1989 PLP 24 (MLD)

Martial Law Regulation 118 was promulgated by the Chief Martial Law Administrator on 1st April, 1972. This was continued in force by the Interim Constitution of the Islamic Republic of Pakistan 1972, which came into force on the 21st day of April, 1972 by-Article 280(3) thereof. The said sub-Article provides: "(3) All Martial Law Regulations and Martial Law Orders, except the Martial Law Regulations and the Martial Law Orders specified in the Seventh Schedule, are repealed with effect as from the commencing day and on that each Martial Law Regulation and the Martial Law Orders so specified shall be deemed to have become an Act of the appropriate Legislature and shall, with the necessary adaptations, have effect as such: Provided that no bill to amend or to repeal any of the Martial Law Regulations or the Martial Law Orders specified as aforesaid shall be introduced or moved without the previous sanction of the President:" Thus on lifting of Martial Law on 21-4-1972 this Regulation became an Act of the Appropriate Legislature and it has since been designated as the "Privately-managed Schools and Colleges (Take-over) Regulation, 1972." These provisions have also been saved under Article 8 of the Constitution of Islamic Republic of Pakistan, 1973 (1st Schedule Item 17). It will be advantageous to reproduce here the provisions of Paras 4 and 5 of the Martial Law Regulation 118, which read as under:- "

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.

5. Such privately-managed school as the Central Government, in the case of a school situated in the Islamabad Capital Territory, and the Provincial Government in any other case, may; by notification in the official Gazette issued at any time on or after, the first day of October, 1972, specify in this behalf shall vest in the Central Government or, as the case may be, in Provincial Government, together with all property attached to it." M/s. Khalid M. Ishaque and Mushtaq Memon, Advocates, appearing for the petitioners have contended that the notifications of Take-over by Government are in violation of the provisions of Martial Law Regulation 118 in so far as they relate to the ownership of the buildings and properties of the petitioners. Their case is that the scheme and provisions of Martial Law Regulation 118 contemplate taking over the management of the School or College and not assuming the ownership of the buildings or properties of the owners or Managers. They have taken us through various documents brought on record of the case in order to show that the said buildings were not the properties of the school and college but were, owned by the petitioners and that the same were on rent. In support of their contentions the learned counsel for the petitioners have placed reliance on the cases, namely, (1) 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, Civil Secretariat, Lahore and another 1987 SCMR 1197; Muhammad Bashir and 20 others v. Anjuman Himayat-i-Islam and 2 others P L D 1988 S C 96 and Anjuman--Islamia Pakistan v. Province of Sind and another 1983 C L C

394. They have also referred to various cases in support of their contentions that the Courts have the power to examine the provisions of law and the acts of the executive if the same are violative of fundamental rights and are mala fide or coram non judice. Mr. A.R. Akhtar, Advocate, appearing for the respondents has submitted that the provisions of Martial Law Regulation 118 cannot be called in question nor can be the vires of the same be challenged, as these are protected by Article 8 of the Constitution of Islamic Republic of Pakistan, 1973. His contention is that by virtue of Paras 4 and 5 of the Martial Law Regulation 118 and the notifications issued thereunder the said buildings and properties stand vested in Government. He has further argued that word 'Vest' would mean that the relevant Government becomes the owner of the building of the property in question. He further argued that such buildings and properties ipso facto stand transferred to the Government and that all such Orders and Acts are protected under Articles 268, 269 and 270-A of the Constitution of Islamic Republic of Pakistan. He has placed reliance on the cases, namely (1) Shah Muhammad v. Federation of Pakistan and others (19 S C M R 182), (2) Muhammad Siddiqui Cheema and another v. Government of the Punjab and 3 others (1984 S C M R 67), and (3) M. Yamin Qureshi v. Islamic Republic of Pakistan and another (P L D 1980 S C 22). He has also taken us through the documents brought on record. In our view the real question in the present petitions for determination is not whether the land and the building which was built as school or college and used as such vested in, the Government under paras 4 and 5 of the Martial Law Regulation

118. But the true question, in the facts and circumstances of the case is whether the vesting of such school or college in the Provincial Government had the effect of making it the property of Government alongwith the assets as claimed by the Government. In order to answer this question it is necessary to comprehend what was intended by vesting the privately-managed educational institutions in the Central or Provincial Governments by Martial Law Regulation

