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Petition No. 315 of 1967, decided on 30th April 1968.
, S. 7 (2) read with Displaced Persons (Compensation and Re habilitation) Act (XXVIII of 1958), S. 16‑A and Settlement Scheme framed thereunder‑Exception created in para. (3)'(b) of Fundamen tal Right No. 14‑Covers provisions of S. 7 (2), Administration of Evacuee Property Act, 1957 and S. 16‑A, Displaced Persons (Com pensation and Rehabilitation) Act, 1958 and Scheme framed there under‑Constitutional validity thereof not open to question‑Disposal of evacuee property‑.Evacuee Trust Board fully competent for complete disposal of : evacuee property ‑ Constitution of Pakistan (1962), Art. 6, Fundamental Right No. 14.
, Art. 6, Fundamental Rights Nos, 10 & 14‑Lxpression "subject to law" in Fundamental Right No. 10‑Legislature, though not invested with unlimited powers to unduly restrict or take away the Right, grant of Fundamental Right Is subject to certain restrictions and exceptions‑Power of Legis lature cannot be completely ignored or bypassed as non‑existent.
Jabendra Kishore Achharrya. Chowdhury and others v. The Province of East Pakistan P L D 1957 S C (Pak.) 9; Copen v. Foster 12 Pict 485‑488 and Sh. Inayat Ullah and others v. M. A. Khan and others P L D 1964 S C 126 ref.
Sh. Abdul Majid and others v. Pakistan and others P L D 1967 Lab. 459; A. R. Niazi, Advocate and others v. Pakistan and others P L D 1968 S C 119 and Budhan Chaudhury v. State of Bihar P L D 1958 S C (Ind.) 191 rel.
‑Endowment‑essential ingredients,
The essential ingredients of a religious endowment tinder Hindu Law are sankalp and samarpan whereby the properties are given away by the owner to the public or the Almighty completely divesting himself of its ownership. Where the properties had been vested in an Association which was religious and charitable institution established for looking after disabled animals particularly cows, it was held that from the mere fact that cow‑worship was a, cardinal principle of Hindu religion it could not be inferred that the properties of the Association vested in a deity or idol.
Chandulal v. Rampat Mal A I R 1933 Lab. 189 ref.
Khalid M. Ishaq for Petitioners.
Ajmal Mian for Respondents Nos'. 1 and 5.
Muhammad Ali Sayeed for Respondent No. 4.
Wasim Harold Rizvi for the State.
Dates of hearing :. 17th, 18th, 19th‑and 20th October. 1967.
; This Writ Petition filed by four petitioners on behalf of members of the Hindu community calls in question the validity of a lease‑deed, dated 6th May 1967, executed by the Evacuee Property Trust Board 'Respondent No. 5, whereby it leased out Plots Nos. R. B. VII-2 and 3, situate on Bunder Road, Karachi, in favour of Messrs Hussain D'Silva Enterprisers respondent No. 4, for a period of 99 years on a yearly rent of Rs. 4,28,742.95, subject to the terms and conditions set out in the lease‑deed existing at pages 21 to 31 of the record. Besides seeking a declaration to the effect that the lease is illegal, ultra vires and without jurisdiction, 'a direction is also sought for restraining the respondents from demolishing the existing constructions and raising new multipurpose and multi storeyed commercial buildings on the aforesaid plots with a further direction to restore the cow‑sheds as also the cows removed from there. The Evacuee Trust Board though not impleaded in the first instance, was allowed to be added at respondent No. 5, vide this Court's order dated 26th September 1967, by way of amendment.
2. The relevant facts giving rise to the case are that in or about the year 1866, some Hindu resident: of Karachi form an association under the name and style of 'Karachi Panjropore Association', with the objects of the care and protection of the "cattle and other animals" and for feeding and tending disabled and diseased cattle and animals. On the 25th of April 1938, the Karachi Panjropore Association was registered under section 26 of the Companies Act of 1913 for the following objects:
(a) To provide for protection and perseverance of the cattle and other animals that may be permanently entrusted to the Association for the purpose by any resident of Karachi, irrespective of his caste, creed or, calling.
(b) To arrange for feeding or tending of such of the cattle and other animals in Karachi as may be disabled either by infirmity, disease or 9tberwise, or by their not being properly looked after by persons possessing them; and admitted in the Panjrapore.
(e) To devise ways and means, as far as possible, of improving the breed of cattle in Karachi, which ways and means may include organising or taking part in cattle shows etc., at Karachi or otherwise.
In furtherance of these objects, it was also provided that the association shall maintain the Panjrapore at Karachi or in its vicinity and utilise or spend its property or funds in doing all such acts, matters ‑or things, as shall be deemed proper or expedient. The Association was also authorised to acquire, purchase, sell or lease out buildings, lands, grazing farms, cattle, etc., besides raising subscriptions, receiving donations, levy of legal (a subscription on business transactions) in the shape of charitable contributions for the maintenance and support of the animals in the Panjrapore. From a perusal of the Memorandum of Articles of Association, two things stand clearly established, which are of considerable significance. Firstly, notwithstanding the admitted fact of the sanctity of the cow‑head in the Hindu religion and cow‑worship as an article of faith with members of that community, meticulous care seems to have been taken in avoiding the use of the "cow" while referring to the protection and, preservation of cattle and other animals. Secondly the membership has not been confined to association of Hindu community. This obviously seems td have been done with a view to give a secular complexion to the Association. Notwithstanding this,' however, it appears that most of the animals kept and maintained by the Panjrapore Association were cows, whose 'protection is considered to be a sacred duty of every Hindu. Another significant fact which needs mention in this context is that in Article 34 of its Articles of Association, it was provided that in respect of all trusts entrusted to the Association, it would be guided by the provisions of the Indian Trust Act 11 of 1882 and the investments of the trust funds would be made in accordance with the provisions of the said Act, unless otherwise directed in the Iitstritment of the Trust. It appears that by the time of the partition of the sub‑continent, the Karachi Panjrapore Association had acquired considerable properties by means of gifts, grants, purchase, etc., and was maintaining cows and other animals at least in four out‑station in the suburbs of Karachi, namely, Shewaram, Songal, Babranoo and Nagin besides Rambagh in Karachi itself.
