ALTAF HUSSAIN and others vs Ch. MUHAMMAD FAYYAZ and others
The petitioners seek leave to appeal against the judgment of the Lahore High Court passed in a writ petition, which set aside the order of the Member, Board of Revenue, dismissing the pre-emption suit. The dispute arises from the sale of land to the petitioners, who claimed exemption as displaced persons due to the construction of Tarbela Dam under a notification issued pursuant to the Punjab Pre-emption Act, 1913. The core legal question involves whether the right of pre-emption under Martial Law Regulation 115 could be taken away by a notification issued under section 8(2) of the Punjab Pre-emption Act, 1913, in light of conflicting judgments of the Supreme Court. The Supreme Court granted leave to appeal to consider the contention that conflicting precedents require examination regarding the interplay between Martial Law Regulation 115 and exemption notifications under the Punjab Pre-emption Act, 1913, laying down that an authoritative review of the divergent views of the apex court is warranted.
- Can a notification issued under section 8(2) of the Punjab Pre-emption Act, 1913 take away the right of pre-emption conferred under Martial Law Regulation 115?
- Are sales in favour of displaced persons due to the construction of Tarbela Dam exempted from pre-emption?
- Section 8(2), Punjab Pre-emption Act 1913
ORDER
' MANZOOR HUSSAIN SIAL, J. --- Altaf Hussain and another, petitioners herein, seek leave to appeal against judgment dated 20-6-1993 of the Lahore High Court, (Rawalpindi Bench) passed in Writ Petition No,363 of 1984.
2. On 4-6-1979, the petitioners purchased the land in dispute measuring 4 Kanals and 16 Marlas situate in village Kudlathi, Tehsil and District Attock. The respondent No,1 pre-empted the sale on the ground that he was tenant and had superior right of pre-emption.
3. The petitioners contested the suit and pleaded that they were displaced persons on account of the construction of Tarbela Dam and sales in their favour were exempted from pre-emption under notification dated 18-10-1978, issued under section 8(2) of the Pre-emption Act, 1913.
4. The suit was dismissed by the Collector on 17-7-1982, but decreed in appeal on 20-9-1982, by the Additional Commissioner (Revenue), Rawalpindi.
5. On revision filed by the petitioners, the suit was again dismissed on 28-3-1984, by the Member, Board of Revenue, Punjab, on the ground that sale in favour of the petitioners who are displaced persons due to construction of Tarbela Dam was exempted.
6. Aggrieved by the aforesaid decision of the Member, Board of Revenue, the respondent No,1 filed Constitutional petition in the High Court which was allowed vide impugned judgment passed on 20-6-1993. Hence this petition for leave to appeal.
7. Learned counsel for petitioners contended that, learned Single Judge of the Lahore High Court, relied on Malhi Khan v. Member, Board of Revenue (PLD 1991 SC 824) to hold that the right of pre- emption conferred upon the pre-emptor under MLR 115 could not be taken away by notification issued under section 8(2) of the Punjab Pre-emption Act, 1913, but in Manghta Khan and others v.
Mst. Hamida Begum and others (PLD 1981 SC 51) and Muhammad Khan v. Abdul Khaliq Khan (PLD 1981 SC 155), a contrary view has been taken by the Supreme Court. Leave to appeal is granted to consider the contention raised by learned counsel for the petitioners.
8. As a short point is involved for determination in this appeal, it shall be expeditiously completed and fixed for hearing at an early date.