NORTH‑WEST FRONTIER PROVINCE PRE‑EMPTION ACT, 1950
(20th March, 1950)
Whereas it is expedient to amend and consolidate the law of pre emption in the North‑West Frontier Province ;
It is hereby enacted as follows ;‑
- Short title, extent and commencement ‑(1) This Act may be called the North‑West Frontier Province Pre‑emption Act, 1950.
(2) It extends to the whole of the North‑West Frontier Province.
(3) It shall come into force at once.
- Repeal,‑(1) The following enactments and notifications are hereby repealed :‑
(a) The North‑West Frontier Province Pre‑emption Regulation I of 1924.
(b) The Punjab Pre‑emption (North‑West Frontier Province Amendment) Act III of 1943.
(c) The Punjab Pre‑emption (North‑West Frontier Province Amendment) Act III of 1948.
(d) The North‑West Frontier Province Gazette Notification No. 9121‑G., dated the 20th October, 1924.
(2) Nothing in this Act shall affect the provisions of Order XXI, Rule 88 of the Code of Civil Procedure, 1908.
(3) Notwithstanding anything to the contrary contained in section 6 of the North‑West Frontier Provincial General Clauses Act, 1931, the Courts shall in all suits, appeals and proceedings pending at the com mencement of this Act give effect, so far as may be, to the procedure prescribed by this Act.
- Definitions.‑In this Act, unless a different intention appears from the subject or context :‑
(1) "agricultural land" shall mean land as defined in the Punjab Alienation of Land Act, 1900, as amended by Act I of 1907, but shall not include the right of a mortgagee, whether usufructuary or not, in such land ;
(2) "village immovable property" shall mean immovable property within the limits of a village other than agricultural land ;
(3) "urban immovable property" shall mean immovable 'property within the limits of a town, other than agricultural land. For the purposes of this Act a specified place shall be deemed to be a town ;
(a) if so declared by the Provincial Government by Notification in the Official Gazette, or
(b) if so found by the Courts,
(4) sale shall not include a sale in execution of a decree for money or an order of a Civil, Criminal or Revenue Court or of a Revenue Officer;
(5) any expression which is defined by section 3 of the Punjab Land Revenue Act, 1887, shall, subject to the provisions of this Act, have the meaning assigned to it in the said section.
CHAPTER II‑GENERAL PROVISIONS
- Right of pre‑emption.‑The right of pre‑emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of foreclosure of the right to redeem such property.
Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in fact a sale.
- Property exempted from pre‑emption.‑No right of pre‑emption shall exist in respect of the sale of, or the foreclosure of, a. right to redeem
(a) a shop, serai, katra or club ;
(b) a dharamsala, mosque, church or other similar charitable institu tions or buildings ;
(c) agricultural land or village immovable property, consisting of an area measuring not more than two kanals purchased by a resident of the village in which such land is situated, where he neither owns a house nor a vacant site measuring more than one kanal, for constructing a house for his own occupation.
Right of pre‑emption to be subject to the provisions ofthis Act.‑A right of pre‑emption shall exist in respect of agricultural land, village immovable property and urban immovable property subject to the pro visions and limitations contained in this Act.
Power ofGovernment to exempt transactions from pre‑emption. (1) Notwithstanding anything contained in this Act, a right of pre emption shall not exist in respect of any sale made by or to the Govern ment or by or to any local authority or to any company under the provisions of the Land Acquisition Act, 1894 , or in respect of any sale sanctioned by the Deputy Commissioner under section 3 (2) of the Punjab Alienation of Land Act, 1900.
(2) The Provincial Government may declare by notification that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales no right of pre‑emption shall exist.
- Deposit of money not liable to attachment.‑No sum deposited in or paid into Court by a pre‑emptor under the provisions of this Act or of the Code of Civil Procedure shall, while it is in the custody of the Court, be liable to attachment in execution of a decree, or order of a Civil, Criminal or Revenue Court or of a Revenue Officer.
CHAPTER III‑PERSONS IN WHOM THE RIGHT OF PRE‑EMPTION VESTS.
10. Act to apply to sales completed after its 'enactment.‑In respect. of all sales and foreclosures not completed before the commencement of this Act, the right of pre‑emption shall ‑be determined .by the pro visions of this Act ; but in respect of all sales and foreclosures com pleted before the commencement of this Act, the right of pre‑emption shall be determined by the law in force at the time of such completion.
11. Exercise of right of pre‑emption jointlyor severally.‑Whenever, according to the provisions of this Act, a right of pre‑emption vests in any class or group of persons, the right may be exercised by all the members of such class or group jointly, and, if not exercised by them all jointly, by any two or more of them jointly, and if not exercised by any two or more of them jointly, by them severally.
