THE [KHYBER
PAKHTUNKHWA] PRE-EMPTION ACT, 1987.
28th April, 1987.
[KHYBER
PAKHTUNKHWA] ACT NO. X OF 1987.
CONTENTS
PREAMBLE
SECTIONS:
1.
Short title, extent and commencement.
2.
Definitions.
3.
Interpretation.
4.
Act to over-ride other laws.
5.
Right of preemption.
6.
Persons in whom the right of preemption vests.
7.
Priorities in the right of preemption.
8.
Joint right of pre-emption, how exercised.
9.
Method of distribution of the property where
more than one person equally entitled.
10.
Withdrawal of claim.
11.
Sale of appurtenances of land.
12.
Right to revoke sale.
13.
Demand of pre-emption.
14.
Demand of preemption.
15.
Demands by the guardian of agent.
16.
Waiver of the right of preemption.
17.
Death of preemptor.
18.
Abetment of right of preemption.
19.
Exercise of the right of preemption by a Muslim
and a Non Muslim against each other.
20.
Right of preemption non transferable and
indivisible.
21.
Where the preemptor and vendee equally entitled.
22.
No right of pre-emption in respect of certain
properties.
23.
Improvements made by the vendee.
24.
Improvement made in the status of the vendee
defendant after institution of the suit.
25.
Plaintiff to deposit sale price of the property.
26.
Deposit or refund of excess price.
27.
The sum depos- ited by pre- cmptor not to be
attached.
28.
Fixing of price for purposes of suit in case of sale.
29.
Market value how to be determined.
30.
Appearance of Ulema in addition to or instead of
advocates.
31.
Limitation.
32.
Notice.
33.
Matters ancillary or akin to the provisions of
the provision of this Act.
34.
Application of the Civil procedure Code and the
law on evidence.
35.
Repeal.
36.
Rules.
THE [KHYBER
PAKHTUNKHWA] PRE-EMPTION ACT, 1987.
28th April, 1987.
[KHYBER
PAKHTUNKHWA] ACT NO. X OF 1987.
[First published after having received the assent of the Governor of the [Khyber
Pakhtunkhwa] in the Gazette of [Khyber
Pakhtunkhwa]
(Extraordinary), dated the 28th
April, 1987].
AN
ACT
to bring in conformity with the Injunctions of Islam the Law relating to
Pre-emption.
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WHEREAS, the Council of Islamic Ideology, in consultation with the Law
Division, has recommended that it is necessary to modify the existing law
relating to pre-emption, so as to bring it in conformity with the Injunctions
of Islam as set out in the Holy Quran and Sunnah;
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Preamble.
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It
is hereby enacted as follows:—
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1.
(1) This Act may be called the [Khyber
Pakhtunkhwa] Preemption Act, 1987.
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Short title, extent
and commencement.
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(2)
It extends to the whole of the [Khyber
Pakhtunkhwa].
(3) It shall come into force at once.
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2.
In this Act, unless there is anything repugnant in the subject or context—
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Definitions.
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(a)
"immovable property"
includes land, building, house, shop, water tank and well;
(b)
"pre-emptor" means a
person who has the right of pre-emption;
(c)
"right of pre-emption"
means a right to acquire by purchase an immovable property in preference to
other persons by reasons of such rights; and
(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 bi-shart al-iwaz but does not include.—
(i)
transfer of an immovable property
through inheritance or will or gift, other than hiba bil-iwaz or hiba bi-shart
al-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) the
creation of any occupancy tenancy by a landlord whether for consideration or
otherwise;
(iv) exchange
of agricultural lands for better management; and
(v) 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.
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3.
In the interpretation and the application of the provisions of this Act, the
Court shall seek guidance from the Holy Quran, Sunnah and Fiqh.
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Interpretation.
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4. The
provisions of this Act shall have effect notwithstanding anything contained
in any other law for the time being in force.
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Act to over-ride other
laws.
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5. (1) The right of pre-emption shall
arise in case of sale.
