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Petitioner: MUHAMMAD ZUBAIR AKRAM VS Respondent: AITCHISON COLLEGE, LAHORE
Court Name: Lahore High Court Judge(s): Mian Allah Nawaz, Karamat Nazir Bhandari, Amir Alam Khan Title: MUHAMMAD ZUBAIR AKRAM vs AITCHISON COLLEGE, LAHORE Case No.: Writ Petition No,15063 of 1998 Date of Judgment:2000-05-12 Reported As: PLD 2000 Lahore 489 Result: Reference answered
JUDGMENT
JUDGMENT AMIR ALAM KHAN, J.--This judgment shall be read in Writ Petitions Nos.25707, 29842, 29482, 25809, 20092 of 1997 and 1981, 15063 16602 of 1998 as a prelude to the decision of these writ petitions on merits for the question of jurisdiction of this Court in regard to Aitchison College, Lahore is being determined herein. 2. The relevant facts are that in the recent years various causes pertaining to Aitchison College were brought to this Court thereby challenging certain acts and omissions of the Principal, Aitchison College, Lahore done or suffered in the name of the said college. The aforesaid causes were entertained and determined by Single Benches of this Court wherein either the jurisdiction was not challenged with the result that jurisdiction was assumed by default and controversy was decided on merits or the question of jurisdiction was decided and the matter being further agitated, the Division `Bench of this Court had held that this Court had. The jurisdiction to entertain and decide the matter in dispute. One of the causes ultimately reached the apex COurt who remitted the matter to this Court with the following direction: "In the facts and circumstances of the case, we would appreciate if the High Court decides the jurisdiction in the next two or three weeks and, if it comes to the conclusion that it has jurisdiction under Article 199 of the Constitution, it may also decide the Miscellaneous Applications after hearing the view-point of both the parties including the College. The petitioners are free to file appropriate application before the Hon'ble Chief Justice of Lahore High Court requesting that all the cases/writ petitions raising identical questions, as are raised in the present case, be heard by the same Judge so that there are no conflicting judgments/orders which may create complications at a latter stage."
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In pursuance of the order afore-noted as also the fact that a Division Bench of this Court had held in I.C.A. No,207 of 1996 that High Court had the jurisdiction to hear and determine the \causes in regard to Aitchison College, Lahore, the matter was placed before the Hon'ble Chief Justice to constitute a Larger Bench to hear and decide the question of jurisdiction as ato. Isaid. In the background afore-noted this Full Bench was constituted to hear and determine the question as to whether Aitchison College, Lahore is a person within the meaning of the word as defined in Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973 and amenable to the Constitutional jurisdiction of this Court or not. 3. Mr. A. K. Dogar, Advocate having referred to the jurisdictional facts as contained in his particular writ petition argued that the Aitchison College was conceived and established for the Chiefs of the Punjab and started functioning for them alone. The legacy continued even after the partition of the sub-continent but with the establishment of two dominions and promulgation of First Martial Law in 1958, the change was sought to be brought about by the Martial 'Law Authorities, therefore, vide Martial Law Order N0.86, which was promulgated on 22nd May, 1961, the Governor of West Pakistan was vested with the power to order the dissolution of registered societies and the governing body of any non-Government educational or training institution--to place the institution or body under the Board of Governors, to be nominated by him and to do all acts considered fit and expedient for the efficient management and control thereby including the framing of rules, regulations and statutes and removal of the Chairman and the members at any time without assigning any reason. The Martial Law Order afore-noted did also contain the ouster clause whereby the jurisdiction of all Courts including the High Court and Supreme Court was ousted in regard to the said order. Mr. Dogar continued that in pursuance of Martial Law Order No,86 Notification No,SOX- 16/25-61 (EDU) was gazetted on 11th of November, 1961 whereby the Aitchison College Society as registered under the Societies Registration Act, 1860 was dissolved, consequently the statutes and its by-laws were rescinded and the management and control of the college was placed under the Board of Governors consisting of: (i) Governor of W est Pakistan President (ii) General Of ficer Commanding (JOC) Member (iii)Finance Secretary Member (iv) Education Secretary Member (v) Brig. Abbasi W ali-Ahad Bahadur of the former Bahawalpur State.Member (vi)Col. Abdur Rahim Khan Member (vii)Major Mubarak Ali Shah Member The Principal of the college was directed to act as Secretary of the said Board of Governors while the said Board of Governors was vested with the power to control, and manage the affairs of the said college including the framing of rules, regulations and statutes. The notification afore-noted was ThIlowed by another Notification No, SOX-16/25-61 (EDU) Volume II whereby invoking the powers as contained in earlier notification of 11th November, 1961, the statutes of Aitchison College were framed' and gazetted. Mr. Dogar referred initially to Part III to contend that the authority of Aitchison College rested with the Board of Governors consisting of the Governor of West Pakistan as President and such members as may be appointed by the Governor of West. Pakistan from time to time. He then referred to sub-clause (c) whereby it was provided that the Board of Governors has been vested with the matters such as to formulate the budget of the institution for the approval of the Government, to frame, subject to the approval of the Government, regulations for the conduct of business of the Board. A reference was made to the various parts and clauses of the statutes to indicate that the virtual control and the management of the college- was that of the Government.
