PIRAN DITTA vs MEMBER, REVENUE BOARD And Another
This petition for leave to appeal was filed against a judgment of the Lahore High Court, which had dismissed the petitioner's constitutional petition challenging a pre-emption decree passed in favour of the respondent/pre-emptor on the ground of tenancy. The High Court had declined to interfere with the concurrent findings of fact on tenancy rendered by the revenue authorities. In the Supreme Court, the petitioner sought to challenge the decree by relying on the Shariat Appellate Bench's judgment in Government of N.-W.F.P. v. Malik Said Kamal Shah (PLD 1986 SC 360). The Supreme Court held that since the appellate judgment in the present case was passed on May 24, 1984, which was well before the effective date of the Malik Said Kamal Shah judgment (July 31, 1986), the proceedings had become past and closed. Consequently, the petitioner could not derive any benefit from the declaration of un-Islamic provisions in the pre-emption laws. The petition was dismissed.
- Whether a pre-emption decree passed and finalized before July 31, 1986, is affected by the Supreme Court Shariat Appellate Bench's judgment in the Malik Said Kamal Shah case?
- Can a vendee claim retrospective benefit from the Malik Said Kamal Shah judgment to defeat a pre-emption decree that attained finality prior to the date the relevant pre-emption laws became ineffective?
ORDER
MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment, dated 15-10- 1985 of the Lahore High Court; whereby petitioner's Constitutional petition against decree for pre- emption passed in favour of the respondent /pre-emptor on the ground of his being a tenant on the land in dispute, was dismissed.
2. Learned Judge in the High Court in exercise of the writ jurisdiction declined to set aside concurrent findings of fact, reached in favour of the respondent /pre-emptor regarding tenancy by the Additional Commissioner and Member, Board of Revenue, in their appellate and revisional jurisdictions respectively.
3. Learned counsel, therefore, rightly did not challenge the impugned judgment in so far as the merits are concerned. He, however, relying on Abdullah Khan v. Member, Board of Revenue N.-W.F.P.
And others 1986 SCMR 2006, stated that leave to appeal has been granted to examine the effect of the judgment of the Supreme Court (Shariat Appellate Bench) reported as Government of N.- W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360.
4.The appellate judgment in this case was passed on 24-5-19841 much before the date on which the judgment of the Supreme Court in case of Malik Said Kamal Shah came into effect, namely, 31st of July, 1986. This Court has decided in Sher Muhammad (deceased) represented by his legal heirs and others v .Samundar Khan (deceased) represented by his legal heirs and others 1987 SCMR 108 that the proceedings therein had become past and closed (the appellate judgment in the High Court in the said case was, dated 8-4-1986), "on the day fixed by the Shariat Appellate Bench of the Supreme Court in the cited case i.e. , 31st July, 1986, from which date only the relevant pre-emption laws had become ineffective". The petitioner a vendee/ defendant in the said case was held "could not be allowed any benefit on the basis of the said judgment (in the case of Malik Said Kamal Shah)".
5. The case of Abdullah Khan cited by the learned counsel is of no assistance to the petitioner as leave to appeal has been granted in that case on the petition of a pre-emptor to examine the argument advanced by his learned counsel that 'his right of pre-emption under the existing law subsisted till 31st of July, 1986, and it could not be taken away with retrospective effect'.
6. Prima facie the argument is in line with the view taken in the case of Sher Muhammad. We, therefore, finding no merit in this petition dismiss the same.
Cited by 3 cases
- ABDUL GHAFFAR KHAN And Other vs SAGHIR AHMAD ASLAM And Other 1987 PLD Lahore 358
- ABDUL GHAFFAR KHAN and others vs SAGHIR AHMAD ASLAM and OTHERS 1987 PLD Lahore 358
- MUHAMMAD MASOOD KHAN BHATTI vs Mst. GHULAM FATIMA 1987 SCMR 1206