The petitioner has based her claim upon the averment that Margalla Education Trust is a duly registered body which was constituted by the following founding Members:--
(1) Dr. Abdul Qadir son of Ghulam Qadir resident of House No. I.B, Street 16, F-8/3, Islamabad.
(2) Dr. Rafioue Ahmed Ghuncha, son of Noor Muhammad Ghuncha resident of Ghuncha House, Tareen Abad, D.I. Khan.
(3) Arshad Bakhsh Awan son of Aizad Iqbal, resident of House No.269, Street 54, F-11/4, Islamabad.
(4) Mr. Iqbal Mazeed son of Abdul Majeed resident of House No.249, Street F-11/4, Islamabad.
(5) Tahir Jabeen Akhtar were of Arshad Bakhsh Awan, resident of House No.269, Street No.54, F-11/4, Islamabad.
The agreement between original Trustees was executed on 12-9-1997. The said agreement contained a clause for compensation to be provided to the founding Members of the Trust. The relevant clause is reproduced as under:-- Compensation
2. According to the petitioner, in the minutes of the Board of Trustees meeting dated 5-1-2002 it was decided to amend the induction of Trustees as under:-- Amendment of induction of Trustees Mr. Mazhar Qureshi and Muhammad Yasin, will be inducted as Trustees, but not as founder Trustees. Draft for amendment should be as per previous text. No amendments, except deletion and addition of names:--
(a) Addition: (1) Mr. Mazhar Qureshi
(2) Mr. Muhammad Yasin
(b) Deletion (1) Dr. Habibullah Khan
(2) Mr. Munir Sultan
3. The petitioner is the daughter of Mr. M. Yasin mentioned in the aforementioned amendment of induction of Trustees. She claims that in accordance with compensation clause contained in agreement, dated 12-9-1997, she being the daughter of trustee was entitled to receive free admission into any institution of the Margalla Education Trust.
4. It is contended that in this capacity the petitioner was admitted in the 1st week of January, 2002 in B.D.S. 1st Professional in Dental College of M.I.H.S. Under the same privilege. Her cause of grievance is that on 11-9-2002 she was informed that her name has been struck of the college Rolls as she had failed to clear the dues. It was contended that this act of the respondents Nos.3 and 5 was without lawful authority and it was prayed that impugned letter dated 11-9-2002 be struck down and a direction be issued to respondent No.5 to implement the provisions of Trust and to provide the facility of free education to the petitioner as the children of other Trustees are being given as beneficiary.
5. After hearing Mr. M. Tariq Asad, Advocate for petitioner, report and parawise comments were called for from respondent No.3.
6. In pursuance of the said direction the necessary report and parawise comments have been filed.
It was contended therein that Margalla Institute of Health Science (M.I.H.S.) is managed by the Margalla Education Trust which is a non-profitable organization and is neither managed nor' controlled by the Federation, a Province or a local authority nor is it performing any function in connection with the affairs of the Federation, Province or a local authority. It was also contended that Margalla Education Trust was neither a "person" nor "authority" as contemplated in Article 199(c) of the Constitution and as such the extraordinary jurisdiction of this Court under Article 199 cannot be invoked.
7. On facts, it was stated that the petitioner has in para. 5 of the writ petition admitted that the Sattlers/Authors of the Trust are the founder Trustees. Referring to the Minutes of the Board of Trustees meeting dated 5-1-2002, it was explained that Muhammad Yasin the father of the petitioner was proposed to be inducted as a Trustee being not a Founder Trustee. This proposal was however, set aside in the Minutes of the Board of Trustees meeting dated 25-2-2002, wherein, it was provided as under: Cancellation of Minutes of Meeting held on 5th January, 2002 It was unanimously decided by the BOT to cancel the decisions/minutes of meeting held on 5th January, 2002 in Islamabad Club. This reversal of decision was considered necessary as most of the points either could not be implemented or have become unworkable in view of the changed situation/circumstances.
It was also contended that there was litigation pending between the said Muhammad Yasin and the Chief Executive of the M.I.H.S. Which arose out of a controversy between said Muhammad Yasin and the opposite-party on account of a dispute arising out of construction contract and other allied matters.
8. With regard to the admission of the petitioner in the M.I.H.S. It was contended that the petitioner was not entitled to any such privilege as her father had never been actually inducted as a Trustee and as such was not entitled to such privilege. It was explained that the petitioner who was granted admission on 15-1-2002 was immediately thereafter issued a letter on 16-1-2002, wherein she was directed to clear the dues of admission. This was repeated through letter dated 22-1-2002 but the petitioner did not pay heed to the said demand. Finally she was issued the impugned letter dated 11-9-2002 whereby the name of the petitioner was struck of the college rolls on account of her failure to deposit the dues of the college.
