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Appeal from Appellate Decree No. 1005 of 1964, decided on 29th June 1965.
‑Declaratory relief--- Not a matter of absolute right‑Discretionary with Court to grant relief‑Plaintiff's conduct indicating that suit was brought with ulterior motive and not in good faith‑Court entitled to refuse to exercise discretion in favour of such plaintiff.
It is not a matter of absolute right to get a declaratory decree. It is discretionary with the Court to grant it or not and in every case the Court is to exercise a sound judgment as to whether it is reasonable or not under the circumstances of the case to grant the relief asked for. Where the conduct of the plaintiffs indicates that the suit is filed for some other motive and not in good faith, the Court is entitled to refuse to exercise its discretion in favour of the plaintiff's
Kali Prosad Singh v. Makutdhari Prosad Sinha A I R 1933 Pat. 155 and Rev. Robert Dobie v. The Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada (1881‑2) 7 A C 136 distinguished.
Michael v. Briggs and another I L R 14 Mad. 362; Thakur Prasad Saksina v. Firm Sadiq Husain‑Mehdi Husain A I R 1940 Oudh 129; Azizur Rahman Chowdhury v. M. Nasiruddin and others P L D 1965 S C 236 and A. K. M. Fazlul Quader Chowdhury v. Government of Pakistan and another 9 D L R 139 ref.
Sabita Ranjan Pal with Shahabuddin Ahmed, Humayun Kabir Chowdhury and Abu Backkar for Appellants.
Asrarul Hossain, Abdur Rasheed and Rafiqul Huq for Respondents Nos. 1, 8 and 10.
This appeal arises out of a suit for permanent and mandatory injunctions against the defendants with the declaration that the Constitution of the East Pakistan Sports Federation adopted on 19‑4‑1953 is still in existence and that the formation of an ad hoc committee and the framing of a new Constitution in 1962 and rules thereunder are illegal and ultra vires. The case of the plaintiffs is briefly this :‑The East Pakistan Sports Federation was a voluntary organisation for management, control and development of sports and games in the Province. Plaintiffs are members of clubs and organisations duly affiliated with the East Pakistan Sports Federation. Till 1951 the Dacca Sporting Association known as D. S. A. had to manage, conduct and control all sections of games and sport in Dacca. Thereafter the sponsors of the Dacca Sporting Association felt it necessary to reorganize a provincial body to conduct and control sports throughout the Province. With that end in view, the re presentatives from local clubs and other sports organizations of different districts were invited by the said Association and thereby the East Pakistan Sports Association was brought into existence. Before that in 1947‑48, an organization known as East Pakistan Sports Federation was formed. But it existed in papers only without activities. At the initiative of Mr. Habibullah Bahar, the then Minister, the two above‑mentioned bodies were amalgamated in their combined meeting and the East Pakistan Sports Federation came into existence in April 1951. An ad hoc committee was formed with Mr. Habibullah Bahar as President and Mr. S. Rahman as the General Secretary and some others as members with the direction to frame a Constitution for East Pakistan Sports Federation. The said ad hoc committee framed a Constitution and rules which were adopted in the first Annual General Meeting of the East Pakistan Sports Federation on 19‑4‑1953. Thereafter a Governing Body was duly elected under the said Constitution. The ad hoc committee made over charge to the Governing Body in May 1953. Thereafter the Annual General Meeting and the elections were held year to year under the said Constitution of 1953. The election of 1958 was to be held on 31‑10‑1958. But by an order dated the 31st of October 1958, of the Education Department, Government of East Pakistan, the election was stopped on the grounds that the Martial Law Administration had ordered dissolution of the Governing Body and other authorities of the East Pakistan Sports Federation. The General Secretary of the Federation was directed to make over charge to a committee appointed to enquire into the affairs of the East Pakistan Sports Federation.
The Martial Law Administration re‑constituted the Governing Body of the East Pakistan Sports Federation in December 1958. This committee remained in charge with occasional changes of its personnel till the first week of July 1961, when the Martial Law Administration withdrew the order of 1958 and made over charge of the East Pakistan Sports Federation to the Government of East Pakistan for making over charge to East Pakistan Sports Federation.
