' RUSTAM S. SIDHWA, J.---This judgment will dispose of Civil Appeal CA. 452/1987 preferred by Malhi Khan against the judgment of a learned Single Judge of the Lahore High Court dated 11-5-1986 dismissing his Writ Petition and Civil Appeal C.A.67/1991 preferred by Sardar Muhammad against the judgment of a learned Single Judge of the same High Court dated 1-12-1980 accepting the appeal of the legal representatives of Noor Ahmad deceased, and others, respondents, and restoring the judgment of the trial Court.
2. The brief facts of the case with regard to Civil Appeal CA. 452/1987 are that Abdul Karim and Rehm Din, respondents Nos.2 and 3, purchased land measuring 69 Kanals 5 Marlas comprising Khasra Nos.234, 2148, 235, 236, 237, 241, 248, 249 min, 250 min and 251 as shown in Register Haqdaran Zami9 for 1971-72 of Mauza Gulabpura, Tehsil and District Gujranwala from Muhammad Jehangiruddin Khan and others for a sum of Rs,2,00,000 (two lacs) vide registered sale-deed dated 23-4-1976. Malhi Khan, appellant, who was a tenant of the land measuring 62 Kanals 13 Marlas, filed a suit for possession through pre-emption in the Court of A.C./Collector, Gujranwala, on 30-3-1977.
On 4-4-1977 the disputed land, which originally stood within the limits of the Gujranwala Cantonment, was excluded from such limits. The respondents Nos. 2 and 3 filed their written statement on 17-5-1977 objecting that originally as the land in dispute was within the limits of Gujranwala Cantonment, the same was not pre-emptible. The suit was decreed by the learned A.C./Collector vide his judgment dated 19-2-1979. Respondents Nos. 2 and 3 challenged the same in appeal before the learned Additional Commissioner, Revenue, who dismissed the appeal on 9- 9-1979. Respondents Nos.2 and 3 further challenged the judgments and decrees of the Courts below in revision before the learned Member, Board of Revenue, respondent No,1, who, by his order dated 24-7-1980, accepted the revision petition and set aside the judgments and decrees of the Courts below. Being aggrieved by the said judgment, the appellant filed a writ petition in the High Court, which was dismissed by a learned Single Judge on 11-5-1986. The learned Judge held that the disputed land originally stood within the limits of Gujranwala Cantonment on the date that the sale took place and the suit was instituted, but that the said land having been excluded from the said Cantonment limits on 4-4-1977 the pre-emption suit was only competent on the date the decree was passed. Since the appellant did not hold the right to pre-empt on the date of sale, the date of institution of suit and the date of the final decree, the appellant was not entitled to succeed.
Being aggrieved by the said decision, the appellant petitioned this Court for leave to appeal, which leave was granted to consider the question whether para. 25(3)(d) of M.L.R. 115 which conferred the right of preemption on the tenant overrode in express words all other laws and whether the provisions of the Punjab Pre-emption Act, 1913, could not therefore limit, control or whittle dawn that right.
3. The brief facts of the case with regard to Civil Appeal C.A.67/1991 are that 50 Kanals 9 Marlas of agricultural land in Chak No,258/R.B., Tehsil and District Lyallpur was sold to Noor Ahmad and others, respondents, vide Mutation No,1250 attested on 26-10-1972. On 24-11-1972 the appellant filed a suit to preempt the said sale. At that time a notification issued in the year 1944 under section 8(2) of the Punjab Pre-emption Act, 1913 was operative which exempted lands to which the Colonization of Government Lands (Punjab) Act, 1912 had been made applicable, from pre-emption. Admittedly, the lands in dispute were within the local area to which the Colonization of Government Lands (Punjab) Act, 1912, had been made applicable. The respondents filed their written statement and claimed that the lands were not pre-emptible on the date of sale and the date of suit and therefore, could not be pre-empted. The notification of 1944 was rescinded on 19-2-1973. The learned Civil Judge, Lyallpur dismissed the appellant's suit on 12-12-1973. Being aggrieved, the appellant preferred an appeal, which was allowed by an Additional District Judge, Lyallpur, on 27- 4-1974. The respondents thereupon filed a regular second appeal before the Lahore High Court, which was accepted by a learned Single Judge on 1-12-1990. The learned Single Judge held that the right of pre-emption conferred on the appellant under M.L.R. 115 could not be enforced in the presence of a notification issued under section 8(2) of the Punjab Pre-emption Act, 1913, which exempted the land from pre-emption and that the provisions of the Pre-emption Act did not stand excluded by M.L.R.
