P L D 1968 Karachi 703 (PLP)

(d) The income of these properties was to be applied by the Custodian for fulfilling as far as possible, for the purposes of the trust. (e) This temporary arrangement was to terminate on the appointment of new trustees in a manner as provided by law. This was nothing but compliance of the provisions contained in section 6 (2) of Ordinance XY of 1949, which is reproduced hereunder : "(1) All Evacuee property shall vest and shall be deemed always to have vested in the Custodian with effect from the first day of March 1947. (2) Where any evacuee property is property held in trust for religious or charitable purpose, 'the property shall remain vested in the Custodian only till such time as fresh trustees are appointed in the manner provided by law and pending the appointment of fresh trustee the trust property and the income thereof shall be applied bar the Custodian for fulfilling, as far as possible the purposes of the trust."

11. The relevant provisions of law, as envisaged by subsection (2) of section 6 told is contained in section 16‑A of the Displaced Parsons (Compensation and Rehabilitation) Act, 1958 and the scheme framed thereunder, to which specific reference was made by Mr. justice Masui Ahmad in the penaltimate paragraph of his judgment dated the 26th of MarcA 1960, in the following terms: "A copy of this order should be forwarded to the Chief Settlement Commissioner, West Pakistan for information ape necessary action. Until the appointment of new trustees, or until such time as a Scheme is framed under section 16‑A of the Displaced Parsons (Compensation and Rehabilitation) Act, 1958 is necessary to make souse arrangements for managing the properties of the Association." Accordingly he appointed Mr. Haridals Lalji petitioner No. 4 and Seth Katan Motan Dass managers of the properties.

12. Although an impression has been created by the petitioners that the impugned lease give rise to a fresh grievance justifying the invocation of Article 98 of the Constitution, we are clearly of the view that the alleged grievance was merely a consequential act directly flowing in logical sequence of the legal position already upheld by their Lordships of the Supreme Court and the same matter was once again reagitated before us after the lapse of about seven years. It may be observed that it was precisely on the same ground of the alleged infringement of Fundamental Right No. 10, corresponding to Article 18 of the 1956 Constitution that the Constitutional validity of section 16‑A of the Act and of the scheme framed thereunder was challenged before us. Nonetheless, however, we have considered it necessary to examine the contentions on merits and not to dismiss the petition on technical grounds.

13. In support of the alleged infringement of Fundamental Right No. 10, the learned counsel for the petitioner strongly relied upon the dictum of their Lordships of the Supreme Court in Jabendra Kishore Achharrya Chowdhury and others v. The Province of West Pakistan, (P L D 1957 S C (Pak.) 9) incidentally an authority relied upon by both the parties. The background of this case is that the Provincial Assembly of East Bengal, as it was then known passed the East Bengal State Acquisition and Tenancy Act of 1950, providing for the acquisition of land by the State Rent Receivers in East Pakistan. By subsection (1) of section 3, the Act enabled the Provincial Government to acquire by notification in the official Gazette all interests of such of the rent‑receivers as were specified in that notification. Subsection (2) of that section empowered the Government also to acquire in a similar manner all or any of the, lands in the khas possession of such rent‑receivers. Section 37 of the Act provided for payment of compensation to rent‑receivers so expropriated on the basis of their income on a sliding scale; the rate of compensation decreasing with the increase of income. The Provincial Government acquired the interest of rent‑receivers by' several notifications before the Constitution came into force on 2nd of March 1956. Further district‑wise notifications were issued by the Provincial Government purporting to acquire the interest of the remaining rent‑receivers under section 3 of the Act with affect from 14th of April 1956. On 13th of April 1956, 83, petitions for writs of mandamus were moved in the High Court of Dacca against the Provincial Government seeking withdrawal of the notification. What is relevant for the purposes of the present case is that in the course of acquisition of Wakf' and debutter properties, a contention was raised before the Dacca High Court that since the effect of the Act was to transfer the ownership of such properties to the Provincial Government and to dispossess the mutawwalis and shebaits thereof, the Act destroyed or at least adversely affected religious institutions, and secondly to trench upon the right guaranteed by Article 18 of the Constitution to every citizen to establish, maintain and, manage religious institutions in accordance with his religious denominations. While repelling all the Constitutional objections to the notification, the Dacca High Court made absolute, rules nisi issued by it earlier in regard to the acquisition of Wakf and debutter lands. This finding was upheld by their Lordships of the Supreme Court, but The relevant discussion would be quite a helpful in the determination of the issue involved, particularly in view of the fact that both sides learned heavily on this authority.

