1996 PLP 1785 (CLC)

This C.M. has been filed on behalf of the Headmaster, Government Zia‑ul‑Aloom High School, Rawalpindi for allowing the school to get possession of thirteen rooms and three latrines, on temporary basis, during pendency of the main petition, the temporary relief was granted vide order dated 20‑3‑1996 by means of a short order. The reasons for the same are contained herein.

2. Property No.U‑350, Raja Bazar, Rawalpindi vests in the Evacuee Trust Property Board. Major portion of the building is in occupation of Government Zia‑ul‑Aloom High School which was nationalized in 1972. The case of the petitioner is that thirteen rooms and latrines, which were in use of the school have been illegally occupied by the functionaries of the Board with the help of some other persons with the result that the staff and the school children have been deprived of the user of the same. The Director of Education was required by this Court to personally visit the spot and find out the factual position. After spot inspection he informed the Court that there are 480 students in the school which has classes from Nursery to 10th and the teaching staff consists of male and female teachers. He has further informed that the disputed rooms are presently under lock and key and these were previously in possession of the school and shockingly even the latrines which were in the use of the school children have been locked.

3. To substantiate his submission that these rooms and the latrines were in use of the school, learned counsel for the petitioners has invited my attention to the application made by the Headmaster of the school on 29‑1‑1970 to the Education Department for recognition of the school. Twenty rooms and a big Hall are shown to be in possession of the school in this application. A map showing location of the class rooms is also annexed with this application. The application and the site plan annexed therewith have been placed on the record. These are duly signed/attested by the Assistant Secretary (Academic), Board of Intermediate and Secondary Education, Rawalpindi. Learned counsel has vehemently contended that these documents of old origin clearly show that twenty rooms and a Hall remained in possession of the school since before 1970 and the same should be allowed to be used by the school during pendency of the main petition, in the interest of better education of the school children. He apprehends that if it is not done the rooms shall be demolished and the character of the very site shall be changed to the detriment of the school.

4. The case of the Evacuee Trust Property Board, on the other hand, is that this building had two portions, one is in occupation of the Government Zia‑ul‑Aloom High School and the other was with the Madrassa Madina‑tul -Aloom. Earlier to 1972, the school and the Madrassa were run by the late Pir Sahib of Davel Sharif. On nationalization, the school became an independent entity and the Madrassa remained under the control of Pir Sahib. After the demise of Pir Sahib the portion of the building in possession of the Madrassa was handed over to the Evacuee Trust Property Board by his son Ala‑ud‑Din. This portion measuring 15 Marlas has already been given on lease for 30 years to Sh. Lzhaar-ul‑Haq and Abdul Rashid for the purpose of construction of a shopping Plaza of three storeys, at monthly rental of Rs.10,000.

5. Kh. Saeed‑ul‑Hassan, learned Legal Advisor of the Board has submitted that the Board has not occupied any of the rooms which were in possession of the school. The rooms now sought to be handed over to the school authorities were part of the Madrassa and not the school. He has vehemently opposed this application by contending that the very writ petition on disputed questions of fact is not maintainable, the petitioner has no prima facie case, the disputed rooms having already been leased out by the Board to boost up its revenues the balance of convenience lies in refusal of the grant of temporary relief and this relief if granted would amount to granting the ultimate relief prayed for in the writ petition. His precise submission is that the prerequisites for grant of temporary relief under Order 39, Rules 1 and 2, C.P.C. are wanting in the present case.

6. After hearing the learned counsel for the parties and taking into consideration the material placed on the record and the personal observations of the Director Education who visited the spot for verification of factual position, I find that prima facie out of the disputed accommodation ten rooms and three latrines were previously in use of the school, therefore, subject to the ultimate decision in the writ petition and purely by way of temporary arrangement, it is in the interest of justice to direct that the possession of the ten rooms and the latrines which are presently locked should be handed over by the Deputy Administrator of the Board to the Director Education, Rawalpindi Division for user thereof by the staff and the school children.

7. The contentions raised by the learned counsel of the Board may now be discussed. It is claimed by the petitioners that the school is the legal owner in possession of the building of the school, in view of the decision of the Federal Government, dated 9‑5‑1976 and subsequent instructions issued by the Evacuee Trust Property Board on 16‑8‑1984, whereunder the educational institutions situated in the properties vesting in the Evacuee Trust Property Board and run by the Provincial Education Departments stand transferred to the Education Department of the respective Provincial Government. Based on this proprietary claim prayer has been made in the writ petition that the respondents should be directed not to interfere in the peaceful ownership of the school and for restoring the possession of 13 rooms and three latrines to the Headmaster of the school.

