This judgment will dispose of Writ Petitions Nos.2536, 3186, 3205, 3202, 3203 and 3204 of 1987 as common questions of law and facts are involved.
2. The main case is Writ: Petition No.2536 of 1987. According to the averments the petitioner-Church acquired through sale-deeds, dated 23-6-1913, 29-3-1917 and 25-9-1922 land totalling 33 Kanals, 13 Marlas. After purchase, on part of the land Church building was constructed as also a school by the name of Saint Albert High School was established. The school was being run by the petitioner- Church when under Martial Law Regulation 118 the same was nationalized on 30-9-1972. Minus the school building the remaining land remained with the petitioner Church but on July 8th, 1982 the Government of Punjab Education Department issued a directive to all the Directors Public Instructions Colleges/Schools in Punjab, asking them to have the land of nationalized schools mutated in favour of the Provincial Government. This memo. Is Annexure "A". Annexure "B" is mutation, dated 4-3-1984 showing mutation of some land from Roman Catholic Church to Provincial Government. Feeling aggrieved this petition was filed in this Court on 8-6-1987 on the ground that the Martial Law Regulation only nationalized the schools and did not justify the taking over of the land and as such the impugned directive as well as the mutation was without lawful authority.
2. In the remaining five Constitutional petitions the facts are more or less the same except for the area of the land acquired by the petitioners through purchase or gift and the name and area of the schools which were established and constructed by the petitioners Churches/Bodies. The schools were being run and managed by the petitioner until they were also nationalized under Martial Law Regulation, 118.
3. The core question has since been settled by the Supreme Court of Pakistan in the well-known judgment reported as Board of Foreign Missions of the Presbyterian Church in the United States of America through Lahore Church Council v. The Government of the Punjab through Secretary, Education, Civil Secretariat, Lahore and another 1987 SCM R 1197. It has been held that:------ "Merely because the privately managed schools, alongwith their assets were to vest in the Government, under the terms of para.5 of M. L.R.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 M.L.R. 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. "
4. In another judgment of the same date and reported as The Christian Educational Endowment Trust, Lahore v. The Deputy Commissioner, Lahore and others 1987 SCM R 1189 the Honourable Supreme Court of Pakistan held that "mutation of Trust Property sanctioned on the ground that the property was attached to the taken over colleges---No opportunity of hearing granted to the Trust---Order sanctioning mutation was declared to be contrary of law and of no legal effect".
Review petition against the main Judgment was also dismissed by the Supreme Court of Pakistan vide judgment reported as The Government of Punjab through Secretary, Education Department and another v. The Board of Foreign Missions of the Presbyterian Church in the United States of America through Lahore Church Council PLD 1988 SC 382.
5. In the face of the above legal position there was no room to argue to the contrary. However, learned counsel for the respondent Headmistress vehemently insisted that since the question of title is involved, all` these petitions should be dismissed and the petitioners directed to approach the Civil Court and obtain the relief by adducing evidence. When confronted to go through the parawise comments filed on behalf of the respondent and to point out as to where is the dispute about the title of the petitioner, learned counsel again insisted that it is a case fit for decision of Civil Court and not by the High Court.
6. Perusal of the parawise comments filed in Writ Petition No.2536 of 1987 reveals that the respondents are contending themselves with bare denial in reply to the assertion made in Paragraphs Nos. 1, 2 and 3 of the writ petition. The claims made in Paragraphs Nos. l, 2 and 3 of the writ petition are backed by the documents of title, the copies of which have been annexed as Annexures "C", "CC" and "CC/1". In the circumstances a bare denial does not mean that the respondents were claiming a title in themselves.
7. As contended by the learned counsel for the petitioner the question of alternative remedy before the Civil Court has again been settled by the Supreme Court of Pakistan vide its judgments, dated 18-6-1989 passed in Civil Appeal No.445 of 1986. This judgment has again been passed in a dispute between the Church and the Province of Punjab. The argument that the Civil Court should be approached was negated by the Supreme Court of Pakistan by relying on Article 14 of the Martial Law Regulation 118 which ousted the jurisdiction of the Courts. The Supreme Court of Pakistan held that in view of Article 14, such questions can only be determined by the High Court in exercise of its Constitutional jurisdiction. The case was remanded to the High Court. This judgment furnishes complete reply to the above argument.
8. It is clear that the impugned directive dated 8-7-1982 was issued when the law was in a fluid stage. The impugned mutation was also entered when the law was not settled. In view of the above Supreme Court judgment which contains the declared law of the land, the respondents cannot claim any ownership either in the school or to the property attached with the school, muchless the land which vests in the Churches. All that has been taken' over by the respondents under Martial Law Regulation 118 is the management of the school. . The impugned directive and the consequential mutation are hereby declared to have been issued without lawful authority and consequently, of no legal effect.