14. Fundamental Right No. 10 corresponding to Article 18 of the 1956 Constitution reads as follows: "Subject to law, public order and morality‑ "(a) every citizen has the right to profess, practise and 1 propagate any religion; and (b) every religious denomination and every sect thereof has the right to establish, maintain and manage its religious institutions." In clause 20 of section 2 of the East Bengal Acquisition and Tenancy Act, 1960, a "Proprietor" was defined as a person owning as a trustee or for his own benefit or a part. of it. Under clause 23 of the same section a "rent‑receiver" was defined as a "proprietor or a tenant‑holder including Raiyat or under a Raiyat or a non‑agricultural tenant whose land had been let out etc." Challenging the validity of acquisition of rent‑receiving interests in land held under Waqf or debutter an argument was advanced on behalf of the petitioner that the ownership of Waqf property vested in the Almighty under the Muslim Law and in the case of debutter in the diety under the Hindu Law and the Muttawalli and Shebait as the case may be not being trustees they were not covered by the definition of a "proprietor" While conceding this position, it was hold by their Lordships of the Supreme Court that the word "trust" as occurring in clause 20 of section 3 of the Act was not used in its technical sense, but in the ordinary sense and was vide enough to include ,a the case of a Muttawalli or Shebait who held the property not for his own benefit but for that of a religious or a charitable institution.

15. What is, however, more relevant for the purposes of the issue under examination was the next objection to the acquisition of Waqf and debutter lands on the alleged infringement of Article 18 of the Constitution which corresponds to Fundamental Right No. 10 being couched in precisely identical terms conferring inter alia on religious denominations and every sect thereof, the right to establish, maintain and manage their religious institutions. After an analysis of the relevant provision of the Act which divested, the muttawallis or the Shobiats of their interests being absolutely transferred to the Provincial Government, their lordships observed "From this the further consequences follow: First, the pecuniary benefit which may have been` resumed by the creator of the waqf for his descendants, or for himself as under the Hindu Law, is completely wiped out ; and second, a mere breach of trust by the Mutawalli or the Shebait in not applying as directed by the dedicator the income of the property to religious or charitable purposes causes the income so misappropriated to cease to be available for such purposes." Their Lordships ultimately came to the conclusion that the provisions of the Act struck at the very root of the religious institutions. An argument advanced by Mr. Brobi which had found favour with the High Court that the rights conferred" by Article 18 having beets made "subject to law" could therefore, be taken away by the laic, was repelled by their Lordships. On ibis point, Muhammad Munir, C. J., observed;, "It was a fraud on the citizens for the makers of a Consti tution to ray that a right is fundamental but that it may be taken away by the law." . To illustrate the point, the learned Chief Justice further observed that an inevitable consequence of the argument of Mr. Brohi, if accepted would be that the Legislature would to well within its rights to interdict the professions of Islam by the citizens of Pakistan, because such a right was made subject to law, just as it has the right to establish, maintain, or manage the religious institution. On the principle that Constitution should receive liberal interpretation in favour of the citizen, it Was held that the Constitutional Rights should not to allowed to be nullified or evaded by literal interpre tations, and that the law could only regulate the manner in which the religion was to be professed, practised and propagated and religious institutions were to be established and maintained which could not be abolished altogether by law. The following observation by Chief Justice Shaw of the Supreme Judicial Court of Massachausettes in Copen v. Foster (12 Pick 48,5‑‑488) was reproduced with approval: "That in all cases where the Constitution has conferred a political right or privilege, and where the Constitution has not particularly designated the manner in which that right is to be exercised, it is clearly within the just and constitutional limits of the legislative power, to adopt any reasonable and uniform regulations, in regard to the time and mode of exercising that rights, which are designated to secure and facilitate the exercise of such rights, in a prompt, orderly and convenient manner . . . . . Nevertheless, such a construction would afford no warrant for such an exercise of legislative power, as under the pretence and colour of regulating, should subvert or injuriously restrain the right itself.".

