P L D 2013 Balochistan 62
Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ
ABDUL HALEEM and others ---Petitioners
Versus
MIR ZAHID and others ---Respondents
Constitutional Petitions Nos. 897 of 2007 and 713 of 2010, decided on 24th January, 2013.
British Balochistan Rent Control Regulation (II of 1945) ---
----S. 1 ---West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959), S. 21 &
Preamble ---West Pakistan Civil Courts Ordinance (II of 1962), S. 3 ---Constitution of Pakist an,
Art. 199 ---Constitutional petition ---Redundant legislation ---Effect ---Eviction applications filed
against petitioners under the British Balochistan Rent Control Regulation, 1945 were allowed by
Trial Court ---Contention of the petitioners was that Briti sh Balochistan Rent Control Regulation,
1945 was no longer in field and therefore, order of Trial Court was illegal ---Contention of the
respondents was that the West Pakistan Urban Rent Restriction Ordinance, 1959 had not been
extended to Tribal Areas, to which the present cases pertained, therefore, the British Balochistan
Rent Control Regulation, 1945 was still applicable ---Validity ---British Balochistan Rent Control
Regulation, 1945 was promulgated in the year, 1945 and extended to the whole of British
Balochistan, and the Chief Commissioner was assigned the power to extend the said regulation
to other areas and was authorized to make Rules ---After the creation of Pakistan, and upon
establishment of the province of Balochistan, the areas known as British Balochistan were no
longer in existence, and therefore the British Balochistan Rent Control Regulation, 1945 ceased
to hold field ---Office of the Chief Commissioner under the said regulation had been abolished
and no authority was left to extend the said r egulation to the new province ---Proceedings under
the British Balochistan Rent Control Regulation, 1945 were to be conducted by the courts
established under the British Balochistan Courts Regulation, 1938 which had also ceased to exist
as presently, the co urts were established under the Civil Courts Ordinance, 1962 for the civil
matters ---Courts were, therefore, not competent to try rent matters under British Balochistan
Rent Control Regulation, 1945 ---Proceedings under the British Balochistan Rent Control
Regulation, 1945 were coram non judice ---High Court observed that West Pakistan Urban Rent
Restriction Ordinance, 1959 was applicable to all urban areas and there would be no harm, with
the approval of the Governor, to extend the same to Tribal Areas to pr ovide the people of such
areas a mechanism in rent matters ---High Court held that no court or Rent Controller shall
proceed in matters under the British Balochistan Rent Control Regulation (II of 1945) and
directed the Secretary Law and Parliamentary Affai rs, of the Provincial Government to
immediately take steps for extension of West Pakistan Urban Rent Restriction Ordinance, 1959
to Tribal Areas within a period of thirty days ---Constitutional petitions were allowed,
accordingly.
Abdullah Khan Kakar for Petitioner.
Tahir Ali Baloch and Noor Khan Achakzai for Respondents Nos. 1 and 2.
Abdul Aziz Khan Khilji, Addl.A.G. Official Respondent:
W.N. Kohli: Amicus curiae.
Date of hearing: 27th September, 2012.
ORDER
JAMAL KHAN MANDOKHAIL, J. ---In the above titled petitions, an identical point is
involved, therefore, we intend to dispose of both of them through a common judgment.
2. Precisely stated facts of the cases are that two eviction applications were filed by the
respondents in both the petitions against the petitioners/tenants, separately before the Court of
Rent Controller/Senior Civil Judge, Loralai, under the British Balochistan Rent Control
Regulation -II, 1945 (called hereinafter "the Regulation"). An objection was raised by the
petitioners that the Regulation is no more in field, therefore, the applications are not competent.
The trial Court, after conclusion of the case, allowed the eviction application (in C.P. No.897 of
2007) by means of the order and decree dated 7th August, 2007 , however disallowed the
objection. Similarly, the objection of the petitioner in Constitutional Petition No.713 of 2010 was
also disallowed by the trial Court on 29th October 2010, hence these petitions.
3. Learned counsel for the petitioner stated that the Regulation is no more in field and it has
been replaced by the Balochistan Urban Rent Restriction Ordinance, 1959 (called hereinafter
"the Ordinance"). He made a reference to section 21 of the Ordinance, pursuant to which, the
Regulation has been repe aled.
4. Learned Additional Advocate General and the learned counsel for the respondents
opposed the contention and stated that the Balochistan Urban Rent Restriction Ordinance, 1958,
has not been extended to the tribal areas, therefore, the regulation i s still applicable in those
areas.