115. Being aggrieved by the said judgment, the appellant petitioned this Court for leave to appeal, which leave was granted, as leave had been granted by this Court in Malhi Khan's case.
4. On behalf of the appellants/tenants it is submitted that the first right of pre-emption granted to a tenant in respect of the lands comprised in his tenancy by the provisions of para. 25(3)(d) of the Land Reforms Regulation, 1972 (hereinafter referred to as M.L.R. 115) is an independent right and the provisions of the Punjab Pre-emption Act, 1913, to the extent to which they are in conflict with the right granted under the said para. Fail and cannot be enforced. It is further submitted that any part of the provisions of section 4, 6 or 15 of the Punjab Pre-emption Act, 1913, to the extent to which they are in conflict with para. 25(3)(d) of M.L.R. 115 would have no effect, in the presence of para. 3 of M.L.R. 115 which reads as follows:-- "The provisions of this Regulation, and any rule or order made thereunder, shall have effect notwithstanding anything to the contrary in any other law or any order or decree of a Court or Tribunal or other authority, or in any rule or custom or usage, or in any contract, instrument, deed or other document."
' It is also contended that the provisions of M.L.R. 115 which is a federal enactment, shall prevail and the provisions of the Punjab Pre-emption Act, which is a provincial enactment, shall, to the extent of the repugnancy, be void, in view of the provisions of Article 143 of the Pakistan Constitution, 1973. It is lastly submitted that cases titled Muhammad Khan v. Abdul Khaliq Khan PLD 1981 SC 155 and Noor Ahmad Shah v. Member, Board of Reveune 1981 SCMR 337 are distinguishable, as they deal with procedural matters, such as limitation and deposit of pre-emption money in Court, and that in effect the most relevant case on the point is Muhammad Yousuf v. Board of Revenue 1979 CLC 284, which has clearly held that para. 25(3)(d) of M.L.R. 115 cannot be overridden by other statutes or notifications.
5. On behalf of the respondents it is submitted that following the rule laid down in Muhammad Khan's case, PLD 1981 SC 155 that in all matters not covered by para. 25(3)(d) of M.L.R. 115 the provisions of the Punjab Pre-emption Act, 1913, apply, and since it is necessary under the said enactment to show that the pre-emptors had the right of pre-emption at three stages, namely, on the-date of sale, on the date of institution of suit and on the date of decree, the said principle was applicable to the cases in instance and since the appellants were not able to show such a right, they were legally and validly non-suited. It is further submitted that since the said para. Only grants a preferential right of pre-emption to a tenant in respect of the land under his tenancy and does not refer to a host of other matters, the basic law granting pre-emption rights to sales of agricultural land in the Punjab, which is the Punjab Pre-emption Act, 1913, will have to be applied, to the extent to which it is not inconsistent with the Regulation. It is, therefore, contended that the said para. Cannot be said to be a law which regulates or provides any procedure to enforce a right of pre-emption, other than granting a preferential pre-emptor status to a tenant with regard to the land comprised in his tenancy, and therefore, the provisions of the Punjab Pre-emption Act, 1913, would apply and where section 8 excludes any property from preemption, the said exclusion would prevail.
6. We have heard arguments of the learned counsel for the appellants and the respondents and have perused the record. The only point for determination in these appeals is whether, in view of the exclusion of certain areas from the right of pre-emption, under section 8(1) of the Punjab Pre- emption Act, 1913, or the declaration by notification that in any local area or with respect to any land or property or class of land or property, no right of pre-emption or only such limited right shall exit, as stated in section 8(2) of the Punjab Pre-emption Act, 1913, the tenants' suits for pre-emption under para. 25(3)(d) can succeed.
7. Before dealing with the legal issue, it is necessary to set down certain provisions of M.L.R. 115 and the Punjab Pre-emption Act, 1913, which are relevant.
' MARTIAL LAW REGULATION 115 ' Para. 2(4).--"Land" means land which is not occupied as the site of town, village, factory or industrial establishment, and is occupied or has been or can be let for agricultural purposes or for purposes allied or subservient to agriculture, and includes the sites of buildings and other structures on such land.
' Para.
3. The provisions of this Regulation, and any rule or order made thereunder, shall have effect notwithstanding anything to the contrary in any other law or any order or decree of a Court or Tribunal or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document. Para. 25.--(1).......................................................
