Full Judgment Text & Judicial Ruling

2009 C L D 1013

2009 C L D 1013

[Karachi]

Before Azizullah M. Mamon and Khalid Ali Z. Qazi, JJ

Messrs YOUNG MEN'S CHRISTIAN ASSOCIATION (YMCA) through President---Petitioner

Versus

GOVERNMENT OF SINDH through Secretary Social Welfare and Women Development Department Karachi and 3 others--Respondents

C.P. No. D-330 of 2005, C.M.As. Nos. 5573, 5995 of 2005, 697, 868, 1525, 2730, 6893, 8102, 8819, 8880, 8912, 8880, 8912 of 2006, 342, 343, 453, 1296, 7395 of 2007, 70, 71, 1253, 2708, 2709, 5325, of 2008 decided on 30th January, 2009.

(a) Civil Procedure Code (V of 1908)---

----S. 11---Res judicata---Declaration given by Court in respect of issues, which were decided---Validity---Orders of Court must he respected---Such declaration was res judicata.

Pir Baksh v. Chairman, Allotment Committee PLD 1987 SC 145 rel.

(b) Constitution of Pakistan (1973)----

----Art.199---Voluntary Social Welfare Agencies (Registration and Control) Ordinance (XLVI of 1961), S. 4---Constitutional petition--Supersession of Governing Body of Association through Notification of Provincial Government---Order of High Court disposing of constitutional petition after setting aside such notification with directions to its Nazir to prepare voters list and conduct of election---Entertainment of interlocutory applications by High Court after passing such order---Objection of petitioner that such order had rendered such applications to be infrucutuous---Validity---Judges having disposed of constitutional petition were not available---Such application had been entertained by Judges other than those having authored such order---Directions contained in such order to hold elections were yet to be brought to their logic end---Such objection was overruled in circumstances.

Capital Development Authority v. Khuda Baksh 1994 SCMR 771 and Abbas Khaleeli v. Saifuddin PLD 1969 Kar. 692 ref.

Capital Development Authority v. Khuda Buksh 1994 SCMR 771 rel.

(c) Constitution of Pakistan (1973)---

----Art.199---Election dispute---Quo warranto, writ of---Scope---person not being a losing candidate, could challenge election by way of such writ.

Muhammad Afsar Khan v. Muhammad Amin Khan Tareen PLD 1983 Pesh 234 ref.

Abdul Wahid v. Din Muhammad PLD 1982 Lah. 168 rel.

(d) Election---

---Election could not be annulled or vitiated in absence of violation of electoral rules/law materially affecting electoral results.

Behram Khan v. Abdul Hameed Khan Achakzai PLD 1990 SC 352 rel.

(e) Constitution of Pakistan (1973)---

----Art.199---Voluntary Social Welfare Agencies (Registration and Control) Ordinance (XLVI of 1961), S.4---Constitutional petition---Supersession of Governing Body of Association through Notification of Provincial Government---Setting aside of such notification by High Court with directions to its Nazir to prepare voters list, notify date of election and conduct of election---Entertainment of fresh voters by Court vide order, dated 12-12-2006 after conduct of election on 10-12-2006---Application for setting aside such election on the ground that Nazir had not given in press any public notice for holding of election and inviting interested persons to approach him with evidence of membership---Validity---Preparation of voters list and conduct of elections had been pursued without issuing proper notices in press to all concerned---Record showed that under Court's order, dated 12-12-2006, new voters approached Nazir, who allowed them to become a party to Electoral College---Some 113 members through interlocutory applications had also shown prima facie evidence in terms of membership cards of the Association--If claim of such new voters was entertained and found genuine, then same would not materially affect result of such election---Eligible voters had been disenfranchised without a proper opportunity due to non-issuance of such public notice by Nazir---Entire process of election was violative of natural justice and against welfare of the concerned community---High Court declared such election and voters list prepared by Nazir to be void ab initio for being against concept of due process of law and in breach of natural justice.

Ghulam Ghous v. Muhammad Refique Khan PLD 1982 Karachi 872, Hakim Ali v. Deputy Commissioner/Election Tribunal PLD 1982 SC 172; Khushi Muhammad v. Kabir Ahmed PLD 1983 Lah. 250; Behram Khan v. Abdul Hameed Khan Achakzai PLD 1990 SC 352; Mauzam Hanif v. Settlement Officer 2006 SCMR 642; Abbas Khaleeli v. Saifuddin PLD 1969 Kar. 692; Maulana Maudoodi v. Government of West Pakistan PLD 1964 SC 673 and Amina Begum v. Ghulam Dastagir PLD 1978 SC 220 ref.

