JUDGMENT MAZHAR ALAM KHAN MIANKHEL, J.---The appellant/tenant, being respondent in an ejectment petition under section 13 of the Urban Rent Restriction Ordinance, 1959, has impugned the concurrent findings of the two Courts below through instant second rent appeal whereby the learned Civil Judge-II-Illaqa Qazi exercising powers of Rent Controller Swat, vide his judgment dated 28-7-2008 accepted the ejectment petition of the present respondents, (petitioners in the ejectment petition), and directed the present appellant/tenant to hand over the possession of the house in question within two months to the respondents/landlords. Appeal of the tenant/appellant before the Court of Additional District Judge/Izafi Zilla Qazi-IV, Swat was dismissed vide his judgment and decree dated 19-12-2008 and ejectment order of the appellant was maintained.
2. The tenant/appellant besides other legal and factual pleas had also denied the relationship of the landlord and tenant. This being the second appeal in a rent matter under West Pakistan Rent Restriction Ordinance, 1959 which after promulgation of Ordinance IX of 1979 gave finality to order/judgment of District Court and further suit or appeal was barred by section 15(7) of the Ordinance ibid. So, at the very outset, question of maintainability of this second appeal was raised as a preliminary objection by the learned counsel for the respondents but the learned counsel then asked some more time to answer the query made by this Court vide its, order dated 24-4-2009 which reads as under:-- "The learned counsel was confronted with the proposition that whether under any Martial Law Regulation or Martial Law Order issued by the Chief Martial Law Administrator, the Governor was invested with powers/authority to legislate beyond the limits of the Province and that the legislation so made by him would extend ipso facto to PATA, he sought time to prepare the case on this point. Adjourned."
This case then was heard by this Court but was again fixed for rehearing for clarification of certain legal and factual points and was again heard on 6-9-2010.
4. Learned counsel for the appellant in support of his appeal submitted that this appeal would be maintainable as the Ordinance of 1979 ibid was extended to the territories of the N.-W.F.P. As the same was silent with regard to its extension in the PATA. By further elaborating his contention, he was of the view that if the same had any application in the PATA, then the same would have been specifically provided in the Ordinance or a special Regulation by the Governor would have been made. In support of his submissions, the learned counsel referred to the NAB Ordinance, 1999 which too was promulgated under the PCO-1 of 1999 and in Section 4 of the same, there was an in built provision of its extension to FATA and PATA.
5. As against that, the learned counsel for the respondent/landlords in support of his objection placed reliance on the judgment of this Court rendered in the case Muhammad Faqir v. Director- General, NAB reported in (PLD 2006 Peshawar 79) and submitted that this Ordinance of 1979 was promulgated by the Governor in pursuance of proclamation of the 5th day of July, 1977 read with C.M.L.A's Order 1 of 1977 and the Constitution of Islamic Republic of Pakistan was by then held in abeyance. When there was no Constitution, then there was no legal or constitutional bar on the extension of any law or Ordinance through a special regulation or notification. It lies in the discretion of the Governor to act in the manner he likes. So, in absence of provision of Article 247 of the Constitution, this Ordinance presumably would also extend to PATA and there was no need for a special regulation or in built provision in the Ordinance.
6. Counsel for the parties were heard only on the point of maintainability of instant appeal without entering into the merits of the case and record of the case was perused.
7. The perusal of the N.-W.F.P. Urban Rent Restriction (Amendment) Ordinance, IX of 1979 would reveal that the same was promulgated by the Governor of N.-W.F.P. In pursuance of the proclamation of the 5th day of July, 1977 read with the laws (continuance in force) Order, 1977 (C.M.L.A's Order I of 1977).
The said amendment Ordinance is silent with regard to its extension to PATA. This requirement is because of Article 247(3) of the Constitution of Islamic Republic of Pakistan, 1973. But by the time, the Constitution of 1973 ibid was held in abeyance by the above said proclamation. The provisions of Article 247 of the Constitution reads as under:-- "247. Administration of Tribal Areas.---(1) Subject to the Constitution, the executive authority of the Federation shall extend to the Federally Administered Tribal Areas, and the executive authority of Province shall extend to the Provincially Administered Tribal Areas therein.
