P L D 2013 Peshawar 71 (PLP)

KHALID MEHMOOD, J.

Petitioners Senator Haji Ghulam Ali and Ms. Nadia Chamkani through the present writ petition have challenged the Presidentship Election of Khyber Pakhtunkhwa Olympic Association dated 21-2-2012, as they have not been given an opportunity to participate/contest the said election, therefore, the same be declared as illegal, unlawful and thus of no legal effect.

2. Brief averments highlighted in petition are that petitioners are duly elected office-bears, President and Secretary General, respectively of the Khyber Pakhtunkhwa Net Ball Association, a Provincial level Sports Association, duly affiliated with the Pakistan Netball Federation and is also affiliated with respondent No.1, Khyber Pakhtunkhwa Olympic Association. It is averred in the petition that respondent No.1 is the Provincial level public sector supported Association working under the aegis of respondents Nos.3 and 4 serving as the Provincial node of the National Olympic Committee (Pakistan Olympic Association) a body working under the authority and control of respondent No.5. It is further averred in the petition that respondent No.1 Association is governed under a Constitution and Draft Rules and Regulations under control of a President and respondent No.2, its Secretary General. That the petitioner's Association has remained participating in the activities of respondent No.1-Khyber Pakhtunkhwa Olympic Association and was on the list of their members. That the petitioners received a letter dated 31-12-2011 from respondent Nos.1 and 2, wherein, they had scheduled a Dinner Meeting at a restaurant, convening an Elective Counsel Meeting on 21-1-2012 with intention to hold election on the same date at the Dinner Meeting, however, the notice did not describe the proposed activity in detail. In response to said letter, the petitioners conveyed the respondents that petitioner No.1 intends to contest the forthcoming election but the respondents Nos.1 and 2, informed the petitioner No.1, that he is not eligible for the said election. Dissatisfied from the impugned Letter dated 31-12-2011, the petitioners have filed the present writ petition.

3. The respondents in their comments pleaded that the Khyber Pakhtunkhwa Netball Association is affiliated with the respondent No.1 in the year 2007 and petitioner No.2 has provided a list of the office bearers of Khyber Pakhtunkhwa Netball Association for the years 2007-2011 and since 2011 till today the elections of the Khyber Pakhtunkhwa Association are due and the so called elections held by the petitioners are illegal and void ab-nitio and against the Rules and constitution of K.P.O.A., therefore, the said Association is not affiliated with the respondent No.1. It is averred in the comments that the election of Khyber Pakhtunkhwa Olympic Association were held in accordance with the law, rules, regulations and the constitution of the Khyber Pakhtunkhwa and Olympic Association and Pakistan Olympic Association.

4. Learned counsel for petitioners contended that petitioners being the member of Khyber Pakhtunkhwa Olympic Association have been deprived from participation in the disputed election which was allegedly held on 21-1-2012. He further contended that a letter regarding invitation was sent to the petitioners for participation in the elective meeting but the petitioners in black and white informed the respondent No.1 that petitioner No.1 intends to contest the election but his request was turned down by the respondents without giving an opportunity to the petitioners to participate in the disputed election. He also argued that no election scheduled was notified nor secrecy of ballot was observed and election was held on mere show of hands which is utter violation of election procedure laid down and the election could be held through secret ballot only. He argued that under the rules no one shall be eligible to participate in election, who had enjoyed two terms of office-bearer of the Association, but the present President of the Association was not eligible to contest the election as he remained office-bearer for two terms, therefore, he was not eligible to contest the election. He lastly argued that respondent No.1 being the President of Khyber Pakhtunkhwa Olympic Association had presided the election proceedings which are utter violation of democratic norms.

5. Learned counsel for the respondents vehemently supported the entire proceedings of election which was conducted honestly, fairly, smoothly, peacefully and in accordance with the rules and regulations. He further argued that no one except the petitioners had challenged the election, which was afterward approved in General Body meeting. He further contended that as there were no contesting candidates and all the candidates were elected unopposed, hence, the question of secret balloting does not arise. Learned counsel also raised objection regarding maintainability of the present petition on the ground that the petitioners are not aggrieved party and a factual controversy is involved, which can be agitated before the Civil Court. In this context, he placed reliance on a case titled Syed Azhar Ali Shah, President Cycling Association v. Syed Aqil Shah, President, KP Olympic Association and others (sic), wherein, the impugned election was challenged, but the suit was rejected by the Civil Court on the ground that petitioner has no cause of action to file the said suit. He lastly argued that the petition of the petitioners is not maintainable, therefore, the same be dismissed.

