Al-Fatah Cricket Club VS Pakistan Cricket Board & others.

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JUDGMTNT SHEET

PESHAW AR HIGH COURT. MINGORA BENCH

(DAR-UL-QAZA), SWAT.

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JIUDICIAL DEPARTMENT

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w r t P ttition No. 565-MJ20l7 with IR

JUDGMENT

Date of hearing 07.02.2018

Petitioner: (A -Fatah Cricket Club) by Mr. Barrister Dr Adnan Khan, Advocate.

Respondents: (Pakistan Cricket Board, through bhui.*un and others) by M/S Junaid iAnwar Khan and Hazrat Rehman Advocates.

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MUHAMMA D NASIR MAHFOOZ. J:- Through this single judgment, the following writ pelitions connected with nstant writ petition shall be decided.

1.W.P No. 566-W2017 titled "Al-Sheikh Cricket Club vs', Pakistan Cricket Board throush Chairmafi and others " .

2 W.P No. 50 7-i!d1207 titled "Pak Afshan Cricket cnb i{ iit itton Cricket Board throu Chairman and others" .

3 W.P No. 568-M/2017 titled "Colonv Crickel Club Pakislan Cricket Board throu Chairm and others" .

4.w P No. 17 titl ed, "Green Star Mavar ket Pakistan Cric ket Board throush Chair and others" .

5.W.P No. 70-:]MJ20l7 titled, "Ililal Cricket Club Vs Pakistan r icket lloard throu Chairman and othels

2 Brib f facts of the case are that petitioners are involved iq promoting the game of cricket by forming se p areite cricket clubs with their specific names. As per contentions in the writ petition, their cricket clubs a{e functioning and registered with the concerned Di strict Cricket and Zonal Cricket Association an as per the mandate of the model fl constitution p ulgated & enforced by the Pakistan Cricket Board., it has an *ACTIVE" status and secure voting rights as the model constitution has been adopted by a re $ olution ofgeneral body ofthe club. In

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order to ascertain the status of loc al cricket club for categoflzlng th em as either "AC'[IVE" or ..INACTIVE, S rutiny committee was constituted in the District of Dir Lower. Prior to the process of scrutiny the list of cricket clubs were provided to the local District Cricket Association (to be called as (DCA), which lwas in turn provided to the Pakistan Cricket Board and the name of petitioner/clubs was mentioned to have adopted the Pakistan Cricket Board model constitutlon through letter dated 08.11.2015. On arrival of the sciru-tiny committee, petitioner/club made available all the relevant documents including resolution from the general body for adaptation of the Constitution of P akistan Cricket Board. Requisitioning

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of the general body meeting & attendance of the members of the club, the concemed scrutiny committee recofded their proceedings but while giving its decision dated 19.10.2016, the petitioners were marked as "INACTIVE" on the following grounds:

uNo 'ro r rebolution re 'din tm lementation o Pakistan Cricket Board model constitution provided' 3 l'he said order was assailed in Appeal before responderrt No.4 but the same was dismissed on 25.tt.2016, w11 ich was again challenged before the Board of Gov fmor of the Pakistan Cricket Board which was heard by respondent No.3 and allowed on 19.1.2017 and the case was remanded back for fresh decision to re spondent No.4. Vide order dated 13.4.20t7, resp ondent No.4 dismissed the appeal i

which was ag ai n challenged in second appeal before respondent No 3 but the same was dismissed on t 4.7.20t7. A cgrI eved from the determination of the respondents to hold the petitioners as an "INAC'[IVE" club, they have invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan

4 Co tnments were called from the

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respondents, wfro have raised preliminary objections regarding mainthinability of instant writ petition on the

ground of locqs standi, non-statutory status of the constitution ofPakistan Cricket Board and that factual controversy Is involved in instant writ petition, therefore, it cquld not be allowed. The ground on which th e appeals of the petitioners were dismissed has been reiterated in the comments.

5 w have heard arguments of leamed

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counsel for the P arties and perused the record.