3. After the partition, Mr. S. A. M.. Jaffari, Additional Custodian (Judicial) Evacuee Property, Sind and Federal Capital, Karachi vide his order, dated 28th January 1950, declared the property belonging to the Karachi Panjrapore Association as evacuee property. Although most of its members had already migrated to India, yet the Association continued to have some semblance of existence and went up in revision to the Custodian against the aforesaid order of the Additional custodian, which was accepted by Mr. Akbar Hussain, the then incumbent of that office by his order dated 18th July 1950. It was observed by him that:
"The fact that the bulk of the members of the Managing Committee are now evacuee, does not affect the character of the property because they have ceased to have any right or interest in the property."
It was accordingly held that the Association was not an evacuee institution and the property belonging to it was not evacuee property. Subsequently on the alteration of the Evacuee Law by the Ordinance of 1951 enlarging the scope of the definition of "evacuee" and "evacuee property", another application was moved seeking a declaration that the Association having become defunct its property should be declared as evacuee property. This led to an enquiry into the affairs of the Association and ultimately, Mr. S. M. Wahid Ali Shah, Deputy Custodian (Judicial) Evacuee Property, Karachi, by his order, dated 18th August 1953, upholding the allegations, declared the Association as an Evacuee institution arid its property as evacuee property. A revision was taken to the Custodian by the Association which was dismissed on 19th April 1956. Feeling aggrieved, the Association preferred a writ petition under Article 170 of the 1962 Constitution, on 22nd May 1956, seeking quashment of the order of the Custodian and a declaration that the Association was a non‑evacuee institution. This Writ Petition No. 160 of 1956 was dismissed by the High Court on 12th November 1956, mainly on the ground that the finding of the learned Custodian that the business or the undertaking of the Association had ceased at least partially, was one of fact based on certain statements of its own members and that the authority of the persons then managing the affairs of the Association did not have the approval of the Custodian. Feeling aggrieved, the Association simultaneously resorted to a two‑fold remedy: firstly, it filed appeal by special leave before the Supreme Court against the order of the High Court, and secondly, a direct petition for the issue of a Writ to the Supreme Court under Article 22 of the 1956 Constitution against the Custodian's order alleging infringement of Fundamental Rights guaranteed by its Articles 15 and 18. Their Lordships of the 'Supreme Court, vide their judgment, dated 31st January 1957, upheld the view taken by the Custodian that the Association had ceased function wholly or partially in terms of section 2 (2) (d) of the Pakistan (Administration of Evacuee Property) Ordinance of 1949 and that the persons managing its affairs could not derive their authority from either the Articles of Association or from the Companies Act, and as such had no locus standi to function without the approval of the Custodian, which was neither sought nor otherwise accorded. However, their Lordships accepted the appeal on another ground, namely, that the Association had been frost its very inception, formed and subsequently registered for the purpose of promoting religious and charitable objects, such as the protection and preservation of cattle and other animals, and to arrange for their feedings, tending etc. Placing reliance on subsection (2) of section 6 of ordinance XV of, 1949, which dealt with evacuee properties held in trust for religious or charitable purposes, their Lordships observed:
"No step was ever taken to find out what property was held in trust for religious or charitable purposes, for, according to subsection (2) of section 6, the custody of the Custodian over such property is, only a temporary one and the income has to be applied for carrying on the purposes of the trust. It appears that this aspect of the case was not pressed before the High Court, Karachi Bench, nor is there anything to show that at any stage did the Custodian ever apply his mind to it, though in view of the allegations of the appellants, such a determination was necessary. The appellants should have been called upon to produce evidence as to the nature of the properties held by them and the manner in which the income derived therefrom was spent. The justice of the case requires that such as investigation be made and the future action of the Custodian should be regulated by the result."
Accordingly, Civil Appeal No. 4 of 1957 was accepted and the High Court was directed to issue writ of mandamus to the Custodian to take such action as is provided by section 6 (2) of the Ordinance XV of 1949, in respect of any property or properties of the Association which he may find "after enquiry", to be property held in trust for religious or charitable purposes. The acceptance of the Civil Appeal, however, rendered the Writ Petition under Article 22 of the 1956 Constitution infructuous, which was dismissed as withdrawn.
4. In compliance with the aforesaid direction of the Supreme Court, Mr. Muhammail Rakhsh A. Memon, Custodian, Evacuee Property (South Zone) West Pakistan, Karachi initiated an enquiry and in the meantime directed the Additional Custodian (Administration) to manage the properties of the Trust and employ the funds thereof for the purposes of the Trust which mainly consisted of looking after the "cow and other animals." Presumably, on receipt of some complaints of mismanagement, the learned Custodian inspected the cow‑sheds in the various out‑stations, referred to earlier, which revealed a shocking state of affairs of the cow‑sheds, the starving animals with not a blade of grass or drop of water, and the stinking carcasses etc. Feeling thoroughly dissatisfied, he personally took charge of the management of the property and nominated Petition No. I along with three other respectable members of the Hindu community as trustees to manage and supervise the affairs of the Association. All these details are mentioned in his order dated 7th March 1958, contained in the printed brochure placed on the record. A few days later on 29th March 1958, Mr. Muhammad Bakhsh A. Memoo, the learned Custodian, passed yet another order in which it was observed that the properties of the Panjcapore Association as set out in the relevant schedule, consisted of open plots, sheds, staff residential buildings, shops and agricultural lands, and were being used, for religious and charitable purposes of the Karachi Panjrapore Association. Vide this order which purports to have emanated from his enquiry instituted in compliance with the Supreme. Court's order be recommended to the Government the names of ten permanent members of the Hindu community for appointment as trustees of the Association for the management of its affairs. Mr. Memon was succeeded by Mr. A. M. Jan, who did not agree with the aforesaid order of the former and taking the view that the Supreme Court's order still remained uncomplied with, directed the Additional Custodian to make a proper inquiry after recording