1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the former High Court of West Pakistan, Karachi Bench, Karachi, in Writ Petition No. 315 of 1967, dated the 30th April 1968. By this judgment, the Writ Petition was dismissed with costs.
2. The appellants filed the above writ petition challenging the validity of lease deed dated the 6th May 1967, executed by the Evacuee Property Trust Board respondent No. 5, whereby it leased out Plots Nos. R. B. VI 1 2 and 3, situated on Bunder Road, Karachi, in favour of Messrs Hussain D'Silva Enterprisers res--pondent No. 4, for a period of 99 years on a yearly rent of Rs. 4,28,743.95 subject to the terms and conditions mentioned in the lease deed. This property belongs to Karachi Panjrapore As--sociation. This association was established in 1866 when some Hindu residents of Karachi formed this association with the object of the care and protection of the "cattle and other animals" and for feeding and tending disabled and diseased cattle and animals. This association was registered on the 25th April 1938 under section 26 of the Companies Act of 1913 for the following objects :--
(a) To provide for protection and perseverance of the cattle and other animals that may be permanently entrusted to the Association for the purpose by any resident of Karachi irrespec--tive of his caste, creed or calling ;
(b) To arrange for feeding or tending of such of the cattle and other animals in Karachi as may be disabled either by infirmity, disease or otherwise, or by their not being properly looked after by persons possessing them, and admitted in the Panjrapore ;
(c) To devise ways and means, as far as possible, of improving the breed of cattle in Karachi which ways and means may include organising or taking part in cattle shows etc., at Karachi or otherwise.
3. It was further provided that the Association shall maintain the Panjrapore at Karachi or in its vicinity and utilise or spend its property or funds in doing all such acts, matters or things, as shall be deemed proper or expedient. The Association was also authorised to acquire, purchase, sell or lease out buildings, lands, grazing farms, cattle etc. Raising subscriptions, receiving dona--tions, levy of legas (a subscription on business transaction) in the shape of charitable contributions for the maintenance and support of animals in the Panjrapore. In this connection, the Association acquired considerable property by means of gifts, grants, purchase etc., and was maintaining cows and other animals in four out--stations in the suburbs of Karachi, namely, Shewaram, Songal, Babranoo and Nagin and Rambagh in Karachi itself.
4. After Partition, a complaint was made to the Custodian, Evacuee Property, West Pakistan, Karachi, that Panjrapore Associ--ation has become evacuee property. Mr. A. S. M. Jaffary, Additional Custodian (Judicial), Evacuee Property, Sind and Federal Capital, Karachi, by order dated the 28th January 1950, declared the property belonging to the Karachi Panjrapore Association as evacuee property. A large number of members of this association migrated to India and the remaining members filed a revision petition against this order which was accepted by Mr. Akbar Hussain the then Custodian by order dated the 18th July X950, on the following observation :---- "The fact that the bulk of the members of the Managing Committee are now evacuee, does not affect the character of the property because they have ceased to have any right or interest in the property."
5. Evacuee Law was amended by Ordinance of 1951 enlarging the scope of the definition of "evacuee" and "evacuee property". Thereupon, another application was moved seeking declaration that the Association has become evacuee and its property be declared as evacuee property. The matter came up before Mr. S. M. Wajid Ali Shah, Deputy Custodian (Judicial), Evacuee Property, Karachi, who by his order dated the 18th August 1953, declared the Association as an evacuee institution and its property as evacuee property. This order was challenged in revision before the Custodian, Evacuee Property by the Association which was dismissed on the 19th April 1956. The Association preferred a writ petition under Article 170 of the 1956-Constitution on the 22nd May 1956, seeking quashment of the order of the Custodian and declaration that the Association was a non-evacuee institution. The Petition No. 160 of 1956 was dismissed by the High Court on the 12th November 1956, mainly on the ground that the finding of the learned Custodian that the business or the undertaking of the Association had ceased at least partially, was one of fact based on certain statements of its own members and that the authority of the persons then managing the affairs of the Association did not have the approval of the Custodian.
