The brief facts of the writ petition are that Ewan-e-Zirat, Punjab a company limited by Guarantee was registered on 26-2-1983 under section 26 of the Companies Act, 1913 (repealed) replaced by the Companies. Act, 1984; which has its own Memorandum and Articles of Association.
2. Under Article 4 of the Company; the Secretary Agriculture of Punjab, was empowered to convene the Inaugural General Meeting of all the enrolled members of the Ewan-e-Zaraat at Tehsil level to nominate the Chairman of the Inaugural meeting and a scheme of Provincial Zarai Councillors as well as District Zarai Councillors was provided. The procedure of holding the Inaugural General Meeting of the Provincial Ewan-e-Zaraat and the business to be conducted at such meeting is provided in paragraph 6 of the Article.
3. All the Subai Zarai Councillors after elected were to hold their general meeting under the Chairmanship of the Minister of Agriculture, Government of Punjab to be fixed by the said Minister and the business to be transacted in the Inaugural General Meeting was the election of main office-bearers of the Provincial Ewan-e-Zaraat.
4. On 10-3-1988, the then Chief Minister of Punjab, nominated the Executive Committee members and the office-bearers vide Notification No.PD/VI-7/81, dated 10-3-1988.
5. On 5-12-1993, the Executive body of the Ewan-e-Zaraat decided to rectify the articles and para.2(A) through a resolution was added; by this amendment the life of the Executive Body nominated by the then Chief Minister Punjab on 10-3-1988 was fixed at one year i.e. From 5-12-1993.
6. After the addition of para.2(A), the Executive Body already in existence since 10-3-1988; held elections of Ewan-e-Zaraat at Provincial and District levels on 11-8-1994 in compliance with the provisions contained in paragraph 23(3) and other related articles for a period of 5 years" the list of the elected members of the committee and the office-bearers was notified to respondent No. 10 Assistant Registrar, Joint Stock Companies, Punjab.
7. The newly-elected Executive Committee further amended Article 2-A on 19-9-1994 under - powers vested in it vide Article 39 in the following manners:-- "In the beginning Punjab Government constituted Ewan-e-Zaraat (present Ewan) by nominating the members and office-bearers (on the demand of former's representatives by Agriculture Minister).
(V) On the completion of the election according to amended Memorandum of Articles (present body) shall hand over the charge.'
8. The originally added para. 2(A),was as under:-- "In the beginning Punjab Government will constitute Ewan-e-Zaraat by nominating the members for the Executive Body and office-bearer. The terms of reference of Ewan-e-Zaraat would be as under as mentioned in the Notification No.PD/VI-7/81, dated 10-3-1988 of Government of the Punjab:
(i) The function of Ewan-e-Zaraat shall be as laid down in the Memorandum and Articles of Association 1983. Ambiguities/anomalies that may exist in the said articles may be removed in due course of time. '
(ii) The Ewan-e-Zaraat will throw open the membership to the agriculture community for, the period of one year, or till the membership is formally closed.
(iii) After the finalization of memorandum and Articles of Association the Ewan-e-Zaraat, Punjab shall establish, organize and conduct elections of Ewan-e-Zaraat at Divisional/District and other level it may consider necessary.
(iv) The term of executive body of the Ewan-e-Zaraat may be for a period of one year subject to the fulfilment of mandate provided to it.
(v) On the completion of the Election according to the amended Memorandum of Articles (present body) shall handover the charge. "
9. The amendment dated 19-9-1994 in Article 2-A was sent to respondent No. 10 for placing it on record of the Registrar, Joint Stock Companies. The respondents Nos.9 and 10 on receipt of the aforesaid amendment, informed the petitioner (General Secretary) that the Government of Punjab, in supersession of the aforesaid notification dated 10-3-1988 had nominated a committee through Notification No.SOA (Ext) VI-7/90, dated 3-8-1994 to manage the affairs of Ewan-e-Zaraat and refused to entertain the aforesaid amendment; hence this writ petition.
