FAIL-E-MOBIN AHMAD Versus GOVERNMENT OF SIND
1. ABDUL RAHIM KAZI, J. These three petitions involve similar facts and common questions of law and we propose to dispose of the same by this common judgment.
2. The facts in C.P. No.D‑560/1973 are that the petitioners claim to be a Society known as Adara‑e‑Taleem‑e‑Millat, which was duly registered on 31‑3‑1955. Amongst the aims and objects of the petitioners Society are the objects of fostering Islamic Education and Culture, promotion of literature and its publication etc. It is claimed that the Society has all along been active in the charitable field by maintaining dispensary, link road from Barodha Bagh to Mansoora for the use of public, a museum, library and helping deserving students and poor people for which purpose they are maintaining Shafa Khana Darul Asar, Darul‑Kutub, Guest‑house at Mansoora and also Darul‑Qur an, Shah Waliullah Oriental College, Darul‑Uloom, all at Mansoora. They are also maintaining Naya Madressah in Nawabshah, Tamir‑e‑No Public School at Quetta and two hostels and Madressah‑ul‑Banat. It is also stated that the said society owns several buildings which they hire on rent and utilized the income for carrying on their charitable work. It is claimed that the building in use of college is on hire for which college pays Rs.3,000 per year as a rent to the society, which fact is supported by the counter‑foils of the receipts and statement of accounts produced. It is also stated that the society is giving grants to the said college, school, hostel and Madressah maintained by them. In short the case of the society is that the buildings are maintained and owned by the society and the same are occupied by the college and school on rent. The respondents issued Notification NO.DN VIII(1)NS/72, dated 30‑4‑1973, reproduced as under which is challenged in this petition:‑
3. No.DN‑VIII(1)NS/72‑‑In exercise of the powers vested in him under clause 13(b) of Martial Law Regulation No.118, read with clauses 3 and 10, the Governor of Sind is pleased to direct that:‑
(i) On and from Ist May, 1973, all rights, properties and assets of the owner or Manager of the following privately managed schools/ colleges which are situated in the Province of Sind, shall be the rights, properties and assets of and shall vest in the Government of Sind.
(1) Shah Waliullah Degree and Oriental College Mansoorah with Hostel, Library, Musuem and Dispensary.
(2) Darul Uloom (High School) with hostel and mosque.
(3) All other property attached with the above institutions and/or endowed for Education by the late Moulvi Shaft Muhammad Nizamani.
(2) All funds such as Provident Funds, Students Funds, Bank Accounts and other Cash balances vesting in the management of these private institutions shall stand transferred to and shall be operated by Government or its nominee on and from 1 st May, 1973.
4. The case of the petitioners in Petition No.812/1973 is that they are the society duly registered on 17‑1‑1959 and their aims and objects are to provide facilities for the corporate and social life of the members, to establish and maintain educational institutions and to publish cheap and standard text‑books and literature. It is contended that the petitioners society acquired plot of land, bearing, Nos. 21, 22, Federal B Area, Karachi, admeasuring 3.65 acres to construct a building to house the office of the society, record‑room, meeting‑room, a hall for social gatherings and to provide facilities for other cultural and educational activities. The work for the construction of the building started in 1964 and in 1965 school classes were opened in a portion of the building and in 1966 college classes were also started in another portion of the building. Funds and accounts of the school and college were maintained separately, while periodical meetings, annual dinner, annual gatherings and Eid re‑union are also held in other portions of the building. It is further claimed that the petitioners society rented out the separate portions of the building to three schools and the college housed in different portions of the building, each school and college paying their rent separately to the society for the portions of the building occupied by them. It is also contended that no particular portion of the building was occupied by the said schools and college permanently as according to their requirements the same was being changed from time to time and the rent was also charged according to that. The Government of Sind has fixed the rent of the portion of the building occupied by college at Rs.4,200 per month. It is further contended that on 1‑9‑1972, the respondent 2 had taken over the control and management of the college without any order and similarly on 1‑Z‑1973 the respondent 2 took over the control and management of the three schools, that also without any notice in writing. Subsequently, the society also requested the Government to take over the Nursery School, but .the Government declined to take the same. The said Nursery classes were also functioning in the same building but the respondent 3 issued a circular that they cannot allow the Nursery and K.G. classes to function in the same premises in which the Nationalized Schools are functioning. Consequently, the petitioners were ordered to close down the Nursery School or shift it to some other building and that there was a threat from the respondents to evict the petitioners from the office premises, reading room, hall etc. The impugned Notification No.S.O.(TECH)I (I) N.S./72, dated 8‑2‑1973, is reproduced below:‑
5. In exercise of the powers vested in him under clause 13(b) of Martial Law Regulation No.118 read with clauses 5 and 10, the Governor of Sind is pleased to direct that:‑
(i) On and from Ist February 1973, all rights, properties and assets of the owner or Manager of Delhi Secondary and Primary Schools, which are gituated in the Province of Sind, shall be the rights, properties and assets of and shall vest in the Government of SiAd.
