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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 The Act, , has repealed the Punjab Pre-emption Act, 1913 and holds sway over the entire province of Punjab.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.
(Compiled by our fellows namely: Samia Tehreem and Ali Zaib, students of Faculty of Law, University of Central Punjab, Lahore.)
The Act imposes punishment i.e., imprisonment, and fine,on the person who illegally dispossesses a person from his immovable property. The offender may also be arrested after obtaining an arrest warrant. In addition to this, the victim is also entitled to compensation under the Act.
The Illegal Dispossession Act, 2005 (the “Act”), protects the right of possession of lawful occupiers and owners of immovable property by preventing its illegal dispossession by property grabbers and Qabza groups. An occupier is the person who has possession of the immovable property, whereas an owner is the person who owns the immovable property, as defined by the Act. The Court of Sessions has got the exclusive jurisdiction pertaining to cases under the Act.
The speedy and simple procedure for disposal of the case has been provided in the Act. Proceedings are initiated by filing a complaint before the Court of Sessions. Upon instructions, the SHO, after investigation, submits the report thereof. Besides, the Court may also require a report after local inquiry from a Magistrate or a Revenue officer. Under the Act, the case must be concluded within 60 days without unnecessary adjournments, however, in the interest of justice an adjournment for not more than seven days may be granted. Further, in case of dismissal of complaint being false or frivolous, the complainant may also be burdened with compensatory cost up to five lac rupees.
The Court may evict the illegal possessor and restorethe possession of occupier/owner during the pendency of the case on temporary basis.The Court may implement its orders through officials/officers and even through police force. If the Court concludes that an offence has been committed, the final order may also be implemented in the same manner. An appeal lies against orders within 30 days in the Honorable High Court.
The question now is why such legislation was needed when laws on the same subject already exist. A person who has been illegally evicted from his land may also initiate a claim under Section 9 of the Specific Relief Act of 1877. The leading judgement of the Full Bench of the High Court, titled Zahoor Ahmad vs Stated, reported as PLD 2007 LHR 231, demonstrates the significance of this Act, in which the Lahore High Court has drawn the yardstick vis-à-vis application of the Act.
According to this judgment, the complaint under this Act can only be filed against persons involved in previous activity connected with illegal dispossession or some persons who made organized or calculated effort individually or in groups to illegally dispossess someone of their property. It cannot be filed against ordinary persons who are not property grabbers or when the matter of possession of the relevant property is being regulated by a civil or revenue court.
The same principle was upheld by Supreme Court in a case titled Bashir Ahmad vs Additional Sessions Judge, Faisalabad, reported as PLD 2010 SC 661, where it was stated that when no material is available as to show that accused person belongs to a Qabza group, the complainant cannot attempt to transfer a civil dispute into a criminal case as same will amount to the abuse of the process of law.
The term “property grabbers” is used in the Act’s Preamble but is not defined anywhere in the Act. Members of the National Assembly and Senate unanimously agreed that this term is synonymous with Qabza Mafia. As a result, any other application of the Act would be contrary to its spirit. The scope of the Act is limited to cases related to Qabza Mafia.
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Law Clinic
It is contentedly announced that Ahsan Legal Services has secured the chance to take part in the activities on real matters at the Law Clinic of Faculty of Law, University of Central Punjab to contribute towards extensive trainings of law students actively.
Indeed, this is a unique platform for the students where they can acquire practical knowledge to be able to apply the concepts and theoretical knowledge acquired by the institution. This gain will be helpful for them to step in the profession of lords more effectively.
Besides, pro bono and other public services are few of the objectives as output of activities at the Law Clinic.
We are highly grateful to Dr. Hadia Awan, the worthy Dean, FOL, UCP for considering ALS for this task.
(Compiled by our fellows namely: Meherzada Muhib, Hassan Majied, Sami Ullah and Haris Ali Sindhu. All students of Faculty of Law, University of Central Punjab, Lahore.)
While superceding the Punjab Rented Premises Ordinance, 2007, the Punjab Rented Premises Act, 2009 (the “Act”) ultimately substituted the old Punjab Urban Rent Restriction Ordinance, 1959 aiming to regulate the relationship of landlord and tenant in respect of rented premises in a better way. It is applicable to the urban areas within the territory of the Punjab, excluding any land exempted by the government.
The Act is substantive as well as procedural. Plain reading of the Act reveals that it endeavors to ensure maximum certainty apropos matters of tenancy. It lays down the rights and obligations of tenant and landlord; similarly it provides a procedure for the protection of these rights. The owner of premises and a person who is entitled or authorized to receive the rent is defined as landlord. Whereas, the Act declares any person who is bound to pay rent including person in occupation after termination of tenancy agreement, legal heirs, and subtenant (with consent) as tenant.