5. We have heard the learned counsel for the parties and have gone through the relevant
provision of law. Before dilating upon the objections about the applicability of the Regulation, it
would be appropriate to precise ly throw some light upon the historical background. Before the
creation of Pakistan, the areas covered within the boundaries of the present Sibi Division, Quetta
Division and Zhob Division were known as "the British Balochistan", controlled by the Chief
Commissioner. In 1945, the British Government promulgated the Regulation to regulate the rent
matters in the British Balochistan. After the independence in 1947, the British Balochistan
became a part of Pakistan. In 1958, the West Pakistan Urban Rent Restric tion Ordinance, was
promulgated. It was extended to all the urban areas, except the tribal areas. Pursuant to section
21 of the Ordinance, the Regulation was repealed from the urban areas. Thus, in respect of the
rural and tribal areas, there was no instru ction regarding the rent matters. In 1974, the province
of Balochistan was created, which comprises of the areas of previous British Balochistan and
also the Balochistan State Unions, i.e. Kalat State, Mekran State, Kharan State and Lasbella
State. At pres ent, the Ordinance is applicable to the urban areas of the Balochistan, except the
tribal areas. It is pertinent to mention here that in the tribal areas, the rent matters are being tried
under the Regulation, whereas in the rural areas of the province, th e rent matters are being tried
under the previsions of the Transfer of Property Act.
The question before us is to consider as to whether the Regulation is applicable in the
trial areas? In this behalf, it would be appropriate to reproduce section 1 of t he Regulation as
under:
"1. Short title extent and commencement. -(1) This Regulation may be called the British
Balochistan Rent Control Regulation, 1945.
(2) It extends to whole of British Balochistan.
(3) It shall come into force in such area wi thin British Balochistan on such dates as the
Chief Commissioner may, from time to time, by notification in official Gazette, direct.
(4) When directing under subsection (3) that this Regulation shall come into force in any
areas, the Chief Commissioner may further direct that this Regulation shall not apply to any
premises in that area."
The regulation was promulgated in 1945 and it was extended to the whole of the British
Balochistan. The Chief Commissioner was assigned the power to extend the regul ation to such
areas from time to time. Similarly, under Section 12 of the Regulation, the Chief Commissioner
was authorized to make rules for the purpose of carrying out the provisions of the Regulation.
After Pakistan came into being and upon the establis hment of the province of Balochistan, the
areas known as the British Balochistan is no more in existence, therefore, the Regulation, which
was promulgated only to such areas, ceased to hold the field. Similarly, the post of the Chief
Commissioner having po wers under sections 1 and 2 of the Regulation, has been abolished.
Since no authority was left to extend the Regulation to the newly established province or to carry
the provisions of the Regulation, therefore, the Regulation remained non -functional. Anoth er
important aspect of the matter is that the proceedings under the Regulation were to be conducted
by the Courts, established under the British Balochistan Courts Regulation (Regulation VII of
1939), which too ceased to exist. Presently, our Courts are es tablished under the Civil Courts
Ordinance 1962 for the purpose of the civil matters and the Rent Controller, is established under
the Ordinance 1959, for the purpose of the rent matters, therefore, the present Courts/Controllers
are not competent to try t he rent matters under the Regulation - II of 1945.
There is no order, notification or instruction on behalf of the Government with regard to
the existence, extension or applicability of the Regulation in the tribal areas, in absence whereof,
the Regulati on-II is not operational. We are amazed and astonished as to how and under what
authority, the Courts in the tribal areas are trying the rent matters under the redundant
Regulation. Since the Regulation is non -existent, rather stands abolished, therefore, the
proceedings under the Regulation before the Courts are coram non judice. It is noted with grave
concern that the lawmakers of the province have never shown their interest in this behalf.
Though an enactment of the Parliament is not directly applicable to the tribal areas, but with the
approval of the Governor, it can be extended to the Provincially Administrated Tribal Areas
(PATA). The Balochistan Urban Rent Restriction Ordinance 1959, has been enacted by the
Parliament, which is applicable to all the urban areas in respect of the rent matters. There will be
no harm by extending it to the tribal areas as well, after the approval of the Governor, to provide
a mechanism to the people of the tribal areas in the rent matters, particularly, at present, when in
all the tribal areas of Balochistan, regular civil Courts are functioning.
Thus, in view of above the petitions are allowed. The impugned orders dated 7th August
2007 and 29th October 2010, respectively passed by Senior Civil Judge/Rent Controller, Loralai
are set aside. It is held that no Courts/Controller shall proceed the matters under the British
Balochistan Rent Control Regulation II of 1945. The Secretary, Law and Parliamentary Affairs,
Government of Balochistan, is directed to immediately take steps for extension of the
Balochistan Urban Rent Restriction Ordinance 1959, to the tribal areas within a period of 30
days with a fortnight progress report to the Registrar of this Court for our perusal in Chamber.
All the rent matters pending before th e Court should be returned for proper presentation before a
competent Court(s).
Copy of this judgment be sent to all the concerned quarters for information.
KMZ/23/Bal. Petitions allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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