(if) All funds such as Provident Funds, Students Funds, Bank Account and other cash balances vesting in the management of the said private schools shall stand transferred to and shall be operated by Government or its nominees on and from Is% February, 1973.
(iii) Take‑over Committee appointed under this Department Notification No.D.D. (P 6 E) 1(8)/72, dated 30 th September, 1972, will be valid in case of these schools also.
6. The Director School Education, Karachi is authorised to appoint Acting Headmaster for these Schools.
7. The case of the petitioners in C.P. .No.D‑1346/1974 is that late Mrs. Rehana Causar Khan, the predecessor of the present petitioners was the lawful owner of the plot, bearing No.12‑A, Block‑2, Federal B‑Area, Karachi, with construction standing thereon consisting of built‑up area of 19800 sq. feet, for which she had made payment of Rs.24,199.99 to the KDA on 25‑6‑1965, as occupancy value. The possession was handed over to her vide order dated 30‑6‑1905. She raised a building on an area of 19800 sq. feet on the said plot after having due approval of the same from the KDA and that she invested practically all her lifetime savings and savings of her family incurring the liabilities in the shape of loans from banks, friends etc. amounting to approximately Rs.36,000. She never received any aid or grant or loan from the Government in this respect. It is further contended that she leased out half of the ground floor of the said building and land to the Pakistan Progressive Education Society as tenants vide lease‑deed dated 8‑12‑1969, and the school, namely, Karachi Academy was housed only in 14 rooms i.e. the area under lease. While Mrs. Rehana Causar was using the remaining portion for her personal residence and that the building was under construction= and was incomplete the said education society appointed Mrs. Rehana Causar as Principal of Karachi Academy with the monthly honorarium of Rs.500 in which post she continued till Martial Law Regulation 118 was promulgated and the school was nationalized and the charge of the school was taken over on 1‑10‑1972. Again Mrs. Rehana Causar was appointed as the Headmistress of the said school by the Government and she took charge in her said capacity. On 6‑11‑1972, at the instructions of the Director of Schools she handed over the charge to Miss Shahnaz Khan. It is further alleged that from that date onwards Mrs. Rehana Causar, who was residing in the remaining portion of the building was not allowed to enter the premises and was illegally deprived of her personal belongings etc. She thereafter made several approaches to the authorities for payment of rent but the same was denied to her. She then became seriously ill and ultimately expired at Karachi on 14‑7‑1974. The claim of the petitioners in this petition is also similar as to the above two petitions and the notification issued under No.D.U. (P&E)I(8)/72, dated 30‑9‑1972, is challenged in this petition.
8. In all these three petitions, the petitioners have challenged the validity and legality of the notifications issued by the authorities under Martial Law Regulation 118 to the effect of the taking over of the schools /colleges and the buildings/ premises wherein the same were housed. It is also claimed that in respect of the said premises and the buildings housing the said Educational Institutions being private properties of societies or individuals, the respondents were liable to pay the rent for the same.
9. As against this the stand of the learned counsel appearing for the respondents is that by virtue of paragraph 4 of Martial Law Regulation 118, all such institutions stand vested in Government and even no notification is required. It is further contended that said Martial Law Regulation 118 was saved under the provisions of Article 8 of the Constitution of Pakistan being item No.17 in First Schedule. It was further urged by him that the Martial Law Regulation 118 and its provisions cannot be called in question. He has also urged that there was no evidence in the above petitions to show that any amount was spent by the petitioners on a construction nor was there any evidence to support the petitioners claim of payment of rent.
10. The common facts are that the petitioners were running the schools or colleges as have been taken over or vested in the Provincial Government by virtue of notifications issued under the provisions of Martial Law Regulation 118. It is also the common ground of the petitioners that the buildings or premises or the portions thereof wherein the schools or colleges were housed, were on rent and that they cannot be divested of the ownership of the same nor can they be deprived of rent.
11. Martial Law Regulation 118 was promulgated by the Chief Martial Law Administrator on Ist April, 1972. This was continued in force by the Interim Constitution of the Islamic Republic of Pakistan, 1972, which came into force on the 21 st day of April, 1972 by Article 280(3) thereof.