The Education Department of the Government of East Pakistan then constituted a committee with Mr. Haider, C. S. P., the then Commissioner, Agriculture, as Chairman to advise the control and administration of sports and games in the Province. This committee subsequently constituted itself into an ad hoc committee with co‑option of additional members illegally and Wl0out any authority and jurisdiction and replaced the executive committee of the East Pakistan Sports Federation. Thereafter vacancies were filled up from time to time. The said ad hoc committee at present consists of defendants Nos. 1 to 11 and 13.
From a notification dated 26‑9‑1962 issued by defendant No. 13 as the Secretary of the East Pakistan Sports Federation, the plaintiffs learnt that the said ad hoc committee had prepared a draft of the Constitution of the East Pakistan Sports Federation and had approval of the Government of East Pakistan on 18‑8‑1962, on the basis of the resolution No. SIV 608‑Edn., dated the 7th July 1961 read with resolution No. 629‑Edn. dated 13‑7‑61 and resolution No. 242‑Edn , dated 2nd of May 1962 and the said ad hoc committee constituted an Election Committee under Article 11(c) of the new Constitution to hold the first election. It is alleged that as the Constitution of 1953 was not abrogated or replaced by any competent authority, the framing of the new Constitution and holding of elections under it are illegal and ultra vires of the Constitution of 1953.
Defendants 1 to 3, 8, 10, 13 and 14 contested the suit by a joint written statement. Defence is briefly this: ‑With the dissolution of the Governing Bodies and other authorities of the East Pakistan Sports Federation by the order dated 31‑10‑1958 of the Martial Law Administration, there was abrogation of the Constitution of 1953 and dissolution of the East Pakistan Sports Federation of 1953. The committee appointed by the Martial Law Administration to manage the affairs of the East Pakistan Sports Federation existed till 7‑7‑1961. Thereafter the Governor of the Province constituted a committee to advise on the control and administration of games and sports of the Province and asked the committee, amongst other matters, to draft a proper Constitution for the East Pakistan Sports Federation. In pursuance of the direction an ad hoc committee was formed on 22‑7‑1961. This committee drafted the new Constitution and on 18‑8‑1962 it was submitted to the relevant authority of the Government for approval. The Education Department approved the same vide D. O. No. 720 dated 28‑8‑1962‑Edn.. Government of East Pakistan. Then an election committee was duly constituted with defendants 8 to 13 as members to hold the first elections of the East Pakistan Sports Federation by November 1962. The election rules were framed under Article 23 of the said Constitution. These rules were duly circulated.
Plaintiffs Nos. 1 and 2 took part in that election and exercised their right of franchise under the Constitution of 1961.. They never challenged the jurisdiction of any committee or order passed since dissolution of the Governing Body on 31‑10‑1958. Plaintiffs by their active participation in sports, games and election, under the Constitution of 1962 have acquiesced and waived their right to challenge the validity of the new bodies and the Constitution. It is alleged that the suit is a mala fide one and that it has been instituted as a result of the plaintiffs' defeat in the election. It is stated that in the circumstances, plaintiffs are not entitled to any relief.
The trial Court held that the Martial Law Authority dissolved only the Governing Body and the sectional committees of the East Pakistan Sports Federation. The learned Munsif was of opinion that the Martial Law Authority did not abrogate the Constitution of 1953 and did not dissolve the General Council, i.e., the General Committee. The learned Munsif held that after the withdrawal of the control of the Martial Law Authority from the East Pakistan Sports Federation, the Constitution of 1953 came into force. Accordingly it was held that the Constitution of 1962 and the elections held under it were illegal and ultra vires and that the defendants were not entitled to manage and control the sports and games in the name of East Pakistan Sports Federation. It was also held that the suit was not barred by estoppel or acquiescence. Accordingly, the suit was decreed.
On appeal, the learned Additional District Judge held that by the letter Exh. A(3) dated 31‑10‑1958, the Martial Law Authority dissolved not only the Governing Bodies and sectional committees but also other authorities of the East Pakistan Sports Federation and the effect of Exh. A(3) was the abrogation of the Constitution of 1953. The learned Judge also held that the new Constitution of 1962 was valid. It was also held that the plaintiffs had no locus standi to maintain the suits in their personal capacities. Accordingly the appeal was allowed, the decision of the trial Court was reversed and the suit was dismissed. Hence this appeal at the instance of the plaintiffs.