16. Having considered the facts of the instant case in the light of the aforesaid judgment of the High Court, we are clearly of the view that the validity of section 16‑A or the scheme framed thereunder cannot be challenged on the alleged violation of Fundamental Right No. 10, and the observations made by their Lordships of the Supreme Court, do not directly bear upon the case before us. It has to be borne in mind that the uprooting of millions of people on both sides of the border, in the wake of Partition of the Indo‑Pakistan sub continent, leading to exchange of population on a vast and unprecedental scale, gave rise to a host of problem which both in their variety and complexity were without a parallel in the contemporary history. It cannot be disputed that as result of the migration of an over‑whelming majority bf pits members who were all Hindus the Association ceased to function wholly or partly and the authority of the persons carrying on its business had neither been accepted nor approved by the Custodian. This position after various decisions of the Courts below was finally upheld by the Supreme Court. While the phrase "subject to law` prefixed before Fundamental Right No. 10 as a rider, does not on the one hand invest the Legislature with unlimited powers to unduly restrict or take away the Fundamental Right guaranteed in the Constitution, it cannot on the other be completely ignored or bypassed as non‑existent, and as such a balance Las to be struck between two positions by resorting to a reasonable interpretation keeping in view the peculiar circumstances of each case. The grant of Fundamental Rights by the Constitution in the larger public interest has been made subject to certain restrictions and exceptions. Different phraseology has been used in this regard in different Constitutions. For instance, Article 21 of the Indian Constitution under the caption "Right to Freedom", reads as follows; "No person shall be deprived of his life or personal liberty except according to procedure established by law." Article 31 relating to Fundamental Rights in respect of property runs as follows: "No person shall be deprived of his property, save by authority of law." Under the Constitution of the United States of America, the phraseology used in the Fifth and Fourteenth Amendment is that no person shall be deprived of his life, and liberty except with due process of law. The expression "subject to law" as used in Fundamental Right No. 10 in our own Constitution is comprehensive enough to cover the different expressions aforesaid used with different connotations. 17< Since the properties whose transfer by the lease in question have been finally held to be evacuee properties, the effect of the Constitutional provision in this regard‑contained in Fundamental Right No. 14 captioned "Protection of Property Rights" may also be examined. It reads as follows; "(14) Protection of property rights; (1) No person shall be deprived of his property save in accordance with law. (2) No property shall be compulsorily acquired or taken possession of save for a public purpose; and save by the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles on which and the manner in which the compensation is to be determined and given. (3) Nothing in this paragraph shall affect the validity of‑

(a)

(b) any law relating to the acquisition, administration, or disposal of any property which is or is deemed to be evacuee property under any laws or (d) . . . . . . . . . . .". The aforesaid Exception created in favour of evacuee laws by means of a constitutional provisions would certainly cover the relevant I revisions in question, namely, section 7(2) of the Administration of Evacuee Property Act of 1957, section 16‑A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and the scheme framed thereunder. The combined effect of this production read with the rider to Fundamental Right No. 10 in the form of the expression "subject to law" makes the position abundantly clear that the Constitutional validity of the aforesaid provisions is not open to question.

