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Constitutional Petition No. 990 of 1963, decided on 4th February 1976.

- S. 16-A read with Scheme for Management and Disposal of Pro perty attached to Charitable, Religious and Educational Trust or Institution-Property of Trust-Association formed by Hindu citizens for "protection and preservation of cattle and other animals"-Large number of such Hindus migrating to India on Partition of subconti nent and properties of Association subsequently declared to be evacuee property -Contentions that Association having been formed for religious and charitable purposes, proceeds from its properties enured for benefit of Hindu Community staying behind and that such properties could not be taken over under scheme-Held, devoid of any substance.

Deoki Nandan v. Murlidhar and others A I R 1957 S C 133 : Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vanayak Gosavi and others A I R 1960 S C 100 ; Gordhan Das and another v. Chunni Lal I L R 30 All. 111 ; Sheo Shankar v. Kashi Shankar and others A I R 1935 All. 139 ; A. K. T. K. M. Narayanan Nambudripad v. Board of Commissioners for Hindu Religious Endowments, Madras A I R 1938 Mad. 209 and Lalta Prasad v. Brahmanand and others A I R 1953 All. 449 cited but not examined.

A. R. Niazi, Advocate and others v. Pakistan and others P L D 1968 S C 119 ; Shri Tikamdas Hiranand and others v. Divisional Evacuee Trust Com mittee, Karachi and others P L D 1968 Kar. 703 and Shri Mahant Baba Malgalpuri v. Government of Pakistan Constitutional Petition No. 768 of 1975 ref.

Khalid M. Ishaque for Petitioners.

Shah Jamil Alam, S. H. Mujtaba and Sayeed A. Shaikh for Respondents.

Dates of hearing : 10th, 27th October 1975 and 14th January 1976.

The circumstances giving rise to this petition are as follows:

1. In the year 1866, some Hindu citizens of Karachi, formed an Association known as Panjrapore Association, for the protection and preservation of "cattle and other animals". This Association, came to be registered on the 25th of April 1938, under section 26 of the Companies Act of 1913, for the following objects:

(a) To provide for protection and preservation 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 and calling;

(b) To arrange for feeding or tending of such of the cattle and other animals in Karachi as may be disabled by infirmity, disease or otherwise, or their not being properly looked after by persons possessing them, and admitted in the Panjrapore;

(c) 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.

2. It was further provided, that the Panjrapore, which means the "house of cows", will be maintained at Karachi, in its vicinity, and the Association was to utilise its funds and resources in doing all such acts, matters pr things, as may be deemed proper or expedient. The Association was also authorised to acquire, purchase, sell or lease out buildings and lands, grazing farms, cattle etc., raising subscriptions, receiving donations, levy of "legas" (a subscription on business transactions) in the shape of charitable contribution, for the maintenance and support of animals in Panjrapore. 1n this connection, the Association acquired considerable property by means of gifts, grants, purchase, and was maintaining cows and other animals in four outstations in the suburbs of Karachi, namely Shewaram, Songs], Bahrano and Magin, and Rambagh in Karachi itself".

3. After the partition of the sub-continent, a large number of Hindus migrated to India. In 1949 an application was made for a declaration of the property belonging to the Association as evacuee property. Such an order was made by the Additional Custodian (Judicial) Evacuee Property on the 28th of January, 1950. The remaining members of the Association filed a revision application before the Custodian, which came to be allowed; inter alia, in the following words:

"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."

4. The definition of "evacuee" and "evacuee property" came to be amended by the Ordinance of 1951 and as a result of this amendment, another application was presented for the declaration that the Association had become evacuee, and that its properties be therefore declared as evacuee property. The then Deputy Custodian (Judicial) gave such a declaration, by his order dated the 18th of August, 1953. A revision application was preferred before the Custodian, which came to be dismissed on the 19th of April, 1956. The Association challenged these orders, through a petition under Article 156 of the Constitution of 1956. The petition was dismissed.