evidence and submit a detailed report. The latter after recording evidence adduced by the parties and examining a large number of documents produced before him, submitted his report in which he divided the properties of the Association into two broad categories, namely, urban properties consisting of vacant plots of lands, buildings, shops, houses and sheds, and agricultural land situated is a number of villages. It was held that only three urban properties Nos. 9 to 11 mentioned in his report were found to be held in trust for public purposes of a religious or charitable nature and that the remaining urban and agricultural properties bad no element of entrustment or such characteristics. This view, however, did not find favour with Mr. Masud Ahmad, who had succeeded Mr. A. M. Jan, as Custodian of Evacuee Property, West Pakistan and Karachi. Mr. Masud Ahmad after having traced the background of ‑the case and reviewed considerable 'case‑law, came to the conclusion that the categorisation of the properties of the Association was unwarranted; that the Trust Act bad no application to the case which was governed by provisions of Hindu Law of Endowments, and that the Association was founded for a public purpose of a religious or charitable nature, and as such all its properties acquired by grants, gifts, or donations; were trust properties It was also found that the objects for which the Association had come into existence, were also religious and charitable in nature. It would be advantageous to reproduce the following observation made by Mr. Masud Ahmad in his elaborate order passed on 26th March 1960 in suo motu review of Mr. Memon's order, dated 29th March 1960:----
"From a perusal of the various documents, extracts from which have been given above, the object for which this Association was formed during the last century can be gathered with reasonable certainty. It can, in my opinion, be stated, without fear of contradiction, that this Association was founded by some religious‑minded Hindu gentlemen of Karachi with the sole object of taking care of diseased, old or maimed animals, especially cows, which, in the eyes of every Hindu, is a sacred animal. This object was primarily religious, but the element of charity, at I will explain later on, was also in the mind of the gentlemen when they founded the Association. Some of the properties, as will be presently, seen, were granted to the Association by the Government, some were acquired with the help of donations and contributions made to the Association by the residents and merchants of Karachi and some were transferred in favour of the Association by way of gift for being utilised for its objects------------------------------
In my opinion, if it, can be once held that this Association ways founded for a public purpose of a religious or charitable nature, even if the properties held by the Association had not been endowed by any individual, and no trust deed was executed in favour of the Association vesting the properties in it, the properties held by it would' still be trust properties. The provisions of the Trust Act have no application to this case, because the operation of that Act is excluded by section 1, so far as public or private religious or charitable endowments are concerned. For that very reason the definition of "trust"; "Property" and "trustee" given in section 3 of the Act would not be applicable to present case. The law applicable to this case is the Hindu Law of Endowments, according to which an endowment for a religious or charitable object can come into existence by the appropriation of property for that purpose, with the requisite intention of retaking an endowment."
In conclusion. it was held that the case was clearly covered by section 7 (3) of the Act XII of 1957 corresponding to section 6 (2) of the Ordinance XV of 1949, and that .until the appointment of trustees, the properties held by the Karachi Panjrapore Association and their income would have to be applied, as far as possible for fulfilling the purposes of the trust. A copy of this order was directed to be forwarded to the Chief Settlement Commissioner, West Pakistan for information and necessary action. However, until such time as a scheme was framed under section 16‑A of the Displaced Persons (Compen sation and Rehabilitation) Act, 1958; it was considered necessary to make an interim arrangement for the Management of the properties of the Association, and accordingly petitioner No 4 and one Seth T. Motandas, were appointed as managers. The order dated the 26th of March 1960, was, however, partially modified by Mr. Masud Ahmad by his order dated 25th May 1960, whereby Mr. Tike das Hiranand petitioner No. 1 was replaced as one of the two managers of the property of the Association in place of Seth T. Motandas, who had been convicted by a Military Court.
In the meantime the Scheme under section 16‑A of the Displaced Persons ‑ (Compensation and, Rehabilitation) Act, 1958, came into force whereupon the Management of the Association was taken over by the Divisional Evacuee Trust Committee respondent No. 1, appointed by the Evacuee Trust Board' set up under the scheme, and in whom trust properties vested vide Notification No. S R.O: 423(A)/61'dated 24th March 1961.‑
5. Feeling aggrieved by some actions of the Divisional Evacuee Trust Committee, disposing of certain properties of the Association, Petition. No. 990 of 1963 was filed whereby a declaration was sought that though the Panjrappre Trust was held to be evacuee, the properties vesting in it were not evacuee properties: This writ petition ‑is still pending decision before the Karachi Bench of the High Court of West Pakistan. Subsequently however, when the impugned lease in respect of. Plots 'Nos. R.B. VII‑2 and was executed by respondent No. 5 in favour of respondent No. 4, two declaratory Suits Nos. 1079 and 1184 of 1967 filed by petitioner No. 3 (Exh. D. 2) page 147 and by petitioner No. 1 (Exh. D. 1) page 141, respectively were instituted in the Court of the Civil ‑Judge, First Class, Karachi which are pending and were followed by the 'present ‑petition filed on 27th July 1967, challenging the validity of the lease‑deed, mainly on grounds of jurisdiction. Subsequently, a Miscellaneous Application No. 773 of 1967 under Order XXXIX, rules 1 and 2, C. P. C. was also filed by the petitioners, claiming an interim relief that a direction be issued to respondent No. 1 to make arrangements through the Religious Purposes Committee constituted in this regard for the holding of Dussurah Ustav function on Plots Nos. R.B.VII‑2 and 3, Bunder Road, Karachi, on the day of Dussurah falling on 12th October 1967, and for bringing the cows of the Karachi Panjrapore Association on the aforesaid plots at least a day earlier than the Dussurah festival, so as to enable the members of Hindu community to perform Kandi‑worship and Cow‑worship in connection with the Dussurah celebrations. This application was dismissed vide our order dated the 11th of October 1967. Since however, by an interim order of a Division Bench of this Court passed on 28th July 1967, respondent No. 4 had been restrained from raising any construction on the site in dispute which was sought to be vacated by the latter, it was considered expedient to dispose of the main case itself.
