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Petitioner: The Asia & Pacific Alliance of YMCA VS Respondent: Khalid Malik and Ors
Court Name: Sindh High Court Judge(s): Zulfiqar Ahmad Khan, Syed Hassan Azhar Rizvi Title: The Asia & Pacific Alliance of YMCA vs Khalid Malik and Ors Case No.: (1) C.P. No.D-3073 of 2012 (2) C.P. No.D-6448 of 2015 Date of Judgment:2020-02-11 Reported As: 2020 SHC 922 Result: N/A
Judgment ORDER ZULFIQAR AHMAD KHAN J. 1. These connected petitions pertain to Young Men' s Christian Association a worldwide youth organization founded on 06-06-1844 by Sir George Williams in London, now based in Geneva, Switzerland, with more than 64 million beneficiaries around 120 countries. The association commenced its operations in Karachi, Pakistan in the year 1913 by registering itself as a society under the name of "Karachi Young Men' s Christian Association" under the Societies Registration Act, 1860 and was accorded Registration No.29/1913 on 14-01-1913 (hereinafter called "YMCA society"). To house its philanthropic operations covering accommodation, health, education and academia, etc. in Karachi, various pieces of lands were allotted to the said society roughly totaling around 36,955 square yards in Sheet No. RB-1, Survey No1/1. These properties were duly leased in the name of YMCA society alone and none else. While operations of the society were running over quarter of a century smoothly , in the last few decades, two other bodies with deceptively similar names were registered by local individuals. These were Young Men' s Christian Association, a body registered under the Voluntary Social Welfare Agencies (Registration & Control) Ordinance, 1961 (hereinafter called "Karachi YMCA") and another , under the Companies Ordinance, 1984 under registration No.K-08526 of 2001 (hereinafter called "YMCA company"). The battle to gain control over Karachi assets of the society has been vigorously going on since early 2000 when finding strength under the Voluntary Social Welfare Agencies (Registration & Control) Ordinance 1961, the Director/Provincial Co-ordinator of Social Welfare Department, Government of Sindh through its letter dated 11-09-2003 appointed a caretaker body to run the affairs of the Karachi YMCA, but since there were no assets in the name of the Karachi YMCA, the caretaker camouflagingly took over the assets and operations of the YMCA society (which allegedly) was battling for its existence on account of mistrust erupted between its members, and outsider lobbies eying most valuable lands of the society needed ways to pock into the affairs of the society . Posed with this situation, YMCA society held its
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elections on 11-11-2004 and elected its Board for the term of 2004-2006. Upon getting approval of a general body , an application was made by the elected Board of YMCA society to the Directorate of Social Welfare on 08- 12-2004 for the cancellation of Karachi YMCA to the extent that through this mechanism assets of YMCA society were mischievously overtaken by the caretaking body . In the wake of these developme nts, through letter dated 01-12- 2004 the caretaker administrator chose to handover charge to the newly electe d Board, however when some members of Karachi YMCA chose to interfere in this handover , YMCA society filed a suit bearing No. 1401/2004 wherein status quo orders dated 11-01-20 05 were passed in favor of YMCA society . This, however did not stop the Directorate of Social Welfare from issuing an order dated 16-03-2005 for re-appointment of a caretaker body , which resulted in filing of Constitutional Petition No.D-330/2005 where a divisional bench of this Court passed orders dated 06.10.2005 setting aside the caretaker body and directing that elections of YMCA society should be held under the supervision of Nazir of this court. Nazir was directed to take over all the relevant record of membership, scrutinize it in the light of the bye-laws of YMCA society to determine eligibility , and hold elections within 60 days. Nazir was also directed to have accounts of the society audited through qualified auditors too. 2. It appears that elections were held by a committee comprising of Nazir , MIT of this Court and the office of the Advocate General after scrutiny of record of membership. The results were communicated to the Director , Provincial Coordinator for Social Welfare Department, Government of Sindh, which issued a notification handing over charge to the newly elected body . It however later transpired that in fact electi ons were held of Karachi YMCA rather than YMCA society as it was alleged that after the promulgation of the 1961 Ordinance, the Societies Registration Act, 1860 stood impliedly repealed, thus Karachi YMCA stepped into the shoes of YMCA society and took over all assets of the latter . This notion was however refuted with feverish intensity by the society which pleaded that Karachi YMCA is a fictitious body trying to usurp assets of the society, and the society was fully functions under the 1860 Act. Thus a question was posed through CP No. D-330/2005 as to whether elections of the YMCA society were held or not? 3. A Divisional Bench of this Court, throug h its detailed and speaking orders dated 22.10.2010 & 28.10.2010 came to the conclusion that the confusion engulfed by the committee lead Nazir of this court to hold elections of Karachi YMCA rather than that of YMCA society and it was ordered that Nazir in association with Provincial Assistant Registrar/Joint Stock Companies to hold elections of YMCA society (the entity registered under the 1860 Act) after carrying out the exercise contemplated by the Court' s order dated 06.10.2005. 