10. The learned counsel for the petitioner vehemently contended that the petitioner is, a company and its affairs are controlled by its memorandum and Articles of Association subject to the provisions of the Companies Ordinance, 1984; which do not confer any authority on the respondents Nos A and 2 to nominate its Executive Body or the office-bearers and the notifications dated. 3-8-1994 and 8-12-1994 are ab initio illegal, void and without jurisdiction; the members of Executive Committee and the office-bearers are legally elected and constituted on 11-8-1994 under the Articles of Ewan-e---Zaraat.
11. The learned Additional Advocate-General on the other hand controverted the arguments of the learned counsel by contending that the life of the Executive Body/Committee under notification dated 10-3-1988 was for one year subject to fulfilment of the mandate provided to it under the terms of reference; the Executive Body failed to discharge its functions and fulfil its mandate, resultantly the respondent No.2 following the steps of his predecessor-in-supersession of notification dated 10-3-1988 nominated a new Executive Committee through notification dated-3- 8-1994 to manage the affairs of Ewan-e---Zaraat and vide notification dated 8-12-1994 nominated the respondent No.8 exercising the same powers: further vehemently contended that the petitioner has not come with clean hands and the petitioner is not an aggrieved person to seek writ of quo warranto.
12. I have heard the arguments of the learned counsel at length and have gone through the record with their able assistance.
13. I intend firstly to deal with the issue raised regarding maintainability of the writ petition; the learned counsel for the petitioner contended that to ameliorate the conditions to improve socio- economic conditions and the quality life of the agriculturists, the sponsors of the Ewan-e-Zaraat got together and formed the associate; to achieve this objective, the Secretary, Agriculture Government of Punjab was empowered to convene the Inaugural General Meeting; meaning thereby the Ewan-e-General was formed in the public interest; relied upon case Salah-ud-Din and 2 others v. Frontier Sugar Distillery Mills Ltd., Takht Bhai and 10 others (PLD 1975 SC 244); on page 262 after lengthy discussion on Article 199 of the present Constitution of 1973 and of Article 201 of the Constitution of Pakistan (1972) observed:-- "In the light of the foregoing discussion, the position of a public limited company, in relation to the applicability of the various clauses of Article 201 of the Interim Constitution or Article 199 of the permanent Constitution of 1973, may be summed up by saying that while it cannot ordinarily be regarded as a person performing functions in connection with the affairs of the Federation, a province or local authority simply for the reason that its functioning is regulated by a statute; yet nevertheless the offices held by its Directors and its Chief Executive, which term would include a Managing Director, must be regarded as public offices inasmuch as they involve the performance of public duties which are of the greatest importance to the public interest in the field of the operation of public joint stock companies under the Company Law. As a consequence, although a joint stock company may not be amenable to the issuance of a writ under clauses (2)(a)(i) and (2)
(a)(ii) of Article 201 of the Interim Constitution, but its Directors and the Chief Executive are within the purview of clauses (2)(h)(ii) of the said Article which permits the High Court to issue a writ in the nature of quo warranto, recurring a person within its territorial jurisdiction holding or purporting to hold a public office to show under what authority of law he claims to hold that office.
It is also clear that, while acting under clause (2)(b)(ii), the High Court would only grant a declaration as to the authority of the respondent to hold the office in question, but it could not grant a mandamus to restore or reinstate the applicant to that office in case it comes to the conclusion that the incumbent had no authority to hold the same. The High Court would in such a case only declare the office to be vacant, leaving the rightful claimant, if any, to take whatever steps may be open to him to occupy the same. "
14. A company which has been formed for promoting social services or any other useful object under section 42(3) of the Companies Ordinance, 1984 is entitled to the privileges applicable to the company made under section 42(1) of the Ordinance, resultantly; if any member of a company complains or the Registrar is of the opinion that the affairs of the company are being conducted in an unlawful or fraudulent manner or in a manner not provided for in its memorandum may make an application to the Court for an order under section 290 of the Ordinance and jurisdiction to entertain such an application is only vested in the High Court under section 7 of the Ordinance.
15. As argued by the learned counsel for the petitioner writ petition is maintainable and writ in the nature of quo warranto can be issued requiring the respondents Nos. l and 2 to show under what authority of law the impugned notifications were issued.
