' SARDAR SAID MUHAMMAD KHAN, C.J.--- The common law points involved in the above-titled appeals are to be resolved by this single order.
2. It may be observed that as some common important legal points were involved, Full Bench was constituted for resolving the same. After the resolution of the aforesaid points, if necessary, small Benches may be constituted for hearing and disposal of the other points involved in the appeals.
3. The brief facts, which resulted in the Constitution of larger Bench, are that by virtue of an amending Ordinance, known as the Mirpur Development Authority (Amendment) Ordinance, 1984 (hereinafter shall be called the Amending Ordinance of 1984), an amendment was made in the Mirpur Development Authority Ordinance, 1974 (hereinafter shall be called the Ordinance of 1974), whereby certain developed area of Mirpur Town was to be given under the control of the Municipal Committee, Mirpur, on the terms and conditions which were to be laid down by the Azad Jammu and Kashmir Government through a notification to be published in the Government Gazette.
Consequently, in pursuance of the said amendment, the Government Notification No,Coord-CS- 265-270/85, dated 14-2-1985 (hereinafter shall be called the notification of 1985) was issued by the Government whereby the area of the Mirpur Town, mentioned therein was given under the control of the Municipal Committee, Mirpur. The said amending Ordinance became the Act of the Le,gislative Assembly in the year 1987, Some disputes arose with regard to the allotments made by the Municipal Committee of the Town (subsequently became Corporation) and the aggrieved persons filed the writ petitions in the High Court. The High Court held in the impugned judgments, particularly in the judgment entitled Mumtaz Ali v. Mayor. Municipal Corporation, Mirpur and others (Writ Petition No,150 of 1998) that no plots could be created by the Municipal Committee or the Corporation in the area which was transferred to it in pursuance of the amending Ordinance of 1984 and the Government Notification of 1985, and that some of the regulations known as the Municipal Committee Regulations for Development and Disposal of Plots/Estate, 1985 (hereinafter shall be called the Regulations of 1985), being violative of section 61 of the Azad Jammu and Kashmir Local Government Act, 1990 (hereinafter shall be called the Local Government Act, 1990) are void and have no legal consequence. Consequently, the arguments were advanced on the following points by the learned counsel for the parties:--
(1) Whether the Municipal Committee or the Corporation, Mirpur, was legally competent to create new plots in the area which was handed over to it in pursuance of amending Ordinance of 1984 and the Government Notification of 1985; and
(2) Whether the Regulations of 1985 are violative of the Local Government Act, 1990, and, thus, are of no legal consequence, if so, to what extent.
' Ch. Muhammad Azam Khan, Advocate, the learned counsel for the appellants, arguing on behalf of the appellants, has submitted that the High Court was not legally justified in holding that the area which was transferred to the Municipal Committee or the Corporation (hereinafter shall be called the Municipal Committee for the purpose of this order) could not create new plots in the area transferred to it. The learned counsel has traced out the legal history of Mirpur Town by referring to the New Mirpur Town. Allotments of Lands Act, 1964 (hereinafter shall be called the Act of 1964) and thereafter to the Ordinance of 1974. He has maintained that powers of preparation of schemes, development and creation of plots etc. Vested in the authorities constituted under the aforesaid statutes and the concerned Local Government Bodies had only limited functions to perform before the transfer of the said area in view of the provisions contained in the Ordinance of 1974. He has maintained that after the amendment of 1984 in the Ordinance of 1974 and the Government Notification of 1985, all the powers which were previously exercised by the Mirpur Development Authority became exercisable by the Municipal Committee. Thus, according to the learned counsel by virtue of the amended Ordinance of 1974, particularly section 3 of the Ordinance, the Municipal Committee enjoys the powers of allotment, cancellation transfer of proprietary rights etc. Which were previously enjoyed by the Mirpur Development Authority and those powers are inclusive of the power to create additional plots in the area transferred. The learned counsel .Has also argued that by virtue of paragraphs 23 and 24 of the Schedule to the Local- Government Act, 1990, the Municipal Committee enjoys all