4. Since the entire controversy was so ably, aptly and methodologically adjudicated by our learned brothers, we deem it essential to reproduce the reasoning and the operating part of the said order embodied between paragraphs 13-22 in the following: 13) We have thoroughly gone through bulky files in three volumes, examined Nazir Reports, Final Report of the Advocate General Sindh, objections thereto, various references, including Reference No.5. From examination of record produced, it is apparent and clear that the election indeed was held but of "Karachi YMCA" registered under the Voluntary Social Welfare Agencies (Registration and Control) Ordinance 1961 as per order of this Court dated 02-11-2006. However Honorable Supreme Court, maintained the Order dated 6-10-2005, therefore it is clear election if any held under order of Court dated 02-11-2006 are also of no legal sanctity . No elections of Petitioner YMCA (ie YMCA Society as called herein), registered under the Societies Registration Act 1860, was held as directed by this Court vide order dated 06-10-2005. 14) It may be noted that the Petitioner YMCA itself complained of formation of unauthorized organizations and associations under the same name and style of YMCA under Ordinance 1961 and Companies Ordinance 1984 respectively . At that time Mr. M.M Tariq Advocate, was representing the Petitioner YMCA. Now he represents Karachi YMCA, registered under Ordinance 1961 of which the election was held and as per Nazir Report dated 16- 04-2010 elected members forcibly took over the charge of the property of Petitioner YMCA from the Nazir . Conduct of Mr . M.M T ariq Advocate is unbecoming of an advocate and raises many questions. 15) On examination of the record of election and so also of the Final Enquiry Report prepared by the Advocate General of Sindh, admittedly , no election was held of the Petitioner YMCA registered under Societies Registration Act 1860, but of "Karachi Young Man Christian Association" registered under the Ordinance 1961.
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16) We have examined the record with the assistance of learned counsels. It transpires that the confusion arose on the basis of Reference No.5 dated 17-10-2006 filed by the Committee constituted by the Court (page 1385 of the main file). In the Reference No.5 Committee made a remark in para 2 "In the wake of proclamation of Voluntary Social Welfare Agencies Ordinance, it was mandatory for all NGOs to get themselves registered under the said Ordinance 1961. Thus YMCA registered was in fact a continuation of the Original YMCA registered under the Societies Act, 1860". The Court on the basis of assumption of the Committee as above, passed orders dated 02- 11-2006 observing "Reference No.5 is the main Reference under consideration. It is disposed off by directing that the entity registered under Voluntary Social Welfare Agencies (Registration and Control) Ordinance 1961, is to be considered as valid and legitimate YMCA and consequently the subsequent registration of this entity under Section 42 of the Companies Ordinance is declared to be unlawful". Consequent directions were made to hold election of YMCA registered under the Ordinance 1961. 17) It may be observed that in Pakistan under various legal regime welfare organ izations, agencies and trust are registered and regulated by/under different provincial and federal law and regulated by different regulatory authorities. This is not the occasion to dilate on all such laws and legal regime, relevant for the purposes of present controversy is welfare agency registered under Societies Act of 1860, which is registered and comes under the regulatory control of "Provincial Registrar/Joint Stock Companies, Sindh Directorate of Industries (Registration Wing)". Whereas welfare agencies or associations registered under the Voluntary Social Welfare Agencies (Registration and Control) Ordinance 1961 for the purposes of registration and monitoring comes under the provincial Social Welfare Department Government of Sindh. Welfare agencies and or commonly referred to as Non-Governmental Organizations (NGO) are also registered under Section 42 of the Companies Ordinance 1984 and are registered and regulated by Securities Exchange Commission of Pakistan (SECP). 