' MUSHIR ALAM, J.---Petitioner, elected MPA, Sports Minister Sindh, Sports Advisor to the Governor Sindh, Member Board of Governors of Pakistan Cricket Board, President Regional Pakistan Cricket Board and President of Karachi City Cricket Association, desirous to contest the election for President Karachi City Cricket Association for the year, 2010, was declined to contest election on the ground of Ogibility. Petitioner is engaged in correspondence with respondents viree January, 2010, objections to the manner in which elections are being conducted by the Election Commissioner, PCB respondent No,2 herein. Several letters have been exchanged between the petitioner and the respondent No,2. Lastly through reply, dated 7th May, 2010, the election commissioner wrote as under; ' 7th May, 2010.
' Dr. Syed Muhammad Ali Shah, ' President KCCA, ' I am in receipt of your letters, dated 6th May, 2010, wherein you have sought permission to contest the election of Karachi City Cricket Association.
' In view of the Election Rules and Regulations, elected representative (MPA), Ministers (Sports Minister) are not eligible to contest the Elections of District and City Cricket Association, therefore, it is regretted that your request cannot be entertained. In addition I would like to clarify that above mentioned rules are being applied as such throughout Pakistan.
' Quote ' Not an office bearer of any political party including legislators, office bearer, elected representative, Minister, Senator, MNA, MPA, MLA, Nazim, Naib Nazim, Councilor or person who is contesting election on the platform symbol, flag or draws financial or material support from a political, religious, Ethnic or Sectarian party"
' The election of Karachi City Cricket Association will be held on 22nd May, 2010 as scheduled.
With regards (Sd.)
Election Commissioner.
2. It the case of the petitioner that the Election Regulations have not been approved by the Federal Government as per requirement of Paragraph 38 of the Constitution of Pakistan Cricket Board, 2007, (abbreviated PCB Constitution 2007), same being null and void cannot be invoked to conduct PCB elections. Petitioners claims that his elected position cannot be treated as a disqualification, firstly no election Regulations have been farmed under the PCB Constitution, 2007 and secondly Mr. Ayaz Soomro, who is also elected MPA and Law Minster, Government of Sindh, has recently contested election of Sindh Bar Council, therefore, petitioner is also qualified and eligible to contest election of PCB 2010. It is further prayed that respondents may not hold election of PCB 2010 without approval of Election Regulation from the Federal Government, as required under Article 38 of the Constitution of PCB 2007.
3. Ms. Saify Ali Khan learned counsel for the petitioner strenuously argued that as per Paragraph 38 of the PCB Constitution, 2007 the power to make Election Regulation vest in the Governing Board, with the approval of the Federal Government. Governing Board may make regulations inter alia "holding of elections by the regional Cricket Associations and the District Cricket Association and for Constitution of their supreme bodies". According to Ms. Saify Ali Khan, Election,. Regulations have not yet been approved by the Federal Government; elections arp being held per Election Regulation framed under the repealed Constitution of PCB 1995. According to the learned counsel for the petitioner, election 2010 proposed to be held by the Pakistan Cricket Board is in violation of its Article 38 of Constitution of PCB 2007 and election cannot be held as per rules framed under the repealed Constitution, 1995.
4. Ms. Saify Alai Khan, learned counsel contended that such breach of law was brought to the notice of respondents through various representations since 22-1-2010, but no heed is paid. It is further contended that through communication, dated 6-5-2010 it was also brought to the notice of Election Commissioner, the respondent No,2 herein that number of duly elected MNA and MPA have been elected and are contesting election, therefore, the petitioner is also entitled to contest election. Beside citing Law Minister, Sindh, who contested and was elected as Member Sindh Bar Council, she has also placed on record, name of various elected representative who hold elected position in various sports federation namely Mr. Qasim Zia (MPA from Punjab), who is President Pakistan Hockey Federation, Mr. Faisal Saleh Hayat (MNA), who was elected as President Pakistan Football Association, and some others who are not elected representatives.
5. Question mooted was whether the PCB election could be held under Election Regulation framed under Repealed PCB Constitution, 1995, on 20-5-2010 when the matter came up for consideration before this bench, attention of both the learned counsel was drawn towards section 24 of the General Clauses Act, 1897 which provides that Rules and Regulations framed under repealed enactment, are saved unless otherwise expressly done away with or substituted by other rules and regulations on the subject or where the rules or regulations are in conflict with the re-enacted PCB Constitution, 2007 and they were directed to come prepared. o. Today, when the matter came up for hearing Ms. Saify Ali Khan has drawn our attention to section 49(2) of the PCB Constitution, promulgated on 18-10-2007, which provides saving of service conditions of the employees under these regulations. It was urged that except the service related matter nothing has I been saved including the Elections Regulations framed under repealed PCB Constitution, 1995.