6 L eam ed counsel for the petilioner has tontentions as mentioned in the writ supported his

petition and rel ed on a judgment passed by Hon'ble Bench of this Co urt in W.P No.124-Pl2014 decided on 7.11.2017, wh e{e in a similar issuel was raised but the same was dismfssed on the ground that thirteen of the members of the club were found to be Afghan citizens/nationaf s which was held to be in clear negation of the rules framed for the pulpose. One of the petitioner in W.P No. 567 of 2017 is hit by this order. Reli ance was also p laced on W.P No.4453- Pl20l6 decided on 17.1.2017, which was allowed and the respondents were directed to give a second chance to peti tioner/club for presenting its members within a period of 30 AT, s. It was also asserted that the writ

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petition 1S maintainable as the respondents arc performing functions under Sports (Development and

Control) Ordindnce, 1962 (XYl of 1962), where-under a Board of Goternor has been constituted which has approved the Pakislan Cricket Board election regulation 201 on 13.6.2015. He submitted that the petitioner/club fills all the requisite criteria to be considered as an "ACTIVE" club and the orders passed by the rpspondents No.3 and 4 are against the relevant rules ahd law on the subject published in the Gazette of Pallistan, Extra August 30th of 2014.

Reliance was placed on 2016 SCMR 2146, 2017 SCMR 571 an d 2017 PLC 1270

7 Le ed counsel for the respondents further referred Io the status of the present petitioner as non-statutory and therefore strongly resisled maintainability b f the instant writ petitions. Reliance is placed on 2013 SCMR 314 and an unreported judgment of I-ahore High Court pas sed in W.P No.

59837 of20l7 decided on23.8.2017.

8 In prder to regulate the development and control of sp or!s in Pakistan, an Ordinance known as Sports (Development and Control) Ordinance, 1962 (XVI of 1962), was promulgated on02.05.1962. Under section 3 thereof the Central Govemment may by notification in the official Gazette constitutea a Board for the control Sf sports in Pakistan. Under section 4,

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the name, conftitution, powers and functions of a

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board shall be uch as may determine by thc Central (iovemment and under section 5, a board may make rules and re sq lations for carrying its objects into cffect i

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9 In brder to appreciate thc controversy as involved in ins th.nt writ petition, it would be necessary l to consider th el re levant provision of Constitution of i

Pakistan Cric k4 t Board published in the Gazette of Pakistan, Extra ion 30.08.2014, wherein an "ACTIVIT" club is defined IN section 2 (ii), means a cricket club which;

a) has pted the model constitution as form ated by the board of Govemors within a Defl d of three months from the date of its comm lcatlon;

b) has n t less than sixteen playing members regist red with the District Cricket Assoc on, or, as the case may bc, zonal crickei Association to which it is afhliatcd and v(rihed by the scrutiny committee of thc board;

c) has {ormulatcd by laws for rcgulating businlss and the conduct of its membcrs; d) participates in every calendar ycar in at least two tdurnamcnts organized by the District CrickOt Association to which it is affiliated or two I other tournamcnts approvcd or recogriized by the Board.

e) does riot belong to any service organization or depf,rtment;

f) has thp use of a pitch wherc net practicc is regulaply held, subject to thc satisfaction of the bohrd.

Explarfration: For the purposc of this clausc, no1 m( [re than thrcc cricket clubs may use thc s netrbitch and nets; and

c) is not ? defaulter of the dues of the concemed Distri 4t Cricket Association;

10.Under Rule (xxix) the rulcs is defined to mean. the rules made by the Board under section 5 of the Sports (Development and Control) Ordinance, 1962 (XVI of 1962). Under para 3 with the heading Pakistan Cricket Board, it is provided that a board to i

be known as. the Pakistan Cricket Board ls constituted which shall manage and regulate subject to and in accordance with this constitution by the Chairman, the Board of Govemors and the general body, thc affairs of the board. Under para 3 (2) the Board shall be p body corporate and has been given even the status 4nd character as required for the body corporate. Under para 3 (3) the Board shall be the governing body of Pakistan Cricket and its primary aim shall be !b promote the game of cricket in Pakistan. Unden para 4 the body, the objects, powers and functions ofthe Board have been laid down and includes promo ti on, develop, supervise and maintain general contro I on all forms of domestic and intemational cribket. Under para 16, the composition of Board of Governors has been given in sub scction l(a) and (b) the different regions have been mentioned from where 04 members are duly elected

on the basis of rotation as per applicable regulations to be members of Board of Govemors. Under para l3 (2), delegation of powers and functions shall not prevent the Board of Govemors from concurrent exercise of powers or performance of functions so delegated. Under para 14 composition of Regional Cricket Associa,tion is laid down. It has been made a condition precedent for all Regional Cricket Association to adopt the model constitution provided by the Board ftom the date of communication from the model con$ titution made by the Board. Under para 14 (2) the Regional Cricket Association shall be responsible to pro mote develop, regulate and maintain generdl control of cricket in their respective reglons. Under para l4(4) the Resional Cricket lssociation may receive funds from the BosLd 44d also eenerate fiinds throush their own efforts. Utder para 14 (5) the electoral college for the elections of Regional Cricket Association shall be the elecled representative of District and Zonal Cricket Associations. Ilnder para 15 District and Zonal Cricket Association are to be formed which shall adopt thc model constitution provided by the Board and shall replace their respective constitution withln three months of, the date of communication of the

