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Petitioner: GOVERNMENT OF SINDH through Secretary Education VS Respondent: Begum AISHA JUDGMENT
Court Name: Sindh High Court Judge(s): Fahim Ahmed Siddiqui Title:GOVERNMENT OF SINDH through Secretary Education vs Begum AISHA
JUDGMENT
Reported As: PLD 2018 Sindh 431 Result: Revision dismissed Judgment JUDGMENT FAHIM AHMED SIDDIQUI, J.---This civil revision application is directed against the judgment of the lower appellate, forum whereby the appeal was dismissed in limine on the ground of limitation. An important question of law is raised in the instant revision that the appeal before lower forum is not barred by limitation as judgment and decree were void because the property is 'vested' to the provincial government under Martial Law Regulation No, 118 (MLR-118) for which no suit can be filed. 2. The respondent No, 1 claims ownership of a piece of land measuring 3.619 Acre (Survey No, 185/2) acquired by them on lease for a period of 30 years from Military State Office. The respondent No, 1 established some educational institutions and for housing them certain buildings were built by them on the said piece of land. Those educational institutes were subsequently nationalized under MLR-118 which was subsequently designated as "Privately Managed Schools and Colleges (Take- Over) Regulation, 1972, " and thereby the entire buildings and the administrative control of those educational institutions was taken over by the applicant (Government of Sindh). However, in the year 1984 under a policy of the government, the management and control of all the institutions, excluding the college were handed over to the previous body i,e, Aisha Bawani Academy functioning under the respondent No, 1. Hence, amongst the nationalized institutions of Aisha Bawani Academy, the college remained under the administrative control of government and the same was functioning in a portion of building in the same plot wherein the schools were functioning under the administrative control of the said Academy. The situation remained the same until the year 2005, when the respondent No, 1 filed Civil Suit No, 575/ 2005 against the government (applicant and respondent No, 2). Through the said suit, the respondent No, 1 claimed
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the possession of the portion of building where in the government college is functioning along with mesne profit at the rate of Rs,50,000/- per month. The applicant and respondent No, 2 filed their respective WS in which they raised certain objections as to form and frame of the suit. The respondent No,2 filed an application under Order VII, Rule 11, C.P.C. for rejection of plaint as the suit was undervalued. The trial `Court, while deciding the said application, returned the plaint for presenting the same before proper forum having pecuniary jurisdiction, but the appellate court reversed the findings of the trial court and remanded the matter for trial. The suit was thus proceeded and decreed in favour of respondent No, 1 under the judgment and decree dated 5.10.2009. 3. It is the plea of applicant (the Government of Sindh) that after remand, no notice was served upon the applicant and in absence of applicant, the learned trial Court adopted improper proposed issues without considering the pleadings. It is also contended that the side of applicant and respondent No, 2 were closed twice and the judgment and decree were passed behind their back. According to the memo of instant revision application, the first appellate Court did not appreciate the proper factual and legal aspects of the case while dismissing the appeal in limine. 4. The learned AAG argues the case at length. According to him, the piece of land was given to the respondent No, 1 in the year 1959 at a special rate i,e, I@ Rs,17,000/- with annual rent Rs,3000/-. The property was leased out as per the provision of Section 105 of the Transfer of Property Act. According to him, the property was taken over by the Government of Sindh under Martial Law Regulation No,118 (MLR-118), which was subsequently substituted as "Privately Managed Schools and Colleges (Take-Over) Regulation, 1972." (hereinafter referred as 'the Regulation'), which is protected under Schedule -6 of the Constitution of Pakistan. He submits that the respondent No,1 filed suit against illegal possession, but the same is legal and lawful and the respondent No, 1 never challenged vires of the Regulation' before any forum. According to him, mesne profit can only be charged from a party who is in the wrongful possession of the property, but as the possession of the applicant is lawful; therefore, it will not be chargeable. He emphatically submits that the possession of the applicant is clearly lawful and the same is under the Constitution, therefore neither a question of rent nor the license arises. He submits that as per paragraph 4 of 'the Regulation', the possession of the applicant is lawful and as per paragraph 15 of 'the Regulation', no suit can be filed regarding an action under the said regulation. He takes reliance from 1987 SCMR 997 and AIR (36) 1949 PC 61. Regarding the objection raised by the respondent No,1 of non- maintainability of the revision application without court fee, he submits that as per the notification Government of Sindh is not required to pay court-fee. 5. The learned counsel for the respondent submits that the suit was properly filed and the same was well in the knowledge of the applicant as well as the respondent No, 2 and both of them have appeared and proceeded up to some extent and then they preferred to remain absent. He points out that only CDGK has cross-examined the plaintiff while there was no challenge from the side of the applicant (Government of Sindh). According to him, the respondent No,1 is the owner of the premises wherein Aisha Bawani Academy, was running educational institutions as a licensee and after nationalization the Government of Sindh becomes a licensee. The status of the Government of Sindh remained the same till the revocation/cancellation of license by the respondent No,1 and now their status is not more than an encroacher. He also raises question of maintainability of the instant Civil Revision Application by submitting that the same was filed without court fee. He also assails the notification of exemption of court fee for government by submitting that the same was not issued by proper authority. According to him, the judgment and decree passed by the lower appellate court are proper and the appeal filed by the applicant is badly time-barred. He points out that as no request was made for extension of time under Section 149 C.P.C.; therefore, the delay was not condoned by the lower appellate forum and the same cannot be condoned now.