6. Before us the validity of the impugned lease‑deed was assailed on the following grounds namely:
(i) That on the plots in question, there also stood a Kandi tree, a rare botanical speciman of great sanctity and religious significance for the Hindu, which was worshipped by members of the Hindu community, side by side with cow‑worship. Thus the Gaushala (Cow‑shed) and the Kandi‑tree had imparted to the sites in question a special religious significance having converted it into a place of worship, which could not be disposed of or demolished or destroyed so as to be substituted by a multi‑storeyed commercial building sought to be raised by respondent No. 4, without a direct infringement of Fundamental Right No. 10 guaranteed under the Constitution.
(ii) That in view of. Fundamental Right No. 10 which notwithstanding the proclamation of Emergency remained in force, the members of the Hindu community had a right to maintain and manage a. religious institution, and as such it was not competent for the Government to, legislate section 16‑A of Act XXVIII bf 1958 or to frame the scheme thereunder.
(iii) That in any case, even in terms 'of the scheme itself, leasing out of the property to respondent No. 4, was not per missible, and in no case for a period exceeding five years.
7. The position taken up by respondents 1 and 4 in their "comments was identical and was to the following effect:
It was denied that the Karachi Ponjrapore Association came‑into existence for the purpose of establishing places of worship or .had acquired any properties with that object in view. . It was asserted that the sole object of the Association was to provide for the production and perseverance of cattle and other animals and to take care of disabled, infirm or diseased animals, entrusted to the Association by any resident of Karachi, irrespective of caste, creed or calling. It was further emphasised that neither was its membership confined to persons belonging to the Hindu community, nor were its subscription and denotions confined to them, inasmuch as the levy of legal as one of its sources of income was a subscription imposed on business transactions, irrespective of the religion of the parties. It was maintained that in view of the findings of the learned Custodian and the Supreme Court, the case of the Panjrapore Association was covered by section 7 (2) of Act XII of 1957, and the ad hoc appointment of petitioner No. 1 and one Seth T. Motandas was by way of an interim arrangement, until such time as a scheme was framed under section 16‑A of the Displaced Persons (Compensation and Rehabilitation) Act of 1958, and after the framing of the scheme, the Trust properties vested in the Trust Board, vide Notification No. S.R.O.‑423 (A)/61 dated 24th March 1961. It was emphatically denied that the plots in question were acquired for maintaining cows for worship by members of the Hindu community. It was submitted that the plots in question already contained a number of commercial shops and residential flats almost on all sides except that there was a cow‑shed on a small portion of Plot No. 2 and a few godowns for stacking fodder, besides a small place for office. In support of this, site plans (Exh. B, page 137) and (Exh. C, page 139) were placed on the record likewise, it was categorically denied that any temple (Mandar) ever existed on any portion of the plot or that the site had been used for cow‑worship either during Desahra festival or otherwise. It was asserted that Desahra festival had always been celebrated in a place known as Swami a Narayan Temple Compound opposite the K. M. C building. Regarding Kandi Pooja, it was admitted that a Kandi‑tree existed in the compound of one of the plots, where on Dcsehra day Kandi Pooja ceremony used to take place by getting the hair shaved beneath the Kandi‑tree, which right had been specifically preserved in clause (j ) of the lease‑deed with a stipulation that the lessee would provide free access to the tree, besides reserving open space around it for purposes of Kandi Pooja. It was submitted that under the proposed plan for construction, as open space measuring 55 x 65 sq. ft. had been kept around the Kandi‑trees to be available to the intending worshippers. It was maintained that the impugned lease did not amount to a violation of Fundamental Right No. 10, that no place of worship had been demolished or sought to be demolished by respondent No. 4; and that in the Memorandum of Association itself, it was provided that the Karachi Panjrapore. Association was' competent to acquire, purchase, sell or lease out buildings and lands. It was admitted that the sheds and other structures on the plots in question had been demolished; that the cows and the sheds had been removed to another shed of the Karachi Panjrapore Association at Deh Songal not very far from Karachi; and that no place of worship had been demolished. It was submitted that under clause 2 (d) of the Articles of Association, the Karachi Panjrapore Association was competent either to keep the cattle at Karachi, or in its vicinity, and that in fact was maintaining them at several places. It was next submitted that the lease for a yearly rent of Rs. 47,219.76 contemplated considerable increase in income which was to be utilised in furtherance of the objects of the Association, or their achievement. Lastly, it was asserted that two Civil Suits had already been, filed in this regard by some of the petitioners which were still pending, and as such it would be wrong, to say that no efficacious alternative remedy was available to the petitioners, so as to justify the entertainment of the writ petition. It was further submitted that it had been notified by a public, notice for public information published in the various newspapers by 7th July 1965, that the plots would be put to auction for being leased out, but the petitioners never come forward to challenge the aforesaid action of respondent No. 1.
8. In a rejoinder filed by Tikamdas petitioner No. 1, he asserted that the very name Panjrapore weaning "the house of cows" clearly established the religious character of the. institution. This was further clear from the appointment of the Religious purposes committee by the Evacuee Trust Board It was maintained that the disposal of the plots in question by means of a lease‑deed amounted to a violation of Fundamental Right No. 10.
9. Having considered all the pros and cons of the matter we are clearly of the view that the evacuee status of the Association, as also of the prop‑tries belonging to it had‑ been finally determined by the Supreme Court vide their Lordships' judgment dated 31st January 1957, referred to earlier in the course of narration of facts. Their Lordships upheld the findings of the High Court:
(i) that the Association had ceased to function wholly or' partly in terms of section 2 (2) (d) of the Administration of Evacuee Property Ordinance;
(ii) that the persons managing its affairs had no locus stanch to function without the approval of the Custodian; and
(iii.) that the case was covered by section 6 (2) of the Pakistan (Administration of Evacuee Property) Ordinance, 1949.
Consequently, their Lordships directed the institution of an inquiry as to which properties of the Association were held in Trust for religious and charitable purposes. Of course, after several inquiries were held in succession in this regard, the matter stood finally settled by the order dated 26th of March r960, passed by Mr. Justice Masud Ahmad, the then Custodian, Evacuee Property who found all the properties of the Association as held in trust for religious and charitable purposes. This order was never challenged and has, therefore, attained finality. Even the writ petition directly filed under Article 22 of the then Constitution invoking its Articles 15 and 18, latter corresponding to Fundamental Right No. 10 of the present Constitution was dismissed by their Lordships of the Supreme Court as having been withdrawn.
