1987 PLP 866 (SCMR)

(a) cases in which the interest of a minor or a person of unsound mind is involved; (b) cases where provisions for arbitration has been made in a contract between the parties; (c) cases by or against the Federal or Provincial Government or a Public Corporation or a Public servant acting in the discharge of his duty. " In other words, cases mentioned at (a), (b) and (c) above were to continue being tried by Civil Judges under the relevant law and were not sent up for trial to the Tribunal set up under this Regulation. Regulation No.II of 1975 was further amended by Regulation No I V of 1976 vide Gazette Notification, dated 29‑12‑1976, whereby word 'Jirga' was to read in place of 'Tribunal' and S. 3(1) of the first mentioned Regulation (No.II/75) was substituted to read as follows:‑-- S.3‑‑(1) Notwithstanding anything contained in any other law for the time being in force, all suits by a landlord for arrears of rent or the money equivalent of rent, or for sums recoverable under section 7 of the North‑West Frontier Province Tenancy Act, 1950 (N.‑W.F.P. Act XXV of 1950), and all cases of a civil nature shall, save as otherwise provided, hereinafter, be referred to a Jirga constituted under, and adjudicated upon in accordance with, the provisions of this Regulation." It is this provision that needs to be interpreted for deciding the question in issue in this appeal.

5. Learned counsel for the tenant‑appellant argued firstly that even if Regulation No.1 of 1973 is deemed to be fully in force at present, despite the subsequent Regulations creating a different forum for the decision of cases of 'civil nature' in the Provincially Administered Tribal Areas, it cannot be, in fact, invoked by any landlord or tenant. The reason put forward by him for this assertion was that the application of the Rent Ordinance to the aforementioned Tribal Areas by sections 3 and 4 of Regulation No. I of 1973, is countenant on certain pre‑conditions. Section 3 requires that before the Rent Ordinance could become operative in any particular area, it would have to be declared an 'Urban Area' by the Provincial Government through a Gazette Notification to that effect. For this he relied on the following words in section 3 :‑ "S.3. ‑‑The West Pakistan Urban Rent Restriction Ordinance, 1959 shall apply to the Tribal Areas to which this Regulation extends subject to the modification that the expression 'Urban Area, in the Ordinance shall mean such areas as Government may, by a notification in the official Gazette, declare to be Urban Area". Similarly, section 4 of the said Regulation provides that power exercisable by the Rent Controller was to be exercised by such a person or authority as the Government may, by a notification in the official Gazette, appoint. He argued that although the Government did issue a notification (No. 13/24‑F/II/3‑78 dated 10‑6‑1979) declaring certain areas, including Swat, to be 'Urban Areas' for the purpose of section 3, it was too late, because by then Regulation No.1 of 1973 had itself been superseded by subsequent Regulation of 1975 and 1976, referred to above. He submitted further, that even till today no notification has been issued by the Provincial Government under section 4 of Regulations Nos. I of 1973, nominating any person or authority to exercise the functions of the Rent Controller. As such, he argued, a Civil Judge in Swat could not have acted as a Rent Controller and entertained or decided the ejectment application filed by Purdil Khan respondent. He argued that after extending the Rent Ordinance as well as a large number of other laws mentioned in the Schedules to Regulations Nos.I and II of 1974 to the aforementioned Tribal Areas, the Government realised that the new system was not workable. Therefore, it reverted to the old system of decision of cases in those areas by Jirgas. Hence, it issued a new Regulation, namely, Regulation No. II of 1975, superseding the previous Regulations. Section 3 (1) of that Regulation was then amended by Regulation No. IV of 1976 to provide that certain type of cases including all cases of 'civil nature' would be triable by Jirgas and that the C.P. C. would not be applicable to proceedings before the Jirgas. He submitted that since Regulation No.II of 1975 was subsequent to Regulation No.1 of 1973, it must be deemed to have impliedly repealed the earlier Regulation (i.e. Regulation No. I of 1973), in view of the Maxim:Leges postetiores priores contraries abrogant.

6. The learned counsel for the respondent contravened the said submissions of the appellant's counsel and argued that Regulation No.II of 1975, being general in nature it would not have the effect of impliedly repealing Regulation No. I of 1973 and that all Civil Judges had been conferred the powers to act as Rent Controllers as a result of the extension to the Tribal Areas not only of the Rent Ordinance but also of all the notifications etc. already made under the said Ordinance.

7. We have given our anxious consideration to the contentions raised by the learned counsel for the parties and have also carefully gone through the various laws referred to by them.

