Waheed Ullah Vs Sher Afzal & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

W.P No. 599-M/2025

(Waheed Ullah and others Versus Sher Afzal and others) Present:

Muhammad Ayaz, Advocate for petitioners.

Mr. Akhtar Munir, Advocate for respondent No.1.

Date of hearing: 12.08.2025

JUDGMENT

QAZI JAWAD EHSANULLAH, J.- Impugned through this particular writ petition is the judgment rendered by learned Additional District Judge, Malakand at Dargai dated 29.04.2025, whereby revision petition of the present petitioners against the order of the learned Rent Controller, Dargai dated 06.02.2025 has been dismissed.

2.The precise facts of the case are that respondent No. 1, Sher Afzal (plaintiff), instituted a rent case under Section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (the Ordinance), before the learned Civil Judge-I/Rent Controller, Dargai, seeking ejectment of the present petitioners along with respondents No. 2 to 10 from the rented shops situated at Degai Market, Sakhakot, Tehsil Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Dargai, inter alia on the grounds of reconstruction.

The suit was contested by defendants No. 5 to 7, 9, 11 to 14, 20 to 23, 24 to 32, 35 and 36 through a joint written statement, whereas respondents No. 2 to 10 submitted their cognovits. During pendency of the proceedings, the petitioners moved an application seeking rejection of the suit / eviction petition for want of jurisdiction on the plea that the demised premises were situated in a rural area / village council, while the Ordinance was applicable only to the urban areas. The plaintiff submitted a written reply to the said application, and after hearing the parties, the learned Rent Controller dismissed the application vide order dated 06.02.2025. This very order of the Rent Controller was upheld by the learned revisional Court while dismissing the revision petition filed by the petitioners on 29.04.2025, hence the present petition.

3.Arguments heard and record perused.

4.The sole objection raised by learned counsel for the petitioners centers around the jurisdiction of the learned Rent Controller. According to him, the demised shops are located in a rural area falling within a Village Council of Tehsil Dargai Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

within the meaning of the Khyber Pakhtunkhwa Local Government Act, 2013 (the Act), and so the Rent Controller had no jurisdiction to entertain proceedings under the Ordinance. It was argued that the Act distinguishes between rural and urban areas in clauses

(e)and (f) of Section 5, while Schedule IX thereof enumerates the details of urban councils across the Province. He stated that insofar as District Malakand is concerned, 15 areas have been categorized as urban, nine of which fall within three union councils of Tehsil Batkhela (Upper, Middle and Lower Batkhela), whereas in Tehsil Dargai only two urban union councils are recognized, namely Dargai and Kharkai.

The petitioners, therefore, contended that Mauza Sakhakot, where the rented shops are situated, does not fall within the notified urban limits and remains rural in character. Conversely, learned counsel representing the respondent-landlord has supported the impugned orders by arguing that term ‘urban area’ has been defined in Section 2(j) of the Ordinance and a Village Councils, including the one where the suit property is located, are fully covered by such definition. Thus, learned counsel submits that the impugned orders have been passed with proper Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

appreciation of legal position as it obtains and they do not call for any interference.

5.In order to appreciate the core contention, reference must be made to the definition of “urban area” provided under Section 2(j) of the Ordinance which reads as follows;

“(j) ―Urban area means an area Administered by a Municipal Corporation, a Municipal Committee or a Town Committee.”1

Now, if one is to take expression

‘Municipal Corporation’, ‘Municipal Committee’ or ‘a Town Committee’ as used in the above definition clause in their literal sense or word-for-word meaning, it would invite a situation where no rent case could proceed further under the Ordinance. This would be so because nowhere in the entire province any local government by the nomenclature, as used in section 2(j) ibid, are functioning as of today. Thus, in order to avoid redundancy to be attributed to the law, one has to follow the substance and form would yield. The above expressions are to be taken in their contextual sense. Like for instance similar question was posed before the Supreme Court of Pakistan in the case of Substituted by North West Frontier Province Urban Rent Restriction (Amendment) Ordinance 1979 [Ord. No. IX of 1979] Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

‘Muhammad Ihsan v. Muhammad Hafeez’2, where argument was raised that urbanized areas of Lahore were neither called as Municipal Committees or Town Committees etc. According to the contentions advanced before the apex court Lahore was a Metropolitan City and so it was ousted from the application of Ordinance because areas coming within the Metropolitan Corporation Lahore were not part of the urban areas as defined in Section 2(j) ibid. This particular argument of the petitioner was repelled and rejected by the apex court and what was ruled is as follows;

