P L D 1988 Supreme Court 96 (PLP)

MUHAMMAD AFZAL ZULLAH, J.‑‑All these petitions arise out of the same impugned judgment, they are, therefore, being disposed of together. Civil Revisions arising out of the dismissal of suits filed by the petitioners having been dismissed by the Lahore High Court vide its judgment, dated 10‑5‑1986, the unsuccessful plaintiffs/ petitioners have now sought leave to appeal. The facts given and contentions raised (in C.P. No. 174‑R of 1986) by the learned counsel for the petitioner therein have been adopted by the learned counsel for the petitioners in all the other petitions. Learned counsel has stated that a shop attached to the Islamia College, Railway Road, Lahore, was with the tenant (petitioner) under respondent No. 1, the Anjuman Himayat‑i‑Islam. This property was exempted from the Rent Restriction Law. The respondent No.l filed a suit for possession through ejectment against the petitioner. The suit was decreed against him (the tenant) in 1970. This decree was maintained up to the Supreme Court. Its decision was rendered in 1974 and is reported in Sh. Khushi Muhammad and 30 others v. Anjuman Himayat‑i‑Islam, Lahore P L D 1975 SC

54. In the meanwhile, Martial Law Regulation 118 of 1972 was promulgated. Islamia College, Lahore, was also one of the taken over institutions under the said Regulation. Learned counsel further stated that the Anjuman wanted to execute the decree passed in its favour in 1970 against the petitioner. He filed a declaratory suit to nullify the effect of that decree on the main ground that by virtue of the Martial Law Regulation, the ownership in the shop had vested in the Provincial Government, therefore, the Anjuman/decree‑holder could no more execute the decree. This suit was dismissed on 23‑12‑1984. Appeal filed by the petitioner was also dismissed on 7‑12‑1985. The Revision of the petitioner having been dismissed by the High Court, leave to appeal has now been sought. Learned counsel for the caveator in the very outset brought to our notice a recent judgment of this Court in Board of Foreign Missions v. Government of Punjab (1987 S C M R 1197) wherein the controversy relating to the ownership of the buildings in which the taken over educational institutions were being run, was resolved and it was held that the Government was neither intended to become owner nor it ever became owner of such properties. That being the position with regard to the main question involved in these petitions, learned counsel frankly stated that he would not be able to press the argument which related to the said controversy. He, however, relying on the letter (duly exhibited, and now at page 93 of the Paper Book) issued by the Provincial Government on 27‑9‑1975, contended that it should be held that the Government had divested itself of the ownership in the property only from that date. And because earlier thereto the ownership had vested in the Provincial Government, the decree passed in favour of the A Anjuman, in 1970, could not have been, executed. We do not agree with the learned counsel. Nor we approve of l the observations to the same and/or similar effect in the impugned judgment. The law declared by this Court in the cited judgment relates to the interpretation of the provisions of Martial Law Regulation 118 in respect of the question: whether the said Regulation implied that the Government had become owner in relation to the building wherein schools or colleges were being run. That interpretation would be attracted to the said controversy whether it was raised soon after the promulgation of the Martial Law Regulation or at the time of judgment was rendered by this Court and/or the intervening period. Moreover, the reading of the letter relied upon by the learned counsel also does not convey the impression that the Provincial Government had at any earlier stage claimed the 'ownership' of the property in dispute. The giving up of the claim in para. 1 of the letter can in the context of the law declared by this Court be treated as the giving up of the claim of management of the 'properties' mentioned in that letter. This gets support from para. 4 of the letter which provides that the Education Department will pay to the Anjuman the 'whole amount' of rent realized by it. Same would apply to another paragraph of the letter which required that 'the Anjuman, as already given by it in writing, shall construct at a suitable site in the College premises new accommodation equivalent to the accommodation in the Tibbia Block presently occupied by the Islamia College, Railway Road, Lahore'; and that, 'the Tibbia Block will 'be vacated by the Islamia College as soon as the new accommodation mentioned above is constructed by the Anjuman'. It does not convey the meaning that the given up accommodation or the new accommodation ever belonged to or would belong to the Provincial Government. Although the learned counsel for the petitioner did not cite another judgment, of this Court ‑ Province of Punjab v. Mufti Abdul Ghani P L D 1985 SC 1, yet reference to it has become necessary, lest it may be misunderstood that the claim of ownership of the Provincial Government in such a case was in a way, upheld. The facts narrated therein would clearly show that the dispute being then resolved was: whether or not the evacuee plot in which the school in question was being run (and on which the building of the school in question was constructed) belonged to the Provincial Government or to the management of the school. It was in this context that at page 7 of the report, it was observed as follows: "It is nobody's case that any of the conditions was not satisfied. In fact the formal transfer order dated 21‑7‑1979, in favour of the School contains a reference to the order of 7‑5‑1962 and Condition No. (1) mentioned above without any doubt about its fulfilment. Regarding the Condition No. (2) also the transfer order does not show that it was not fulfilled by the transferee School. Had it been otherwise, the transfer order could not be in favour of 'the school' and indeed some one including the respondent might then have raised an objection to this transfer. But there was none. Thus, the ownership of the plot in this case is that if 'the school' as distinguished From the building and properties owned by the 'individual owners' but occupied by the Schools as tenants or otherwise under the owner." (Underlining now by us) After making reference to a letter of the Provincial Government, dated 17‑1‑1978 and the directions contained therein, it was further observed as follows:‑ "This direction related to the buildings which belongs to the former managements whether they are individual ordinary owners or transferee owners from the Settlement Department and not to the buildings or plots owned by 'the Schools' themselves by way of transfer from the Settlement Department, as in this case. Similarly any other general action of the Government recognising the former type of owners as landlords or owners entitled to receive rent is not of any help to the respondents." Earlier at page 6 of the report it had also been clearly stated that 'the ownership question has two facts. The plot admittedly stands transferred to the School. It could have been an entirely different situation if the transfer was in name of the respondent', 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 P L D 1985 SC 1, be a different case if the property originally belonged to the Government before the promulgation of the Regulation. Learned counsel for the other petitioners at the end of the submissions made by the learned counsel for the petitioner in C.P. No. 174‑R of 1986, stated that he had nothing more to add. As a result of the foregoing discussion, these petitions have no merit. They are accordingly dismissed with costs throughout. M.B.A./M‑275/S?????????????????????????????????????????????????????????? Petitions dismissed.