1987 PLP 1189 (SCMR)

In addition to the above, an area of 156 Kanals 11 Marlas and 76 Sq. Ft. was acquired by the Lahore Improvement Trust from the Board of Foreign Mission. But the acquisition proceedings have not so far been implemented in the Revenue Record. The Director General, Lahore Development Authority is being requested to provide the details of entire Scheme including the area acquired from the Board of Foreign Mission for implementation in the Revenue record. It is also pointed out that the L.D.A. after acquisition has returned an area of 135 Kanals 19 Marlas and 56 Sq. Ft. to the Board of Foreign Mission in the form of developed plots. This also cannot be implemented in the Revenue record, unless Khasra wise details of all these developed plots as provided by the L.D.A. The above area is not, therefore, being transferred in the name of Government F.C. College, Lahore. This case is being sorted out with the L.D.A. and it will be finalised in due course of time on priority basis." To understand the background of this decision it may be mentioned that between the years 1929 to 1931 by various Sale‑Deeds the Board of Foreign Missions of the Presbyterian Church in U.S.A. which was desirous of establishing a Missionary Campus at Lahore had purchased a total of land measuring 249 Acres 2 Kanals 7 Marlas and 187.6 Sq. Ft. in Mauza Ichhra, Tehsil and District Lahore, for purposes of their ecclesiastical work. In pursuance of this aim and with the object of evangelization, the Foreign Missions planned and built an Educational Institution in the name of Forman Christian College (shortly known as F.C. College), Lahore on a piece of the abovementioned land purchased by it. The administration of the College was entrusted to the Board of Directors which had appointed an Executive Committee to look after the day‑to‑day work. The Principal of the College was the. Attorney of the Foreign Missions and was to act as Secretary of the Board of Directors and was himself a Missionary and was nominated by the Board of‑Foreign Missions. The F.C. College was built and started functioning on a part of the abovesaid land. . On 28‑1‑1969, a Power of Attorney was executed and completed at New York, U.S.A. by the Commission on Ecumenical Mission and relations of the United Presbyterian Church in the United States of America (normally known as the Board of Foreign Missions of the Presbyterian Church in the United States of America) a Corporation duly organized and registered as a Charitable Corporation in the United States having an office inter alia at 59 Nicholson Road, Lahore, in favour of Mr. Robert E. Stanton and Mr. Alfred A. Schlorhotz to act as Attorneys on behalf of the Board of Foreign Missions. The Mission was desirous of dedicating 56 Acres 6 Kanal 14 Marlas of land out of the properties owned by it in Mauza Ichhra, Tehsil and District Lahore, as trust properties for the aims, objects and purposes set forth in the Deed of Declaration of Trust as approved by the said Commission at its meeting held in New York on 22nd July, 1969. Accordingly, the Deed of Declaration of Trust was made on 22nd May, 1969, whereby the Christian Educational Endowment Trust Lahore (Pakistan)‑‑ the present appellant‑‑ was constituted and land measuring 56 Acres 6 Kanals and 14 Marlas in Mauza Ichhra, Tehsil and District Lahore was dedicated in its favour. This deed was duly registered with the Office of the Sub‑Registrar, Lahore, on 22nd May, 1969. The objects of the Trust as detailed in Paragraph 2 of the Trust Deed are as under:‑-- (A) So long as the Forman Christian College Lahore remains a Christian institution its Principal and all Members of its Board of Directors and the Executive Committee are Christians and profess the Christian religion and the constitution of the Forman Christian College remains substantially the same as presently existing, then. To provide financial assistance, to the Forman Christian College, Lahore, for their educational or vocational programmes by paying all or part of the income and so much of the Principal as the Trustees may approve and so accumulate the net income not so appropriated for as long as desirable for future fruitful application for the same purpose. The Trustees shall not be responsible to see to the application of the Funds so provided; such responsibility shall be exclusively that of the Board of Directors and/or the Executive Committee of the said College. (B) If the Trustees determine that the conditions under sub‑para. (A) above are no longer satisfied, then the trustees in their absolute discretion may apply all or part of the net income to any or all of the following purposes in Pakistan unless political or other circumstances made it impossible or highly undesirable in which case the most nearly similar work elsewhere of the Commission on Ecumenical Mission and Relations of the United Presbyterian Church in the U.S.A.; (i) To provide financial assistance or grants to the Forman Christian College, Lahore for their educational or vocational programmes. (ii) To provide financial assistance or grants to Christian Colleges, Schools, Institutions, Organizations, to cover their education or vocational programmes. (iii) To promote, encourage and develop inventive and research faculties and to afford opportunity for research work in arts, science, industrial undertakings, etc. and to provide financial assistance to Christian Colleges, schools, institutions or organizations in the said matter." By another Deed executed on 21‑5‑1970 and registered with the Sub‑Registrar, Lahore, on the retirement of the first Trustees, new Trustees were nominated in their places. By virtue of the transfer of ownership, Mutation No.10902 was sanctioned on 25‑1‑1971 and in the Jamabandi the land was shown in the ownership of the Christian Educational Endowment Trust (the appellant herein). It is the case of the appellant that there being no dispute about their right to hold the property, the appellant has been and was dealing with the Trust Property as owners in possession. In this connection, it is pointed out that the buildings existing on the property have been on' lease with various persons of Christian faith on nominal rent by the Trust. The agricultural land was given on lease to various tenants who have been paying rent to the Trust. It may also be mentioned in passing that before the creation of the appellant Trust the Lahore Development Authority (LDA) acquired 156 Kanals of land owned by the Presbyterian Church and, accordingly, Deed of Exchange was executed between the said and the said Trust and the L.D.A. The L.D.A. also allotted and handed over 15 plots and two open spaces in Gulberg‑II and Gulberg‑III. The plots in Gulberg‑111 covered by the property of the Trust were transferred by the Trust to the Church. The L.D.A. also approved the exemption of the plots in favour of the appellant‑Trust vide letter dated 19‑4‑1976. Martial Law Regulation No.118 was promulgated on 1‑4‑1972 which provided inter alia that as from the 1st 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 Islamabad territory; (b) In the Provincial Government, if they are situated in a Province. The F.C. College, Lahore, accordingly came to be vested in the Provincial Government. The stand of the appellant is that with the enforcement of this Regulation the constitution, status and character of the Forman Christian College as Christian Institution, as envisaged in the Trust Deed of 22‑5‑1969, got completely changed with the result that the provision for financial assistance visualised by the Trust Deed to the Forman Christian College, Lahore, for their educational or vocational programme was no longer obligatory. Be that as it may, the question still arose whether the land standing in the name of the appellant Trust could be considered to be attached to the F.C. College and, therefore, vested in it on take‑over of the said College under M.L.R. No. 118? This question appears to have been examined in the Law Department which expressed the opinion that although the said land was owned originally by the Board of Foreign Missions of the Presbyterian Church in the U.S.A. but it had transferred the same to the Christian Educational Endowment Trust vide transfer deed dated 21‑5‑1970 and the property owned by the F.C. College, Lahore, were entirely different from that of the Christian Educational Endowment Trust. Hence, the land standing in the name of the Christian Educational Endowment Trust could not be treated as the property of the F.C. College under M.L.R. No.

