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Petitioner: ISLAMABAD LAW COLLEGE VS Respondent: HIGHER EDUCATION COMMISSION through its JUDGMENT
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title:ISLAMABAD LAW COLLEGE vs HIGHER EDUCATION COMMISSION through its
JUDGMENT
Reported As: PLJ 2017 Islamabad 210, 2017 YLR 1399 Result: Petition dismissed Judgment JUDGMENT MIANGUL HASSAN AURANGZEB, J.---Through the instant writ petition, the petitioner, Islamabad Law College, seeks a direction to respondent No,1 (the Higher Education Commission) and respondent No,2 (the Director General (Accreditation and Attestation), Higher Education Commission) to issue a No Objection Certificate ("NOC") in the petitioner's favour. The NOC was required for the petitioner's affiliation with the Islamia University, Bahawalpur ("IUB"). CONTENTIONS ON BEHALF OF THE PETITIONER:- 2. The learned counsel for the petitioner submitted that the petitioner is a society established under the provisions of the Societies Registration Act, 1860; that according to the provisions of the Islamia University of Bahawalpur Act, 1975, all law colleges in the Islamabad Capital Territory seeking affiliation with IUB, are required to obtain an NOC from respondent No,!; that after the petitioner applied to respondent No,1 for the issuance of an NOC, respondent No,1 inspected the petitioner/college; that vide letter dated 28.01.2013, respondent No,1 asked the petitioner to clear the deficiencies listed in the said letter; that vide letter dated 05.12.2014, respondent No,1 issued a provisional/conditional NOC for a period of six months; that the said letter dated 05.12.2014 contained a list of deficiencies which the petitioner was required to clear within a period of two months; that having cleared the deficiencies pointed out by respondent No,1, the petitioner, vide letter dated 04.02.2015, applied to respondent No,2 for the issuance of an NOC; that on 29.09.2015, 01.03.2016 and 12.07.2016, the petitioner sent reminders to respondents Nos.1 and 2 for the issuance of an NOC, but to no avail; that vide e-mail dated 18.07.2016, respondent No,1 informed the petitioner that an Inspection Committee will be visiting the petitioner/college on 19.07.2016 at 10:00
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a.m.; that since the petitioner had enrolled numerous students for the LL.B Program for the academic session 2015-16, vested rights had been created in the petitioner's favour for the grant of an NOC; that the future of such students was at stake due to the omission on the part of respondents Nos.1 and 2 to issue an NOC in the petitioner's favour; and that as the students' examinations at the petitioner/college were fast approaching and the report of the Inspection Committee of respondent No,1 was not in sight, the petitioner filed the instant writ petition. CONTENTIONS OF THE LEARNED COUNSEL FOR THE ISLAMIA UNIVERSITY OF BAHAWALPUR (I. U.B.):- 3. Initially when the instant writ petition was filed, the petitioner chose not to implead IUB as a party/respondent. On 30.08.2016, the petitioner filed an application (C.M. No,3325/2016) for the impleadment of IUB, and the Controller of Examinations of IUB, as parties/ respondents to the writ petition. Vide Order dated 31.08.2016, the said application was allowed. Subsequently, IUB filed its report and para-wise comments to the writ petition. 4. Learned counsel for IUB submitted that the petitioner lacked the legal capacity to institute legal proceedings; that IUB cannot grant affiliation to any educational institution operating in the Islamabad Capital Territory unless an NOC is obtained from respondent No,1; that since respondent No,1 had not issued an NOC in the petitioner's favour, the question of granting affiliation to the petitioner did not arise; that IUB in its letter dated 17.02.2015 had cautioned the petitioner not to make any admissions for the academic session 2015-16 without obtaining fresh affiliation from IUB; that the petitioner, in utter disregard of the said caution, has admitted a large number of students for the academic session 2015-16 without obtaining fresh affiliation from IUB; that since the petitioner was not granted affiliation by IUB for the academic session 2015-16, its students were not registered with IUB, and therefore, they cannot take the examination for the said academic session; that the petitioner is pressurizing IUB for the issuance of roll number slips without depositing the required fee of Rs,1.8 Million; that the petitioner is carrying out commercial activity in disregard of the applicable law, rules and regulations; that a wrong precedent would be set if students from institutions which do not have affiliation with IUB are allowed to sit in examinations; and that the petitioner has cheated and played with the future of the students by enrolling them for the academic session 2015-16 without informing them about the non-issuance of an NOC by respondent No, 1 . Learned counsel for IUB prayed for the writ petition to be dismissed. CONTENTIONS