' NAZIR AHMAD BHATTI, J.--The land in dispute situate in village Noa, Tehsil and District Dir, was owned by Nawabzada Muhammad Shah Nasir Khan. He sold it to Haji Hazrat Faqir Jan, respondent No,5 in the year 1978. Habib Roz Gujar, petitioner herein, claiming to be a tenant of the said land for more than thirty years, filed a suit for pre-emption on 19-2-1978 in the Court of EA.C. Dir on the plea of being a tenant therein having first right of pre-emption under paragraph 25(3)(d) of the Land Reforms Regulation, 1972 (hereinafter referred to as M L R 115). Janatul Haq and others respondents No,1 to 4 herein also filed a suit for pre-emption on 23-2-1978 claiming the pre-emptive right of contiguity. Both the suits were taken cognizance by the learned EA.C. Dir, respondent No,6, exercising powers of the Deputy Commissioner under the Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation No,II of 1975 (hereinafter referred to as the Regulation) who constituted a Jirga with Tehsildar Dir as its Chairman and referred the matter to it for report. The Jirga recorded evidence of the parties and made a joint report saying that the petitioner was in possession of the suit land as tenant for the last thirty years and hence he had the first right of pre-emption and made a unanimous recommendation in favour of the petitioner. The learned EA.C. Accepted the said report and passed a decree in favour of the petitioner and dismissed the suit of the respondents No, 1 to 4 by order dated 25-11-1979. Respondents Nos.1 to 4 feeling aggrieved filed an appeal before the Additional Commissioner, respondent No,7 as provided in the Regulation. However, in the course of proceedings before the learned Additional Commissioner, respondents No,2 to 4 withdrew their appeal and the same was dismissed on 9-10- 1980. With regard to the appeal of respondent No,1 the learned Additional Commissioner held that the petitioner was in actual possession of three motas of land as tenant and with regard to the other one mota of land left with the vendee he ordered that the said one mota of land be equally distributed between Janatul Haq, respondent No,1 and Haji Hazrat Faqir Jan, respondent No,5 on payment of proportionate amount. This order is dated 11-11-1980. However, the respondent No,1 did not feel contended with the order made in appeal and filed a revision petition before the learned Additional Secretary Home, respondent No,8. The latter by order dated 31-5-1984 accepted the revision petition and held that the petitioner was not a tenant of the suit land. Habib Roz Gujar feeling aggrieved by the aforesaid order passed in revision challenged the same as being without lawful authority and of no legal effect by the writ petition in hand.
2. We have heard learned counsel for the parties at length.
3. Sub-clause (d) of clause (3) of paragraph 25 of M.L.R.115 confers upon the tenant a first right of pre-emption in respect of land comprising his tenancy. When the transaction of sale took place in the year 1978, M.L.R.115 was applicable in District Dir. Such a tenant of a land could pre-empt its sale on the basis of his tenancy therein and this was a pre-emptive right superior to all other rights of pre-emption. The Jirga constituted under the Regulation also unanimously came to the conclusion after recording evidence of the parties that the petitioner was a tenant of the suit land for the last thirty yeaRs, This unanimous report of the Jirga was accepted by the learned EA.C. Dir who was exercising powers of the Deputy Commissioner under the Regulation and he passed a decree accordingly. The unanimous report of the Jirga was also accepted by the learned Additional Commissioner, who dismissed the appeal of the rival pre-emptors because their right of pre- emption was based only on contiguity to the suit land.
4. It appears that in the meantime an amendment was made in M.L.R.115 by Land Reforms (N.-W.F.P.
Amendment) Ordinance of 1981 (hereinafter referred to as the Ordinance) whereby the definition of the term 'tenant' was added in clause (12) of paragraph 2 of M.L.R.115. For the sake of convenience the said amendment is reproduced below:- "(13) 'tenant' means a person who liolds 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-ininterest of such person; but does not include--
(a) a mortgagee of the rights of the land-owner, or
(b) a person holding any land under the Federal Government, or a Provincial Government, or under any other statutory authority, body or corporation established by any such Government, as may be notified by it in this behalf, or
(c) a person to whom a holding has been transferred or an estate or holding has been let in form, for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, or
(d) a lessee, whether cultivating the land himself or through another person."
' According to this definition lessee was excluded from the term of tenant. This Ordinance was promulgated on 28-9-1981. Taking advantage of this definition of the term 'tenant' the respondent No,1 contended in his revision petition that the petitioner was recorded lessee of the suit land and not a tenant and hence he could not pre-empt the suit land on the basis of tenancy. This plea prevailed with the learned Additional Secretary Home who made the impugned judgment on 31-5- 1984.
5. Mr. M. Sardar Khan, counsel for the petitioner has challenged the impugned order of the learned Additional Secretary Home on two-fold grounds; firstly, that there was no distinction of a tenant or a lessee in the original M.L.R.115 whereby first right of pre-emption was conferred on a tenant; and secondly, this plea was for the first time taken in revision petition and it should not have prevailed with the learned Additional Secretary Home for the reason that the Ordinance had no retrospective effect.
6. We have very carefully considered both the contentions of Mr. M. Sardar Khan. No doubt the term 'tenant' as originally specified in sub-clause (d) of clause (3) of paragraph 25 of M.L.R.115 did not differentiate between a tenant and a lessee and as such this distinction was not available against the petitioner when he filed suit for pre-emption on the basis of tenancy. Even otherwise the petitioner could not be called a lessee because he was holding the land in dispute as a tenant since the last more than thirty years and he was neither paying any specified amount of lease money nor any period of lease was fixed. As such he was not a lessee but a tenant of the land in dispute for all intents and purposes. The sine qua non of a lease is that lease money as well as lease period are clearly specified whereas a tenancy is neither for a fixed term nor any rent is specified in terms of cash.
7. The perusal of subsection (2) of section 1 of the Ordinance would clearly indicate that the Ordinance came into force on the day when it was promulgated which happens to be the 28th of September, 1981. The Ordinance does not specify that it has a retrospective effect. As such its provisions had to operate prospectively and not retrospectively. The distinction between a tenant and a lessee was made for the first time by the Ordinance with effect from 28-9-1981 and it had to affect cases coming after the said date. The Ordinance could not affect the rights acquired before 28th September, 1981. As such in the year 1978, when the land in dispute was sold, the petitioner being a tenant therein, was possessed of the superior most right of pre-emption.
8. Although the learned Additional Secretary Home had jurisdiction under the Regulation to entertain and adjudicate upon the revision petition but he could not set aside the orders of the learned E.A.C. And the learned Additional Commissioner taking advantage of the provisions of the Ordinance for the reason that the Jirga had unanimously found the petitioner to be a tenant of the land in dispute and for the fact that distinction of tenancy and lease was made long after the land in dispute was sold and suits for pre-emption by petitioner and respondents Nos.1 to 4 were brought.
9. For the aforesaid reasons we have arrived at the conclusion that the impugned order of the learned Additional Secretary Home was made without lawful authority and is of no legal effect. We will, therefore, accept this writ petition, set aside the impugned order of the learned Additional Secretary Home and would restore the orders of the learned E.A.C. Dir and the learned Additional Commissioner.
' There shall, however, be no order as to costs.