12. The said sub‑Article provides:
(3) All Martial Law Regulations and Martial Law Orders, except the Martial Law Regulations and the Martial Law Orders specified in the Seventh Schedule, are repealed with effect as from the commencing day and on that day each Martial Law Regulation and the Martial Law Order so specified shall be deemed to have become an act of the appropriate Legislature and shall, with the necessary adaptations, have effect as such:
13. Provided that no Bill to amend or to repeal any of the Martial Law Regulations or the Martial Law Orders specified as aforesaid shall be introduced or moved without the previous sanction of the President.
14. Thus on lifting of Martial Law on 21‑4‑1972 this Regulation became an Act of the Appropriate Legislature and it has since been designated as the Privately‑managed Schools and Colleges (Taking Over) Regulation, 1972.
15. These provisions have also been saved under Article 8 of the Constitution of Islamic Republic of Pakistan, 1973 (Ist Schedule Item 17). It will be advantageous to reproduce here the provisions of Paras. 4 and 5 of the Martial Law Regulation 118, which read a under:‑
4. As from the first day of September, 1972, all privately managed colleges, together with all property attached to them, shall vest
(a) in the Central Government, if they are situated in the Islamabad Capital Territory, and
(b) in the Provincial Government, if they are situated in a Province.
5. Such privately‑managed schools as the Central Government, in the case of a school situated in the Islamabad Capital Territory, and the Provincial Government in any other case, may, by notification in the official Gazette issued at any time on or after the first day of October, 1972, specify in this behalf shall vest in the Central Government or, as the case may be, in the Provincial Government, together with all property attached to it.
16. M/s. Khalid M. Ishaque and Mushtaq Memon, Advocates, appearing for the petitioners have contended that the notifications of Take‑over by Government are in violation of the provisions of Martial Law Regulation 118 in so far as they relate to the ownership of the buildings and properties of the petitioners. Their case is that the scheme and provisions of Martial Law Regulation 118 contemplates taking over the management of the School or College and not assuming the ownership of the Buildings or properties of the owners or Managers. They have taken us through various documents brought on record of the case in order to show that the said buildings were not the properties of the school and college but were owned by the petitioners and that the same were on rent. In support of their contentions the learned counsel for the petitioners have placed reliance on the cases, namely, (1) Board of Foreign Missions of the Presbyterian Church in the United States of America through Lahore Church Council v. The Government of the Punjab through Secretary, Education, Civil Secretariat, Lahore and another 1987 S C M R 1197, (2) Muhammad Bashir and 20 others v. Anjuman Himayat‑i‑Islam and 2 others P L D 1988 SC 96 and (3) Anjuman‑i‑Islamia Pakistan v. Province of Sind and another 1983 C L C 394. They have also referred to various cases in support of their contentions that the Courts have the power to examine the provisions of law and the acts of the executive if the same are violative of fundamental rights and are mala fide or coram non judice.
17. Mr. A. R. Akhtar, Advocate, appearing for the respondents has submitted that the provisions of Martial Law Regulation 118 cannot be called in question nor can the vires of the same be challenged, as these are protected by Article 8 of the Constitution of Islamic Republic of Pakistan, 1973. His contention is that by virtue of paras. 4 and 5 of the Martial Law Regulation 118 and the notifications issued there under the said buildings and properties stand vested in Government. He has further argued that word vest would mean that the relevant Government becomes the owner of the building or the property in question. He further argued that such buildings and properties ipso facto stand transferred to the Government and that all such Orders and Acts are protected under Articles 268, 269 and 270‑A of the Constitution of Islamic Republic of Pakistan. He has placed reliance on the cases, namely, (1) Shah‑Muhammad v. Federation of Pakistan and others 1988 SCMR 182, (2) Muhammad Siddique Cheema and another v. Government of the Punjab and 2 others 1984 SCMR 67 and (3) M. Yamin Qureshi v. Islamic Republic of Pakistan and another PLD 1980 SC 22. He has also taken us through the documents brought on record.
18. In our view the real question in the present petitions for determination is not whether the land and the building which was built as school or college and used as such vested in the Government under paras. 4 and 5 of the Martial Law Regulation 118. But the true question, in the facts and circumstances of the case is whether the vesting of such school or college in the Provincial Government had the effect of making it the property of Government alongwith the assets as claimed by the Government. In order to answer this question it is necessary to comprehend what was intended by vesting the privately‑managed educational institutions in the Central or Provincial Governments by Martial Law Regulation 118. In our view the questions dealing with vires of Martial Law Regulation 118 or the powers of the Government, Central or Provincial to assume the management of the educational institutions are not involved in the present case but it is the interpretation and effect of the said provisions that is to be dealt with.
