Petitioner in person.

Usman Rasool Ghuman, AAG.

Muhammad Nasim Saqlain, AAG.

Ms. Khadija Ali, State Counsel.

Ch. Muhammad Asif Khan, Advocate for respondents.

Date of hearing: 1^st December, 2022.

JUDGMENT

Mohsin Akhtar Kayani, J:—Through this writ petition, the petitioner Muhammad Shahbaz has prayed for the following directions:

“It is prayed that this writ petition may kindly be allowed and section 1 (2) of the ordinance be declared void, illegal and ultra vires of Constitution of Islamic Republic of Pakistan Constitution of Islamic Republic of Pakistan, 1973, consequently S.R.O. No. 83 (K)/2012 dated 01.08.2002 is void and it may issued in accordance with law and needs of populated and residential and rented needs of Islamabad citizens that respondent No.6-7 may kindly be directed to propose and present amendment to fill and correct the anomaly in Ordinance for the basic needs of Islamabad territories and respondent No.8 may kindly be directed to prepare map urban area and other areas according to current demography with regard to definition of sectorial, accordance with law and insert the Ghori town Phase 5-B I.C.T territories for the purpose of rent restriction ordinance ejectment petitions. Without prejudice to above, Respondent No.6-7-8 may kindly be directed to rectify S.R.O No.83(K)/2002 dated 01-08-2002 by including zone V of Islamabad Capital territory into the urban area.”

2.           The petitioner is mainly aggrieved with exclusion of his properties situated in Ghauri Town, which were not included in declared / notified area in terms of Islamabad Rent Restriction Ordinance, 2001, though, he got approved his map from Capital Development Authority and constructed a building after payment of taxes and other charges to the Government of Pakistan, however, he is deprived of from his legal remedy to seek eviction against his tenants.

3.           The petitioner has been confronted qua the maintainability of this writ petition, especially, when he himself acknowledges that he is aggrieved person due to the judgment dated 06.05.2016 and 25.05.2017, passed in writ petition No.753 of 2016 by this Court, but despite that he has not challenged findings in the said judgment in earlier round. The petitioner has conceded this aspect that he filed writ petition in the earlier round while challenging the same orders, however, no conclusive result was achieved by him in his favor, as the subject matter was different and his writ petition under objection was dismissed, which is evident from the order dated 17.11.2017, passed in the objection case as well as order dated 25.05.2017 passed in CM No.2370 of 2017.

4.           The petitioner has also prayed for a direction to the Secretary, Ministry of Interior, Government of Pakistan and Chief Commissioner, Islamabad, to propose present amendments in the ordinance and the Islamabad Rent Restriction Ordinance, 2001, for inclusion of territories in order to ensure the equal protection of law to all the citizens of Islamabad Capital Territory.

5.           Conversely, learned AAG contends that the issuance of notification for inclusion of any area by the Federal Government is a necessary feature in terms of IRRO, 2001, qua its application. He further contends that any area which was not included by the Federal Government, the rent laws are not applicable in the said area rather the citizens have to apply there remedy in terms of Transfer of Property Act, 1882.

6.           Arguments heard and record perused.

7.           Under the Islamabad Rent Restriction Ordinance, 2001, first SRO No. 83(KE) / 2002 dated 19.07.2002 and then SRO No.538 (i)/2004 dated 24.06.2004 were issued by the Federal Government explaining the territories, in which The Islamabad Rent Restriction Ordinance, 2001 is applicable, these SROs were amended in exercise of powers conferred by sub-section 2 of Section 1 of Islamabad Rent Restriction Ordinance, 2001, through SRO No.1/2/97–ICT-II,vide notification dated 15.03.2018, which reads as under:

NOTIFICATION

S.R.O.1/2/97-ICT-II. In exercise of the power conferred by sub-section (2) of section 1 of the Islamabad Rent Restriction Ordinance, 2001 (IV of 2001) and in supersession of its Notification No.S.R.O 83(KE)/2002, dated the 19th July, 2002 and No.S.R.O 538(I)/2004, dated the 24th June, 2004, the Federal Government is pleased to specify the following areas, namely:-

a)     Areas within urban limits of the Islamabad Capital territory in Zones I, II & V;

b)     Housing schemes approved and demarcated as such by the Capital Development Authority in accordance with the Islamabad capital Territory (zoning) Regulations, 1992;

c)     Area declared as urban areas by the Capital Development authority with the approval of the Federal Government in accordance with the Capital Development Authority Ordinance, 1960 (XXIII of 1960);

To be the area to which the said Ordinance No.IV of 2001 shall extend, except-

(i)     Lands and buildings in the diplomatic enclave; and

(ii)    Such buildings, lands, offices and public properties owned or hired by the Government.

8.           The above mentioned notifications spell out that three zones have been included within the urban limits of Islamabad Capital Territory alongwith all the housing schemes approved and demarcated by the Capital Development Authority in accordance with the Islamabad Capital Territory (Zoning) Regulations, 1992, and the areas declared as urban area by the Capital Development Authority with the approval of Federal Government in accordance with the Capital Development Authority Ordinance, 1960. However, on the other hand a difficult situation arises, when the Rent Controller as well as the District Judges are not able to identify / demarcate the boundary limits of different areas referred in the zones or in the housing schemes, as no notified list is available with them, or where certain areas of Islamabad Capital Territory were not referred in the SRO to taken benefit of IRRO, 2001, therefore, while dealing with the proposition, this Court is of the considered view that Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, provides equal protection of law to every citizen of the country to be treated in accordance with law, which is an inalienable right, in particular as no action detrimental to the life, liberty, body, reputation or property of any person shall be taken, except in accordance with the law, such aspect clearly extends protection to the rights of the petitioner as well as to those individuals, who are living within the Islamabad Capital Territory irrespective of requirement of any notification as referred in the Islamabad Rent Restriction Ordinance, 2001, especially, in the light of Section 1 (2) of the Islamabad Rent Restriction Ordinance, 2001 which is as follows:

“It shall extend to such urban area of Islamabad Capital Territory and apply to such buildings and rented lands as the Federal Government may by notification in the official Gazette, specify,

The plain language of the above provision demonstrates that the areas have to be known as urban areas, whereas, on the other hand, all the housing schemes approved and demarcated by the CDA in accordance with the Islamabad Capital Territory (Zoning) Regulations, 1992, fall within the notified area, and as per the CDA record following are the approved housing societies:

STATUS OF APPROVED PRIVATE HOUSING SCHEMES IN ZONE 2, 5 & E-11, ICT, ISLAMABAD

SECTOR E-11

ZONE-2

ZONE-5

In addition to above, the details of the Illegal Housing Societies declared by CDA are as under:-

ILLEGAL/UNAUTHORIZED PRIVATE HOUSING SCHEMES IN ZONE 2 & 5 OF ICT, ISLAMABAD

Following housing schemes/societies are being developed in Zone 2&5 of ICT, Islamabad without prior approval of the Authority:

Though some of them have later lost their status due to cancellation of their NOCs and LOPs as a result of their illegalities and violations of the CDA bye-laws, however, such aspect did not exclude the benefit of notification dated 15.03.2018 to these societies in terms of Islamabad Rent Restriction Ordinance, 2001, especially to the landlords and tenants in those areas.

9.           Now adverting towards the proposition relating to this case, where certain areas have been excluded from the applicability of the Islamabad Rent Restriction Ordinance, 2001. This Court comes to an irresistible conclusion that the mandate of Section 1 (2) of The Islamabad Rent Restriction Ordinance, 2001, only confers the Executive Authority of the Federal Government for a particular action i.e. issuance of notification for inclusion of any area in the urban area or other concepts, but such executive authority is not absolute, rather circumscribed by the constitutional provision, which is the primary document to run the affairs of Federation and State with reference to the rights of the citizens of Pakistan. The concept of executive authority is subordinate and dependent upon the constitutional guarantees and Article 97 of the Constitution of Islamic Republic of Pakistan, 1973 deals with the executive authority of the Federation in the following manner:

“97. Subject to the Constitution, the executive authority of the federation shall extend to the matters with respect to which ¹[Majlies-e-Shoora (Parliament)] has power to make laws, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan:

Provided that the said authority shall not, save as expressly provided in the Constitution or in any law made by ¹[Majlis-e-Shoora (Parliament)], extend in any Province to a matter with respect to which the Provincial Assembly has also power to make laws.”

