' Petitioners have invoked the Constitutional jurisdiction of this Court against an order dated 21-9- 1989, passed by respondent Syed Shamim Ahmed, Councillor of K.M.C. 113, Sector 11-1/2, Orangi Town, Karachi West.
2. According to the petition, deceased Malik Jamal Ahmed was a philanthropist and was indulging of some social works. He has established Malik Jamal High School in Block-N, Chisti Nagar, Sector 11-1/2, Orangi Town, Karachi, after purchasing plot for the same. Besides the said school, deceased Malik Jamal Ahmed also established a poor widows' colony, namely, Jamalabad, a Masjid-cum- Madressa and a Technical School. For running affairs of the High School, Malik Jamal Ahmed (Marhoom) established a charitable society, which was registered under the Societies Act.
3. Malik Jamal Ahmed died in 1984 and after his death his family members have been running the Schools, which were set up by him. It was averred in the petition that the land and the School building raised over it belonged to deceased Malik Jamal Ahmed and it was not a public property or property of K.M.C. And the Society was merely to run, manage and supervise the schools. It was added that petitioner No,2 Munawar Malik Jamal, who is son of Malik Jamal Ahmed, took some administrative measures in running of said school and admonished the Principal of said school for collaborating with the mischief-mongers and also admonished the Accountant for not preparing the annual account. It was alleged that the Principal and the Headmaster approached the Councillor, K.M.C. 118 and prevailed upon him to pass the impugned order, against the petitioners, The impugned order was challenged to be in violation of the principles of natural justice and without lawful authority and of no legal effect. It was asserted that the respondent, as Councillor had no power to pass the impugned order. The impugned order reads as below:- "Considering the present situation prevailing in the Malik Jamal High School, Block-N, Chisti Nagar, Sector 11-1/2, Orangi Town, Karachi a public property, due to the illegal interference of Mr. Munawar Malik Jamal in the institution due to which educational atmosphere is hampered and peace of the area is also being disturbed.
' I, therefore, in the interest of public and the students of the institution, order as under:-
(1) The Principal, teachers and all the staff of the Malik Jamal High School will only obey the instructions and orders of the existing Malik Jamal Educational Society, Registration No,6268 dated 1-1-1980.
(2) Mr. Munawar Malik Jamal should immediately stop the illegal interference in the institution and threatening to the staff and the Members of the Malik Jamal Educational Society in the interest of the public and students.
(3) All the money received through tutition fees and other sources should be deposited in the Society's authorised Bank i,e. United Bank Ltd. Manghopir Branch A/C No,1069 under proper record.
(4) All the payments should be made through bank cheques under proper record.
(5) The Principal and other teachers and staff will not obey any order or instructions of any individual including Mr. Munawar Malik Jamal.
(6) The existing Educational Society is bound to complete their books of accounts and submit to the Chairman, Punchayaat, K.P. 118 within 30 days.
(7) After the submission of the books of account to K.P. 118, the Society is bound to conduct a fresh election within 90 days.
(8) The present Malik Jamal Educational Society will function according to the Bye-Laws till the fresh election."
4. I have heard Mr. Malik Mohammad Saced, learned counsel for the petitioners while none appeared for the respondent to argue the matter.
5. Learned counsel for the petitioners argued that petitioner No,2 Munawar Malik Jamal was Vice- President of the petitioner No,1 Society, which was established by the deceased for running Malik Jamal High School and that petitioner No,2 was responsible for running affairs of the said School and that the respondent as Councillor had no power to restrain petitioner No,2 from running affairs of the School. It was further argued that the matter in which the respondent had chosen to intervene, was not coming within the jurisdiction of the `Punchayaat' or the Conciliation Court.
Learned Counsel for the petitioners further argued that grave injustice has been perpetrated due to passing of the impugned order, and for curing such injustice it was necessary for this Court to exercise its Constitutional jurisdiction, In support learned counsel for the petitioners cited cases of
(i) Rayaz-o-Khalid Co. v. Pakistan and others (PLD 1958 Kar 220), (ii) New Goal Cloth Market Union v.
Municipal Committee, Lyallpur (PLD 1955 Lah 149), (iii) Dr. A.N.M. Mahmood v. Syndicate of the University of Dacca and others (PLD 1970 Dacca 85) and (iv) Ahmed Saeed Kirmani v. Mohammad Nawaz Cheema and another (PLO 1966 Lah 88).
6. In (i) above it was held6that an order of transfer could be challenged in a writ petition if it had been actuated by malice and that absence of notice before transfer did not am6unt to denial of natural justice. This authority does not cover the point at issue, In (ii) above the Lahore High Court dealing with Article 222-A of the Government of India Act, 1935 observed that writ will not be refused simply because other remedies were available. In the same case it was observed that if grave injustice will result if the jurisdiction to issue the appropriate writ is not exercised, the High Court will not decline to issue the appropriate writ, simply because the relief claimed could be had by some other proceeding. But before writ is issued the Court is to be satisfied that the case is a fit one for the exercise of the powers conferred by Section 223-A of the Government of India Act 1935.
In (iii) above it was held that the Courts will intervene to prevent an abuse of power and, even when the act done is ostensibly in execution of a statutory power and within its letter, it would nevertheless be held not to come within the power if done otherwise than honestly and in the spirit of the enactment. It was also observed that if in the exercise of power, a public authority takes into consideration a matter which the Courts consider not to be proper for the guidance of their discretion, then in the eye of law they have not exercised their discretion. In (iv) above it was held that actions can be called in question in writ jurisdiction where a Special Tribunal or authority acts improperly in the exercise of its :unctions. This was, however, in an election matter.
7. Reverting to the facts of the instant case, there is no doubt that the subject-matter of the impugned order was not covered by the Conciliation Courts Ordinance. In the impunged order the respondent has not shown, as to, under what provisions of law he was exercising his jurisdiction.
The respondent has filed his counter-affidavit wherein he stated that petitioner No,2 Munawar Malik Jamal was an out sider and that he had no locus standi to take part in Malik Jamal Educational Society, which was formed in 1980 with deceased. Malik Jamal Ahmed as its President. The respondent has given his own version about the facts. Nowhere in his counter-affidavit the respondent has mentioned any provision of law under which he has passed the impugned order.
His only grievance is against the petitioner No,2, who is alleged to be an impediment in smooth working of Malik Jamal Educational Society School Administration. As a result of the above discussion, I am clear in my mind that the respondent as a Councillor of KMC was not competent to pass an order of the nature that he has passed. I, therefore, accept this petition and declare the impugned order to be illegal and of no legal effect.