(2)..................................................................
(3) (a)...............................................................
(b)..................................................................
(c)..................................................................
(d) Subject to the other provisions of this Regulation, a tenant shall have the first right of pre- emption in respect of the land comprised in his tenancy."
' PUNJAB PRE-EMPTION ACT, 1913 "Section 4. The right of pre-emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or foreclosures of the rights to redeem such property.
' Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale.
' Section 6.--A right of pre-emption shall exist in respect of agricultural land and village immovable property, but every such right shall be subject to all the provisions and limitations in this Act contained.
' Section 8.--(1) Except as may otherwise be declared in the case of any agricultural land in a notification by the Provincial Government no right of pre-emption shall exist within any cantonment.
(2) The Board of Revenue may declare by notification that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales no right of pre-emption or only such limited right as the Board of Revenue may specify, shall exist.
' Section 15.--Subject to the provisions of section 14, the right of preemption in respect of agricultural land and village immovable property shall vest--
(a) where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held, is by all the co-sharers jointly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold;
(b) where the sale is of a share out of joint land or property, and is not made by all the co-sharers jointly:- ' firstly, in the lineal descendants of the vendor in order of succession; ' secondly, in the co-sharers, if any, who are agnates, in order of succession; ' thirdly, in the persons, not included under firstly or secondly above, in order of succession who, for such sale would be entitled, on the death of the vendor, to inherit the land or property sold: ' Provided that in case where the sale is by a Muslim, the firstly and secondly shall be inapplicable, and the thirdly shall read as follows:-- ' thirdly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor to inherit the land or property sold; ' fourthly, in the co-sharers;
(c) if no person having a right of pre-emption under clause (a) or clause (b) seeks to exercise it-- ' firstly, when the sale affects the superior or inferior proprietary right and the superior right is sold, in the inferior proprietors, and when the inferior right is sold, in the superior proprietors; ' secondly, in the owners of the patti or other sub-division of the estate within the limits of which such land or property is situate; ' thirdly, in the owners of the estate; ' fourthly, in the case of a sale of the proprietary right in such land or property in the tenants (if any) having rights of occupancy in such land or property; ' fifthly, in any tenant having a right of occupancy in any agricultural land in the estate within the limits of which the land or property is situated.
' Explanation. --In the case of sale by a female of land or property to which she has succeeded on a life tenure through her husband, son, brother or father, the word 'agnate' in this section shall mean the agnates of the person through whom she has so succeeded."
8. Para. 3 of M.L.R. 115 inter alia states that the provisions of this Regulation, and any rule or order made thereunder, shall have effect notwithstanding anything to the contrary contained in any other law, or in any rule of custom or usage. It is clear that M.L.R. 115 is a federal law and the Punjab Pre-emption Act, 1913, is a provincial law and that under Article 143 of the Pakistan Constitution, 1973, if any provision of an Act of the Provincial Assembly is in conflict with any provision of a Federal law, then the Federal law shall prevail and the Provincial law shall, to the extent of the repugnancy or conflict, be void. In Rahim Bakhsh v. Gul Muhammad PLD 1968 Lah. 907, a decree for possession of land was not allowed to be executed, as it had the effect of frustrating the provisions of M.L.R. 64, which contained a similar provision as in M.L.R.
115. In Muhammad Ghias v. Member, Federal Land Commission PLD 1975 Lah. 399, the provisions of M.L.R. 115 were allowed to prevail against its conflict with the provision of Muhammadan Law.
9. In matters of pre-emption, amongst others, the following questions arise: (i) What is the right of pre-emption? (ii) To what property it is applicable? (iii) To what transactions it is applicable and
(iv) Who are the persons entitled to such a right? These are all substantive questions as they relate to the nature of rights, their extent and enforcement. They are not procedural matters. Para. 25(3)
(d) of M.L.R. 115 does not define what is the right of pre-emption. However, it does describe the property to which it is applicable, namely, land held by the tenant which comprises his tenancy.