118. Subsequently, however, the case appears to have been again examined, at the level of the Governor of the Punjab, and the decision was taken to also transfer the property standing in the name of the appellant‑Trust to the Government F.C. College, Lahore. This decision was implemented by respondent No.1 (The Deputy Commissioner, Lahore) vide letter No. AC(S)/886 dated 20‑6‑1981 addressed to the Additional Secretary (I & C), Government of the Punjab intimating that the transfer was made in the revenue record of the area owned by the Christian Education Endowment Trust. As regards the area of 156 Kanals 11 Marlas and 76 Sq. Ft. acquired by the Lahore Improvement Trust it was stated that this was being sorted out with the L.D.A. and it would be finalized in the course of time. These are the facts that form the background of the memo. dated 20‑6‑1981, reproduced at the outset of the judgment. Aggrieved by the action of respondent No.1, noted above, the appellant filed Writ Petition No.3387 of 1981 in the Lahore High Court. This writ petition was heard alongwith three other writ petitions by a learned Single Judge of the said learned Court. All the said writ petitions were dismissed by him vide order dated 1‑3‑1982 observing that the appellant was seeking a declaration for title from the High Court which was disputed by the respondents. As the question of title could be decided only by the civil Court and not by a writ petition hence the remedy by writ petition was not available and the appellant might seek his remedy in civil Court, if he was so advised. Hence this appeal, by leave of this Court. In support of this appeal it was submitted that the appellant was aggrieved by the order dated 20‑6‑1981 passed by the Deputy Commissioner, Lahore, whereby the properties standing in the names of Board of Foreign Mission and Christian Educational Endowment Trust were ordered to be transferred in the name of the Government F . C . College, Lahore. According to this order, an area of 335 Kanals 12 Marlas 167 Sq. Ft. was stated to be owned by the Christian Educational Endowment Trust alongwith the exempted plots in lieu of the acquisition of land by the Lahore Improvement Trust. As such, the dismissal of the writ petition on the plea that the appellant sought a declaration of title from the High Court was totally misconceived and it was a clear case of misreading of the impugned order and the public record. It was further submitted that by virtue of the deed of declaration of the Trust, namely, the Christian Educational Trust, Lahore (Pakistan) dated 22‑5‑1969 and the subsequent entries made in the Revenue record, the disputed lands were owned as Trust property by the appellant‑Trust. This property was not at all attached to the Forman Christian College, Lahore. The appellant‑Trust was only under an obligation to provide financial assistance to the Forman Christian College, Lahore, in their educational or vocational programme so long as the Forfhan Christian College remained a Christian institution, its Principal and all its Members of its Board of Directors and the Executive were Christians and professed the Christian Religion and the Constitution of the Forman Christian College remained substantially the same as existing at the time of formation of the Trust. All this having been set at naught by the promulgation of M.L.R. No. 118 and fundamental changes having taken place in its constitution and character such as by the appointment of non‑Christians as Principals and Members of the Board of Directors etc. the appellant was not even under an obligation to provide financial assistance to the institution. In these circumstances, it was submitted that the impugned order passed by the Deputy Commissioner, Lahore transferring the Trust Property to the P.C. College, Lahore was totally outside the scope of M.L.R. No. 118 and the jurisdiction of the said Officer. The submission being that the Deputy Commissioner had no jurisdiction whatsoever to divest the appellant‑Trust i.e. Christian Educational Endowment Trust of its proprietary rights and as such his order was totally without jurisdiction. It was also submitted that the impugned order had been made without affording any opportunity or after issuance of any notice to show cause against this order to the appellant‑Trust. Hence, the impugned order was liable to be set aside in the exercise of writ jurisdiction. The case of the respondents, as set out in the written statement in the High Court was that the disputed property always belonged/ attached to the Forman Christion College, Lahore; therefore, on the enforcement of Martial Law Regulation No.118 of 1972 with effect from 1‑9‑1972 the same vested in the Provincial Government. The Deputy Commissioner had done nothing except to give effect to the operation of M.L.R.