10. Thus the position as it finally emerges as a result of the two judgments, namely, of the Supreme Court, and that of Mr: Justice Masud Ahmad, Custodian, read together is as follows : '
(a) The Association was evacuee and therefore, its properties were evacuee properties.
(b) These properties were found to be held in trust for religious and charitable purposes.
(c) Under section 6 (2) of Pakistan (Administration of Evacuee Property) Ordinance, corresponding to section 7 (2) of the Administration of Evacuee Property Act XII of 1957, they were to remain temporarily vested in the Custodian.
(d) The income of these properties was to be applied by the Custodian for fulfilling as far as possible, for the purposes of the trust.
(e) This temporary arrangement was to terminate on the appointment of new trustees in a manner as provided by law.
This was nothing but compliance of the provisions contained in section 6 (2) of Ordinance XY of 1949, which is reproduced hereunder :
"(1) All Evacuee property shall vest and shall be deemed always to have vested in the Custodian with effect from the first day of March 1947.
(2) Where any evacuee property is property held in trust for religious or charitable purpose, 'the property shall remain vested in the Custodian only till such time as fresh trustees are appointed in the manner provided by law and pending the appointment of fresh trustee the trust property and the income thereof shall be applied bar the Custodian for fulfilling, as far as possible the purposes of the trust."
11. The relevant provisions of law, as envisaged by subsection (2) of section 6 told is contained in section 16‑A of the Displaced Parsons (Compensation and Rehabilitation) Act, 1958 and the scheme framed thereunder, to which specific reference was made by Mr. justice Masui Ahmad in the penaltimate paragraph of his judgment dated the 26th of MarcA 1960, in the following terms:
"A copy of this order should be forwarded to the Chief Settlement Commissioner, West Pakistan for information ape necessary action. Until the appointment of new trustees, or until such time as a Scheme is framed under section 16‑A of the Displaced Parsons (Compensation and Rehabilitation) Act, 1958 is necessary to make souse arrangements for managing the properties of the Association."
Accordingly he appointed Mr. Haridals Lalji petitioner No. 4 and Seth Katan Motan Dass managers of the properties.
12. Although an impression has been created by the petitioners that the impugned lease give rise to a fresh grievance justifying the invocation of Article 98 of the Constitution, we are clearly of the view that the alleged grievance was merely a consequential act directly flowing in logical sequence of the legal position already upheld by their Lordships of the Supreme Court and the same matter was once again reagitated before us after the lapse of about seven years. It may be observed that it was precisely on the same ground of the alleged infringement of Fundamental Right No. 10, corresponding to Article 18 of the 1956 Constitution that the Constitutional validity of section 16‑A of the Act and of the scheme framed thereunder was challenged before us. Nonetheless, however, we have considered it necessary to examine the contentions on merits and not to dismiss the petition on technical grounds.
13. In support of the alleged infringement of Fundamental Right No. 10, the learned counsel for the petitioner strongly relied upon the dictum of their Lordships of the Supreme Court in Jabendra Kishore Achharrya Chowdhury and others v. The Province of West Pakistan, (P L D 1957 S C (Pak.) 9) incidentally an authority relied upon by both the parties. The background of this case is that the Provincial Assembly of East Bengal, as it was then known passed the East Bengal State Acquisition and Tenancy Act of 1950, providing for the acquisition of land by the State Rent Receivers in East Pakistan. By subsection (1) of section 3, the Act enabled the Provincial Government to acquire by notification in the official Gazette all interests of such of the rent‑receivers as were specified in that notification. Subsection (2) of that section empowered the Government also to acquire in a similar manner all or any of the, lands in the khas possession of such rent‑receivers. Section 37 of the Act provided for payment of compensation to rent‑receivers so expropriated on the basis of their income on a sliding scale; the rate of compensation decreasing with the increase of income. The Provincial Government acquired the interest of rent‑receivers by' several notifications before the Constitution came into force on 2nd of March 1956. Further district‑wise notifications were issued by the Provincial Government purporting to acquire the interest of the remaining rent‑receivers under section 3 of the Act with affect from 14th of April 1956. On 13th of April 1956, 83, petitions for writs of mandamus were moved in the High Court of Dacca against the Provincial Government seeking withdrawal of the notification. What is relevant for the purposes of the present case is that in the course of acquisition of Wakf' and debutter properties, a contention was raised before the Dacca High Court that since the effect of the Act was to transfer the ownership of such properties to the Provincial Government and to dispossess the mutawwalis and shebaits thereof, the Act destroyed or at least adversely affected religious institutions, and secondly to trench upon the right guaranteed by Article 18 of the Constitution to every citizen to establish, maintain and, manage religious institutions in accordance with his religious denominations. While repelling all the Constitutional objections to the notification, the Dacca High Court made absolute, rules nisi issued by it earlier in regard to the acquisition of Wakf and debutter lands. This finding was upheld by their Lordships of the Supreme Court, but The relevant discussion would be quite a helpful in the determination of the issue involved, particularly in view of the fact that both sides learned heavily on this authority.
14. Fundamental Right No. 10 corresponding to Article 18 of the 1956 Constitution reads as follows:
"Subject to law, public order and morality‑
"(a) every citizen has the right to profess, practise and 1 propagate any religion; and
(b) every religious denomination and every sect thereof has the right to establish, maintain and manage its religious institutions."
In clause 20 of section 2 of the East Bengal Acquisition and Tenancy Act, 1960, a "Proprietor" was defined as a person owning as a trustee or for his own benefit or a part. of it. Under clause 23 of the same section a "rent‑receiver" was defined as a "proprietor or a tenant‑holder including Raiyat or under a Raiyat or a non‑agricultural tenant whose land had been let out etc." Challenging the validity of acquisition of rent‑receiving interests in land held under Waqf or debutter an argument was advanced on behalf of the petitioner that the ownership of Waqf property vested in the Almighty under the Muslim Law and in the case of debutter in the diety under the Hindu Law and the Muttawalli and Shebait as the case may be not being trustees they were not covered by the definition of a "proprietor" While conceding this position, it was hold by their Lordships of the Supreme Court that the word "trust" as occurring in clause 20 of section 3 of the Act was not used in its technical sense, but in the ordinary sense and was vide enough to include ,a the case of a Muttawalli or Shebait who held the property not for his own benefit but for that of a religious or a charitable institution.