8. The Evacuee Trust Property Board in pursuance of the decision of the special meeting held on 9‑5‑1976 under the Chairmanship of the Prime Minister of Pakistan, decided that such Evacuee Trust Buildings which housed educational institutions should be handed over to the Education Department. The I decision to this effect finds mention in the following memo.:‑ "Evacuee Trust Board, Government of Pakistan. No.F‑I/1474/ETPB, dated 10‑6‑1976. Sub: Evacuee Trust Buildings in Possession of Education Department for Education purposes. In pursuance of the decision of the special meeting held on 9th May, 1976, under the Chairmanship of the Prime Minister of Pakistan, all evacuee trust buildings, housing educational institutions (except buildings which are housed in religious buildings) are to be handed over to the Education Department of the Province concerned. You are, therefore, directed to immediately hand over all such buildings to the Education Department authorities of your district under advice to this office and the Secretary, Education Department of the Province. A report containing list of properties as handed over should be forwarded immediately to this Secretariat. This issues with the approval of the Chairman. " Subsequently, the Federal Government decided that Evacuee Trust Properties in possession of the educational institutions run by the Provincial Education Department may be transferred to the Provincial Government. The relevant memo. containing this decision is reproduced below:‑‑ . "Evacuee Trust Property Board, Government of Pakistan 9‑Court Street, Lahore. (1)‑48/(6)/76/6963, dated 16‑8‑1984. All Deputy/Assistant Administrators, Evacuee Trust Property Board in Pakistan. Sub:‑ Transfer of Evacuee Trust Properties in the Possession of Education Institutions run by the Provincial Education Department. Continuation of this office Memo. No.P91‑48/(6)/76/4070, dated the 12th June, 1948 and subsequent reminder dated the 16th July, 1984, on the subject noted above.

2. The Federal Government now vide its Letter No.F.4(2)/MP/ETP/84, dated 5th July, 1984, has decided that the Evacuee Trust Properties in possession of the Educational Institutions run by the Provincial Education Department may be transferred to the respective Provincial Governments on the lines as have been adopted in the case of Evacuee Trust Properties in possession of Local Bodies. "

9. The question of transfer of the school building in dispute to the Punjab Education Department is already in process with the Federal Government in the Ministry of Minority Affairs, Islamabad. The letter dated 11‑2‑1995 addressed by the Assistant Educational Advisor, on the subject reads as under:‑‑ "No.F.3‑1/92‑PE‑II Government of Pakistan, Ministry of Education ' PNE‑Wing. Islamabad, the 11th February, 1996. Sub: Transfer of E.T.P. Building No.U‑350 (Gurdawara) in possession of Government Zia‑Ul‑Aloom High School, Raja Bazar, Rawalpindi. I am directed enclose herewith a copy of Punjab Education Department Letter No.S.O. (R&B)‑5‑13/85, dated 13th December, 1995, on the above subject addressed to Ministry of Minorities Affairs, Islamabad for taking necessary action in pursuance of Government of Pakistan 1984 decision as mentioned in para.6 of the letter referred to above. (Zafar Iqbal Javed), Assistant Educational Advisor. "

10. Let me now examine whether the requisites for the grant of temporary relief prayed for are available in the present case or not. The first question to be determined is whether the petitioner has a prima facie case. It has been argued on behalf of the school authorities that under similar decision of the Federal Government agricultural land belonging to the Evacuee Trust Property Board has been sold in various parts of the country at the rate of Rs.8 per index unit to the J & K Displaced Persons holding temporary allotments. The Punjab Education Department has, therefore, become owner of the school building and the land appertenent thereto under the aforequoted decisions of the Federal Government. In the light of the decisions of the Federal Government and the Evacuee Trust Property Board I am of the view that the petitioners have a very good case to urge that the school building and the appertenent land which remained in possession of the school are liable to be transferred to the Punjab Education Department which has become vested with proprietary rights in the school premises. This means that the petitioners have a prima facie case.

11. The question relating to irreparable loss/damage if the relief claimed in this application is not granted, may now be discussed. It is an admitted position that initially the school and the Madrassa were run under the controls of Pir Sahib. It can be safely presumed that after the Nationalization the school children continued to enjoy the facilities which were common to the school and the Madrassa, such as the latrines, star‑cases, verandas, entrances and the open area attached to the building. This is so because the portions respectively in possession of the school and the Madrassa are not independent and separate. These are the portions of one integrated building having common facilities. In these circumstances if a good part of the building is sliced away and a multi storeyed Plaza is guilt thereon the result would be that the school children will be deprived of using the latrines, open space around the building, the verandas and the stair‑cases etc. The Director Education who is a responsible officer after spot inspection has reported that at least 10 locked rooms and three latrines were previously in use of the school. If these rooms and the latrines are not restored to the school, then the school children are bound to suffer in education and this will be a colossal loss to the school children specially and the Nation generally. This means that the inconvenience which the school children will suffer if the temporary relied prayed for is not granted will be greater. In other words, the balance of inconvenience is in favour of the petitioners for the grant of the temporary relief.

