' AJMAL MIAN, J.-This is a petition, whereby the petitioner association, which is registered under the Societies Act has prayed for the following reliefs : "(1) That take-over of Petitioner's Jinnah Polytechnic by the respondent was ultra vires M. L. R.
118.
(2) That petitioner is Petrol Pump and Cafeteria in no way fall within the scope of M. L. R. No, 118 of 1972 and have continued, all along, legally to remain the property of the petitioner Anjuman-i- Islamia, which has remained in possession.
(3) Such other orders may be passed, as this honourable Court may deem to be just and appropriate in all the circumstances of this case."
2. The brief facts leading to the filing of this case are that upon the promulgation of M. L. R. 118 on 1- 4-1972 (hereinafter referred to as 'the M. L. R.'), in September, 1972 the respondents took over the control and management of Polytechnic, which was run and managed by the petitioner society in addition to Jinnah College, Riaz Girls School and a number of boys and girls schools. It has been averred in the petition that Jinnah Polytechnic institute does not fall within the ambit of M. L. R.
Respondents have filed a counter-affidavit to the above petition, in which it has been averred that as the Jinnah Polytechnic institute was affiliated with and recognized by the Board of Technical Education and as the students were awarded the diplomas at degree level, which were recognized by the Universities of Sind and Karachi, the aforesaid diplomas of the Jinnah Polytechnic Institute were equivalent to intermediate classes, hence falls within the definition of "College" given in the M.
L. R.
3. (a) In support of the above petition Messrs Malik Muhammad Aslam and Usman Ghani Rashid have made the following submissions :
(i) That section 2(a) of the M. L. R. Does not cover a polytechnic institute of the nature covered by the petition and, therefore, the action of the respondents was without jurisdiction.
(ii) That the petitioner association was not only running educational institution, but was also doing some other work like running of library etc. And, therefore, its property attached, namely, petrol pump and cafeteria could not have been taken over by the respondents.
(b) On the other hand, Mr. Abdul Sattar Shaikh, Additional Advocate-General has reiterated the plea contained in the counter-affidavit, namely, that since the diploma which is granted by the Jinnah Polytechnic Institute was recognized by the Karachi and Sind Universities and was treated at par with the intermediate, the definition of the `College' given in the M. L. R. Will cover the polytechnic institute in question. As regards the property, namely, petrol pump and cafeteria, it has been contended by Mr. A. Sattar Shaikh that it was attached to Jinnah College and not to Jinnah Polytechnic Institute.
(c) Mr. Aziz Munshi, learned Deputy Attorney-General who is present on Court notice has contended that the definition contained in section 2(a) of the M. L. R. Will not cover a ploytechnic institute of the nature in question.
4. In order to appreciate the respective contentions of the learned counsel for the parties on the above first point, it would be pertinent to refer to section 2(a) of the M. L. R., which reads as follows : "College" means an institution having intermediate, degree or post-graduate classes or any combination of two or more such classes."
It may be noticed that according to the above definition, a college mean an institution having intermediate, degree or post-graduate classes or in corn inaction of two or more such classes. It is evident that the definition does not provide for a polytechnic institute which grants diploma only.
Since the M. L. R. Contemplated taking over of properties from the private managements without payment of compensation, its provisions are to be strictly construed and, therefore, we are unable to read into section 2(a) a polytechnic institute, the students of which only get diploma and not intermediate certificates as known in the ordinary parlance. The fact that the diploma is recognized by the Karachi University or by the Sind University will not make any difference and a polytechnic institute will not become a college within the definition given in section 2(a) of the M. L.
