1. ' AMER RAZA NAQVI, J.---Through this petition, petitioner who claims to be the Chairman of Red Crescent Society Hyderabad Bench has challenged certain orders and actions of respondent No,1 who being DCO is President of Red Crescent Society Hyderabad Branch.
2. ' According to the facts of the case, it appears that the controversy leading to this matter started when circular dated 17-10-2008 was issued in which it was mentioned that triennial General Body Meeting of District Red Crescent Society Hyderabad will be held on Friday 21st November, 2008 at 6-30 p.m. In such meeting among other things it was mentioned that the election of ten members of Executive Committee and of Honorary Treasurer for next three years wilt be held. Notice of such meeting was also go published in newspaper. This circular and notice is available at pages 133 and 135 of the petition. The respondent No,1, it appears was invited to preside over such meeting in consequence thereof the Secretariat of respondent No,1 issued a letter to the petitioner through its DDO (Coord) that DCO/President District Red Crescent, respondent No,1 will not be able to attend the above meeting on 21-11-2008. Thereafter also from time to time elections were postponed at the instance of respondent No,
1. It is alleged in the memo. Of petition that respondent No,1 was postponing the elections and on the other hand started passing illegal and unjustified orders and also started new membership.
3. ' The petitioner has annexed list of members which existed at the time of announcement of election as annexure B to ,the memo. Of petition. This list was also signed by respondent No, 1 . This list was approved on 27-8-2008 by the Executive Committee and it was also mentioned that election scheduled to be held on 21-11-2008 will be held on the basis of this list.
4. ' The petitioner also claims that he was appointed as Chairman of District Red Crescent Hyderabad and such Notification signed by respondent No,1 was issued on 15-4-2008 and as such his term will expire in the year, 2011. Subsequently through various orders challenged in this petition respondent No,1 removed the petitioner No,1 from the Chairmanship and also changed and reappointed the nominated members of Executive Committee.
5. ' The respondents were served and filed para-wise comments. The comments of respondent No,1 were signed by him, however, were sworn by one Abdul Waheed Administrative Officer. The said Abdul Waheed has also filed two counter affidavits in response to Miscellaneous Applications Nos.1585 and 1586 of 2009. The petitioner also filed affidavit in rejoinder to main petition. The respondents Nos.2 to 68 also filed written objections to the main petition, respondent No,3 also filed counter affidavit to CMAs Nos.1585 and 1586 of 2009. In such objections and counter affidavit no document filed by the petitioners is denied, however it is urged mainly that petition is not maintainable.
6. ' Learned counsel for the petitioner argued that actions of respondent No,1 impugned in this petition are based on mala fide and elections were postponed so that after making fresh members it could be rigged and for this purpose the membership form was also changed. He has referred the changed form in which recommendation B and approval of the membership is to be given by the Chairman and the President. He has referred the previous form which is available on record with the affidavit in rejoinder of petitioner No,1 dated 24-6-2009. In such form it is mentioned that approval of membership is to be made by the Executive Committee through some resolution. New form has been filed along with written objections to the main petition filed by respondents Nos.2 to
68. Learned counsel for the petitioner referred rule 37 of Chapter 5 of the Constitution Governing Management, Control and Procedure of the Sindh Provincial Branch and District Branches. This constitution was adopted pursuant to Pakistan Red Crescent Society Act No,XV of 1920 as amended up to November, 1974. Learned counsel also referred to the powers of the President mentioned in Chapter 6 of the same rules and argued that President does not have any power to make members and also to remove Chairman or membership of Executive Committee arbitrarily, and enrolment of members can only be approved by the Executive Committee.
7. ' Learned counsel for the petitioner also argued that Red Crescent Society is creation of Act XV of 1920 and the constitution of Provincial Branch and District Branches is adopted in pursuance of such legislation. He has also referred the Geneva Convention Implementing (Amendment) Act, 1963 and submitted that definition of Society is given in such legislation as Pakistan Red Crescent Society constituted under the Act XV of 1920. Learned counsel referred to impugned order, dated 19-12-2008 which was issued by the Secretariate of respondent No,1 whereby he changed three members of Executive Committee. This letter was issued by the Administrative Officer of Secretariate of respondent No,1 and therefore learned counsel argued that actions of respondent No,1 will be amenable to the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
8. ' Learned counsel argued that in view of section 24-A of General Clauses Act respondent No,1 is required to act justly and fairly and not in arbitrarily manner. To substantiate his arguments that actions of respondent No,1 were mala fide, learned counsel referred letter, dated 30-3-2009 whereby Mr. Muhammad Shakir Memon (respondent No,3) is appointed as Chairman with immediate effect in place of respondent No,1 and on 29-4-2009 respondent No,3 was removed and one Q.M. Hakim was appointed as Chairman and again on 24-4-2009 respondent No,3 was appointed again as Chairman in place of Q.M. Hakim. According to learned counsel for the petitioner, in any event once the elections were announced and the list of members was finalized by the relevant committees and respondent No,1 also endorsed such list nobody can be added to such list till the elections take place. Learned counsel also referred to the letters c issued by the Sindh Provincial Branch. In the first letter dated 2-6-2009, it is mentioned that "with regard to General Body Meeting, the Provincial Committee has decided to suspend the membership enrolment from the day of announcement of the General Body and restore it after general body is held". In another letter dated 6-6-2009 respondent No,1 was asked to maintain status quo for the sake of justice. Learned counsel submitted that ignoring all that respondent No,1 was bent upon to hold elections on 25-6-2009 on the basis of the list which contains members added by respondent No,1 and therefore, the process of elections and other actions mentioned above of respondent No,1 were challenged in this petition.
9. ' Mr. Kamaluddin, learned counsel for respondent No,1 mainly argued that Provincial Red Crescent Society is not an institution which is performing functions in relations to the affairs of Federation, Province or local authority, therefore, is not amenable to the jurisdiction of this Court. He also argued that respondent No,1 while acting as President of the Society is not acting as DCO and therefore is not amenable to the jurisdiction of this Court. He submitted that no cause of action has arisen in favour of thg petitioners and orders which have been challenged do not affect any of the petitioner. He submitted that appointment of Chairman is sole discretion of President. He submitted that petitioner No,1 has tendered resignation on 29-3-2009 and therefore new Chairman was appointed vide order dated 30-3-2009. He further submitted that respondent No,3 has been enrolled as life member and therefore, his membership cannot be cancelled. He referred para 18 of written objections filed by respondents Nos.2 to 68 ant: stated that the membership of respondent No,3 was illegally cancelled and on his representation it was restored by DCO. He submitted that in the list there are 127 members. He argued that Rule 37 of Chapter 6 regarding membership is nut mandatory but directory and therefore can be ignored. In support of his arguments he has relied upon the cases reported in 1997 MLD 2261, 1990 CLC 1766, 1992 SCMR 1093 and PLD 1974 SC 146. In reply to the submission regarding resignation of petitioner No,1, Mr. Jhamat Jethanand submitted that in the order of removal of petitioner No,1 nowhere it is mentioned that petitioner No,1 has resigned and it is not mentioned in such order that in consequence of acceptance of resignation new Chairman is being appointed. In this respect he has referred a document dated 11-6-2009 annexed as Mark-IV to the parawise comments of respondent No,1 in which resignation tendered by Mr. Q.M. Hakim Chairman District Red Crescent Hyderabad was accepted with immediate effect and learned counsel for the petitioner argued that it has not been explained that why a different language has been used in respect of the resignation of Mr. Q.M. Hakim Chairman District Red Crescent Branch Hyderabad.
10. ' Mr. Hassan Mehmood Baig, learned counsel for respondents Nos.2 to 68 has mainly argued that nonjoining of society is inherent defect and therefore petition is not maintainable for non-joinder of necessary party. He has relied upon PLD 1971 Kar. 625, 1986 CLC 2987, 1999 SCMR 16, 2006 SCMR 913 and 1989 SCMR 506.
11. ' Mr. Allah Bachayo Soomro, learned Additional A.G. Has also addressed the Court and supported the learned counsel for respondents. He has referred the membership clauses and argued that for life members there is no requirement of approval of Executive Committee and he also supported the case of respondent No,1 regarding the alleged resignation of petitioner No,1.
12. ' We have heard learned counsel for the parties and learned Additional A.-G. And appreciate their valuable assistance which enabled us to decide this matter.
13. ' So far as the factual matrix of this controversy is concerned there appears to be no serious dispute amongst the parties. Respondents mainly contested the petition on technical grounds and submitted that the society is not person discharging functions in connection with the affairs of Federation, Province or a local authority. We are not impressed by this argument as this society came into being in pursuance of Act XV of 1920 as amended up to February 1974. Besides the point that it is also subject matter of Geneva Convention Implementing (Amendment) Act, 1963. We have also noted the very purposes of the Society mentioned in the Act XV of 1920 particularly section 7 and the first schedule D to such legislation. It is clear that this society is discharging its functions in the affairs of Federation. Moreover the actions challenged in this petition are not of society and therefore, society was not required to be made party. The actions challenged are of respondent No,1 who is undoubtedly a public functionary and law is rapidly developing in this respect and we would like to refer para 23 of judgment of full Bench of this Court reported as 2007 PLC (C.S.) 1046:- -- "What needs to be seen therefore, is what acts of public authorities could be treated as having been taken in violation of law. Even' since the epoch making pronouncement of the Honourable Supreme Court in Benazir Bhutto's case PLD 1988 SC 416, the Courts in Pakistan have managed to rid themselves of the "clinkers" of medieval chains and have viewed rights and liberties in a purposive manner. In Amanullah Khan v. Federation of Pakistan PLD 1990 SC 1090, the Court went on to the extent of holding that the immunity available to the minister is not confined merely to the performance of his functions done in the exercise of his powers but only if such powers are exercised for carrying into effect the intention and purpose of the statute under which he was acting. It was also held that wherever widely worded discretionary powers were conferred such discretion must necessarily be structured so as to achieve high quality of justice. It is well-settled by now that all public powers are in the nature of a trust and public functionaries must act as repositories of such trust."
14. ' We are afraid that regarding maintainability of the petition the extended arguments of respondents that Red Crescent Society is not a person performing functions in relation to Federation, Province or local authority is not sustainable keeping in view the above passage from the judgment reported as 2007 PLC (C.S.) 1046. Even if this argument is accepted that it is merely an association and therefore is not amendable to the jurisdiction of this Court, we may point out that under Article 17 of the Constitution right of association is recognized as fundamental right and we may also point out that special jurisdiction is conferred upon this Court by clause C of Article 199(1) of the Constitution, thereby the High Court shares powers for enforcement of Federal Rights with the original jurisdiction of Honourable Supreme Court under Article 184(3), clause C reads as under:-- "On the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within, the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II."
15. ' We are inclined to hold that right of association includes right to be governed' under the constitution of such association and no one who is a Government official and having an office in the organization by virtue of his official position can be allowed to act contrary to norms of natural justice and in violation of the constitution of such organization and if such actions are taken appropriate directions can be issued by High Court under Article 199 (1)C.
16. ' It is evident from the record that respondent No,1 caused delay of elections till the time new membership was made before the election and voters list was changed. In case new membership at a large scale was deemed necessary general public was required to be invited so that affairs of the organization remain transparent. It is right time that strong message is sent from Courts to all concerned that no action of public. Functionary based on mala fide shall be allowed to be sustained in name of discretion and Courts have jurisdiction of judicial review to securitize such actions and minor technicalities shall not come in way of administration of justice by the superior Courts, while exercising constitutional jurisdiction.
17. ' We have examined the case-law referred by Mr. Kamaluddin Advocate and have come to the conclusion that the facts and circumstances of those case are entirely different, they are mostly in the matters of service where Defence Housing Authority, Institute of Chartered Accountant of Pakistan, Law College, University of Punjab and National Shipping Corporation were not found amenable to the constitutional jurisdiction in the matters of service of their employees whereas in 1990 CLC 1766 the petition was allowed. Likewise the case-law referred by Mr. Hassan Mehmood Baig Advocate pertains to the cases where in civil suits certain parties were found necessary for adjudicating the matters justly and fairly, whereas in the present case we are called upon to exercise constitutional jurisdiction to scrutinize actions of respondent No,1 which are apparently mala fide in view of the documents placed on record by the parties and which are not disputed, therefore, in such circumstances we have come to the conclusion that when whole exercise carried out by the respondent No,1 was based on mala fide, his actions and orders cannot be allowed to be sustained in view of the fact that it is evident that entire exercise was intended to get desired result in the election to be held on 26-6-2009.
18. ' These are the reasons for our short order announced on 26-6-2009. Since all the learned counsel agreed that petition be heard and disposed of at E katcha peshi stage, petition was heard and dispose of by short order announced on 26-6-2009.