15. What is, however, more relevant for the purposes of the issue under examination was the next objection to the acquisition of Waqf and debutter lands on the alleged infringement of Article 18 of the Constitution which corresponds to Fundamental Right No. 10 being couched in precisely identical terms conferring inter alia on religious denominations and every sect thereof, the right to establish, maintain and manage their religious institutions. After an analysis of the relevant provision of the Act which divested, the muttawallis or the Shobiats of their interests being absolutely transferred to the Provincial Government, their lordships observed "From this the further consequences follow:
First, the pecuniary benefit which may have been resumed by the creator of the waqf for his descendants, or for himself as under the Hindu Law, is completely wiped out ; and second, a mere breach of trust by the Mutawalli or the Shebait in not applying as directed by the dedicator the income of the property to religious or charitable purposes causes the income so misappropriated to cease to be available for such purposes."
Their Lordships ultimately came to the conclusion that the provisions of the Act struck at the very root of the religious institutions. An argument advanced by Mr. Brobi which had found favour with the High Court that the rights conferred" by Article 18 having beets made "subject to law" could therefore, be taken away by the laic, was repelled by their Lordships. On ibis point, Muhammad Munir, C. J., observed;,
"It was a fraud on the citizens for the makers of a Consti tution to ray that a right is fundamental but that it may be taken away by the law." .
To illustrate the point, the learned Chief Justice further observed that an inevitable consequence of the argument of Mr. Brohi, if accepted would be that the Legislature would to well within its rights to interdict the professions of Islam by the citizens of Pakistan, because such a right was made subject to law, just as it has the right to establish, maintain, or manage the religious institution. On the principle that Constitution should receive liberal interpretation in favour of the citizen, it Was held that the Constitutional Rights should not to allowed to be nullified or evaded by literal interpre tations, and that the law could only regulate the manner in which the religion was to be professed, practised and propagated and religious institutions were to be established and maintained which could not be abolished altogether by law. The following observation by Chief Justice Shaw of the Supreme Judicial Court of Massachausettes in Copen v. Foster (12 Pick 48,5‑‑488) was reproduced with approval:
"That in all cases where the Constitution has conferred a political right or privilege, and where the Constitution has not particularly designated the manner in which that right is to be exercised, it is clearly within the just and constitutional limits of the legislative power, to adopt any reasonable and uniform regulations, in regard to the time and mode of exercising that rights, which are designated to secure and facilitate the exercise of such rights, in a prompt, orderly and convenient manner . . . . . Nevertheless, such a construction would afford no warrant for such an exercise of legislative power, as under the pretence and colour of regulating, should subvert or injuriously restrain the right itself.".
16. Having considered the facts of the instant case in the light of the aforesaid judgment of the High Court, we are clearly of the view that the validity of section 16‑A or the scheme framed thereunder cannot be challenged on the alleged violation of Fundamental Right No. 10, and the observations made by their Lordships of the Supreme Court, do not directly bear upon the case before us. It has to be borne in mind that the uprooting of millions of people on both sides of the border, in the wake of Partition of the Indo‑Pakistan sub continent, leading to exchange of population on a vast and unprecedental scale, gave rise to a host of problem which both in their variety and complexity were without a parallel in the contemporary history. It cannot be disputed that as result of the migration of an over‑whelming majority bf pits members who were all Hindus the Association ceased to function wholly or partly and the authority of the persons carrying on its business had neither been accepted nor approved by the Custodian. This position after various decisions of the Courts below was finally upheld by the Supreme Court. While the phrase "subject to law prefixed before Fundamental Right No. 10 as a rider, does not on the one hand invest the Legislature with unlimited powers to unduly restrict or take away the Fundamental Right guaranteed in the Constitution, it cannot on the other be completely ignored or bypassed as non‑existent, and as such a balance Las to be struck between two positions by resorting to a reasonable interpretation keeping in view the peculiar circumstances of each case. The grant of Fundamental Rights by the Constitution in the larger public interest has been made subject to certain restrictions and exceptions. Different phraseology has been used in this regard in different Constitutions. For instance, Article 21 of the Indian Constitution under the caption "Right to Freedom", reads as follows;
"No person shall be deprived of his life or personal liberty except according to procedure established by law."
Article 31 relating to Fundamental Rights in respect of property runs as follows:
"No person shall be deprived of his property, save by authority of law."
Under the Constitution of the United States of America, the phraseology used in the Fifth and Fourteenth Amendment is that no person shall be deprived of his life, and liberty except with due process of law. The expression "subject to law" as used in Fundamental Right No. 10 in our own Constitution is comprehensive enough to cover the different expressions aforesaid used with different connotations.
17< Since the properties whose transfer by the lease in question have been finally held to be evacuee properties, the effect of the Constitutional provision in this regard‑contained in Fundamental Right No. 14 captioned "Protection of Property Rights" may also be examined. It reads as follows;
"(14) Protection of property rights; (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 therefor and either fixes the amount of compensation or specifies the principles on which and the manner in which the compensation is to be determined and given.
(3) Nothing in this paragraph shall affect the validity of‑------
(a) ---------------------------------------------------
(b) any law relating to the acquisition, administration, or disposal of any property which is or is deemed to be evacuee property under any laws or
(d) . . . . . . . . . . .".
The aforesaid Exception created in favour of evacuee laws by means of a constitutional provisions would certainly cover the relevant I revisions in question, namely, section 7(2) of the Administration of Evacuee Property Act of 1957, section 16‑A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and the scheme framed thereunder. The combined effect of this production read with the rider to Fundamental Right No. 10 in the form of the expression "subject to law" makes the position abundantly clear that the Constitutional validity of the aforesaid provisions is not open to question.