Ahab Shahan Mirani v. President of Pakistan 1998 SCMR 1863 rel.

M. Aqil Awan and M.M. Tariq for Petitioner.

M. Sarwar Khan, Addl. Advocate General, Sindh and Nafis Usmani, A.A.-G. along with Muhammad Yousaf Channa, Assistant Social Welfare Department for Respondents Nos.1 and 2.

Respondent No.3 in Person.

Zahid Hamid for Respondent No.4.

Dr. Farogh Naseem and Munawar Hussain for Interveners.

Muhammad Ashraf Mughal, D.A.-G.

Farid Anwar Qazi, Special Assistant MIT-II.

Dates of hearing: 7th, 21st, August, 2008, 20th, 27th, October, 2008, 10th, 12th, 20th, 24th November, 2008, 1st and 15th December, 2008.

JUDGMENT

KHALID ALI Z. QAZI, J.---This is a disposed of petition having heard the listed interlocutory applications and references at considerable length it shall be both in the interest of justice and convenient to dispose of all the sank through the following common order.

2. The brief facts of the case are that the petitioner .is the Young Mens' Christian Association (YMCA) bearing Registration No. 39 of 1913, registered under the Societies Registration Act, 1860 (hereafter: "the 1860 Act"). The Sindh Government Social Welfare Department through a Notification, dated 16-3-2005 superseded the Governing Body of the YMCA, while appointing a caretaker body to administer the said Association. One Rev. Father Joseph Paul was appointed as the Administrator of the caretaker body in terms of which he was assigned the task of carrying out the audit and holding of elections. This action was taken by respondent No. 1 in view of the massive complaints against mismanagement and embezzlement in respect of the petitioner. .The petition essentially called into question the notification of the Government of Sindh, dated 16-3-2005.

3. Very importantly, this Court by a consent order, dated 6-10-2005 disposed of the petition along with all the interlocutory applications, setting aside the notification, dated 16-3-2005. In the said order the Nazir of this Court was directed to prepare a voters' list, after taking over all the records of membership. The Nazir was to notify the date of elect ions within 60 days and in the meanwhile he was assigned the power of the Governing Body of the YMCA. The Nazir was also to ensure the carrying out the audit of the accounts of the YMCA through a qualified auditor. Through a subsequent order, dated 17-11-2005 the Nazir was further authorized to operate the bank accounts of the YMCA so as to run the day-to-day affairs of the YMCA. Consequently, through this order (i.e. dated 17-11-2005) a restraint order was issued to the effect that "none of the members claiming any right and/or interests In the membership of the association or in office of Association shall deal with the estate and/or the property and/or accounts of the Association by the name of YMCA'. This clearly meant that, apart from the Nazir of this Court none was allowed to deal with any property or funds of the YMCA.

4. Through order, dated 9-12-2005 the Court further modified its earlier order, dated 17-11-2005 in that instead of the Nazir alone a three-member committee comprising the Advocate General, Sindh, the member inspection Team of the Sindh High Court and the Nazir was appointed so as to run the day-to-day affairs of the YMCA the Advocate General, Sindh, however, was permitted to depute any other law officer in his own place. The bank accounts and properties of the YMCA were to be managed by the above mentioned three-member committee, instead of the Nazir alone. Through the latter order i.e., dated 9-12-2005, the interim order passed earlier, dated 17-11-2005 was further reinforced by reiterated that no contract of construction was to be given effect and that no contending party could claim that it represented the YMCA.

5. In the order, dated 9-12-2005 it was further recorded that the Nazir had complained against the behaviour and misconduct of Rev. Father Joseph Paul, Saleem Khurshed Khokhar and Fazal Shahzad. These persons were said to be interfering and creating hurdles in the work of the Nazir; as such the Court restrained all the parties from interfering in the working of the Nazir and in particular directed Rev. Father Joseph Paul, Saleem Khurshed Khokhar and Fazal Shahzad to furnish sureties of good behavior and conduct iii the sum of Rs.10,000 each to the satisfaction of the Nazir. The proposed elections were deferred till the audit of accounts of the association by a Chartered Accountant appointed by the committee. In view of the allegations of misappropriation, the Court vide the same order, dated 9-12-2005 also directed Mr. A.D. Khawaja, the then Director Anti-Corruption, Sindh to hold an inquiry into the affairs of the YMCA, examine the matter of financial corruption and submit his report.