7. To a specific question of the Court, it was conceded that prior to promulgation of PCB Constitution 2007; elections were regularly held as per Election Regulation (2003) as attached to the petition available at page 55 of the file. It was also urged that under Article 4 of the Constitution of Islamic Republic of Pakistan the petitioner is entitled for equal protection and treatment in accordance with law. It was urged that the petitioner being citizen of Pakistan is to be treated in accordance with law and the law on the subject is PCB Constitution, 2007 and not PCB Constitution, 1995. It was, therefore, urged that the elections could only be held under the Election Regulations as may be framed for conducting elections in exercise and power conferred under section 38 of the Regulations, 2007 by the Governing Body and not by the "Council" under the repealed Constitution 1995.
8. According to Ms. Saify Ali Khan with the repeal of any enactment, rules and regulations framed thereunder also stand repealed and cannot be resorted to carry out the purpose and object of re- enacted Act. In support of her contention reliance was placed on the case of State v. Shafi M.
Sehwani and others (PLD 1997 Lahore 563) relevant at 579. In cited case it appears that the action was initiated against the petitioner under repealed Ordinance CXV of 1996, which was repealed by Elktesab Ordinance (No,XX) of 1997. Continuation of prosecution was challenged on the ground that prosecution could not be continued under the repealed enactment, argument was dealt with by the learned bench in para 35 of the reported judgment, which reads as follows:- " The arguments clearly lost sight of the provisions of section 24 of the General Clauses Act, which provided that if any Central Act after commencement of Amending Ordinance, 1937 is repealed, re-enacted then unless otherwise provided any appointment, notification, order, scheme, rule, form, shall continue in force until same are inconsistent with the new enactment. The clearly saved the proceedings under Ordinance CXI of 1996. The trial is in accordance with law and valid".
9. Further reliance was placed on the case of Chief Inspector 'of Mines v. K.C. Thapar AIR 1961 SC 838.
It appears that actions were taken under the Coal Mines Regulations, 1926 made under section 29 of the Mines Act, 1923, which was later on repealed through Mines Act, 1952. Objections similar to one raised by MRs, Saify were raised, that the regulations framed under the repealed Act could not be resorted to, five member bench of the Indian Supreme Court in para.9 of the reported case repelled the arguments as follows:-- ' The present is a case, where the Mines Act, 1923 was repealed, and was re-enacted with modifications as the Mines Act, 1952; section 29 of 1923 Act empowering the Central Government to make regulations consistent with the Act for specified purpose was re-enacted in the 1952 Act as section 57: regulations were made in 1926 under section 29 of the 1923 Act, but at the relevant date, in 1955, no regulations had been made under section 57 of the 1952 Act, so that in 1955 the Mines Regulations, 1926, had not been superseded by any regulations made under the re-enacted provisions of section 57 of the 1952 Clauses Act is operative, the Mines Regulations, 1926 were in force at the relevant date in 1955, and shall be deemed to have been made under section 57 of the 1952 Act, as there is no provision express or otherwise, in the later Act to the contrary, and the regulations are not inconsistent with the re-enacted provisions;
10. Another case relied upon by the learned counsel for the petitioner is again from Indian jurisdiction cited as Queen Empress against Madasami, reported in Indian Law Reports 1888, from the Appellate Criminal Full Bench, which provided that only male juvenile offenders being sent to reformatory schools by Magistrate of the first class under Reformatory Schools Act, 1876. The Court struck down the action of the Second Class Magistrate who under section 399 of the Cr.P.C., 1882 sent an offender to the Reformatory Schools, on the ground that it is only First Class Magistrate under the Special Enactment authorized to exercise the poweRs, Cited case has no bearing on the instant case, as the section 24 of the General Clauses Act 1897 was not in force then.
11.
11. Mr. Mazhar Jafri, learned counsel for the respondent No,1 vehemently opposed the petition. It was contended that section 24 of the General Clauses Act save and protect rules and regulations framed under the repealed statute by virtue of deeming clause of section 24 of the General Clauses Act, 1897. In support of his contention he has relied on Crown v. Wall Dad PLD 1954 Lahore 236 relevant at 239, in the cited case Wali Dad was acquitted by the Additional District Magistrate on the ground that Notifications Nos.63 and 64 on the basis of which Wali Dad was being prosecuted were issued under the repealed Forest Act of 1878 and he could not be tried under Forest Act, 1927. Acquittal Appeal filed by the State was allowed on the ground that sections 28 and 29 of the Indian Forest Act, 1878 correspond to sections 28 and 29 of the Forest Act, 1927 in all material respect, therefore the Notification issued under the repealed Indian Forest Act, 1807 will continue in force till they are replaced by Notification issued under the Forest Act, 1927. In the case of Mohan Lal v. State of West Bengal AIR 1961 SC 1543 in paragraph 3 at page 1543 following its earlier decision reported as Chief Inspector of Mines v. Karan Thaper AIR 1961 SC 838, it was held that "Regulations framed under section 29 of the Mines Act, 1923 would survive the repeal of the Act.