Mr. Sabita Ranjan Pal, learned Advocate on behalf of the appellants has contended that by the letter Exh. A(3) the East Pakistan Sports Federation was not dissolved and by it there was no abrogation of the Constitution of 1953. The letter Exh. A(3) dated 31st October 1958, was from the Secretary, Education Department, Government of East Pakistan to the General Secretary, East Pakistan Sports Federation. The relevant portion of the letter for the purpose of this appeal is as follows:‑
"I am directed to say that the Martial Law Administrator has ordered the dissolution of the Governing Body and other Authorities of the East Pakistan Sports Federation with immediate effect. It is accordingly ordered that the Governing Body and other authorities of the East Pakistan Sports Federation stand dissolved with effect from the 31st October 1958."
The contention of Mr. Pal is that by the letter Exh. A(3) only the Governing Body under Article 9 and the sectional committees under Article 10 of the Constitution of 1953 were dissolved and that the General Council, i.e., the General Committee under Article 8 of the East Pakistan Sports Federation continued. It has also been argued that as in the letter Exh. A(3) there was no reference to the Constitution of 1953, the Constitution was not abrogated.
Mr. Asrarul Hossain, learned counsel on behalf of the respondents has contended in reply that there was abrogation of the Constitution of 1953 by virtue of the letter Exh. A (3), because by it the Governing Body and other authorities of the East Pakistan Sports Federation were dissolved. It has also been argued that even if it be held that by Exh. A(3) the Constitution of 1953 was not abrogated, it became non‑existent because of subsequent conduct of the parties.
In the letter Exh. A(3), there is mention of the dissolution of the Governing Body and other authorities of the East Pakistan Sports Federation. Membership under Article 7, General Committee under Article 8, Governing Body under Article 9 and Sectional Committees under Article 10, appear to be the authorities under the Constitution of 1953.
Mr. Pal has contended that the General Committee and membership cannot be regarded as authorities. In Article 8, it is stated thus:‑
"The duties of the General Committees shall be to elect members of the Governing Body and to formulate general policy and a principle upon which the administration of the Association shall be carried out."
In view of this statement, it cannot be held that General Committee under Article 8 of the Constitution of 1953 was not an authority.
Membership is also an authority. This will appear from Articles 18 and 19 and clause (e) of Article 20 of the Constitution of 1953 which are as follows:‑
"Article 18. Annual General Meeting.‑The Annual General Meeting of the Federation shall be held in the last week of October each year at a time and place to be fixed by the Governing Body to transact the following business. (1) Adoption of Annual Report, (2) Passing of Audited Accounts, (3) Election of Governing Body Members, (4) Election of Auditors, (5) Amendment of Constitution if necessary, (6) Dispose other business for which 15 days' notice has been given to the Honorary General Secretary in writing.
30 days' notice of the time and place and the business to be transacted at the meeting shall be given to each member and office‑bearer.
20 Members present at each meeting shall form a quorum."
Article 19. Extraordinary General Meeting ‑An extra ordinary General meeting may be called by the Honorary General Secretary upon receipt of a written notice or requisition signed by 10 members having voting power or by the President. 15 days notice of the time and place of such meeting with the object thereof shall be given to each member of the Federation, 10 members present at such meeting shall form the quorum."
Article 20(e):‑‑
"All ordinary business of the General Meeting shall be decided by bare majority of votes by show of hands unless a ballot is directed by the Chairman or demanded by not less than 6 persons present entitled to vote. In the case of equality of votes, the Chairman shall have a second or casting vote."
These show that members of the Federation were the authority to elect the Governing Body, amend the Constitution and do other important works. 10 members had the right to call extraordinary meeting. In view of the provisions of Articles 18 and 19 and clause (e) of Article 20, 1 cannot accept the contention that membership was not an authority. The effect of the dissolution of membership, General Committee or General Council, Governing Body and sectional committees was the dissolution of the East Pakistan Sports Federation formed in 1953 and abrogation of the Constitution of 1953.