18. Another distinguishing feature could be that in Jobinder Kishore's case their Lordships of the Supreme Court were dealing with debutter property vesting in the deity or idol whereas in the case before us the properties have vested in the Association. We are in agreement with the finding given by Mr. Justice Masud Ahmad, Custodian, that the Association was a religious and charitable institution established for looking after disabled animals, particularly the cows; as suggested by its very name. However, AC cannot accept the further argument pressed on behalf of the petitioners that cow- worship being a cardinal principle of the Hindu religion, the properties of the Association vest .in a deity or idol. It was never the case of the petitioners that properties of Association were dedicated by its founders to any deity or idol. The raison detre of the Association, namely, looking after disabled animals being ostensibly of a secular character makes no reference, whatever, in the memorandum or Articles of Asso ciation to such a dedication. It was held in Chandulal v. Rampat Mal (A I R 1933 Lah. 189) that the essential ingredients of a religious endowment under the Hindu Law is the Sankalp and the Samarpan whereby the properties are given away by the owner to the public or the Almighty completely divesting himself of its ownership. We have not been able to find any such traces of dedication in the instant case. Even otherwise, in a case where the overwhelming majority of the members of the Association have left the country for good and its properties have been declared evacuee, no analogy can be reasonably drawn between the two positions. Rather a ore analogous situation is available in the West Pakistan Wak Properties Ordinance of 1961 some provisions or which bear a striking resemblance to those of section, 16‑A of the Scheme framed thereunder. This Ordinance was promulgated to consolidate and amend the laws relating to the manage ment of wakf properties in the West Pakistan. Section 6 of the Act authorised the Chief Administrator to take over wakf properties by notification and assume its administrative control and management, etc. Section 11 of the Ordinance gave powers to the Chief Administrator to prepare scheme for the administration of wakf properties, giving the reasonable effect to the ascertainable wishes of the dedicators. Under section 12, the Government could permit the Chief Administrator to sell or, otherwise dispose of any Wakf property. Their Lordships of the Supreme Court had an occasion to examine these provisions in Sh. Inayat Ullah and others v. M. A. Khan and others (P L D 1964 S C 126). The facts, giving rise to this case were that a mosque known as Masjid Patolian in Lahore was taken over with the appurtenant properties by the Administrator of Auqaf. The Manager of the mosque; appointed by the Administrator issued a notice that no one could hold ‑Khatem Sharif or make a speech or hold's meeting in the mosque in question. The appellants, namely, Anjuman‑i‑Ghausia Aliya, feeling aggrieved challenged the validity of this notice as being beyond the powers of the Manager, under the Ordinance. The petition was dismissed by the High Court, but their Lordships of the Supreme Court allowed the appeal. While dealing with the most drastic provisions contained in the Ordinance whereby the Government could permit the Chief Administrator to sell or dispose of the Wakf property their Lordships held that the provision was evidently intended to meet extraordinary situations in which it may be necessary to sell a particular wakf property and invest the proceeds in some other way. As sated earlier, evacuee laws which even otherwise enjoy a Constitutional pro tection from a challengs to their validity were certainly enacted to meet a situation which by all standards was extraordinary. It would be significant to observe that no argument on the basis of the alleged interference, maintenance, management and control as envisaged by religious institutions on the ground of infringement of Fundamental Right No. 10, was raised, presumably owing to its untenability. We 'are of the opinion that this lends considerable support to the view taken by us. Another relevant observation made by their Lordships which also has a bearing on the case before us, was made by their' Lordships while meeting the argument that mosque was to be used strictly for the worship of Almighty and any user thereof which might partake of something other than the worship of God should be banned. It was observed: "The question however is whether the Chief Administrator or his nominee can impose such a ban on a user which had existed before the wakf property was taken over under the Ordinance. The question whether such a user was under the law of Islam, a legitimate user of the property in question or not, might be capable of decision in the proper forum, namely, the Courts of general Civil jurisdiction." Similarly in the instant case as held by us in the earlier part of the judgment, there are several questions relating, Inter alia, to the user of the site in question which could at best be agitated in a Court of general civil jurisdiction. The upshot of the discussion is that the Constitutional validity of the relevant a provisions of Act XXVIII of 1958, is not open to question.