19. Therefore, the important question to be determined is what is meant by word vest in the provisions of paragraphs 4 and 5 of the Martial Law Regulation 118. In the case of Board of Foreign Missions v. The Government of the Punjab 1987 SCMR 1197, their Lordships have held:‑
20. Moreover, it has consistently been held by the superior Courts that the word vest is a word of variable import, not having a fixed connotation and does not necessarily mean to vest in title .
21. In the above authority a reference was made to the case of Noor Muhammad v. Mst. Sardar Khatun and others P L D 1951 Sind 1, wherein, it was held:‑
22. The word vest has a very well‑defined meaning. Vesting in relation to property means the acquisition of the legal right of immediate possession and dominion over property. It means nothing more. One speaks of a property vesting in an executor, a trustee, an official assignee or an owner of a property from the moment when the individual in question acquires the legal right of possession and dominion. The words the sum shall vest in the nominee , do not connote anything more than that in law the legal right to immediate possession of and dominion over the property shall pass from the trustees of the fund to the nominee, and do not mean that the full rights of ownership including the right to the beneficial enjoyment of the property, shall pass to the nominee. The nominee becomes entitled to possession of the sum without having to obtain letters of administration or a succession certificate. A property may vest in one person, and the beneficial right of enjoying the property as an owner ma at the same time vest in another person. The division of the full rights of ownership into the right to possession and dominion, and the right to the beneficial enjoyment of the property is one which is well‑recognized. Where an executor is appointed by a will, the estate vests in the executor while the beneficial interests vest in the legatees, on the death of the Testator. One very important result of an interest vesting in a person is that the vested interest becomes heritable, divisible and transferable, Soorjumonhy v. Dinobandhu 9 MIA 323.
23. And in the same case of Board of Foreign Missions v. The Government of the Punjab, their Lordships held:‑
24. We are, therefore, of the opinion that merely because the privately‑managed schools, alongwith their assets were to vest in the Government, under the terms of para. 5 of Martial Law Regulation No.118 it did not imply that Government had become the owner in relation to the buildings wherein schools or colleges were being run. The intention of Martial Law Regulation NO‑118 manifestly was only to take over the management of the institutions and not to confiscate the property in which the privately‑managed school was being run.
25. In fact, this intention. becomes further clear from the subsequent legislation enacted on the subject of Privately Managed .Schools and Colleges (Taking Over) Regulation, 1972 . In this connection, President s Order 6 of 1983 on the subject of Privately Managed Schools and Colleges (Taking Over) (Amendment) Order, 1983, is revealing. By Article 3 of this Order after paragraph 12, paragraphs 12‑A and 12‑B were inserted in Martial Law Regulation No.118. Paragraph 12‑A laid down:‑
26. 12‑A. The Provincial Government may prepare a scheme to provide for the retransfer to the previous management thereof any class of privately‑managed colleges and schools vesting in the Provincial Government by virtue of or under this Regulation which in its opinion it would be in the public interest to so retransfer and may, in accordance with the scheme, by noti fication in the official Gazette, direct that a college or school belonging to such class and specified in the notification shall, on and from such date as may be so specified, stand retransferred to the previous Management thereof, subject to such terms and conditions as the Provincial Government may determine.
27. Explanation. In this paragraph, previous management includes the successor or legal representative of the previous management and, where there is no successor or legal representative, such person as the Provincial Government may determine.
28. According to the above provision a Provincial Government is authorised to re‑transfer any class of privately‑managed colleges and schools back to the previous management thereof. Implying thereby that it was only the management and not the building in which the said school or college was housed that was taken over.
29. The other case on the subject is of Muhammad Bashir and 20 others v. Anjuman Himayat‑i‑Islam and 2 others P L D 1988 S C 96. It was held in the concluding paragraph:
30. Thus, the said judgment also would not support the petitioner s claim that the properties in which the taken over educational institutions were being run would by virtue of Martial Law Regulation 118, go under the ownership of the Provincial Government. It would, as held in the case of Abdul Ghani PLD 1985 SC 1, be a different case, if the property originally belonged to the Government before the promulgation of the Regulation.
31. From the above discussion it is clear that the provisions of paragraphs 4 and 5 of the Martial Law Regulation 118 were neither intended to nor in terms have the effect of making the Government the owner of the property in question.
32. We, therefore, hold and declare that the petitioners continue to be the owners of the land and buildings in present petitions which housed the said privately‑managed educational institutions and the assumption of the respondents that they have become owners of the same is without lawful authority and contrary to law. We also declare that the petitioners are entitled to receive rent from the respondents for the said buildings which the respondents are directed to pay according to law.
33. These three petitions are, therefore, allowed in above terms. However, there will be no order as to costs.
34. A . A . /F‑86 / K . Petitions allowed.