(2) The President may, from time to time, give such directions to the Governor of a Province relating to the whole or any part of a Tribal Area within the Province as he may deem necessary, and the Governor shall, in the exercise of his function under this Article, comply with such direction.
(3) No act of [Majlis-e-Shoora (Parliament) shall apply to any Federally Administered Tribal Area or to any part thereof unless the President so directs, and no Act of [Majlis-e-Shoora (Parliament)] or a Provincial Assembly shall apply to a Provincially Administered Tribal Area, or to any part thereof unless the Governor of the Province in which the Tribal area is situate, with the approval of the President, so directs; and in giving such a direction with respect to any law, the President or, as the case may be, the Governor, may direct that the law shall, in its application to a Tribal Area, or to a specified part thereof, have effect subject to such exceptions and modifications as may be specified in the direction.
(4) Notwithstanding anything contained in the Constitution, the President may, with respect to any matter within the legislative competence of [Majlis-e-Shoora (Parliament)], and the Governor of a Province, with the prior approval of the President, may, with respect to any matter within the legislative competence of the Provincial Assembly make regulations for the peace and good governance of a Provincially Administered Tribal Areas or any part thereof situated in the Province.
(5) Notwithstanding anything contained in the Constitution, the President may, with respect to any matter, make regulations for the peace and good governance of a Federally Administered Tribal Areas or any part thereof.
(6) The President may, at any time, by Order, direct that the whole or any part of a Tribal Area shall cease to be Tribal Area, and such Order may contain such incidental and consequential provisions as appear to the President to be necessary and proper:-- Provided that before making any order under this clause, the President shall ascertain, in such manner as he considers appropriate, the views of the people of the Tribal Area concerned, as represented in tribal jirga.
(7) Neither the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area, unless [Majlis-e-Shoora (Parliament)] by law otherwise provides: Provided that nothing in this clause shall affect the jurisdiction which the Supreme Court or a High Court exercised in relation to a Tribal Area immediately before the commencing day."
The provisions of the above Article would make it clear that any laws would be extended to the areas of FATA or PATA by the President or the Governor respectively through special notification or regulation. This is the only way for the extension of laws to FATA and PATA under Article 247 of the Constitution. It is the Article 247 of the Constitution which provides authority to the President in case of FATA and the Governor in case of PATA to extend any law to such areas through special directives or Regulations. When Constitution itself is not in force and held in abeyance, then country and the Provinces are run by the Chief Martial Law Administrator and the Governors. The Governors of the Provinces promulgate the laws in accordance with the situation at the relevant time.
8. At the time of promulgation of the Ordinance of 1979 ibid, the Constitution of the country no doubt was held in abeyance. The provisions of Article 247 ibid were no more there. The administration of the Provinces including the tribal areas was run by the Governor. So any Ordinance or notification issued by the Governor would presumably be extended to the entire province including the PATA unless such extension is specifically barred in the relevant law. The compulsion of special notification/direction or Regulation as provided in Article 247 of the Constitution would only be there when the Provisions of Article 247 ibid are there. When there is no such compulsion as provided in the Article ibid, then it becomes the discretion of the Governor to act in the manner he likes. It can be through an in built provision extending such laws in the tribal area or there can be a denial of such extension to the tribal areas. In case of first situation i.e. Silence as in the Ordinance, 1979 ibid, then to my humble opinion, it would presumably be an extension of such laws to tribal areas. The provision of section 4 of NAB Ordinance (promulgated during the PC0-1 of 1999) contains in built provision of extension to FATA and PATA. Said in built provision has made it clear by leaving no room for doubt. Similarly specific denial of such extension would again leave no room for doubt. But silence in this regard in the Ordinance of 1979 ibid, in absence of the above two situations, would clearly mean that the same are applicable in the PATA.