In order to reduce the ambiguity regarding the relationship of tenant and landlord, the act declares registration of tenancy agreement before the Rent Registrar mandatory along the regular registration irrespective of its tenure. Otherwise, if a landlord desires to approach Rent Tribunal, he will have to deposit an amount equivalent to ten percent of the value of annual rent as penalty and in case of tenant, five percent as same penalty.
The Act has also provided the essential contents of tenancy agreement i.e. particulars of landlord and tenant, their bank accounts (if any), description of premises, period of tenancy, rate of rent, rate of enhancement (if any), mode of payment, due date, purpose of use and amount of security etc.
The Act has imposed certain statutory obligations on the landlord i.e. to provide a certified copy of the agreement to tenant, repair the rented premises and pay taxes. Besides, under the Act, it is also obligatory for the tenant not to change the structure, not to cause nuisance, handover vacant possession upon termination of an agreement, allow landlord to enter in the rented premises, use rented premises for the mentioned purpose and keep it in the condition in which it was let out.
The Act also declares grounds for the eviction i.e. expiration of tenancy period, rent is unpaid for thirty days, breach of any term or condition of agreement, use of premises for unmentioned purpose or subletting the rented premises without consent of the landlord.
Moreover, to resolve disputes between landlord and tenant, Rent Tribunals have been established in every district by Punjab Government which are presided over by the Special Judges (Rent), who are appointed with the consultation of Lahore High Court and those Tribunals shall exercise exclusive jurisdiction over cases under the Act. In order to make the proceedings under the Act expedited, provisions of Qanun-e-Shahadat Order 1984 and Code of Civil Procedure, 1908 are also not applicable.
In order to defend the application, the respondent has to file an application for leave to contest within ten days, which shall be decided within fifteen days of its filing. The Rent Tribunal may pass ex-parte order in case of non-appearance of the party and against that ex-parte order, an application may be filed within ten days. The Rent Tribunal has to pass a final order on an application within four months and the aggrieved party may file an appeal against final order within thirty days, and if filed, the appeal shall be decided within two months.
(Compiled by our fellows namely: Mariah Khurshid, Raja Shoaib Wali, Ibrar Ahmad Khan and Fawad Khan. All students of Faculty of Law, University of Central Punjab, Lahore.)
The preamble of the West Pakistan Family Courts Act, 1964 (the “Act) states its purpose as settlement of the disputes in regards to marriage and family affairs.
The Act extends to the whole of Pakistan except the tribal areas. Section 5 provides for the Jurisdiction of the Family Court (the “Court”). Generally, the court will have special jurisdiction over the family matters including dissolution of marriage, dower, maintenance, restitution of conjugal rights, custody of children, guardianship, jactitation of marriage, etc. in addition to a few offenses of hurt, etc. arising out of family disputes. The Court is not bound to adopt ordinary and lengthy procedures of trial and evidence like ordinary Civil Courts to curtail the period.
The Court is also empowered to pass an interim order for the protection and preservation of property in dispute.
As per the Rules of 1965 under the Act, the plaint can be filed in the District where the cause of action wholly or in part has arisen or where the parties reside or last resided together. In suits for dissolution of marriage or dower, plaint can also be filed in the District, where the wife ordinarily resides.
The judge of the Court (the “Judge”) has to have the qualification to be appointed as District Judge or an Additional District Judge. The judges are to be appointed by the Government in every district including at least one women Judge. The Judges are also equipped with the power of the Judicial Magistrate’s 1st class.
For the Act, Family Court is deemed to be District Court, whereas, District Judge or Government may determine the place of sitting of the Court.
According to the Act, every suit is to be initiated by filing a plaint containing material facts along with a schedule stating the particulars of witnesses intended to be a procedure in support. Also, the parties may call any witness at any later stage if the Court deems it necessary in the interest of justice. It is also mandatory to file the list of documents that are attached with the plaint as well as the documents to be produced later.
After receiving the plaint, the Court fixes a date within the next 30 days for the appearance of the defendant by serving the summons. The Court also sends notice of the suit to the defendant and to the chairman of the union council within whose jurisdiction the defendant resides, by registered post along with a copy of the plaint. On the date fixed the parties may make their appearance before the Court.
A distinctive feature of the Act is that if the defendant (husband) is desirous of filing a suit for restitution of conjugal rights, he, instead of doing so, may claim this relief in the written statement of the plaint of dissolution of marriage, filed against him. By this, he does not need to file a separate suit, and his written statement, to the extent of claim of restitution of conjugal rights shall be treated as his plaint. Likewise, a defendant (wife) may also claim dissolution of marriage through her written statement of plaint claiming restitution of conjugal rights instead of a separate suit.
Further, if a defendant does not appear on the fixed date the court will proceed ex-Parte which the defendant may challenge within 30 days of the service of notice of passing out the decree.