The East Pakistan Sports Federation constituted in 1953 was an unincorporated body. It could not remain in a state of suspense after dissolution of the authorities mentioned in its Constitution. In the circumstances, I cannot accept the contention that as there was no reference to the Constitution in the letter Exh. A(3), and there was no abrogation of the Constitution of 1953.
Mr. Asrarul Hossain, learned counsel, has also contended that in case it be held that there was no abrogation of the Constitution by virtue of the letter Exh. A(3), it has been abrogated by conduct of the parties. As I have already expressed my view that the letter Exh. A(3) had the effect of abrogation of the Constitution, it is not necessary to enter into the merits of the alternative contention. However, as 'the contention has been mooted, I think, I should give my opinion on this point.
The contention of the learned counsel is that as membership of the Federation could be renewed annually on payment of annual subscription under clause (4) of Article 7 and as on default of payment of dues within due date as stated in clause (5) of Article 7 read with clause (b) of Article 16 and Article 17, the membership of the different member organizations terminated. It has been represented that there was no payment of annual subscriptions during the period from 1st of November 1958 to 7th of July 1961.
Mr. Pal, the learned Advocate for appellants, has contended that this is a new case made at the time of argument in second appeal and that no such case was made in the written statement that membership ceased because of non‑payment of annual subscriptions. There was no scope for the defendants to raise this point of non‑payment of annual subscriptions in the written statement, because in the plaint it was nowhere stated that the annual subscriptions were paid by different member‑organizations or member‑clubs. On the contrary in paragraph 9 of the plaint, there is mention about outstanding dues.
Mr. Pal has also contended that the fact that the sports went on during the period from November 1958, till the first week of July 1961, indicates that membership continued on payment of subscriptions. This contention has no force because of absence of any such case in the plaint.
It may be observed that there could not be any question of payment of annual subscription by any member clubs as membership was dissolved due to the letter Exh. A(3) on 31‑10‑1958. If the letter Exh. A(3) had not the effect of abrogation of the Constitution, 1 would have held that the Constitution had ceased to exist because of the subsequent conduct of the member clubs.
The learned Advocate for the appellants has also contended that it cannot be held that the East Pakistan Sports Federation as constituted under the Constitution of 1953, did not exist, because it was the case of defendants also that it had existence during the period from November 1958, till the 7th of July 1961. I cannot agree with this contention in view of the following statement in paragraph 21 sub‑paragraph (g) of the written statement:
"That soon after the promulgation of the Martial Law in the country the East Pakistan Sports Federation was dissolved and it would be a constitutional paradox to presume that though the organisation was dissolved its constitution subsisted."
The learned Advocate for the appellants has also referred to the term "existing" in Exh. A(7) in support of the contention that the East Pakistan Sports Federation of 1953 was in existence. Exh. A(7) contains a resolution dated 7th July 1961, Government of East Pakistan, Education Department stating that the Governor was pleases: to constitute a committee with the Officers mentioned in it to advise, on control and administration of sports and games ill tile Province:
Clause (iii) to paragraph 2 of Exh. A(7) is as follows:‑
"Recommendation on proposal for an ad hoc committee to look after the affairs of the existing East Pakistan Sports Federation pending finalisation of its Constitution."
The term "existing" in Exh. A(7) means the East Pakistan Sports Federation of that period and not the East Pakistan Sports Federation of 1953. Had it meant the East Pakistan Sports Federation of 1953, the use of the word "existing" would be redundant.
It also may be mentioned here that in the representation Exh. 6 submitted by the plaintiffs and some others to the Governor, the Constitution of 1953 has been mentioned as "late Constitution". This also indicates that the Constitution of 1953 was not in existence after 31‑10‑1958.
