Sultan Khan Vs. Government of N.W.F.P

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HON:MR.JUSTICE AFTAB HUSSAIN CHIEF JUSTICE

HON:MR.JUSTICE ALI HUSSAIN QAZILBASH

HON: MR.JUSTICE CH.MUHAMMAD SIDDIQUE

HON:MR.JUSTICE MAULANA MALIK GHULAM ALI

HON:MR.JUSTICE MAULANA ABDUL QADDUS QASMI

HON:MR.JUSTICE MUFTI SYED SHUJAAT ALI QADRI

SHARIAT PETITION NO.2/1 OF 1983

Sultan Khan Versus The Govt, of NWFP.

For the Petitioner: Mr.Ghulam Mustafa Awan, Advocate.

For the Govt.of NWFP: Mr.Amirzada Khan, Assistant Advocate General.

For the Govt.of Punjab: Sheikh Riaz Ahmad, Advocate-General, Punjab.

Date of Hearing: 10-12-1983

Date of Decision:

AFTAB HUSSAIN, CHIEF JUSTICE: Section 4 of the N.W.F.P.Tenancy Act, XXV of 1950 provides that any occupancy tenant who at the commencement of this Act occupies any land as such on payment of the entire rent in cash or partly in cash and partly in kind shall become owner thereof on payment of the compensation to the landlord at such rate and within such period as may be prescribed by the Board of Revenue under this Section. It also provides that if the tenant fails to pay the compensation deter­ mined in accordance with this provision,the right of occupany shall be determined on payment of compensation by the landlord as determined and prescribed by the Board of Revenue in his behalf and the right of the tenant in the land shall vest

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in the landlord and he shall tie ent] ed to possession thereof free fron any— encumbrance or lease created by the tenant in respect of that land.

2.Rules were framed which fixed the period for payment of compensation as 18 months. It was later extended from time to time by executive orders upto the 30th of September, 1956. Subsequen­ tly another year was given by the NWFP Tenancy (Validation and Extension of Period For Payment of Compensation) Ordinance, 1969. On the 7th of July, 1982 Notification No.28771 Rev.IV/168-A was issued by the Government which contains the North West Frontier Province Tenancy (Fixation of Compensation to the Landlords) Rules,1981.

The rules contain the formula for assessment of compensation. Rule 5 provides that the compensation shall be payable either in lump sum or by instalments and the total amount shall be payable within 18 months.

3.The petitioner Sultan Khan, who is affected by these rules as an owner of land under tenancy occupancy/has challenged them as being repugnant to the Holy Quran and the Sunnah of the Holy Prophet on the ground that neither the Quran, nor the Sunnah allows the property of the landlord to be taken away from him and to be given to the tenant.

4.The learned counsel placed reliance on verses Q 2:188, Q 4:29 and some Ahadees.

5.The question of the scope of occupancy tenancy and its justification in Sharia as well

as the question of validity of Section A has been considered by this Court while examining the NWFP Tenancy Act, 1950. It may, however, be added that the learned counsel had, on instruction taken in Court from the petitioner, conceded that the occupancy tenancy right on the tenants were conferred by the petitioners' predecessors as a result of contract.

The creation of such right cannot be invalid.

6.The judgment was not recorded at the time of examination of the Tenancy laws since the Court was cognizant of the fact that it had to hear arguments on this petition. While writing the judgment on the Tenancy Act, arguments of the learned counsel were kept in view.

7.The main point to be determined is whether the government can extinguish occupany tenancy rights subject to payment of compesnation and confer owner­ ship right on the tenant. It has been held in the above judgment that Occupany Tenancy rights are partly ownership rights in the land and this is a beneficial legislation which tends to resolve all disputes arising out of the duality of ownership in the same land. This disposes of the petition which is therefore liable to be dismissed.

8.It may,however, be added that the learned counsel relied on the Quranic Injunctions that one should not squander the property of another in a wrong way and except in trade by mutual consent.

This would mean that nobody's property can be squandered except with his consent.

9.Firstly, the property is not being taken by the tenant except under the protection of a statute made for public benefit. Secondly, the

consent of the petitioner to that s\atjj££ is proved by his long silence for over a period of 32 years since the legislation was passed although he could challenge it in the High Court and the Supreme Court on grounds of violation of fundamental right of property. It is established proposition of law that the sukoot or silence is equivalent to consent.

10.The maxim about the consequence of consent is as follows

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11.Silence is considered equivalent to consent in cases where it is one's duty to speak or express his willingness. In this connection, the Prophet (PBUH) observed about the adult girl to whom was made an offer of marriage with a man named before her,that her silence is her consent (Hedaya Volume 1, page 294).

12.Section 67 of Mejella is also explanatory of this principle and is reproduced as under " To a man who keeps silence no word is imputed, but where there is necessity shown, silence is a declaration.

That is to say, it is not said of someone who keeps silence that he has said such a thing, but where there is reason why he shall speak, his keeping silence is regarded as an admission and a declaration" (Mejella Section 67)” .

13.Some instances of this rule are given in Sections 438,773 and 971 of Mejella.

14.Allama Tarablasi writes " Silence is considered consent in many cases like the silence of an adult girl in the contract of her marriage,

silence in contracts of hiring, \gi£<, agency, sale pre-emption, right, silence about the defect in the sold thing before the contract of sale etc".

(Mueenul Hukkam page 160, 161; Al-Ashbah Wal- Nazir by Ibn-e-Nujaim, page 154).

15.On this analogy the inaction of a man in a matter where specific remedy is provided in law shall amount to his consent since if he had any grievance, he would have gone for its redress to the Court . Sharia principle of sukoot (silence) is thus analogous to the present principle of acquiescence.

16.Such a remedy was open to the petitioner under the Constitution of 1956 upto the 8th of October, 1958 when Martial Law was imposed. It was again renewed in 1964 after the fundamental rights, including such rights to property were added in 1964 to the Constitution of 1962. The remedy could be sought under the Constitution of 1973 till the 5th of July, 1977. The silence of the petitioner brings his case within the scope of & in Q 4:29.

The petition is dismissed.

CHIEF JUSTICE

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JUDSE-IV JUDGE-V

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