5. The Association challenged this order, firstly by filing an appeal by Special Leave before the Supreme Court and secondly through a direct petition, under Article 22 of the then Constitution, against the Custodian's order, alleging infringement of fundamental rights guaranteed by Articles 15 and 18. In the appeal, the Supreme Court held that the Association had ceased to function, wholly or partially, as mentioned in clause (d) of subsection (2) of section 2 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949. At this, point, it might conveniently be mentioned, that the alleged functioning of the Association, after it ceased to function in accordance with the Companies Act, and its Article of Association, was clearly under the control of persons, who could not derive their authority from the aforesaid instruments and whose authority required the approval of the Custodian if the Association were not to fall within the definition of "evacuee" cited above. It is quite clear, that the approval of the Custodian was neither sought nor recorded at any time". It however went on to say, "But the conclusion that the Karachi Panjrapore Association is an "evacuee" does not dispose of the case entirely. From the very moment that proceedings were started against the appellant-Association to declare it "evacuee" and the property held by it as "evacuee property" it has been consistently maintained by the appellant-Association that it was registered for the purpose of promoting "religion, charity, or any other useful object" and the objects of the Association have been to provide for the protection and preservation of the cattle and other animals and to arrange for their feeding etc., as described in the Memorandum of Association, but the effect of these objects and the activities of the Association, has not at all been taken into consideration by the Custodian . . . . . . . . . . . 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 these from was spent. The justice of the case requires that such an investigation be made and the future action of the Custodian should be regulated by the result". A direction was therefore issued to the erstwhile High Court of West Pakistan, Karachi Bench "to issue a writ of mandamus to the Custodian to take such action as was provided by section 6(2) of the aforesaid Ordinance 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". As was to be expected after the announcement of the decision, the other petition pending before the Supreme Court was withdrawn.

6. Pursuant to these directions, Mr. Mohammad Bakhsh Memon, Custodian. Evacuee Property, initiated an enquiry and later took charge of the management of the property and nominated 4 respectable members of the Hindu Community to manage the affairs of the Association. A few weeks later he passed another order to the effect, that the properties, mentioned in the Schedule thereto, were used for religious and charitable purposes. He further recommended to the Government the names of 10 members of the Hindu Community for appointment as trustees of the Association for the management of its affairs. Mr. A. M. Jan, the succeeding Custodian, did not agree with the order of his predecessor. He therefore ordered the Additional Custodian to make proper enquiry after recording evidence, which was to be submitted with the latter's report. In the report that followed, only 3 urban properties were found to be for public purposes of a religious and charitable nature and the remaining properties, urban, as well as agricultural had no element of "entrustment or such characteristics". Mr. Masud Ahmad, who was the next Custodian did not agree with report. He held that the Trust Act had no application as the Association was governed by Hindu Law of Endowments. He also found that the objects for which the Association had been founded were also religious and charitable in nature. However he held, that the case was clearly covered by subsection (3) of section 7 of the Pakistan (Administration of Evacuee Property) Act, 1957 and "therefore until the appointment of new trustees, the properties held by the Karachi Panjrapore Association, and their income will have to be applied, as far as possible for fulfilling the purposes of the trust . . . . . . .until such time as a Scheme is framed under section 16-A of the Displaced Persons (Compensation and Rehabilitation) Act of 1958, it is necessary to make some arrangements for managing the properties of the Association". With that end in view, he appointed two managers who were to act under the direction of the Custodian.

7. In the meantime, the Scheme under section 16-A of the Displaced Persons (Compensation and Rehabilitation) Act, came into force and the management of the Association was taken over by the Divisional Evacuee Trust Committee, appointed by the Evacuee Trust Board set up under the Scheme. The Custodian Evacuee Property, as a result thereof sent the entire records relating to the Association, to the office of the respondent No. 1.

