' BASHARAT AHMAD SHAIKH, J.---On 9th May 1994. The Azad Jammu and Kashmir Assembly passed an Act known as "The Al-Khair University of Azad Jammu and Kashmir Act, 1994" for setting up of a private University to be called as a The Al-Khair University of Azad Jammu and Kashmir". According to the scheme of the Act the Chancellor was to be its titular head while all the executive powers were vested in the Pro-Chancellor who was described in section 8 as the Chief Executive. He was given powers to annul any order passed or proceedings taken by any authority or officer of the University, including those of the Governing Body. It was laid down in the same section that Dr. Muhammad Bashir Goraya shall be the Pro-Chancellor of the University and was to hold office during his lifetime. After his death, Chairman of the AlKhair Trust of Pakistan was given the power to appoint his successor on the recommendations of the said Trust. There was to be a Vice- Chancellor who was to be appointed by the Pro-Chancellor and was to hold office during his pleasure.
2. The afore-mentioned Act was promulgated on 9th May, 1994. On 14th March, 1996 some amendments of far-reaching consequences were carried out in the Act through an Ordinance which came into force. Subsequently the provisions of the aforesaid Ordinance were incorporated in an Act of the Assembly known as "The Al-Khair University of Azad Jammu and Kashmir (Amendment) Act, 1996". It came into force on 29th May, 1994. For the sake of brevity we will also refer to it as the amending Act. Some features of the amendments need to be noticed. Section 7 was amended to provide that, instead of the President of Azad Jammu and Kashmir, Sardar Muhammad Abdul Qayyum Khan shall be the lifetime Chancellor of the University. At the relevant time he was the Prime Minister of Azad Jammu and Kashmir, which position he held as leader of the majority party in the Azad Jammu and Kashmir Assembly. The post of Pro-Chancellor, which was being held by Dr.Muhammad Bashir Goraya, was abolished and the Chancellor was made the Chief Executive of the University in place of the Pro-Chancellor. In short Dr. Muhammad Bashir Goraya was completely ousted from the University and in his place Sardar Muhammad Abdul Qayyum Khan became repository of all powers. It also appears to be significant that the power to appoint the future Chief Executive of the University was taken away from the Al-Khair Truk. It follows that the said Trust was denuded bf the all-important power to decide who was in future to be kingpin of the University. Subsequently Professor G.J. Preeshan Khattak, who was Principal Advisor to the Azad Jammu and Kashmir Prime Minister at the relevant time, was appointed as the Vice- Chancellor and Rector of the University.
3. Al-Khair Trust Pakistan acting through its Chairman, Dr. Muhammad Bashir Goraya and Dr. Muhammad Bashir Goraya filed a writ petition on 22nd of December, 1996 to challenge the amending Act mentioned above. The Azad Jammu and Kashmir Legislative Assembly, Azad Government of the State of Jammu and Kashmir, Law Department of the Government, Sardar Muhammad Abdul Qayyum Khan, Chancellor of the University and Professor G.J. Preeshan Khattak, Rector of the University were impleaded as respondents. Vide its judgment of 20th March, 1999 the High Court dismissal the writ petition by rejecting all the pleas raised in it.
4. The High Court has rejected the plea that the aforementioned amendments carried out in the Al- Khair University of Azad Jammu and Kashmir Act, 1994, which also may be referred to as the original Act, were the result of collusion between respondent No,4, Sardar Muhammad Abdul Qayyum Khan and respondent No,5, Professor G.J. Preeshan Khattak. Respondent No,4 was the Prime Minister of Azad Jammu and Kashmir when the original Act was passed by the Assembly as well as at the time when the amendments were carried out in 1996. After the amendments, as noted earlier, he became the Chancellor of the University enjoying full powers. Respondent No,5 was the Principal Advisor to the Prime Minister of Azad Jammu and Kashmir When respondent No,4 was the Prime Minister He is now the Rector and Vice-Chancellor of the University. The averment in the writ petition was that all the financial investment for the establishment of the University was made by Al-Khair Trust and that after the establishment of the University respondent No,5 insisted that he wanted to have a share in the University whereupon he was allowed to pay rupees five lakhs towards funds of the University but the amount was withdrawn by him in January, 1995. It was averred that respondent No,5 was subsequently removed from the post of Rector and Vice- Chancellor due to "continuing undue influence, pressure, victimization, highhandedness and threats". It was alleged that due to his removal from the said office, respondent No,5 colluded with respondent No,4 and by use of undue influence got the original Act amended to oust Al-Khair Trust and Dr.Muhammad Bashir Goraya from the University. The High Court has repelled the allegation of malice on the ground that no such allegation can be levelled against Legislative Assembly. It has also repelled an argument raised before it that amending Act was bad because the Al-Khair Trust and Dr.Muhammad Bashir Goraya were condemned unheard by the Legislative Assembly while passing the amending Act although, as claimed, valuable rights of the writ petitioners were taken away by the Assembly. It has been held that a law passed by the Legislative Assembly can only be struck down if it is in conflict with the Constitution. It was averred in the writ petition that huge amount was invested by the Al-Khair Trust for the establishment of the University and photo copies of Bank Statement of the account maintained by the Al-Khair University, consisting of sixteen pages, were attached with the writ petition. About this record and about the averment that respondent No,5 at one stage contributed rupees five lakhs and later on withdrew it, the High Court has held that these are questions of fact which required detailed inquiry but the High Court in its writ jurisdiction does not enter into controversial facts arising out of "contractual or partnership actions" of the parties. It has also been held that the question relating to payment of withdrawal of rupees five lakhs relate to a private respondent against whom no action can be brought under writ jurisdiction. The most important aspect of the case is that it was argued before the High Court, on the basis of an averment made in the writ petition, that Fundamental Right No,14 (Protection of Property) had been violated because the Al-Khair University had been deprived of "proprietorship" of the University but this argument was also repelled.
