The Punjab Pre-emption Act, 1991(the “Act”) sets the stage for an intriguing legal journey, highlighting the necessity of re-enacting the existing law on pre-emption in order to align it with the profound teachings of Islam as found in the Holy Qur’an and Sunnah. The Act, , has repealed the Punjab Pre-emption Act, 1913 and holds sway over the entire province of Punjab.
Delving into the heart of the matter, the right of pre-emption originates when immovable property is sold. This right of preference is vested in three distinct categories:
Shafi Sharik: who happens to be a co-owner of the undivided immovable property being sold;
Shafi Khalit: who possesses special rights linked to the sold property, such as the right of passage, access to water, etc; and
Shafi Jar: who happens to be the owner of an adjacent immovable property.
The exercise of the right of pre-emption is only permissible in cases of necessity or to avert potential harm. The right of pre-emption retains its potency only if the pre-emptor follows the prescribed order of demands:
First, there is talb-i-muwathibat, which entails the pre-emptors’ immediate declaration of their intention to exercise the right of pre-emption during the sitting or meeting where they become aware of the sale;
Subsequently, talb-i-ishhad require the pre-emptors to dispatch a written notice, supported by two truthful witnesses, to the vendee, confirming their intention to exercise the right of pre-emption within two weeks of learning about the sale. Nevertheless, in areas where registered notice is impractical, talb-i-ishhad can be made in the presence of two truthful witnesses; and
After fulfilling the requirements of above-mentioned demands, , eventually, the pre-emptors may make talb-i-khusumat i.e., the filing of suit in the court of competent jurisdiction to enforce their right of pre-emption.
When more than one person has rights related to the immovable property being sold, the person with the special right has priority over the person with the general right. Additionally, if a class or group of people has the right to pre-emption, then all members of that class or group may jointly exercise that right and if any of them withdraws before a court ruling then the remaining pre-emptors are entitled to the entire property if their initial claim encompassed the entire property. Additionally, any two or more members may exercise the right individually, if they desire so
The pre-emption right does not apply to trees or buildings that are sold separately from the land they are on. However, if land is sold with trees and structures, the trees and structures are regarded as a part of the land are protected by the pre-emption right. Furthermore, pre-emption does not apply to all properties, though, as those utilized for charitable, religious, or public purposes as well as those owned by the government or a local authority are exempt.
Both Muslims and non-Muslims are able to use the right of pre-emption against each other, however there are some guidelines and limitations. This right cannot be split or transferred, and both parties must argue in favor of the full property. The property will be divided equally between the pre-emptor and the vendee if they both have equal pre-emption rights.
In cases where an individual is unable to fulfill the aforesaid demands, their guardian or agent may act on their behalf. It is worth noting that the right of pre-emption is considered waived if the pre-emptor agrees to the sale or performs an act or omission that implies a relinquishment of the right. However, in the event of the pre-emptor’s demise after making any of the demands, the right of pre-emption may pass on to their successor, introducing a captivating element of succession. One-third of the sale price of the property must be deposited in the Court within a certain time period by the plaintiff in a pre-emption action. If the pre-emptor wins in court, they have thirty days to settle the remaining balance. Conflicts over the asking price are resolved by the Court, which establishes the property’s market value based on elements such the actual sale price, projected yearly net profits, the cost of comparable properties in the area, and prior sales.
There is a time limit for enforcing the right of pre-emption. A suit has to be filed within four months from the registration of the sale deed or attestation of the mutation. In certain cases, the period of limitation for pre-emption suits extends to one year, requiring the pre-emptor to establish their claim in the presence of two credible witnesses. And so, the rules of pre-emption are set, governing the interactions between Muslims and non-Muslims and ensuring justice in property transactions.
Authors:
Bushra Islam
Moeez-ur-Rehman Khan.
Ahsan Legal Services 