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Regarding the plea of void orders/judgment raised by learned AAG, his contention is that 'the Regulation' was amended several times and through amendments, the provincial government is not ready to take liabilities, debts and obligations of the previous owners, which means that the property belongs to the previous owner if the same are not in the name of nationalised institutions. He points out that they did not dispute the ownership of property, as such declaration was not necessary. He submits that the respondent No,1 has been paying all the taxes till now and enjoying full rights of ownership as lessee and their lease has been extended now by the competent authority. He submits that as the premises in question was not owned by the nationalized institution; therefore, the respondent No,1 is authorized to file suit and the judgement and decree is not void. Regarding limitation, his contention is that the same will run from the date when the license was cancelled by the respondent No,1 . As far as the loss of academic year of the student, he contends that the respondent No, 1 is ready to provide tuition and instruction to the students without charging, but they are not ready to take the staff of the college section. 6. I have scanned the entire record available before me with the valuable assistance provided from both sides in the shape of erudite and scholarly arguments. The applicant in the instant revision application has raised the following questions or issues. (a) Limitation runs from the year of nationalization i,e, in the year 1972 as such the suit is time- barred. (b) The suit is badly undervalued as such pecuniary jurisdiction also lacks. (c) The respondent No, 1 have to file suit for declaration first then they may claim the consequential relief of possession otherwise a decree will be void. (d) The respondent No, 1 are enjoying the lease for 30 years only and not for 99 years, as such in their status is only of a tenant and not an owner and the ownership of the land remains with the President of Pakistan. (e) The respondent No, 1 is a public trust, as such its property is also a public property as such the status of applicant (Government of Sindh) is not as licensee. 7. During the course of arguments, the learned AAG tried to make it a great point that the property was leased out to the respondent No, 1 for 30 years, which was subsequently extended and the said lease is granted under Section 105 of the Transfer of Property Act and the same is not ownership as the title was not given or transferred in their name, under the provision of Section 54 of the said Act. According to him, the status of respondent No,1 is nothing but a tenant as such, they are not entitled for getting possession of the apartment of the building in which presently a government college is situated. I am surprised to hear such arguments because the duration itself does not cause any effect upon the status of the of lease which the parties mutually create within meaning of Section 105 of the said Act. A lease of immovable property, according to the definition contained in Section 105, is a transfer of a right to enjoy such property. It may be made for a certain time, express or implied, or in perpetuity and should be in consideration of a price paid or promise to be paid periodically or on specific occasions to the transferor by the transferee, who accept the transfer in such terms. Once, the ingredient, so defined in section 105 of the Act, are satisfied a right to enjoy a property would attain the status of a valid lease. A bare reading of the Sections 106 and 107 of the Act shall make it clear that duration of transfer of a right to enjoy a property causes no prejudice to validity of the lease nor is a decisive factor. In absence of a contract, per section 106 of the Act, a lease of immovable property for agricultural or manufacturing purposes would be deemed to be a lease from year to year terminable on the part of either lessor or lessee. The section 107 of the Act defines that as to "lease how made" which even does not put a restriction on duration. I could not find anywhere that a lease for 99 years will be termed as perpetuity and becomes a freehold right of enjoyments. I am also unable to understand that how mere period of 30 years or 99 years would become decisive when the provision of Section 105 of the Act itself says
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regarding duration as 'for a certain time'. Accordingly, I would say that lease of 30 years or 99 years would not cause any prejudice to the 'rights transferred by transferor in favour of transferee to enjoy the property' unless otherwise expressly agreed. The transfer of a right to enjoy the property, however, is an important ingredient of a valid lease, and such ingredient is the decisive character that as soon as it is shown that the transferee is entitled to remain exclusively in possession of the immovable property given to him, he is entitled to contend that it is not a 'license' but a lease. The similar right is also given under rent laws, but the difference between the Transfer of Property Act and Rent Laws is the procedure of recovering possession. In the matter of lease, the period of lease is necessary because during, the continuance of the lease the transferor or owner cannot recover the possession of the premises except under a decree of court while under the rent laws, the landlord becomes entitled to recover possession only on the fulfillment of the conditions, laid down in the relevant sections of rent laws even during the period of tenancy. Under a leasehold right, the lessee enjoys the right