5. After having reached the conclusion that the writ petition had no force, the learned Judges in the High Court undertook a comparative study of the contents of the AlKhair University Act on the one hand and the statutes by which Agha Khan University and Hamdard University were set up in Pakistan on the other hand. As a conclusion of this exercise the learned Judges have pointed out four disparities of vital public importance between the two sets of legislations and have observed that the Legislative Assembly, the. Azad Government and the Law Department may attend to them as early as possible. However in the purported exercise of the powers under section 151 of the Civil Procedure Code and rule 38 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984 declared the provisions of subsection (3) of section 3 and clause (iv) of section 5 of the Al-Khair University Act as unconstitutional. Subsection (3) lays down that income and property of the Al- Khair University shall be exempted from taxes. The learned Judges have quashed this provision on the ground that it ran counter to the other laws in force in Azad Jammu and Kashmir, namely, laws relating to income-tax, wealth tax and property tax. The learned Judges have held that the Legislative Assembly was not expected to make any law which renders the provisions of other laws in force in the State as redundant or nugatory. It has also been held that this provision smacked of special treatment in favour of Al-Khair University which was against the Fundamental Right of equality before law. The other provision held unconstitutional by the learned Judges, namely, clause (iv) of section 5 authorized the Al-Khair University to "affiliate itself or associate with other institutions outside Azad Jammu and Kashmir" and to establish the campuses etc. In Pakistan or abroad.
6. Two appeals have been brought against the judgment of the High Court. Civil Appeal No,69 of 1999 has been filed by AlKhair Trust of Pakistan and Muhammad Bashir Goraya. It may be mentioned that Muhammad Bashir Goraya is also the Chairman of the Al-Khair Trust Pakistan. This appeal has been filed to challenge the dismissal of the writ petition filed by the aforesaid appellants. They have also challenged that part of the judgment of the High Court whereby two provisions of the Al-Khair University Act 1994 mentioned above have been declared to be unconstitutional. The other appeal has been filed by Al-Khair University and Professor G.J. Preeshan Khattak, Rector of Al-Khair University, to challenge the judgment of the High Court so far as it relates to annulment of the two provisions mentioned above, subsection (3) of section 3 and clause (iv) of section 5. In the memorandum of appeal it is, inter alia, stated that the relevant portion of the judgment. Of the High Court is unprecedented. This appeal bears No,45 of 1999 titled Al-Khair University and another v. Al-Khair Trust Pakistan and others.
7. We would like to first take up Appeal No,45 of 1999 titled Al-Khair University and another v. Al- Khair Trust Pakistan and others. Both the parties in the present litigation are agreed on the point that the High Court fell in error in declaring subsection (3) of section 3 and clause (iv) of section 5 of the Act as unconstitutional. After giving due consideration we have also reached the same conclusion.
8. The fundamental reason in reaching the conclusion as aforesaid is that because of the declaration that the aforesaid two provisions were unconstitutional, it is the Al-Khair University which has suffered but Al-Khair University was not a party before the High Court. Under subsection
(3) of section 3 the income and property of the University stood exempted from taxes. After the declaration of the High Court taxes will be imposed on the income and property of the University which means that University has suffered in terms of money by the aforesaid declaration of the High Court. Similarly by the other declaration in respect of clause (iv) of section 5 all campuses and faculties opened by the Al-Khair University in Pakistan as well as all those institutions established in Pakistan which are affiliated with the University will be closed down. This will also result in colossal loss to the University. We are clear in our minds that such an order cannot be passed behind the back of a party. The declaration has been recorded without hearing the University which means that it has been condemned unheard. Another aspect of the matter is that ordinarily only parties to a lis are bound by the judgment of a Court. If a judgment is given against a person who is not before the Court such a judgment does not bind that person.
9. It is also significant that the matter was neither raised by any party nor was argued before the High Court as is common ground between the parties. Therefore, it cannot be said that even the Legislative Assembly, which was a party to the proceedings before the High Court, was given an opportunity to explain its position or to defend the provisions of law declared unconstitutional by the High Court. Under section 44 of the Interim Constitution Act the High Court can issue a writ on an application filed before it. It follows that without an application no order or declaration can issue from the High Court. An application may be filed in some matters by any person while in some other matters the High Court can only act on the application of an aggrieved party. The applications which can be filed by any person relate to quo warranto and habeas corpus. The disputes raised in the present case did not fall under these two categories. The writ petition had been filed for seeking mandamus and certiorari in which respect the High Court can only exercise jurisdiction on the application of an aggrieved party. The AlKhair 1 us and Muhammad Bashir Goraya were the petitioners before the High Court. They were admittedly not aggrieved by the two provisions of law declared unconstitutional by the High Court.
10. In the judgment under appeal it has been stated that declaration mentioned above was being made under section 151 of the Civil Procedure Code and rule 38 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984. The two provisions are reproduced below; "Section 151.---Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
"Rule 38.---All questions arising for determination under rules 31 to 36 shall be decided ordinarily upon affidavits and documents but the Court may direct that such questions as it may consider necessary be decided on such other evidence and in such manner as it may deem fit and in that case it may follow such procedure and may pass such order as may appear to it to be just."