Yet another reason for not providing specific provision for such extension could be that the parent law i.e. West Pakistan Urban Rent Restriction Ordinance, 1959 was already extended to PATA. So, this amendment Ordinance would in that context stands extended in PATA.
9. Article 1(2) of CMLA's Orders, 1977 would reflect that it extends to the whole of Pakistan. The territories of Pakistan have already been defined in the very first Article of the Constitution of Islamic Republic of Pakistan, 1973 which reads:-- "(1) The Republic and its territories.---(1) Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan, hereinafter referred to as Pakistan.
(2) The territories of Pakistan shall comprise-
(a) the Provinces of (Baluchistan), the (Khyber Pakhtunkhwa), the Punjab and (Sindh);
(b) the Islamabad Capital Territory, hereinafter referred to as the Federal Capital;
(c) the Federally Administered Tribal Areas, and (d) such States and territories as are or may be included in Pakistan, whether by accession or other were. (3) Majlis-e-Shoora (Parliament) may by law admit into the Federation new States or areas on such terms and conditions as it thinks fit."
The above description would further make it clear that the territories of Pakistan also include such States and territories as are or may be included in Pakistan. Then Article 246(b) of the Constitution of 1973 has defined the areas forming the PATA. So, it can be said that when under Article 3(2) of CMLA's Order 1977, in absence of the Constitution of Islamic Republic of Pakistan empowered the Governors of Provinces) to act on behalf of the Chief Martial Law Administrator in the entire Province would again certainly mean the Province including the PATA. So, this Court is clear in its mind to hold that such an Ordinance would be applicable to the whole of Province which includes the Provincially Administered Tribal Areas.
10. Yet another Ordinance, N.-W.F.P. Local Government 3rd Amendment Ordinance, 10 of 1979 is also silent with regard to its extension whether to the entire N.-W.F.P. Including PATA or otherwise. But the parent Ordinance i.e. N.-W.F.P. Local Government Ordinance, IV of 1979 was extended to PATA. So, the amended Ordinance as discussed above would presumably be extended or in absence of Article 247 of the Constitution, the same would be for Province as well as for PATA. Like this, there are many other Ordinances reflecting same picture. In absence of any specific provision regarding its extension would presumably mean that the same will extend to the whole of N.-W.F.P. Including PATA as discussed above. Reliance could also be placed on a judgment of Division Bench of this Court Muhammad Faqir v. Director General, National Accountability Bureau (N.-W.F.P.) Peshawar and 8 others (PLD 2006 Peshawar 79). Relevant portion of judgment is reproduced as follows:-- "(8) There can be no dispute that until the Constitution was revived, the President had unfettered power on strength of PCO-1 and Proclamation of Emergency Order to legislate through Ordinances.
(9) As during the period Ordinance was promulgated, followed by amendment through Ordinance XXIV on 5th of July, 2000, Article 247 of the Constitution was non-operative, therefore, it was not required that the Ordinance or the subsequent amendment made during the period when Article 247 of the Constitution was inoperative, the laws/Ordinances made or issued by the President should have been extended through a Regulation.
(10) Mere fact that some laws like N.-W.F.P. Local Government Ordinance was extended through Regulation would not mean that all Ordinances during the period when PCO was enforced and Constitution was not revived should have been extended through Regulation. The short reason would be that NAB Ordinance unlike N.-W.F.P. Local Government Ordinance, 2001 had in built provision of its extent of application to the entire country including F.A.T.A. And PATA."
11. So what has been discussed above, it can safely be held that Ordinance, 1979 in spite of absence of specific in built provision of its extension to PATA would presumably be extended to entire of the Province of N.-W.F.P. Including PATA. So, in this view of the matter, when the provisions of the Ordinance ibid stands extended to the areas also including PATA, as discussed above, instant second appeal of the tenant/appellant in view of the bar contained in amended section 15 of the Ordinance, 1959, would not be maintainable, hence dismissed as such with no order as to costs.