' GUL MUHAMMAD KHAN, G.J.--The petitioners Sajwara etc. (S.P.No,14/L of 1988) and Allah Wasaya and others (S.P.No,2/1, of 1989) had challenged para 24 of the Land Reform Regulations to say that the bar contained therein against sale of property by an owner in the situation mentioned therein is against Qur'an and Sunnah of the Holy Prophet (p,b.u.h.). This order shall dispose of both the cases.
2. It was contended on the basis of verses 7, 29 and 32 of Surat Al-Nisa that Allah Subhana Hoo confers property right on the heirs and also what they earn whether they are men or women and protects and preserves the same property by direcing 'do not eat up the property among yourselves in vanities' i.e, in the prohibited manner and that let there be transactions in trade by mutual consent and good will as laid down in Verse 188 of Al-Bagarah.
3. Reliance was also placed on tradition of the Holy Prophet (p.b.u.h.) as given in Sahih Bokhary (Taisaral Bari Vol.III pages 678-679 that the owner has the right to sell his property and no person can compel an owner to sell his property. See Sanan Abi Daud No,3382, narrated by Hazrat Ali). The learned counsel also referred to judgment of the Supreme Court (PLD 1986 SC 360/418). {{URDU TEXT}} ' This judgment gives the above and many other references in support of the rights of ownership.
4. It is to be noted that all persons are entitled to earn in valid and lawful manner and own property.
Qur'an also permits an owner to deal with his property in his lifetime in any manner he likes though it places restriction only in the case of will. That is, however, after one's death inasmuch as that no Muslim can will in favour of any of his heirs and a will in favour of others cannot be more than 1/3 of this property. Another restriction is in the field of pre-emption but it is not against his right to sell. It is rather directed against him if he opts to prefer a purchaser as against whom another has a better right to purchase. So Allah Subhana-Hoo, as already stated above, does not restrict his right to sell in any other manner and as observed by the Supreme Court in the case referred to in para. 3 above, no third party (even though it was a government) can place any restriction on that right to sell.
5. We may reproduce here para. 24 so as to show clearly as to why and for what reasons restriction is being placed.
"24. Restrictions on alienation of holding.-- (1) No person owning more than the area of an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area below the limit of an economic holding: ' Provided that such a person may alienate his entire holding.
(2) No person owning an economic holding should be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding: ' Provided that such a person may alienate his entire holding.
(3) No person owning more than the area of a subsistence holding being less than an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area less than the area of subsistence holding: ' Provided that such a person may alienate his entire holding.
(4) No person owning an area equal to or less than a subsistence holding shall be allowed to alienate by sale, mortgage, gift or otherwise any part of his holding: ' Provided that he may alienate his entire holding or, in the case of a holding which is less than a subsistence holding sell any part of his holding to other owners of the same village, Deh or Mauza.
(5) Any alienation made in contravention of the provisions of this paragraph shall be void.
(6) Nothing in this paragraph shall apply to land, whether. Cultivated or other, which is bona fide required by the owner for the purpose of building thereon, and any tenant in possession of such land who refuses to quit after notice may be evicted under the orders of the Deputy Commissioner." (The underlining supplied).
6. It will be seen that restriction is directed in order to keep intact the economic and subsistence holdings so that there may not be fragmentation of such holdings in smaller pieces which are not economical to be developed and cultivated. Less production from a holding is of course loss to an owner but it certainly affects the other members of the Ummah whose sustenance is also dependent on the produce of land. The question raised, however, is whether para. 24 prevents the fragmentation on mere induction of more sharers and co-sharers.
7. It may, however, be considered that the same effect of divisionis spelt out by operation of the law of inheritance but rightly no such restriction has been placed on it. It would also be seen that keeping intact a holding is different from prohibiting induction of more sharers and co-sharers.
Here we may refer to para. 22 of the same Land Reforms Regulation and find another restriction. It is about the partition of the property into separate holdings. Para. 24 places restriction on sale while para. 22 on the partition. The restriction on partition does bring out the result which the law desires but if the sale restricted under para. 24 is allowed and the para remains operative the holdings shall remain as they are. We may also refer to para. 23 which devolves a method of management of holdings which cannot be partitioned and whose sharers or co-sharers do not agree among themselves on its management.
8. The damage of the mischief of the provisions objected to can be seen that if an owner has a dire need, say marriage of his children, payment of debt on education of his children which can be met by the sale of one acre, the law requires him to sell the entire holding, if the same is an economic or subsistence holding. It means that in that event the law is not only denying or restricting the power to sell but in certain situations it compels the owner to sell the entire holding even if he needs the proceeds of a portion to meet his needs. This provision thus instead of doing any good is un- Islamic for it prohibits what Qur'an and Sunnah permits.
9. None of the counsel appearing on behalf of the Governments seriously resisted the plea raised.
In this view of the matter we hold that para. 24 is repugnant to the Injunctions of the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) and same need be amended in the light of the discussion made above.
10. It is, therefore, desired that the President of Pakistan shall take steps to get the same amended before the 1st January, 1990, failing which para. 24 of Land Reforms Regulation, 1972 shall cease to have effect.