This aspect confers the supreme authority to the parliament in the democratic parliamentary system of government.

10.         This Court is mindful of the fact that Chapter two “Principles of Policy” provided in the Constitution of Islamic Republic of Pakistan, 1973, is the theme behind the responsibility of each organ and authority of the State, and of each person performing functions on behalf of an organ or authority of the State, to act in accordance with those principles in so far as they relate to the functions of the organ or authority, whereby, the State shall secure the wellbeing of the people irrespective of sex, caste, creed or race, by raising their standard of living and also ensure inexpensive and expeditious justice in terms of the Article 37 (d) of Constitution of Islamic Republic of Pakistan, 1973. Hence constitutional mandate extend authority to the parliament, where executive authority is dependent, therefore, the Executive Authority of the Federal Government has to be exercised by the Federal Cabinet, which is subordinate to the constitutional framework of powers among different organs of the State as held in PLD 2022 [SC] 267(Privatization Commission Vs. Aftab Hussain).

11.         The learned Law Officer was also confronted qua any legislative instrument, where concept of urban areas has been explained or the rural area has been bifurcated, whereas, the first legislative document placed on record is the gazette notification dated 01.07.1989, passed by the Act of the parliament through Finance Act, 1989, whereby levy of tax on capital value on certain assets were declared, in which urban area in terms of Section 7 (4) (e) has been explained in the following manner:

“urban area means area falling within the limits of:-

(i)     The Islamabad Capital Territory:

(ii)    A cantonment board;

(iii)   The rating areas as defined under the Urban Immovable Property Act, 1958 (W.P V of 1958) as enforce in Punjab, NWFP, Sindh and Balochistan except where the rate under section 117 of the respective Provincial Local Government Ordinance, 2001 is zero, and”

(iv)   Such areas the Federal Board of Revenue may, from time to time, by notification in the official Gazette, specify;

(v)    In case of Lahore and Faisalabad up to 30 Kilometers from the outer limit of municipal or cantonment limits;

(vi)   In other case, upto 10 Kilometers from the outer limits of

The learned Law Officer conceded this aspect that “rural area” has not been defined anywhere in the laws relating to Islamabad Capital Territory nor the same were identified separately, however, he stated at the bar that the above mentioned definition of “urban area” was considered for the purposes of Finance Act in order to levy the tax on capital value on certain assets.

12.         Besides the above definition, this Court could not find any other law including the CDA Ordinance, 1960, The Pakistan Capital Regulation, MLR-82, 1960, The Capital of the Republic (Determination of Area) Ordinance, 1963, The Islamabad Building Regulations, 1963, The Islamabad Capital Territory Municipal Bye-Laws, 1969 for ICT, where urban area has been explained in the legislation, though reference has been made in The Islamabad Capital Territory (Zoning) Regulation, 1992, where Islamabad Capital Territory has been defined in terms of Section 2(13) of the regulation means “Islamabad Capital Territory as defined under the Islamabad Capital Territory Local Government Ordinance, 1979”, which is not in field at this stage as Islamabad Capital Territory Local Government Act, 2015 has been enacted, whereas, by virtue of Section 132 of the Islamabad Capital Territory Local Government Act, 2015, the previous Local Government Ordinance, 1979 as well as of 2002 were repealed.