powers including the preparation of master plan and development schemes etc. He has particularly referred to paragraph 24(3)(a) of the Schedule and has argued that the Municipal Committee has the power to make plots of a site under its control. He has contended that the power of making plots by the Committee is not taken away by the proviso to section 61 of the said Act as the Schedule to an Act is part of the same. The learned counsel has contended that the aforesaid proviso does not, detract from the powers of the Municipal Committee which are vested in it by virtue of amendment of section 3 of Ordinance of 1974. Thus, he has contended that the High Court has also committed an error in holding that the Regulations of 1985 which envisage the creation or allotments of new plots in the area entrusted to the Municipal Committee are violative of the Local Government Act, 1990, and have no legal force. The learned counsel has argued that the Ordinance of 1974 and the Local Government Act, 1990, are to be read jointly while ascertaining the powers of Municipal Committee, Mirpur, regarding the creation of additional plots in the area given under its control. He had submitted that the interpretation of the High Court placed on proviso to section 61 of the Local Government Act, 1990, renders various provisions contained in the Ordinance of 1974 and the Local Government Act, 1990, as nugatory whereas it is the basic principle of interpretation of law that contradiction in different provisions of a statute are to be reconciled until and unless it is not possible to do so.
5. Ch. Muhammad Anwar and Mian Muhammad Saeed, Advocates, supported the contentions raised by Ch. Muhammad Azam and have further laid stress on the point that powers to create new plots have been specifically given to the Municipal Committee under paragraph 24(3)(a) of 5th Schedule to the Local Government Act, 1990. They have further submitted that all the functions which were previously performed by the Mirpur Development Authority were transferred to the Municipal Committee and, thus, it is not correct to suggest that the Municipal Committee was not empowered to create new plots in the area which was given under its control.
6. In reply, Mr. Muhammad Riaz Inqalabi, Advocate, the learned counsel for the respondents, has controverted the arguments advanced on behalf of the learned counsel for the appellants, and has contended that according to proviso to section 61 of the Local Government Act, 1990, the Municipal Committee is debarred to create new plots in the open and other places in the area under its control. The learned counsel for the respondents has argued that a proviso to a section is an exception to its substantive provision and is a part of the same, the main section should be read alongwith the exception envisaged in the proviso, the provisions of section cannot be considered independent of the proviso. According to the learned counsel, the object of the proviso is to take out from the main section a class or category of cases to which the main section does not apply.
He has laid stress that a proviso is always to be strictly construed while interpreting a statutory provision. He has relied upon the authorities reported as Pramatha Nath Chowdhury v. Karim Mondal PLD 1965 SC 434, Muhammad Hussain Patel v. Gaffar Wall Muhammad PLD 1972 Kar. 421, Gulsher Khan v. The Province of West Pakistan PLD 1975 Lah. 722, Muhammad Anwar v. Messrs Associated Trading Co. Ltd. 1988 CLC 1462 and Rahim Bux v. The State PLD 1986 Kar.
224. The learned counsel has further contended that in view of the aforesaid proviso to section 61 of the Local Government Act, 1990, the Municipal Committee is not competent to create new plots in open and other places, on the pretext that a particular place is "awkward" or an "open place". The learned counsel has further argued that the scheme of the amended Ordinance of 1974 does not envisage the creation of plots in the area handed over to the Municipal Committee by preparing supplementary schemes. He has submitted that neither amended section 3 nor the Government notification, whereby the area was handed over to the Municipal Committee, stipulates the creation of new plots by the Municipal Committee. The learned counsel has maintained that the provision to section 61 of Local Government Act, 1990, places embargo on the powers of the Municipal Committee to create new plots in "open and other places". Thus, there is no question of creating new plots and allotting the same by making any provisions in the Regulations of 1985 according to which the places described as "open", "awkward" and "rejected" can be allotted by the Municipal Committee.