6. We have carefully examined the entire record with the valuable assistance of the learned Counsel for the parties.

7. Learned counsel for the respondents raised preliminary objection regarding maintainability of the present petition on three grounds:-- (i) That petitioner is not aggrieved party and has no locus standi to invoke the Constitutional jurisdiction of this Court; (ii) That as factual controversy is involved in the present case, hence, this Court cannot entertain the same in writ jurisdiction; (iii) That as in case of Syed Azhar Ali Shah, President Cycling Association (supra), which, was filed against the present respondents, was dismissed by the Civil Court, hence, this Court cannot entertain the present petition.

8. It is admitted fact that petitioners are the office-bearer of K.P. Net Ball Association, which is affiliated with the Khyber Pakhtunkhwa Olympic Association. In this regard, learned Counsel for the petitioners referred to the letters issued by the respondents to the petitioners for participating in the meetings, which were held on different dates, the minutes of said meetings show the petitioners, as participants in all those meetings. It is pertinent to note that the last one letter was issued by the respondents, wherein, the petitioners were invited to participate in the Elective General Counsel Meeting, which was scheduled to be held on 21st January, 2012 at 6-00 p.m. for the impugned election. Moreover, in a case titled Nadeem Aftab Sindhu v. FOB, etc. of the jurisdiction of Lahore High Court decided on 23-10-2012, wherein, it was held that:-- "A writ petition is maintainable under Article 199(5) of the Constitution against a person including a body politic or corporate, which must be performing functions in connection with the affairs of, inter alia, the petitioner to become amenable to the constitutional jurisdiction of the Court under Article 199(1) of the Constitution. An entity that has been entrusted the noble and high responsibility of organizing and conducting the national team at the international games under the name, national emblem and national flag of the country brings the POA, to the mind of the Court within the meaning of a "person" under Article 199(5) of the Constitution which is accountable to the High Court for its action taken while performing public functions that have connection with the affairs of the Federation."

9. So far as question of factual controversy is concerned, petitioners have raised objection regarding violation of the Constitution of the Association, which attracts the jurisdiction of this Court on the ground that the fundamental rights of the petitioners being member of the Association have been infringed and that the petitioners have been deprived to participate in the scheduled election, which is their fundamental rights.

10. So far as the question of decision passed by the Civil Court in case of Syed Azhar Ali Shah (Supra) is concerned, in that case neither the petitioners were party nor the same was decided on merits rather the plaint was rejected under Order VII Rule 11, C.P.C. on the sole ground that the petitioner has failed to substantiate his stance, as he has no cause of action to invoke the jurisdiction of Civil Court. The said rejection of plaint has no bearing in the present case neither it creates res judicata to initiate the proceedings against the respondents in the shape of present petition.

11. So far the question of holding the impugned election is concerned that whether the election was held according to the provisions of constitution or not, which warrants the interference of this Court. It is laid down under Rule 11 (vii) of the KP Olympic Association Rules and Regulations, that the election shall be conducted through secret ballot. For guidance the Rule ibid is reproduced as under:-- "Rule-11 (vii)-The elections shall be held by secret ballot provided the election to an office is not unanimous." In the instant case, prior 15-days notice was admittedly issued before holding the elective meeting, which was admitted by the petitioners that the same was according to law, however, the stance of the petitioners is not admissible because, as per minutes of elective meeting, there was no rival candidate and all the candidates were declared successful being unanimously/unopposed, hence, no proceeding for casting of votes has been carried out, therefore, question of secret ballot does not arise. The constitution of KPAO is silent about detail of holding of election through secret ballot. However, for all sort of elections certain principles are observed for holding an election i.e. formation of independent and impartial election commission for holding fair election, criteria/ qualification regarding proposed office-bearer, election schedule by the day of submitting nomination papers, scrutiny, displaying the final list of candidates, date of withdrawal of candidates, the date of declaring holding election and procedure for resolution of disputes regarding the election. These are the pre-requisites for holding an election in any democratic institution. In this regard, PAO has formulated procedure for holding of election. The Draft of which has been produced by the petitioners. The said Draft Election Rules of 2012 of P.A.O. have already been thoroughly discussed in the judgment of Lahore High Court in the case of Nadeem Aftab Sindhu (Supra), wherein, it has been held that Olympic Association has been established to organized its players of different teams and also chalk out the discipline, as the players are Ambassadors of the country, should represent, the country in dignified manner at International Forum and to earn a good name for the country at International level, hence, the Olympic Associations role could not be ignored. The Olympic Associations, which are the controlling body of the prominent players of different areas also required that the Associations should be established according to their own constitution and established democratic norms. The election of any Association demands that it should be held fairly, impartially and giving a chance to every member to participate in the election as a candidate or as a voter and the same should be held in the prescribed manner and observing the secrecy of ballots.