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It was submitted that this vesting of the control and management of the affairs of the college had taken place in pursuance of Martial Law Order No,86 and since the Martial Law Orders are held to be of the legislative nature, therefore, the Aitchison College is to be treated on the same footings as a statutory corporation. He relied on the following cases Muhammad Afzal v. The Commissioner, Lahore Division and the Estate Officer, Lahore Improvement Trust PLD 1963 SC 401, Gulab Din v. Major A. T. Shaukat and others PLD 1961 (W.P.) Lahore 952, Allah Bakhsh v. District Magistrate, Jhang and 2 others PLD 1978 Lahore 765, Mujeeb-ur-Rehman Shami v. Principal, Aitchison College, .Lahore and 2 others 1994 CLC 342. He then referred to sub-Article (5) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to contend that bare reading thereof reveal that "person" includes any body politic or corporate, any authority under the control of Federal Government or of a Provincial Government or any Court or Tribunal other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to armed forces of Pakistan. Elaborating his argument, he submitted that various expressions and clauses are used in this sub-Article disjointedly meaning thereby that every expression used or clause incorporated in the said Article is independent and is to be interpreted as such. He specifically dilated on the word "under the control of the Federal Government or a Provincial Government". A reference was also made to the meaning and definition of the word "control" as contained in Black's Law Dictionary and it was submitted that if any authority, corporation or a body politic is shown to be funded by Government or the dominative control thereof is with the Government then there is no escape from the proposition that it is included in the definition of the person. Reliance was placed on The Deputy Managing Director, National Bank of Pakistan, Principal Office, Jinnah Avenue, Dacca and others v. Ataul Huq PLD 1965 SC 201 at page 206, The University of Dacca v. Zakir Ahmed PLD 1965 SC 90, Salahuddin and 2 others v. Frontier Sugar Mills & Distillery Ltd., Tokhat Bhai and 10 others PLD 1975 SC 244, Ajay Hasia v. Khalid Mujib AIR 1981 SC 487, Humayun Khan v. Messrs Ghee Corporation of Pakistan Ltd. And 2 others PLD 1984 Lahore 35 at page 38, Muhammad Nazir Khan v. Dr. Mubashar Hasan and others PLD 1974 Lahore 49, Aftab Ahmad Warsi v. Punjab Road Transport Corporation 1991 PLC (C.S.) 484 and Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Limited and others 1988 CLC 1890. It was then submitted that the education is one of the affairs of the Province and the college is performing function in regard thereto, therefore for all intent and purposes it is a "person" within the meaning of Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973. The following judgments were generally referred on the subject. "The University of Dacca through its Vice-Chancellor and the Registrar, University of Dacca v. Zakir Ahmad PLD 1965 SC 90, Salahuddin and 2 others v. Frontier Sugar Mills and 10 others PLD 1975 SC 244, "Miss Misbah Masood v. Principal, Government College for Women 1997 MLD 2397, Riaz-ul-Haq v. Selection Committee Constituted for Admission to Bolan Medical College through Secretary, Principal, Bolan Medical College, Quetta and 6 others 1997 SCMR 1845, Abdul Sattar v. Government of Sindh through the Secretary, Karachi and another PLD 1978 Karachi 59". 4. Schedule I attached to Punjab Government Rules of Business, 1974 was specifically referred and it was submitted that Entry 8 relates to the. Education Department wherein Aitchison College, Lahore has been described under special institutions and as per Rule 2, sub-clause (2) it is one of the attached departments for it is described as such in sub-rule. Similarly, in sub-Rule (3) which deals with allocation of business, it has been ordained that the business of Government shall be distributed amongst several departments in the manner indicated in Schedule II. It was argued on the strength of the above said rules that State or Government is very much exercising the control over the college, therefore, it is the instrumentality of the State. He also referred to the allocation in the budget to argue that since the financial aid is being provided by the Punjab Government, therefore, the effective control is that of the State/Government, hence the college falls within the