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Right of preemption
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(2) Nothing contained in sub-section
(1) shall prevent a court from holding that an alienation purporting to be
other than sale is in fact a sale.
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6.
The right of pre-emption shall vest—
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Persons in whom the
right of preemption vests.
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(a)
firstly in shafi-sharik;
(b)
secondly in shafi khalit: and
(c)
thirdly in shafi-jar.
Explanation.
I.
"Shafi Sharik" means a person who is
a co-owner in the coxpus of the undivided immovable property sold with other
person or persons.
II.
"Shafi Khalit" 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.
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7. (1)
Where all the classes of pre-emptors referred to in section-6 are the
claimants, the first class shall exclude the second and the second shall.
exclude the third.
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Priorities in the
right of preemption.
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(2) Where there are more than one
participators in the special rights attached to the immovable property sold, the
person having special right shall have precedence over a person having a
general right.
ILLUSTRATION.
A garden is irrigated by a water course which opens from a small canal. If this
garden is sold, the person having right of irrigation from watercourse shall
have precedence over a person having right of irrigation from the canal. But if
such garden is irrigated from the small canal, the person having right of
irrigation from water course as well as the person having right of irrigation
from the canal shall both have right of pre-emption.
(3) Where there are more than one
pre-emptors and one has right of passage and the other has right of passage of
water attached to the immovable property sold, the person having right of
passage shall have precedence over the person having right of passage of water.
(4) A participator in the special
rights having his property on the basis of which he claims to be the pre-emptor
nearer to the immovable property sold shall have precedence over the pre-emptor
having such property not so near to the immovable property sold.
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8.
Where 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.
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Joint right of pre-emption how
exercised.
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9.
Where more than one person are found by the Court to be equally entitled to
the right of pre-emption the property shall be distributed amongst them in
equal shares.
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Method of distribution
of the property where more than one person equally entitled.
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ILLUSTRATION.
A has one half share in a house, B has one third and C has one sixth share in
such house. If A sells his one half share, the other two partners, namely B and
C shall have equal right of pre-emption in one half of the house and this one
half shall be distributed between B and C in equal shares and not according to
their respective shares in the house.
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10.
Where there are more than one pre-emptors having sued jointly or severally
and any of them withdraws his claim before the decision of the Court, the
remaining pre-emptors shall be entitled to the whole property:
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Withdrawal of claim.
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Provided that the claim of the
remaining pre-emptors was originally made for the whole property.
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11.
Where only trees or a structure of a building is sold without land, no right
of pre-emption shall exist in such trees or the structure of a building, but
where land is sold with trees and buildings on it, the trees and building
shall be deemed to be included in the land for the purposes of the right of
preemption.
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Sale of appurtenances
of land.
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[12. (1)
Where any person proposes to sell any immovable property in respect of which
a right of Pre-emption exists, he may give notice to all such persons having
such right of the price at which he is willing to sell the property.
(2) The notice under sub-section
(1) shall be given through any court within the local limits of whose
jurisdiction such immovable property is situated and shall be deemed
sufficiently given if it be stuck upon the main entrance of a mosque and on
any other public place of the village, city or place where the property is
situated]
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Notice of intention to sell.
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13.
(1) The right of pre-emption of a person shall be extinguished unless such
person makes demand of pre-emption in the following order, namely:—
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Demand of pre-emption.
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(a)
talb-i-muwathibat;
(b)
talb-i-ishhad: and
(c)
talb-e-khusumat.
Explanation .
I.
"Talbi-muwathibat" means
immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he
has come to know of the sale declaring his intention to exercise the right of
pre-emption.
Note.—Any
words indicative of intention to exercise the right of pre-emption are
sufficient.
II.
"Talb-i-ishhad"
means demand by establishing evidence.
III.
"Talb-i-Khusumat" means
demand by filing a suit.
(2) When the fact of sale
comes within the knowledge of a pre-emptor through any source, he shall make
talb-i-mawathibat.