20. In support of the abode conclusion reliance could also be placed to some extent on Sh. Abdul Majid and other: v. Pakistan and others (P L D 1967 Lah. 459). In that tease, certain occupants of properties held by Dayal Singh College Trust Society were sought to be disposed of by the Custodian in the interest of the society. Feeling aggrieved, the occupants who were practising Advocates of this Court preferred a Writ Petition in the High Court that the sale in question was unauthorised, illegal and ultra vires, it was held by a Division Bench of this Court that the property in. dispute was evacuee property attached to religious charitable and educational trust to be administered under station 16‑A of the Act and the scheme framed thereunder. Section 16‑A authorised the Chief Settlement Commissioner to prepare one of more schemes for the administration and disposal of properties included in the trust pool providing any law for the appointment of any trustees, the consolidation and, grouping of trusts or institutions to the transfer and even for the extinguishments of a trust or wind up an institution the original object of which had wholly or partly cased to exist for the transfer to the Government, any local autho rity of suitable institution of any property in the trust pool for any charitable religious or educational purpose. The scheme was prepared by the Chief Settlement Commissioner in 1960 under section 16‑A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and section 14(2) of the Displaced Persons (Land Settlement) Act, 1958, and was promulgated with the previous approval of the Central Government with whom all evacuee properties had vested, on acquisition under section 3 of former Act, absolutely and free from all encumbrances. Both the provisions contained in section 16‑A as also the name of the scheme i. e. "Scheme for the management and disposal" particularly the expression "disposal of property" clearly envisaged vast and unlimited powers vesting in the Evacuee Board constituted in this regard. Under paragraph 18 of the scheme the Board was empowered to do all things considered by it to be necessary, proper and expedient for the efficient maintenance, control and disposal. Under clause 19 the Board was also charged inter alia with the duty to sell with the previous approval of the Central Government, immovable and other property in respect of which disposal by sale appears to be the best course u9der the circumstances. It could also transfer or make endowment of any property attached to any or for any trust as may be specified by the Central Government consistently with the provisions of the scheme. It was held in Sh. Abdul Majid v. Pakistan, and we are in respectful agreement that the provisions of the scheme were not ultra vires of section 16‑A of the Act either before or after its amendment. The judgment of the High Court was challenged in two Civil Appeals Nos. 33 and 34 of 1967 before the Supreme Court. Their Lordships upheld the view taken by the High Court and dismissed the appeals as reported in A. R. Niazi and others v. Pakistan arid others (P L D 1968 S C 119). The following observation of their Lordships of the Supreme Court may be reproduced with advantage: "Section 16‑A of the Act, as retrospectively amended in 1964, empowered the relevant authority under a scheme to be prepared, to sell the property in question, where disposal by sale appears to be the best course under the circumstances, sub‑clause (j) of clause 19 of the Scheme, framed thereunder, enabled the evacuee Trust Board to sell, with the previous approval of tire Central Government, uneconomic, immovable or any other property in respect ref which disposal by sale appears to be the best course under the circumstances, The property sold is said to have been yielding very little income to the; Trust in its present condition and the Trust was not in a position for lack of the necessary` finances, to exploit its building possibilities to obtain higher income. In these circumstances, it cannot be said that, the powers conferred by section l6‑A and the Scheme framed thereunder, have been, in any manner, exceeded." In this view of the matter, we do not see any force err the contention that the Board was not competent to lease out the land in question at ill or in any case not for more than five years. The reference to the transfer of trust properties in paras. 31 and 32 of the Scheme, to any trust functioning ire West Pakistan for setting up ear maintaining orphanages, leper houses, widow homes, poor houses, or educational, 'technical and health institutions, as envisaged by part. 30 ibis for a period of live years, have been made expressly subject to other provisions of the scheme which read with section 16 of the Act even allow complete disposal of the properties. It would thus be wrong to say that the lease was without authority. We arc not convinced either that the income to be so derived will be utilized other than for the furtherance of the common objects of the Association as envisaged by para. 33 of the Scheme.