"Land" is defined in para. 2(4) as land which is not occupied as the site of town, village, factory or industrial establishment, and is occupied or has been or can be let for agricultural purposes or for purposes allied or subservient to agriculture, and includes the sites of buildings and other structures on such lands. Para. 25(3)(d) does not determine to what transactions the right is applicable. It however determines the person entitled to the right of pre-emption, namely, the tenant of such land. Turning to the Punjab Pre-emption Act, one finds that section 4 determines what is the right of pre-emption. It is right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or right of foreclosure or to redeem such property. Section 6 deals with the type of property to which pre-emption is applicable. It states that such right shall exist in respect of agricultural land and village immovable property, but every such right shall be subject to all the provisions and limitations contained in that Act. Sections 3(5), 4, 8(2) and 9 deal with the types of transactions which are subject to or exempt or excluded from pre-emption. Section 15 deals with the types of persons who are entitled to claim such a right. It gives a list of such persons in order of priority.
10. Keeping both the provisions of the law as contained in M.L.R. 115 and the Punjab Pre-emption Act, in juxtaposition, we find that there is inconsistency in respect of the persons who are entitled to pre-empt agricultural land and the nature of the property to which pre-emption is applicable.
Under para. 25(3)(d), the tenant has the prior right of pre-emption. Under section 15(c) of the Punjab Pre-emption Act, an occupancy tenant has the right of pre-emption in the lower order of scale, much below many others apart from others. There is thus a conflict between the two and the provision of Para. 25(3)(d) will prevail, placing the tenant at the highest order in the scale of persons entitled to pre-empt over and above those given in section 15 of the Act. However, what is relevant in these appeals is the nature of the property to which pre-emption is applicable. Under para. 25(3)(d) the said property is land comprising the tenancy of the tenant. Under the Punjab Pre-emption Act, it is agricultural land and village immovable property, subject to all the other provisions and limitations contained in the Act. Under section 8 of the Act, both land and types of transactions can be excluded from the purview of pre-emption. In view of this conflict vis-a-vis land, the provision of para. 25(3)(d) shall prevail. In these circumstances, the land comprised in the tenancy of the tenants, which is the property to which the right of pre-emption has been given, cannot be destroyed by any provision of the Punjab Pre-emption Act, which has the effect of taking away the right of preemption applicable to that property. Such a right granted by M.L.R. 115 cannot be frustrated or whittled down by the provisions of section 8 of the Punjab Preemption Act. The view taken in this respect by the Lahore High Court in Muhammad Yousuf's case (supra) appears to be appropriate and correct in the circumstances. Excluding these two matters where the special law will prevail, regarding other matters, as held by this Court in Muhammad Khan v. Abdul Khaliq Khan PLD 1981 SC 153, 163, the basic position will remain, namely, that the law granting right of pre- empting sales of agricultural land in the Punjab, which is the Punjab Pre-emption Act, 1913, will prevail. Thus matters such as what is the right of pre-emption, to what transactions it can or cannot be enforced, how the right will be enforced in respect of joint tenants, what is the procedure for the determination and enforcement of such a right, etc. Will be governed by the Punjab Pre- emption Act, 1913.
' We may now discuss the cases cited by the learned counsel for the parties. Muhammad Khan's case (supra) dealt with the question whether the preemption suits were time-barred. Noor Ahmad Shah's case (1981 SCMR 337) dealt with the deposit of pre-emption money. Both suits dealt with matters of procedure and not substantive rights. No conflict of laws was involved. They are thus distinguishable.
For the foregoing reasons, we hold that the appellants, who were the tenants of the lands comprised in their tenancy, had the right to pre-empt the same, notwithstanding the notifications issued under subsections (1) and (2) of section 8 of the Punjab Pre-emption Act, and so long as they were tenants on the date of sale, their rights to pre-empt crystallized and became enforceable and any rule or principle emanating out of the Punjab Pe-emption Act, that they had to hold their rights as such tenants on the date of suit or decree, being in violation of para. 3 of M.L.R. 115 cannot prevail. The right of pre-emption under para. 25(3)(d) of M.L.R. 115 is not a piratical right, but one founded in socio-economic reform; to give to the tenant, who has put his blood and sweat in the land, the first right to purchase the same. Though this right has now been declared un-Islamic, the future Islamic jurists shall have to resort to Etihad to bring this right back, if meaningful land reforms are to be re-instated.
' In the above circumstances, we accept both the appeals, set aside the impugned judgments of the High Court and restore that of the Assistant Commissioner/Collector, dated 19-2-1979 in Civil Appeal CA.No,452 of 1987 and that of the Additional District Judge, Lyallpur, dated 27-4-1974 passed in Civil Appeal CA.No,67 of 1991, decreeing both the suits.