11. Both the learned counsel for the parties were agreed on the point that these two provisions of law do not authorise suo motu exercise of Constitutional jurisdiction. It is our considered view that while exercising the writ jurisdiction these two provisions of law cannot override section 44 of the Interim Constitution Act. If any authority is needed on the point that suo motu exercise of jurisdiction is not permissible we may refer to Shahnaz Begum v. The Honorable Judges of the High Court of Sindh and Baluchistan PLD 1971 SC 677 and Municipal Committee, Dadyal v. Mistri Abdul Rehman 1992 SCR 136. Thus it is clear that the High Court acted without jurisdiction in making the declaration under reference. Therefore we accept Appeal No,45 of 1999 titled Al-Khair University and others v. Al-Khair Trust and others and set aside the declaration that the provisions of subsection (3) of section 3 and clause (iv) of section 5 of Al-Khair University Act were unconstitutional.
12. We now pass on to the other appeal which has been filed by Al-Khair Trust and Muhammad Bashir Goraya. We have heard exhaustive arguments of Mr.Farooq Hussain Kashmiri in support of this appeal and of Mr.Abdul Rashid Abbasi in its opposition. Mr.Abdul Rashid Abbasi vehemently raised a preliminary objection that Al-Khair Trust is not registered in Azad Jammu and Kashmir and therefore it cannot sue in Azad Jammu and Kashmir. He supported his objection with the submission that a body which is not registered does not have the capacity to sue. He referred to section 44 of the Azad Jammu and Kashmir Interim Constitution Act and contended that a writ petition can only be filed by a natural or a legal person. He cited some judgments.
' In Azad Government of the State of Jammu and Kashmir and another v. Kashmir Timber Corporation PLD 1979 SC (AJ&K) 139 there is an obiter dicta in paragraph 54 in which two cases from Indian Supreme Court were mentioned. It was held in them that a firm is not a person and is only a collective name of its members with the result that a firm is not a legal person. It was not held that a firm could not file a writ petition. In fact in Kashmir Timber Corporation case writ petitions had been filed in the names of firms and in spite of the observations, of Supreme Court of India, relied upon by Mr. Abdul Rashid Abbasi, it was not held that petitions were not maintainable but were accepted. The following quotation from para.54 will be instructive:-- "Sardar Muhammad Iqbal, learned counsel for the respondents, made a statement at the bar, after satisfying from the respondents, that 'none of them was a registered Company and that though they were styled as such, but they were owned by single individuals or a number of persons. He maintained that none of them had a corporate entity. This statement was not controverted by the learned counsel for the appellant. Mr. Fazale-Hussain also placed on record an affidavit to the effect that 'Kashmir Timber Corporation' is the concern of Brig. Muhammad Aslam Khan alone. We feel no hesitation in accepting the statement of Sardar Muhammad Iqbal."
' Anjuman Araian, Bhera v. Abdul Rashid and 5 others PLD 1973 Lah.
500. The writ petition was filed by Anjuman Araian, Bhera challenging order of Government as illegal and without lawful authority. The writ petition was dismissed on the ground that Anjuman, by impugned order of Government, had neither suffered any legal wrong nor was its interest in any way affected. In these circumstances it was held that Anjuman was not an aggrieved person. This judgment does not support the plea of Mr.Abdul Rashid Abbasi, because it has been held in it that the Anjuman was not aggrieved person, and it was not held that the Anjuman cannot file a writ petition because it is not a legal person or that writ should have been filed by all members of the Anjuman.
' It may be pointed out that Anjuman Araian, Bhera filed appeal before the Supreme Court and although it was dismissed but the dismissal is based on the ground that the Anjuman was a trespasser and for that reason it had no locus standi. The learned Judges did not hold that writ could not be filed by the Anjuman.
' Pakistan Steel Re-Rolling Mills Association v, Province of West Pakistan PLD 1964 (W.P.) Lah.
138. In this case an objection was raised that the writ petition filed by Pakistan Steel Re-Rolling Mills Association was not maintainable because qua the relief sought in the petition the Association could not be said to be an aggrieved party. It was contended that Association was not affected by the impugned notification laying down minimum rates of wages for workers in the steel re-rolling industries although its members i,e, the mills which were members of the Association may be so affected. It was laid down that the Association was not an aggrieved party because that the Association had no concern with the result of the litigation because individual industries will be burdened with revised wages for workers and not the Association. It follows that this view was taken in light of the fact that the Association was not to pay wages to the workers working in the individual industries. It was not held that the Association could not file a writ petition if it were aggrieved. We have found that appeal was taken to the Supreme Court in this case and in the judgment reported as The Pakistan Steel Re-Rolling Mills Association, Lahore v. The Province of West Pakistan through Secretary, Cooperation, Labour and Social Welfare Department, Lahore PLD 1966 SC 72, the question whether the Association was aggrieved or not was left open and the case was decided on merits.
' In Messrs Sainjee Cargo Services v. Messrs Cargo Movers and others 1989 CLC 2229, decided by a learned Single Judge of the Karachi High Court, facts were that a suit was instituted in the name of a registered firm through its Financial and Administrative Advisor. The learned Judge upheld an objection raised by the defendant that under subsection (2) of section 69 of Partnership Act it is necessary in order to maintain a suit on behalf of a firm that the firm should be registered and the persons suing must have been shown in the register of firms as partners. The finding was given in light of section 69 of the Partnership Act, but AlKhair Trust is not a partnership. Filing of a suit is governed by section 69 of the Partnership Act of which the relevant provisions are as follows:-- "69.---(1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.
