KARACHI, Nov 20: The Supreme Court has refused leave to appeal while dismissing the petition filed by the principal of Government Islamia Law College against the Sindh High Court order passed in the constitutional petition D-96 of 2001 filed by the Islamic Education Trust.
The Supreme Court bench comprised Justice Nazim Husain Siddiqui and Justice Rana Bhagwandas.
The writ petitioner before the High Court had prayed that without interfering in the academic activities the petitioner Trust might please be allowed to enjoy its legal rights in the capacity of owners of the property in question, namely, Government Islamia College situated on Plot No 490, JM-5 in Jamshed Quarters, Karachi.
The petitioner had also prayed for directing the respondents to immediately make payment to the petitioner of the rental dues in respect of the aforesaid property from September 1, 1972 to date with 10 per cent increase annually in rent, as per law, and interest/mark-up at 15 pc per annum till the final payment was made.
It was also the contention of the petitioner that the respondents should be directed to entrust all the trustees and/or the general secretary of the petitioner Trust with the care of the properties of the Trust and the Director of Schools and the Director of Colleges be instructed to give the Trust possession of the offices pervasively used as offices of the Islamic Education Trust.
Justice Bhagwandas, who authored the order in CPLA No 869 of 2001, the petitioner resisted the petition on a number of grounds, inter alia, contending that it was incompetent, misconceived and not maintainable in law; that after the enforcement of Martial Law Regulation 118 in 1972 all the educational institutions were nationalized and the management of the colleges of the Islamic Education Society along with its assets and liabilities was taken over by the government, and that through notification dated March 8, 1973, issued by the Government of Sindh, Education Department, in exercise of the powers under section 1 read with section 4 of the Government Educational and Training Institutions Ordinance, 1960, management and administration of the petitioner’s college was given under the Board of Governors for Law Colleges in Karachi who were not impleaded as party to the writ petition.
The division bench of the SHC, referring to their precedent of this court in Board of Foreign Missions vs Government of Punjab (1987 SCMR 1197), held that only management of the colleges was taken over by the government under MLR 118 whereas title to property remained with the original owners. The High Court noticed that there were some disputes among members of the family of the late A. M. Qureshi relating to the management of the Trust properties and Suit No 333 of 1992 was pending on the original side of the court. In the opinion of the High Court, dispute as to who could exercise the power of management of the Trust, could only be resolved in the pending suit. The High Court disposed of the controversy by directing that the interest of justice would be secured if the official assignee was directed to resume the powers of the owners of the property and name such measures as he considered necessary or expedient to protect owners’ interest in accordance with the Trust deed. This arrangement was subject to any order that might be passed in the pending suit.
Abrar Hasan, learned ASC for the petitioner, narrated the background of formation of the Islamic Education Society in 1948, and stated at the Bar that in 1958 the said Society obtained a piece of land measuring 22,349 square yards from the Karachi Municipal Corporation on a nominal rental of Rs21 a square feet, subject to the conditions, inter alia, that one of the members of the Board of Trustees would be nominated by the KMC.
He added that a four-storey building for different colleges was constructed by the Trust on a portion of the plot from the funds donated by public as well as the government of Sindh. He submitted that the colleges so built became the tenants of the Trust and different tenancy deeds were executed between the parties.
The counsel made a grievance of the fact that by virtue of section 10 of the Ordinance all properties, movable or immovable vesting in the government in connection with the affairs of the institution immediately before the said date should vest in the Board of Governors of an institution. According to the counsel, the petitioner was not subordinate to the government of Sindh and the college was directly managed and administered by the Board of Governors for Law Colleges in Karachi wef March 16, 1973 whereas the Board of Governors, though necessary party, was not impleaded as party to the writ petition. He, however, fairly conceded that by virtue of paragraph 5 of MLR 118, the government did not become the owner of the property in which privately-managed schools and colleges were being run.
Justice Bhagwandas observed that the expression “vest” occurring in pare 5 of the aforesaid regulation was the subject matter of interpretation in Board of Foreign Missions (supra) in which this court authoritatively held that merely because the privately-managed schools, along with their assets, were to vest in the government did not imply that the government had become the owner in relation to the buildings wherein schools or colleges were being run. It was clarified that the intention of MLR 118 manifestly was only to take over the management of the institutions and not to confiscate the properties in which the privately-managed schools were being run. This view was reiterated in review jurisdiction in the government of Punjab vs Boards of Foreign Missions (PLD 1988 SC 3821) and Sister Marry John vs government of Punjab (1999 SCMR 2335) as also in Province of Punjab vs Muhammad Ilyas (2000 SCMR 893).
The Supreme Court was of the considered view that the division bench of the SHC had not expressed any contrary view and not decided the issue of ownership and title to the properties of the Islamic Education Trust.
At the very outset the Supreme Court entertained serious doubts as to the legal status and locus standi of the petitioner to impugn the impugned order disposing of the writ petition filed by the respondent No 1 essentially against the government of Sindh.
Justice Rana Bhagwandas was of he view that Abrar Hasan, representing the petitioner, was unable to convince the Supreme Court bench as to how the petitioner could be aggrieved by the impugned order passed in exercise of writ jurisdiction except stating at the Bar that the petitioner was impleaded as the respondent No7 in the petition. Be that as it might, merely because the petitioner was impleaded as one of the respondents, it did not furnish any cause of grievance to him to assail the impugned order of the High Court before this court in the exercise of extraordinary constitutional jurisdiction, Justice Bhagwandas held. The grievance against the impugned order, if any, might lie on the part of the government of Sindh which appointed the Board of Governors for Law Colleges in Karachi, but obviously the provincial government did not contest the writ petition before the High Court.