1. HAMOODUR RAHMAN, C. J.-The dispute in this case relates to the right to pre-empt the sale of certain lands of village Takel in the Gadoon Area of Mardan District.
2. This land was sold to respondent Mian Gul. The petitioner Khaista Gul first preferred a claim under section 8 of the Frontier Crimes Regulation for the pre-emption of these lands. This claim was decreed by the Assistant Commissioner, Swabi but when the matter came up for confirmation before the Commissioner he remanded the case back with the direction that such a claim in respect of the area in dispute should be referred to the civil Court.
3. The petitioner then filed a suit for pre-emption in the civil Court on the 4th September 1962. The trial Court came to the conclusion that it had jurisdiction to try the suit and decreed it. On appeal, however, the District Judge, reversed the decision of the trial Court on the ground that neither the North-West Frontier Province Pre-emption Act nor the Code of Civil Procedure had been extended to the Gadoon Area under section 6 of the North-West Frontier Province (Increase of Area and Alteration of Boundary) Order, 1953, hereinafter referred to as the Governor-General's Order No. VII of 1953.
4. The matter came up in second appeal before the High Court but a learned Single Judge referred the matter to a larger Bench after formulating the following question: "Whether the Central Laws and Provincial Laws, including the North-West Frontier Province Pre- emption Act have been extended or deemed to have been extended to the former Gadoon area, which has been added to Mardan District?"
5. The Division Bench answered the question as follows; "The N.W. F. P. Pre-emption Act (XIV of 1950) has not been extended to the former Gadoon Area which has been added to Mardan District by Governor-General's Order No. VII of 1953. The Civil Procedure Code (Act V of 1908), however, bas been extended to this area."
6. The petitioner now seeks special leave to appeal to this Court and it is contended' on his behalf that the High Court was wrong in taking the view that the N.-W: F. P. Pre-emption Act had not been extended to the area in question.
7. Section 6 of the Governor-General's Order No. VII of 1953 reads as follows :- "6.-(1) The Governor of the North-West Frontier Province shall, by order notified in the official Gazette, make such provi--sion as appears to him necessary or expedient-
(a) for extending to the added area any law for the time being in force in the Province or any part thereof ; and
(b) for removing difficulties arising out of or in connection with the inclusion of the added area in the Province---------------------------------------------------------------------------.
(4) Except as provided in sub-paragraphs (i) and (2) of this paragraph, no law in force in any part of the Province immedia--tely before the appointed day shall extend or apply to the added area."
8. It was conceded before the High Court that no Notification had been issued by the Governor under section 6 of the above--mentioned order extending the N.W. F. P. Pre-emption Act of 1950 to the added areas.
9. So far, however, as the Code of Civil Procedure is concerned, the Central Laws (Statute Reform)
10. Ordinance of 1960 had extended the Central Acts and Ordinance specified in the 2nd Schedule there to the whole of Pakistan. Amongst the enactments so specified in this Schedule the Code of Civil Procedure was included. It was therefore, held by the High Court that by virtue of the above provisions read with the provisions of the Establish--ment of West Pakistan Act, 1955, the Code of Civil Procedure applied to the areas added to Mardan District by the Governor --General's Order No. VII of 1953 as from 1955 since these areas became part of West Pakistan.
11. It was also argued in the High Court that nevertheless a suit for pre-emption in respect of lands in the added areas could be tried by the civil Courts by virtue of the provisions of section 3 of the Civil Procedure (Special Provisions) Ordinance No. 1 of 1968 as the added areas of Mardan District, specified in the Schedule `A' to the Governor-General's Order No. 7 of 1953, were also areas specified in the First Schedule to the Ordinance of 1968. This contention was repelled on the ground that section 17 of the Ordinance of 1968 clearly saved pending proceed--ings from the operation of the Ordinance.
12. The learned counsel, appearing in support of this petition, however, contends that the North-West Frontier Province Pre-emption Act of 1950 became automatically extended to all areas included in West Pakistan by the Establishment of West Pakistan Act, 1955 by reason of the provisions of section 10 thereof. Subsection (1) of this section merely says that "all laws in force in West Pakistan immediately before the appointed day shall continue to apply to the areas and the persons to whom they would have applied if this Act had not been passed".
13. This provision, therefore, does not advance the argument of the learned counsel, because, the North-West Frontier Province Pre-emption Act though a law in force in West Pakistan was not applicable to this area before 1955.
14. The next contention of the learned counsel is that after the coming into force of the West Pakistan Establishment Act of 1955, the Governor-General's Order No. 7 of 1953 itself became inapplicable.
15. This is patently incorrect, for, subsection (2) of section 10 clearly says that for the purposes of the said section `Law' includes "any law passed by a competent Legislature in India or Pakistan, and any Order-in-Council, Letters Patent, Ordinance, Order, Regulation, Rule, By-law or public notification made or issued by a competent authority." The Governor-- General's Order was an Order within the meaning of this sub--section and it was certainly issued by a competent authority. It, therefore, applied to West Pakistan also. In this view of the matter there is no substance in these contentions, as it is clear that the North-West Frontier Province Pre-emption Act was never extended by any Order notified in the official Gazette to the added area concerned.
16. The last contention put forward by the learned counsel is that in any event since the institution of pre-emption is recognised under the Muslim Personal Law, which governs the parties in the instant case, it should have been held that the suit was competent. No one, it has to be pointed out, has held that the right of pre--emption was not available in this particular added area but all that has been held is that the North-West Frontier Province Pre--emption Act was not applicable to this area. If the petitioner can enforce his right of pre-emption de hors the above-mentioned Act, he may still do so.
17. So far as the applicability of the North-West Frontier Province Pre-emption Act of 1950 to the added area of Mardan District is concerned, the decision of the High Court appears to be unexceptionable. This petition is, therefore, without any substance and is accordingly, dismissed.