13.         At this stage, Islamabad Capital Territory has to be seen in the light of Zoning Regulations as defined in The Islamabad Capital Territory (Zoning) Regulation, 1992 as well as in the recent enactment of the Local Government as the term ICT was widely used in all legislation, but urban area has not been explained in particular, rather different forms of definition of the ICT have been referred in terms of Section 3 of The Islamabad Capital Territory (Zoning) Regulation, 1992, whereby Islamabad was divided in five zones for the purposes of development and strategy of zones, which covers the entire Islamabad Capital Territory including the sectors as well as acquired and non-acquired areas, even the CDA has allowed the construction mechanism in all these areas by acknowledging the urbanization concept by way of Private Housing Societies, developers and other agencies like FGEHA, PHA etc. to develop the housing schemes, as a result whereof, different housing societies came into existence with the permission of the CDA in terms of Modalities and Procedures Framed under Islamabad Capital Territory (Zoning) Regulation, 1992 in Zone-II and Zone-V of Islamabad Capital Territory Zoning plan. The specific planning standards were given in the Modalities and Procedure by way of layout plan of the schemes as well as issuance of NOC, in which societies have to provide the water supply, schools, colleges, hotels, motels, offices, mosques, roads including graveyard, playgrounds and parks etc, which are only known as utilities for every individual citizens/resident in any residential or commercial scheme.

14.         While considering these aspects, it is abundantly clear that urban areas have not been defined separately, however, in this scenario, when any specific law or the applicable laws are silent qua any area in the statute, its ordinary dictionary meaning was to be looked as held in PLD 2016 SC 534 (Chairman, Pakistan Railway, Government of Pakistan, Islamabad and others vs. Shah Jehan Shah).

15.         Keeping in view the interpretational mandate provided in the Pakistan Railway case supra, this Court is bound to consider the ordinary definition of the term “urban”, which has been explained in Blacks Law Dictionary (11th Edition) Bryan A. Garner with the meaning “of or relating to a city or town; not rural, civil law of, relating to, or involving buildings typically found in the cities or towns”. In Oxford Advanced Learner’s Dictionary (9th Edition), the terms “urban” means “connected with a town or city”. Similar, meaning has been conveyed in The Chambers Dictionary (10th Edition). Similarly, The Wolters Kluwer Bouvier Law Dictionary (Desk Edition Volume-2 by Stephen Michael Sheppared refers the meaning of “urban” “related to a city or metropolitan area, an urban area, is a matter of federal law, is any city or metropolitan area that has a population of 50,000 or more. Urban relates to a city, and the concept of the urban in law is one of the people in dense community with a considerable division of labor among trades, professions and livelihoods, as well as one in which crime, policing and public services are concentrated in their scope and function”.

16.         While considering the above ordinary dictionary meaning, generalize concept of urban area stand cleared, which ordinarily means city or town based upon the buildings, metropolitan areas, where population beyond 50,000 or more was settled for on account of provision, trade and community services were provided in the area, these are the features of urban concept generally and widely used in common parlance.

17.         This Court has also been guided with the concept of urban area defined in Section 2(i) of West Pakistan Urban Immovable Property Tax Act, 1958, means an “area within the boundaries of a Municipal Corporation, Municipal Committee, Cantonment Board, Small Town Committee, or other authority (not being a District Board) legally entitled to, or entrusted by Government with the control or management of a municipal or a local fund”, which aspect was also highlighted in PLD 2022 Peshawar 46 (State Bank of Pakistan vs. Federation of Pakistan). Similarly, I have also found another definition of urban area provided in Section 2(hhh) in The Punjab Local Government Act, 2013, means an area within the jurisdiction of the Metropolitan Corporation, a Municipal Corporation, or a Municipal Committee and includes any other area, which the Government may, by notification, declared to be an urban area for purposes of this Act” as recorded in PLD 2019 SC 297 (Human Rights Case No.69229-P of 2018).

18.         While taking into account these definitions, this Court is of the view that Islamabad Capital Territory Local Government Act, 2015 comes to play the decisive role to establish an elected local government system to devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments; to promote good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at local level. In such scenario, the local government system is based upon Union Council or the Metropolitan Corporation established under this Act; provides the municipal services to administer and provide a framework to enforce taxes on the properties qua the use of properties, deals with the construction, environment, health hazards, adulteration of articles of food, encroachments, violation in use of land, building bye-laws so that a better society could be established in line with the functions of the Union Councils as well as of the metropolitan corporation, whose functions have been explained in third Schedule of this Act. The mark difference between urban and rural population is the utility services and enforcement of building bye-laws, which is not a negative factor to be considered in terms of Islamabad Rent Restriction Ordinance, 2001, which only regulates the affairs of landlords and tenants under the law.