8. The respondent No. 1, issued a Notification No. 1(12)/63, dated the 15th July 1963, published in the Gazette of Pakistan, dated 9-8-1963, giving a list of Evacuee Trust Properties, and inviting objections from the persons concerned The Karachi Hindu Panchayat, on 6-9-1963, sent a letter to the respondent No. 1 praying for the revision of the list, as according to them, "when a property is held in trust etc., and the Trustee becomes an evacuee, it is only the trustee's interest in the trust property which becomes evacuee property and the trust property as a whole is not available for disposal under section 16-A of Act XXVIII of 1958, and Scheme made thereunder". As no reply was received, the petitioners filed this writ petition, as they had been "deprived of their properties, and of their rights of worship and performance of religious ceremonies, inasmuch as all the properties, lands, funds, including moneys have been taken over as if they exclusively vested in the said Committee". Tae relief sought were a declaration that the respondent No. I had no right and authority under the provisions of the Scheme framed under section 16-A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 to take charge of the properties of the Association, or, treat them as evacuee properties, and an order that the same be restored either to the petitioners, or, to the petitioners 8 and 9, who were the Managers appointed by the respondent No. 2. There was also a declaration sought that the Custodian of Evacuee Property, that is, respondent No. 2 had no jurisdiction, or authority to transfer the records of the Panjrapore Association to the respondent No. 1.

9. It was contended by Mr. Khalid M. Ishaq, learned counsel for the petitioners, that the Panjrapore Association having been formed for religious and charitable purposes-and it was so held by the Custodian and the Supreme Court-the proceeds from its properties enured for the benefit of the Hindu Community of Karachi that has stayed behind. In support of this contention, reference was made to Deoki Nandan v. Muriidhar and others (AIR 1957 S C 133), Narayan Bhagwantray Gosavi Balajiwale v. Gopal Vinayak Gosavi and others (AIR 1960 S C 100), Gordhan Das and another v. Chunni Lal (I L R 30 All. 111), Sheo Shanker v. Kashi Shanker and others (A I R 1935 All. 139), A. K. T. K. M. Narayanan Nambudripad v. Board of Commissioners for Hindu Religious Endowments, Madras (A I R 1939 Mad. 209) and Lalta Prasad v. Brahmanand and others (A I R 1953 All. 449). He, therefore, urged that the properties of the Association, though it had been declared to be an evacuee, and its properties evacuee properties for a limited purpose, could not be taken over by the respondent No. 1, under the Scheme framed under sec tion 16-A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, vide Notification No. S. R. O. 423 (a) (61), dated the 24th of March, 1961.

Section 16-A of the said Act reads as under:

Section 16-A. Property of Trust, etc.-(1) Subject to the provisions of this Act and the rules made thereunder, the Chief Settlement Commissioner, shall prepare one or more schemes for the administra tion, maintenance, management and disposal of property included in the trust pool;

(2) in particular and without prejudice to the generality of the foregoing provisions, such scheme may provide-

(a) for the constitution of an authority or authorities for the management and disposal of the property; or

(b) for the appointment of managers or management committees; or

(c) for the appointment of new trustees on such terms and conditions as may be deemed appropriate; or

(d) for the grouping of the trusts or institutions wherever necessary; or

(e) for extinguishing a trust or winding-up an institution the original object of which has wholly or partly ceased to exist; or

(f) for the transfer to Government, any local authority or suitable institution of any property in the trust pool for any charitable, religious or educational purpose; or

(g) for the sale of the property where disposal by sale appears to be the best course under the circumstances.

(3) Any authority constituted under a scheme prepared under this section shall be a body corporate, having perpetual succession and a common seal, with power to hold and dispose of property, and shall by the name given to it by the scheme sue and be sued.

(4) A scheme prepared under this section shall not be executed without the prior approval in writing of the Central Government."

