' ALI HUSSAIN QAZILBASH, J.---This appeal by leave arises from the order of a learned Division Bench of the Peshawar High Court, dated 23-6-1987, whereby the writ petition filed by the respondents was allowed.
2. Rozi Muhammad appellant was successful in securing a pre-emption decree from the Court of the Assistant Collector, Dargai, on 6-1-1981. This decree was, however, set aside by the Additional Commissioner, Malakand, vide order dated 28-10-1981 basing his findings on the decision of the Shariat Bench of the Peshawar High Court in the case of Naimatullah Khan v. Government of Pakistan PLD 1979 Pesh. 104 and the Law Reforms (North-West Frontier Province Amendment)
Ordinance (XI of 1981) issued by the Government of N.-W.F.P. On 28-9-1981 amending M.L.R.115 whereby the lessee was excluded from the definition of a tenant. On revision by the appellant the learned Member, Board of Revenue, N.-W.F.P., by his order dated 20-10-1982, set aside the order of the Additional Commissioner and restored that of the Assistant Collector, Dargai. The learned Member, Board of Revenue, while dealing with the decision of the Shariat Bench of the Peshawar High Court held that since the law pursuant to the above judgment was yet to be amended, the existing law continued to operate, and so far as the amendment brought through Ordinance XI of 1981 was concerned, it was held that the decree in favour of the appellant was passed prior to notification, the same, therefore, was inoperative against his rights. The High Court on being approached by the respondents, vide the impugned order, held the appellant as a lessee and relying on Ordinance XI of 1981 non-suited him.
3. We have heard the learned counsel for the parties and have gone through the record of the case. The questions as to whether a lessee whether cultivating the land himself or through another person is not a tenant as per amending Ordinance XI of 1981 and that the said Ordinance is retrospective in operation stand finally decided by this Court in the case of Bakhtawar Shah v.
Member, Board of Revenue 1985 SCMR 348, wherein it has been observed: ' The Provincial Government ultimately, by the amending Ordinance XI of 1981, incorporated the following definition of 'tenant' in clause (13) of para.2 of M.L.R.
115. This definition reads:--
(13) 'tenant' means a person who holds land under another person, and is, or but for a special contract would he, liable to pay rent for that land to that other person and includes the predecessors and successors-in-interest of such person; but does not include--
(a) ....
(b) ....
(c) ..
(d) a lessee, whether cultivating the land himself or through another person.
(6) On the question, whether this new definition was retrospective in operation, a Petition Bench of this Court, of which one of us (M.Burhanuddin Khan, J.) was a member; in Ramzan Ali v. Fazal Qadir and another, Civil Petition No,133-P of 1983, decided on 15-4-1984, answered the same in the affirmative, for the reason that the definition was to be read 'as part of the original parent Regulation'. The Bench, in this connection, referred to Craies on Statute Law (6th Edition, page 394).
We see no reason to differ from the view taken by the Petition Bench, for the amending Ordinance XI of 1981, being declaratory and clarificatory in nature, was meant obviously to supply the omission and as such was retrospective in operation.
7. Even the absence of the amending Ordinance of 1981 would have made no difference, for no provision of the law was brought to our notice to support that a self-cultivating lessee was to be included in the definition of 'tenant'. The status of such lessee was open to a proper interpretation and there was a fair scope for the view that a person who obtains land on lease, does not cease to be a lessee merely because he chooses to cultivate the land himself. The respondent, therefore, was not a tenant and could not assert a right of pre-emption under paragraph 25(3)(d) of the Regulation."
4. As for the auestion that the lower Tribunal and the High Court have failed to consider the superior right of pre-emption of the appellant on the basis of contiguity also lacks merit in that this point was not at all agitated either before the Tribunal or the High Court. Even otherwise, as per the evidence of the Patwari, both the parties own properties contiguous to the suit land and thus, the right of the appellant is equal to that of the respondents and, therefore, the question of superior right on the basis of contiguity does not arise.
5. The appeal is thus, dismissed with no order as to costs.