1989 PLP 1955 (SCMR)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted in this and a number of other appeals to examine the correctness of the judgment of the Lahore High Court dated 3‑9‑1984 whereby a Constitution Petition filed by the appellant was dismissed in limine.

2. The appellant claimed to have acquired land for establishment of Churches and educational institutions attached to the Churches. In course of time educational institutions were set up. However, a number of them were nationalized under Martial Law Regulation No.

118. When the Government tried to effect change in revenue record with a view to show its own ownership over such educational institutions, a Constitution Petition was filed in the High Court and the three grounds especially taken up for invoking the jurisdiction of the High Court are contained m grounds (a), (d) and (f) m the Constitution Petition and these are reproduced as hereunder:‑ "(a) That the question of interpretation of the provisions of the Martial Law Regulation No. 118 and its exact scope is involved which is only possible in the Constitutional proceedings." "(d) That the term 'property attached' has nowhere been defined in the Regulation itself and the respondent in the absence of the definition in the statute cannot give its own meaning." "(f) That the taken over educational institutions of the petitioner were not owners of the property in which the same were established, therefore, there is no question of passing a title to the Provincial Government by virtue of nationalization of such institutions." The learned Judge disposed of the question by observing as hereunder:‑ "Whether or not the property was attached to the educational institutions and as such could be taken over by government under provisions of Martial Law Regulation 118 of 1972, is a matter which requires evidence, both oral and documentary. Therefore, this controversy cannot be appropriately resolved in Constitutional jurisdiction of this Court. The petitioner has equally efficacious remedy available to him at law for vindication of his rights in the property if any by tiling a civil suit and there proving its ownership. In view of the above, the petition has no merit and is dismissed in limine:" Hence this appeal.

3. Sheikh Shaukat Ali, Senior Advocate, the learned counsel for the appellant has put in a set of title documents to establish the ownership of the appellant over these properties and has also adverted our attention to the judgments given by this Court in the Chr1stian Educational Endowment Trust, Lahore v. The Deputy Commissioner, Lahore and others (1987 S C M R 1189), 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 and another (1987 S C M R 1197), Muhammad Bashir and 20 others v. Anjuman Himayat‑i‑Islam and 2 others (P L D 1988 S C 96) and the Government of Punjab through Secretary Education and others v. The Board of Foreign Missions of the Presbyterian Church in the United States of America through Lahore Church Council (P L D 1988 S C 382) to establish his case. In addition, the learned counsel has also referred to the bar contained in Martial Law Regulation No. 118, Article 14, to oust every other jurisdiction in the matter.

4. Muhammad Nawaz Abbasi, Ass1stant Advocate‑General has contended that the appellants had alternative remedy available after the mutation had been attested. They could file appeal etc. before the Revenue Officers with regard to title in the property and the propriety of attesting those mutations. He has supported the dismissal in limine of the Constitution Petition.

5. The bar contained in Martial Law Regulation No. 118 in Article 14 is as hereunder:‑ "14.‑(1) No Court, including the Supreme Court and a High Court, shall call in question, or permit to be called in question, any provision of this Regulation or of any rule or order made or notification issued or anything done or any action taken or purporting to be made, issued, done or taken there under. (2) No Court including the Supreme Court and a High Court, shall grant any injunction or make any order, nor shall any such Court entertain any proceedings, in relation to anything done or intended or purporting to be done under this Regulation."

6. This left no scope for the appellant to go to the ordinary civil Courts for getting the title in the property determined. It had no alternative remedy which 113 can be either considered adequate or sufficient. It was barred.

7. The questions raised in the Constitution Petition relate to the interpretation of Martial Law Regulation No. 118 and also adjudication on a question of fact as to what property was in fact sold and nature of the rights of the appellant in the same, before any finding in the light of law laid down by this Court is recorded. Hence such an enquiry has to be conducted by the High Court, in the first instance, after affording an opportunity to the respondent and in the light of the facts ascertained after enquiry to apply the law already declared by this Court.

8. We accept this appeal, set aside the judgment of the High Court and remand the proceedings to it along with the title deeds filed in this Court, for deciding it in the light of the facts to be ascertained after proper enquiry and by applying to it the law laid down by this Court in the judgments referred to by the learned counsel for the parties. MA.K/R‑109/S Case remanded.