118. It was further the case of the respondents that the property in 'dispute never belonged to the Trust or the Mission or the Church. All the College authorities as well as the Mission had always treated the property in dispute as belonging to and as attached to the F. C. College, Lahore. Since 1929 to date the property in dispute had always been and continued to be treated as the College property and was never used or utilised for any other purposes. Even if there had been entries in the Jamabandi contrary to this position, the same did not carry any weight and the property rights of the College and the Provincial Government were not affected. The resolution of the Executive Committee of the Board of Directors transferring the property from the name of the College to the Board of Foreign Mission of the Presbyterian Church in U.S.A. was "unauthorised and was of no avail". The creation of the Trust by the Commission on Ecumenical Mission and Relations of the United Presbyterian Church in U.S.A. was illegal and void. In short all the properties and lands were attached to the Forman Christian College, Lahore; the Deed of Declaration of Trust and subsequent deeds were also illegal, mala fide and void. The property was always owned, possessed by/attached to and used by the Forman Christian College, Lahore. The Deed of Declaration of Trust and the Deed of Transfer of Trust Properties from one trustees to the other trustees without consideration were also illegal, mala fide and void. The Jamabandi was got prepared by the Mission with mala fide intention and did not show the correct position. Thus, the action of respondent No.1 giving effect to the operation on M.L.R. No.118 was perfectly legal and unobjectionable. We have heard Sh. Shaukat Ali, in support of the appeal and Mr. Khalil Ramday, learned Additional Advocate‑General (Punjab) on behalf of the respondents. The relevant provision of Martial Law Regulation No.118 in the present context is contained in paragraph 4 thereof which reads as follows: ‑-- "