12. Persons entitled topre‑empt.‑The right of pre‑emption in respect of agricultural land, village immovable property and urban immovable property shall vest :‑
firstly, in the co‑sharers in such land or property, if any secondly, in a participator in amenities, appendages, or easement, such as a right of way and discharge of water ;
thirdly, in owners of contiguous property, if any ; fourthly, in a landlord when the sale is by an occupancy tenant of his right in tenancy.
- Ratable distribution amongpre‑emptors. ‑Where several pre emptors are found by the Court to be equally entitled to the right of pre‑emption, the said right shall be exercised :‑
(a) if they claim as co‑sharers, in proportion among themselves to the shares they already hold in the land or property ; and
*(b)*in any other case, by such pre‑emptors in equal shares.
- Application of sections 12 and 13 to foreclosures.‑In thecase of a foreclosure of the right to redeem agricultural land, village immovable property or urban immovable property, the provisions of sections 12 and 13 shall be construed by the Court with such alterations, not affecting the substance, as may be necessary or proper to adapt them to the matter before the Court.
15. Notice of intention tosell.‑When any person proposes to sell any agricultural land, village immovable property or urban immovable property, or to foreclose the right to redeem such land or property, in respect of which any persons have a right of pre‑emption, he may give notice to all such persons of the price at which he is willing to sell such land or property, or the amount due in respect of the mortgage, as the case may be.
Such notice shall be given through any Court within the local limits of whose jurisdiction such land or property or any part thereof is situate, and shall be deemed sufficiently given if it be struck upon the hujra or other public place of the village, town or place in which the land or property is situate.
16. Effect of loss ofright by pre‑emptor prior to decree.‑No decree for pre‑emption shall be passed in favour of any person unless he has a subsisting right of pre‑emption at the time of the decree, but where a decree for pre‑emption has been passed in favour of plaintiff, whether by a Court of first instance or of appeal, the right of such plaintiff, shall not be effected by any transfer or loss of his interest occurring after the date of such decree,
Sale of property to pre‑emptor oracquisition of right by original purchaser prior to suits,‑No suit for pre‑emption shall lie where the purchaser has, prior to the institution of such suit, transferred the property in dispute to a person, having a right of pre‑emption equal of superior to that of the plaintiff. '
Associating in suit co‑plaintiff withinferior right.‑Where a person having a right of pre‑emption sues jointly with a person not having such right, he shall lose his right ; and where a pre‑emptor of a higher class sues jointly with a pre‑emptor of a lower class, he shall have no higher right than the person with whom he so sues.
Joint purchase by persons one of whom is liableto pre‑emption. ----Where the purchaser having equal or superior right to the pre‑emptor joins with him a person having no right or having right inferior to the pre‑emptor, the purchaser loses his preferential right.
20. Extinction of right of pre‑emption.‑The rightof pre‑emption of any person shall be extinguished unless such person shall, within the period of three months from the date on which the notice under section 15 is duly given or within such further period, not exceeding one year from such date as the Court may allow, present to the Court a notice for service on the vendor or mortgagee of his intention to enforce his right of pre‑emption. Such notice shall state whether the pre‑emptor accepts the price of amount due on the footing of the mortgage as correct or not; and if not, what sum he is willing to pay.
When the Court is satisfied that the said notice has been duly served on the vendor or mortgagee, the proceedings shall be filed.
Acquiescence by pre‑emptor.‑A personshall be deemed to have forfeited his right of pre‑emption if he is found to have committed any positive act in the completion of the sale.
*Deposit of pre‑emption money.‑(1)*In every suit for pre emption the Court shall at or at any time before, the settlement of issues require the plaintiff to deposit in Court such sum as does not in the opinion of the Court, exceed the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the Court for the payment, if required, of a sum not exceeding such probable value within such time as the Court may fix in such order.
(2) In any appeal the Appellate Court may at any time exercise the powers conferred on a Court under subsection (1).
(3) Every sum deposited or secured under subsection (1) or sub section (2) shall be available for the discharge of costs.
(4) If the plaintiff fails within the time fixed by the Court or within such further time as the Courts may allow to make the 'deposit or furnish the security mentioned in subsections (1) or (2) his plaint shall be rejected or his appeal dismissed, as the case may be.
*(5) (a)*If any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed.
*(b)*If any security so furnished for any cause become void or insufficient, the Court shall order the plaintiff to furnish security or to increase the security, as the case may be, within a time to be fixed by the Court, and if the plaintiff fails to comply with such order, the suit or appeal shall be dismissed.
(6) The estimate of the probable value made for the purpose of sub section (1) shall not affect any decision subsequently come to as to what is the market value of the land or property.