of ownership for a certain period and the same is extendable and in the instant case same was extended after expiry of the period of the lease. Thus, I would conclude that for deciding a question of validity of lease 'duration' is not decisive. Accordingly, plea raised with reference to period of lease, has no substance at all. 8. From the above discussion, it is clear that the status of the respondent No, 1 is not a tenant under the Sindh Rented Premises Ordinance, 1979 but under the lease executed in their favour. The lease executed in favour of the respondent No, 1 is not a disputed document and after expiry of the said lease, the same has been extended, as such subsistence of the lease in favour of respondent No, 1 is not a disputable question. It is also a fact that the applicant (Government of Sindh) is not claiming the ownership of the entire property or part of the same, and there is no other adverse claimant of the property. In such a situation, it is not necessary for the respondent No, 1 to seek a declaration regarding ownership because a right to seek declaration is necessary only if there is a denial to a status which prima facie had not been the case, as such the form of the suit filed by them appears to be proper. 9. The contention of the learned AAG is that as the property was given to the respondent No, 1 at a very meagre rate and only for the purpose of educational and welfare services of the general public, and after nationalization the property is 'vested' to the Government of Sindh; therefore, the Government of Sindh has a right to use the property for the purpose of education and the same is being done by the government. In my humble view, it is a strange plea; the government, is neither denying the leasehold rights of the respondent No, 1 nor claiming the ownership but the applicants claiming the vested right in the property for running a government college within a portion of the property. It appears that the applicant intends to get advantage from the word 'vest' occurring in para-5 in the 'the Regulation': "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 the Provincial Government, together with all property attached to it." What then is the meaning of the word 'vest' in this section? I would add that no 'word', used by lawmaker, is either redundant but the deliberation is attached thereto because it is the legislature, who chooses the words knowing the meaning thereof, so as to describe 'object and intention' thereof. Reference may well be made to the case of Hasnat Ahmed Khan v. Institution Officer (2010 SCMR 354) wherein it is held as: " Thus applying the well recognized rule of interpretation of statute that no word used by lawmaker is either redundant or can be subtracted, substituted, added or read in a piece of legislation or a document, no valid presumption can be drawn that on expiry of a 120 days, the Ordinance (V of
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2003), automatically lapsed/expired as it should have been in the ordinary course. Needless to observe that where some legislation is made and its language is couched in a particular/calculated manner to some extraordinary situation, as in the case of Article 270-AA, then it is be to read and interpreted in a more careful and pragmatic manner to ensure that its object and intention is achieved." It is another settled principle of law of interpretation that use of a particular word is always illustrative of intention of the legislature who chooses a particular word out of available words therefore, normally ordinary meaning thereof (particular word) is to be taken. Reference may be made to the case of Mian Umar Ikram-ul-Hague v. Dr. Shahida Hasnain and another (2016 SCMR 2186) wherein, at page-2194, it is held as: "....It is settled canon of statutory interpretation that where a statute uses a particular word (s), the presumption is that such word (s) is illustrative of the legislative intent unless there are very cogent reasons to displace the same ..." The legislature might have used the expression 'transferred' or 'conveyed', but they have used the word 'vest' therefore, due weight is to be given to such deliberation. Apparently, the word 'vest' is distinguishing to the word 'transfer' or 'convey' and it has already been deciphered by our superior courts in some celebrated cases. In the case of Noor Muhammad v. Mst. Sardar Khatun and others (PLD 1951 Sindh 1). "The word 'vest' has a very well-defined meaning. Vesting in relation to property means the acquisition of the 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 in 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 in 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 vests in the executor while the beneficial interests vest in the legatees, on the death of the Testator . " After relying on the case of Noor Muhammad (supra) and other celebrated cases, the honourable Supreme Court exhaustively defined the word 'vest' appears in para-5 of 'the Regulation' or MLR-118 in the case of Board of Foreign Missions of the Presbyterian Church v. The Government of Punjab (1987 SCMR 1197), wherein it held as: "We are, therefore, of the opinion that merely because the privately managed schools, along with 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." The above definition, being binding within meaning of Article 189 of the Constitution, leaves nothing to doubt that the word 'vest' would only be taken to 'management' and not 'confiscation' thereof. Accordingly, the owner/lessee, as the case may be, shall not stand deprived of his property right to enjoy the same merely with reference to use of word 'vest' not this word can be allowed to be exploited so.