18. Another distinguishing feature could be that in Jobinder Kishore's case their Lordships of the Supreme Court were dealing with debutter property vesting in the deity or idol whereas in the case before us the properties have vested in the Association. We are in agreement with the finding given by Mr. Justice Masud Ahmad, Custodian, that the Association was a religious and charitable institution established for looking after disabled animals, particularly the cows; as suggested by its very name. However, AC cannot accept the further argument pressed on behalf of the petitioners that cow- worship being a cardinal principle of the Hindu religion, the properties of the Association vest .in a deity or idol. It was never the case of the petitioners that properties of Association were dedicated by its founders to any deity or idol. The raison detre of the Association, namely, looking after disabled animals being ostensibly of a secular character makes no reference, whatever, in the memorandum or Articles of Asso ciation to such a dedication. It was held in Chandulal v. Rampat Mal (A I R 1933 Lah. 189) that the essential ingredients of a religious endowment under the Hindu Law is the Sankalp and the Samarpan whereby the properties are given away by the owner to the public or the Almighty completely divesting himself of its ownership. We have not been able to find any such traces of dedication in the instant case.
Even otherwise, in a case where the overwhelming majority of the members of the Association have left the country for good and its properties have been declared evacuee, no analogy can be reasonably drawn between the two positions. Rather a ore analogous situation is available in the West Pakistan Wak Properties Ordinance of 1961 some provisions or which bear a striking resemblance to those of section, 16‑A of the Scheme framed thereunder. This Ordinance was promulgated to consolidate and amend the laws relating to the manage ment of wakf properties in the West Pakistan. Section 6 of the Act authorised the Chief Administrator to take over wakf properties by notification and assume its administrative control and management, etc. Section 11 of the Ordinance gave powers to the Chief Administrator to prepare scheme for the administration of wakf properties, giving the reasonable effect to the ascertainable wishes of the dedicators. Under section 12, the Government could permit the Chief Administrator to sell or, otherwise dispose of any Wakf property. Their Lordships of the Supreme Court had an occasion to examine these provisions in Sh. Inayat Ullah and others v. M. A. Khan and others (P L D 1964 S C 126). The facts, giving rise to this case were that a mosque known as Masjid Patolian in Lahore was taken over with the appurtenant properties by the Administrator of Auqaf. The Manager of the mosque; appointed by the Administrator issued a notice that no one could hold ‑Khatem Sharif or make a speech or hold's meeting in the mosque in question. The appellants, namely, Anjuman‑i‑Ghausia Aliya, feeling aggrieved challenged the validity of this notice as being beyond the powers of the Manager, under the Ordinance. The petition was dismissed by the High Court, but their Lordships of the Supreme Court allowed the appeal. While dealing with the most drastic provisions contained in the Ordinance whereby the Government could permit the Chief Administrator to sell or dispose of the Wakf property their Lordships held that the provision was evidently intended to meet extraordinary situations in which it may be necessary to sell a particular wakf property and invest the proceeds in some other way. As sated earlier, evacuee laws which even otherwise enjoy a Constitutional pro tection from a challengs to their validity were certainly enacted to meet a situation which by all standards was extraordinary. It would be significant to observe that no argument on the basis of the alleged interference, maintenance, management and control as envisaged by religious institutions on the ground of infringement of Fundamental Right No. 10, was raised, presumably owing to its untenability. We 'are of the opinion that this lends considerable support to the view taken by us. Another relevant observation made by their Lordships which also has a bearing on the case before us, was made by their' Lordships while meeting the argument that mosque was to be used strictly for the worship of Almighty and any user thereof which might partake of something other than the worship of God should be banned. It was observed:
"The question however is whether the Chief Administrator or his nominee can impose such a ban on a user which had existed before the wakf property was taken over under the Ordinance. The question whether such a user was under the law of Islam, a legitimate user of the property in question or not, might be capable of decision in the proper forum, namely, the Courts of general Civil jurisdiction."
Similarly in the instant case as held by us in the earlier part of the judgment, there are several questions relating, Inter alia, to the user of the site in question which could at best be agitated in a Court of general civil jurisdiction. The upshot of the discussion is that the Constitutional validity of the relevant a provisions of Act XXVIII of 1958, is not open to question.
20. In support of the abode conclusion reliance could also be placed to some extent on Sh. Abdul Majid and other: v. Pakistan and others (P L D 1967 Lah. 459). In that tease, certain occupants of properties held by Dayal Singh College Trust Society were sought to be disposed of by the Custodian in the interest of the society. Feeling aggrieved, the occupants who were practising Advocates of this Court preferred a Writ Petition in the High Court that the sale in question was unauthorised, illegal and ultra vires, it was held by a Division Bench of this Court that the property in. dispute was evacuee property attached to religious charitable and educational trust to be administered under station 16‑A of the Act and the scheme framed thereunder. Section 16‑A authorised the Chief Settlement Commissioner to prepare one of more schemes for the administration and disposal of properties included in the trust pool providing any law for the appointment of any trustees, the consolidation and, grouping of trusts or institutions to the transfer and even for the extinguishments of a trust or wind up an institution the original object of which had wholly or partly cased to exist for the transfer to the Government, any local autho rity of suitable institution of any property in the trust pool for any charitable religious or educational purpose. The scheme was prepared by the Chief Settlement Commissioner in 1960 under section 16‑A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and section 14(2) of the Displaced Persons (Land Settlement) Act, 1958, and was promulgated with the previous approval of the Central Government with whom all evacuee properties had vested, on acquisition under section 3 of former Act, absolutely and free from all encumbrances. Both the provisions contained in section 16‑A as also the name of the scheme i. e. "Scheme for the management and disposal" particularly the expression "disposal of property" clearly envisaged vast and unlimited powers vesting in the Evacuee Board constituted in this regard. Under paragraph 18 of the scheme the Board was empowered to do all things considered by it to be necessary, proper and expedient for the efficient maintenance, control and disposal. Under clause 19 the Board was also charged inter alia with the duty to sell with the previous approval of the Central Government, immovable and other property in respect of which disposal by sale appears to be the best course u9der the circumstances. It could also transfer or make endowment of any property attached to any or for any trust as may be specified by the Central Government consistently with the provisions of the scheme. It was held in Sh. Abdul Majid v. Pakistan, and we are in respectful agreement that the provisions of the scheme were not ultra vires of section 16‑A of the Act either before or after its amendment. The judgment of the High Court was challenged in two Civil Appeals Nos. 33 and 34 of 1967 before the Supreme Court. Their Lordships upheld the view taken by the High Court and dismissed the appeals as reported in A. R. Niazi and others v. Pakistan arid others (P L D 1968 S C 119).