21. In Shaikh Abdul Mujid s (use the constitutionality of section 4(2) arid section 16‑A ref the Displaced Persons (Com pensation and Rehabilitation) Act, 1958, was also challenged as being repugnant to the fundamental Rights guaranteed under the Constitution. Can similar grounds was assailed section 42) and other relevant provisions of the West Pakistan (Administration of Evacuee Property) Act of 1957, on the basis of which property in dispute was treated ay evacuee property for a limited purpose in a discriminatory manner. The contention vas overruled on the ground that a reasonable classification of persons or things in consonance with the object of the Legislation has always been recognized as not being repugnant to the guarantee of equal protection of laws, See Budhan Chuudhury v. State of Bihar (PLD 1958SC191). This view was also upheld by their Lordships of the Supreme Court in A..R. Maze v. Pakistan, wherein it was observed; "But prima facie the High Court appears to be right in holding that there was no ground for thinking that the rule of equality before the law 'and equal protection of the law, embodied in Fundamental Right No. ‑15, had been placed inn jeopardy by the legislation relating to evacuee trust property. Evacuee trust property is a separate class of property and this classification would itself justify its differential treatment ax compared with other evacuee properties." As observed earlier in regard to Evacuee Laws the Legislature was dealing with an extraordinary situation of an emergent nature. We are, therefore, clearly of the view that neither section 16-A nor the Scheme framed thereunder is repugnant to the Constitution on the ground of alleged infringement of fundamental Right No. 10.

22. Likewise, we do riot incline to hold that any of the cow‑sheds (Gaushala) constructed and. maintained by the Association at six places, including the one at the site in question was to be treated as a place of worship like a temple, except of course, for the Kandi‑tree standing in the better site whose religious significance has not been denied or disputed. In fact the rights of the members of Hindu community to Kandi worship (Puja) have not only been recognised but also properly safeguarded in the impugned lease deed itself by providing act access to it and reserving an area 55' x 55' around the Kandirtree: Para, 2(j) of the lease‑deed runs as follows': "2(1) That the sanctity of the actual place of worship, viz. the Sacred Trees, will be preserved by the lessees who will also provide passage to the said tree for offering Puja'. The lessees will also provide spaces around the said tree, for the purposes of offering 'Fuji', in the form "Of, a circular platform enclosed or otherwise, having a radius of at least six feet:" It would not be out of place also to refer in this context to the relevant comments offered by respondent No. 1. "Para. 8.‑It ix further submitted that under lease granted by the Evacuee Property.. Trust Board the aforesaid tree has been preserved and it has, been provided that certain space around the said tree shall be kept as open space and the lessee shall provide free access td till the Hindus, who desire to visit the said trey and to perform the aforesaid Kandi Poojan ceremony. It is also submitted that under the proposed plan for the construction an open space measuring about 55 x 55 S.. ft. has been kept around ,the aforesaid tree which ,will be available to the persons visiting the said tree. But for the existence of this Kandi‑tree and Kandi, worship on that account, the Gaushala :originally existing at the site in question and admittedly, demolished has no special or preferential significance in contra distinction to the other Gaushalas situated in the suburbs of Karachi and maintained by or belonging to the Association. It appears to us that in tact its special importance lies in the high arid even, increasing value of the land owing to its situation is a populous street of Karachi. We are not convinced that there is any specific religious, connection or inter dependence between Kdndi worship and cow‑worship and that the two cannot take place indepen dently. We have not been able to see how the impugned lease has amounted to interference with the performance of religious rites or worship by members of the Hindu community. Our attention was also drawn by the respondents to the site plan Exhs. B and C, whose correctness was not questioned before us, to show that only a small fraction of the land leased out by the impugned lease deed was actually used for Gaushala and on most of the area commercial tenaments had already existed which had been leased out to the tenants fetching‑ quite a handsome income to the Association. We are not convinced either that the site in question was used for Dussurah celebrations and in consequence of lease would no longer be available for such a religious purpose. This assertion by the petitioners was categorically denied by the respondents who took the position that Dussurah celebrations have always and invariably held in Swami Narain Temple compound opposite to Karachi Municipal Corporation Building. Thus at best it remain a disputed question of fact on which no conclusive finding within limited scope of the exercise of writ jurisdiction is either proper or possible.

23. The upshot of the discussion therefore, is that the petition must fail and is hereby dismissed with costs. A.E/K.B.A. Petition dismissed.