6. The Association challenged this order by two-fold ways. Firstly, it filed an appeal by special leave before the Supreme Court against the order of the High Court and secondly, a direct petition for the issue of writ to the Supreme Court under Article 22 of the 1956-Constitution against the Custodian's order alleging infringement of fundamental rights guaranteed by Articles 15 and 18, was filed. The Supreme Court, vide their judgment dated the 31st January 1957, upheld the view taken by the Custodian that the Association had ceased to function wholly or partially in terms of section 2 (2)
(d) of the Pakistan (Administration of Property) Ordinance of 1949. The appeal was, however, accepted on other ground namely, that the Association had been from its very inception, formed and subse--quently registered for the purpose of promoting religious and charitable objects, such as the protection of cattle and other animals and to arrange for their feedings, tending etc. The Supreme Court referred to section 6 (2) of Ordinance No. XV of 1949, which deals with the evacuee properties held in trust for religious and charitable purposes and observed as under :--- "No step was ever taken to find out what property was heist in trust for religious or charitable purposes, for, according to subsection (2) of section 6, the custody of the Custodian over such property is only a temporary one and " income has to be applied for carrying on the purposes of the trust. It appears that this aspect of the case was not pressed before the High Court, Karachi Bench, nor is there anything to show that at any stage did the Custodian ever apply his mind to it, though in view of the allegations of the appellants, such a determination was necessary. The appellants should have been called upon to produce evidence as to the nature of the properties held by them and the manner in which the income derived therefrom was spent. The justice of the case requires that such an investi--gation be made and the future action of the Custodian should be regulated by the result."
7. Thus Civil Appeal No. 4 of 1957 was accepted and the High Court was directed to issue a writ of mandamus to the Custodian of Evacuee Property to take such action as is provided by section 6
(2) of the Ordinance XV of 1949, in respect of any property or properties of the Association which he may find, after enquiry, to be property held in trust for religious or charitable purposes. The association, however, did not press the writ petition under Article 22 of the 1956-Constitution and it was dismissed as withdrawn.
8. Thereafter, the matter came up before Mr. Muhammad Bakhsh A. Memon, Custodian, Evacuee Property, West Pakistan, who, in compliance with the direction of the Supreme Court, initiated an enquiry and in the meantime directed the Additional Custodian (Administration) to manage the property of the trust and employ the funds thereof for the purposes of the trust which mainly consisted of looking after the cows and other animals. The learned Custodian inspected the cow- sheds in the various out--stations which were found in a very bad condition. Feeling thoroughly dissatisfied, he personally took the charge of manage--ment of the property and nominated appellant No. 1 along with three other respectable members of the Hindu community to supervise the affairs of the Association. These details are con--tained in order dated the 7th March 1958. On the 29th March 1958, he passed another order in which he observed that the pro--perty of the Panjrapore Association as set out in the relevant Schedule, consisting of open plots, sheds, staff quarters, residential buildings, shops and agricultural lands which were used for religious and charitable purposes of the Karachi Panjrapore Association. He recommended to the Government, the names of the 10 permanent members of the Hindu community for appointment as trustees of the association for the management of its affairs.