18) Since the order passed by this Court dated 06-10-2005 whereby election of Petitioner YMCA (registered under Societies Act 1860) has been maintained by the Honourable Supreme Court vide order dated 03-02-2010, therefore, entire exercise carried out by the Nazir of scrutinizing the record of "Karachi Young Man Christian Association" registered under Ordinance 1961 becomes exercise in futility and in negation to the Order dated 06- 10-2005 of this Court. 19) We have also examined the Articles and Memorandum of YMCA, registered under Voluntary Social Welfare Agencies (Registration & Control) Ordinance, 1961, which was placed on record by Mr. M.M. Tariq advocate appearing for the Petitioner association. Articles and By Laws of such association do not show that such "Karachi YMCA" was formed in supersession or by taking over or amalgamation with the Petitioner YMCA formed under the Societies Registration Act 1860 and none could be done without due process of law. Society registered under the Societies Act 1860 are registered for the promotion of literature, science, or fine arts or for diffusion of knowledge, political education or for charitable purposes as defined in the preamble and Section 20 of the Societies Registration Act 1860. The association or society registered under the Act of 1860 could lose its existence only by amalgamation with any other society by following mandatory provision and in the manner laid down in Section 12 of the Act 1860, or could be dissolved by following section 13 and 14, thereof or Governing Body of the Society formed under the Act of 1860 could be superseded by the Provincial Government temporarily under Section 16-A of the Act of 1860 for period of one year and on expiry of the period governing body is reconstituted in accordance with memorandum of association. We have also examined provisions of Voluntary Social Welfare Agencies (Registration and Control) Ordinance, 1961, which was promulgated on 02-12-1961 to provide for the registration and control of voluntary social welfare agencies in any one or more of the 16 fields as enumerated in the schedule of the Ordinance 1961. The Society or Agency registered under the Ordinance 1961 could only be dissolved on the Report of the Registration Authority , which is made after hearing the society or agency and provincial government on being satisfied with the Report may make an order of dissolution, or the Provincial Government on the recommendation or proposal of three-fifth of member of the society/agency , if satisfied, may order dissolution of the society/agency . The Ordinance 1961 does not speak of repeal of the Act of 1860, therefore, implied repeal of Act of 1860, as argued by Mr. Aqil Awan cann ot be inferred from reading of Ordinance 1961. Very fact that various provisions of the Act of 1860 were amended in province of Sindh from time to time and lately by Societies
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Registration (Sindh Amendment) Ordinance VII of 2005 dated 15-08-2005, where by Deni Madaras were brought into the net of the Act of 1860. The amendment was made after the petition was filed on 05-04-2005, therefore contention of Mr . Aqil Awan advocate is preposterous and is rejected. 20) We have expressed our displeasure over the conduct of the counsel of the petitioner Mr. M.M. Tariq, who was once representing the Petitioner YMCA registered under the Societies Registratio n Act, 1860, after the elections were managed of an association registered under the Societies Registration Act, 1961 (sic), he has switched over his loyalties to an association, of which registration is questionable. Conduct of Mr. M.M Tariq is indeed of unbecoming of an advocate and is against all profession ethics, we refrain from dilating mover on his conduct and leave the matter to Sindh Bar Council to examine such conduct and take the matter to Sindh Bar Council to examine such conduct and take action, as admissible under the law. Let copy of this order be forwarded to chairman and vice chairman of Sindh Bar Council for taking such action against Mr. M.M Tariq Advocate as may be in accordance with law . 21) In view of the foregoing discussion, it is conclusively established that no elections were held of the Petitioner YMCA, since it was directed that the election are to be held under supervision of the Nazir of this Court in association with Respondent No.2, but as the facts unfolded, it appears that the Respondent No.2 Director Provincial Coordinator , Social Welfare Department, Government of Sindh, is the registering and regulatory authority of association registered under the Ordina nce 1961. For the association registered under the Societies Registration Act, 1860, the Provincial Registrar/Joint Stock Companies, Sindh, Directorate of Industries (Registration Wing), is the registering and regulatory authority , both the authority are different and separate have not overlapping role or function, neither the Provincial Coordinator , Social Welfare Department, Government of Sindh, can exercise any regulatory role or control over the affairs of the Agency or society registered under Societies Act 1860, nor the Provincial Registrar or Assistant Registrar/Joint Stock Companies, Sindh has any control or authority over the affairs of the association registered under the Voluntary Social Welfare Agen cies (Registration and Control) Ordinance, 1961. 