' This writ petition has been filed by a foreign trust claiming to be owner of certain properties including North Hall of the Forman Christian College, Lahore and 13 other persons who claim to be licensees under petitioner No. 1 on the grievance that a Magistrate had resealed some portion of the said property on 29-5-1982 which had been sealed on 26-11-1979.
2. The brief facts are that petitioner No. 1 asserts to be the owner of a large tract of property listed in para. 2 of the writ petition. The petitioners thereafter have given the background how the United Christian Hospital was located in the North Hall and West Hall of the Forman Christian College and thereafter it was shifted to its present site in Gulberg-III way back in the year 1967. The case set up by petitioner No. 1 further is that it was the owner of the aforesaid halls and it had accommodated its own staff as licensees including petitioners Nos. 2 to 14 with their families in a portion of the North Hall. There was an upheaval on 22-11-1979 as a result of which, it is alleged, the Principal and the members of the staff as well as students of Forman Christian College forcibly occupied the residences of the licensees who are petitioners Nos. 2 to 14.
Thereupon, petitioner No. 2 Maqbul Nawab lodged an F.I.R., dated 23-11-1979. A copy of the F.I.R. is appended as Annexure 'C'. It speaks of another incident which took place on 23-11-1979 and also mentions the fact that three blocks of the North Hall were still in occupation of Professors and students. It is also stated that due to the intervention of the authorities, an ugly situation was averted. The petitioners further allege that on 26-11-1979, the Assistant Commissioner, Lahore Cantonment told petitioners Nos. 2 to 14 (licensees) that they in the interest of their security should shift to other portions of the North Hall and take their belongings over there. They were told that no one would occupy their residences and these residences would remain sealed for such time until the law and order situation improved. Petitioners Nos. 2 to 14 agreed to such shifting. Thereafter, the petitioners have raised the question of the effect of Martial Law Regulation No. 118 of 1972 whereby educational institutions were nationalised in Pakistan. It is then complained that dilatory tactics were adopted and no steps were taken to deseal the premises. They claim to have made appeals to various authorities from time to time requesting the desealing of the property. Then it is complained that on 29-5-1982 the Principal of the Government F.C. College and certain members of the staff accompanied by Ilaqa Magistrate, Gulberg went to the North Hall and desealed the said property. Petitioners Nos. 2 to 14 immediately agitated the matter before the Hags Magistrate (respondent No. 4) and enquired as to under what authority of law he was desealing the said premises. They prayed to him for handing over the possession of the desealed premises to them.
Petitioners Nos. 2 to 14 further claim that they were told that the proceedings being taken by the Magistrate were in the nature of executive proceedings and required no written order. They further claim that respondent No. 4 was also informed by petitioner No. 2 that a suit for determination of title of the property was pending in the civil Court and therefore he should let the property remain sealed till its decision. The petitioners' efforts to obtain a copy of the order, dated 29-5-1982 desealing the premises bore no fruit.
3. It is further the version of petitioner No. 1 that respondent No. 1, Government of the Punjab through Secretary, Education laid claim on the ownership of the entire property belonging to petitioner No. 1 and in this connection two mutations were entered in the revenue record on 20-6-1981 transferring these properties in the name of the Government of the Punjab. Petitioner No. 1 had consequently filed a civil suit for declaration of title of the entire property mentioned in para. 2 of the writ petition and a permanent injunction had been sought as a consequential relief in the suit. The suit was pending in the Court of a learned Civil Judge at Lahore. The petitioners further set up the case that desealing of the property had been done in a clandestine manner and that they had not been heard before taking the decision of desealing. Petitioner No. 1 is the owner of the said property and petitioners Nos. 2 to 14 are licensees and had been living in these premises until 22-11-1979. The Principal of the College is alleged to have acted in collusion with the District Administration to deprive the petitioners of their right to re-occupy the said premises. Mala fides are also alleged.