9. Mr. A. M. Jan succeeded Mr. Memon who did not agree with the order of the former Custodian. He directed the Additional Custodian to make proper enquiry after recording evidence and submit a detailed report. In the report, it was held that only three urban properties Nos. 9 to 11 mentioned in his report, were found to be in trust for public purposes of a religious and charit--able nature and that the remaining urban agricultural property had no element of entrustment or such characteristics. This view, however, did not find favour with Mr. Masood Ahmad who succeeded Mr. A. M. Jan as Custodian of Evacuee Property, West Pakistan and Karachi. He came to the conclusion that the categorisation of the properties of the Association was unwarrant--ed ; that the Trusts Act had no application to the case which was governed by Hindu Law of Endowments and that the Association was founded for a public purpose of a religious or charitable nature and as such all its properties acquired by giants, gifts and donations were trust properties. He also found that the objects for which the association had come into existence, were also religious and charitable in nature. In this connection he observed as under :---- "From a perusal of the various documents, extracts from which have been given above, the object for which this associ--ation was formed during the last century can be gathered with reasonable certainty. It can, in my opinion, be stated, without fear of contradiction, that this association was founded by some religious-minded Hindu gentlemen of Karachi with the sole object of taking care of diseased, old or maimed animals, especially cows, which, in the eyes of every Hindu, is a sacred animal. This object was primarily religious, but the element of charity, as I will explain later on, was also in the mind of the gentlemen when they founded the Association. Some of the properties, as will be presently seen, were granted to the Association by the Government, some were acquired with the help of donations and contributions made to the Association by the residents and merchants of Karachi and some were transferred in favour of the Association by way of gift for being utilised for its objects . . . . , In my opinion, if it can be at once held that this Association was founded for a public purpose of a religious or charitable nature, even if the properties held by the Association had not been endowed by any individual, and no trust deed was executed in favour of the Association vesting the properties in it, the properties held by it would still be trust properties. The provisions of the Trusts Act have no applications to this case, because the operation of that Act is excluded by section 1, so far as public or private religious or charitable endowments are concerned. For that very reason the definition of "trust", "trust property" and "trustee" given in section 3 of the Act would not be applicable to the present case. The law applicable to this case is the Hindu Law of Endowments, according to which an endowment for a religious or charitable object can come into existence by the appropriation of property for that purpose, with the requisite information of making an endow- -ment."
10. He further held that the case was clearly covered by section 7 (3) of the Act X11 of 1957 corresponding to section 6 (2) of the Ordinance XV of 1949, and that until the appointment of trustees, the properties held by the Karachi Panjrapore Association and their income would have to be applied, as far as possible for purposes of the trust. A copy of this order was directed to be forwarded to the Chief Settlement Commissioner of Pakistan for information and necessary action.
11. He proposed that interim arrangement may be made till such time a Scheme was framed under section 16-A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and accordingly, appellant No. 4 and Seth T. Motandas, were appointed as Managers, but as Seth Motandas was convicted by a Military Court he was replaced by Mr. Tikamdas Hiranand appellant No. 1.
12. In the meantime, the Scheme under section 16-A of the Dis--placed Persons (Compensation and Rehabilitation) Act, 1958, came into force and the management of the Association was taken over by the Divisional Evacuee Trust Committee respondent No. 1, appointed by the Evacuee Trust Board set up under the Scheme vide Notification No. S. R. O. 423(x)/61 dated the 24th March 1961.
13. The appellants feeling aggrieved by the action of the Divisional Evacuee Trust Committee, disposing of certain pro--perties of the Association, filed Petition No. 990 of 1963. A declaration was sought in this petition that though the Panjrapore Trust was held to be evacuee, the properties vested in it were not evacuee properties. This writ petition is still pending before the High Court of Sind & Baluchistan, Karachi. The appellant No. 1, however, filed Suit No. 1184 of 1967 and appellant No. 3 filed Suit No. 1079 of 1967, in the Court of Civil Judge, 1st Class, Karachi for a declaration in respect of the impugned lease relating to the plots Nos. R. B. VII-2 and 3. These cases are pending in the Court of Civil Judge, First Class, Karachi.
