioner. The petitioner went in revision before the Board of Revenue and the learned Member of Board of Revenue dismissed the revision petition vide order dated 14th June, 1982 (Annex. F).
4. It is not disputed that the petitioner is a tenant in respect of the suit land and has a better right of pre-emption against the vendee under the provisions of the Land Reforms Regulation. His suit has been dismissed on the ground that the land in the border area could not be sold by an allottee without the permission of the General Headquarters and that the sale could take place only in favour of an army personnel. It is also alleged that sale of the suit land by Captain Aziz-ur-Rehman in favor of respondent No, 1 was effected with the approval of the General Headquarters. Such a sale, according to the respondent, is not pre-emptible. It has also been so held by the learned Additional Commissioner and the learned Member Board of Revenue.
5. In the above circumstances, the only point for determination is as to whether a sale of agricultural land by an allottee under Matrial Law Regulation No, 9 of 1959 who has already obtained the proprietary rights is per-emptible or not. Obviously, there is no provision in the Land Reforms Regulation or the Pre-emption Act bearing the exercise of right of pre-emption in respect of the agricultural land sold by an allottee under Martial Law Regulation No, 9 of 1959 in the border area. Similarly, there is no provision in Martial Law Regulation No, 9 of 1959 itself exempting the sale of agricultural land situate in border area from the exercise of right of pre-emption. The Board of Revenue has also not admittedly promulgated any notification under section 8 (2) of the Punjab Pre-emption Act, 1913 to the effect that sale in respect of agricultural land by an allottee under Martial Law Regulation No, 9 of 1959 in border area to another army personnel shall be exempt from exercise of right of pre-emption.
6. It is an established proposition of law that right of pre-emption is not a right of re-purchase but it is a right of substitution and a successful pre-emptor is substituted in place of the purchaser. In this view of the matter, prohibition on the sale or purchase of agricultural land in border areas by an allottee under Martial Law Regulation No, 9 (ibid) does not operate against a pre emptor who exercises a right under a different law, viz. The Pre-emption Act. To Abdul Ghafoor and others v Muhammad Ismail, with reference to restriction contained in paragraph 24 of the Land Reforms Regulation about the sale of land it has been held that it is more a restriction on the vendor than on the vendee. It has further been held that the restriction contained in sub-para. (4) of Paragraph 24 of the Land Reforms Regulation is about the alienations by sale, mortgage, gift or otherwise and a pre-emption decree does not fall in the category of alienation by sale, mortgage, gift or otherwise.
It is an adjudication by the Court and enforcement of a right under an altogether different law of which notice has been taken in the Regulation by making a supplemental provision with regard to the right of pre-emption of tenants. The sale in favour of the first vendee having been completed and being in accordance with the law contravening no provision of the Regulation, amounted to a valid sale and the pre-emptor only substituted the vendee in a sale which but for such substitution remained intact. The result being the product of two statutes, the principle of what cannot be done directly cannot be done indirectly is not attracted, for the statute permits its being done and the one which prohibits does not apply to the situation.
In the circumstances of the present case also, therefore, even if the petitioner was incompetent to purchase the suit land directly from Captain Aziz-ur-Rehman, can validly pre-empt the sale of the land made by the said Captain Aziz-ur-Rehman in favour of respondent No, 1, an army personnel, by exercising the right of pre-emption created in his favour by the Land Reforms Regulation.
7. In the light of the foregoing conclusions, this Constitutional Petition is allowed and the impugned orders dated 28th July, 1981 and 14th June, 1982 passed respectively by the Additional Commissioner Lahore Division and the Member Board of Revenue are declared to be illegal and without lawful authority : the result being that the judgment of Assistant Commissioner/Collector Shakargarh dated 16th December, 1980 is restored. The parties are, however, left to bear their own costs. PLD 1982 SC 364 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.