OF THE LEARNED COUNSEL FOR PAKISTAN BAR COUNCIL:- 5. On 26.09.2016, the petitioner filed an application (C.M. No,3583/2016) seeking the impalement of (1) the Pakistan Bar Council, and (2) the Legal Education Committee of the Pakistan Bar Council, as parties/respondents to the writ petition. This application was allowed, vide order dated 30.09.2016. On 07.10.2016, Mr. Shoaib Shaheen, Advocate Supreme Court, tendered appearance for the Pakistan Bar Council, and drew the attention of the Court to the Pakistan Bar Councils Legal Education Rules, 2015, framed in exercise of the powers conferred under sections 13(1)(j) and 55 of the Legal Practitioners and Bar Council Act, 1973. He further submitted that the petitioner/college fell short of the requirements under the said Rules. He further submitted that IUB was under an obligation to ensure that the petitioner/ college fulfills the requirements of the said Rules. LEGAL STATUS OF THE PETITIONER:- 6. The learned counsel for the petitioner in his arguments had submitted that the petitioner was a society registered under the provisions of the Societies Registration Act, 1860. As the petitioner had not annexed any document showing the registration/ incorporation of the petitioner, this Court, vide order dated 17.10.2016, directed the petitioner to file documents showing the registration/incorporation of the petitioner. On 03.11.2016, the petitioner filed an application vide Diary No,8712/2016, wherein it has been pleaded as follows:- "i. The Petitioner College had been established and run under the manageMent of "NUMLIANS" which is registered under Societies Act XXI of 1960. "
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7. Along with the said application, the petitioner filed the certificate of registration of 'NUMLAINS' dated 01.04.2004. This document shows that 'NUM LIA NS', having its office at 4-B Basement, Rawal Arcade, F-8 Markaz, Islamabad, was registered under the provisions of the Societies Registration Act, 1860, with the Registrar Joint Stock Companies, Islamabad Capital Territory, Islamabad. Annexed to the said application are also the petitioner's applications for affiliation with IUB, wherein it is stated that the petitioner "has been established under the management of NUMLIANS w.e.f 01.03.2011". No document of registration/incorporation or establishment of the petitioner was brought on record to show that the petitioner had been infused with legal personality. `NUMLIANS' is not the petitioner in this writ petition. 8. Only a natural or a juristic person can sue or be sued in its own name. It is an admitted position that the petitioner/ Islamabad Law College has not been registered as a Society under the provisions of the Societies Registration Act, 1860, or under any other law which would invest it with legal personality, such as the Companies Ordinance, 1984, the Partnership Act, 1932, or the Trust Act, 1882. Learned counsel for the petitioner was not able to explain that if the petitioner/college was an adjunct or part and parcel of `NUMLIANS', why did `NUM LIANS' not institute the writ petition. Furthermore, the petitioner did not even bring any document on record to show that the petitioner/college is owned and controlled by `NUMLIANS'. The petitioner did not even file the constitution/ memorandum of article of association of `NUM LIANS' to show that its business included the running of the petitioner/ college. The petitioner's applications for affiliation with IUB do not in any manner strengthen the petitioner's case. 9. Annexed to the writ petition are the Auditor's reports and the balance sheets of the petitioner/college for the years ending on 30.06.2014, 30.06.2015 and 30.06.2016, prepared by "Chartered Associates, Auditor and Accountants". These reports describe the petitioner as a "sole proprietorship". The name of the proprietor of the petitioner/college is not mentioned in any of these reports. Now, in the writ petition, the petitioner does not describe itself as a 'sole proprietorship'. The writ petition was instituted by the petitioner/Islamabad Law College, through its Principal, Muhammad Atiq-ur-Rehman. It is well settled that legal proceedings can be instituted by a sole proprietor, but not the sole proprietorship. Reference in this regard may be made to the following case law:-- (i) In the case of M/s. Aran Saz Contractors v. Pak Chromical Limited (1999 MLD 1781), the Hon'ble High Court of Sindh held that the filing of a suit in the name of a proprietary concern/sole proprietorship was not merely a technical flaw but was a legal defect, and that for such a legal defect the suit was liable to be dismissed. Furthermore, it was held as follows:- "Another most important aspect of the matter is that the instant suit has been filed by Messrs Ahan Saz Contractors which, admittedly, is a proprietary concern of one Muhammad Riaz Awan. Order XXX, C.P.C. deals with the suit filed by or against the firms and persons carrying on business in the names other than their own. Rule 1 of Order XXX, C.P.C. provides