22) Under the circumstances let the Nazir in association Provincial Assistant Registrar/Joint Stock Companies, Sindh, Directorate of Industries (Registration Wing), hold election of the Petitioner YMCA registered under the Societies Registration Act, 1860 after carrying out the exercises as ordered by this Court on 06-10-2005. Nazir to immediately take over the control of YMCA alongwith all record, present manag ement represented by M/s.Aqil Awan and Mr. M.M Tariq advocate to immediately handover the charge to the Nazir of this Court. Nazir may run the affairs of the Petitioner YMCA, till new body is elected and notified by the Provincial Assistant Registrar/Joint Stock Companies, Sindh Directorate of Industries (Registration Wing). Nazir to carry on, up to date Audit of the Petitioner YMCA. Nazir to scrutinize all transactions made contract concluded by the so called elected body as notified by the Respondent No.2 and in case any impropriety is observed may bring it to the notice of the court for examination and order . Tentatively Nazir fee in the sum of Rs.25,000 to be paid out of the funds of the Petitioner YMCA. 5. The said order of 28.10.2010 was challenged through Civil Appeal No. 225-K of 2011, which was dismissed by Apex Court' s order dated 31.05.2012 where the Hon'ble Supreme Court maintained this Court' s order dated 28.10.2010, thereby upholding the earlier order passed on 06.10.2005 where the Nazir was directed to hold elections within 60 days after scrutinizing the record and issuance of correct members list mentioning members which were eligible to cast votes in accordance with the bye-laws of the YMCA society (not Karachi YMCA). 6. Nazir after conducing elections submitt ed his report dated 17.04.2012 after (strangely) coming to the conclusion that there were only 124 active members of YMCA society . Full contents of the said report are reproduced in the following: Submitted: 1. On 31-05-2012, Honourable Supreme Court was pleased to pass following order in Civil Appeal No. 225-K of 2011 against judgment dated 28-10-2010 of Honourable High Court, Karachi passed in C.P No.D-330/2005. The relevant portion reads as under:- "6. The learned High Court in this view of the matter and after taking into consideration all aspects of the matter through impugned order rightly directed the Nazir to hold elections of YMCA registered under Societies Registration
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ACT, 1860 after carrying out the exercise as ordered by the High Court on 6.10.20 05, which order was maintained med by this Court. 7. For the foregoing reasons, the order impugned dated 28.10.2010 does not call for any interference. Therefore, the instant appeal is dismissed." 2. The relevant portion of order dated 28-10-2010 is reproduced for kind perusal of Honourable Court; "Under the circumstances let the Nazir in association provincial Assistant Registrar/Joint Stock Companies, Sindh, Directorate of Industries (Registration Wing), hold election of the petitioner YMCA registered under the Societies Registration Act, 1860 after carrying out the exercises as ordered by this Court on 06-10-2005..." (bold is for emphasis) 3. For further clarification, the relevant portion of order dated 06-10-2005 passed by Honourable Court is given below; "The Nazir shall take over all the relevan t record of membership and notify the date of fresh elections within 60 days from the date of receipt of this order . The Nazir Shall scrutinize the record and issue list of members eligible to cast their votes in accordance with bye-laws"' 4. In compliance of Honourable Orders, mentioned above, undersigned initially called registered copy of by-laws of the YMCA registered No.39/1913 registered under Societies Registration Act 1860 from Mr. Junaid Ahmed, the Provincial Assistant Registrar , Joint Stock Companies Sindh, Directorate of Industries (Registration Wing) along with any member list of YMCA, if lying in record of said office. In reply , the concerned official appeared before undersigned and submitted 6 paged certified copy of the by-laws of YMCA Karachi . He further disclosed that his office does not maintain or prepare membership record of the Petitioner YMCA but in past, it has been practice that different persons/groups had kept their record in his office but same cannot be verified by his office being genuine or correct. The concerned Assistant Registrar also filed a list of membership, so prepared by the then Nazir in year 2005. Moreover , he also submitted copy of some letters to show that neither any member list is prepared by his office nor any list is genuine because of the fact that same is allegedly issued by his office/predecessor being certified copy of member list. The copy of by-laws is attached at Annexure A/1 to A/6 and letters of Provincial Assistant Registrar are also submitted at Annexure B/1 to Annexure B/4 for kind perusal of the Honourable Court. 