19.         There is no legal impediment on the basis of which a person, who owns a property in any sub urban area or non-recognized urban areas, could be deprived of from his legal right to get his property vacated through a mechanism, provided in Islamabad Rent Restriction Ordinance, 2001. The only arguments rendered against the extensions of IRRO, 2001 in the entire Islamabad Capital Territory is the issuance of notification by the Federal Government, as such Federal Government has to conduct its business in accordance with the Rules of Business, 1973 framed pursuant to Article 99(3) of the Constitution and it was further explained in case law reported as PLD 2016 SC 808 (Mustafa Impex, Karachi vs. The Government of Pakistan through Secretary, Finance, Islamabad), but these rules if seen in the context of the Constitution of Islamic Republic of Pakistan, it does not extend any discretion to the Federal Government to exercise in unstructured, uncontrolled and arbitrary manner, rather discretion had to be exercised honestly, fairly and transparently as held in PLD 2021 SC 379 (Malik Munsif Awan, Advocate, Chairman, Pakistan Justice party, Lahore vs. Federation of Pakistan through Secretary, Law and Justice, Islamabad and others).

20.         There is no denial that discretionary powers could only be exercised reasonably subject to existence of essential conditions, required for exercise of such power within the scope of law as held in 2010 SCMR 1301 (Tariq Aziz-ud-Din and others in re Human Rights case). The Federal Government in its administrative authority must exercise power in reasonable manner, and also to ensure justice as per spirit of law. However, at this stage, different parameters of structuring of discretionary powers have been explained in 2009 SCMR 1354 (Abdul Wahab and another vs. Secretary, Government of Balochistan and another), which are open plans, open policy statement, open rules, open findings, open reason, open precedents and fair informal procedure, therefore, power to exercise discretion, would not authorize such Authorities to act arbitrarily, discriminately and with malafide. The functional test to observe the discretion in terms of the fundamental rights, has to be seen with reference to classification with regard to equality of citizens has been settled in judgment reported as PLD 1998 [SC] 1445 (Mehram Ali Vs. Federation of Pakistan) in the following manner:-

(i)     that equal protection of law does not envisage that every citizen is treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;

(ii)    that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;

(iii)   that different laws can validly be enacted for different sexes, persons of different age groups, persons having different financial standard and persons accused of heinous crimes.

(iv)   that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;

(v)    that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;

(vi)   that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;

(vii)  That in order to make a classification reasonable, it should be based.

(a)    On an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;

(b)    That the differentia must have rational nexus to the object sought to be achieved by such classification.

21.         The apex Court in Mustafa Impex Case elucidates upon the parameters in terms of Rules of Business, 1973, framed in pursuance to Constitution of Islamic Republic of Pakistan, 1973, within which the Federal Government is to conduct its business i.e. exercise its executive and legislative functions, whereby, the Rule 16 of the Rules of Business,1973, pertains to discretionary power of the Prime Minister in the matters of business brought before the cabinet, however, the apex court, while dealing with the concept, provide certain conditions circumscribing the exercise of such discretion:

First, that there must be a conscious application of mind by the Prime Minister to the existing circumstances justifying the need for such departure through passing of a reasoned and formal order prior to the action taken;

Second, determining whether the constitutional provisions justified such a departure.