(2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.
(3) ..
' It will be seen that it is specifically provided in subsection (2) that registration is compulsory for institution of a suit on behalf of a firm. However Al-Khair Trust is not a partnership, or a firm, but is trust which is governed by the Trust Act in which there is no requirement of registration.
17. ' In Tamil Nadu Panchayat Development Officers Association, Madras v. Secretary to Government of Tamil Nadu, Rural Development and Local Administration Department, Madras and others AIR 1989 Mad.224, it was held that in light of Rule 2-B of the Rules framed by virtue of Article 225 of the (Indian) Constitution to regulate proceedings under writ jurisdiction an unregistered association cannot maintain a writ petition. This judgment is based on rules framed under Article 226 of the Constitution but no such rules are in force in Azad Jammu and Kashmir. In the Azad Jammu and Kashmir High Court Procedure Rules, 1984 there is no analogous provision.
' In Director-General, Ordnance Factories Employees, Association v. Union of India and Director- General, Ordnance Factories AIR 1969 Calcutta 149 it was held that an association of the Government employees cannot file a writ to enforce a right of its individual members. It was also observed that legal proceedings can be maintained only by a body which is recognized as a legal person.
13. It will be seen that in none of these cases any view has been expressed about maintainability of a writ petition at the instance of a trust. On the other hand in Kashmir Timber Corporation case writs were issued even at the instance of some firms. Reason is not too far to seek. Section bars a suit arising out of a contract but not a writ to enforce a fundamental right. We may point out here that the landmark case decided by the Supreme Court of Pakistan which is commonly known as "Judges case" was decided at the instance of a trust. It is reported as "Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324.
14. It is true that the principles of Civil Procedure Code are generally applicable to writ petitions but the learned counsel for the respondents did not refer to any provision of Civil Procedure Code, except Order I, Rule 8 to show that a writ is not maintainable in the name of a group of persons. So far as Order I, Rule 8 is concerned it should suffice to say that it is an enabling provision as was held by this Court in case titled Major Muhammad Ayub Khan v. Capt. Jamroz Khan and 3 others 1977 SCMR 371. Therefore, a suit cannot be thrown out on the ground that a group of persons have not resorted to it.
15. A writ petition is maintainable on the application of an "aggrieved party" as is clear from the phraseology of section 44 of the Azad Jammu and Kashmir Interim Constitution Act. Our reading of this provision is that in order to find out whether a writ petition is maintainable or not it has to be found out as to who is the aggrieved party. If there is an individual who is aggrieved that individual can file a writ petition. If it is a group of a body of persons who has been deprived of any right or benefit, it is that group or body which is aggrieved and a writ will be maintainable at the instance of that group. It is significant to note that section 44 does not say that a writ petition can be filed by an "aggrieved person" but mentions an "aggrieved party". It provides that a writ petition can only be filed against a "person" and the definition of person is given in subsection (5) of the Constitution which is as follows:-- "(5) In this section, unless the context otherwise requires, 'person' includes any body politic or corporate, any authority of or under control of the Council or the Government and any Court or Tribunal other than the Supreme Court of Azad Jammu and Kashmir, the High Court or a Court or Tribunal established under a law relating to the Defence Services."
The emphasis is on the fact that it should be a body politic or corporate etc. Against which a writ petition is maintainable. It will be a fallacy to read in the phraseology of section 44 that the requirement of being a body politic or corporate is also applicable to a writ petitioner. For such an interpretation there is no warrant. In short under section 44(2) one who institutes a writ petition has to be an "aggrieved party" while writ petition can only be filed against a "person" performing functions in connection with the affairs of the State or local authority.
16. On this point we find force in the submission made by Mr.Farooq Hussain Kashmiri, the learned counsel for the appellants, that it was provided in section 8 of the original Act and in case of death, illness, inability, of Dr.Muhammad Bashir Goraya, Pro-Chancellor appointed by the Chairman of the Al-Khair Trust, on the recommendations of the Trust, shall perform functions of the office. This provision has been deleted by the amending Act but the original provision was in force for two years and it was contended by the learned counsel for the appellants that the Legislative Assembly recognized the existence of the AlKhair Trust. It was also provided in section 13 that three members of the Board of Governors shall be nominated by the said Trust and also that Secretary of the Trust will be the Secretary of the Board of Governors. This provision has been repealed but it is provided in the amended Act that the Chairman, Al-Khair Trust or his nominee shall be a member of the Board of Governors. From the above provisions it is clear that the laws mentioned above gave recognition to the Al-Khair Trust and entrusted certain executive and administrative functions to them. Therefore for this reason also maintainability of the writ petition at the instance of the Trust cannot be objected to.
18. Even if it is held that the Trust could not file writ petition in its own name, it is our considered opinion that the writ would not fail because it was not filed by the Al-Khair Trust alone but Dr.Muhammad Bashir Goraya personally was also a petitioner. Under section 8 of the original Act he was the Pro-Chancellor and the Chief Executive of the University. We have already mentioned that, being Chief Executive, all executive powers were vested in him and Legislative Assembly had vested the power in him to annul even the decisions of the Board of Governors and all other authorities. He was made lifetime Pro-Chancellor. By the impugned legislation he has been removed from the Pro-Chancellorship and has been totally ousted from the affairs of the University. He was petitioner No,2 in the writ petition and is appellant No, 2 in this Court. In our view he was an aggrieved party and he had the locus standi to challenge the law under which he had been ousted from the University. We will be examining at the proper place the question whether the University ' is an "undertaking" within the meaning of Fundamental Right No,14 but if we hold that it was so it would follow that any person who has any interest in the University he could validly file a writ petition. Therefore, the preliminary objection about the maintainability of the writ petition is repelled.
