MUHAMMAD ZULFIQAR Versus GULAB KHAN
This petition for leave to appeal arose from a pre-emption suit concerning the sale of agricultural land in Rawalpindi. The core legal question was whether the respondents, as displaced persons resulting from the construction of Islamabad, were exempt from the right of pre-emption under a notification issued pursuant to Section 8(2) of the Punjab Pre-emption Act, 1913, and whether the certificate of displacement issued by the Assistant Director (Lands) of the Capital Development Authority was valid. The Supreme Court dismissed the appeal, affirming the lower courts' findings that the respondents were indeed displaced persons and that the certificate issued by the Assistant Director was sufficient. The Court held that the mandatory exemption provided under Section 8(2) of the Punjab Pre-emption Act, 1913, extinguished the right of pre-emption against the respondents. The Court further clarified that where a statutory exemption exists for displaced persons, the right of pre-emption is extinguished, and the rule of sinker does not override the mandatory effect of such statutory exemptions.
- Does the right of pre-emption exist against a person certified as a displaced person by the Capital Development Authority under Section 8(2) of the Punjab Pre-emption Act, 1913?
- Is a certificate issued by the Assistant Director (Lands) of the Capital Development Authority sufficient to establish the status of a displaced person for the purpose of pre-emption exemption?
- Does the rule of sinker apply to a sale transaction that is otherwise exempt from pre-emption under Section 8(2) of the Punjab Pre-emption Act, 1913?
- Section 8(2), Punjab Pre-emption Act, 1913
ORDER
1. ABDUL QADEER CHAUDHRY, J.‑ ‑The petitioner seeks leave to appeal against the judgment dated 18‑2‑1990 of the High Court.
2. The facts, in brief, are that Ibadi Husain and Muhammad Akbar sold the land measuring 31 Kanals 10 Marlas situate in Village Mangot Tehsil and District Rawalpindi to the respondents Nos.1 to 5 in consideration of Rs.13,000 vide registered sale‑deed dated 6‑1‑1976. The petitioner and respondent No.6 claiming to be the sons of Muhammad Akbar the vendor and nephews of Ibadi Husain the co‑vendor pre‑empted the above‑mentioned sale. The suit was contested by the respondents 1 to 5. The trial Court decreed the suit to the extent of respondent No.4 and dismissed the suit against the respondents Nos.1, 2, 3 and 5 by means of judgment and decree dated 28‑2‑1984. The petitioner and respondent No.6 challenged the decree in appeal which was dismissed by the learned Additional District Judge on 23‑4‑1986. The Civil Revision against the aforesaid orders was dismissed by the High Court.
2. Learned counsel for the petitioner has submitted that under Notification dated 15‑6‑1976, sales in favour of only those persons were saved who were certified to be the displaced persons on account of construction of the capital at Islamabad by the Capital Development Authority. The respondent No.1 was not certified to be a displaced person, therefore, the bar as contained in Section 8(2) of the Punjab Pre‑emption Act is not attracted. By the notification the Board of Revenue declared as hereunder:‑
3. "In exercise of the powers conferred by subsection (2) of Section 8 of the Punjab Pre‑emption Act, 1913 (Punjab Act 1 of 1913), the Board of Revenue is pleased to declare that in the districts of Campbellpur, Rawalpindi and Jhelum no right of pre‑emption shall exist, for a period of two years with respect to the sale of agricultural land not exceeding 12‑1/2 acres of canal irrigated area or 50 acres of unirrigated area and other immovable property not exceeding the market value of Rs.10,000 (Ten thousand only) in favour of a person displaced on account of construction of the Capital at Islamabad and certified to be so displaced by the Capital Development Authority, Islamabad."
4. All the Courts have held that the respondents Nos.1 to 5 are displaced persons. A certificate has been issued on behalf of the Capital Development Authority. Learned counsel for the appellants suLmitted that the certificate was not issued by the Capital Development Authority but it was issued by the Assistant Director (Lands), C.DA., Islamabad certifying that the respondents are oustees of Islamabad. The learned counsel has failed to point out that the Assistant Director (Lands) was not authorised by the Capital Development Authority to issue such certificate. All the Courts below have held that the respondents Nos.1 to 5 are displaced persons, therefore, the bar. contained in Section 8(2) of the Punjab Pre‑emption Act will be attracted.
5. It was next contended that the respondents Nos.1 to 5 were still residing there. This fact was taken note of by the High Court and the same was rejected on the ground that all their real estate had since been acquired by the Capital Development Authority as was shown by the Jamabandi. The area was developed into sectors turn by turn and all the inhabitants thereof were made to evacuate as and when required. There is nothing on the record to repel this finding of fact.
6. It was further contended by the learned counsel that the sale being indivisible the rule of sinker would apply in the present case. He has referred to Abdullah v. Abdul Karim P L D 1968 SC 140, and Mangta v. Lab Din 1982 S C M R 283 in support of his contention. These cases have been considered in Fazal Elahi v. Dewan Ali 1984 S C M R 1404. While considering the effect of Section 8(2) of the Punjab Pre‑emption Act, it was held that the mandatory effect would be given to the exemption provided under section 8(2). The right of pre‑emption extinguishes against a person who is a certificate holder.
7. This appeal has no force. The same is dismissed.
8. AA./M‑1416/S ??????????????????????????????????????????????????????????????????????? ?????????? Appeal dismissed.