While considering the above conditions the apex court has held that cabinet being the supreme body of executive with high constitutional status could not and ought not to be treated as a mere rubber stamp for decision making by the Prime Minister, thereby, holding that the Prime Minister has to consult the cabinet in important decision making process, without which he would violate the letter and spirit of the constitution. Lastly, the supra case hold that extent of executive authority of the Federation as exercised by the Federal Government is “subject to the constitution” as provided under Article 97 of the Constitution of Islamic Republic of Pakistan, 1973. It was held that by virtue of the words of the legislature, the said executive authority was subordinate to the constitutional scheme in relation to conferment of constitutional power and responsibility on the three organ of the State. Under the parameters of discretionary Authority, the Federal Government is unable to explain those standards, yardstick, parameters or the scale, on the basis of Federal Government has issued earlier S.R.Os by denying the applicability of Islamabad Rent Restriction Ordinance, 2001 in different areas of Islamabad Capital Territory, such aspect clearly establishes that Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 read with Articles 4, 9 of the Constitution have been violated in clear terms, which were previously considered in exercise of powers provided under Article 199 for the purposes of judicial review as set out in 2018 YLR 222 (Moazzam Habib and others Vs. Federation Of Pakistan and others), in which it was held that all persons are equal before the law and entitled without any discrimination to the equal protection of law, especially for enforcement of fundamental rights.

22.         It is admitted position on behalf of the respondent Federal Government that there is no structured criteria or an intelligible differentia to select any area qua the legal needs of the landlords and tenants within the Islamabad Capital Territory for the application of IRRO, 2001, which was earlier taken note in judgment reported as 2017 YLR 1224 (Saleem Ullah Khan Vs. Federation of Pakistan through Ministry of Interior and Narcotics Control, Interior Division, Islamabad).

23.         Even otherwise, it has not been denied by the Federal Government that the judgment of Moazzam Habib supra has been implemented by the Federal Government by issuance of SRO under IRRO, 2001, whereby Zone-V of the Islamabad Capital Territory was included qua application of IRRO, 2001, therefore, at present this Court is of the view that issuance of notification in terms of Sub-Section 2 of Section 1 of the IRRO, 2001 by the Federal Government in official gazette is a ministerial job not based upon any yardstick.

24.         The constitution is an organic document, which covers the day to day affairs and needs of the people in the framework of principle of policy enshrined in the constitution and provide due protection to the citizen of Pakistan while considering the legitimate needs, so they should not be exposed or harmed or be placed under legal hardships qua their legal rights by not extending the benefits of law, which are equally required to every person, who owns a property or not, therefore, the citizens whether they are landlord or tenant could not be denied their legal rights under Islamabad Rent Restriction Ordinance, 2001, in entire Islamabad Capital Territory, hence, the issue raised by Muhammad Shahbaz, the present petitioner, who was compelled to file civil suit for ejectment of the tenant under Transfer of Property Act, 1882 to get possession of property, was denied his legitimate right of equal protection under Article 4 as well as Right to life in terms of Article 9 and protection without discrimination under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973.

25.         At last, the entire controversy has to be seen in the light of preamble of IRRO, 2001, which is to “regulate the relations between the land lord and tenants of rented premises in Islamabad Capital Territory”, such aspect, if read in conjunction with section 4 of IRRO, 2001, which provides the non-obstante clause by giving an overriding effect by using the expression not withstanding anything contained in any other law, such phrase indicates that the provision should prevail despite anything contrary to any provision and would prevail over other clause as well as the laws in case of any inconsistency as held in PLD 1997 [SC] 700 (E.F.U General Insurance Company Ltd. Vs. Federation of Pakistan). However, if there is non-obstante clause in two Acts, then later would prevail as held in PLD 2002 [Karachi] 374 (Hakim Ali Zardari Vs. The State). While giving effect to this clause it has clearly been established that the law i.e. IRRO, 2001, shall prevail in case of any issue relating to landlord and tenant and no other law shall govern regarding these issues. Similarly, the preamble of IRRO, 2001, provides the scope of the ordinance, which only covers the issues between landlord and tenant in the ICT without any distinction of nature of properties, whether the same was urban or rural nor the same are linked with the concept of Capital Development Authority Ordinance, 1960, in any manner or the local government laws by any stretch of imagination, though the previous SROs notified by the Federal Government in terms of IRRO, 2001, lay down a criteria for the application of the ordinance on those housing schemes which were approved and demarcated by Capital Development Authority in accordance with the Islamabad Capital Territory Zoning Regulation, 1992, or covered under CDA Ordinance, 1960, but such restriction is not the mandate of IRRO, 2001, which is without any restrictive covenant by the legislature.