7. We have given due consideration to the questions in the light of the arguments advanced at the Bar. It may be pointed out that the Azad Jammu and Kashmir Mirpur Development Authority Ordinance, 1974, is a special statute which deals with a specified area; i,e, commonly known as Mirpur Town. The perusal of the aforesaid Ordinance, reveals that before its amendment in the year 1984, the Mirpur Development Authority was the sole authority to prepare development schemes etc. And the Municipal Committee had limited powers which were subject to the approval of the Mirpur Development Authority, as is evident from the provisions contained in sections 12, 16 and 19 of the Ordinance of 1974. It is important to point out here that despite the said amendment, the aforesaid sections were not amended and remained as before. Thus, the aforesaid powers of the Municipal Committee remained limited even after the amendment. After handing over of certain area to the Municipal Committee by virtue of aforesaid amendment and the Government notification, the powers of the Municipal Committee regarding said area are circumscribed by the amended provisions of section 3 of the Ordinance of 1974 and the notification, dated 14,2-1985.
Thus, it can be said that after handing over the control of certain area to the Municipal Committee, it would have all those powers which vested in the Mirpur Development Authority, the handing over the control of certain area would not automatically invest the Municipal Committee with the powers which were available to the Mirpur Development Authority because no such provision has been made in the amended Ordinance of 1974. The other statute which deals with the powers of Municipal Committee is the Local Government Act, 1990. It may be pointed out that the said Act, is not specifically meant for the Mirpur Town but deals with all the local bodies, including the other Town Committees and the Corporations of the State. In other words, the provisions contained in the aforesaid Act would be operative in relation to Mirpur Town subject to the amended Ordinance of 1974 which is a special law meant for the development etc. Of the Town. It is well-settled principle of law that when there are more than one statutes dealing with the same subject-matter, the provisions contained in the special statute would prevail against the provisions of a general statute on the same subject. Thus, the powers which the Municipal Committee would enjoy in relation to the area which was handed over to it after the amendment of 1984 and the notification of 1985, are to be judged in view of provisions contained in the amended Ordinance of 1974 rather than the general provisions contained in Local Government Act, 1990. However, if a particular situation is not covered by the amended Ordinance of 1974, the provisions contained in the Local Government Act, 1990 would be applicable to such a situation, provided those do not offend against the provisions contained in Ordinance, 1974. For elucidating the matter, it would be expedient here to reproduce below the amended section 3 of Ordinance of 1974:-- "(1) The Government may, from time to time, by notification in the Official Gazette, declare any part or parts of Mirpur District to be Specified Area.
(2)(a) That the Mirpur Development Authority shall transfer the already developed areas of the Mirpur Town to the Municipal Committee on such terms and conditions as agreed upon by the Mirpur Development Authority and the Municipal Committee, Mirpur.
(b) In case any dispute arises between Mirpur Development Authority and Municipal Committee, Mirpur the matter shall be referred to the Government whose decision shall be final.
(3) The terms and conditions of the transfer shall be notified by the Government in the Government Gazette.
(4) All the powers of allotment cancellation, transfer of proprietary rights and other matters in these areas shall vest with the Municipal Committee after compliance with (2) and (3) above.
(5) Notwithstanding anything contained in this Ordinance or in any other law any such notification as aforesaid may be made so as to be retrospective to any day not earlier than the first day of June, 1974, and where a notification is so made, the provisions of this Ordinance shall, in so far as they affect the Areas Specified apply as if this Ordinance was promulgated on the day to which the notification is made retrospective."