The learned Advocate for the appellants has also argued that the Constitution of the East Pakistan Sports Federation framed in 1962 was not valid and that it did not supersede the Constitution of 1953. In this connection the learned Advocate has drawn attention to. Exh. B(7) dated 7‑7‑1961 and B(1), a letter dated the 28th of August 1962. In Exh. B(7) there is mention of the Constitution of an ad hoc committee by the Governor for the preparation of a Constitution for the East Pakistan Sports Federation. In Exh. B(1) it is mentioned that the Constitution of the East Pakistan Sports Federation as drafted by the ad hoc committee was approved by the Government. The contention of the learned Advocate is that the Governor who is a patron under the Constitution of 1953 bad no power to constitute an ad hoc committee for preparation of a Constitution. But Exh. A(7) does not indicate that the Governor framed the ad hoc Committee for preparation of the Constitution as a patron. There was no question of his acting as patron under the Constitution of 1953 because it had no existence at that time. In paragraph 5 of the plaint it has been stated that the Martial Law Administration withdrew the order of 1958 and made over the charge of the East Pakistan Sports Federation to the Government of East Pakistan, Education Department, to make over the same to the East Pakistan Sports Federation authority. As there was no existence of the East Pakistan Sports Federation, 1953 and there was abrogation of the Constitution of 1953, there was no bar for the Governor to constitute a committee for preparation of a constitution relating to East Pakistan Sports Federation. So the Constitution framed in 1962 by the ad hoc committee on the basis of the order of the Governor was valid.
Mr. Pal has argued that the suit is not barred by estoppel as the plaintiffs did not make any representation to the defendants and as the defendant did not act on such representation.
Mr. Asrarul Hossain, learned counsel, also did not state in his reply that the suit was barred by estoppel. The lower appellate Court also did not hold, that the suit was barred by estoppel. I accept the contention that the suit was not barred by estoppel.
The learned Advocate for the appellants has argued that the suit was not barred by acquiescence. The contention of the learned Advocate is that void or illegal act cannot be made valid by acquiescence. The learned counsel for the respondents did not challenge this proposition of law. In this case it has been found by the Courts below that plaintiffs participated in all activities of sports and games after the Constitution of 1962 and that they also participated in the election held on 24‑10‑62. The trial Court remarked.
"There is no dispute that plaintiffs participated in all activities of sports and games and also in the election held on 24‑10‑62."
After taking part in the sports and games and in the election held under the new Constitution, plaintiffs cannot challenge the validity of the Constitution of 1962 because of their acquiescence. The suit is barred by acquiescence. I have already stated that the Constitution of 1962 is valid.
The learned Advocate for the appellants has also argued that the plaintiffs had locus standi to institute the suit and that the suit is maintainable under section 42 of the Specific Relief Act. The contention of the learned Advocate is that as voters of the East Pakistan Sports Federation, plaintiff's bad right to challenge the validity of the Constitution of 1962 and as such, they have locus standi to bring the suit. In support of this contention, the learned Advocate has referred to the cases in Kali Prosad Singh v. Makutdhari Prosad Sinha (A I R 1933 Pat. 155) and Rev. Robert Dobie v. The Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada ((1881‑2) 7 A C 136).
The facts in the case of Kali Prosad Singh v. Makutadhari Prosad Sinha are distinguishable from those in the instant case. In that case the suit was brought by a candidate whose nomination was rejected by the Returning Officer and as such, he was deprived of his right to stand for the election. It has been held in that case that the order of Returning Officer summarily rejecting the nomination of a candidate could be challenged under section 42, Specific Relief Act, because the arbitrary decision of the Returning Officer not only took away the right of the candidate to stand for election, but also deprived the electors of the exercise of their right of franchise in choosing their own representative. Plaintiffs have brought this suit in their personal capacities. But they were not voters in the East Pakistan Sports Federation of 1953 in their personal capacities. According to Article 6 of the Constitution of 1953 read with clause (1) of Article 7, only clubs and organizations could be members of the Federation. So the personal right of the plaintiffs was not affected because of the abrogation of the Constitution of 1953 or of the formation of the Constitution of 1962.
In the case of the Rev. Robert Dobie v. The Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada ; it was held that a suit by a plaintiff for declaration that a particular Act was invalid was not barred by the reason that the Act was passed in conformity with the resolution of the synod of the Church to which he belonged. The facts of that case are entirely different from those in the present case. The principle laid down in that case is of no assistance to the appellants in this case.