14. The allegation of the appellants is that the action of the Evacuee Trust Board to lease out plots Nos.
15. R. B. VII-2 and 3, situated on Bunder Road, Karachi, for 99 years, was in contraven--tion of Fundamental Right No. 10. They have further alleged that the lease of the said plots of land is not permissible under the Scheme prepared under section 16-A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
16. The allegation of the appellants is denied by the respondents. They denied that the Karachi Panjrapore Association came into existence for the purpose of establishing places of worship or had acquired any properties with that object in view. It was asserted that the sole object of the Association was to provide for the pro--tection and perseverance of cattle and other animals and to take care of disabled, infirm or diseased animals, entrusted to the Association, by any resident of Karachi, irrespective of caste, creed or calling. It was further emphasised that neither was its membership confined to persons belonging to the Hindu com--munity, nor were its subscriptions and donations confined to them, inasmuch as the levy of legas as one of its sources of income was a subscription imposed on business transactions, irrespective of the religion of the parties. It was maintained that in view of the findings of the learned Custodian and the Supreme Court, the case of the Panjrapore Association was covered by section 7 (2) of the Act XII of 1957, and the ad h )c appointment of appellant No. 1 and one Seth Motandas was by way - of an interim arrangement, until such time as a Scheme was framed under section 16-A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and after the framing of the Scheme, the Trust properties vested in the Trust Board, vide Notification No. S. R. O. 423 (a) (61) dated the 24th March 1961. It was emphatically denied that the plots in question were acquired for maintaining cows for worship by members of the Hindu com--munity. It was submitted that the plots in question already contained a number of commercial shops and residential flats almost on all sides, except that there was a cow-shed on a small portion of plot No. 2 and a few godowns for stocking fodder, besides a small place for office. In support of this, site plans (Exh. B., p. 137) and (Exh. C., p. 139) were placed on the record. Likewise, it was categorically denied that any temple (Mandar) ever existed on any portion of the plot or that the site had been used for cow-worship either during Dusehra festival or otherwise. It was asserted that Dusehra festival had always been celebrated in a place known as Swami Narayan Temple Compound opposite the K. M. C. Building. Regarding Kandi Pooja, it was admitted that a Kandi-tree existed in the compound of one of the plots, where on Dusehra day Kandi Pooja ceremony used to take place by getting the hair shaved beneath the Kandi-tree, which right had been specifically preserved in clause (j) of the lease deed with a stipulation that the lessee would provide free access to the tree, besides reserving open space around it for purposes of Kandi Pooja. It was submitted that under the proposed plan for cons--truction, as open space measuring 55 x 65 sq. Ft. Had been kept around the Kandi-tree to be available to the intending worshippers. It was maintained that the impugned lease did not amount to a violation of Fundamental Right No. 10 that no place of worship to be demolished by respondent No. 4; and that in the Memorandum of Association itself, it was provided that the Karachi Panjrapore Association was competent to acquire, purchase, sell or lease out buildings and lands. It was admitted that the sheds and other structures on the plots in question had been demolished ; that the cows and the sheds had been removed to another shed of the Karachi Panjrapore Associ--ation at Deh Songal not very far from Karachi ; and that no place of worship had been demolished. It was submitted that under clause 2 (d) of the Articles of association, the Karachi Panjrapore Association was competent either to keep the cattle at Karachi, or in its vicinity, and that in fact was maintaining them at several places. It was next submitted that the lease for a yearly rent of Rs. 4,28,743.95 contemplated considerable increase in income which was to be utilised in furtherance of the objects of the Association, or their achievement. Lastly, it was asserted that two civil suits had already been filed in this regard by some of the appellants which were still pending, and as such it would be wrong to say that no efficacious alternative remedy was available to the appellants, so as to justify the entertainment of the writ petition. It was further submitted that it had been notified by a public notice for public information published in the various newspapers on 7th July 1965, that the plots would be put to auction for being leased out, but the appellants never came for--ward to challenge the aforesaid action of respondent No. 1.
17. Special leave was granted in this case as the petitioners raised number of questions of law of general public importance.