(3) [Subject
to his ability to do so, where] a pre-emptor has made talb-e-muwathibat under
sub-section (2), he shall as soon thereafter as possible but not later than two
weeks from the date of ribtice under section [32],
or knowledge, whichever may be earlier make talb-i-ishhad by sending a notice
in writing attested by two truthful witnesses, under registered cover
acknowledgement due to the vendee, confessing his intention to exercise the
right of pre-emption:
Provided that in areas where
due to lack of post office facilities it is not possible for the pre-emptor to
give registered notice, he may make talbi-ishhad in the presence of two
truthful witnesses.
(4) Where a pre-emptor has
satisfied the requirements of talb-i-muwathibat under sub-section (2) and
talb-i-ishhad under sub-section (3), he shall make talb-i-khusumat in the court
of competent jurisdiction to enforce his right of pre-emption.
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14.
Where a person is unable to make demands under section 13, his guardian or
agent may make the required demands on his behalf.
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Demands by the
guardian of agent.
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15.
The right of pre-emption shall be deemed to have been waived if the
pre-emptor has acquiesced in the sale or has done any other act of ommission
or commission which amounts to waiver of the right of pre-emption.
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Waiver of the right of
preemption
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16.
Where a pre-emptor has died after making any of demands under section 13, his
right of pre-emption shall stand transferred to his legal heirs.
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Death of preemptor.
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17.
(1) Where a pre-emptor before the decree of a Court has alienated his
property on the basis of which he is entitled to the right of pre-emption,
his right of pre-emption shall abate.
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Abatement of right of
preemption.
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(2) An alienee of the property under
sub-section (1) shall also not be entitled to the right of pre-emption.
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18.
A Muslim and a Non-Muslim may exercise the right of pre-emption against each
other.
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Exercise of the right
of preemption by a Muslim and a Non Muslim against each other.
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19.
(1) Save as provided in section 16, the right of pre-emption shall be
non-transferable and indivisible.
(2) The claim for
pre-emption shall be made on the whole property pre-emptible.
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Right of preemption
non transferable and indivisible
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20.
Where the pre-emptor and the vendee fall within the same class of pre-emptors
and have equal right or pre-emption, the property shall be shared by them
equally.
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Where the preemptor
and vendee equally entitled.
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21.
Where a vendee has made any improvements in the immovable property before
talb-i-ishhad is made by the pre-emptor under sub-section (3) of section 13,
the vendee shall be entitled to the cost of such improvements.
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Improvements made by
the vendee.
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22.
Any improvement made in the status of a vendee defendant after the
institution of suit for pre-emption [otherwise
than through inheritance], shall not affect the right of pre-emptor Plaintiff.
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Improvement made in
the status of the vendee defendant after institution of the suit.
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23.
(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;
or
(b)
a
property by the Federal or a Provincial Government or a local authority[.]
(c) [
]
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No right of pre-emption
in respect of certain properties.
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(2) A property acquired by the
Federal or a Provincial Government or a local authority in pursuance of any law
shall not be pre-emptible.
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24.
[(1)
In every suit for pre-emption the Court shall require the plaintiff to
deposit in such Court one-third of the sale price of the property in cash
within such period as the Court may fix;
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Plaintiff to deposit
sale price of the property.
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Provided that if no sale price is
mentioned in the sale deed or in the mutation, the Court shall require the
deposit of one-third of the probable value of the property.
(2) Where the plaintiff fails
to deposit one-third of the sale price or the probable value of the property
within the period fixed by the Court, his suit shall be dismissed.
(3) Where the plaintiff
withdraws the sum deposited under-sub-section (1), his suit shall be
dismissed.]
(4) Every sum deposited under
sub-section(l) shall be available for the discharge of costs.
(5) The probable value fixed under
sub-section (1) shall not affect the final determination of the price payable
by the pre-emptor.
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25. (1)
Where a Court passes a decree in favour of a pre-emptor on payment of a price
which is in excess of the amount already deposited by the pre-emptor, the
Court shall require to pre-emptor to deposit the remaining amount within
thirty days of the passing of the decree.
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Deposit or refund of
excess price.