16. The contention of the learned Law Officer that the life of the Executive Body/Committee under notification dated 10-3-1988 was for one year; the said body admittedly failed to fulfil the mandate provided to it; after 5 years on 5-12-1993 the Executive Committee nominated by the Chief Minister Punjab amended the Articles of the Association added paragraph 2(A) only to cover and legalise the illegal act of then Chief Minister as no power vested in the Chief Minister Punjab to nominate Executive Committee of 'the Ewan-e-Zaraat and even there is no provision in the Ordinance which authorized the Chief Minister. The addition of para. 12-A has been mala fide intended to be incorporated as existed from the very inception of the association as the opening words used are "in the beginning Punjab Government will constitute"...Denotes that the Chief Minister Punjab was only authorised in the beginning i.e. On 10-3-1988 to nominate the members of Executive Body and office-bearers; the mala fide purpose behind the amendment after a lapse of 5 years was to check the Chief Minister so that he may not interfere in the affairs of Ewan-e-Zaraat following the steps of his predecessor Chief Minister; further to cover the lacuna in Article 2(A); "will constitute" further amendment was made on 19-9-1994 by substituting the words "will constitute" to "constituted Ewan-e-Zaraat (present Ewan) by nominating the members of the Executive Body and office- bearers for the demand of farmers representatives by Agriculture Minister".
17. It was one of the function of Ewan-e-Zaraat to throw open the membership to the agriculture community for the period of one year and to conduct elections of Ewan-e-Zaraat; the amendment sought to be incorporated on 19-9-1994 that in the beginning Punjab Government constituted Ewan-e---Zaraat (present Ewan) by nominating the members of the Executive Body for the demand of farmers representatives by Agriculture Minister is inconsistent with very objects of Articles 2(A) (supra), it is an afterthought amendment to give life to the body nominated on 10-3- 1988 by legalizing it tit this manner. '
18. The learned counsel for the petitioner from the very beginning contended that the appointment of the Executive Body by the Chief Minister Punjab under notification dated 10-3-1988 was without lawful authority as no legal authority vested in the Government of Punjab rather under any law or by virtue of the Articles o~ the Association to make any appointment to the organization which has been instituted under section 26 of the Companies Act, 1930/40 of the Companies Ordinance, 1984; however, vehemently stressed by arguing at length that in spite of it, all defects stood cured by that time in view of the de facto doctrine and relied upon case Abdul Salam Qureshi and another v.
Judge, Special Court of Banking for Sindh and another (PLD 1984 Kar. 462) but was not willing to give concession of this doctrine to the present Chief Minister, i.e. Respondent No.2 on the basis of an amended Article 2-A and stressed that the then Chief Minister Punjab "in the beginning" had acted under the bona fide belief that he was entitled to do so act and had at least a five colour to bring about regularity in the working of newly born Association of Ewan-e-Zaraat and prevent confusion in performing its functions. After the amendment of Memorandum and Articles; none of the Articles contain any provision conferring any authority on respondents Nos. l and 2 to nominate its Executive Body or the office-bearers; the impugned nomination by the respondent No.2 destructive of the fundamental structure of the association being illegal, unconstitutional and not permissible under any principles of law rather the respondents Nos.2 to 8 have attempted to usurp the office of the said Association. While on the other hand it has been argued that quo warranto cannot be issued as prayed by the petitioner because the petitioner has not come with clean hands. It was held in case Sardar Asseff Ahmad A.I v. Muhammad Khan Junejo and others (PLD 1986 Lahore 310):-- ""We also find support from the cases reported as Kamal Hussain v. Siraj-ul-Islam (PLD 1969 SC 42), wherein it has been held that that the grant of relief in writ jurisdiction on the part of the High Court to test bona fide of the relater to see if he has come with clean hands. A writ in the nature of quo warranto in particular is not to issue as matter of course, on sheer technicalities on - a doctrine air approach."
19. The plea of mala fides as advanced by the learned Law Officer get support from the beginning to the end i.e. 19-9-1994 when further amendment was sought to be made in Article 2-A. On the one hand, the petitioner to negate the effects of impugned notifications issued by the respondents Nos. l and 2 pleads that the nomination of the Executive Body and the office-bearers through notification dated 10-3-1988 was an act without authority; on the other hand attempted to build his right to be legally nominated body by the then Chief Minister by making amendments in the Memorandum and Articles of Association after a lapse of S years under the cover of the theory of de facto doctrine ignoring the provision provided in the Memorandum of Association which is reproduced as under:-- "Para.9. Amendments to the Memorandum of Association shall be subject to the approval of the Government and shall also be made when required by the Government in public interest."
