JAMAL KHAN MANDOKHAIL, J.---In the above titled petitions, and identical point is involved, therefore, we the 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 Learned counsel for the petitioner stated that the Regulation is no more in field and it has been replaced by the Balochistan Urban Rent Restriction Ordinance, 1959 (called hereinafter "the Ordinance"). He made a reference to section 21 of the Ordinance, pursuant to which, the Regulation has been repealed.
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 is 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 precisely 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 Restriction 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 Regulation was repealed from the urban areas.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 instruction 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 present, 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, the rent matters are being tried under the provisions 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 the 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 within 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 regulation 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 establishment 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 powers 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. Another 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 established 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 the 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 Regulation-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 juice. 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 precede 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 the Court should be returned for proper presentation before a competent Court(s).
' Copy of this judgment is sent to all the concerned quarters for information.