12. In the instant case, it is admitted fact that petitioners were issued a letter to participate in the elective meeting, which was scheduled to be held on 21-2-2012 and in response thereof, petitioners had raised certain objections in their reply dated 2-1-2012, and asked the respondents to publish the schedule of election and formation of independent election commission. For convenience sake, the relevant portion of said reply is as under:-- "It is dismaying to observe that despite our earlier communication/letter on the subject bearing Ref.E/KP/Net-Ball Association dated 14th April, 2011 (copy enclosed for ready reference), requiring the KPOA to follow democratic norms and hold proper elections after publishing election schedules and appointment of independent election commission, once again a dinner meeting is scheduled without providing any opportunity to any desiring candidate to participate in the forthcoming election genuinely."

13. To address and rebut the allegations of petitioners, counsel for the respondents vehemently argued that no such invitation was issued to the petitioners, nor any reply thereof has been received by the respondents but, sorry to say that, when we referred to Para-7 of the written reply/comments, wherein, they have stated that the petitioners have no proposer and seconder for the nomination, which is the basic requirement for a candidate, hence, they were not allowed to participate in the impugned election. Para-7 of the comments filed by respondent No.1 is as under:- "Para-7 is incorrect and baseless. The respondent No.1 being a sportsman and promoting the sports since 1984 till today, having sportsman spirit and having highly democratic thinking never influenced or obstructed the participation of the petitioner for any seat of KPOA election, but unfortunately the petitioner was unable to have a proposer or secondery for this nomination which was the basic component of the nominations/elections." The factum of this plea of respondents show that neither the objection raised by the respondents in their reply for invitation was considered nor they were given an opportunity to participate in the impugned election. Moreover, the impugned election has not been held according to the established formations for holding the election as discussed in the judgment of Lahore High Court referred above.

14. So far question of the KP Olympic Association is concerned, the said Association is the integral part of Pakistan Olympic Association, which has been constituted by the members of Olympic Associations, which has been duly mentioned in sections 2 and 3 of the Pakistan Olympic Association Act of 1957.

15. Counsel for petitioners also vehemently argued that respondent No.1 remained office-bearer of the KPOA for the last two terms and under Rule 11(c) of the Revised National Sports Policy, 2005 cannot contest the election for the 3rd term. Rule 11(c) of the Policy ibid are as under:-- "President, Secretary and Treasurer will be allowed two tenures only. They will become ineligible for any office after two tenures and must vacate their position for new incumbents. However, an individual will be allowed to contest for next higher Association at any time."

16. Being disqualified and in utter violation of the constitution, the respondent No.1 has been elected as President of Khyber Pakhtunkhwa Olympic Association for the 3rd term, but this legal point has not been agitated nor raised by the petitioners in their petition, although the law is very much clear that no such candidate can participate in election, who remained office bearer for two terms. In this regard, the verdict of the Apex Court in case titled Pakistan Sports Board and anther v. Pakistan Volleyball Federation, etc. (Civil Appeals Nos. 368 to 370 of 2011) is crystal clear, wherein, it has been held that no office bearer can be elected for 3rd term, who had already been elected for the last two terms. As the holding of office bearer for 3rd time was not a matter of discussion in the present case, hence, we only confine ourselves to the impugned election, whether, it was held fairly, impartially, after observing all the codal formalities per democratic norms and whether the petitioners have been deprived to exercise their legal and fundamental rights to participate in the election, this is the main controversy before us for which we are obliged to resolve.

17. In light of above discussion, it is crystal clear that petitioners Association (K.P. Net Ball Association) is affiliated with the Khyber Pakhtunkhwa Olympic Association, which is evident from the available record and the invitation rendered to the petitioners for Dinner/Elective General Council meeting and the objection to that meeting by the petitioners coupled with the reply given under Para-7 of the comments, suffice it to say that the impugned election was held in violation of the constitution and without affording an opportunity to the petitioners to participate in the election which no canon of law can be declared as legal, fair and according to the constitution and democratic norms, thus, we allow the present petition, set-aside the impugned election and direct the respondents to hold a fresh election through an independent and impartial Election Commission strictly in accordance with Rules and Regulations observing the secrecy of ballots and the parameters prescribed by the Olympic Associations for holding the election as discussed earlier and the petitioners should be given an ample opportunity to participate in the election and no member of the Association should be deprived from either contesting the election or casting vote in favour of some other contesting candidate. SAK/149/P Petition accepte