19. Another preliminary objection raised by Mr.Abdul Rashid Abbasi was that AlKhair University is a' legal person was clear from section 3 of the Act which lays down that the University shall be a body corporate and it may by that name sue and be sued, and that a legal person cannot be owned by any other person. No principle of law has been pressed into service by the learned counsel in support of his submission. On the contrary there are numerous instances where legal persons are owned by the Government or by other private persons. National Bank of Pakistan is a legal person but is owned by the Government of Pakistan. In fact all commercial Banks in Pakistan were taken over by the Government and they came in the ownership of the Government. Likewise every limited company, including a Commercial Bank is invariably owned by private persons. In fact it appears improvable that a company may come into being without their being an owner.
19. It was then contended that Al-Khair University was a necessary party without which the writ petition could not proceed. This objection is also overruled because it is management or control or interest in the said University which are in dispute in the present case. In a writ petition necessary party is that against whom a relief is sought or one who is the beneficiary. The Al-Khair University does not fall in either of them. ##TE#
20. Having disposed of the preliminary objections we now come to the merits of the case. Briefly stated the case put up by the writ petitioners is that the impugned legislation has taken away their "property" within the meaning of Fundamental Right No,14 and therefore, the impugned legislation is void.
21. The view taken by the High Court on this point is that the writ petitioners did not place on record any title document showing any campus established in Azad Jammu and Kashmir. It also held that Fundamental Right No,14 could only be pressed into service if immovable property is taken possession of. It also held that University was not a commercial or industrial undertaking. The relevant portion of the judgment may be usefully reproduced:-- "As for the right of protection of property under Fundamental Right No, 14 of section 4 of the Constitution is concerned, it relates to immovable property or any commercial or industrial undertaking or an interest in any such undertaking in view of explanation attached to the Fundamental Right No, 14 of section 4 of the Constitution. The petitioners have not placed on record any title document showing any campus established in Azad Kashmir acquired for the purpose of Trust and in the use of University. The investment of money for any purpose other than the acquisition or requisition of immovable property is not catered by Fundamental Right No,14.
Fundamental Right No,14 can be pressed into service if deprivation of the immovable property is occasioned by an action of the Government Agency. The University not being commercial or industrial undertaking also does not fall in the definition of property, hence infringement of no enforceable fundamental right is involved."
22. Mr. Farooq Hussain Kashmiri, the learned counsel for the appellants, vehemently contended that the view taken by the High Court runs counter to the definition of the expression "property" as given in Fundamental Right No,14. Before adverting to the arguments of Mr.Farooq Hussain Kashmiri it will be useful to reproduce the phraseology of Fundamental Right No,14.-- "Protection of property.---(1) No person shall be deprived of his property save in accordance with law.
(2) No property shall be compulsorily acquired or taken possession of save for a public purpose and save by the authority of law which provides for compensation therefore and either fixes the amount of compensation or specifies the principles on which and the manner in which compensation is to be determined and given.
(3) Nothing in this paragraph shall, affect the validity of-- ' Explanation.---In sub-paragraphs (2) and (3) property" shall mean immovable property, or any commercial or industrial undertaking, or any interest in any undertaking.
23. It was contended by Mr.Farooq Hussain Kashmiri that the High Court was wrong in holding that Fundamental Right No,14 is not attracted to any property other than immovable property or commercial or industrial undertakings. The learned counsel submitted that the definition of property given in the explanation at the end of Fundamental Right No,14 also includes "any interest in any undertaking" but the High Court has held that "this right" relates to immovable property or commercial or industrial undertaking or in any interest in any such undertaking" which shows that the High Court did not even carefully peruse the definition otherwise the learned Judges would have come to know that the word "such" is not there. Mr.Farooq Hussain Kashmiri contended that the use of word "such" has led the High Court to a totally fallacious result. He vehemently submitted that the .Plain reading of the definition clearly showed that Al-Khair University was an "undertaking" and thus a property. He submitted that the original Act passed by the Assembly known as the Al- Khair University Azad Jammu and Kashmir Act, 1994 would show that the AlKhair Trust had set up the Al-Khair University. He also referred to the proof attached with the writ petition that moneys were spent in establishing the University by the writ petitioners. He submitted that the interest of the Al-Khair Trust was a property. He further explained that according to the original Act Dr.Muhammad Bashir Goraya was the all-powerful Pro-Chancellor of the University and not only its Chief Executive but he was to hold office for lifetime. He was thus not an ordinary office-bearer appointed by an executive authority for a fixed tenure but was the moving spirit who was inseparable from the University. He stated that this position was given to him by the Legislature.
Therefore his interest in the University was also a property. The contention of the learned counsel was that the amending Act does not provide for compensation nor claims that the University was being taken over for any public purpose. Thus the amending Act was in conflict with Fundamental Right No,14 and was void.
