This judgment will dispose of Writ Petitions Nos. 1619/83, 1620/83 and also Writ Petition No.2883/84 and W.P. No.5073 of 1983. The first two writ petitions were fixed for today. The remaining two writ petitions involve the same question and since the same learned counsel are appearing in all the four cases, these two writ petitions were also called from the office and are being disposed of together with the other connected cases, with the consent of the learned counsel.
2. These four writ petitions arise out of pre-emption suits which were decreed in favour of the pre- emptors in view of the provisions of paragraph 25 of the Martial Law Regulation No.115 giving the first right of pre-emption to the tenants. The Revenue Authorities up to the Board of Revenue have upheld the decrees granted by the Collector. The petitioners challenge the orders of the Revenue Authorities on the ground that under the law a Pataidar or a Chaukatadar is a leasee and not a tenant as visualised by paragraph 25 of the Martial Law Regulation. It is contended that the lessees cannot avail of the concession made available to the tenants under the Martial Law Regulation.
3. The Revenue Authorities relied on the case of Muhammad Yusuf v. Province of Punjab through Collector Lyallpur PLD 1976 Lah. 328 but the view expressed in Muhammad Yousuf's case has not been followed in a large number of subsequent judgments and the learned counsel appearing on behalf of the petitioners has urged that 'the rule laid down in Muhammad Yusuf's case was not the correct enunciation of law. He has referred to the case of Muhammad Ashraf v. Member, (Revenue), Board of Revenue Punjab, Lahore and 18 others 1984 CLC 2950 and the case of Khushi Muhammad v. Government of Punjab etc. 1981 CLC 1677. The learned counsel has also referred to Land Reforms Regulation (Punjab Amendment) Ordinance, 1982 which specifically excludes a lessee from the definition of tenant. A copy of the judgment of the Supreme Court in C.P.S.L.A.
No.388 of 1975 has also been produced. The learned counsel for the respondent, on the other hand, has reiterated the rule laid down in Muhammad Yusuf's case and has tried to draw a distinction between a lessee who is not cultivating the land himself and one who is cultivating the land himself, in order to show that a person cultivating the land himself is a tenant, by the terms between him and the land-owner.
4. The right of pre-emption was conferred on the tenants for the first time in paragraph 25 of M.L.R.
115. The term 'tenant' was not, however, defined in this regulation. But subsequently through a notification, dated 8-6-1973 the Land Commission issued a clarification that a lessee was not a tenant for the purpose of paragraph 25 of the Martial Law Regulation 115. It is not denied that the notification issued by the Land Commission had the force of law but the learned counsel for the respondent submits that this clarification was confined to cases of ejectment of tenants and does not relate to the right of pre-emption. In my view there is no room for this interpretation. A lease- holder of land has rights altogether different from those of the tenants and in fact a lease-holder stands in the shoes of the owner. He is even liable 'for the Government dues regarding the land while the tenant is not. Similarly the lease-holder can employ tenants for the cultivation of the land.
Therefore, a lessee will; remain a lessee and will not be covered by the definition of tenant whether he cultivates the land himself or employs, other persons as tenants for the purposes of cultivation.
In C.P.S.L.A. No.388/75 disposed of on 20-1-1976 the Supreme Court chose to borrow from the Punjab Protection and Restoration of Tenancy Rights Act, 1950 in order to find a definition under paragraph 25 of the Martial Law Regulation and it was held that a lessee enters upon the land under a specific contract while a tenant-at-will continues from year to year at the option of the landlord. This distinction was specifically enacted in Ordinance V of 1982 referred to above when a new clause 13 was added to paragraph 2 of the Land Reforms Regulation, 1972 which reads as follows:---
(13) "tenant" mans a person who holds land under another person and is, or, but for a special contract, would be, liable to pay rent for that land to that other person and includes the predecessors and successors-in-interests of such person, but does not include:-
(a) ................................................................
(b) ................................................................
(c) ................................................................
(d) a lessee, whether cultivating the land himself or through another person."
The above discussion leaves no doubt that the right of pre-emption granted to tenants under paragraph 25 of Martial Law Regulation No.115 does not extend to the lessees.
5. The learned counsel has made a halfhearted attempt to show that a Pataidar and a Chaukatadar is also a tenant and not a lease-holder but he has referred to no precedent in order to show that a Pataidar or Chaukatadar is in any manner different from a lessee or a lease-holder.
In my view these two terms denote lessees and not tenants.
6. In the case of Bashir Ahmad v. Lal Din, etc. (W.P. No. 5073 of 1983), the learned counsel has stated that the respondent was mentioned as a tenant and not a lease-holder in the revenue record, but the copy of Jamabandi for the year 1974-75 and Khasra Girdawari of period Kharif 1971 to Rabi 1975 available on record refer to Lal Din as Ghair Dakheelkar paying Chaukata at the rate of Rs.160 per Killa. The contention of the learned counsel that Lal Din has been mentioned as a tenant, is, therefore, not borne out from the record. His case, is, thus, identical with the remaining three cases.
7. In view of the above considerations all the four writ petitions are allowed. The decrees granted to the respondents by the Revenue Authorities are declared to be of no legal effect. There shall be no order as to costs.