' RANA BHAGWAN DAS,- J.--- Through this Constitutional petition, petitioners seek to impugn the vires of the order, dated 19-5-1992 passed by Deputy Commissioner, Naushahro Feroze, order in appeal, dated 28-4-1993 passed by Commissioner, Sukkur Division and revisional order, dated 10- 1-1995 passed by the Member Board of Revenue (Judicial), Hyderabad as without lawful authority and of no legal effect with a prayer that order, dated 21-4-1991 passed by Member Board of Revenue be declared as lawful.
2. Facts in brief leading to this petition are that agricultural land measuring 12-33 acres situated in Deh Izzat Wagan, Taluka and District Naushahro Feroze was allotted to respondent No,9 (since dead and survived by his legal heirs). Legal heirs of the deceased entered into an agreement of sale with respondents Haji Hamzo, Muhammad Abbas and Kamaldin in the year 1979. Petitioners being sitting tenants of the disputed land filed a preemption application before the Mukhtiarkar and Tribunal, Naushahro Feroze under the provisions of M.L.R. 115, whereas respondents Nos.6 to 9 moved and application before the said Tribunal for grant of permission to sell the disputed land.
On his part Mukhtiarkar and Tribunal rejected the prayer for pre-emption made by the petitioners and allowed the application of the respondents for permission to sell the disputed land at their sweet-will vide order, dated 10-7-1979 petitioners being aggrieved by this order made an application for pre-emption before the Deputy Commissioner, Nawab Shah, who by his order, dated 7-11-1979 declined the prayer of the petitioners for the reason that sale transaction had not yet been finalized and right of pre-emption in law would accrue after the sale of the land. He, however, permitted the petitioners to move a fresh application if the respondents finalize the sale in favour of a third party. Petitioners Nos.3 and .4 moved a fresh application for pre-emption before Deputy Commissioner, Nawab Shah against the respondents Nos.6, 7 and legal heirs of vendor late Abbas Ali Khan, who decreed the claim of the petitioners directing them to pay price of the land at the rate of Rs,12,000 per acre within a month's time to respondents Nos.6 and 7 by his order, dated 20-12-1981. Aggrieved by this order respondents Nos.6 and 7 filed an appeal before the Commissioner, Sukkur Who by lib Order', dated 6-7-1986, remanded the case to the Deputy Commissioner for passing a fresh order only on the question of fixation of sale price as the price indicated in the sale-deed, was fraudulently inflated.
3. On remand of the case Deputy Commissioner, Nawab Shah by his order, dated 4-3-1987 re- examined the whole case and expressed the view that in view of the decision rendered by the Supreme Court of Pakistan in the case reported as N.W.F.P. Government v Said Shah PLD 1986 SC 360, declaring the provisions of para. 25 of 115 as repugnant to injunctions of Islam pre-emption proceedings stood abated. Petitioner No,1 Muhammad Yaqoob assailed this order in appeal before Commissioner, Sukkur Division who by his order, dated 8-9-1987 declined to entertain the same for want of jurisdiction. Compelled by the circumstances petitioner ' No,1 challenged both the orders in revision before the Board of Revenue who by his order, dated 21-4-1991 set aside the orders, dated 4-3-1987 and 8-9-1987 passed by the Deputy Commissioner, Nawabshah and Commissioner, Sukkur Division respectively and remanded the case to the Deputy Commissioner to decide it pursuant to the remand order of the Commissioner Sukkur Division, dated 7-6-1986 afresh in accordance with law.
4. On his part, according to the petitioners, Deputy Commissioner, Naushajiro Feroze (which District was carved out of District Nawabshah) after hearing the parties, could not decide whether the case stood already decided before the target date or it was deemed to be pending in the light of the judgment rendered by Shariat Appellate Bench of the Supreme Court reported as Wafaqi Hakoomat-e-Pakistan v. Awamunnas PLD 1991 SC 731. This decision was challenged before Commissioner, Sukkur Division in an appeal who by his order, dated 28-4-1993 dismissed the same as barred by time. Likewise three separate revisions filed by the petitioners from the same order were rejected by the Member (Judicial) Board of Revenue as barred by time. Three identical applications for review by the petitioners met the same fate, hence this petition.
5. Pursuant to the notice of this petition, respondents Nos.6 to 8 were represented by Syed Ali Aslam Jafri whereas learned Additional Advocate-General appeared for the official respondents. No parawise comments or counter-affidavits were, however, filed to the petition.
6. By consent we heard the petition finally at the stage of Katcha Peshi and by short order, dated 7- 10-1999 allowed the petition for reasons to be recorded with a direction to the petitioners to pay the price of the land in dispute to the concerned respondents as determined by Deputy Commissioner, Nawabshah vide his order, dated 20-12-1981 within thirty days failing which their right to pre- emption shall stand extinguished.
7. We now proceed to record our reasons for the short order. It appears that this question came up before the Supreme Court in the case of Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360 when it was ruled that the provisions contained in paragraph 25 of the Land Reforms Regulations, 1972 had ceased to have effect from 1st August, 1986. Shariat Appellate Bench of the Supreme Court directed the Federal Government to bring necessary amendment in law by 31-7- 1986 but as no Legislative steps were taken by the Government in Sardar Ali v. Muhammad Ali PLD 1988 SC 287 a number of questions were raised about the legal effect of the decision of the Supreme Court. Ratio decidendi in both the cases appears to be that in cases relating to right of pre-emption granted by decree up to 31st July, 1986, a right had matured in favour of the tenant which could not be taken away despite the pendency of any appeal or revision before any authority constituted under M.L.R. 115 or Land Revenue Act. In the present case by order, dated 20- 12-1981 passed by Deputy Commissioner Nawabshah (when Naushahro Feroze was a part of this District) a right had matured in favour of the petitioners and by appellate order of the Commissioner Sukkur Division only question referred to the Deputy Commissioner was with regard to the fixation of price of the land and not with regard to their right to pre-empt the land.
Unfortunately for the petitioners successor incumbent of the office of Deputy Commissioner, Nawabshah as well as the appellate authority and the Member Board of Revenue lost sight of the legal position. They proceeded to examine the right of the petitioners and dismissed the claim on misinterpretation of the judgment of the Supreme Court. Since the petitioners had acquired preemptive right before the target date which was not upset before 1st August 1986, they were entitled to pre-empt land subject to payment of price A determined by Deputy Commissioner Nawabshah in the initial order. This order remains intact and binding on the parties.
8. A similar question arose for determination in C.P. No,D-22 of 1996 at Circuit Court, Larkana decided on 28-8-1998 when aforesaid view was followed by one of us (Rana Bhagwan Das, J.) which judgment was assailed before Supreme Court of Pakistan but the apex Court refused to grant leave to appeal from the judgment. This view was reaffirmed by one of us (Rana Bhagwan Das, J) in C.P. No,D-758 of 1988 decided on 22-12-1998 at the Principal Seat and C.P. No,D-17 of 1988 decided on 3-3-1999 at Circuit Court, Hyderabad. In view of a clear and candid decision of the Supreme Court followed by Division Benches of this Court, we are inclined to adopt the rule of consistency. Aforesaid are the detailed reasons for the short order announced at the conclusion of the hearing.