model constitution made by the Board. Under para l5

(2)the electo 1 college for the District and, Zonal Cricket Association shall be the ACTIVE clubs on the basis of one-club, one-vote. Its provisions also provide for rcomposition of women Cricket Association, Blind Cricket Council, veterans Cricket Association etc. under para2}, the general body shall recommend to the Board of Govemors to admit any eligible Regio[ral Cricket Association, District Cricket Associdtion or service organization to full membership of the board and grant Associate Membership qf the Board. Under para 29, appointment of Election Commissioncr is provided to discharge such functions as may be prescribed.

Under para 29 (5), the Election Commissioner shall have th e respons ibility for holding and monitoring fair, free and transparent elections under this constrtutron. Under para 29 (6) the Board of Govcmors on the recommendation of the Chairman and in consultation wi th the Election Commisstoner may appolnt one or more Deputy Election Commissioiner Under para 30, the Board shall maintain such b ank accounts as may be determined by them. Un para37, the penal of adjudication is to be appointed for dispute resolution or decision of

appeals. ljnde r para 4 I the Board may make regulations in accordance with the ibid ordinance of 1962. Under p 4l (b), the regulation may provide for holding of elections for Regional Cricket Association or District Cricket Association and clubs including the scrutiny. Under para 45 the Federal Government m ay, ifdeems necessary and expedient,

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make amendmgnt in this constitution by way of repeal, substitution, omission, modification or addition ofany frovision thereof.

11.Under para 41, the Pakistan Cricket Board on 13.06.2015 unanimously approved the elcctions regula[ions 2015 which provides proccdure for club electidns, procedure for scrutiny of clubs, procedure for DistricU Zonall City Cricket Association Eleptions and election regulations for the same. It also provides procedure for elections of Regional Cricket Association and vide annexure A,B and C, the forms of nomination etc for the elections and undertaki6rg has been provided. These regulations havQ been framed by the Pakistan Cricket Board in prr.r'iru.r"" to the powers conferred by section 5 of the ibid Ordinance. The Fcderal Govemment has framed the Constitution that has been published in thc Extra Ordinary Gazette of

Pakistan on 30108.2014 after duly approved by the Federal Govemment. Its publication in the gazette conflers a statutory status, to the said regulations.

12.Thg model constitution is stated to be adopted by the petitioner and was duly presented in their documentd to the officials of Pakistan Cricket Board at the time of scrutiny. The relevant documents are annexed with the writ petitions which also includes bcrutiny assessment forms wherein details and the rlumbers of players is mentioned. The relevant columh shows adaptation of the model constitution thrdugh a tick mark

13.The objection of leamed counsel for the respondents, regarding non maintainability of the writ petition could be aptly met by referring to the publication of ponstitutions of 2014 in the Extra Ordinary Gazette of Pakistan duly approved by the Fcderal Goveminent and as a token thereof signed by Section Office of the Ministry of Inter Provincial Coordination 4n d so approval of the Federal Govemment as a sine qua non for any rules or regulations to be considered as statutory or non- statutory are fulfilled. The function test to consider whethcr the rules are stafutory or non-statutory ls provided in case tifred "Salahuddin Vs Frontier

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Su r Mill elc reported as Eryql4, relevant para is quoted below, " {he primary test must always be the fuictions entrusted to the organization or person concerned are indeed function of lhe state involving some excrcise of sovercign or published power; whcther the control of the organization vcst in a substantial manner in a hand of Government; and whether a bulk of the funlds is provided by the state. If thesc coiditions are fulfilled then the person including a body politic or body corporate, may indeed to be regarded as pensons preforming functions in conncction with the affairs of the fedbration or a Province; otherwise not"

14.'l 'hi s view was also affirmed in the case titled "Atchison Collese Lahore throush Principal Vs. Muhammad Zubair" reported as PLD 2002 SC S. Honorablq Supreme Court of Pakistan yet ln another judgment reported as [!-.,.[M&UpZ has summarized the said test as under, "'fhe principles of law which can be de{uced from the foregoing survey of thc precedent case-law can be summarized as under:--

(D Viotation of Service Rules or Regulations framed by the Statutory bodies under the powers derived from Statutes in abslnce of any adequate or efficacious re4edy can be enforced through writ jurisdiction.