4. The petitioners have made the following prayer:--"It is, therefore, respectfully prayed that the action of desealing of the said property (shown in red on the map attached as Annexure 'B') is without lawful authority and of no legal effect and may kindly be set aside and the respondents may kindly be directed to re-seal the property until such time when the right to re-occupy the said premises is decided in accordance with law as provided under Criminal Procedure Code or in accordance with decree passed by the, Civil Court which is seized of the matter.
It is also prayed that the costs of the petition may kindly be awarded to the petitioners."
5. On this petition coming up for limine hearing, a report was called for from respondent No. 4 together with parawise comments which have been duly submitted. The stance taken by the Ilaqa Magistrate is that on 29-5-1982 the property comprising of 33 rooms and one dining hall out of total of 57 rooms situated in the North Hall F.C. College was desealed in his presence while 24 rooms were till locked. It is further stated that as a result of the upheavel on 22-11-1979, the District Administration intervened and they held meeting with the students, the Principal and Mr. lnayat Masih, the then Bishop of Lahore. The warring factions were brought about to a negotiated settlement. The terms were to the effect that the evicted 13 Christian families were accommodated in the same hostel in 13 independent units consisting of 3 rooms each. The common room was allowed to be used as a worship place and as mutually agreed one dining hall and 57 rooms were sealed by the then Assistant Commissioner, Lahore Cantonment and the sealed accommodation was handed over to the Principal. It is further averred that as a result of desealing no Christian family had been' dislocated or disturbed. It is to be noticed that the stance taken by the learned Magistrate is that acting on the request of the Principal and having been informed that the property in question was already in custody of the Principal of the F.C. College as a result of negotiated settlement, dated 26-11-1979, he allowed the desealing of the property. It is categorically denied that the petitioners had asked the learned Magistrate to hand over the desealed property to them. It is also denied that the petitioners informed him that a suit for determination of title of the property was pending in the civil Court. He claims that petitioner No. 2 Maqbul Nawab was present on the spot and was specifically asked by him whether the matter was pending in civil Court or whether any stay order had been issued but his reply was in the negative.
According to the Magistrate, the desealing was purely of executive nature. It is further stated that petitioner No. 2 was heard in person by the learned Magistrate at the spot. The allegations of connivance with the Secretary, Education, Deputy Commissioner and the Assistant Commissioner are specifically denied.
6. This Court had called upon the learned Advocate-General, Punjab to be of assistance at the hearing. However, in the course of the proceedings, the then Advocate-General Punjab Sheikh Riaz Ahmad after listening to the grievance of the petitioners agreed to make efforts to meet their demand by making available extra bath rooms as desired by the petitioners. He took up the matter with the concerned Department and informed the Court that the same was being examined. There were a number of meetings convened on the departmental level in this behalf. This position is reflected from the interim orders. The case was then adjourned on the request of either party and ultimately the learned Additional Advocate-General Mr. Rashid Aziz Khan informed the Court on 29- 2-1984 that the matter had been taken up to the highest level but the authorities were not minded to allow construction of lavatories for the benefit of the petitioners whom they considered to be unauthorised occupants. On noticing that reconciliatory course had failed, it was ordered that the case be argued on its merits.
7. I have heard the learned counsel for the petitioners and the learned Additional Advocate- General, Punjab Mr. Khalil Ramday.
8. The learned counsel for the petitioners argued on the assumption that some of the premises of the North Hall could have been sealed under the provisions of sections 145 to 148 of the Cr.P.C. and in the same way the desealing of the premises could only be done in accordance with these provisions and for this purpose respondents Nos. 2 to 4 should have made an inquiry as to the possession of the premises which had not been done. The action of desealing therefore, according to the learned counsel, was in violation of the aforesaid provisions of the Criminal Procedure Code.
It was next urged that action of desealing the property was done in a mala fide manner with the motive of handing over possession to the Principal of the College and to deprive the petitioners of their right to re-occupy these premises. The action was termed as arbitrary and capricious. It was further argued that since the matter of determination of title was already pending before the civil Court, therefore, it was in the fitness of things to let the premises remain sealed till a decision was made by the civil Court. It was next urged that the action of respondents in desealing the property and encroaching upon the ownership of petitioner No. 1 and disturbing petitioners Nos. 2 to 14 was contrary to law. Public functionaries like the Deputy Commissioner, the Assistant Commissioner and the Ilaqa Magistrate clothed with some judicial authority had not acted in a judicious and just manner.