6. While the above interim arrangement had been made and the three-member committee was also in the process of preparing an electoral roll so as to facilitate the elections, the Court was laced with a three set of contenders, which are discussed as follows:--

(a) one party maintained that the true YMCA was the one which was registered under the 1860 Act;

(b) the second group contended that the true YMCA was the one which was constituted under the Voluntary Social Welfare Agencies (Registration arid Control) Ordinance, 1961 (hereafter: "the 1961 Ordinance");

(c) yet the third set of persons was of the view that in reality the genuine YMCA was the one which had been constituted under the Companies Act, 1913 (as amended by the Companies Ordinance, 1984).

7. Subsequently, this Court recorded another consent order, dated 2-11-2006, which has a material bearing on the matter. The said order is to the following effect:-

(a) Mr. A.D. Khawaja, Director, Anti-Corruption, who had been appointed vide order, dated 9-12-2005, had submitted a report into the financial corruption against some of the office bearers and members of the YMCA. Directions were issued to convey the said report to the I.G. Police of Sindh for taking appropriate action under the law;

(b) Mr. Henry Pley, Principal of the YMCA School, had dismissed certain leachers. These teachers were reinstated with back benefits. Mr. Pley was, however, put under suspension and the committee was to decide his fate;

(c) it was conspicuously ordered that the YMCA Polytechnic was held to be an entity independent of the main YMCA. The new committee was also to run the administration of the YMCA Polytechnic;

(d) most importantly, it was held that the entity under the 1961 Ordinance was to be considered as valid and legitimate and consequently the subsequent registration of the said entity under the Companies Ordinance was declared to be unlawful;

(e) the committee was to prepare a voters' list in respect of the entity registered under the 1961, Ordinance and hold elections in accordance with the bye-laws of the latter entity;

(f) before holding of the elections the Nazir was to give notice of the election schedule as well as the list of members of the YMCA to all the concerned.

8. The order, dated 2-11-2006 attained finality as no party filed any petition appeal thereagainst before the Apex Court. Although the fate of the entity under the 1860 Act was not expressly dilated upon in the order, dated 2-11-2006 but by necessary implication even the latter entity stood invalidated. The reasons for this is simple. It was clearly held in the order, dated 2-11-2006 that the entity registered under the 1961 Ordinance was to be considered as the valid and legitimate YMCA. This finding clearly eclipsed any other stance contrary thereto including and not limited to the contention that the entities under the 1860 Act or the Companies Ordinance were invalid. The Court orders are to be respected. A declaration given by the Court is res judicata in respect of the issues that are decided (see Pir Bakhsh v. Chairman, Allotment Committee PLD 1987 SC 145). Furthermore, it can he rather counter-productive to disturb such findings given by the Courts as after all we are dealing with an institution of public trust and the Courts have to step in so as to protect not only the plunder and loot occasioned to such institutions by venal office-bearers and their cronies but also avoid letting loose an imbroglio of uncertainty with regards the status of such an entity. In the ultimate analysis we are of the considered view that it is imperatively in the interest of the Christian community to understand that the Court vide order, dated 2- 11-2006 has already decided with surgical incision and irreversible finality that the valid entity is that YMCA which is registered under the Voluntary Social Welfare Agencies (Registration and Control Ordinance, 1961; and no other entity including the one registered under the Societies Registration Act, 1860 or under the Companies Act, 1913 (as amended by the Companies Ordinance, 1984) can he considered to be legitimate. Therefore the Court and authorities so also the members of the YMCA and the public at large have to proceed on the assumption that the entity under the 1961 Ordinance is the only valid entity in view of Court's order, dated 2-11-2006 attaining finality.

9. It appears that the committee comprising the A.G. Sindh, Member Inspection Team and the Nazir finalized the voters' list and elections were conducted on 10-12-2006.

10. At this juncture, it is important to point out that certain persons claiming to be the valid members of the YMCA complained that they were unlawfully and malafidely excluded by the Nazir from the voters' list. Again by Court order, dated 12-12-2006 it was directed that the respondents Nos.3 and 4 (i.e. Rev. Father Joseph Paul and Saleem Khurshed Khokhar) or anyone else could approach the committee headed by the A.G. Singh with evidence of their membership and then cases shall be decided after hearing them. The committee was directed to file a final report after such an exercise. In the meanwhile the Directors of the YMCA who stood elected in view of the elections held on 10-12-2006 were restrained from assuming office.

11. Thereafter applications were filed before this Court in which the applicants claimed that they were the bona fide members of the YMCA but had no notice of approaching the Nazir to establish their membership. Again some applications were filed seeking impleadment in the matter.

12. Mr. Aqil Awan, the learned counsel for the petitioner has contended as follows:--

(a) no relief could be granted to any intervenors in a disposed of petition, the present petition having been disposed of on 6-10-2005;

(b) the office bearers were duly and validly elected through elections, dated 10-12-2006 and hence the Directors/ office-bearers so elected may be allowed to assume their functions;

(c) the elections held on 10-12-2006 cannot be challenged by any person who was not a losing candidate. As such the interlocutory applications having been filed by persons other than the losing candidates are not maintainable. In this regard the learned counsel has placed reliance upon Muhammad Afsar Khan v. Muhammad Amin Khan Tareen PLD 1983 Pesh 234;

(d) discrepancy in the voters' list pertains only to a few voters whereupon the nullified election results cannot be nullified unless it is shown that the same materially affected the electoral results. In this regard reliance is placed on Ghulam Ghous v. Muhammad Refique Khan PLD 1982 Karachi 872, Hakim Ali v. Deputy Commissioner/Election Tribunal PLD 1982 SC 172, Khushi Muhammad v. Kabir Ahmed PLD 1983 Lah.250 and Behran Khan v. Abdul Harmed Khan Achakzai PLD 1990 SC 352.

13. Mr. Saleem Khurshid Khokhar (respondent No.3 in person) contended that the petitioner has not come to the Court with clean hands. He categorically assailed that the persons behind the tiling of the instant petition are singularly responsible in looting the YMCA. In this regard he has placed reliance upon Mauzam Hanif v. Settlement Officer 2006 SCMR 642. The respondent No.3 further stressed that the persons filing the petition are guilty of fraud and forgery and even the bye-laws filed by them in respect of the petitioner are fake. He, however, contended that the true YMCA is although registered under the 1860 Act, it is not the one claimed by the persons tiling the petition but the one relied upon by the respondent No.3.

14. Dr. Farogh Naseem, the learned counsel appearing for the interveners in C.M.A. Nos. 342 and 343 of 2007 contended as follows:--

(a) the present proceedings are in the nature of public interest litigation and hence the Court must adopt a inquisitorial rather than an adversarial procedure;

(b) reliance was placed on Desmond Vaz v. KRCA PLD 2005 Karachi 164 to contend that no procedure was prescribed in respect of filing of a constitutional petition; hence in the absence of rules framed by the High Court the exercise of power under Article 199 could not be circumscribed or limited. On the strength of the latter principle it was contended by the learned counsel that the interlocutory applications filed after disposal of the petition should be treated as constitutional petitions in their own right since the words contained in Article 199 of the Constitution clearly stipulate that such jurisdiction could have been invoked through the filing of "an application";

(c) reliance was also placed on Capital Development Authority v. Khuda I3ukhsh 1994 SCMR 771 for the point that orders could be passed on miscellaneous applications in a disposed of constitutional petition;

(d) vide order, dated 12-12-2006 the Court had entertained and facilitated the induction of fresh members into the electoral college. Hence the elections held on 10-12-2006 stand tacitly annulled. Therefore it is imperative that the Court should facilitate the holding of fresh elections after preparation of a genuine voters' lists;

(e) it was further contended that in C.M.A. No.342 of 2007 some 113 persons are claiming to be the genuine members of the YMCA. This can hardly be considered as a trivial number. If these 113 members are allowed to participate in the elections, the same shall have material bearing on the outcome of the election results; reliance was further placed on the case of Abbas Khaleeli v. Saifuddin PLD 1969 Karachi 692 for the point that. in matters of private associations and bodies, any violation in the rules, regulations or bye-laws can be the basis of judicial interference at behest of persons who may not necessarily be the losing candidates in the elections. Dr. Farogh Naseem contended that the requirement of locus standi vis-a-vis the losing candidates of elections is only applicable to the elections under the Represen tation of the People Act, 1976 or under any special law which may prescribe this requirement of locus stanch;

(g) it was further stated that in terms of the order, dated 2-11-2006 the Nazir had to give notices to all concerned before the preparation of the voters' list and also for the schedule of elections. No such notices were given in the press prior to elections held on 10-12-2006 and the interveners in question only found out about the preparation of the electoral list and the holding of the elections subsequent ' to the subject elections themselves. As such the said persons have been disenfranchised in breach of natural justice;

(h) according to the learned counsel the elections arc null and void and in view of the massive bunglings in the affairs of the YMCA, its accounts should be audited:

(i) further reliance was placed upon the case of Maulana Maudoodi v. Government of West Pakistan PLD 1961 SC 673 and Amina Begum v. Ghulam Dastagir PLD 1978 SC 220 for the points that the Court is empowered to grant relief even which is not expressly prayed and also that the Court is competent to take into account subsequent events.

15. Mr. M. Sarwar Khan the learned Additional Advocate General, Sindh has submitted as follows:--

(a) the electoral list prepared by the committee/Nazir was detective since a public notice ought to have been given in the press inviting the interested persons to approach the Nazir with evidence for the purposes of constituting the electoral list. Also no notice was given by the Nazir in the press prior to the holding of the elections. As such the entire electoral process is not only against the Court orders, dated 6-10-2005, 9-12-2005 and 2- 11-2006 but also against the principles of natural justice;

(b) there are rampant mis-appropriations effected by centaur members of the Christian Community including one Farrukh Harrison and the persons behind the filing of the instant petition, who despite Court orders have embezzled and encumbered the properties and funds of the YMCA. As such a request has been made by Mr. Sarwar to appoint a new committee comprising Mr. Moinuddin Ahmed, the Deputy Registrar of this Court along with the Bishops of the Anglican and Protestant Churches in Karachi to prepare the electoral list, conduct the elections, facilitate the audit of accounts and also fix responsibility upon persons responsible for embezzling the funds of the YMCA, while !miller reporting the matter to the Police, which in turn be directed to take stringent actions against the recalcitrants.

16. We have heard the rival contentions, perused the record .und the law on the subject.

17. Before any further discussion, a preliminary point is required to be addressed at the outset. Mr. Aqil Awan the learned counsel for the petitioner has objected to References Nos. 1 and 2 of 2008 filed by the Advocate General on 2-4-2008 and 12-4-2008; on such dates Dr. Farogh Nascent being the Advocate-General was the head of the three member committee responsible to run the affairs of the YMCA. According to Mr. Aware, Dr. Farogh Nascent was already representing certain intervenors in the matter. A perusal of the said References Nos. 1 and 2 of 2008 reveal that they have been authored and signed by Mr. Sarwar Khan as the Additional Advocate General Sindh and not Dr. Farogh Nascent. Mr. Sarwar Khan, the learned Additional Advocate-General has clarified that of assuming the office of the Advocate General Sindh, Dr. Farogh Naseem had issued clear instructions to the Advocate General's Office that in all matters requiring the inputs of the advocate General in which he may have a conflict of interests in view of any earlier representation as counsel for any client or otherwise the matters should not be even put up before him but rather before the senior-most Additional Advocate-General at Karachi, who was Mr. Sarwar Khan. Accordingly all the files and case papers of this case were put up before Mr. Sarwar Khan, who has further stated that in view of the massive misappropriations and in order to save the YMCA, he had formulated the two references but without any intervention of or discussion with Dr. Farogh Naseem. A perusal of the two References filed by Mr. Sarwar Khan reveal that they are neutrally worded without taking any sides. Reference No.1 is in relation to the main YMCA whereas the Reference No.2 is in respect of YMCA Polytechnic. Both the References are aimed that protecting the interests of the YMCA and enabling it to become a viable entity. The contention of Mr. Aqil Await in this regard is found to be most uncharitable, incorrect and is hereby rejected.

18. This brings us to the contention of Mr. Aqil Aware, Advocate that the interlocutory applications an. misconceived and cannot be decided, as the petition has already been disposed of. The contention of Mr. Awan is squarely answered by the judgment reported as Capital Development Authority v. Khuda Bakhsh 1994 SCMR 771 wherein a full bench of the Hon'ble Supreme Court has been pleased to hold that miscellaneous applications in a disposed of constitutional petition can be entertained by the High Court, subject to the following:--

(a) if the miscellaneous applications are treated as fresh proceedings tinder Article 199 of the Constitution it may not be heard by the same Judges who had disposed of the petition;

(b) if the miscellaneous applications are not considered as fresh proceedings Olen they are to be heard by the same Judges who had disposed off the matter, provided that such Judges are available;

(c) if the High Court was satisfied that the circumstances of the case justified conversion of the…

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