JUDGMENT IRSHAD HASSAN KHAN, J. - This judgment shall dispose ot Writ Petition NoA993 of 1989 and Writ Petition No. 1920 of 1990 involving identical questions of law and facts..
2. The facts in brief are that vide -Notification No.DS(P>5-2/87- Shcikhupura, dated 19.7.1987, published in the Punjab Gazette on 22.7.1987, the Governor of Punjab in exercise of powers conferred on him under section 6 of the Punjab Local Government Ordinance, 1979, declared that for the purpose of next elections to the Local Councils in the Punjab and thereafter, the- local limits of various.Local Councils including Union Council Bhainwala, be altered. According to Item 2 of the Schedule to the Notification, square No. 149, amongst other Khasra numbers of village Muridke was excluded from Union Council, Bhainwala, and included in the area of Municipal Committee, Muridke, as is apparent from the relevant extracts of the schedule which reads as follows:- K.L.R.C.C DISTRICT SHEIKHUPURA S.No. Name of Local Changes in the'Local Council Area Counsil. {with details of villages involved. .
Area excluded Area included in
2. Union Council VILLAGE MURIDKE Muncipa) Committee
140. 141. 142, 143. 149" Muridke It is specifically mentioned in sub-para (i) of the notification that the local councils of Sheikhupura District mentioned column I of Schedule II shall stand substitute with their local limits mentioned against each in column No.Ll of the said Schedule. Union Council Bhainwala one of the Local Councils of Sheikhupura District to the extent of Square No.140 Khasras Nos. 141, 142. 149 stood included in the local limits of Municipal Committee Muridke. Since Local Council Muridke has already been declared as rating area for the purpose of property tax by virtue of Notification No.Tax (E&T)3 (55)/79-903, dated 15.7.1980 issued by the Punjab Excise and Taxation Department, therefore, the impugned assessm ent in respect thereof is intra vires.The plea raised by the petitioner that the impugned notification issued under section 6 of the Punjab Local Government Ordinance, 1979 could not have been issued without issuing a notification under section 3 of the Punjab Urban Immovable Property,Tax Act, 1958 has no force in the facts and circumstances of the present case. Suffice it to say that section 3 of the Urban Immovable Property Tax Act. 1958 empowers the Government through a notification to specify urban areas where the tax shall be levied under the Act. Here the Government has already issued notification as back as in 1980, therefore, the impugned assessm ent is not open to challenge on the plea raised by the petitioner. - It is next contended that section 6(5) no doubt empowers the Government by notification to extend, curtail or otherwise alter the limits of a local council declare that any local council shall cease to be a local council with the consequences me.- med in the notifi- ation as well as those enumerated in clauses (a) and tb). Here no notification was issued by the Government under section 6(5) lor extending or curtailing or otherwise altering limits of a Union Council Bhianwala or Municipal Committee Muridke, therefore, the impugned notification dated 19.7.1987 was only for a limited purpose i.e. Election to the local council in Punjab and not for the purpose of property tax.
3. When faced with this Mr. Muhammad Farooq Bedar, Additional Advocate General argued that the notification was issued for the purpose of next election to the local councils in the Punjab and thereafter. His submission was that the word 'thereafter' does not refer to subsequent elections to the local council bui is all embracing and is applicable in future for all intents and purposes. Khuwaja Muhammad Akram, learned counsel for the petitioner submitted that the word 'thereafter' is to be read ei'usdem generis and it refers to next elections and the elections held thereafter.
4. A similar question came up for consideration in the case of M/s. Chaudhri Wire Rone industries (Pvt.) Limited v. Secretary to the Government of the Punjab Local Government & Rural Development Department etc. (Writ Petition No.171 of 1988. Deckled on 12.1.1994), in which the following view was taken by a learned Single Judge:- "Before dealing with the main contention of the learned counsel for the petitioners, it appears convenient to take up the remaining two arguments raised by. Them. So far as the inclusion of the area within the municipal limits is concerned, the notification issued in this behalf on 25.1.1987 is not open to any valid exception. Section 6 of the Punjab local Government Ordinance.
1979 unmistakably vests power in the Government to alter the limits of Local Councils. The decision is purely administrative in nature and rests with the Government alone. This Court cannot in its Constitutional jurisdiction undertake an exercise to find out as to whether or not such a decision was justified on facts. Similarly, on its proper construction, notification dated 25.1.1987 shows that though it was issued keeping in view the elections to tjie Local Councils yet the alteration of limits was not only for that limited purpose nor was it transitional or temporary in nature. The use of wort! "thereafter" in the notification is clearly indicative of the intention that even after the elections, the altered limits would remain in force."