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definition of person amenable to the jurisdiction of this Court. It was also argued that the expression "under the control" as used in Article 199(5) of the Constitution of Islamic Republic of Pakistan,1973 does not necessarily mean "financial control" and in this regard he fell back on his earlier argument that in Black's Law Dictionary the meaning of the word "control" has been given to mean to exercise restraining or directing influence over, to regulate; restrain; domitiate; curb; to hold from action; overpower; counteract; govern. It was submitted with reference to M/s. Huffaz Seamless Pipe Industries Ltd. Noted (supra) that it is enough that dominative control is that of the Government. He also referred to case of Majeeb-ur-Rehman Shami v. The Principal, Aitchison College, Lahore 1994 CLC 342 to contend that in a well-considered judgment this Court has held that Civil Court has the jurisdiction to entertain and determine a case in regard to Aitchison College, Lahore. It was, thus concluded that Aitchison College is a person within the meaning of Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973, hence amenable to the Constitutional jurisdiction of this Court. 5. Dr. A. Basit, Advocate besides adopting the argument of Mr.A.K. Dogar, vociferously argued that the grants are being received by the College from the Government and since the financial aid is being provided by the Government, therefore, the effective control is that of the Government. It was also argued that the Board of Governors is nothing but an extended hand of Government which controls and manages the administration of the college. He specifically referred to Part VII of the statute which deals with the conduct of meetings and argued that in statute No,4 (ibid) it is provided that the decision shall be taken by the majority Board members and the members are nothing but the persons nominated by the Governor. He further argued with reference to statute No,5 of Part IX to contend that any person serving or deputed to serve in connection with the affairs of the province in any capacity shall on such day as hereinafter referred to at the "said date" as may be informed in the case of each stands transferred for service under the Board and tile Board in respect of the aforesaid persons shall exercise all such administrative, disciplinary and finical powers as were exercisable by Government to any lower authority provided the Board shall not be competent to dismiss, remove from service or reduce in rank any such persons but may initiate any disciplinary proceedings against him and refer the case to the appointing authority for further action. It was, thus, argued that manifestly the total control is that of the Government and since the statutes of the said college were being framed under the Martial Law Order which are of legislative nature, therefore, there is no escape from the conclusion that the college is a person within the meaning of Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973. 6. In reply Mr. Ejaz Betalvi, Advocate narrated the factual background of the creation of Aitchison College and submitted that the said college was established by a society duly registered under the Societies Registration Act, 1860. He argued that the said society is still intact for the Act under which it was formed was not taken of the statute book by the Martial Law Order No,86 or any other Martial Law Order. The society was registered on 13-12-1886 and in its meeting held on 11-10-1886 the council of the college framed first statutes which were filed along with the memorandum of association with the Registrar of Societies. The present statutes were framed on 29-5-1961 under Martial Law Order No,86 whereby purportedly the action was taken for the dissolution of the society meaning thereby that for 75 years the Aitchison College existed in its own right and followed its statutes framed by the society. It was then argued that--Martial Law was proclaimed on 7-10-1958 with the result that the civil Government was taken over, therefore, certain measures were adopted to run the Government as also for the judiciary, resultantly the Laws (Continuance in Force) Order, 1958 was promulgated on 10th of October, 1958. Some institutions of great significance were physically taken over by the Martial Law Authorities such as Progressive Papers Limited, Punjab Club but nothing of the kind happened in regard to the Aitchison College. The argument was developed on the premises that the Martial Law. Administrator Zone-B, Lahore, issued Martial Law