(ii)Where conditions of scrvice of employees of a statutory body are not regirlated by Rules/Regulations framed under the Statute but onlY Rules or Instructions issued for its internal usc' any violation thereof cannot normally be enforced through writ jurisdiction and thcy would be governed by the principle of 'Master and Servant'.

(iii)In all the public employments crcated by ihe Statutory bodies and governed by thc Stafutory Rules/Regulations and unless thole appointments are purcly contractual, the principles of natural justicc cannot bc dis$ensed with in disciplinary proceedings.

(iv)i Where the action of a statutory authority in a servicc matter is in disrcgard of the procedural requircments and is violative of thc principlcs of natural justice, it can be intcrfered with in writ jurisdiction.

(v)That the Removal from Service (Sppcial Powers) Ordinancc, 2000 has an ovelriding effect and after its promulgation QTlh of May, 2000), all the disciplinary prryccdings which had been initiated under the said Ordinance and any order passcd or action taken in disrcgard to the said law woqld be amcnablc to writ jurisdiction of the'Iligh Court under Article 199 of lhe Co$stitution.

15.Under article 199 (1) (a) a High Court, if it is satisfied that no other adequate rcmedy IS providcd ln altt may on the application of any aggricved party make an order:

i)b irecting a person performing within the territorial jurisdiction of the court, fudctions in the connections with thc aflhirs of the federation, a Province or a I ocal authority, to refrain from doing anj,thing he is not pcrmited by law to do or to do anything he is rcquircd bY larl to do; and under clause 5, "person" includes any body politic or corporate, any authority of or under the control of

the Federal Govemment or of a vincial Govemment, and any court or

tri unal, other than the Supreme Court, a High Court or a court or tribunal esteblished under a law relating to the arrned forces ofPakistan".

16.Deriving wisdom from the afore quoted provisions, it can be held that the petitioner are aggrieved parti( s and the Pakistan Cricket Board is a l l

person perfoml ing functions under the control of Federal Government so, therefore, the regulations duly published in the official Gazette after approval by the Federal Govemment are statutory in charactcr and there fore the instant writ petition IS maintainable. Under para 10, the Board of Governor shall include a Federal Secretary, Ministry of Inter Provincial Cooldination, Government of Pakistan, as ex-officio member and under para 12, the functions of Board of G ovemors are prov ided, however the Pakistan Cricket Iloard, Elections Regulations 2015, have been framed and approved by the Board of Govemors. The Board of Govemors is performing functions in connection with the affairs of the Govemment; thus its status is statutory in character by all intents arld purposes. Reference in this regard

can also be made from case titled " Pakistan Telecommunicaiion eoupsav l,tcl l4 Muhsuuad Zahid and others, reported as 2010 scMR 253 para 18 is quoted belpw:-

On an identical question relating to the interpretation of the expression 'person' as usefl in clause (5) of Article 199 of the Cotstitution of Islamic Republic of Pakistan wit[r reference to the extraordinary powers of (ne High Court under Article 201 of the Inti:rim Constitution in issuing writ, it was ruldd that the High Court can exercise powers only in respect of the 'person' performing, within territorial jurisdiction of the Court functions in conncction with the affiirs of the Federation, Province or Local Au(hority and if the 'person' as dcfined in clagse (5) of the Article whose acts, actions or proceedings before the High Court does not fall within the specified categories then it would clearly be not amenable to the exttaordinary jurisdiction of the High Court as held by this Court in the case of Salahuddin and 2 others v. Frontier Sugar Millls and Distillery Ltd., Takht Bhai and l0 others PLD 1975 SC 244.

17.Reliance ls also placed on case title4, "Sha Ahma Khan and others Vs NESCOM throush Chirm an, Islama bad and othe rs. re portcd as P LD 2016 SC 377 , relevant para is reproduced as under,

t'But a survey of all these iudgments would revtal that it is not the sole criterion which mates them statutory or othenvise. It is indeed theii nature and area of elficacy which arc detqrminative of their status. Rules dealing with instFuctions for internal control or management rr4- rre treated as non-statutory while those whose are{ of efficacy is broader and are cofplementary to the paretrt statute in the madterc of crucial importance are strtutory. The Rulbs framcd under Sections 7,9 and 15 of the Act are of that genus or genera as they are not only broader in their area of efficacy but are also complcmentary to the parcnt statutc in the

matters of crucial importance. Yes, these Rules havb not been framed with the intervention and approval of the Fedcral Government, but that worild not prevent them from being statutory.

