1. NASIM HASAN SHAH, J.-- This appeal, by the leave of this Court, is directed against the judgment of a learned Single Judge of the Lahore High Court dated 7-3-1981 whereby the writ petition (W.P.No. 1236 of 1981) filed by the appellant herein was dismissed in limine.
2. The relevant facts are that the appellant is the Board of Foreign Missions of Presbyterian Church of the United States of America which has been carrying on missionary work in Pakistan for several years. In the course of the missionary work, it acquired movable and immovable properties which are managed through Managers. At present, the Lahore Church Council of the United Churches in Pakistan (hereinafter referred to as the Council) is managing its affairs. In 1929, the appellant constructed a large building on a plot acquired from the Government of Punjab in 1902 to which adjacent property purchased in 1921 was annexed and the building is occupied, amongst others, by a recognised educational institution known as Rang Mahal Christian High School, Lahore. The other portions of the property have been rented out to other tenants including Rang Mahal Post Office.
3. The Council was running he School ever since its inception until 30th September, 1972 when it was nationalised under the provisions of paragraph 5 of the Martial Law Regulation No.118. The relevant part of the notification is re-produced below:- "THE PUNJAN GAZETTE (Published by Authority)
4. Lahore, Saturday, September 30,1972 EDUCATION DEPARTMENT NOTIFICATION The 30th September, 1972 No.S.O. (NS) 1-1/72r- The Governor of the Punjab is pleased to notify that the Privately Managed Primary, Middle and High Schools listed below situated in the Province of the Punjab, stand nationalised as from the forenoon of the 1st day of October, 1972 under para. 5 of Martial Law Regulation No.118.
5. Serial No. Name of Institution LAHORE REGION LIST OF HIGH SCHOOLS FOR BOYS AND GIRLS, LAHORE REGION
1. x x x x x x x x x x x
2. Rang Mahal Christian High School, Lahore."
6. According to the appellant since one of the objects of the Council was also to promote the cause of education; therefore, it had no objection to the Provincial Government running of the school in their building. It is further the case of the appellant that though the rent was being charged from the other tenants of the property, it, however, permitted the Government Mission High School, as it came to be called after nationalization to occupy the building free of rent. In other words, the Provincial Government continued to run the school as licensee of the appellant.
7. The Director of Education of the Provincial Government, in response to the letter of 20-8-1980 and the aforesaid notice, addressed a letter to the Secretary Lahore Church Council dated 21-9-1980 taking up the position that since the school stood nationalized all the assets including the building stood vested in the Provincial Government and that "the building was a Government property alongwith its assets".
8. The relevant part of this letter is reproduced below:- "The Secretary The Lahore Church Council, 59, Nicholson Road, Lahore.
9. Memo No.6/12-80/30035/D-3, Dated 21-9-1980 Subject: Demolition of the dangerous and dilapidated portion of the Rang Mahal Christian High School, Lahore.
10. Your letter dated 20-8-1980 addressed to the Chief Engineer, Lahore Municipal Corporation Lahore and copy thereof endorsed to this Directorate on the subject noted above.
11. Government Rang Mahal (Christian) High School has been nationalized in October 1972 under M.L.R.
12. No.118 alongwith all assets etc. And brought on the book of the Building Department................................Now the position is that this building is a Government property alongwith its assets".
13. The respondents, thereupon, assuming that they were the owners of the property started to demolish the building and to remove the debris.
14. The assertion made by a Department of Government and the actions taken in pursuance thereof were challenged by the appellant in the Lahore High Court through Writ Petition No.1236 of 1981 on the ground, inter alia, that the building occupied by the school was the property owned by the appellant and was not a Government property and the claim of respondent No.2 to the said effect was contrary to law and against the provisions of Martial Law Regulation No. 118.
15. The learned Single Judge of the High Court, who heard this matter, however, did not agree with the above contention and was of the view that the land and the building which was built as a school and had been occupied and used for the school throughout by the appellant herein shall be deemed to be "attached" to the school in terms of paragraph 5 of Martial Law Regulation No.118 and it, therefore, vested in the Government on its taken over. He was further of the view that the respondents were not licensee therein. On this view of the matter the writ petition was found to be without merit and was dismissed in limine. Hence this appeal, by leave of this Court'.
16. Martial Law Regulation No.118 was promulgated by the Chief Martial Law Admintistrator (Mr. Z.A.
17. Bhutto) on 1st April, 1972. This was continued in force by the Interim Constitution of the Islamic Republic of Pakistan 1972, which came into force on the 21st day of April, 1972 by Article 280 (3) thereof.
