1. This appeal has been filed against the impugned judgment of the learned Judge in Chamber of the Lahore High Court, Lahore rejecting the plaint of the appellant under Order-VII, Rule-11 CPC after setting aside the order of the Trial Judge, who rejected the application and held that after recording some evidence the question of exemption from pre-emption then would be decided.
2. Learned ASC for the appellant vehemently contended that the learned High Court has fallen in error due to misinterpretation of the language of clause (a) of sub-section (1) of section 23 of the Punjab Pre-emption Act, 1991, which only provides exemption from exercise of right of pre-emption to the sale of Waqf Property or property used for charitable, religious or public purposes. To understand the scope and true language of the said provision of law, it is reproduced below:
“23. No right of pre-emption in respect of certain properties. (1) No right of pre-emption shall exist in respect of sale of: (a) Waqf property or property used for charitable, religious or public purposes.”
The learned ASC made attempt to take benefit of the defective language of the Statute without making efforts to discover the true intent of the Legislature, rather avoided to attend to that proposition despite quarries, made by the Court.
3. The facts of the case are that, the respondent, Majlis-e-Ilmi Society, purchased land measuring 123-K, 3-M, described in the heading of the plaint, from one Shoaib Ahmed for a sale consideration of Rs.47,00,000/-. This sale of land was pre-empted by the appellant being adjacent owner however, the respondent filed an application under Order-VII, Rule-11 CPC for rejection of the plaint on the strength of the provision of S.23 of the Punjab Pre-emption Act, 1991, as according to them the same was exempt from the pre-emption right. The application was dismissed as stated above however, the learned Judge in the High Court allowed the same and rejected the plaint.
4. True, that the provision of S.23 ibid suffers from absurdity, ambiguity and inadvertent omission on the part of the drafter because along with the sale the word, ‘purchase’ was not added to the said provision.
5. According to the NWFP (KPK) Pre-emption Act, 1987 this omission is not occurring there. The same is reproduced as under:
“23. No right of pre-emption in respect of certain properties. (1) No right of pre-emption shall exist in respect of sale or purchase of: (a) A waqf property or a property used for charitable, religious or public purpose.”
In view of the judgment in the case of Government of NWFP v. Malik Said Kamal Shah (PLD 1986 SC 360) majority of the provisions of the Punjab Pre-emption Act, 1913 and that of NWFP (KPK) Pre-emption Act, 1950 were declared against the injunctions of Islam and the governments were directed to amend the law according to the guidelines, given therein so to bring it in conformity with the injunction of Islam. To achieve the object, the Government of the day referred the matter to the Islamic Ideology Council to provide the law for all the provinces, also keeping in view the customs and traditions of each province, not against the injunctions of Islam and after consultation with the Law Division, Government of Pakistan had to forward the same to the governments so that the new draft law is enacted through Legislature.
6. The Islamic Ideology Council, after considerable deliberations with Jurists on “Islamic Fiqa” with regard to right of preemption, all ancillary and allied matters and after consultation with the Law Division drafted the proposed law for the provinces and forwarded the same to their respective governments. It was in this background that, the new Pre-emption Act of NWFP (KPK) was notified on 26.04.1987. While the Government of Punjab in the first instance through an Ordinance dated 27.08.1990 promulgated by the Governor of Punjab, enacted the new law, which after making some amendments therein, was passed by the Provincial Legislature and after getting assent of the Governor of the Province, the same was issued on 6th April, 1991 in the extraordinary Gazette of Punjab Province.
7. In both the Acts of the two provinces, the provision of S.23 thereof provides protection from right of pre-emption to “Waqf” property or a property used or attached to charitable or religious institutions however, in the provision of the NWFP (KPK) Pre-emption Act, as cited above, the words “sale and purchase” both are used however, the word “purchase” is missing from the similar provision of the Punjab Pre-emption Act, 1991. In the same provision of the Punjab Pre-emption Act, S.23(2), the property purchased or acquired by the Federal or the Provincial Government or local authority is also given exemption from pre-emption. This provision was challenged along with some other provisions of the Punjab Pre-emption Act, 1991 before the Federal Shariat Court on the plea that the same were against the injunctions of Islam.
A larger Bench of the Federal Shariat Court in the case of Muhammad Ismail Qureshi v. Government of Punjab (PLD 1991 Federal Shariat Court 80) has held as under:
“That the provision of section 23(2) is not repugnant to injunction of Islam as property, which is to be pre-empted, must be owned by a person. That is why, the properties which are Waqf or used for charitable, religious and public purposes are not pre-emptible. On this analogy, the State-owned properties also are not pre-emptible because they are not property of a person. Extending the principle further, a property acquired by the State for public purposes does not remain property of a person or an association of persons. Therefore, a property for public purposes, as envisaged in Shariah, is not pre-emptible.”
8. The learned Judge of the Lahore High Court in the case of Muhammad Farooq v. Muhammad Amin Trust Chakwal (PLD 2007 Lahore 431) also held that “the record did not deny that vendee was a trust or Waqf and purchased the property as such—Deed of trust was produced which was a registered document—Purposes of trust were setting up of a hospital on modern lines and to serve people of locality around—Chairman of vendee Truest appeared as witness and stated that the land was purchased for constructing a hospital.” This statement was not challenged in cross examination thus, it was held that, “plain reading of S.23(1)(a) of Punjab Pre-emption Act, 1991 showed that prohibition was regarding sale of waqf property or property used for charitable purposes—Intention however, clearly appeared to save the property purchased for charitable user from rigours of exercise of right of pre-emption.”
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