18.l'h6 game of cricket in Pakistan is being control under *le Sports (Development and Control) Ordinance, 196 (XVI of 1962), besides other games.

The District Cribkct Clubs registered with thc District Cricket Associ 4tion having not less than 16 playing mcmbers and hbving adopted the model constitution as formulated $v the Board of Governors within a period of03 m J nths from the datc of communication besidcs tulfilli nls

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othcr conditions can be termed as

an AC'IIVE Cricket Club. Pctitioners have been declared as $\fACT IVE Cricket Club on thc conditions provldcd in clauses (a) and (b) accept lor one Cricket clup namcly Pak Afghan Cricket Club rn i

W.P No. 567-1W2017. It appears from the record on i

file and as alleged by the petitioners that they have becn victimirdd fot not belonging to specific elections group and other cricket clubs belongs to the successful eleclion group have becn granted thc status of an ACTIVII Club. In this regard rcfcrence is madc to 05 Cridket Club of Dir Lower namcly, Shena Cricket Club, Miskenay Crickct Club, Panthers Cricket Club, Shalimaar Cricket Club and Al-Flayat Crickct Club.

t was stated at the bar and is also

rcfcrred by thb leamed independcnt adjudicator, Pakistan Crick t Board that the petitioner has been discriminated bft the said ground was not considcrcd by thc leamed adjudicator for lack of relevant record.

'l'he relevant reco rd has been annexed with the instant writ pefition which is an order of Deputy Iilection Commissioner, Pakistan Cricket Iloard, datcd 25.11.201i6 passed on the appeal of one of the Clubs i.e Shena] Cricket Club and evcn the report of scrutiny committee of Pakistan Cricket Board dated 04.11.2016 deslaring it as INACTIVIj has becn rcproduced therbin and the appeal was allowed.

19.F'or about 5/ 6 years, thcse areas have suffcred a lot d1.re to militancy and insurgency which has hampered their pace of development and now thcy have joinqd the stream for successful lives of thcir generation. Sports is one of such activity that creates a healthy environment for the betterment of society and if they arc not allowed to participate tn

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thc sports actlvities than certainly the youngcr generations trfn their attention towards un- productive actiyities as faced during the turbulent pcriod. No fruitful purpose would be scrvcd, if the petilioncrs are restrained from actively participating in thc spQrts activities through their l

respcctive cricket clubs which will help the young players having talent to display the samc in the national level af well as in the comity of nations, in thc larger pcr Ipective. Promotion of sports and cultural activiti I s is onc of the primary responsibility of the state whi I h further helps in promotion of social and economic Well-be ing ofthe peoplc, therefore, if the pctitioners bre provided a further chance by thc rcspondents in $crutiny of their antecedents a fres[ it would be more ln the interest of justice rather than to defcat the ends bfj usticc.

20.Anoth er bench of this court in casc tilted, Ko hat Cricket Club Vs Pakistan Crickct Iloard and others" in W.P No. 4453-Pl2016 on 17 .01.2017 allowed the writ petition and held that thc pctitioner club [ad the right to present its member bcfore the r.-]tiny committee and thc decision of rcspondent No. 4 was considered to be harsh in thc given circumsjtances and the petitioner was considcred deserving for bcing given a sccond chancc. It is alSo cssential to mention that this order was challenged in C. P No. 754 of 2Ol7 before thc

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august Suprem q Court of Pakistan and on 26.01.2018 thc said petitign was dismissed as withdrawn as quoted below,

"After arguing the casc at somc lcngth, leatned counsel for thc petitioner wants to withdraw this petition. Dismisscd aclordingly",

2\. S rti arIv in another W.P No. 124- Pl20l7 on 0'1.|.2017, though this court had dismissed the writ petition but only on the ground that the play were Afghan Citizcns/nationals, which was con idered to be in clear negation of the l rules framed fo r the purpose. Hence in W.P No. 576- i

M/2017 both o the players are afghan nationals, so it is dismissed.

22.In none of the remaining cases, such an objcction has been raised, thereforc, rest of the writ pctltlons also deserves to be accepted and the petitioners be allowed another chancc by the rcspondenls tq fulfill thc requisitc criteria as cnvisaged in tile relevant rules. Respondents shall allow another opportunity to the pctitioners accordingly. 'Ihpre is no order as to costs.

Announced. I

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l)ated.07.02.2 0l 1 8

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JI]DG E

(Suatnllah)'D.R' Honlble Mt. Juslice lshliaq tbruhim Honite Mr. Juttice Muhommod Nasir Mohlool

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