118. In our view the questions dealing with vires of Martial Law Regulation 118 or the powers of the Government, Central or Provincial to assume the management of the educational institutions are not involved in the present case but it is the interpretation and effect of the said provisions that is to be dealt with. Therefore, the important question to be determined is what is meant by word 'vest' in the provisions of paragraphs 4 and 5 of the Martial Law Regulation

118. In the case of Board of Foreign Missions v. The Government of the Punjab (1987 S C M R 1197), their Lordships have held:-- "Moreover, it has consistently been held by the superior Courts that the word 'vest' is a word of variable import not having a fixed connotation and does not necessarily mean to 'vest in title'." In the above authority a reference was made to the case of Noor Muhammad v. Mst. Sardar Khatun and others P L D 1951 Sind 1, wherein it was held:- "The word 'vest' has a very well-defined meaning. Vesting in relation to property means the acquisition of legal right of immediate possession and dominion over property. It means nothing more. One speaks of a property vesting in an executor, a trustee, an official assignee or an owner of a property from the moment when the individual m question acquires the legal right of possession and dominion. The words 'the sum shall vest in the nominee', do not connote anything more than that in law the legal right to immediate possession of and dominion over the property shall pass from the trustees of the fund to the nominee, and do not mean that the full rights of ownership including the right to the beneficial enjoyment of the property, shall pass to the nominee. The nominee becomes entitled to possession of the sum without having to obtain letters of administration or a succession certificate. A property may vest m one person, and the beneficial right of enjoying the property as an owner may at the same time vest in another person. The division of the full rights of ownership into the right to possession and dominion, and the right to the beneficial enjoyment of the property is one which is well recognized. Where an executor is appointed by a will, the estate tilts in the executor while the beneficial interests vest in the legatees, on the death of the Testator. One very important result of an interest vesting in a person is that the vested interest becomes heritable, divisible and transferable, Soorjumonhy v. Dinobandhu 9 MIA 323." And in the same case of Board of Foreign Missions v. The Government of the Punjab, their Lordships held:- "We are, therefore, of the opinion that merely because the privately managed schools, alongwith their assets were to vest in the Government, under the terms of para 5 of Martial Law Regulation No.118 it did not imply that Government had become the owner in relation to the buildings wherein schools or colleges were being run. The intention of Martial Law Regulation No. 118 manifestly was only to take over the management of the institutions and not to confiscate the property in which the privately-managed school was being run. In fact, this intention becomes further clear from the subsequent legislation enacted on the subject of "Privately Managed Schools and Colleges (Taking Over) Regulation, 1972". In this connection, President's Order 6 of 1983 on the subject of "Privately Managed Schools and Colleges (Taking Over) (Amendment) Order. 1983", is revealing. By Article 3 of this Order after paragraph 12, paragraphs 12-A and 12-B were inserted in Martial Law Regulation No.118. Paragraph 12-A laid down:- "12-A. The Provincial Government may prepare a scheme to provide for the re-transfer to the previous Management thereof any class of privately-managed colleges and schools vesting in the Provincial Government by virtue of or under this Regulation which in its opinion it would be in the public interest to so re-transfer and may, in accordance with the scheme, by notification in the official Gazette, direct that a college or school belonging to such class and specified in the notification shall, on and from such date as may be so specified, stand re-transferred to the previous Management thereof, subject to such terms and conditions as the Provincial Government may determine. Explanation:--In this paragraph, previous management includes the successor or legal representative of the previous management and, where there is no; successor or legal representative, such person as the Provincial Government may determine. According to the above provision Provincial Government is authorise6 to re transfer any class of privately managed colleges and schools back to the previous management thereof. Implying thereby that it was only the management and no the building in which the said school or college was housed that was taken over The other case on the subject is of Muhammad Bashir and 20 others v Anjuman Himayat-i-Islam and 2 others P L D 1988 S C

96. It was held in the concluding paragraph: "Thus, the said judgment also would not support the petitioner's that the properties m 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 S C 1, be a different case, if the property originally belonged to the Government befog the promulgation of the Regulation". From the above discussion it is clear that the provisions of paragraphs 4 and 5 of the Martial Law Regulation 118 were neither intended to nor in terms have the effect of making the Government the owner of the property in question. We therefore, hold and declare that the petitioners continue to be the owners of the land and buildings in present petitions which housed the said privately managed educational institutions and the assumption of the respondents that they have become owners of the same is without lawful authority and contrary to law. We also declare that the petitioners are entitled to receive rent from the respondents for the said buildings which the respondents are directed to pay according to law. These three petitions are, therefore, allowed in above terms. However there will be no order as to cost. M.Z.S./A-451/T Order accordingly.