that any two or more persons claiming or being liable as partners and carrying on business in Pakistan may sue or be sued in the name of the firm, if any, of which such persons were partners at, the time of the accruing of the cause of action. Order XXX, Rule 10, C.P.C. provides that any person carrying on business in a name or style other than his own name may be sued in such name or style as if it were a firm name. Comparative study of Order XXX, Rule 1, C.P.C. and Order XXX, Rule 10, C.P.C. reveals that Order XXX, Rule 1, C.P.C. which deals with suits by a partnership firm permits filing of suits by or against a partnership firm whereas Order XXX, Rule 10, C.P.C. which deals with suit in the name of the proprietary concern specifically provides only for filing of suits against a proprietary concern in its name but does not provide for filing of a suit by a proprietary concern as it does not have any legal status/character as distinct from its proprietary. Thus a proprietary concern can be sued in its name but it cannot sue in its own name. The question as to whether a proprietary
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firm can sue in its own name came under consideration in the case of Ismail Haji Sulaiman v. Messrs Hansa Line and another (PLD 1961 Dacca 693) and Habib Bank Limited v lqbal I. Chundrigar (1983 CLC 1464)." (ii) In the case of Habib Bank Limited v. lqbal I. Chundrigar (1983 CLC 1464), it has been held as follows:-- "As it has been established that lqbal Chundrigar is the proprietor of lqbal & Co. the question arises whether they are two different and distinct persons for the purposes of incurring liability. A proprietary firm cannot have any legal status as distinct from its proprietor. It is the proprietor who is the legal person entitled to all the benefits and liable for the liabilities that accrued in that account. In the eye of law the proprietor and proprietary firm are one and the same person. A reference can be made to AIR 1924 Bom. 109 and AIR 1930 Born. 216. It is well-established that a proprietary firm cannot sue in its own name. It is the proprietor who can sue for claims that may arise in the name of proprietary firm. It is thus established that each and every liability which the proprietary firm incurs is the liability of the proprietor himself. In fact it is the proprietor who is carrying on the business in the name and style of a firm taking upon himself the burdens and benefits." 10.Since the Auditor's reports were filed along with the writ petition, the petitioner is deemed to be well aware of their contents. The position that emerges is that the petitioner to its Auditors represented that it was a sole proprietorship, whereas to IUB the petitioner represented that it was set up under the management of 'NUMLIANS'. Either way, it was bereft of legal personality to institute legal proceedings, as explained above. The defect in the institution of a suit or writ petition is fatal to its maintainability. Therefore, I am constrained to hold that since the petitioner/Islamabad Law College is not a juristic or juridical person, and does not have legal personality of its own, this writ petition is not maintainable. THE PETITIONER'S AFFILIATION WITH I.U.B FOR ACADEMIC SESSIONS 2011-12, 2012-13, 2013-14 and 2014-15:- 11.The IUB was established under the provisions of the Islamia University of Bahawalpur Act, 1975 ("IUB Act"). One of the powers of the said University is to affiliate and de-affiliate educational institutions under prescribed conditions. IUB is also empowered to inspect colleges and other educational institutions associated and seeking association with it. The procedure and the conditions for the affiliation of educational institutions with IUB are set out in Section 34 of the IUB 1975. 12.Furthermore, Section 5(3) of the IUB Act provides that IUB may admit to its privileges under prescribed conditions, an educational institution falling within the territorial limits of another University whether inside or outside Pakistan, provided that the consent of such other University and the sanction of Government is first obtained. Since the petitioner/ college is said to be located in the Islamabad Capital Territory, which is admittedly beyond the jurisdiction of the IUB, that is why it was required to fulfill the criteria of affiliation given by respondent No, 1 . Therefore, the petitioner applied to respondent No,1 for the issuance of an NOC for affiliation with the IUB. The petitioner in paragraph No,6 of the writ petition has explicitly pleaded this. The matter pertaining to the petitioner's applications to respondent No,1 for the grant of NOC for its affiliation with IUB shall be dealt with later. 13. Perusal of the IUB Act in general, and Section 34 thereof in particular do not envisage the concept of 'provisional affiliation'. But IUB has been granting provisional affiliation to the petitioner for specific academic sessions. The record shows that vide letter dated 01.06.2012, IUB granted 'provisional affiliation' to the petitioner to teach LL.B for the academic session 2011-12, subject to the conditions set out in the said letter. One of conditions was that the petitioner could not admit more than sixty (60) students for LL.B Part-1. The petitioner was required to take the necessary steps to