In the case of Hari Pada Roy v. Howrah AIR 1931 Calcutta 481 at page 482 it was held "What Section 25 Bengal General Clauses Act, (corresponding to section 24 of the General Clauses Act, 1897), means is that the notification issued under the re-enacted Act remains intact and attached to the new Act as having been made under that particular provision of the new Act, which is the re- enactment of the old one under which the notification was issued". Like-wise Rajan Bibi v.
Custodian of Evacuee Property 1992 CLC 321 case echo's the principle enshrined in section 24 of the General Clauses Act, 1897 at page 327 it was held "The fact that the Ordinance or the Act was repealed one after the other would not make any difference as the deeming clause of section 24 would keep the rules or the notifications issued under the repealed Ordinance alive unless it could be shown that under the reenacted law notification or the rule cannot stand on account of inconsistency with the re-enacted provision, reliance was placed on the case of Crown v. Wali Dad PLD 1958 Lah. 236 discussed supra. In view of the referred precedents, Mr. Mazhar Jafferi vehemently opposed the petition. It was urged that the politicians should not be allowed to spoil the sports as they indulge in politics that is counter-productive and disservice to sports. If politicians are allowed to participate in the elections they will damage the cause of sports. It was stated that other sports body and Bar Council have their own Statute and rules and regulations and the same cannot be applied to PCB, which has its own Constitution. And its affairs are to be governed under its own Constitution and not by the Constitution and or rules followed by other professional bodies.
12. We have heard the arguments of both the learned counsel and perused record.
13. Pakistan Cricket Board has been constituted and established in exercise and powers conferred under sections 3 and 4 of the "Sports (Development and Control) Ordinance, 1962 (XVI of 1962).
Present PCB Constitution 2007 was promulgated on 18-10-2007 repealing PCB Constitution 1995 (notification dated 16-3-1995), which too superseded earlier Constitution, dated 22-4-1982 and 18- 9-1979 respectively.
14. Paragraph 44 of the repealed PCB Constitution 1995 conferred power on the "Council" to make regulations for matters inter alia including holding of election in terms of clause (d) of sub- paragraph 1 of Paragraph 44, where under the Council had the authority to make regulation for:--
(b) Holding of elections by Divisional Cricket Association and City Cricket Association and for constitution of their supreme bodies;
15. It has come on record that for the District/City Cricket Association Election Regulations were framed in the year, 2003 under the PCB Constitution, 1995. Per Mr. Jafri, Learned counsel for the respondents PCB elections were being held since then under the Election Regulations, 2003 till last elections and Ms. Saify Ali Khan conceded to such fact, but urged that it was unconstitutional and since such Election Regulations have been challenged, now such illegality cannot be allowed.
16. It appears that in terms of paragraph 38 of the PCB Constitution, 2007, now power to make Regulations to run and manage affairs of PCB have been bestowed on the "Governing Board" under repealed PCB Constitution, 1995 such powers were exercisable by the "Council". Under new dispensation the "Governing Board" may frame Regulation to run and manage the affairs of the Board amongst others to frame regulations for "holding. Of Elections by the Regional Cricket Associations and the District Cricket Associations and for constitution of their supreme bodies", but subject to approval of the Federal Government. This very power under. Paragraph 38 of the PCB Constitution, 2007 is being emphasized and debated by the learned counsel for the petitioner.
According to her, powers which are conferred on the Governing Board to hold and conduct election under the Election Regulations to be framed with the approval of Federal Government, and since the Election Regulation, 2003 have till date not received any approval of the Federal Government, therefore, the election cannot be held per Elections Regulations, 2003 framed by the defunct "Council" established under the PCB Constitution 1995. It was vehemently urged that under Paragraph 40 of the PCB Constitution. 2007, Notification promulgating PCB Constitution, 2005 was repealed and only rules, regulations, bye-laws, contract relating to employees of the PCB were saved. Therefore, by implication other rules and Regulation stand repealed.