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(2) Where a decree is passed for a
lesser amount than the amount already deposited by the pre-emptor, the Court
shall refund the excess amount to such pre-emptor.
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26.
No sum deposited in or paid into Court by a pre-emptor under the provisions
of this Act shall, while it is in custody of the Court, be liable to
attachment by any Civil, Criminal, Revenue or any other Court or a Revenue
Officer or a local authority.
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The sum depos- ited by
pre- cmptor not to be attached.
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27.
(1) Where in the case of a sale the parties are not agreed 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 the market value of the property as the price
to be paid by the pre-emptor.
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Fixing of price for
purposes of suit in case of sale.
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(2) If the Court finds that the
price was fixed in good faith or paid, it shall fix such price to be paid by
the pre-emptor.
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28.
For the purpose of determining the market value of a property, the Court may
consider the following, among other matters, as evidence of such value—
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Market value how to be
determined.
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(a)
the price of value actually
received or to be received by the vendor from the vendee;
(b)
the estimated amount of the average
annual net profits of the property;
(c)
the value of similar property in
the neighbourhood; and
(d)
the value of similar property as
shown by previous sales made in the near past.
29.
[ ]
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30.
Any party to a proceeding under this Act may, in addition to, or instead of,
an advocate engage an Alim who is qualified as such from a Deeni Madrasah
approved by the Provincial Government for this purpose.
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Appearance of Ulema in
addition to or instead of advocates.
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31.
The period of limitation for a suit to enforce a right of pre-emption under
this Act shall be [one
hundred and twenty days] from the date—
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Limitation.
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(a)
of the registration of the sale
deed; or
(b)
of the attestation of the mutation,
if the sale is made otherwise than through the registered sale deed; or
(c)
on which the vendee takes physical
possession of the property if the sale is made otherwise than through the registered sale deed or the mutation; or
(d) of
knowledge by the pre-ermptor, if the sale is not covered under paragraph (a) or
paragraph (b) or paragraph (c).
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32.
(1) The Registrar registering the sale deed or the Revenge Office attesting
the mutation of a sale shall, within two weeks of the registration or
attestation, as the case may be, give public notice in respect of such
registration or attestation.
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Notice.
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(2) The notice under sub-section (1)
shall be deemed sufficiently given if it be struck up on the main entrance of a
mosque and on any other public place of the village, city or place where the
property is situated:
Provided that if the property is
situated in a city, the notice shall also be given through a newspaper having
large circulation in such city.
(3) The charges for the notice
under sub-section (2) shall be recovered from the vendee by the Registrar or
the Revenue Officer, as the case may be, at the time of registration or
attestation of mutation.
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33.
Matters ancillary or akin to the provisions of this Act which have not been
specifically covered under any provision thereof shall be decided according
to Shari'ah.
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Matters ancillary or
akin to the provisions of this Act.
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34.
The provisions of the Code of Civil Procedure, 1908 (Act V of 1908), and the
law on evidence in vogue shall, mutatis mutandis, apply to the proceedings
under this Act.
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Application of the
Civil procedure Code and the law on evidence.
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35.
(1) The [Khyber
Pakhtunkhwa] Pre-emption Act, 1950 ([Khyber
Pakhtunkhwa] Act XTV of 1950), is hereby repealed.
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Repeal.
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(2)
In the cases and appeals filed under the Law referred to in subsection
(1) in which judgements and decrees passed by the Courts have become final,
further proceedings if any relating to such cases and appeals, shall,
notwithstanding the repeal of such law be governed and continued in accordance
with the provisions thereof.
(3) All other cases and appeals not
covered under sub-section (2) and instituted under the law, referred to in
sub-section (1) and which immediately before the commencement of this Act were
pending before a Court shall lapse and suits of the pre-emptors shall stand
dismissed, except those in which right of pre-emption is claimed under the
provisions of this Act.
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36.
Government may, in consultation with the Council of Islamic Ideology, by
notification in the official Gazette, make such rules as it may consider
necessary to carry out the purposes of this Act.
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Rules.
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