Another weighty feature of the Act is the statutory obligation of the Court to make an active effort for reconciliation of the parties twice. Firstly, before proceeding with the formal trial once a written statement from the defendant is filed, and secondly, before pronouncement of judgment after the conclusion of the trial.
If after pre-trial conciliation efforts, no compromise is reached, the court shall frame the issues and fix the date for recording of evidence. Nevertheless, in a suit for dissolution of marriage, if such effort for compromise fails, the Court shall pass a decree for dissolution of marriage (if on ground of Khula) immediately and the husband will be entitled to restoration of a portion of dower (haq-mehr) if already paid or waiver thereof. Likewise after the recording of evidence of both parties the Court will make another attempt to affect a compromise between the parties, and in case of failure, the judgment will be announced.
The Court is bound to dispose of the case within 6 months from the date of the institution. If the case is not decided within this stipulation, either party may approach the High Court for appropriate order/direction.
Generally, the decree passed by the court is appealable. However, no appeal lies in the case of dissolution of marriage (except in few cases), for dower/dowry not exceeding Rs. 30,000 and for maintenance of Rs. 1,000 or less. Also, no right of appeal and revision against an interim order passed by the court exists. The appellate court is also to dispose of the appeal within 4 months.
If a person insults the Court, causes impediment in the work of the court, misbehaves with any person in court, refuses to answer any question put by the court, or refuses to take an oath he can also be held responsible for contempt of court.
It is delightfully announced that ‘Ahsan Legal Services’ has entered into a Memorandum of Understanding with Faculty of Law, University of Central Punjab.
The MoU sets sight on formal academic internships in summers for Law students to observe and learn the practical application of legal knowledge and theories which they have acquire during their studies at campus.
ALS is a unique organization consisting a bouquet of professional and academia lawyers and former judges having command in their respective fields including litigation, transactional tasks, opinions and customized trainings.
Hon’ble Lahore High Court, Lahore while deciding a Constitutional Petition, decided the issue of imposition of fine on filing of each application before Rent Tribunals on the basis of same unregistered rent agreement. Founder of Ahsan Legal Services – ALS with active aid of team presented the case on behalf of respondents. The Hon’ble Court was pleased to grant relief to respondents while holding;
“ … Where tenancy between the parties was not in consonance with the provisions of Punjab Rented Premises Act, 2009, Rent Tribunal could not entertain an application until and unless the requisite fine had been deposited by the party approaching the said forum — Provision of S.9 of Punjab Rented Premises Act, 2009, did not suggest that fine would be leviable against a party only for once — Imposition of fine under S.9 of Punjab Rented Premises Act, 2009, was to encourage registration of tenancy between the parties — If parties had not opted to bring the tenancy in conformity with the provisions of Punjab Rented Premises Act, 2009, then they should face the consequences — Defect in tenancy would not be cured until and unless same was brought in conformity with the provisions of Punjab Rented Premises Act, 2009 — Once the party had deposited fine even then it could be burdened with fine again, if he had approached the Rent Tribunal with a fresh application …..”
The judgment has been published and reported as PLD 2020 Lahore 713.
Process of partition of agricultural land under the West Pakistan Land Revenue Act, 1967. Feel free to discuss through comments or ask through contact us.
Child marriage is defined as the marriage or union between two people in which one or both parties are younger than required age.UN Convention on the Rights of the Children (ratified by Pakistan) considered marriage below the age of eighteen as child marriage.The Child Marriage Restraint Act, 1929 is aimed to restrain the solemnization of child marriage and does not affect the validity of such marriage but imposes certain penalties. This Act also declared minimum age for marriage, if a male, as eighteen years, and if a female, as sixteen years The West Pakistan Muslim Personal Law (Shariat) Act, 1962 in its Section 2 states that notwithstanding any custom or usage, in all questions regarding betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, the rules of decision, subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal Law (Shariat) in case where the parties are Muslims.According to Sharia (Law), a minor’s father has the right to marry him/her off to whomever he chose without consulting him/her as minors lack the legal capacity to give permission for marriage. However, this marriage could not be consummated until the minor child reached the age of majority. In the period between betrothal and the consummation of marriage, the young bride would reside with her parents. Upon attainment of the age of majority, the bride could exercise her right to annul the marriage if she so wished, this is called option of puberty.Age of majority was equated with attaining puberty and demonstrating adequate mental development. Council of Islamic Ideology (CII) has declared that the laws related to the minimum age of marriage were un-Islamic and that children of any age could get married if they attain puberty. There is no fixed age of puberty. The age to attain puberty is different in males and females, and even differs in male to male and female to female. The CII agreed on the age of fifteen for puberty, although according to the CII, a girl may reach puberty at the age of nine while boys may reach puberty as soon as twelve.
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