17. We have anxiously examined all the case-law cited by the learned counsel for the petitioner as well as the respondent. As discussed above, none of the precedents cited and relied upon by Ms. Saify Ali Khan, we have been able to read that the notification or regulations issued under repealed enactment would stand repealed or superseded on re-enactment or re-promulgation of any Act statute or Ordinance on the contrary such precedent supports the case of respondents. Even in the cases of State v. Shafi M. Sehwani and others (PLD 1997 Lahore 563) cited by the learned counsel for the petitioner proceedings initiated under the repealed Ordinance, CVI of 1996 after re- promulgation or reenactment of Ehtesab Ordinance, 1997 were saved and protected in view of the principle laid down in section 24 of the General Clauses Act, which reads as follows:-- "Continuation of orders, etc., issued under enactment repealed and re=enacted. Where any (Central Act) or Regulation is, after the commencement of this Act, repealed and enacted without modification then unless it is otherwise expressly provided, any (appointment, notification) order, scheme, rules, form or byelaw, (made or) issued under the provisions so re-enacted (and when any) (Central Act) or Regulation, which, by a notification under sections 5 or 5A of the Scheduled Districts Act, 1874 (XIV of 1874), or any like law, has been extended to any local area, has, by a subsequent notification been withdrawn from and re-extended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and reenacted in such area or part within the meaning of this section."
18. On reading section 24 of the General Clauses Act as referred to above, we are clear in our mind that deeming provisions of section 24 of the General Clauses Act, 1897 keep order, scheme, rule, form or byelaw, framed under the repealed Act alive as long as new order, scheme, rule, form or bye-law under the new re-enacted regime is framed in accordance with re-enacted statute.
Section 24 of General Clauses Act serves to protect and save order, scheme, rule, form or bye-law, under the repealed Act. Purpose is to maintain the continuity and avoid any vacuum between the interval when such order, scheme, rule, form or bye-law, as the case may be are framed under the re-enacted statute. Therefore, when the Constitution of PCB 1995 was repealed and new Constitution of PCB 2007 was re-enacted, Elections Regulations, 2003 would be deemed to be continued as if same were made under the PCB Constitution, 2007, mere repeal of PCB Constitution, 1997 would not make any difference, as the deeming clause of section 24, General Clauses Act, 1897, would keep the Election Regulations, 2003 made or issued under the repealed Constitution, 1995 intact and alive, unless it could be shown that Elections Regulations, 2003 are in conflict or nugatory with the re-enacted PCB Constitution, 2007, which the petitioner was not able to demonstrate.
19. In the end it was vainly argued by the learned counsel for the petitioner that under the PCB Constitution, 2007 as per paragraph 38 of the PCB Constitution, 2005 it is the Governing Board that is competent to make Election Regulations with the approval of Federal Government, where as, in the case in hand the Election Regulation were made by the defunct "Council" under the Repealed PCB Constitution, 1995. Arguments are equally fallacious, in view of the cumulative effect of section 20 read with section 24 of the General Clauses Act, 1897. It was so held in the case of North Eastern Railway and another v. Ram Lal AIR 1960 Patna 160 para. 13 @ page 496 as; "It is true, no doubt, as Mr. P.R. Das has urged, that the forms do not form part of the Indian Railways Act but it is clear that these forms, have been issued in accordance with the requirement of section
72. Section 24 lays down inter alia; that where any Act or Regulation is repealed and re-enacted with or without modification then any form etc. Shall continue in force and deemed to have been made or issued under the provisions so re-enacted. Accordingly, although the phrase "Central Government" has taken the phrase Governor General in Council" after aforesaid adoption of Laws Order of 1948 any form issued before in the name of Governor General in Council .Which occurred in section 72(2), before its adoption in 1937, must be deemed to have been approved by the Central Government".
20. Indeed Election Regulations have not been made by the Governing Board, as designated under the PCB Constitution, 2007, but it is evident that Elections Regulations have been made by the Council in exercise of power conferred under paragraph 11 of the PCB Constitution, 1995, which was the competent authority at the relevant time. Cumulative effect of section 20 read with section 24 inter alia is that where any Act or Regulation is repealed and re-enacted with or without modification then any Regulation etc. Shall continue in force and deemed to have been made or issued under the provisions so re-enacted by the "Governing Board" as per PCB Constitution, 2007.
Election Regulation made under the repealed PCB Constitution, 1995 is deemed to have been issued by the Governing Board and shall be deemed to continue uninterruptedly with full force and be deemed to have been validly made or issued by the competent authority under Paragraph 38 of the re-enacted PCB Constitution, 2007 and will continue till they are replaced or substituted by Election Regulation made by the Governing Board in accordance with and in the manner provided in Paragraph 38 of the re-enacted PCB Constitution, 2007.
21. In view of foregoing, we do not find any merit in this petition, which is accordingly dismissed.