R. We also find from Annexure 'E' to the petition (which is a Sind Government Gazette dated 13-7- 1974 issued by the Education Department, whereby governing bodies of the colleges, Karachi/ Hyderabad were constituted), does not refer to the Polytechnic institute in question which fact also indicates that even the Education Department of the Government of Sind was not treating this institute at par with the college referred in the M. L. R. In this regard, it may be pertinent to refer to a letter dated 4-10-1976 written by the Director of College Education to the Director of Technical Education, Government of Sind, Karachi, which reads as. Under :- "Phone : 516409 Directorate of College Education Karachi Region Karachi-1 ' No, DCE/P & G/(201)/2192-95/76, dated 4th October, 1976 To ' The Director of Technical Education Government of Sind ' Karachi : ' Subject : Petition No, 1121-Anjuman Islamia v. Government of Sind and others.
' Reference : Your Letter No, DTE/NC-1(3)/72/18646-48, dated the 15th September, 1976.
' The above matter was discussed with the Assistant Advocate-General by all the three representatives of the Directorates of Education for Schools, Colleges and Technical Education on 29th September, 1976. During the course of discussions it was revealed that two very pertinent questions are involved in this case viz. :-
(1) The authority under which Polytechnic Institutes could be nationalized on the face of the fact that M. L. R. 118 envisages the nationalization of Primary/Secondary Schools and Colleges only but there is no mention in respect of Polytechnic Institutes and therefore, the property attached with such institutes can hardly assume the status of being Government property. Your representative's assertion that the Polytechnic Institutes are bracketed with colleges on the grounds that the affiliating agencies (University of Sind/Karachi Board) have determined the equivalency of the Polytechnic Institutes at par with that of colleges also needs probe for the reasons that there too no provision exists in 'the said M. L. R. For the equivalent institutions. This point needs a thorough consideration and elucidation, in consultation with the Solicitor to the Government of Sind, Karachi, if need be there.
(2) The other point involved is as to whether, or not a plot acquired for educational purposes could be put to use partly for commercial use subject to the condition that its rent proceeds are utilized for promoting the aims of the defunct managements including education formal or informal. The representative of this Directorate held that the plot, if acquired for educational purposes, can be put to any other use. In order to substantiate this assertion a copy of the allotment order is needed.
The representative of this Directorate has voluntarily accepted the responsibility on your behalf for obtaining a copy of the allotment order from the quarters concerned.
' This matter is in hand and you would be apprised of its progress accordingly.
(Sd.)
Prof. (Iftikhar Ahmed Ansaril Director of College Education, Karachi Region."
5. From the contents of the above letter, it is apparent that the interpretation placed by the Director of College Education to the relevant provisions of the M. L. R. Is in line with the argument advanced by the learned counsel for the petitioner and Mr. Aziz Munshi, Deputy Attorney-General. We are, therefore, inclined to hold that Jinnah Polytechnic Institute is not covered by the definition of "College" referred to in section 2 (a) of the M. L. R. We accordingly declare that the take-over of the above institute by the respondents is without lawful authority and of no legal effect. The' respondents are directed to hand over the control and management of Jinnah Polytechnic Institute to the petitioner association.
6. Reverting to the question, as to whither the petrol pump and the Cafeteria are attached to this Institute or to the Jinnah College, which was taken over by the Government and of which taking over has not been challenged before us, or to the petitioner association, in our view, this point involves the determination of disputed questions of fact. From the interlocutory orders dated 20-12- 1974 and 13-2-1975 passed by this Court in this petition, it seems that the petitioner association was permitted to continue to realize the income from the above two properties during the pendency of the above petition. We would not like to grant any declaration that the properties were attached to the petitioner association or to Jinnah Polytechnic Institute but will leave it to the respondents to decide on the basis of the evidence to be produced by the petitioner, and till such decision is made, the respondents shall not realize any rent in respect of the above two properties and the petitioner association shall continue to realize the rent etc. In respect of the above two properties.
There will be no order as to costs.
7. Before parting with the above discussion, we may observe that the Government of Pakistan was impleaded as a party in this petition as respondent No, 2, which subsequently was dropped.
However, a Division Bench of this Court comprising Saeeduzzaman Siddiqui and Fakhruddin H.
Shaikh, JJ. On 19-1-1982 issued notice to the learned Deputy Attorney-General and M. Aziz Munshi has appeared inter alia today in response to the above Court notice.