18. The said sub-Article provides:- "(3) All Martial Law Regulations and Martial Law Orders, except the Martial law Regulations and the Martial Law Orders specified in the Seventh Schedule, are repealed with effect as from the commencing day and on that day each Martial Law Regulation and the Martial Law Orders so specified shall be deemed to have become an Act of the appropriate Legislature and shall, with the necessary adaptations, have effect as such: Provided that no Bill to amend or to repeal any of the Martial Law Regulations or the Martial Law Orders specified as aforesaid shall be introduced or moved without the previous sanction of the President."
19. Thus, on the lifting of Martial Law on 21-4-1972, Martial Law Regulation No.118 became an Act of the appropriate legislature. On 21-8-1972, it was amended by the promulgation of Ordinance XXVI of 1972 by the Governor of Punjab which Ordinance was subsequently replaced by an Act of the Provincial Legislature, namely, "Martial Law Regulation No. 118 (Punjab Amendment) Act, 1973 (Act X of 1973)". It has since been designated as the "Privately Managed Schools and Colleges (Take- Over) Regulation, 1972. "
20. According to the High Court, the land and the building which was built as a school and had been used as such was "attached" to the school and on its take-over vested in the Government in view of para. 5 of Martial Law Regulation No.118.
21. For appreciating the scope of the word "vest" used in this Regulation it would be useful to reproduce the provisions of para. 5 of Martial Law Regulation No.118. This enacts:- "5. Such Previately-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."
22. The important question that arises for determination is what is meant by the word 'vest' in the above provision: The Oxford English Dictionary VOI.XII Page 159 defines the word 'vest' as 'to place, settle or secure (something) in the possession of a person or persons', 'to put, place or establish (a person) in full or legal possession or occupation of something; and 'to become vested (in a person), to pass into possession, to descend or devolve upon one as possession'.
23. Moreover, it has consistently been held by the superior Courts that the word 'vest' is a word of variable import, not having a fixed connotation and does not necessarily mean to 'vest in title'.
24. This Court in Pakistan through the Secretary, Ministry of Defence v. Province of Punjab and others PLD 1975 SC 37 observed that "vest" does not by itself connote "vest in title" and reaching this conclusion a judgment of the Indian Supreme Court was also noticed, namely, Fruit and Vegetable Merchants' Union v. The Delhi Improvement Trust AIR 1957 SC 244. In the aforesaid judgment it was observed:- "That the word 'vest' is a word of variable import is shown by provisions of Indian statutes. For example, under section 56 of the Provincial Insolvency Act (5 of 1920), the property vests in the receiver for the purpose of administering the estate of the insolvent for the payment of his debts after realising his assets. The property of the insolvent vests in the receiver not for all purposes but for the purposes of the Insolvency Act and the receiver has no interest of his own in the property.
25. On the other hand, sections 16 and 17 of the Land Acquisition Act (Act I of 1894) provide that the property so acquired upon the happening of certain events, shall 'vest absolutely in the Government free from all encumbrances'. In the cases contemplated by sections 16 and 17 the property acquired becomes the property of Government without any conditions or limitation either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration.
26. Courts in Pakistan have also taken same view. Thus, Tyabji, C.J. (Sind High Court) observed in the case of Noor Muhammad v. Mst. Sardar Khatun and others PLD 1951 Sind 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 enjoin the property as an owner mar 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. One very important result of an interest vesting in a person is that the vested interest becomes heritable, divisible and transferable, Soorjumonhy v. Dinobandhu 9 M I A 323."
27. Moreover, the question whether owners of buildings in which schools were housed could exercise the rights of ownership by suing for ejectment of the occupants after nationalization of the schools under Martial Law Regulation No.118 has come up for consideration before the High Courts and this Court. Both the High Courts and this Court have, in these cases, consistently held that the proprietors of the property were competent to sue the persons for ejectment in terms of the West Pakistan Urban Rent Restriction Ordinance. The view taken was that as the provisions of Martial Law Regulation No.118 were an exception to the general law they had to be construed strictly. The avowed object was Martial Law Regulation No.118 being to improve the management and administration of educational institutions, the owners of the property having no connection whatsoever with the management or administration of the schools and colleges did not, therefore, stand deprived of their proprietary rights by this Regulation (Province of the Punjab v. Ch. Fazal Karim 1983 CLC 325). Again, it has also been held that as a consequence of Martial Law Regulation No.118 it was merely the management of such educational institutions which became vested in the Government and, therefore, the proprietors of the property in dispute were competent to sue for ejectment of a new management in terms of Ordinance VI of 1959 (Mat. Khadija Merchant v. The K.M.C. Through Mayor 1983 CLC 535).