8. As already observed above, the main provision requiring interpretation in this case is section 3 (1) of Regulation No. 11 of 1975, as amended by Regulation No.IV of 1976. However, in order to gather and determine the intention of the legislature for the purpose of construing the said Regulation properly, it shall have to be read together with earlier Regulations referred to above, namely, Regulation No.1 of 1973 and Regulations Nos. I and II of 1974, as they have a direct bearing on the matter.

9. We notice that after taking over the administration of the Tribal Area referred to above, in 1969, the Provincial Government gradually sought to apply to them the laws applicable in the Province of N.‑W.F.P. It appears that one of the most pressing problems in the said Tribal Areas was the one regulating the relationship between landlords and tenants in respect of house and shops given on rent. The Rent Ordinance was, therefore, one of the first law to be extended to these areas vide Regulation No.1 of 1973. Even a bare reading of this Regulation shows that it is a Statute of special nature inasmuch as it applied a special law (i.e. a law relating only to special subject overriding other laws or customs on the same subject) to the Tribal Areas and also provided special forum for the decision of disputes between landlords and tenants and had superseded the previous law, i.e. the Rewaj which was applicable to such disputes earlier. The question, however, is whether the subsequent general provision enacted by section 3 (1) of Regulation No.11 of 1975, as substituted by Regulation No. IV of 1976), has the effect of impliedly repealing or superseding the earlier Regulation (No.1 of 1973). The words on which the learned counsel for the appellant lay emphasis, to urge that it does so are:‑ "Notwithstanding anything contained in any other law for the time being in force‑‑‑‑.‑" According to him, this general statement in the new enactment is in) itself sufficient for concluding that all previous laws, including regulation No.I of 1973 stood repealed. He submitted that according to the rules of interpretation of statutes subsequent laws or provisions by implication must be understood to have repealed or superseded all previous laws. For this proposition the learned counsel relied on the Maxim: Leges posteitores priores contraries abrogent. He argued that as a result of this supersession or repeal all cases of civil nature, except those excepted by subsection (2) of section 3 of Regulation No.II of 1975, were to be tried by Jirgas to be constituted under Regulation No.II of 1975.

10. The contention is, however, misconceived, because it overlooks that while Regulation law and forum relating to one section 3 of Regulation it provides for decision by Jigra of all of civil nature. It is well‑settled that a special law shall prevail over subsequent laws of general nature. This principle is enshrined in the Maxim ganeralia specialibus non derogant". This maxim has been explained by Maxwell in his book on Interpretation of Statutes in the following words: "It is but a particular application of the general presumption against an intention to alter the law beyond the immediate scope of the statute to say that the general Act is to be constructed as not repealing a particular one, that is, one directed towards a special object or a special class of objects. A general later law does not abrogate an earlier special one by mere implications. Craise has explained this rule in his book "On Statute Law". It reads as follows:‑ "The general rule, that prior statutes are held to be repealed by implication by subsequent statutes if the two are repugnant, is said not to apply if the prior enactment is a special and subsequent enactment is general, the rule of law being, as stated by Lord Salborne in Seward v. Wera Cruz, 'that where there are general words in a latter Act capable of reasonable and A sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general word, without any indication or a particular intention to do so. There is a well‑known rule which has application to this case, which is that a subsequent general Act does not affect the prior special Act by implication. That this is the law cannot be doubted and the cases on the subject will be found collected in the Third Edition of Maxwell on .the interpretation of statute'. The general Maxim is, General in specialibus non derogant i.e. general provisions will not abrogate special provisions. When the legislature has given its intention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that subject according to its own subject‑matter and its own terms."

11. This court has also taken the same view in Punjab Province V Sita Ram and others P L D 1956 FC 153 wherein relying on Queen v. Champneys (1870‑71) CPLR 344 at 394, it was held that a subsequent general law does not indirectly repeal the earlier enactment. The principle has been re‑affirmed by this Court in I.G. Police v. Mumtaz Ahmad Waraich P L D 1985 S C 159.