- Contravention of Provisions of Land Alienation Act debars grant of decree.‑Nodecree shall be granted in a suit for pre‑emption in respect of the sale of agricultural land until the plaintiff has satisfied the Court :‑
that the sale, in respect of which pre‑emption is clamed, is not in Contravention of the Punjab Alienation of Land Act, 1900.
25. Court to fix the price of the land sold.‑If, in the case of a sale, the parties are not agreed as to the price at which the pre‑emptor shall exercise his right of pre‑emption, the Court shall determine whether the price at which the sale purports to have taken place has been fixed in good faith or paid, and if it finds that the price was not so fixed or paid, it shall fix as the price for the purposes of the, suit the market value of the land or property.
(2) If the Court finds that the price was fixed in good faith or paid, it shall fix such price as the price for the purposes of the suit;
Provided that, when the price at which the sale purports to have taken place represents entirely or mainly a debt greatly exceeding in amount the market value of the property, the Court shall fix the market value as the price of the land or property for the purposes of the suit and may put the vendee to his option either to accept such value as the full equivalent of the consideration for the original sale or to have the said sale cancelled, and the vendor and vendee restored to their original position.
Court to fix price regarding foreclosure.‑If, in case of a fore closure, the parties are not agreed as to the amount at which the pre emptor shall exercise his right of pre‑emption, the Court shall determine whether the amount claimed by the mortgagee is due under the terms of the mortgage, and whether it is claimed in good faith. If it finds that the amount is so due and is claimed in good faith, it shall fix, as the price for the purposes of the suit, the market value of the property.
Market value how to be determined.‑For the purpose of deter mining the market value, the Court may consider the following among other matters as evidence of such value ;
(a) the price or value actually received or to be received by the vendor from the vendee or the amount really due on the footing of the mortgage, as the case may be ;
(b) the amount of interest included in such price, value, or amount;
(c) the estimated amount of the average annual net assets of the land or property ;
(d) the land revenue assessed upon the land of property ;
(e) the value of similar land or property in the neighbourhood ;
(f) the value of the land or property as shown by previous sales or mortgages.
Parties in suits.‑When more suits than one arising out of the same sale or foreclosure are pending, the plaintiff in each suit shall be joined as defendant in each of the other suits, and in deciding the suits, the Court shall in each decree state the order in which each claimant is entitled to exercise his right.
No decree be passed until pre‑emptor's basic right upheld.‑(1) If in any suit for pre‑emption any person bases a claim or plea on a right of pre‑emption derived from the ownership of agricultural land or other immovable property and the title to such land or property is liable to be defeated by the enforcement of a right of pre‑emption with respect to it, the Court shall not decide the claim or plea until the period of limitation for the enforcement of such right of pre‑emption has expired and the suits for pre‑emption (if any) instituted with respect to the land or property during the period have been finally decided.
(2) If the ownership of agricultural land or other immovable property is lost by the enforcement of a right of pre‑emption, the Court shall 'disallow the claim or plea based upon the right of pre emption derived therefrom.
- Decree to be communicated to Collector.‑(1) The Court shall send to the Deputy Commissioner a copy of every original decree granting pre‑emption, other than a decree granting pre‑emption, in respect of a building or site of a building in a town or sub‑division of a town, and the Deputy Commissioner may within two months from the date of the receipt of such copy, apply to the Court to which the appeal in the pre‑emption suit would lie, or, if no appeal lies, to the District Court for revision of the decree on the ground that the decision of the Court of first instance is contrary to the provisions of the Punjab Alie nation of Land Act, 1900.
(2) No stamp shall be required upon such application and the pro visions of the Code of Civil Procedure, 1908, as regards appeal shall apply, as far as may be, to the procedure of the Appellate Court on receipt of such application.
(3) No appearance by, or on behalf of, the Deputy Commissioner shall be deemed necessary for the disposal of the application.
- Limitation of suits for pre‑emption.‑In any case not provided for by Article 10 of the second Schedule of the Indian Limitation Act, 1908, as adapted by the Pakistan (Adaptation of Indian Laws) Order, 1949, the period of limitation in a suit to enforce a right of pre‑emption under the provisions of this Act shall, notwithstanding anything in Article 120 of the said Schedule, be one year :‑
(1) In the case of a sale of agricultural land or of village immov able property from the date of the attestation (if any) of the sale by a Revenue Officer having jurisdiction in the register of mutations main tained under the Punjab Land Revenue Act, 1887, or from the date on which the vendee takes under the sale physical possession of any part of such land or property whichever date shall be the earlier ;
(2) In the case of a foreclosure of the right to redeem village im movable property or urban immovable property‑from the date on which the title of the mortgagee to the property‑becomes absolute ;
(3) In the case of a sale of urban immovable property‑from the date on which the vendee takes under the sale physical possession‑‑of any part of the property.