12. It must be noted that it is the duty of the State compulsory Secondary Education. Article 37 falling the Constitution reads as follows:‑‑ "

37. The State shall‑‑ (a) .................................... (b) remove illiteracy and provide free compulsory secondary education within the minimum possible period; (c) .................................... (d) .................................... (e) .................................... (f) .................................... (g) .................................... (h) .................................. (i) ................................... Similarly Article 9 of the Constitution guarantees protection to life as a fundamental right. The word 'life' occurring in this Article has been liberally interpreted by the superior Courts of Pakistan, to include all such rights which are necessary for leading a proper and comfortable life, worthy of citizens of a free country. The requirement of acquiring knowledge is also part of 'life'. In view of the Constitutional provisions embodied in Articles 9 and 37 of the Constitution. it is the duty of the State to provide all possible facilities and opportunities to the citizens for receiving education. All laws have to be interpreted with a view to advance the Constitutional dictates and intention of the Constitution‑givers. Keeping this principle in view, the question relating to irreparable loss while considering the grant of temporary relief in the circumstances of the present case has to be liberally construed in favour of advancement of opportunities of education. Therefore, if the students are deprived of the facilities enjoyed by them, it will amount to irreparable loss for them, for the purpose of grant of interim relief under Order 39, Rules 1 and 2, C. P. C. 13. 15 Marlas of land including the rooms in dispute have been statedly leased out to two persons for building a three‑storeyed shopping plaza on comparatively small rental of Rs.10,000 per month and a lease deed is said to have already been executed. The disputed property is stated to be contiguously situated to a market in the Raja Bazar. Yet this highly valuable property has been given on long lease secretly by private negotiation. Except for the execution of the lease deed no further tangible step has been taken, so much so even the lease money has not been paid to the Board. In these circumstances the lessees are not entitled to be heard at this stage when the question of temporary relief is to be decided. Of course, they shall be heard when the main petition is to be decided. Keeping in view the three ingredients to be considered while granting interim injunction, I am of the view that all the conditions are fulfilled in the present case for the grant of temporary injunction.

14. Kh. Saeed‑ul‑Hassan, learned counsel for the Board has argued at length that the writ petition involves disputed questions of fact which cannot be resolved in Constitutional jurisdiction and hence the very writ petition is not maintainable. Normally the disputed questions of fact are not resolved in writ jurisdiction but this is only a rule of propriety and riot of want of jurisdiction. The High Court while exercising powers under Article 199 of the Constitution is competent to entertain and decide matters which may involve disputed questions of fact. The Court, however, is always reluctant to exercise this power when the dispute involves intricate factual controversy requiring recording of evidence. But in exceptional cases even such an exercise can also be made when the Court finds that doing so will be necessary to secure justice in a particular case. Factual controversy notwithstanding, the Court may entertain and decide Constitutional petitions in cases. where public interest litigation relating to enforcement of Fundamental Rights and other public interests are involved. In the instant case the public interest relates to the education of so many school children. As already held in the earlier part of the judgment to receive Education is a right of every citizen on the one hand and duty of the State on the other. Therefore, the petition cannot be thrown away merely on the objection that it involves factual controversy as to whether the rooms now claimed by the school were in its possession or not. In the circumstances of the case, it does not give rise to an intricate factual controversy. The dispute, if any, can be resolved for deciding the question of temporary relief in such way that it promotes the cause of education. It must also be observed that questions of fact are usually disputed by the parties in almost all the Constitutional petitions. It is very rare that there is unanimity on facts between the parties. Should then Constitutional petitions be straightaway rejected because the respondents choose to deny the factual averments. Certainly the power is no.

15. In view of the above circumstances, I am of the view that the petitioners have a prima facie case as also the balance of convenience for grant of the temporary relied prayed for. Resultantly the interim relief was granted on 25‑3‑1996 to the following effect:‑‑ "For reasons to be recorded later, the Deputy Administrator, Evacuee Trust Property Board is directed to hand over the possession of the 10 rooms and 3 latrines to the Director Education, if necessary, with the help of the police force today. The S.H.O., Police Station City 'Rawalpindi shall render all possible help for the purpose of delivery of the possession of the rooms, when approached by the Deputy Administrator, Evacuee Trust Property Board in that behalf. "

16. Before parting with this case I would like to observe that from the submission made at the Bar it appears that the building of the school is not in good shape. It requires rebuilding/repairs, which the Punjab Government ; cannot do unless the building is transferred to its ownership. Area of this entire property is stated to be about fifty Marlas. Out of this, the Board wants to have fifteen Marlas of land for construction of a shopping plaza to earn income for it. I understand that the Board also spends a lot of money to cater educational needs in the country. If deemed feasible, by mutual agreement of the functionaries of the Board and Education Department of. the Punjab Government, some solution can be worked out so that educational need of the school may be met and the Board may also be able to utilize a part of the land to boost up its earnings. One possible solution can be that new school building may be raised at the expense of the Evacuee Trust Property Board on major portion of the land while about 10/15 Marlas of land may be utilized by the Board for commercial purposes. If this is done, the school will have a proper new building with all the amenities and the Board will have a permanent source of income. The pendency of the main petition will not be a bar for the Board and the Punjab Education Department to arrive at some settlement in this behalf. Needless to say that the discussion on merits while deciding the C.M: is purely tentative in nature. The Director Education (School), Rawalpindi shall take care that the rooms which may be found in dilapidated condition may not be used so that safety of children is not jeopardized. Copies of this order shall be communicated by the office to respondent No.2 and petitioner No.2. A.A./H‑9/L Order accordingly.