After hearing the learned counsel tor the parties at some length, I am not persuaded to take a different view.
In view of the above, the writ petitions fail and are hereby dismissed with no order as to costs.
K.I..R. 1997 Civil Cases 141 [Bahawalpur)
Present: Tassadaq Hussain JiJani, J RAHIMYARKHAN COLLEGE OF EDUCATION 1 'ersus ISLAMIA UNIVERSITY, BAHAWALPUR Writ Petition No. 1378/95-BWP, decided on 6th July, 1995.
Constitution of Pakistan, 1973- -An. 199-Affiliation of College with the Islamia University. Bahawalpur-Applied I'or-Relused- Challange to-The affiliation was refused because the petitioners have not fulfilled the conditions despite the opportunity given-Held: There is no merit in the writ petition which is hereby dismissed. t Parti 8)
I-nr the Petitioner: M Jaffar Hasiimi and Bilal Ahmad Qazi, Adovcates. t or the Respondent: IM. M.
Bhatti, Advocate.
Date of hearing: 6th July, 1995.
TASSADUQ HUSSAIN JILANI, J. - This judgment shall dispose of the following writ petitions as common questions of law are involved:- N
(1) WP. No. 1378/95-BWP.
(2) WP. No. 1385/95-BWP.
(3) WP. No. 1404/95-BWP.
(4) WP. No. 1379/95-BWP.
(5) WP. No. 1503/95-BWP.
(6) WP. No. 1375/95-BWP. > Brief facts leading to the filing of Writ Petition No. 1378/95 are that the petitioner is an educational institution named as Rahimyarkhan College of Education, Rahimyarkan. This has been established for the purpose of imparting one year's degree course for Bachelor of Education. The petitioner college applied to the Islamia University, Bahawalpur for affiliation and the same was conferred in the year 1991-92 for a period of one year, it was extended in 1992-93 and 1993-94. However, for the Session 1994-95, the Affiliation Committee of the respondent University vide its report dated 17.11.1994 did not recommend affiliation of petitioner's college and Committee of the Syndicate concurring with the report of the Affiliation Committee decided to refuse affiliation to the college vide its order dated 17,12.1994. This order was conveyed to the petitioner vide Annexure-X (page 56 of the petition). The petitioner went in appeal against the order of refusal under section 38 of the Islamia University, Bahawalpur Act and the appeal met the same fate. Hence this petition. Similarly in all other connected writ petitions, the petitioner colleges were granted provisional affiliation and after inspection by the Affiliation Committee separate reports were submitted to the Syndicate. The Committee of the Syndicate having considered those reports and after hearing the 0 respective Principals/representatives refused affiliation by separate orders.
3. Report was called from the Islamia University Bahawalpur in which it h;is been averred that the petitioner college was established in the rented building in the year 1991. The college was extended provisional affiliation in the hope that it will fulfil the conditions essential for granting affiliation but despite a lapse of three years it has not done,.So. It was further submitted that the Affiliation Committee on its visit to the petitioner college had pointed out the deficiencies but despite the opportunity given, the college has failed to remove the objections. Consequently, the Affiliation Committee revisited the college in the year 1994 and found that the petitioner college still did not fulfil the requisite condition, as prescribed under section 34 of the Act of Islamia University, Bahawalpur. The report of the Affiliation Committee, was submitted before the Syndicate Committee which endorsed the same and refused affiliation for the current academic year.
4. In support of the petition, the learned counsel for the petitioners Mr. Muhammad Jaffar Hashmi, Advocate, has raised the following points:-
(i) That to seek education is a fundamental right of every citizen. This fundamental right assumes greater significance as it is Islamic State and Islam lays great stress on seeking education. He referred to Article 2-A of the Constitution of Islamic Republic of Pakistan to point out that the same is enforcable in law. The refusal to grant affiliation is a clog on this fundamental right of the petitioner. He relied on AIR 1993 SC 2178, PLD 1993 Karachi 83, AIR 1964 SC 1279 and AIR 1990 SC 40 to bring home the point that the refusal to grant affiliation is a unreasonable restriction on the right to carry on a noble profession of teaching and the law which empowers the University to grant affiliation is altra vires of the Constitution;
5. Mr. Bilal Ahmad Qazi, Advocate, who also appeared for the petitioners, having adopted the arguments of Mr. Muhammad Jaffar Hashmi. Advocate, made the following submissions
(i) That there is no concept of provisional affiliation in law and that affiliation once granted cannot be rescinded or withdrawn; and
(ii) That as the impugned order has no mandate in law, the same has to be struck down in the Constitutional jurisdiction of this Court.