The Chief Settlement Commissioner, Pakistan, duly authorised by the Central Government, framed the Scheme called "the scheme for the management and disposal of property attached to Charitable, Religious and Educational Trust or Institution." The duties of the Board constituted under the scheme, vide clause (19) thereof, inter alia, were:

"(a) to maintain a complete and authentic record-of-rights containing full information relating to the origin, income and object of each trust;

(d) to take measures for the recovery of lost property of any trust;

(f) to buy out of surplus income, if any, any other property the purchase of which may be considered beneficial for promoting the objects of this Scheme;

(i) to sell with the previous approval of the Central Government uneconomic immovable or any other such property in respect of which disposal by sale appears to be the best course under the circumstances."

The other material provisions, which need notice, are clauses (29), (30), (33) and (34), which read as under:

"(29) The Board shall pool all property and may, subject to the provisions of this Scheme-

(i) manage the whole or any part thereof through the Divisional or District Committees or by such other special arrangement as it may deem suitable;

(ii) transfer or make endowment of any property attached to any particular trust for a public purpose or for any purpose as may be specified by the Central Government under such terms and conditions not inconsistent with the provisions of this Scheme, as it may consider suitable.

(30) Subject to the provisions of this Scheme, the Board may on such terms and conditions and in such manner as it may prescribe, utilize its income for any one of the following purposes:

(i) by allowing Grants-in-aid to such Educational, Technical and Health Institutions as may be considered suitable for the purpose;

(ii) for setting up

(a) Orphanages; J

(b) Leper Houses;

(c) Widow Homes;

(d) Poor Houses, or

(e) Educational, Technical and Health Institutions.

(iii) for granting stipends to individual students of Science or Art.

(33) In utilising the income as provided in paragraph 30 or in transferring property as provided in paragraph 31, the Board shall have regard to the original object of the trust, if such an object has been clearly specified, and shall preferably transfer the same object. But, where in the opinion of the Board, the object has ceased to exist or there is surplus income after satisfying the specified object, the Board may transfer any property or apply the income from the property or the surplus income, as the case may be, to such other object as is specified in clause 30 above:

Provided that where the property was attached to any religious institution, the cost of the maintenance of such an institution, shall be the first charge on the income and profits of the property.

(34) The income accruing from property or the property itself utilised or transferred respectively under paragraphs 30 and 31 above shall be used for the purposes for which it is given and the Board may withdraw the income or property as the case may be, if it is satisfied that it is being misused."

11. I am afraid this contention is devoid of any substance. This scheme came into consideration as pointed out by the learned Deputy Attorney General in A. R. Niazi Advocate and others v. Pakistan and others (P L D 1968 S C 119). There was also a challenge to its validity on the basis of Fundamental Rights 8, 14 and 15 of the then Constitution. The contention was repelled. It was also observed that no diversion of the purposes of the original trust was involved, and "the proceeds of the sale would go to the Trust for carrying out its original purpose". Some lands of the Panjrapore Association, which had been leased out by the respondent No. 1, were the subject-matter of a dispute in Shri Tikamdas Hiranand and others v. Divisional Evacuee Trust Committee, Karachi and others (P L D 1968 Kar. 703). One of the contentions there also was that, notwithstanding the proclamation and existence of emergency, the Hindu Community, in view of Fundamental Right No. 10, had the right to maintain and manage all religious institutions and, as such, it was not competent for the Government to legislate section 16-A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, or to frame a scheme thereunder. After examination of the various aspects of the matter and the state of the law on the subject, their Lordships held that neither the-Act nor the Scheme was repugnant to the Constitution on the ground of alleged infringement of Fundamental Right No. 10. This led to an appeal before the Supreme Court, where this point was again pressed. The appeal was allowed only on the ground that the lease deed in question had been granted for 99 years as against the customary, or, usual lease, and thus in violation of the terms of grant, and therefore the same could not be supported on the Scheme framed under section 16-A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The other contentions where not adverted to at all. A similar issue was involved in Shrl Mahant Baba Malgalpuri v. Government of Pakistan, being Constitutional Petition No. 768 of 1975, which came to be dismissed in limine, by a Division Bench of this Court vide its order dated 26-12-1975. In the circumstances, the contention fails.

12. In the result, the appeal stands dismissed with costs.

S. Q. Appeal dismissed.

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