26.         This court is mindful of the fact that the term “urban area” means such area or areas of Islamabad Capital Territory as the Federal Government may, by notification in official gazette specify, as explained in section 2 (k) of the IRRO, 2001, but the provision is silent qua any character, principle, or explanation to understand which areas were called urban area with reference to IRRO, 2001, rather the same was further dependent upon the notification of the Federal Government in the official gazette without any parameters on which Federal Government can select the area, though through the previous two SROs notified by the Federal Government under this provision, those areas were included, which were duly recognized under Capital Development Authority Ordinance, 1960, which is not the mandate of law in IRRO, 2001. This technical defect has never been explained on any yardstick as has been mentioned as to how and on what parameters Federal Government can choose and select the Area in such disputed position. Hence, the doctrine of Pith and Substance as well as doctrine of Incidental Encroachments and Occupied Field come into play, though in this case, there is no other competitive legislation which effects the IRRO, 2001, directly, but the mode and manner in which Federal Government is exercising its authority by denying the application of IRRO, 2001 in Islamabad Capital Territory areas should have been settled in the light of preamble of IRRO, 2001, however, more than 2/3rd population of Islamabad Capital Territory has been excluded to get benefit of IRRO, 2001. This Court is bound to consider the legislative intent of the parliament by examining the preamble to understand the real spirit and domain as well as occupied field of IRRO, 2001, which only gives a simple and straight meaning to resolve the issues between landlord and tenant without any discrimination of properties recognized by the CDA or not recognized by CDA.

27.         So far as the restriction under IRRO, 2001 provided under Section 4, whereby the Diplomatic Enclave has been excluded from the IRRO, 2001, is concerned, it appears that such restriction has been applied to protect the rights of Diplomats and the State owned buildings as matter of policy to avoid unnecessary legal hardships, however, at the same time, the relationship of landlord and tenant in the Diplomatic Enclave between private individuals could not be considered excluded from the legal cover of IRRO, 2001.

28.         The citizens of Islamabad Capital Territory are interested to pay their property taxes, charges for other municipal services under ICT Local Government Act, 2015 and it is now up to the Local Government system to enforce those laws to provide the municipal services to each and every resident of Islamabad Capital Territory, as a result whereof, every area whether registered society, society having cancelled NOCs or LOPs or societies declared illegal by CDA or un regulated construction, require municipal services and establishment of the metropolitan city by conversion of rural areas into urban development and needs the application of IRRO, 2001, without any discrimination. There is no legal bar in CDA Ordinance, 1960, Islamabad Capital Territory Local Government Act, 2015, or any other law for the time being in existence to exclude certain areas of Islamabad Capital Territory from the application of IRRO, 2001.

29.         The epitome of the above discussion is that instant writ petition is ALLOWED not only to the extent of Ghouri Town, rather to the extent of entire Islamabad Capital Territory notwithstanding registered, approved or unapproved society of CDA or any other Area acquired or non-acquired or even constructed in any part of ICT beyond the Zoning limit, whereby any land or house which has been rented out to a tenant by a landlord is required to be regulated through Rent Controller in terms of IRRO, 2001, without any discrimination, hence, the Federal Government has to issue the necessary notification accordingly for application of IRRO, 2001 in the entire Islamabad Capital Territory, though the same is ministerial work, especially when there is no criteria for exclusion or inclusion of particular territory in the notification. In case, the notification is not issued, it will not affect the rights of any litigant, who can approach the Rent Controller within the Islamabad Capital Territory for protection of his rights as of tenant or the landlord as the case may be.

30.         Copy of this judgment be transmitted to Secretaries of Ministries of Interior as well as Law and Justice for implementation, who are directed to submit the compliance report of this judgment within period of fifteen (15) days to the learned Registrar of this Court.

Petition allowed