6. Mr. M. M. Bhatti, Advocate, the learned counsel for the Islamia University, Bahawalpur, defended the order of refusal of affiliation and submitted as follows:-
(i) That all fundamental rights are subject to law and a profession, trade, commerce or industry can be regulated by the Legislature. No exception, therefore, can be taken to section 34 of the Islamia University Bahawalpur's Act which prescribes conditions for affiliation;
(ii) The Syndicate Committee considered to report of the Affiliation Committee (R 1 with te report and comments) and vide its order dated 17.12.1994 endorsed the same by a speaking order (R2).
Petitioner's appeal before the Senate Committee was dismissed on 18.2.1995. Thus concurrent findings of tribunals of competent jurisdiction, according to the learned counsel for the respondent University, cannot be interfered with under Article 199 of the Constitution; and
(iii) That the petitioners did not mention any name of the students in the writ petitions who wanted to appear in the examination and the list submitted by the order of this Court, of those students who wanted to appear in the University examinations is fake as most of them do not qualify to appear in the University examination.
7. 1 have given anxious thoughts to the points raised by the learned counsel for the parties and have also gone through the precedent case law.
8. The power to pass a final order includes the power to pass an interim order. This is stipulated in section 20 of the West Pakistan General Clauses Act. The power to grant affiliation is contained in section 34 of the Islamia University Act. The provisional affiliation was granted with a view to enable the petitioner -colleges to fulfil the conditions necessary for affiliation. If despite the opportunity given, the petitioners have not fulfilled the conditions which is menifest from the reports of the Affiliation Committee, the Committee of the Syndicate had rightly re I u-sed the affiliation by a well reasoned order. In the letter dated 31.10.1994 addressed to the Director of Education, Colleges, the Principal of the petitioner college in WP No. 1378/95 had specifically requested for affiliation of its college with the Islamia University for the Session 1994-95. Thus it is manifest that it was with the consent ot the petitioner that the affiliation was being granted from year to year basis with the object referred to above.
9. A bare reading of section 25(2)(n) and section 34 of the Islamia University of Bahawalpur Act.
1975, makes it clear that the order of refusal to grant afliliation passed by Committee of the Syndicate does not suffer from any jurisdictional defect and, therefore, cannot be interfered with in the Constitutional jurisdiction of this Court. In an unreported judgment of this Court (at Multan Bench) in WP No. 2957'92, (Musjim College of Education v. Bahauddin Zakarixa University, Multan), the petition was dismissed and the finding of the Affiliation Committee and the order of the Committee of the Syndicate refusing extentions in affiliation were upheld.
10. The right to seek education could be classified as fundamental right as n is relatable right to life.
A person has a right to establish an institution but it docs not carry a right to have it recognized. For purposes of recognition it has to conform to the conditions laid down in the relevant law and the same cannot be dubbed as unreasonable restriction. In the judgments reported in AIR 1993 Karnataka 167 and AIR 1992 Andhra Paradesh 227, the right of State or University to grant or to refuse affiliation was upheld. The only observation made was that the ing affiliation should be speaking order.
Similarly in AIR 1993 Supreme Court 2178 it was observed that the authorities granting affiliation/rocognition are duty bound to insist the conditions necessary for the grant of affiliation.
11. The right to establish an institution deos not carry with it a right to have it recognized. If an institution wants to be recognized it has to maintain a certain level of excellence which is prescribed by law. In AIR 1993 SC 2178 (at page 2182) it was observed as foliows:- "In such a situation, it is obligatory in the interest of general public upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students. Since the recognising/affi bating authority is the 'State' it is under an obligation to impose such conditions as part of its duty enjoined upon it by Article 14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well. Affiliation/recognition is not there for anybody to get it gratis or unconditionally. No Government, authority or University is justified or is entitled to grain, recognition/affiliation without imposing such conditions."
12. For what has been discussed above, there is no merit in all the six writ petitions mentioned in para 1 of this judgment which are hereby dismissed.