12. The view that the legislature had not intended to repeal or supersede all the laws including these governing cases of 'civil nature' which were previously extended to the tribal areas through various Regulations promulgated prior to the enforcement of Regulation No.II of 1975, is also born out by a closer examination of the amended section 3 (1) itself. It would be noticed that notwithstanding the fact that S.3 (1) has made a general provision that henceforth all cases of civil nature were to be tried by the Jirga, it also makes specific mention of 3 particular matters of civil nature which would also be triable only by a Jurga. These are:‑ All suits by landlord; (i) for (the recovery of) arrears of rent; or (ii) the money equivalent to rent; or (iii) for sums recoverable under section 7 of the North‑West Frontier Province Tenancy Act, 1950. Now it would be observed that the North‑West Frontier Province Tenancy Act, 1950, was extended to the relevant Tribal Areas by Regulation No. I of 1974 in its entirety and provides for "all matters relating to the relation between and the rights and obligations of landlords and tenant of agricultural land. These 'matters' are evidently matters of 'civil nature' and included the right of the landlord to demand and recover the payment of arrears of rent or to recover money equivalent to rent from the tenant' as provided by section 3 of the Tenancy Act. Similarly, section 7 of the said Act provides for the recovery by a land owner of sum due from a person who is not his tenant but is in occupation of the land and is using it for his own benefit. In other words section 7 of the Tenancy Act, 1950, covers cases where land is not given on lease, but is all the same being used by the occupant for his own profit and empower the landlord to sue such a person for the recovery of the money due in lieu of rent. It is noteworthy that the legislature while enacting section 3(1) picked up only these types of civil matters relating to the rights conferred by the N.‑W.F.P. Tenancy Act, 1950, on a land‑owner vis‑a‑vis his tenant or the person in occupation of his land and made them triable by a Jirga. This clearly shows that the intention of the legislature was that all disputes between landlords and tenant other than those relating to recovery of rent or money due in lieu of rent of agricultural land e.g., ejectment of tenant, though of civil nature, shall continue to be governed by the Tenancy Act, 1950 and be adjudicated upon by the forum in accordance with the procedure envisaged by the said Act. Had it been the intention of the legislature in using the words "all cases of civil nature" in S. 3(1) that the said section should be deemed to have automatically over‑ridden, superseded or repealed all previous laws, including the N.‑W.F.P. Tenancy Act, 1950, which provides for the decision of civil matters by forums other than the Jirga, and procedures other than the Rewaj, prevalent in the relevant Tribal Areas, then it would not have specifically mentioned the aforementioned 3 types of cases or disputes of 'civil nature' arising between landlords and tenants or the persons occupying and using the land, as triable by the Jirga. This, in our view, shows that the legislature never, intended that section 3(1) of Regulation No. II of 1975 (as amended in 1976) should by implication or otherwise repeal or supersede all special laws made applicable by it (i.e. the legislature) to the Provincially Administered Tribal Areas. The view that the legislature did not intend by enacting the aforementioned section 3(1) to repeal the special laws dealing with civil matters, is also evident from the fact that although the Rent Restriction Ordinance has been made applicable to the Tribal Areas prior to Regulations Nos. ,II of 1975 and IV of 1976, yet it declared certain areas including Swat to be 'Urban Areas' by a special notification to that effect as recently as 1979. It can, therefore, safely be concluded that the real intention of the legislature was that while cases of civil nature would generally be tried by Jirgas according to Rewaj yet civil cases governed by special laws like the Rent Ordinance and other such laws, extended to the Provincially Administered Tribal Areas would continue to be decided by the forums constituted for that purpose under the relevant law. It may be observed here that the contention of the learned counsel for the appellant that since no notification had been issued under section 4 of Regulation No. 1 of 1973, specifying the person of the authority who would exercise power of Rent Controller, no forum was in existence which could hear and decide cases under the said Act, is also misconceived, A bare reading of section 4 would show that section 3 of Regulation No. I of 1973 did not only extend the Rent Ordinance, 1959, to the relevant Tribal Areas but also applied to them "all rules, notifications and orders made or issued thereunder", i.e. under the Rent Ordinance, 1959. It is not disputed that by certain notification powers of Rent Controller was conferred on the Civil Judges, who thus constituted a forum to heat and decide rent cases under the Rent Ordinance. Section 4 cannot, therefore, be construed to mean that the Government has yet to issue a Notification conferring functions and duties of the Rent Controller or Authority or person. We are of the view that it was only meant to empower the Government /Legislature to confer the jurisdiction or powers of Rent Controller on any person other than Civil Judges, if deemed necessary at any subsequent stage. We, therefore, hold that section 3(1) of Regulation No. II of 1975, as amended by Regulation No. IV of 1976, did not have the effect of impliedly repealing that Ordinance and that the Rent Ordinance was made applicable (sic) continue to have jurisdiction to entertain, hear and decide applications by landlords and tenants, provided for in the said Act. The net result of the above discussion is that Rent Controller did have the jurisdiction to hear and decide the ejectment application filed by Purdil Khan respondent No.3 and the District Judge had the jurisdiction to hear appeal as provided by Rent Ordinance. The High Court was, therefore, justified in dismissing the writ petition. As such we find no force in the appeal which is consequently dismissed. In the circumstances of this case the parties are left to bear their own costs. S.S.G./R‑14/S Appeal dismissed.