“10. The learned counsel pointed out that the Rent Restriction Ordinance was applicable only in the urban areas as defined under the Ordinance. In section 2(j), the Ordinance defined `urban area' as an area administered by a Municipal Corporation, a Municipality, a Municipal Committee, a Town Committee or a Notified Area Committee. It was significant to note, the learned counsel argued, that this definition did not include a Metropolitan Area. As Lahore was now a Metropolitan Area by virtue of an amendment made in the Punjab Local Government Ordinance, it could no longer be regarded as an `urban area' within the meaning of the Urban Rent Restriction Ordinance; for that reason the Urban Rent Restriction Ordinance was no longer applicable to the city of Lahore and no order of eviction could be passed in pursuance of its provision. This contention is again without merit. Even

1995 SCMR 1380

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

though the city of Lahore has been declared a Metropolitan Area for the purposes of the Punjab Local Government Ordinance, it does not cease to be a municipality which is covered, as will be noticed, by the definition of `urban area' as given in the Urban Rent Restriction Ordinance. The expression `a municipality` has not been defined by the Ordinance either by itself or with reference to any other statutory instrument. It has, therefore, to be understood in its accepted sense. In Black's Law Dictionary (Fifth Edition) `a municipality' means:

"A legally incorporated or duly authorized association of inhabitants of limited area for Local Governmental or other public purpose. A body politic created by the incorporation of the people of a prescribed locality invested with subordinate powers of legislation to assist in the Civil Government of the State and to regulate and administer local and internal affairs of the community State ex rel. McIntire v. City Council of City of Liboy, 107 Mont. 216, 82 P.2d 587, 588. A city, borough, town township or village. Also, the body of officers taken collectively, belonging to a city, who are appointed to manage its affairs and defend its interests."

It, will be seen that the word, `municipality` is of wide connotation and in its ordinary sense it includes a Metropolitan Corporation as well. It is, therefore, not right to say that after being declared a metropolitan area, the city of Lahore has ceased to be an urban area within the meaning of the Ordinance.”

6.Thus, while following the dicta laid down by the apex court in Muhammad Ihsan case supra the courts are to therefore see whether the area in which the demised shops are located is administered by any municipal body by whatever name it may be called. As is clearly ruled in the case-law referred to Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

above that the term “municipal” itself has not been defined in either the Ordinance or the Act. Where a statute does not define a term, courts may resort to its ordinary and dictionary meaning. According to the Oxford Learner’s Dictionary (Eighth Edition), “municipal” means “connected with or belonging to a town, city or district that has its own local government.” Black’s Law Dictionary (Fourth Edition) describes “municipal” as “in narrower sense, it means pertaining to a local governmental unit, commonly, a city or town or other governmental unit. In its broader sense, it means pertaining to the public or governmental affairs of a state or nation or of a people”.

“Municipality” is further defined as “a legally incorporated or duly authorized association of inhabitants of limited area for local governmental or other public purposes”.

7.From the above definitions, it is evident that any area placed under the control of a local government body performing municipal functions qualifies as a municipality. The scheme of the Khyber Pakhtunkhwa Local Government Act, 2013 reinforces Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

this understanding. Section 22, read with Schedule I of the Act, devolves administrative and financial powers of various government offices to Tehsil Local Governments. Within this framework, Village Councils too are administered under local government institutions, and for purposes of municipal governance, they are integrated into the larger fold of municipal administration. The Act and Rules made thereunder, provide for specific municipal functions which are assigned to different tiers of local governments starting from Village Council, Neighborhood Council and a Tehsil / City Council / Metropolitan City of Peshawar respectively. Section 28 of the Act provides for the following municipal functions and responsibilities of Chairman Village Council namely:-

“(a) provide leadership for council-wide development and preparation of budget; (a-i) present annual budget for approval of the village council or neighbourhood council, as the case may be;

(b)organize management of municipal infrastructure with in the area of respective village council or neighbourhood council;

(c)chair panels of members constituted for amicable settlement of disputes; report to District Administration and Tehsil Local Government in respect of:

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

(i)encroachment on state and local government property;

(ii)violation of land use plans, building codes, rules and bye-laws;

(iii)sale and trade of dangerous and offensive articles;

(iv)adulteration of articles of food; and (v) breach of public water courses with in the area of the village council or neighbourhood council, as the case may be;

(e)prepare and send quarterly reports on the performance of functionaries of all offices located in the area including Education, Health, Public Health Engineering, Agriculture, Livestock, Police and Revenue to District Administration and Tehsil Local Government.

(2)The Chairman, village council or the Chairman neighbourhood council, as the case may be, shall be responsible for any loss flowing from his decisions and directions in violation of this Act or any other law for the time being in force and for expenditures incurred without lawful authority.”

