AHMAD HASAN AND Another vs MUHAMMAD DARAZ AND ANOTHER

ORDER

KARAM ELAHEE CHAUHAN, J.-The dispute in this case is about a shop situated in village, Butkhela, Malakand Protected Area. Shah Raz Khan and Muhammad Daraz (hereinafter called the plaintiff's landlords), filed a civil suit for obtaining its possession by way of ejectment from Ahmad Hassan and Fazal Azim (hereinafter called as defendants tenants). The suit was decreed by the Civil Judge, Butkhela on 2-1-1978. The defendants filed an appeal but without any success as the same was dismissed by the District Judge, Malakand at Butkhela on 14-3-1978. The defendants filed a revision under section 115 of the Civil Procedure Code which also failed and was dismissed by a learned.

Single Judge of the Peshawar High Court on 5-4-1978. The defendants have come up in a petition for special leave to appeal to this Court.

2. Learned counsel for the petitioners referred to Article 261 of the Interim Constitution arid submitted that as laid down therein, in Federally Administered or Provincially Administered Tribal Areas, a law would apply only when the President or with the approval of the President, the Governor of a Province respectively so directs. In exercise of this power the Governor of the North- West Frontier Province (with the previous approval of the President) on 31-3-1978 promulgated the West Pakistan Urban Rent Restric--petition Ordinance Application to Certain Tribal Areas of the North-West Frontier Province Regulation I of 1973. Subsection (2) of section 1 of this Regulation stated that it shall come into force at once. Subsection (3) stated "it extends to the Tribal Areas of Chitral, Dir, Kalat, Swat and Malakand Protected Area". Section 3 of the Regulation was headed as "Application of West Pakistan Ordinance VI of 1959" and laid down that", The West Pakistan Urban Rent Restriction Ordinance, 1959 (West Pakistan Ordinance VI of 1959) hereinafter referred to as the Ordinance and so far as may be all rules, notifications and orders made or issued there under shall apply to the Tribal Areas, to which this Regulation extends, subject to the modification that the expression "Urban Area" in the Ordinance shall mean such area as Government may by notification in the official Gazette declare to be an Urban Area". Section 4 was headed as "Authority to exercise powers etc." and laid down that where under the Ordinance or under any rule, notification or order made or issued there under any power, function or duty is to be exercised, performed or discharged by any person or authority, such power, function or duty shall be exercised, performed or discharged by such person or authority as Government may, by notification in the official Gazette appoint. Learned counsel argued that if all these provisions are read together it will appear that the West Pakistan Urban Rent Restriction Ordinance VI of 1959 became applicable to Malakand Protected Area. He further submitted that as laid down in subsection (2) of section 1 of the Ordinance, it extended to all the "Urban Areas" mentioned therein. The argument of the learned counsel was that the word "Urban Area" was defined in clause. (1) of section 2 of the Ordinance so.

As to mean any area Administered by a Municipal Corporation, a Municipality, a Municipal Committee, a Town Committee or a Notified Committee. Learned counsel argued that Butkhela was a "Town Committee" within the contemplation of the aforesaid term as used in the North-West Frontier Province, Local Government Ordinance III of 1972 which was extended to Malakand Protected Area by the North=West Frontier Province Regulation I of 1972 and therefore, it was an Urban Area within the meaning of section 2 (j) of the Ordinance with the result that the said Ordinance was fully operative in that area and as laid down in that Ordinance, only a Rent Controller and not a civil Court as such could deal with a dispute of the present kind between a landlord and a tenant. The contention has no merit. Clause (3) of Article 261 of the Interim Constitution under which Regulation I of 1973 was promulgated clearly stated that laws could applied to a Tribal Area subject to such exceptions and modifications a may be specified in the relevant direction on the subject. It was in keeping with this, that when Regulation I of 1973 was made applicable to the Malakand Protected Area or to similar other areas specified thereunder, it was clearly laid down in section 3 of the Regulation that the application of West Pakistan Urban Rent Restriction Ordinance was "subject to the modification that the expression Urban Area in the Ordinance shall mean such area a Government may by notification in the official Gazette declare to be a Urban Area "This exception was created despite the fact that the term "Urban Area" already stood defined in section 2 I j) of the Ordinance. Reading I this way, it becomes clear that when section 3 of Regulation I of 1973 laid down that it shall apply to an "Urban Area" it meant such area which was t be so specified by the Government namely the Government of the North-West Frontier Province by the means of a notification issued thereunder. As n such notification was issued declaring the area where the property in dispute is situated as an Urban Area under Regulation I of 1973, therefore to argue that the West Pakistan Urban Rent Restriction Ordinance applied to cases in hand in the context as explained was not correct. We hold accordingly.

3. The next point argued by the learned counsel was that the Transfer of Property Act IV of 1882 was extended to the Malakand Protected Area by the North-West Frontier Province Regulation No. 2 of 1974. The suit of the plaintiff was based on a lease deed and according to the learned counsel, it could not have been instituted in a civil Court without issuing prior notice as contemplated under sections 106 and 116 of the aforesaid Act which notice the learned counsel submits, was not issued in this case. The point was not raised before the subordinate Courts and the High Court refused to allow the same to be raised before it for the first' time in Revision under section 115, C. P. C. We find no error in the view taken by the High Court on the subject and do not feel any justification to permit this factual controversy to be raised in such a belated manner.

4. The result is that the petition has no merit and is dismissed in limine.