MUHAMMAD ZULFIQAR vs GULAB KHAN And Other
This petition for leave to appeal arose from a pre-emption suit concerning the sale of agricultural land in Rawalpindi. The petitioner, claiming a right of pre-emption, challenged the sale made to respondents who were displaced persons due to the construction of the Capital at Islamabad. The core legal question was whether the statutory bar against pre-emption, provided under Section 8(2) of the Punjab Pre-emption Act, 1913, applied to the respondents, given the specific notification issued by the Board of Revenue exempting sales to displaced persons certified by the Capital Development Authority. The Supreme Court upheld the concurrent findings of the lower courts, which determined that the respondents were indeed displaced persons holding valid certificates. The Court held that the mandatory exemption under Section 8(2) extinguished the right of pre-emption against such certificate holders. The key principle laid down is that where a sale falls within the scope of an exemption notification issued under Section 8(2) of the Punjab Pre-emption Act, 1913, the right of pre-emption is effectively barred, and the doctrine of sinker does not override this statutory exemption.
- Does the right of pre-emption exist against a sale of land to a person certified as a displaced person by the Capital Development Authority under the notification issued pursuant to Section 8(2) of the Punjab Pre-emption Act, 1913?
- Can the doctrine of sinker be applied to override the statutory exemption provided under Section 8(2) of the Punjab Pre-emption Act, 1913?
- Is a certificate issued by the Capital Development Authority sufficient to establish the status of a displaced person for the purpose of claiming exemption from pre-emption?
- Section 8(2), Punjab Pre-emption Act 1913
ORDER
1. ABDUL QADEER CHAUDHRY, J: --The petitioner seeks leave against the judgment, dated 18-2-1990 of the High Court.
2. The facts, in brief, are that Ibadi Hussain and Muhammad Akbar sold the land measuring 25 Kanals 8 Marlas situate in village Mangot Tehsil and District Rawalpindi to the respondents Nos.1 to 5 in consideration of RsA.000 vide registered sale-deed 6-1-1976. The petitioner and respondent No-6 claiming to be the sons of Muhammad Akbar the vendor and nephews of Ibadi Hussain the co-vendor pre-empted the abovementioned sale. The suit was contested by the respondents Nos.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 that:-- "In exercise of the powers conferred by subsection (2) of section 8 of the Punjab Pre-emption Act, 1913 (Punjab Act I 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."
3. 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 submitted that the certificate was not issued by the Assistant Director (Lands) C.DA., Islamabad, certifying that the respondents are oustee 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.
4. The learned counsel next contended that the sale being indivisible the rule of sinker would apply in the present case. He has referred to Abdullah v. Abdul Karim PLD 1968 SC 140 and Mangta v. Lab Din 1982 SCMR 283 in r support of his contention. These cases have been considered in Fazal Elahi v. Dewan Ali 1984 SCMR 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.
5. This appeal has no force. The same is dismissed.