8. The perusal of the above provisions reveals that under subsection (3) of section 3 of the Ordinance, the powers which are to be exercised by the Municipal Committee under subsection (4) of section 3 became available only after the notification was issued by the Government under subsection (3) on 14-2-1985. It is pertinent to note that under subsection (2)(a) of section 3, only "developed area" of Mirpur Town could be transferred to the Municipal Committee, the matter is further clarified by the notification of 1985 which stipulates that the area which was to be transferred to the Municipal Committee but was not yet fully developed, the development work should be completed as soon as possible to facilitate the transfer of the same to the Municipal Committee. Evidently, only an area which was already developed could be handed over to the Municipal Committee. It is for this reason that under subsection (4) of section 3, there is no stipulation of making plots in the area transferred to the Municipal Committee and the powers which are vested in the Municipal Committee related only to the allotments, cancellation and transfer of proprietary rights of the plots already in existence. The expression "other matters in these areas" used in subsection (4) would mean only the matters which are akin to the allotment, transfer, cancellation etc. Of the plots and not the power of creation of new plots in the area which had been already developed. Therefore, irrespective of the proviso to section 61 of the Local Government Act, 1990; the Ordinance of 1974 does not invest the Municipal Committee with the powers to create new plots in "open and other spaces" which may be existing in the area handed over to it. Even if it is assumed for the sake of argument that the developed area given under the control of the Municipal Committee was otherwise developed within the meaning of subsection (2)
(a) of section 3 but the plots were not marked over the same, the Municipal Committee would be competent to mark the plots on a site but it is not empowered to create new plots in the "open and other spaces" of the area where plots had been already marked as envisaged under the proviso to section 61 of the Local Government Act, 1990, the new plots cannot be "created" on the one pretext or the other, i,e, describing a place as an "awkward" or a 'rejected" etc. As has been done in the Regulations of 1985. The proviso to section 61 of the Local Government Act, 1990, shows that the prohibition with regard to the creation of plots in the "open and other spaces" presupposes the existence of a master plan of the area which was prepared by the Mirpur Development Authority previous to handing over of the area to the Municipal Committee. Thus, the creation of new plots by the Committee is not permissible in the said area. For convenience, the relevant part of section 61 of the Local Government Act, 1990, is reproduced as under:-- "61. Power to dispose of plots/land.--- (1) A Municipal Committee may, retain, or may lease, sell, exchange, cancel the allotment, issued by it, rent out or otherwise dispose of any plot or land vested in it, by the Government, Mirpur Development Authority, in the prescribed manner: ' Provided that the Municipal Committee shall not---
(i) create new plots in open and other spaces;
(ii) deviate/encroach upon limits laid down in the Master Plan;
(iii) interference with the plots reserved for environmental, Government and other specified purposes; (2)
(3)
The provisions of proviso, reproduced above, clearly show that the Municipal Committee is prohibited to create new plots in "open and other spaces" meaning thereby that the "spaces" envisaged are those which existed in the area of which the master plan had already been prepared and the plots had been marked by the Mirpur Development Authority or any other competent Authority. The aforesaid restrictions have been placed so as to avoid the deviation from the master plan and spoiling of the environmental and geographical atmosphere of the town. As stated earlier, those provisions of Local Government Act, 1990, which offend against the provisions contained in the Ordinance of 1974, would not prevail against the provisions of the Ordinance of 1974, which is a special law; for instance the provisions in the 5th Schedule to the Local Government Act, 1990, whereby the plots can be created by the Municipal Committee would not hold true in case of Mirpur Town rather the said provisions being general in nature would apply to the Towns where special law, like the Ordinance of 1974, is not in force. However, the provisions contained in proviso to section 61 of the Local Government Act, 1990, which prohibit a Municipal Committee to create new plots in the "open and other spaces" being in consonance with the amended Ordinance of 1974 would be applicable to the area given under the control of the Municipal Committee and are relevant to the question as to whether the Municipal Committee, Mirpur, is legally competent to create new plots in "open and other spaces" under its control.
9. It follows from what has been stated above that the Regulations of 1985 so far as same envisage the creation of plots in "open and other spaces" or the allotment of such spaces without formally marking the same as plots, would be inoperative as being violative of Local Government Act, 1990 read with amended section 3 of the Ordinance of 1974. However, the said Regulations so far as the same pertain to the allotments etc. Which are not related to the allotments of the said spaces are valid as being in consonance with the provisions of the Local Government Act, 1990 and the Ordinance of 1974. The points formulated stand resolved as indicated above.