Likewise, section 29 of the Act envisages different functions of a Village Council such as:- “29. Functions of the village council or neighbourhood council.---(1) Functions of the village council and neighbourhood Council, as the case may be, shall be to,-

(i)implement and monitor village level development works;

(ii)carry out village level sanitation and conservancy functions in village councils only;

(iii)identify development needs of the area for use by Tehsil Local Government in prioritizing development plans for the tehsil;

(iv)register births, deaths, marriages and divorces;

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

(v)consider and approve annual budget, including scheme-wise annual development programme and provision for other functions performed by the local council;

(vi)organize and sponsor village and neighbourhood level sports and cultural events;

(vii)organize village level cattle fair and shows in its area;

(viii)elect an Accounts Committee and review its recommendations on the annual statement of accounts and audit reports;

(ix)monitor the performance of service providers including education, health, agriculture, water and sanitation and revenue through a Monitoring Committee constituted by it. The Monitoring Committee shall send its report to the respective Chairman, Tehsil Local Government for consideration and action through the respective Assistant Director, Local Government and Rural Development;

(x)organize watch and ward in the area including protection from stray animals and animal trespass;

(xi)collect, prepare, maintain and update basic data on social indicators;

(xii)facilitate Tehsil Local Government in performance of its functions; and

(xiii)perform any other task assigned by Government or Tehsil Local Government.

(2)The respective village council or neighbourhood council shall assist Tehsil Local Government in conducting surveys, collecting socio-economic data and selecting sites for municipal and social facilities and services.

(3)Assistant Director, Local Government and Rural Development shall be responsible for coordinating matters relating to secretarial functions of village and neighbourhood councils in the district.”

The above resume of the functions and responsibilities of Village Council and its Chairman, Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

as expressly listed in the Act, clearly gives it to understand that the nature of the duties that they perform are purely municipal and thus, by no stretch of imagination, it could be said that an area under the Village Council is not an ‘urban area’ for the purposes of application of Ordinance.

8.Besides, the learned Rent Controller, while rejecting the objection, has rightly relied upon the statement of the Tehsil Municipal Officer, Dargai recorded during the proceedings. The officer categorically stated that the suit property falls within the administrative control of Tehsil Municipal Administration (TMA) Dargai, and municipal services are being delivered in that area. This assertion stands corroborated by documentary proof in the form of the building plan of the shops, duly sanctioned by TMA Dargai under No. 2074-75/TMA/Dargai dated 12.12.2019. Such approval unmistakably demonstrates exercise of municipal authority. In addition, reliance was placed upon Notification No.

13/40 H.D (T.A-III-78), through which the Provincial Government had formally declared the area where the shops are situated as an urban area. Once the Government itself has extended the notified limits of Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

urban jurisdiction to cover Mauza Sakhakot, the objection regarding its rural character loses force.

Viewed in this perspective, the conclusion becomes irresistible that the demised shops are situated within an area administered by a municipal body and can well be classed as an ‘urban area’ for purposes of the Ordinance. Hence, the Rent Controller has jurisdiction to entertain the proceedings.

9.The learned revisional Court has dismissed the petition primarily on the ground of maintainability, observing that the Ordinance contains no provision for revision and that the Code of Civil Procedure, 1908 is inapplicable to rent proceedings, as the Ordinance itself prescribes a complete code of procedure. It was further noted that no appeal lies against an interim order. The superior Courts have consistently held that interim or interlocutory orders in rent matters are deliberately excluded from appeal to prevent delay and fragmented litigation. Such orders also cannot be indirectly assailed through constitutional jurisdiction, as this would defeat the legislative bar3. Given that constitutional jurisdiction President, All Pakistan Women Association, Peshawar Cantt. V. Muhammad Akbar Awan and others (2020 SCMR 260) Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

is discretionary and equitable in nature, it cannot be invoked to circumvent or frustrate the object of expeditious disposal envisaged by the statute.

Accordingly, the findings recorded by the revisional Court rest upon a sound appreciation of law and call for no interference by this Court.

10.Foregoing in view, the concurrent findings of the learned courts below being legally sound and based on correct appreciation of law and facts, do not call for interference. Resultantly, the petition in hand is dismissed and the learned Rent Controller is found to be well within his jurisdiction to proceed with the ejectment petition filed by respondent/plaintiff and the interim order earlier passed by this Court on 05.06.2025 is held to be no more in the field. The learned Rent Controller may proceed with the ejectment petition and decide the same in light of the directions previously issued by this Court while deciding W.P No. 534-M/2020.

11.Above are the reasons of my short order of the even date.

An no unc ed Dt:12.08.2025 Sd/-

JUDGE

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah