' 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 convenience to dispose of all the same 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(hereafter: "the 1860 Act"): The Sindh Government Social Welfare Department through a Notification, dated 16- 3-2005 superseded the Governing Body of the YMCA, while appointing a caretaker body to administer the said Association.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 elections 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 of 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 reiteration 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 behaviour and conduct in 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 faced 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 he true YMCA was the one which was constituted under the Voluntary Social Welfare Agencies (Registration and 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 teacher. 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 or 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 out by necessary implication even the latter entity stood invalidated. The reasons for this are 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 be rather counterproductive 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 to 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, 198'4) can be considered to be legitimate. Therefore, the Court and authorities so also the members of the YMCA and the publicat- 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 Advocate-General 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 Khursheed Khokhar) or anyone else could approach the committee headed by the Advocate-General, Sindh with evidence of their membership and their 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 implement 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 Behram Khan v. Abdul Hameed 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 filing 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 filing 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.As. 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. KBCA 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 stipulates that such' Jurisdiction could have been invoked through the filing of "an application";
(c) reliance was also placed on Capital Development Authority v. Khuda Bukhsh 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 Kar. 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 Representation of the People Act, 1976 or under any special law which may prescribe this requirement of locus standi 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 are 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 1964 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 defective 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 misappropriations effected by certain 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 further reporting the matter to the Police, which in turn be directed to take stringent actions against the recalcitrant.
16. We have heard the rival contentions, perused the record and 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. Parogh Naseem being the Advocate-General was the head of the three-member committee responsible to run the affairs of the YMCA. According to Mr. Awan, Dr. Farogh Naseem 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 Naseem. Mr. Sarwar Khan, the learned Additional Advocate-General has clarified that on 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 of Dr. Farogh Naseem. A perusal of the two References filed by Mir. 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 o become a viable entity. The contention of Mr. Aqil Awan in this regard is found to be most uncharitable, incorrect and is hereby rejected.
18. This brings us to the contention of Mr. Aqil Awan, Advocate that the interlocutory applications are 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 Honourable 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 under 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 then they are to be heard by the same Judges who had disposed of 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 miscellaneous applications in a disposed of matter into fresh proceedings under Article 199 of the Constitution, there was no legal bar for such conversion of such proceedings.
19. It would be seen that this petition was disposed of vide order, dated 6-10-2005 by a learned Division Bench of this Court comprising Mushir Main and Syed Zawwar Hussain Jaffrey, JJ, Both the said learned judges are not available In this Court. Even otherwise the miscellaneous applications, after the disposal of the matter on 640.2005, were being entertained by learned Judges other than the learned Judges who had authored the order, dated 6-10-2005, without any objection from any of the parties in particular the petitioner. In terms of, the order, dated 6-10-2005, by which the petition was disposed of, clear directions were given to the Nazir of the Court to conduct the elections. The directions contained in the order, dated 6-10-2005 to hold the elections were to be brought to their logical end. Therefore, to contend that the disposal of the petition vide order, dated 6-10-2005 has rendered all subsequent applications to be infructuous is again fundamentally fallacious. This objection of Mr. Awan is hereby repelled.
20. The next submission of Mr. Awan that apart from a losing candidate no one else could have the locus standi to impugn the elections is again based upon some misunderstanding. The requirement that only the losing candidate can impugn the elections is provided under the special laws, such as the Representation of the Peoples' Act, 1976. In the judgment relied upon by Mr. Awan Muhammad Afsar Khan v. Muhammad Amin Khan Tareen PLD 1983 Pesh 234 the reason why the petitioner was non-suited was because under section 39-A of the N.-W.F.P. Local Government Ordinance, i979 no election could be called into question except through an election petition preferred by a losing candidate. In fact It is now a settled proposition of law that persons who are not losing candidates can challenge the elections by way of a writ of quo warranto (see Abdul Wahid v. Din Muhammad PLD 1982 Lah. 168 and Saeeda Begum v. Muhammad Ajmal Khan 1981 CLC 620.
21. The next contention of Mr. Awan that unless and until it can be shown that the violation of the electoral rules/laws will materially upset the electoral results, the elections cannot be annulled or vitiated, seem to be correct on the legal plane. The judgment of Honourable Supreme Court reported as Behram Khan v. Abdul Hameed Khan Achakzai PLD 1990 SC 352 has been correctly relied upon by Mr. Awan for the legal proposition canvassed by him. However, from the record it is rather clear that the Nazir in preparing the electoral list and conducting the elections as pointed out by Mr. Sarwar Khan, the learned Additional Advocate-General, has clearly violated the mandate of the Court orders, dated 6-10-2005 and 2-11-2006. The preparation of the electoral list and the conduct of the elections were pursued without issuance of proper notices to all concerned.
The only way the "all concerned" could have been notified was by issuing public notices in the press, which was not done. Perhaps it was for this reason that the Court vide order, dated 12-12- 2006 had entertained fresh voters even after the conduct of elections on 10-12-2006. No appeal against the order, dated 12-12-2006 was filed by the petitioner or any other person. The order, dated 12-12-2006 to the extent of directing the new voters to prove their genuineness before the Nazir was not in terms of any interim directions. The record reveals that after directions, dated 12- 12-2006 new voters had approached the Nazir/Advocate-General who was pleased to allow some new persons to become a party to the Electoral College. By necessary implication the order, dated 12-12-2006 had annulled the elections held on 10-12-2006. Furthermore, through the pending interlocutory applications, in particular, C.M.A. 342 of 2007 some 113 members have shown prima facie evidence in terms of membership cards of the YMCA. Thus it cannot be said that if the claim of the new voters was entertained and found genuine, the outcome of the elections results, dated 10-12-2006 would not be materially affected. Even otherwise when the Nazir had failed to issue a public notice in the press inviting proposed members to come up with evidence of their membership, it seems that the entire process is in breach of natural justice and against the welfare of the Christian community, the eligible voters having been disenfranchised without a proper opportunity. We have been able to lay our hands on a judgment of the Full Bench of the Honourable Supreme Court reported as Aftab Shaban Mirani v. President of Pakistan 1998 SCMR 1863 wherein the concept of "due process of law" was summarized to mean as follows:--- "(1) He shall have due notice of proceedings which affect his rights.
(2) He shall be given reasonable opportunity to defend.
(3) That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and
(4) That it is a Court of competent jurisdiction."
22. The electoral/voters' list prepared by the Nazir/Advocate General thus far and the election, dated 10-12-2006 are thus void ab initio, being against the concept of due process of law enshrined in Article 4 of the Constitution and also being in breach of natural justice.
23. The YMCA is an important institution which requires to be protected from plunder and loot.
Those responsible for bringing the YMCA to such a state of affairs are required to be brought to justice. Also despite repeated Court orders for audit of accounts by a chartered accountant, this has not been achieved. Despite interim orders, unauthorized persons have encumbered the YMCA properties.
24. In light of the above and with a view to save the YMCA from the clutches of plunderers and looters, Mr. Moin-ud-Din Ahmed, now the Nazir of this Court, is appointed as an Administrator of the YMCA in supersession of the earlier committee. The appointment of Mr. Moinud-Din is by name and shall not be affected by his transfer on retirement.
25. The scope of work of the Administrator i,e, Mr. Moin-ud-Din Ahmed is ordered to be as follows:-- -
(a) to run the day to day affairs of the YMCA;
(b) issue proper notice in the press and thereafter constitute an electoral college/voters'/ list/membership list for the YMCA;
(c) the Administrator is authorized to issue membership cards;
(d) the final voters' list be placed on the notice boards of the YMCA;
(e) subsequently a notice for the conduct of the elections be issued in the press on the basis of the final voters' list/electoral college;
(t) conduct elections and the charge be handed over to the new management;
(g) the Administrator is permitted to operate the bank accounts and appropriate expenses for conducting the scope of work assigned to him;
(h) to take over all the properties, whether movable or immovable and manage the same;
(i) after notice to the concerned, the Administrator may cancel any contract of lease, hire, sale, encumbrance, rentals given for the holding of marriages or otherwise if such contracts are entered/executed unauthorisedly or against the bye-laws;
(j) facilitate the conduct of an audit from a firm of Chartered Accountants. On the basis of such audit report responsibilities may be fixed and efforts be made to recover any embezzled amount from persons found responsible and to take criminal and civil action against such responsible persons including the lodging of F.I.R. It is clarified that after conduct of an enquiry themselves and before the conduct of the audit, if the proofs/evidence is so obvious the Administrator can take appropriate civil/criminal action including for lodging of F.I.R. Against the responsible persons;
(k) in case any YMCA property has been parted unauthorisedly or against the bye-laws, to take over such property with police aid;
(1) Protect the YMCA using police aid or any other mode available including the posting of guards and Chowkidars or removing unauthorisedly posted Chowkidars/guards;
(m) no property be encumbered, sold, leased out;
(n) assume all the powers of the Governing Body of the YMCA;
(o) the Administrator to withdraw Rs,25,000 per month for himself as his fee in addition to any expenditures;
(p) the power to hire/fire any employee in its own discretion and the employees to follow the Administrator's orders;
(q) it is clarified that in conducting any inquiry the Administrator may take the benefit of any other inquiry report such as that of Mr. A.D. Khawaja already on record but in his own discretion;
(r) to do all and sundry so as to make the above work possible.
26. The Administrator Mr. Moin-ud-Din Ahmed is granted six months time to complete the above job.
27. In relation to the YMCA Polytechnic Institute it is clarified that this Court has already held vide order, dated 2-11-2006 that the said YMCA Polytechnic Institute is an entity independent from the main YMCA. Mr. Moin-ud-Din Ahmed is also appointed an Administrator to manage the YMCA Polytechnic Institute. After proper elections of the main YMCA a Governing Body of the YMCA Polytechnic Institute can also be constituted according to the operative by-laws/rules. Powers of the Administrator in respect of managing the affairs of the YMCA Polytechnic Institute will be the same/similar to the power he would exercise in managing the main YMCA, mutatis mutandis. For managing the YMCA Po)ytechnic no separate fee shall be appropriated by the Administrator except the expenditures.
28. All the listed applications and references are disposed of in terms of the above order, requiring no individual treatment.