Right
of Pre-emption is a right practiced in many parts of the world. It has special
importance in Islamic law. That is one of the reasons because of which it is
part of Pakistani legal system. Right of pre-emption existed in Indo Pak
Sub-continent even before partition of India and Pakistan. However, it was
having status of a local law in those times. In the province of Punjab the
pre-emption law was Punjab Pre-emption Act 1913 that was later repealed by a
judgment of Supreme Court of Pakistan declaring it repugnant to the Provisions
of Islam. A new act was promulgated in the province in with the name Punjab
Pre-emption Act 1991.
There
is no statutory law of Pre-emption in the provinces of Baluchistan and Sindh in
Pakistan. In the province of KPK the act of pre-emption was NWFP pre-emption
act 1950. Certain provisions of this act were declared repugnant to the
injunctions of Islam and a new act was promulgated in the province of NWFP in
1987.
Right
of pre-emption is only exercisable in cases where sale is an absolute one. This
very fact is mentioned in section 2(d) of Punjab Pre-emption Act, 1991.
2-(d) Sale means permanent transfer of the
ownership of an immovable property in exchange for a valuable consideration and
includes transfer of an immovable property by way of Hiba-bil-Iwaz or Hiba ba
Shart-ul-Iwaz, but does not include_____
(i) transfer of an immovable
property through inheritance or will or gift, other than Hiba-bil-Iwaz or
Hiba-ba shart-ul-Iwaz,
(ii) a sale in execution of a
decree for money or of any order of a civil, criminal, revenue or any other
Court or a Revenue Officer or any local authority;
(iii) exchange of agricultural
land; and
(iv) Transfer of an immovable
property for a consideration other than valuable consideration, such as the
transfer of an immovable property by way of dower or composition in a murder or
hurt case.”
Bare perusal of
above provision of law shows that sale is a permanent transfer of ownership of
immovable property in exchange for a valuable consideration. Sale is complete
when permanent transfer of ownership of immovable property is affected in
exchange of a valuable consideration.
Section 5 of the said act further clarifies this concept in the
following manner.
5. “Right of pre-emption.__ (1) the right of pre-emption
shall arise in case of sale of immovable property.”
The perusal of said
provision of law will show the right of preemption arises in case of sale of
immovable property only and where there is no sale of immovable property the
right of pre-emption is not available. It is an established proposition of law
that right of pre-emption is not a right of free purchase either from the
vendor or from the vendee involves in the new contract of sale but it is simply
a right of substitution. It means the pre-emptor in the event of success of his
claim, stand in the shoes of the vendee with respect to all rights and
obligations arising from the sale of property under the pre-emption. It is, in
fact, as if in a sale deed the vendee’s name were rubbed out and the
pre-emptor’s name inserted in its place. In other words the pre-emptor does not
get a better title then the vendor.
The right of
pre-emption rests in three kinds of persons. This very fact is mentioned in
section 6 of Punjab Pre-emption Act.
6. Persons in whom the right of pre-emption vests.__ (1) The right of pre-emption shall vest__
(a) firstly, in shafi sharik;
(b) secondly, in shafi-khaleet;
and
(c) Thirdly, in Shafi jar.
Explanation.__ (I) Shafi Sharif means a person who is
a co-owner in the corpus of the undivided immovable property sold.
(II) “Shafi Khaleet means a participator in the special rights attached
to the immovable property sold, such as right of passage, right of passage of
water or right of irrigation.
(III) Shafi Jar means a person who has a right of pre-emption because
of owning an immovable property adjacent to the immovable property sold.
(2) Notwithstanding anything in subsection (1), the right of
pre-emption shall be exercisable only in case of Zaroorat or to avoid „Zarar‟.”
The right of
pre-emption is generally not exercisable in the urban areas. There are various
reasons for that. One of the big reasons is that the statutes do not allow this
right to be exercisable in the urban areas. For example in the definition
clause of Punjab Pre-emption Act, 1991 the immovable property is defined as:
Immovable property means immovable property situated
in any area other than an urban area or within cantonment limits as declared by
any law relating to Local Bodies or Cantonments, as the case may be, for the
time being in force.”
That
provision of law very clearly excludes the urban property that is present in
the non-cantonment areas from the sphere of Pre-emption. That means no court in
Punjab has jurisdiction to entertain suits of pre-emption for properties that
are present in urban areas generally. As far as NWFP pre-emption Act 1987 is
concerned it is silent over the issue.
Right
of Pre-emption in Bahria Town
Bahria
Town (Pvt) Ltd. Is a private limited company having its housing projects all
over Pakistan. It is there in some of the major cities of Pakistan with having
various phases. A fact is that the local laws of provinces affect Bahria Town
wherever it is located. For example laws in Sindh that are applicable on Bahria
Town Karachi might not be applicable on Bahria Town Rawalpindi.
According
to the provisions of Registration Act, 1908 any immovable property having value
of more than 100 rupees should be registered. That registration is made with
the registrar of the concerned district in which the property falls. In
practice there are two ways of transferring ownership in Pakistan. One way is
by registration and the other way is by mutation. In cases of agricultural land
generally the buyers prefer mutation over registration. However many buyers
choose both the ways in general.
Whenever
Bahria Town acquires any land it gets registration and mutation both of the
same in its name. It develops the same into a housing project and further
allots it to its customers. The point is that Bahria Town Private Limited
Company remains the owner of land it purchases. The people that purchase Bahria
Town plots enjoy the status of being allottees.
There
are certain factors that make right of pre-emption non-enforceable in Bahria
Town. For example:-
·
Right of pre-emption only rests in case of
absolute sale. This thing is discussed in detail in a reported judgment of
Lahore High Court 2011 LHC 2663.
Absolute sale in cases of plots of Bahria Town is not clear as the plots are
only allotted not registered or mutated at the office of registrar or tehsildar.
·
In certain situations Bahria town rests the
right of cancelling allotment of the allottee. That clarifies the status of an
allottee as an owner always has the right of disposing of property himself.
·
Bahria Town is an urban area having urban
population. It doesn’t fall under cantonment areas. That makes it excluded from
the right of Pre-emption. That means right of Pre-emption is not exercisable in
Bahria Town in general.
·
There are strict rules of Bahria town which
an allottee is bound to follow. In cases of disputes the allottees of Bahria
Town plots are bound to take the disputes to management committee of Bahria
Town. Their decision is considered final and the buyers always give consent to
that provision which purchasing any property in Bahria Town.
Right
of pre-emption is only exercisable against Bahria town in one condition. For
example if Bahria Town Private Limited purchases a land in a rural area without
having status of shafi sharik, Shafi Khaleet and Shafi Jar the people having
any of such status can exercise their right of pre-emption. That means Bahria
Town Private Limited can be sued by an outsider having land in the area where
it makes a purchase. No one can exercise right of pre-emption inside Bahria
Town in that way.
Salman
Yousaf Khan(Golra)
Advocate
High Court Islamabad
lawyersisb@gmail.com
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