28. PLD 1978 Lah. 87 it was held that such requisitioning orders were bad in law. This view was upheld by this Court in Province of Punjab through the Secretary to the Government of Punjab, Education Department and others v. Civil Judge, Lahore and others 1982 SCMR 692 wherein it was observed:-- "As a matter of fact, we agree with the stricture passed on petitioner No.1 by the RentController and the appellate Court to the effect that petitioner No.1 had acted mala fide in getting the building requisitioned to avoid the consequences of its ownnegligence------------------------.
29. The same view was reiterated by this Court in Province of Sind and others v. Syed Saifur Rehman and others 1986 SCMR 1332 and recently again, by this Court while disposing of Civil Petition No.570 of 1985 and 20 connected cases by a consolidated orders passed on 13-12-1986 involving the same point and the requisition order passed with regard to the buildings occupied by 'nationalized schools were found to be invalid.
30. A somewhat similar question arose in connection with evacuee properties acquired under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The question there was whether such properties were exempt from the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959? This question was considered by the Full Bench of the West Pakistan High Court in the case of Abdus Salam v. Waheed-ud-Din PLD 1963 (W.P.) Lah. 517 and it was held that the West Pakistan Urban Rent Restriction Ordinance, 1959 is not rendered inapplicable to the property acquired under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and that persons to whom provisional transfers of such property have been made are not prevented from instituting and prosecuting proceedings under that Ordinance against the tenants of those properties. The learned Judges observed that the contention of the appellant's counsel that since the property (shop) acquired under section 3, Displaced Persons (Compensation and Rehabilitation) Act, 1958, "vested wholly and absolutely" in the Central Government and since, by reason of the Notification No.HG-10-2/59, dated 12-3-1959 (West Pakistan Gazette, Extraordinary, dated 16-3-1959), the property "vested" in the Central Government and was exempt from the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 hence by virtue of section 3 of the Ordinance, the appellant could not be evicted from the shop by proceedings taken under section 13 of the Ordinance was negatived and it was held "that the argument was fallacious because it does not take into consideration the limitation that has been imposed by subsection (1) of section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 on the title of the Central Government to the property acquired by it under that section. The words "for any of the purposes of this "Act", which occur in the subsection, qualify the acquisition and place all that property which is so acquired in a class by itself. Such property does not below to or vest in the Government so as to entitle it to use it for its own purposes or for any purposes other than those of the Act".
31. The above view of the High Court was upheld by this Court in Rahim Bakhsh v. Ch. Ahmad Bakhsh and others PLD 1964 SC 189 on the ground that:--- "The 'vesting' is for certain purposes of the Act, in the Central Government and not absolutely. The notification under section 3 of the Ordinance is apparently designed to cover only those properties which vest in the Central Government, absolutely, as owners. The Central Government in the present case is under a statutory duty to dispose of the properties for the purposes of the Act, by its transfer to claimants and others. Undoubtedly, certain rights have been conferred by and under the Act on the P.T.O. Holder. Section 30 of the Act declares that persons in possession of any evacuee property and those who have been declared to be tenants occupying such property, from a certain date, would be deemed to be tenants of the transferee on the same terms and conditions as to payment of rent or otherwise, on which they held it immediately before the transfer."
32. We are, therefore, of the opinion that merely because the privately managed schools, alongwith 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.
33. "12-A. The Provincial Government may prepare a scheme to provide for the re-transfer to the previous Management thereof any class of privately managed colleges and schools vesting in the Provincial Government by virtue of or under this Regulation which in its opinion it would be in the public interest to so re-transfer and may, in accordance with the scheme, by notification in the official gazette, direct that a college or school belonging to such class and specified in the notification shall, on and from such date as may be so specified, stand re-transferred to the previous Management thereof, subject to such terms and conditions as the Provincial Government may determine.
34. Explanation.--In this paragraph, 'previous management' includes the successor or legal representative of the previous management and, where there is no successor or legal representative, such person as the Provincial Government may determine."
35. According to the above provision a Provincial Government is authorised to re-transfer any class of privately managed colleges and schools back to the previous management thereof. Implying thereby that it was only the management and not the building in which the said school or college was housed that was taken over.
36. It is manifest, therefore, that the assertion made in the letter dated 21-9-1980 by the Director of Education (Respondent No.2) that the property of the appellant had become "Government property alongwith its assets" was contrary to law and of no legal effect.
37. We, therefore, hold that the appellant continues to be the owner of the property which was housing the private school known as Mission Christian High School and the assumption of the respondents that they have become its owners and can, therefore, demolish the building of the school and remove the debris is without lawful authority and contrary to law.
38. The appeal, therefore, succeeds and is allowed in the above terms, with costs.