24. Mr.Abdul Rashid Abbasi, the learned counsel for the respondent, dilated upon the definition of "property" applicable to sub-paragraphs (2) and (3) of Fundamental Right No,14 and with great vehemence canvassed the proposition that, apart from immovable property, only commercial or industrial undertakings were included in the definition of property and "any interest in any undertaking" did not create a separate ingredient of property. He explained that the undertaking referred to in the words "any interest in any undertaking" was a reference only to the commercial and industrial undertakings already mentioned in the earlier part of the definition. He submitted that in fact what the law-makers meant was that it is not only commercial or industrial undertaking which would be construed as property but an interest in any commercial or industrial undertakings shall also constitute property. According to him the purpose was to protect the interest of a person in any commercial or industrial undertaking if the whole of such undertaking is not owned by that person. Mr.Abdul Rashid Abbasi submitted that the words "any interest in any undertaking" have to take colour from the words "commercial or industrial undertaking" used immediately before this expression. In support of his argument the leaned counsel submitted that the ejusdem generis rule is applicable with full force to the definition under discussion. He explained that the rule was that if a general word follows particular and specific words of the same nature the word takes its meaning from them and is presumed to be restricted to the same genus as those words. He submitted that according to a well-established ride of construction of statutes, general terms following particular ones apply only to such persons or things which are mentioned earlier. Therefore it was contended that even if Al-Khair University is treated as a undertaking it is not a commercial undertaking because it is stated in section 3 of the original and the amended Act that the University will be a non-profit earning University. On this point the learned counsel relied on the "Interpretation of Statutes" by Maxwell wherein the rule of ejusdem generis is exhaustively discussed on page 297. The learned counsel referred us to A.K. Brohi's Fundamental Law of Pakistan which is a commentary on the now abrogated Constitution of Pakistan, 1956 as illustration of the ejusdem generis rule. The relevant discussion is found on page 443 of the book in which the learned author interpreted the words "for any other purpose" occurring in Article 170 of the Constitution. Article 170 was worded as follows:--- "Notwithstanding anything in Article 22 each High Court shall have power, to issue directions, orders or writs including in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari, for the enforcement of any of the rights conferred by Part II and for any other purpose."
25. Mr. A.K. Brohi observed as follows:--- "It would have been better, if the language in the Article 170, instead of 'and for any other purpose' had been 'and for the enforcement of any other legal rights but it is submitted that the only rational interpretation of Article 170 is to construe the expression 'for any other purpose ejusdem generis rule with the expression 'for the enforcement of any of the rights conferred by Part II' and so read, the word 'purpose' can only be construed to imply the purpose of enforcing any other right."
26. In our view the ejusdem generis rule has no application in the present situation. The said rule is an exception to the basic rule of interpretation of statutes that all words employed by the Legislature receive their full and natural meaning and the Courts will not impose on them limitation which are pot called for. According to Maxwell (page 297) this rule is also applicable to general words. In our view the ejusdem generis rule applies where full and natural meaning of general words, when construed literally, create some anomaly or where some interpretation is involved but there is no such situation in the present case. The words under examination are plain and unambiguous. Then this rule is applicable only where general words follow particular and specific words. However in the present case all the expressions used in the definition are of the same genus and general words do not follow particular or specific words. The expressions "commercial undertaking, "industrial undertaking" and "any interest in any undertaking" are words of the same genus.
27. In our view every expression used in the definition is independent. All the four expressions used in the explanation are separated by the word "or" which signifies that each of the ingredients constitutes property. According to dictionary meaning of the word "or" it is "a particle coordinating two or more words, phrases or clauses, between which there is an alternative; it connects two words denoting the same things". The definition is couched in simple and unambiguous language and must be construed in accordance with the language used therein.
28. When we give effect to each term used in the explanation, "property" shall mean any of the following:--
(i) immovable property,
(ii) any commercial undertaking;
(iii) any industrial undertaking;
(iv) any interest in any undertaking.
29. Legislative history also appear to be relevant. Prior to 17th August, 1971 there was no concept of fundamental rights in Azad Jammu and Kashmir. On the aforesaid date Azad Jammu and Kashmir Government Act, 1970, the then prevalent Constitution of Azad Jammu and Kashmir, was amended through Azad Jammu and Kashmir Government (Amendment) Act, 1971 and fundamental rights were enforced for the first time by inserting section 25-B in the Constitutional law. The phraseology of the rights was borrowed from the Constitution of Pakistan, 1962 which had been abrogated due to military take-over in 1969 but the country was being run, as far as practicable, in accordance with the aforementioned Constitution. While enacting the provision relating to fundamental rights the framer of the Azad Jammu and Kashmir Government (Amendment) Act, 1971 employed the same phraseology as had been in vogue in the Constitution of Pakistan, 1962. The , right relating to property was Fundamental Right No, 14 which was verbatim the same as Fundamental Right No,14 as incorporated in the Government Act, 1970.
' However a departure was made in drafting the definition of "property" to mark the different. The two are reproduced in juxtaposition: "(1962 Constitution) "(Government Act, 1970)"
' Explanation.---In sub- paragraphs (2) and (3), Explanation.---In property shall mean sub- paragraphs (2) immovable property, or and (3), 'property' any commercial or shall mean industrial undertaking, or immovable property, any interest in any such or any commercial or undertaking."
Industrial under- taking, Or any interest in any undertaking."
30. The difference was that the words in Pakistan Constitution were "or any interest in any such undertaking" while in Azad Jammu and Kashmir the words were "or any interest in any undertaking". Thus in Government Act the word "such" was not used and instead of it "any" was used. The same phraseology was repeated in Azad Jammu and Kashmir Interim Constitution Act, 1974 when the said Act replaced the Government Act, 1970. In the judgment under appeal the learned Judges failed to take notice of it. According to well-recognized principles of interpretation it has to be presumed that when law-maker omitted the word "such" and instead used the word "any" he did so deliberately and to achieve a purpose. The purpose obviously was to enlarge the scope of the interpretation of property. In Abdul Aziz v. Muhammad Ibrahim PLD 1977 SC 442 while interpreting the word "such" used in section 17 of the Rent Restriction Act the learned Judges quoted with approval Maxwell's following elucidation:--- "Where the word 'such' occurs in a section it must not be ignored, but must be read as referring back to the preceding provisions, even though this gives rise to a result which appears anomalous."