20. The procedure for amendments to the Articles of the Association is prescribed in Article 39 which is as under:---- "39. Amendments to the Articles of Association shall be effected by a resolution passed by 2/3rd majority of the total members of the Executive Committee of the ' Ewan' . Amendments to the Memorandum of Association shall be subject to the approval of the Government and shall- also be made when required by the Government in public interests."
21. The original Article 39 stands amended which is reproduced as under:-- "39. Amendment to the Articles of Association shall be effected by a resolution passed by majority of the present members of Executive of the Ewan. Amendments to the Memorandum of Association shall be subject to the approval of the council and shall also be made when required by the Ewan in public interest."
22. It is manifest that even the Article 39 has been amended by deleting "2/3rd majority" and "subject to the approval of the Government and shall also be made when required by the Government in public interest".
23. The contention of the petitioner that Articles of the Ewan-e-Zaraat do not contain any provision requiring approval or sanction either from the respondent No.9 or 10 or from the Government is contradictory to the Article 39 of the original Articles of the Association; according to which "Amendment to the Memorandum of Association shall be subject to the approval of the Government and shall also be made when required by the Government in public interest; the amendment of Articles 2-A and 39 of Association including the addition of Article 2-A on 19-9-1994 and 5-12-1993 were brought in without the approval of the Government and against the public interest only to perpetuate their control over the Association and to deprive the respondents Nos. l and 2 of their powers given under Articles of the Association.
24. The amendments in the Articles have been made with mala fide intention and the plea by the petitioner that the nomination of the Executive Committee through the notification dated 10-3-1988 was patently without lawful authority but is covered by the theory of de facto doctrine is not with clean hands and has a certain purpose behind it which can be gathered easily. This aspect of the case fully demonstrates that the Executive Body/petitioner had adopted the process of amendments in the Articles of Association with ulterior motives. It is a settled law that the High Court in its Constitutional jurisdiction does not exercise its powers in favour of persons who comes to Court with soiled hands as laid down in case S.K. Masood and 3 others v. Special Committee through M.B.R. And others (1990 CLC 1174).
25. In my opinion, the principle of de facto doctrine is applicable to the notification made on 10-3- 1988 by the then Chief Minister and it does not lie in the mouth of petitioner to plead lack of jurisdiction in respondent No.2 who followed the steps of his predecessor and cannot be ousted to get the benefit of the said doctrine under the given circumstances; in view of its Constitutional jurisdiction discretion cannot be exercised in favour of the petitioner who has not approached the Court bona fide and with clean hands.
26. As the Executive Committee nominated through notification dated 10-3-1988 failed to fulfil the mandate provided through the terms of reference incorporated in para.(2); made amendment without the approval of the Government; which was mandatory, in their own interest; necessitated the Government of Punjab-to interfere in the affairs of the Association in the best interest of public.
The de facto doctrine can be applied to the act of respondent No.2 in the light of observations case PLD 1984 Karachi 462 (supra) because:-- "The de facto doctrine is a doctrine of necessity to bring about regularity and prevent confusion in the conduct of public business and promote security of private rights."
27. After the issuance of notification dated 3-8-1994, the election held on 11-8-1.994 by the petitioner and others and proposal to further amend Article 2-(A) on 19-9-1994 were mala fide acts and an illegal effort on the part of the petitioner and others intended to deprive the respondents Nos. l and 2 of their power; the attempt being repugnant to paragraph 9 of the Memorandum and Article 39 of the Articles of Association.
28. As laid down in case Khadim Hussain v. Board of Revenue and others (1973 SCMR 127) that:-- "It is established law that in writ proceedings the High Court do not come to the aid of injustice nor do they perpetuate illegal orders and action. "
29. For the reasons stated above and in view of the patently clear position of law and facts; I am of the view that the petition is devoid of merits and is hereby dismissed as no order as to costs.