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Order No,86 on .1.5-1961 thereby empowering the Governor of Punjab to dissolve the body. The Government of Punjab in Education Department issued circular on 11-11-1961 thereby dissolving the society itself. It was maintained that this change was not brought by the M.L.O. But by an executive order passed by the Secretary of Education. It was then argued that dissolution of Society has been provided in section 13 of the Societies Registration Act, 1860 and although the said Act was still on the statute book as per the intent of Laws (Continuance in Force) Order, 1958 yet the society was dissolved, under the umbrella of Martial Law Order No,86 which could not be so done. The argument was that the society continued to exist and only the nomenclature of the same was changed. This change too was stated to be only marginal as the Board of Governors was made instead of Council and Committee of Management. The change appears to be in the nomenclature wily while the membership remained the same. Reference was also made to Martial Law (Repeal) Order of .7th June, 1962 whereby protection was provided to the various acts done by Martial Law Authorities and it was ordained that act duly done by Martial Law Authorities would also be protected. It was argued that act duly done means and include "acts done in accordance with law" and since the society was not dissolved by following the provisions of section 13 of the Societies Registration Act, 1860, therefore, it was not an act duly done. The societies still continue in the field and as there is no dominative control nor any financial control nor any administrative control, therefore, college is not a person within the meaning of Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973. As far the three tests laid down in the case of Messrs Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Ltd. And others 1998 CLC 1890, it was submitted that there is no funding by the Government either directly or indirectly and the institution is being run entirely through its own resources. Reference was made to the budget for the year 1994-95. In regard to the plea of donations, it was submitted that it could not be taken to be financial assistance for it depends upon the discretion of a person who gives the donations. As far the substantial and dominative control, it was submitted that it was not the Government agency, Governor is just a member and the power to control and run the institution is vested with the Board of Governors. Decisions are taken by Board of Governors by majority of the members present in the Board. He referred to the case of Muhammad Farrukh Fayyaz v. Aitchison College, Lahore and another 1997 MLD 928. He also relied on the decision of adjudicating authority of E.O.B.I. In regard to Aitchison College and letter written to the Secretary in regard to cess on private educational institutions. Reference was also made to Sabhajit Tewary v. Union of India and others AIR 1975 SC 1329, Ajay Hasia v. Khalid Mujib AIR 1981 SC 487, Salahuddin and 2 others v. Frontier Sugar Mills & Distillery Ltd, Tokhat Bhai and 10 others PLD 1975 SC 244 at page 257 and Shamsher Khan & Co v. Karachi Water and Sewerage Board and another 1988 CLC 1891 at page 1893. 7. The Government view-point was presented by the learned Advocate-General. He espoused the view of Mr. Ejaz Betalvi by maintaining that the preponderance of the judgments dealing with the Aitchison College are to the effect that Aitchison College is not a person as visualized under Article 199(5) of the Constitution of the Islamic Republic of Pakistan, 1973 and this is based on a well- accepted principle. Reference was made to oft-repeated case of Muhammad Farrukh Fayyaz v. Aitchison College, Lahore and another 1997 MLD 928. Need it be mention here that the judgment of this case was challenged in I.C.A. And the decision was reversed thereby holding that Aitchison College is a person within the meaning of Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973 though on merits the result went against Muhammad Farrukh Fayyaz. It was argued that the judgment in ICA in the case of Farrukh Fayyaz noted supra was rendered in limine, therefore, it may not be treated as precedent. Reliance was placed on the case of Muhammad Rafique Tarar v. Justice Mukhfar Ahmad Junejo, The Chief Election Commissioner of Pakistan and 6 others PLD 1998 Lahore 461. It was added that no funding was being made by the Government and that if at all some funding is made that does not mean that Government is exercising its control.