31. In the Pakistan Constitution the word "such" made it obligatory to refer back to the words "commercial or industrial undertaking" but by omitting the word "such". It was clearly intended not to refer back to those words. While choosing the words, substitution of "such" by the word "any" further clarifies the matter. As held by this Court in Mir Abdul Hamid v. Azad Government 1997 PLC (C.S.) 805, the word "any" has superlatively overriding effect. Therefore, the words "any" the "undertaking" form a separate entity. The meaning of property which Mr.Abdul Rashid Abbasi wants us to adopt was possible only in the phraseology of the relevant provisions of the Constitution of Pakistan, 1962. When the phraseology is different the meanings have to be different. By using the expression "any interest in any such undertaking" it was clearly meant to convey the meaning that not only a commercial or industrial undertaking will constitute property but even an interest in any of these two undertakings also constituted property. Therefore., the ejusdem generis rule has no application. Thus all the expressions will receive their full and natural meaning.
32. Al-Khair University is not an immovable property itself. It is not an industrial undertaking. The question is whether it is an undertaking or a commercial undertaking. If it is undertaking whether AlKhair Trust and Dr.Muhammad Bashir Goraya have an interest in it or not.
33. The word 'undertaking' has not been defined in the Interim Constitution Act. 0 Therefore we have to interpret this expression in the ordinary dictionary meaning. According to the Oxford English Dictionary the word 'undertaking' means "an action, work, etc undertaken or attempted, an enterprise".
34. According to Mr.Abdul Rashid Abbasi the closest other word for "undertaking" seems to be "enterprise". In our view the aforementioned word has wide connotation. The question is whether University is an enterprise/undertaking. Our view is that the matter is not complicated or complex. If a person or a body of a person sets up a University it is a big task and by all means an enterprise. It will be seen that establishment of a University firstly involves planning. The person who undertakes that job should himself be an educationist having vast experience of dealing with educational institutions or some other persons having requisite experience will have to be associated or employed. An office will have to be set up. Then a blue print or scheme will be drawn up. Then details of the scheme will be worked out. Approval for its setting up will have to be sought from the competent authority. Ultimately it will be approved by the University Grants Commission. Al-Khair University was duly approved by the University Grants Commission and the Azad Jammu and Kashmir Legislative Assembly passed a law to allow its setting up. After the passing of the Al-Khair University Azad Jammu and Kashmir Act the stage of actual establishment of the University was reached. The original Act was passed on 4th July, 1994 while the amending Act, which is impugned before us, was initially passed on 14th March, 1996 by way of an Ordinance, During the intervening period all stages for setting up of the University had been crossed. In opposition to the writ petition the respondents placed on record certain documents which can throw some light on this aspect of the matter. The record shows that the Chancellor of the University set up a high-powered Committee headed by the Speaker of the Azad Jammu and Kashmir Assembly to look into the affairs of the AlKhair University on 10th April, 1996. The Committee was set up under section 8(2) of the Al-Khair University Act as amended vide Ordinance promulgated on 14th March, 1996. The members of the Committee included the Vice-Chancellor of the Azad Jammu and Kashmir University, Education Secretary, Law Secretary, a retired Deputy Accountant-General and Registrar of the Al-Khair University. The report submitted by the Committee forms part of the High Court file as Annexure D.A./1 and was filed by the respondents. In the report adverse remarks have been given against Dr.Muhammad Bashir Goraya, appellant No,2 who had been removed from Pro- Chancellorship. The report shows that up to March, 1996 the total receipts of the University were Rs,1,06,95,156. Out of this amount a sum of Rs,36,91,727 was spent on salaries, advertisement, refund of fees etc. A sum of Rs,64,49,015 was spent on purchase of furniture, machinery, rent of buildings. It is mentioned in the report that the University had hired buildings at Islamabad and Mirpur. The Committee also reported that rupees 8 lakhs were transferred to the Al-Khair Trust. From this document it is clear that there was a central (office of the University at Islamabad which was in a rented building. There were campuses, including a hostel, at Mirpur. Apart from a Pro-Chancellor there were other officers and servants of the University as well as teaching staff. There was also a treasurer. During the year 1994-95 a sum of Rs,4,19,400 was refunded as fee. In 1995-96 a sum of Rs,5,91,390 was refunded as fee. From all this it is clear that Al-Khair University was an enterprise or in other words an undertaking. In the case reported as Azad Government of the State of Jammu and Kashmir v. Kashmir Timber Corporation PLD 1979 SC (AJ&K) 139 a contract was held to be "property" and the enactment which had provided for termination of the contracts between Forest Department and the Government without payment of compensation was declared to be inconsistent with Fundamental Right No,14. The same view was reiterated in AKLASC and 6 others v.
Azad Jammu and Kashmir Government and 8 others 1999 SCR 418. In the case reported as State of Punjab and another v. Iqbal Singh AIR 1976 SC 667, the Supreme Court of India held that "pension" was property within the meaning of fundamental right relating to protection of property. It was held in Rustom Cavasjee Cooper v. Union of India AIR 1970 SC 564 that "goodwill" was property. We have taken the view that University was an undertaking which means that it was "property" within the meaning of Fundamental Right No,14 and we hold so.