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fulfill the deficiencies pointed out by the Affiliation Committee of IUB. Furthermore, the petitioner was required to fulfill the criteria of affiliation given by respondent No,1/Higher Education Commission, as well as rules, regulations and instructions of the Pakistan Bar Council. The said affiliation is said to have been granted on the 'directions', dated 15.05.2012, of the Hon'ble Lahore High Court, I3ahawalpur Bench. 14.Thereafter, vide letters dated 12.12.2012 and 05.12.2014, IUB granted 'provisional affiliation' to the petitioner to teach LL.B for the academic sessions 2012-13 and 2013-14, respectively. The petitioner was cautioned not to admit more than 150 students in each academic session of LL.B Part-I Program. The requirement to fulfill the criteria of affiliation given by respondent No,1 in its above- mentioned letter dated 01.06.2012, was reiterated by the IUB in its letters dated 12.12.2012 and 05.12.2014. The IUB again asked the petitioner to clear the deficiencies in its college. 15.Vide letter dated 17.02.2015, the IUB granted 'provisional affiliation' to the petitioner for teaching LL.B Part-I and LL.M classes for the academic session 2014-15 on certain terms and conditions. One such condition was that the petitioner could not admit more than 150 students for LL.B Part-I, and 20 students for the LL.M Program. It was explicitly provided that the number of students could not be increased under any circumstances. THE PETITIONER'S AFFILIATION WITH I.U.B FOR ACADEMIC SESSION 2015-16:- 16.IUB, in its letter dated 17.02.2015, had cautioned the petitioner not to make admissions for their academic session 2015-16 without obtaining a fresh affiliation from the IUB. The last date for the receipt of the fresh application in this regard was 15.05.2015., IUB, vide letter dated 18.03.2016 informed the petitioner that its request for the grant of affiliation with IUB for the academic session 2015-16 would not be considered without the required NOC from respondent No,1. 17.On 04.05.2016, the petitioner had applied to IUB for the issuance of an affiliation notification for the academic session 2015-16. Vide letter dated 06.06.2016, IUB gave the petitioner a period of seven days to provide the required NOC from respondent No,1, failing which the affiliation for the academic session 2015-16 would be treated as cancelled. PETITIONER'S APPLICATIONS TO THE HIGHER EDUCATION COMMISSION/ RESPONDENT NO.1 FOR THE GRANT OF N.O.C.:-- 18.As mentioned above, the petitioner had applied to respondent No,1 for the grant of NOC for its affiliation with IUB. Vide letter dated 18.12.2012, respondent No,1 informed the petitioner that a three- member inspection committee; had been constituted to visit the petitioner/college on 19.12.2012 in order to ascertain its financial, academic and infrastructural facilities for affiliation with IUB. After the visit of the inspection committee, respondent No,1, vide letter dated 28.01.2013, informed the petitioner that the college was operating according to the required criteria. However, respondent No,1 cautioned the petitioner not to advertise any admissions until the deficiencies in its college were cured. The deficiencies in the petitioner/college, listed in respondent No,l's said letter dated 28.01.2013 were as follows:-- "a. The college needs to acquire 04 Kanals of land. b. The financial documents (endowment detail and total assets worth) need to be provided. c. The faculty list along with CV, copies of the degrees and appointment letters need to be submitted. d. The infrastructure i,e, rooms, common room, sports ground and transport vehicle needs to be upgraded. e. The library books, subscription of magazine's and newspaper were not in accordance. f. Hostel facility for students and faculty needs to be hired. " 19. After a lapse of more than one and a half year, the petitioner, vide letter dated 02.06.2014, informed respondent No,1 that the deficiencies listed in respondent No, l's letter dated 28.01.2013 had been "fulfilled". Vide letter dated 18.06.2014, respondent No,1 informed the petitioner that its