9. Arguments have been heard at the limine stage.
10. Mr. Tariq Asad, Advocate, the learned counsel for the petitioner has stressed that writ petition was competent in view of the provisions of Article 199 of the Constitution of Islamic Republic of Pakistan (1973). It was contended that firstly the Margalla Institute of Health Sciences is a "Person" which is performing functions in connection with the affairs of the Federation. To support this contention he has stated that M.I.H.S. Is controlled by the Pakistan Medical and Dental Council and is thus directly and indirectly performing the function of the Federation through P.M.D.C. The learned counsel has referred to the Medical and Dental Council Ordinance, 1962 to contend that the said P.M.D.C. Is constituted by the Federal Government and that all persons appointed or employed by the P.M.D.C. Are approved by the Federal Government and that all persons appointed or employed by the P.M.D.C. Shall be public servants within the meaning of section 21 of the P.P.C.
11. It was alternatively contended that even if respondent No. 3 is not held to be performing functions in connection with the affairs of the Federation, a Province or a local authority, M.LH.S. Was in any case, a "Person" as defined in Article 199(5) in respect of which the writ jurisdiction can be effectively invoked.
12. Article 199(5) is reproduced as under:--
(5) In this Article, unless the, context otherwise requires-- "Person" includes any body politic or corporate, any, authority of or under the control of the Federal Government or of a Provincial Government and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan."
13. The learned counsel referred to the definition of term "include" to contend, in the language of Black's Law Dictionary that "term may, according to the context express as enlargement and have the meaning of and/or in addition to".
14. The learned counsel urged that definition of person as given in Article 199(5) did not confine itself only to those persons mentioned in the said sub-clause but that persons mentioned therein were detailed as an enlargement over and above all other persons which may even include all legal persons including individuals.
15. The arguments raised by the learned counsel for the petitioner is fallacious. In the first place this argument overlooks the simple fact that Margalla Educational Trust is a private body which does not perform functions in the affairs of the Federation, a Province or a local authority. The question that it is so controlled through the P.M.D.C. Does not appear to be correct. Despite the fact that P.M.D.C. Performs certain functions within the purview of the P.M.D.C. Ordinance, 1962 it cannot correspondingly be held that M.I.H.S. Performs any functions in connection with the affairs of the Federation etc.
16. The submission of the learned counsel based upon the provisions of Article 199(5) appear to be ingenious but on close scrutiny, it is devoid of any merit. The definition of person as given in Article 199(5) is subject to an indispensable rider which is as under:-- "In this Article, unless the context otherwise requites."
17. To elaborate this point further it emphasised the sub-clause (5) of Article 199 shall be read subject Article 199(1)(a)(i):--
199. JURISDICTION COURT
(1) Subject to the Constitution, a High Court, may, if it is satisfied that no other adequate remedy is provided by law--
(a) On the application of any aggrieved party, make an order--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs I of the Federation, a Province or local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
18. Sub-clause (c) of Article 199 is also relevant and is reproduced as under:-- On the application of any aggrieved person, make -an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in the relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II.
19. Reading the aforesaid provisions of Article 199 conjunctively it leaves no manner of doubt that a person to whom a direction can be issued must be a person performing functions in connection with the affairs of the Federation, a Province or a local authority as envisaged in Article 199(1)(a)(i).
According to Article 199(c) the direction that can be given to any person or authority including any Government exercising any power or performing any function for the enforcement of any of the fundamental rights conferred by Chapter 1, Part II. Learned counsel for the petitioner has not been able to indicate upon the averments in the petition or upon any material on the record any case for enforcement of any of the fundamental rights enumerated in the Constitution.
20. The provisions of Article 199(5) shall not advance the case of the petitioner to any extent, as the context of Article 199 requires the "person" to be as indicated in the provisions hereinbefore mentioned. The contention that a person could be implied to mean even a natural person is in direct conflict with the requirement of the context as provided in Article 199 itself.
21. In view of the above, it is held that the writ petition against respondent No.3 or 5 is not competent.
22. Even on merits of the case, the petitioner cannot succeed. As per her own averments Muhammad Yasin her father was only proposed to be inducted as a Trustee. However, by virtue of the Minutes of the Board meeting dated 25-2-2002 the earlier Meeting of the Board dated 5-1-2002 where the proposal was made had been cancelled. A perusal of the copy of the plain and the legal notice filed and issued by the said Muhammad Yasin also confirms that he was only a proposed Trustee which never culminated in conferring the status of Trustee upon him.
23. It has also been urged on behalf of the respondents that the petitioner was immediately required to pay the necessary dues of her education which she failed to do which resulted in the issuance of the order impugned in this writ petition.
24. For all the above said reasons, there is no merit in this writ petition which is hereby dismissed.