The relevant facts leading to the institution of this petition are that the petitioner is a Society of the Capuchin Father's in West Pakistan registered under the Societies Registration Act, 1960. It purchased a plot measuring 11 Kanals, 16 Marlas, 143 sq. Ft. In T Block, Gulberg-II, from the Lahore Improvement Trust by sale-deed, dated 25-1-1963. The Society constructed various buildings on the said plot for the purposes of carrying out its objects and one of the buildings is occupied by an Educational Institution known as St. Lawrence Primary and Middle School under the petitioner's licence. The Society was running School ever since its inception till 30th of September, 1972, when the Primary School was nationalized under the provisions of para. 5 of Martial Law Regulation No.
118. The relevant para of the Notification is reproduced below:--- The Punjab Gazette, Published by Authority; Lahore, Saturday, September 30, 1972.
Education Department, Notification, The 30th September, 1972: .
No S.O. (NS)I-1/72.---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 nationalized as from the forenoon of the 1st day of October, 1972 under para. 5 of Martial Law Regulation No. 118.
Sr. No. Name of Institution Lahore Region Primary Schools
136. St. Lawrence Primary School, Gulberg.
137. St. Lawrence Primary School, Gulberg.
2. The middle school was not nationalized. The Governor of the Punjab accorded administrative approval/sanction for the incurrence of an expenditure of Rs.25,57,800 for the Scheme titled repair/alteration of nationalized/provincialized educational institutions and the education department treating itself to be the proprietor of the building, allocated Rs.2,63,600 for the repair of the building due to the dilapidated condition of the school building. The petitioner's case is that the respondents are illegally treating the building as a Government Building under their ownership whereas, according to the petitioner, under Martial Law Regulation No. 118 only the management vests in the Government and the petitioner remains the owner of the plot and the school building and as such no repair, addition or alteration can be made in the building without the prior approval of the petitioner as its owner. The petitioner accordingly sent a legal notice to respondent No.2/Director, Public Instructions (Schools), Government of Punjab, Lahore requesting him to desist from making any addition, alteration or repairs to the school building without written permission from the petitioners. The respondents started demolishing the dilapidated rooms of the school building and making repairs and the petitioners, therefore, instituted the present petition challenging the above said action of the respondents.
"Martial Law Regulation 118 was promulgated by the Chief Martial Law Administrator 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. 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 Order 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.
Thus, on lifting of Martial Law on 21-4-1972- this Regulation became an Act of the Appropriate Legislature and it has since been designated as the "Privately Managed Schools and Colleges (Taking Over) Regulation, 1972. "
These provisions have also been saved under Article 8 of the Constitution of Islamic Republic of Pakistan, 1973 (1st Schedule, Item 17). It will be advantageous to reproduce here the provisions of paras. 4 and 5 of the Martial Law Regulation 118, which read as under:--- .
"4. As from the first day of September, 1972, all privately managed colleges, together with all property attached to them, shall vest--
(a) in the Central Government, if they are situated in the Islamabad Capital Territory and
(b) in the Provincial .Government, if they are situated in a Province
5. Such privately-managed schools 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."
3. The question is whether the vesting of the St. Lawrence Primary School, Gulberg in the Provincial Government under the above said notification under para. 5 of Martial Law Regulation 118 had the effect of making it the property of the Government alongwith its assets as claimed by the respondents. The Hon'ble Supreme Court in a detailed judgment in the appeal titled Board of Foreign Missions of the Presbyterian Church in the United States of America through Lahore Church Council v. The Government of the Punjab 1987 SCM R 1197 has ' dealt with this issue exhaustively and conclusively and after considering a number of judgments of the superior Courts held that the word "vest" is a. Word of variable import, not having fixed connotation and does not necessarily mean to "vest" in title and while considering the word "vest" employed in para. 5 of Martial Law Regulation 118 held as follows:--- "We are, therefore, of- the opinion that merely because the privately --managed schools, along with 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.
In fact, this intention becomes further clear from the subsequent legislation enacted on the subject of 'Privately Managed Schools and Colleges (Taking Over) Regulation, 1972'. In this connection, President's Order 6 of 1983 on the subject of 'Privately Managed Schools and Colleges (Taking Over)
(Amendment) Order, 1983, is revealing. By ,Article 3 of this Order after paragraph 12, paragraphs 12- A and 12-B were inserted in Martial Law! Regulation No. 118. Paragraph 12-A laid down:--- "12-A. The Provincial Government may prepare a scheme to provide for the retransfer 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 retransfer 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 retransferred to the previous management therefore, subject to such terms and conditions as the Provincial Government may determine.
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.
According to the above provision a Provincial. Government can 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. "
4. The abovementioned authority is applicable to the facts and circumstances of the present case.
Similarly in Fazl-e-Mobin Ahmad and others v. Government of Sindh through the Secretary, Education Department, Government of Sindh and 3 others 1989 CLC 271, a Division Bench of Karachi High Court held that the provisions of paras. 4 and 5 of Martial Law Regulation 118 were neither intended to nor in terms have the effect of making the Government owner of the property in question and after declaring the petitioners to be the owners of the land and buildings in those petitions, it was also held that the petitioners are entitled to receive rent from the respondents for the said buildings and the respondents therein were directed to pay rent according to law.
5. It is manifest, therefore, that the assertion made by the -Education Department and the Director .Of Education (respondent No.2) that the property of the petitioner had become Government property along with its assets was contrary to law and of no legal effect.,
6. It is, therefore, held that the petitioner continues to be the owner of the property which was housing private school known as St. Lawrence Primary and Middle School and the assumption of the respondents that they have become its owner and can, therefore, demolish the building of the school or make its alterations or make repairs without the permission of the petitioner, is without lawful authority and contrary to law.
7. The writ petition is, therefore, accepted, in the above terms, with no orders as to costs.