35. In view of the analysis carried out above it is not necessary to prove that University was a commercial undertaking in order to attract the protection given in Fundamental Right No,14.
However the record shows that the Al-Khair University was not only an undertaking but for all practical purposes it was a commercial undertaking. Exhibit D.A./1, produced by the respondents, clearly leads to the conclusion that the University was earning profit in lakhs. We have already mentioned above that the report Exh.D.A. Specifically mentions that sum of rupees 8 lakhs was transferred to the Al-Khair Trust from the funds of Al-Khair University which clearly means that this amount was part of profit. No doubt it is mentioned in the Al-Khair University Act that the Al-Khair University was to be "a non-profit earning University" but it appears that it was only a pious Wish expressed by the Legislature, The fact of the matter is that it was commercial enterprise which was earning lakhs of rupees with small investment. If it was not the intention of the law-makers that Al- Khair Trust and Dr.Muhammad Bashir Goraya should earn no profit from the University they should have laid down as to where profits earned by the University would go, Furthermore they should have provided for a machinery to supervise the functioning of the University but no such provisions were made. The lawmakers could have given some supervisory powers to the Chancellor but what they actually did was they made Dr. Muhammad Bashir Goraya as the lifetime Pro-Chancellor of the University who was to be the Chief Executive and had the power to annul any orders or actions of even the Board of Governors as well as the Finance and Planning Committees. The only power given to the Chancellor of the University, as may be seen from section 7 of the original Act, was that if present he was to preside over the meetings of the Syndicate and was to confirm the decision to award honorary degrees. He had no power of superintendence. He could not control even if the Pro-Chancellor was committing misconduct or indulging in wrong expenditure. The only protection taken about the University funds was that the accounts were made auditable by a Chartered Accountant and the report was to be submitted to the Board of Governors, As is well known, educational institutions are profitable business concerns, The Act did not make any provision as to where profit earned by the University was to go. It could only be expected that it would go to Al- Khair Trust as it actually did, The appellants stated in paragraph 1 of the writ petition that "the Al- Khair Trust succeeded to establish the private University known as the Al-Khair University after lot of exertions". In the written statement filed by the Legislative Assembly the Government of Azad Jammu and Kashmir and the Law Department accepted this averment to be true. In para.2 of the writ petition it was stated that all the required finances, including rent of buildings, was invested by the Al-Khair Trust. Copies of the Bank Statements were filed as annexures B and B/1. The above three respondents did not dispute these statements and these averments were "left without reply".
However respondents Nos.4 and 5 Sardar Muhammad Abdul Qayyum Khan and Mr.G.J. Preeshan Khan Khattak stated that contents of both paras.l and 2 were incorrect and also that Al-Khair Trust had nothing to do with Al-Khair University. But these denials are on the face of it wrong as has transpired from facts mentioned above.
36. The only question which remains to be decided is whether Al-Khair Trust and Dr. Muhammad Bashir Goraya had interests in the Al-Khair University or not. Perhaps it will be a repetition to say that the power to appoint the Pro-Chancellor, who was the all-powerful Chief Executive of the University, was to be exercised by the Chairman of the Al-Khair Trust. In case of death, illness or inability of Dr.Muhammad Bashir Goraya, the lifetime Pro-Chancellor, to perform his functions, the succeeding Pro-Chancellor was to be appointed on the recommendations of the Al-Khair Trust on such terms and conditions as may be determined by the said Trust. Thus it is established that the Al-Khair Trust had "interest" in the Al-Khair University. The fact proved by Exh.D.A. Produced by the respondents, is that a sum of rupees 8 lakhs was actually transmitted to the Trust also establishes pecuniary interest. Dr. Muhammad Bashir Goraya also had similar interest because for the whole of his life he was the Chief Executive who was to perform functions unhampered, uncontrolled, and unfettered by any other authority. The position enjoyed by Dr.Muhammad Bashir Goraya was not like an ordinary appointment but it can be safely inferred that it was in the nature of co-ownership with the Al-Khair Trust. The report, Exh.D.A., compiled by the Committee headed by the Speaker of the Legislative Assembly shows that he was wielding full authority particularly in money matters.
These are the practical aspects of the case. Private educational institutions earn big profits.
37. We find force in the contention that there was no public purpose in enacting the amending Act.
No such purpose has been disclosed by the respondents. No purpose was achieved through the amending Act because scheme of the Act remained the same. The powers previously enjoyed by the Pro-Chancellor were vested in the new Chancellor. All other matters were allowed to remain the same by the amending Act. The new law only provided for change of hands or in other words change of ownership. In absence of any public purpose, it seems to be a case of robbing Peter to pay Paul.
38. In light of the above analysis we have reached the conclusion that Al-Khair University was a property within the meaning of Fundamental Right No,14 and both the appellants had interest in the property. They were deprived of their property by the impugned legislation and it was taken possession of without compensation and for no public purpose. Thus the impugned legislation was being inconsistent with Fundamental Right No,14 and therefore void. We, therefore, declare that the Al-Khair University Azad Jammu and Kashmir (Amendment) Act, 1996 was a void legislation. The result of this declaration is that the Al-Khair University Azad Jammu and Kashmir Act, 1994 in its original shape shall be deemed to have been in option and shall continue to be so unless amended in a lawful manner. Consequently appellant No,2 Dr.Muhammad Bashir Goraya is declared to be the Pro-Chancellor of the University with the powers conferred on him by the original Act.
' Both the appeals are accepted, the judgment of the High Court is set aside and the writ petition filed by the respondents stands accepted.