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. The crucial questions arising in this case are whether the property claimed to have been dedicated as a Trust in favour of the appellant Trust was indeed validly created as Trust property and if so whether it was attached to the ‑F.C. College and vested in the Provincial Government on the take‑over of the said College, under Martial Law Regulation No.118? Under the Trust Act, 1882, the Trustee of the Trust Property is, in fact, the legal owner thereof and the property vests in him as such. Hence if a valid Trust had indeed come into being under the Deeds of Trust, the said property become vested in another owner and could not be deemed to form part of the F. C. College and considered as attached to it while taking‑over the F.C. College under M.L.R. No.

118. Now it is an undisputed fact that the land in dispute is shown as Trust property and owned by the appellant, in the Revenue records. The position taken up by the respondents before us is that the creation of the so‑called Trust was a hoax and in fact, the property in dispute was always attached to the F.C. College and continued to be so attached even after the creation of the alleged Trust. It is, however, established law that any action which may effect the person or property or other right of any party concerned in a dispute can only be taken after giving the person to be effected thereby a reasonable opportunity of showing cause. See Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak PLD 1959 S C

45. Here, it was, inter alia, observed:‑-- "The rule of justice embodied in the maxim audi alteram partem: "No man shall be condemned unheard' is not confined to proceedings before Courts but extends to all proceedings, by whomsoever held, which may affect the person or property or other right of the parties concerned in the dispute. As a just decision in such controversies is possible only if the parties are given the opportunity of being heard, there can be as regards the right of hearing, no difference between proceedings which are strictly judicial and those which are in the nature of a judicial proceedings though administrative in form." This principle was reiterated in Messrs Faridsons Ltd. Karachi and another v. Government of Pakistan and another PLD 1961 S C 537, Commissioner of Income‑tax, East Pakistan v. Fazlur Rahman PLD 1964 S C 410, Sh. Abdur Rahman v. The Collector and Deputy Commissioner, Bahawalpur and others PLD 1964 S C 461, Saiyyid Abul A'la Maudoodi and others v. The Government of West Pakistan and another PLD 1964 S C 673, The University of Dacca v. Zakir Ahmad PLD 1965 S C 90, Abdus Saboor Khan v. Karachi University and another PLD 1966 S C 536 and Abdul Wadud Khan v. Chief Land Commissioner etc. PLD 1983 S C

183. In the last‑mentioned case the Land Reforms Authorities had declared a gift to be invalid without hearing the donee. The contention that since the declarant and the donee were close relations and the declarant was vigorously pursuing their case, hence the donee was not entitled to a notice was repelled and it was held that the order of the Land Reforms Authorities was passed without lawful authority and was of no legal effect because the donee had a right to be heard. In the present case too the question whether the land standing in the name of the Christian Educational Endowment Trust was or was not a Trust property could not be decided without affording an opportunity to the appellant to be heard. It was only if the property in question was not a Trust property that it could be held that this property was attached to the Government F.C. College and, therefore, vested in the said institution on the enforcement of Martial Law Regulation No.118. The proprietary rights of the appellant were effected by the decision on this question and before any adverse decision could be taken against the appellant it was necessary under the law, as guaranteed under the principles of sudi alteram partem, to give the appellant an opportunity of hearing, which was admittedly not granted. Hence, the order dated 20‑6‑1981 was clearly violative of the principles of natural justice and a nullity in law. The decision conveyed by respondent No.1, vide impugned memo. dated 20‑6‑1981, is, therefore, declared to be contrary to law and of no legal effect. The result is that this appeal succeeds on this short ground alone and is, accordingly, allowed with costs M.B.A./C‑4/S ???????????????????????????????????????????????????????????????????????????????????? Appeal accepted.