The following observation of their Lordships of the Supreme Court may be reproduced with advantage:
"Section 16‑A of the Act, as retrospectively amended in 1964, empowered the relevant authority under a scheme to be prepared, to sell the property in question, where disposal by sale appears to be the best course under the circumstances, sub‑clause (j) of clause 19 of the Scheme, framed thereunder, enabled the evacuee Trust Board to sell, with the previous approval of tire Central Government, uneconomic, immovable or any other property in respect ref which disposal by sale appears to be the best course under the circumstances, The property sold is said to have been yielding very little income to the; Trust in its present condition and the Trust was not in a position for lack of the necessary finances, to exploit its building possibilities to obtain higher income. In these circumstances, it cannot be said that, the powers conferred by section l6‑A and the Scheme framed thereunder, have been, in any manner, exceeded."
In this view of the matter, we do not see any force err the contention that the Board was not competent to lease out the land in question at ill or in any case not for more than five years. The reference to the transfer of trust properties in paras. 31 and 32 of the Scheme, to any trust functioning ire West Pakistan for setting up ear maintaining orphanages, leper houses, widow homes, poor houses, or educational, 'technical and health institutions, as envisaged by part. 30 ibis for a period of live years, have been made expressly subject to other provisions of the scheme which read with section 16 of the Act even allow complete disposal of the properties. It would thus be wrong to say that the lease was without authority. We arc not convinced either that the income to be so derived will be utilized other than for the furtherance of the common objects of the Association as envisaged by para. 33 of the Scheme.
21. In Shaikh Abdul Mujid s (use the constitutionality of section 4(2) arid section 16‑A ref the Displaced Persons (Com pensation and Rehabilitation) Act, 1958, was also challenged as being repugnant to the fundamental Rights guaranteed under the Constitution. Can similar grounds was assailed section 42) and other relevant provisions of the West Pakistan (Administration of Evacuee Property) Act of 1957, on the basis of which property in dispute was treated ay evacuee property for a limited purpose in a discriminatory manner. The contention vas overruled on the ground that a reasonable classification of persons or things in consonance with the object of the Legislation has always been recognized as not being repugnant to the guarantee of equal protection of laws, See Budhan Chuudhury v. State of Bihar (PLD 1958SC191). This view was also upheld by their Lordships of the Supreme Court in A..R. Maze v. Pakistan, wherein it was observed;
"But prima facie the High Court appears to be right in holding that there was no ground for thinking that the rule of equality before the law 'and equal protection of the law, embodied in Fundamental Right No. ‑15, had been placed inn jeopardy by the legislation relating to evacuee trust property. Evacuee trust property is a separate class of property and this classification would itself justify its differential treatment ax compared with other evacuee properties."
As observed earlier in regard to Evacuee Laws the Legislature was dealing with an extraordinary situation of an emergent nature. We are, therefore, clearly of the view that neither section 16-A nor the Scheme framed thereunder is repugnant to the Constitution on the ground of alleged infringement of fundamental Right No. 10.
22. Likewise, we do riot incline to hold that any of the cow‑sheds (Gaushala) constructed and. maintained by the Association at six places, including the one at the site in question was to be treated as a place of worship like a temple, except of course, for the Kandi‑tree standing in the better site whose religious significance has not been denied or disputed. In fact the rights of the members of Hindu community to Kandi worship (Puja) have not only been recognised but also properly safeguarded in the impugned lease deed itself by providing act access to it and reserving an area 55' x 55' around the Kandirtree: Para, 2(j) of the lease‑deed runs as follows':
"2(1) That the sanctity of the actual place of worship, viz. the Sacred Trees, will be preserved by the lessees who will also provide passage to the said tree for offering Puja'. The lessees will also provide spaces around the said tree, for the purposes of offering 'Fuji', in the form "Of, a circular platform enclosed or otherwise, having a radius of at least six feet:"
It would not be out of place also to refer in this context to the relevant comments offered by respondent No. 1.
"Para. 8.‑It ix further submitted that under lease granted by the Evacuee Property.. Trust Board the aforesaid tree has been preserved and it has, been provided that certain space around the said tree shall be kept as open space and the lessee shall provide free access td till the Hindus, who desire to visit the said trey and to perform the aforesaid Kandi Poojan ceremony. It is also submitted that under the proposed plan for the construction an open space measuring about 55 x 55 S.. ft. has been kept around ,the aforesaid tree which ,will be available to the persons visiting the said tree.
But for the existence of this Kandi‑tree and Kandi, worship on that account, the Gaushala :originally existing at the site in question and admittedly, demolished has no special or preferential significance in contra distinction to the other Gaushalas situated in the suburbs of Karachi and maintained by or belonging to the Association. It appears to us that in tact its special importance lies in the high arid even, increasing value of the land owing to its situation is a populous street of Karachi. We are not convinced that there is any specific religious, connection or inter dependence between Kdndi worship and cow‑worship and that the two cannot take place indepen dently. We have not been able to see how the impugned lease has amounted to interference with the performance of religious rites or worship by members of the Hindu community. Our attention was also drawn by the respondents to the site plan Exhs. B and C, whose correctness was not questioned before us, to show that only a small fraction of the land leased out by the impugned lease deed was actually used for Gaushala and on most of the area commercial tenaments had already existed which had been leased out to the tenants fetching‑ quite a handsome income to the Association. We are not convinced either that the site in question was used for Dussurah celebrations and in consequence of lease would no longer be available for such a religious purpose. This assertion by the petitioners was categorically denied by the respondents who took the position that Dussurah celebrations have always and invariably held in Swami Narain Temple compound opposite to Karachi Municipal Corporation Building. Thus at best it remain a disputed question of fact on which no conclusive finding within limited scope of the exercise of writ jurisdiction is either proper or possible.
23. The upshot of the discussion therefore, is that the petition must fail and is hereby dismissed with costs.
A.E/K.B.A. Petition dismissed.
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