5. Thereafter , in order to prepare list of Active Members, help was taken from the by-laws of the Association and sealed membership record of YMCA (which?) so taken over by the then Nazir Mr. Zaheeruddin in compliance order of Honourable Court dated 06-10-2005 from office of YMCA situated at Plots/Shee ts No.RB-1 Survey No.1-A,1/1 & Survey No.2, Aiwan-e-Saddar Road Karachi. After proper scrutiny , list of 124 Active members was prepared but same required renewal of members in terms of its Bye-laws. 6. Next, in order to give proper notice of Elections and renewal of YMCA membership, a General Public Notice regarding Elections of 16 directors of YMCA (which?) was got published in Daily "The NEWS" and Daily "Jung". The copies of newspapers are attached at Annexure C & D respectively for perusal. Detailed Election program was also displayed on the Notice board of Nazir office on 21- 07-2012. The copy of Election Schedule is submitted at Annexure E and as per schedule list of 124 Active members was displayed on 23-07-2012. 7. On 24-07-2012, an objection was filed by one Saleem Khursheed Khokhar against the exercise of undersigned by calling it in Violation of the orders passed by Honourable Courts. He objected that undersigned had failed to take over properties of YMCA, that undersigned is holding election without consultation of provincial Assistant registrar Joint Stock Companies..... thus, they were declared successful being uncontested. The copy of final list of candidates is filed at Annexure L. Therefore, such information was intimated to provincial Assistant registrar Joint Stock Companies for issuance of proper notification. Thereafter , notification was issued by Provincial Assistant Regis trar Joint Stock Companies, the copy of same is filed at Annexure M. 8. The election report is submitted for kind perusal and soliciting further orders in respect of handed over the charge of YMCA to its new elected body along with request that Nazir fee for election may be sanctioned. 7. As it could be seen, this report is so flimsy , non-speaking that it even does not clearly mention which entity' s elections were conducted even this time.
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8. Immediately after these (non-contested) elections dated 16.08.2012 were held, the results were challenged through instant Petition No.D-3073/2012 alleging that those 124 active members as determined by the Nazir of this Court whose YMCA membership registration numbers fell between 34807 to 34914 (Page 311-315) were fake; ignoring the original YMCA society' s members whose registration Nos. started from 1420 onwards. A prayer was made that charge not to be handed over to the newly elected body , as elections were (allegedly) not held in strict compliance of this Court' s and the Apex Court' s orders, as well as, a request for fresh elections was made. 9. This Court through on 30.08.3012 ordered that charge not to be handed over to the new management. On 19.12.2013 CMA 2945/2013 (under Order 1 Rule 10) filed by Khalid Mehmood Masih came up for orders, notices were waived and copies exchanged. On 06.02.2014 it was agreed that the said application be heard along with the main petition. CMA 4447/2014 (under Order 1 Rule 10) filed by Asia Pacific Alliance of YMCA ("YMCA Asia") came up for orders. On 30.04.2014 counsel for the petitioner raised no objections to the addition of Asia Pacific Alliance of YMCA to be impleaded as a party , thus it was added as Respondent No.5. CMA 22019/2017 (under Order 1 Rule 10) filed by YMCA Technical Institute (YMCA TI) came up for orders on 20.10.2017, counsel for the Petitioner and learned AAG raised no objection. Orders were made to implead YMCA TI as Respondent No. 6. Request of YMCA TI to include Nazir on the board of YMCA TI was allowed. Between 16.01.18 till date, strangely it transpired that a tenancy was created in favor of Choudary Muhammad Ameen Khan by Farrukh Harrison acting as Secretary YMCA for a period of 10 years from 26.11.2007 to 25.11.2017, he also executed tenancy agreement with Muhammad Aslam Taj for a period of 5 years in respect of the lands of the YMCA society . On the basis of the tenancy agreement dated 26.11.2007, the tenant filed Civil Suit No. 378/08 in this Court where through SMA 2041/08 his application was allowed subje ct to deposit of rent at the rate of Rs.200 ,000 per month with the Nazir of this Court. Upon expiry of the said term, Nazir moved a reference dated 30.11.201 7 for taking over possession of the said property , which was declined vide order dated 28.02.2018. 10. Importantly the matter of use of lands of YMCA society for wedding functions came to the attention of Hon'ble Supreme Court where in a meeting held on 21.12.2018 under the chairmanship of the Hon'ble Chief Justice, where following directions were issued:- (i)…
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