In paragraph 1 of the plaint it is stated that plaintiff No. 1 is the Vice‑President of the National Sporting Club and was duly authorised to represent the club as a voter from the said club in the Cricket Club Constituency. It is stated that the plaintiff No. 2 is the Honorary Joint Secretary of the Dacca Wanderers Club and was duly authorised to represent the club as a voter and candidate from the said club in the Volleyball and Badminton Clubs Constituency and the plaintiff No. 3 was the Honorary Secretary of the Quad‑i‑Azam Physical Training School (Institute) and was authorised to be a candidate from the said institute in the Wrestling, Weight‑lifting, Boxing and Gymnastic Clubs Constituency. Thus if it be held that plaintiffs Nos. 1, 2 and 3 instituted the suit as Vice‑President of the National Sporting Club, Honorary Secretary of the Dacca Wanderers Club and as the Honorary Secretary of the Quad‑i‑Azam Physical Training Institute respectively, the suit would not be maintainable, as in the case of unincorporated associations and clubs, the Secretary or any other Officer of the institution cannot sue or be sued. This view finds support in the cases in Michael v. Briggs and another (I L R 14 Mad. 362) and Thakur Prasad Saksina v. Firm Sadiq Husain Mehdi Husain (A I R 1940 Oudh 129).
In the case of Michael v. Briggs and another it has been laid down that an action to recover the price of goods supplied to a member of a non‑proprietary club, or on his responsibility cannot be brought in the name of the Secretary of the Club.
In the case of Thakur Prasad Saksena and another v. Firm Sadiq Husain‑Mehdi Husain it has been laid down that no one member of an association or an unregistered body could alone sue or be sued.
There is also nothing in the plaint to indicate that plaintiffs 1, 2 and 3 were authorised by their respective clubs to bring the suit. In any view of the case, whether the plaintiffs instituted the suit in their personal capacities or as members of their respective clubs, they have no locus standi to bring the suit and the suit is not maintainable at their instance.
The learned counsel for the respondents has also contended that plaintiffs were not entitled to relief, as declaration under section 42 of the Specific Relief Act is a matter of discretion of the Court and that the discretion is not to be exercised as everything relating to Sports in Dacca is going on well. In support of this contention the learned counsel has referred to the case of Azizur Rahman Chowdhury v. M. Nasiruddin and others (P L D 1965 S C 236).
In view of the fact that the suit was dismissed by the lower appellate Court on discussion of questions on merits, it is not necessary to enter into this question. But as the point has been raised, I would like to express my opinion.
It is not a matter of absolute right to get a declaratory decree. It is discretionary with the Court to grant it or not and in every case the Court is to exercise a sound judgment as to whether it is reasonable or not under the circumstances of the case to grant the relief asked for. Where the conduct of the plaintiffs indicates that the suit is filed for some other motive and not in good faith, the Court is entitled to refuse to exercise its discretion in favour of the plaintiffs. See Azizur Rahman Chowdhury v. M. Nasiruddin and others and A. K. M. Fazlul Quader Chowdhury v. Government of Pakistan and another (9 D L R 139).
In the present case the finding of the Courts below is that plaintiffs took part in sports and games arranged under the rules of the Constitution of 1962. It was found that plaintiffs took part in the election held on 24‑10‑62. The lower appellate Court has also found that plaintiffs were defeated in the election and that being frustrated in the election, they instituted the suit to undo what was brought into existence. The plaint does not indicate that plaintiffs or their clubs have any grievance about the management of sports and games by the defendants in accordance with the rules under the Constitution of 1962. The conduct and motive of the plaintiffs indicate that they have not brought the suit in good faith. On this ground also the plaintiffs would not be entitled to any declaration.
The lower appellate Court rightly dismissed the suit. There is no ground to interfere with the decision of the lower appellate Court.
The appeal is dismissed with costs and the judgment and decree passed by the lower appellate Court are affirmed.
The applications for striking the names of respondents Nos. 3, 6, 7, 13 and 14 of the memorandum of appeal are allowed. Let the, names of respondents Nos. 3, 6, 7, 13 and 14, be struck off the memorandum of appeal, as prayed for.
Civil Rule No. 417(s) of 1964 is discharged without any order as to costs.
The learned Advocate for the appellants prays for leave to appeal under clause 15 of the Letters Patent. The prayer is refused.
S. Q.
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