18. Mr. Khalid M. Ishaque, learned counsel for the appellants, has challenged the validity of the impugned lease on the following grounds :---- "(i) That on the plots in question, there also stood a Kandi--tree, a rare botanical specimen of great sanctity and religious significance for the Hindus, which was worshipped by members of the Hindu community, side by side with cow worship. Thus the Gaushala (cow-shed) and the Kandi-tree had imparted to the sites in question a special religious significance having converted it into a place of worship, which could not be disposed of or demolished or destroyed so as to be substituted by a multi--storeyed commercial building sought to be raised by respon--dent No. 4, without a direct infringement of Fundamental Right No. 10 now No. 17 guaranteed under the Constitution ;
(ii) That in view of Fundamental Right No. 10 now known as Fundamental Right No. 17 which notwithstanding the procla--mation of emergency remained in force, the members of the Hindu community had a right to maintain and manage a religious institution, and as such it was not competent for the Government to legislate section 16-A of Act XXVIII of 1958 or to frame the Scheme thereunder ;
(iii) That in any case, even in terms of the Scheme itself, leasing out of the property to "respondent No. 4, was not permissible, and in no case for 4 period exceeding five years.
19. It is unnecessary to go into the questions rarsed in points Nos. (i) and (ii) above, as 1 am of the opinion that the lease deed cannot be supported on the Scheme framed under section 16-A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It will be noticed that admittedly the property in dispute is Evacuee Trust property and the question of the management and disposal of such property is dealt with under Chapter VI of the Scheme for the management and disposal of property attached to charitable and religious trusts or institutions. Clause 29 of the Scheme deals with management and disposal of property. It reads as under:---- "29. The Board shall pool all property and may, subject to the provisions of this Scheme-
(i) manage the whole or any part thereof through the Divisional or District Committees or by such other special arrangements as it may deem suitable,
(ii) transfer or make endowment of any property attached to any particular trust for a public purpose or for purpose as may be specified by the Central Government under such terms and conditions not inconsistent with the provisions of this Scheme, at it may consider suitable."
20. Clause 30 deals with the manner in which the income of the property may be utilised. Clause 31 deals with the question of the transfer of any property to any trust functioning in West Pakistan or Federal Area of the objects specified in clause 3o above. Under clause 32 such transfers shall be for a term of five years. It will be further renewable for such a period or periods at the option of the Board. I have gone through the Scheme. There is no clause in which the question of leasing out the property is dealt with.
21. Mr. Ajmal Mian, learned counsel for respondents Nos. 1 and 5, has contended that according to Stroud's Judicial Dictionary, the word "manage" means as under:---- " `Manage': A power to a land agent to "manage and superintend" estates, authorises him on behalf of his principal to enter into an agreement for the usual and customary leases according to the nature and locality of the property (Peers v. Sneyed 17 Bea. 151)."
22. Even if this meaning is accepted the lease granted by the respondents Nos. I to 5 is not a usual or customary lease which is granted in the city of Karachi. The usual or customary lease is generally granted for a period of one year or by monthly lease. It is thus quite clear that respondents Nos. 1 to 5 have granted the lease in the present case against the provisions of the Scheme prepared under section 16-A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
23. Apart from this, the property has also been leased out against the terms of the grant on which the property was given by the Government to the Mahajirs of the Camp. According to the lease deed which is at page 251 of the record, the land in dispute was granted to the Mahajirs of the Camp for purposes of maintaining a Dharamshala for using it for similar other purposes. The impugned lease deed is in violation of the terms of the grant also.
24. In these circumstances, if is quite clear that the Evacuee Trust Board is neither competent to lease out the property in dispute for 99 years under the Scheme nor is competent to transfer the land in dispute under a lease in violation of the terms of the grant. I would, therefore, quash the lease deed and hold that impugned lease in favour of respondent No. 1 is illegal, ultra vires and without jurisdiction and is of no legal effect. I would further direct the respondents to restore the cow-shed and to bring back the cows which have been taken to Songal to the aforesaid plot.
25. In the result, subject to the above remarks, the appeal is allowed with no order as to costs.
26. MUHAMMAD YAQUB ALI, J.-I agree.
27. SALAHUDDIN AHMED, J.-I agree.