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10. It is the admitted position that prior to promulgation of 'the Regulation', the property in question was under the possession of Aisha Bawani Academy while the property was leased out in the name of Begum Aisha Ahmed Ibrahim Bawani Educational and Welfare Waqf and the ownership was never transferred to Aisha Bawani Academy. It is also the admitted position that Aisha Bawani Academy was managing educational institution within the said premises under the permission of the original lessee and prior to nationalization, the said Academy was not paying any rent to the lessee. Even it will make no difference if Begum Aisha Bawani Waqf is responsible for establishing and controlling Aisha Bawani Academy because both are two separate entities and there was only an arrangement under which some portion of the property in question was given to the Aisha Bawani Academy for establishing and managing some educational institutions, which were subsequently nationalized by the government under 'the Regulation'. As the respondent No,1 was not charging any rent from the Aisha Bawani Academy, meaning thereby that the Academy was not the tenant of respondent No, 1. No such document was placed from either side to ascertain the status of Aisha Bawani Academy but it transpires from the pleadings of the respondent No,1 that the property was given to the said Academy as licensee, and the aforesaid position of affairs verifies the existence of license in favour of Aisha Bawani Academy. If it is the position, then after nationalization, the Government of Sindh (the applicant) enters into the shoes of Aisha Bawani Academy and impliedly the applicant becomes the licensee of respondent No, 1. It is also a fact that the applicant is in possession of a portion of the property without claiming the right of ownership or tenancy. If the applicant is neither the owner nor the tenant, then their possession of the premises in question must have been under a licence, which was originally issued to Aisha Bawani Academy and after nationalization, the applicant (Government of. Sindh) being successor of the said Academy becomes a licensee of Begum Aisha Bawani Waqf under the operation of law. A licence may be revoked as per the provision under Section 60 of the Easements Act, 1882. However, a licence cannot be revoked if it is irrevocable. 11. In the instant case, it; therefore, remains, to be considered whether the licence had become irrevocable? However, it is least necessary to enter into this discussion as the applicant (Government of Sindh) before this Court or the courts below had not taken such objection. But even for the sake of argument and considering the interest of the students of the government college, I consider this aspect to see that the respondent No, 1 could revoke the licence in view of Section 60 of the Act which is as follows: "A license may be revoked by the grantor, unless (a) it is coupled with a transfer of property and such transfer is in force; (b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution." In the instant case, it is evident that the property has never been transferred to the government neither the government is claiming so, as the property was not acquired and no compensation has ever been given to the owner of the property. Therefore, prima facie, the applicant has no case within meaning of subsection (a) of Section 60 of the Easements Act. As regard to subsection (b) of Section 60, the learned AAG admits that no structure was erected by the government on the said piece of land and all the buildings, available at that place, are actually built by the respondent No, 1 from their own resources or from the donations of public. Besides, it is also a fact that the government has already handed over the major portion of the property to the previous management thereby acknowledging the status and entitlement thereof. I would add that a party can never be allowed to blow hot and cold in a single breath. It can never be the choice of party to simultaneously deny and admit the rights and status of a party particularly when such a party claiming under one and same transaction. Thus, it is quite safe to conclude that the exceptions, provided by section 60 of the Act, are not available hence legally the license cannot be termed to
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be irrevocable. Reference in support of such conclusion may be made to the case of M.A. Naser v. Chairman, Pakistan Eastern Railways and others (PLD 1965 SC 83) wherein it is held at page-88 as: After fully examining the provisions of the agreement we have come to the unhesitating conclusion that this license does not fall either within clause (a) or (b) of section 60 of the Easements Act and therefore, it was recoverable at the will of the grantor." Thus, now I can safely conclude that the license was revocable at the will of the grantor. This was so held in the case of M.A. Naser (supra) as: "Thus this being a revocable license, the revocation thereof cannot be prevented by injunction. In a case like this the licensee is entitled to a reasonable notice in accordance with the provisions of section 63 of the Easements Act. If however, the license is revoked without reasonable notice the…
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