' AFTAB HUSSAIN, C. J.-Section 4 of the N.-W. F. P. Tenancy Act, XXV of 1950 provides that any occupancy tenant who at the commencement of this Act occupies any land as such on payment of the entire rent in cash or partly in cash and partly in kind shall become owner thereof on payment of the compensation to the landlord at such rate and within sue% period as may be prescribed by the Board of Revenue under this section. It also provides that if the tenant fails to pay the compensation determined in accordance with this provision, the right of occupancy shall be determined on payment of compensation by the landlord as determined and prescribed by the Board of Revenue in his behalf and the right of the tenant in the land shall vest in the landlord and he shall be entitled to possession thereof free from any encumbrance or lease created by the tenant in respect of that land.
2. Rules were framed which fixed the period for payment of compensation as 18 months. It was later extended from time to time by executive orders upto the 30th of September, 1956. Subsequently another year was given by the N.-W. F. P. Tenancy (Validation and Extension of Period for Payment of Compensation), Ordinance, 1969. On the 7th of July, 1982 Notification No, 28771 Revenue IV/168-A was issued by the Government which contains the North-West Frontier Province Tenancy (Fixation of Compensation to the Landlords) Rules, 1981. The rules contain the formula for assessment of compensation. Rule 5 provides that the compensation shall be payable either in lump sum or by instalments and the total amount shall be payable within 18 months.
3. The petitioner Sultan Khan, who is affected by these rules as an owner of land under occupancy tenancy has challenged them as being repugnant to the Holy Qur'an and the Sunnah of the Holy Prophet (p. b. u. h.) on the ground that neither the Quran, nor the Sunnah allows .11f the property of the landlord to be taken away from him and,itoilsegiVellitho the tenant. '=-1)0.1- 1117M Pi 55r.-i112
4. The learned counsel placed reliance on verses Q 2:184)1414:29tandif,da some Ahadees. ' fiei .-.E.Ahil-I Iiiires:,M)
5. The question of the scope of occupancy tenancy and its justifictiltkinpgaq in Sharia as well as the questiotk-offivalidity4AFtim4,0130gemppcidegril by this Court while examining the N.-W. Fi Pil.E.4. 4*Y, f 44/16ACti jt!,:risi may, however, be added that the learned counsel h$ Insty,sctOnitakiennAla in Court from the petitioner, conceded that the ocewancy Ittnanqt 9 t-,,-/q 311 the tenants were conferred by the petitioners' predecessors astAates,l Fcpas of contract. The creation of such right cannot be invalid. . . 2 ! - -, . _ L f .,i ti
6. The judgment was not recorded at the.-44p 9c examiimti lo Tenancy laws since the Court was cognizant of theiftict,thatA4,4 A.: ,bear , ri arguments on this petition. While writing the; itktyment 9n-pts,-WpWcy -?Ii Act, arguments of tne learned counsel were kept in view. 0, d b ill (1! 1 b' ; f_t 1
7. The main point to be determined, is whetherthe Government ban extinguish occupancy rights subject to payment of compensation and-confer ownership right on the tenant. It has been held in the above, jnaipient that Occupancy Tenancy rights are partly ownership rights ' in thje-land and this is a beneficial legislation which tends to resolve all.. Lispytf$ iS.414 out of the duality of ownership in the same land. This dijpose of petition which is, therefore, liable to be dismissed.
8. It may, however, be added that the learned counsel relied on the in a wrong way and except in trade by -nitittial consent. :'This WoitidnieajD Quranic Injunctions that one should not squander property of anpthe that nobody:s property can be squanderediAcept with,his4voseEt. ---c. .:,,,::,..
9. Firstly, the property is not being taken by the tenant exceptlpffle the protection of a statute made for publia benefit. SeCI5ntlIZ-t&ecl5fisen of the petitioner to that statute is proved by his long silence for over a period of 32 years since the legislation was passed although he could 0, .Ti challenge it in the High Court and the Supreme Court on grounds of violation of fundamental right_ of proAevty.. It isshstaAlishcd proposition of law that the sukoot ortilindi it eqcmvalehiPte-ent,..4 I
10. The maxim about'the dor(seifil'iirdiin&Ait:Vas follows :- "- Vt..,4 *41.6.11 0,:.,.. Psi Q...Tyrjl. X'S.9-16:41 ',....-,1 'I"
11. Silence is considered equivalent to consent in cases where it is one's duty to speak or express his willingness. In this connection, the Prophet (p. b. u. h.) observed about the adult:. Girl to whomi,,v4as.Macle,4p offer of marriage with a man named boors er, that her silence is her consent (Hedaya Volume I, par 294). ''tn1/4) tbuan ' - ' ''-`1/311.314C)1 51'''''
12. Section 67 of Mejella is also 6kaittctiv Of tliispficii#entti I _.,, - '-role nanrig -a tiliw arl brio .4,11 reproduced as under :--- --)WW filiw r8rtil:,2:- i'',0) citIS Ici :-nit "To a man who keepsbsilenee hATtstpirA is,41pp9ite4pliout nereetkewmtcs gri necessity shown, silenoehisr.a declesetiotk. ,1--)iihr.i,' ',11d 5VR, bit, ,Af That is to say, it is not said of someonetiwhateeps silencedthht lui:md has said such a thing, tut where there ivpsreason why heshaibspeblwAs his keeping silence ,ls, -regarded; atoafroadmission and zideciasailion.e.Sw.
(Mejella section 67)." alibi (bled to - . Hap lo nps110 (A)
13. Some instances of this rule are given.*setlions 438, 7731W 51712____ of Meiella, ov,-T-ett-1. -,10,4-1 k.,,, rmayttr;
14. Allama Tarablasi writes "Silence is considered consent in many cases like the silence of an adult girl in the contract of her marriage, silence in contracts of hiring, gift, agency, sale pre-emption.
Right, silence about the defect in the sold things before the contract of sale etc." (Mueenul Hukkam pages 160, 161; Al-Ashbah Wal-Nazir by Ibn-e-Nujaim, page 154).
15. On this analogy the inaction of a man in a matter where specific remedy is provided in law shall amount to his consent since if he had any c grievance, he would have gone for its redress to the Court. Sharia principle of sukoot (silence) is thus analogous to the present principle of acquiescence.
16. Such a remedy was open to the petitioner under the Constitution of 1956 upto the 8th of October, 1958 when Martial Law was imposed. It was again renewed in 1964 after the fundamental rights, including such rights to property were added in 1964 to the Constitution of 1962. The remedy could be sought under the Constitution of 1973 till the 5th of July, 1977. The silence of the petitioner brings his case within the scope of {{URDU TEXT}} in Q. 4:29.
' The petition is dismissed. {{URDU TEXT}}