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request for the grant of NOC could not be considered until the decision in Writ Petition No,584/2014 (which had been instituted by the petitioner against respondent No,1). Furthermore, the petitioner was requested to fulfill the required standards of academic, physical and financial infrastructure of the college. 20.Vide letter dated 07.09.2014, respondent No,1 informed the petitioner that a three-member inspection committee had been constituted to visit the petitioner/college on 09.09.2014 in order to ascertain its financial, academic and infrastructural facilities for affiliation with IUB. The inspection committee visited the petitioner/college on 09.09.2014 and submitted a detailed report. The findings of the inspection committee were as follows:-- "The Committee is of the view that the Islamabad Law College does not fulfill the basic criteria for the establishment of a law college and cannot be recommended for a grant of NEC NOC as an affiliated Institution. The Committee also showed reservations regarding the approval of Islamabad Law College as an affiliated institution of Islamia University, Bahawalpur and suggests that the issue may be taken up with the Vice Chancellor of the University for such a Serious Contravention of the affiliation rules by the University." 21. The reasons for giving the said findings are also detailed in the inspection report. These reasons are as follows:-- 1. Physical resources and support services Existing building is extremely unsuitable and inappropriate even for an ordinary primary school, let alone a law college. The proposed premises is located on the main Kashmir Highway which is a disputed area of 4.G-I2 sector of CDA. The building comprises a few small rooms with temporary and fabricated ceiling. There is no proper access to the main 'building' and one has to go through a dyke. The lease agreement signed with the owner of the premises is dubious; it is undated and there is no exist clause dealing with the vacation of premises. It has not been registered with the rent controller or even attested by a notary public. It has been verified only by one witness and the slot for other witness is blank. The seating capacity of the proposed classrooms is extremely inadequate and not suitable as classroom. According to PBS's Rules it must have capacity of 150 students. There is no common room, ladies room etc. A small room of the premises is marked as Library. It has only few books and some low paid books of general description. By any standard it cannot be called a law library. There is not a single law report or law journal. It can at the most accommodate 3-4 students at a time. It does not qualify to be called a study, what to talk of a library. There is no internet connectivity in the building. 2. Human Resources/Faculty The status of the faculty is very poor. A few practicing lawyers who have graduated from law colleges of poor quality, affiliated with Gomal University etc are designated as whole-time teachers with little or no experience:: The terms of a fulltime faculty member! as per contract is Rs, 10,000/- The qualifications of the principal of the proposed law college are not adequate; he has done LLB degree from a private affiliated law college having no Master's degree as per requirements of the Pakistan Barc uncil Rules. 3. Proposed Curriculum and Program of Studies The college is required to follow the LLB program of the Islamia University Bahawalpur. There are around 178 students admitted in the college; it is conducting morning and evening classes not permissible under the PBC Rules. 4. General
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Physical facilities such as building(s), library, hostels, playgrounds, furniture and fixture, transport are non-existent; there is need of other necessary facilities, which, it is regretfully submitted, are completely missing." 22. Vide letter dated 23.09.2014, respondent No,1 required the petitioner to cure the following deficiencies in its college:-- a. The college is extremely unsuitable and inappropriate in terms of its building and other allied facilities. b. The seating capacity of the proposed classrooms is inadequate with respect to affiliation criteria. c. The college is seriously deficient of faculty members. A few practicing lawyers are designated as whole-time teachers with less experience. d. Physical facilities such as building(s), library, hostels, playgrounds, furniture and fixture, transport are non-existent and e. A small room is marked as Library and the library books, subscription of magazine's/Journals need to be upgraded. " 23. Respondent No,1 again cautioned the petitioner not to advertise admissions in the college until the permission is granted by respondent No,1 after re-evaluation of the said deficiencies. 24.Respondent No,1 sent yet another inspection team, comprising Dr. Muhammad Rafiq Baloch and Dr. Iftikhar Ahmad Khan, to the petitioner/college. The said inspection team in its report dated 02.12.2014 made the following recommendation:- "The college administration has tried to provide the required facilities. The college may be given time to address the above-mentioned recommendations and inform HEC when it is ready for a visit for verification of implementation of recommendations before the grant of NOC by HEC. It is believed that addressing the recommendations given above will make the programs better and will enable the college to serve the country and profession in a better way." 25.The above-mentioned recommendation was based on the following observations of the inspection team:- "The class rooms…
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