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8. We have heard the learned counsel for the parties at length as is evident from the lengthy and elaborate arguments afore-referred. The position that emerges from the above-noted arguments is to the effect that the Aitchison College was conceived and established by a society registered under the Societies Registration Act, 1860, which society framed its statutes and continued to manage its affairs in accordance therewith for good 75 years. The members of the society contributed towards the funds which became the financial source of the same and the said source continued to be replenished by donations and the contributions which were made from time to time by philanthropists as also the members of the governing council of the society. However, with the promulgation of first martial law in this country in the year 1958, a need was felt to manage and regulate the affairs of certain educational institutions which were managed and run by the societies, therefore, Martial Law Order No,86 was promulgated whereby the Governor of the then West Pakistan was vested with the power to order the dissolution of the registered society and/or the governing body of any non-Governmental institutions or training institution or any cultural or learned registered body which in his opinion needs improvement; place the institution or a body under Board of Governors, to be nominated by him and to do. All other acts as considered fit including the framing of rules, regulations and statutes. It was also ordained that no Court including the High Court and the Supreme Court shall have power to call in question anything done in good faith or intended to be done under this Order. In pursuance of the above said Martial Law Order, a notification was issued which was gazetted on 11-11-1961 by the Secretary, Education Department whereby it was ordained that the society exercising control and managing the affairs of the Aitchison College is dissolved and the management thereof is vested with the Board of Governors which were also nominated vide said notification as follows:-- (i) Governor of West Pakistan, President (ii) Commissioner, Bahawalpur Division Member (iii) Brigade Commander of Bahawalpur IV ember. (iv) Director of Public Instruction Member (v) Syed Inayat Hussein Shah Member (vi) Mr. Muhammad Nawaz Gardezi, Member (vii) Sirdar Muhammad Ayub, Vice-Chairman, Municipal Member ' The above said notification was followed by another Notification dated 22-1-1962 whereby the statutes of the college were framed thereby establishing the authority of the Aitchison College and describing the power of the said authority with special reference to the power and duties of the President as also that of the Principal and the various sub-committees were also defined. Part VII of the statute dealt with the conduct of the meetings while Part VIII specifically mentions that the Principal of the college shall act as Secretary to the Board and Part IX of the said statutes comprehensively deals with the persons serving in connection with the affairs of the Province who have been sent on deputation to the college or were required to be sent to the Board/college in so far as their salary, pension and disciplinary action is concerned. It is not denied that the college is being run and managed under the Board of Governors appointed under the umbrella of Martial Law Order No,86. The Martial Law Orders were `sub protected by the Constitution of 1962 and were held to be of legislative nature. If any authority is needed, reference may be made to the cases of Muhammad Afzal v. The Commissioner, Lahore Division and the Estate Officer, Lahore Improvement Trust PLD 1963 SC 401, Gulab Din v. Major A.T. Shaukat and others PLD 1961 (W.P) Lahore 952, Allah Baldish v. District Magistrate, Jhang and 2 others PLD 1978 Lahore 765, noted supra. Since the statutes were framed in the exercise of the powers conferred by Martial Law Order No,86, therefore, the status of such statutes partakes the character of statutory instruments/statutory rules and are to be enforced in the like manner. It is, thus, obvious that the rule of master and servant cannot be attracted in the facts and circumstances of this case which even otherwise is legacy of past and is
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being disapproved in the modern theory of administration of justice. The promulgation of Martial Law Order No,86 was not a vain attempt for it was found by the Martial Law Authorities of the time that certain societies existing in the non-Governmental spheres are not managing its affairs efficiently and in accordance with law. It was, therefore, decided to take over such societies so as to bring them under the umbrella, of the Government so that the guarantees are extended to the employees of such an institution as also certain acts are protected like any other statutory body. It was this decision that the Aitchison College was also taken over by the Government thereby replacing the statutes framed by the society with that of the one promulgated by the…
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