9. On behalf of the respondents, the learned Additional Advocate- General, Punjab argued that assuming without conceding that proceedings were taken in terms of sections 145 to 148, Cr.P.C., if, the petitioners had any grievance on that score, they had an alternative remedy available to them under the Criminal Procedure Code by approaching the higher forum. This the petitioners had failed to do and had rather acquiesced in the extra legal arrangement which was arrived at between the parties. He further submitted that the petitioners raised a large number of disputed questions of fact and the case was being argued on the strength of title which was itself under adjudication before the civil Court and the petitioners could not in an indirect manner either achieve the purposes which depended upon the outcome of the civil suit or through the present device find support for their pending civil suit. According to him, petitioners Nos. 2 to 14 were trespassers and they had been duly accommodated under the ad hoc arrangement to which they were consenting party and none of them was being disturbed. The licensees thus had, according to the learned law Officer, no locus standi in the matter and could not be termed as persons aggrieved against their own conduct. The conduct of petitioner No. 1 was also pressed in service as disentitling him to any relief in discretionary constitutional jurisdiction. According to the learned Additional Advocate-General, it was rather strange that the petitioners were quite content and desired the premises to remain sealed and were displaying only a negative attitude. According to him, the prayer made by the petitioners could not and ought not to be granted.
10. I have given my anxious consideration to the contentions being raised. I must observe at the very outset that the petitioners in the memorandum of their writ petition did not choose to mention that they had approached this Court twice by way of Writ Petition No. 2240 of 1981 and Writ Petition No. 3388 of 1981 which were dismissed by my learned brother Mr. Justice Muhammad Zafarullah by his order, dated 1-3-1982 on the view that the matter raised in both the writ petitions involved a dispute of title which could not be agitated in the course of Constitutional jurisdiction. A perusal of these two writ petitions shows that there is not a word mentioned about the sealing of the North Hall which is now made the subject-matter of dispute. The fact of filing of these two writ petitions has only been discovered on a perusal of the plaint of the civil suit which was filed on some date in April, 1982 after the dismissal of the two writ petitions.
11. Next, on a perusal of the plaint it is to be noticed that the case set up by petitioner No. 1 therein inter alia is to the effect that by virtue of M.L.R. 118 of 1972, only extensional services of the College stood nationalised, which means that the services of the staff were nationalised by the Government and since the Board of Directors did not own any property in its own name, therefore, the plaintiff upto date continued to be the owner of the properties under the use of the College. In para. 11 of the plaint, it is averred that the properties under the church and other properties which are under the ownership and possession of the plaintiff (petitioner No. 1 in the writ petition) have never been under the use of the college (shown in red on the attached map) are not affected by M.L.R. 118 of 1972. The map in red has not been produced. It is further pleaded that these properties cannot be considered to have been attached to the college and the defendants or their functionaries cannot legally extend their authority to these premises. It is further complained that the defendants to the suit, i.e. , the Province of the Punjab through Secretary, Education and the Principal of F.C. College, Lahore have started laying claim of ownership over the properties under the use of the nationalised college and even over the properties used and owned by the church. It is further alleged that defendants to the suit made a move to get the suit properties surreptitiously transferred in their names in the revenue record and in this behalf a memorandum, dated 20-6- 1981 had been relied upon and Mutations Nos. 19438 & 5162 sanctioned. A further grievance made out is that in the month of April, 1981, notices were served on the licensees of the plaintiff for their eviction under section 5 of the West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance, 1966. The exercise of service of this notice was then again repeated on 19- 3-1982 requiring occupants to vacate the premises under their licenses within 24 hours. It was then contended that these occupants were not unauthorised occupants but licensees under the plaintiff. It is further pleaded in para. 16 of the plaint that the plaintiff granted licences to a number of employees of the F.C. College to stay in the bungalows/houses/quarters under the ownership and possession of the plaintiff. The licensees had been paying licence fee regularly to the plaintiff.
