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Civil Petition for Special Leave to Appeal No. 23‑P of 1978, decided on lath May 1978.
(On appeal from the judgment and order of the Peshawar High Court, Peshawar dated 5th April 1978 in R. S. A. No. 12 of 1978).
West Pakistan Urban Rent Restriction Ordinance (Application to Certain Tribal Areas of the North West Frontier Province) Regulation) (I of 1973)
‑‑ S. 3--'Urban area"‑Expression "urban area" as defined in S. 3 Means such area as Government may by notification in official Gazette declare to be an urban area‑West Pakistan Ordinance VI of 1959, held, not applicable to any Tribal Area unless notification to such effect issued by Government.‑[Words and phrases].
(b) West Pakistan Urban Rent Restriction Ordinance (Application to Certain Tribal Areas of the North‑West Frontier Province) Regulation (I of 1973)‑
‑‑ S. 3 read with Transfer of Property Act (IV of 1882), S. 106 Notice‑Section 3 of Regulation extended only such Acts as were enforced in N.‑W. F. P. immediately before commencement of Regu lation I of 1973‑Transfer of Property Act (IV of 1882) not being one of Acts enforced in N ‑W. F. P. immediately before commencement of Regulation, provision of notice as required by S. 106, Act IV of 1882, held not a mandatory requirement.‑[Notice],
(c) Constitution of Pakistan (1973)‑
‑‑ Art. 185(3)‑Contention raised before Supreme Court not agitated before District Judge but abandoned, held, could not be raised at leave to appeal stage.
J. D. Akbarj4 Advocate‑on‑Record for Petitioners.
Ml. Shafi Khan. Advocate and S. Safdar Hussain, Advocate‑on‑Record for Respondents.
Date of bearing: 14th May 1978.
.‑This petition is directed against the order of Peshawar High Court dated 5th of April 1978, by which R. S. A. No. 12 of 1978 was dismissed in limine.
Respondent No. 1 is the owner of Mandi" situate in village Batkhela Bazar, Malakand Protected Area. He let it out to the petitioner for 5 years on yearly rent of Rs. 2 900. On the expiry of this period he demanded its ' vacation by notice but the petitioner declined to hand over its vacant posses sion. Instead he let out a portion of it to respondents 2 to 6. Thereupon, the first respondent instituted a suit for possession against the petitioner and others in Court of Civil Judge, Malakand at Batkhela, which was decreed on 0th of July 1977. The first appeal failed as it was dismissed by the District Judge, Malakand, by Order dated 28th of February 1978. The second appeal o the High Court met the same fate.
In seeking leave to appeal the petitioner contended that by Regulation No. 1 of 1973, enforced on 31st of March, 1973, the West Pakistan Ordinance VI of 1959 was extended to the Malakand Protected Area and, therefore, as village Batkhela Bazar was being administered by the Peoples Town Comm ittee, it was an urban area as defined in the Ordinance; and as such, the Civil court had no jurisdiction to entertain the suit for possession. But this contention omits to notice that section 3 of the Regulation modifies the expression "urban area" to mean such‑ area as the Government may by notification in the official Gazette declare to be an urban area. Therefore, that definition of urban area would be not applicable but a further ‑notification declaring it to be an urban area is a mandatory requirement of this section and until such time as it is not issued the Ordinance has no application. Accordingly, this contention has no force.
It was next contended that by Regulation No. 2 of 1974 promulgated on 29th of May 1974, the Transfer of Property Act was extended to the Malakand Protected Area and, therefore, notice as required by section 106 had to be served in the manner prescribed therein without which the suit for possession could not be decreed. This contention is misconceived as only such Acts as were enforced in the N.‑W. F. P. immediately before the commencement of this regulation were extended by section 3 of the regulation: Transfer of Property Act was not one of such Acts which was in force in the N: W. F. P. on the date of promulgation of this regulation; and, therefore, the provision of notice was not a mandatory requirement. This contention was even otherwise abandoned before the District Judge as only the question of jurisdiction was raised and contested. It could not, therefore, be raised at the leave stage.
'The petition has no force and is dismissed.
Petition dismissed.
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