The Principal was said to have acted illegally and male fide by passing an order on 21-1-1981 allotting these premises to the members of the College staff. It was further stated that the defendants were in possession of the premises in the use of the College in the capacity of licensees of the plaintiff and could not legally claim ownership of these properties. The cause of action was said to have accrued to the plaintiff on 20-6-1981 when the mutations of transfer of property were recorded and also on 18-4-1981 when notices were issued by defendant No. 2 to the licensees of the plaintiff and again on 19-3-1982 when they were repeated.
12. It is again to be noticed that even in the civil suit, no mention has been made or grievance spelt out in respect of the sealing of the property on 26-11-1979 or about shifting of the alleged 13 licensees to another portion of the North Hall.
13. In view of this typical background which has been spelt out above, after giving my anxious consideration to the whole matter I have reached the conclusion that no interference in exercise of discretionary Constitutional jurisdiction of this Court is called for. The petitioners are merely acting on an assumption that the proceedings were taken in terms of sections 145 to 148, Cr.P.C. On the factual plane, it is denied by the learned Magistrate and on the contrary it is being asserted that there was only a negotiated settlement as a result of which certain occupants shifted to other portion of the North Hall. The inaction of the petitioners from 26-11-1979 in respect of sealing of the premises has not at all been satisfactorily explained. Again assuming without holding, that some proceedings were taken in terms of the aforesaid sections of the Criminal Procedure Code, the petitioners desired no progress nor adjudication for this long period that has lapsed and the same is the stance at the present juncture as they desire that premises should continue to remain sealed. They failed to agitate this matter in the course of the previous two writ petitions or even in the civil suit which they instituted thereafter and which is still pending since the year 1982. The writ petition is also silent as regards the fate of the F.I.R. which the petitioners got registered and this Court has not been taken into confidence in that behalf. The failure to raise the question of sealing of premises coupled with the question of title in the two previous writ petitions is also a factor which goes against the petitioners. No explanation has been given whether in the course of the civil suit the petitioners obtained any interim relief for the redress of their grievances if they were aggrieved by the action of sealing of some of the premises. There are too many factual contentious questions being raised in this typical background which require a factual inquiry and recording of evidence and are directly inter-linked with the question of title which is already sub judice before a civil Court of competent jurisdiction on proceedings being instituted by petitioner No.1 himself. I do not think that in this peculiar position it is proper for me to adjudicate in collateral proceedings upon these questions which would have the effect of prejudicing the case of the petitioners or the other side.
14. This Court has already held, in the course of the previous writ petitions, that the proper remedy for the petitioners lay before the civil Court as the question of title was not a fit subject for adjudication in writ jurisdiction. The same proposition is being indirectly canvassed in the present proceedings as is clear from the averments made in the writ petition. This is not permissible and the learned counsel for the petitioners cannot be oblivious of the principle enunciated by the learned Supreme Court of Pakistan that what cannot be achieved directly under the law, is not permitted to be achieved indirectly. ,15. There is another aspect of the matter which cannot be overlooked and that is that if, as being alleged by the respondents, the petitioners entered into an arrangement through a negotiated settlement and adopted an extra legal course, I wonder how that can be enforced through recourse to the Constitutional jurisdiction of this Court by grant of a direction in the nature of mandamus asking the Magistrate to seal the premises till such time as the right of the petitioners to re-occupy is decided either by a criminal Court or in accordance with the decree passed by the civil Court which is seized of the matter.
16. In the final analysis, I am of the view that the petitioners are misdirected in having recourse to the Constitutional jurisdiction of this Court. The material on the record is wholly insufficient for adjudication or rendering determinative decision on controversy being raised. The petitioners are free to have recourse to proper remedies at law if they can make out a proper case. I have thus not felt inclined to interfere in this matter in exercise of my discretionary Constitutional jurisdiction for reasons which have been recorded.
The result is that this writ petition fails and is hereby dismissed.