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Petitioner: MAHER ALAVI VS Respondent: PAKISTAN AND 5 OTHERS
Court Name: Sindh High Court Judge(s): Fakhruddin G. Ibrahim, Zaffar Hussain Mirza, Tanzil-ur-Rehman Title: MAHER ALAVI vs PAKISTAN AND 5 OTHERS Case No.: Constitutional Petition No, 303 of 1980 Date of Judgment:1980-06-04 Reported As: PLD 1980 Karachi 609 Result: Petition allowed
JUDGMENT
JUDGMENT ' FAKHRUDDIN G. EBRAHIM, J.-This petition calls into question the annulment of petitioner's election as President of the Federation of Chamber of Commerce and Industry, the respondent No, 3 herein, for the years 1980, on a complaint lodged by Raja Abdul Rehman, the respondent No, 5, with the Director, Trade Organisation, Ministry of Commerce, Government of Pakistan, respondent No, 2 herein, in exercise of its power under clause (e) of subsection (2) of section 9 of the Trade Organisation Ordinance, 1961, which clause reads as follows:- "9 (2)(e).-Within thirty days of the announcement of the results of any election held by any such trade organisation, or any body exercising any function relating thereto for the purpose of electing any person to the Executive Committee or other body including regional, circle or zonal "body of such trade organisation or for any other purpose and with the approval of the Central Government, annul such election if he is satisfied,- (0 upon his own knowledge; or (ii) after such investigation as he may think fit to make; or (iii) upon a report made by a person authorised by him to make investigation for the purpose, that the irregularities in the conduct of such election in writing direct fresh election to be held within such period as may be specified in the order;" 2. The respondent No, 3 Federation is a body corporate registered under section 26 of the Companies Act, 1913. Under its Article 15(b) the electorate for the election of its President is the Managing Committee of the Federation which Managing Committee under clause (a) of this article consists of 30 members, including the immediate past President of the Federation who shall be ex office Member of the Managing Committee.
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3. A meeting of the Managing Committee to elect the President of the Federation was held on February 4, 1980. It was presided by Mr. All Amjad, legal counsel of the Federation, who is a senior and respected Member of the Karachi Bar. As would appear from the minutes of this meeting, the correctness of which was not questioned before us, it was announced at the outset that the third contesting candidate for the Presidentship, Mr. G. H. Arshad had withdrawn his nomination and thus the contest remained confined to the two remaining candidates in the field, namely, the petitioner and respondent No, 5. While the ballot papers were being issued to the members who were being called out serially, the respondent No, 5 got up to make the following statement:- "I deposited 14 proxies yesterday on the 3rd February, at 1.58 p. m. I was not issued any list of the voters for whom I had submitted the proxies. I had been only issued the acknowledgement receipt confirming the fact that 14 proxies had been received. I deposited another set of five proxies and a due receipt for the same number was also issued. ' In case of all the nineteen proxies the same was counted in the presence . Of three members of the Managing Committee. The receipt was typed after seeing, checking and counting the proxies. Obviously they scrutinized the genuineness of all the proxies and then I was issued the receipt. ' In the evening when I had left the office at 7 p. m. I received a letter from my office delivered by the office of the Federation. A photo copy of the same is being produced. ' The Federation informed me that they have received only eleven proxies, Under the circumstances I have reasons to believe that the administration of the Federation is not impartial and have deliberately taken away three of proxies. Under the circumstances I beg to boycott the Elections." ' The chair asked respondent No, 5 about the particulars of the proxies which had been deposited by him particularly the names of the members of the Managing Committee who had given the proxies and the names of the proxy holders in whose favour they had been so issued. The respondent No, 5, however, stated that since the Federation had not given any particulars of the proxies deposited by him he could not then give these particulars. The chair called upon the members to exercise their franchise firstly by members present in person. 16 Members of the Managing Committee present personally received the ballot papers. Four members of the Managing Committee including the respondent No, 5 who were personally present did not come forward to exercise their franchise and did not accept the ballot papers. Eight ballot papers were issued to members holding proxies for absentee members of the Managing Committee. Two members, Shaikh Muhammad Akram and Arif Mahmood Shaikh, who were not present but their proxy holders were present but they did not choose to exercise their proxy. After the ballot papers were issued the respondent No, 5 and some other members of the Managing Committee withdrew from the meeting. In all 24 ballot papers were issued but only 21 had been cast and all the votes cast were in favour of the petitioner. 4. Following the above, the respondent No, 5 by a telegram sought the intervention of Director, Trade Organisation, complaining that the proxy papers deposited by him were deliberately misplaced which prejudiced his election and that the third candidate G. R. Arshad who was convassing for his election retired a few minutes before the start of the meeting but all the same his name was not printed on the ballot paper issued to the voters and that the whole affair appeared to be pre-planned and cooked up. The telegram prayed that the result of the election may be directed to be withheld. This telegram was discussed by the Director, Trade Organisation with the Secretary, Commerce who directed him that an enquiry be conducted by the Director Trade Organisation and in the meanwhile the Federation may be asked to withhold the results of the election. This noting is dated 6th February, 1980, and on the same day the Commerce Ministry addressed a letter to the President of the Federation informing him that it had been decided to withhold the results of the election of the Federation till enquiry is conducted and completed and final orders issued by the Federal Government. The telegram also referred to three earlier letters
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addressed to the Federation by the Ministry and concluded by saying that the Director Trade Organisation will conduct the enquiry and will reach Karachi on 9th evening. The telegram did not mention that the respondent No, 5 had made a complaint or for that matter any complaint had been received by the Government and the letters referred to therein did not concern the election of the President of the Federation. These letters refer to the election of the Members of the Managing Committee held on 13-1-1980, which is not the subject-matter of controversy in this petition. It would appear from the Government record that the respondent No, 5 had also personally delivered to the Director Trade Organisation on 7-2-1980 his letter dated 6th February, 1980. The letter starts by saying that the respondent No, 5 was grateful to the Director, Trade Organisation for saving the whole nation from the disasterous consequences of the rigging elections of 1977, which had brought this country, to the brink of the blood civil war and in view of this signal contribution, the respondent No, 5 was approaching the Director, Trade Organisation to institute an impartial enquiry into the rigging that recently took place in the Federation's 1980 elections. The letter complains that respondent No, 5 had been grossly wronged by Shaikh Ishrat Ali, the former President of the Federation during the Annual Election of the Federation held recently, which elections he had tried to manipulate in order to ensure that his cronies should be returned as office-bearers of the Federation for Shaikh Ishrat Ali's past conduct was such that he required a shield. Two irregularities were alleged in relation to the election of the President in this letter. Firstly, it was stated that the respondent No, 5 had deposited 19 proxies and though he had obtained duly signed receipts for the same, what was sought to be handed over to him was only 16 proxies. The letter asserted that even then the respondent No, 5 would have won the election for the President of the Federation as the total number of voters was only 30 to be divided among three candidates, yet the respondent No, 5 decided to boycott the election as a mark of protest against the unfair and foul means adopted by Shaikh Ishrat All to achieve the desired results. The second irregularity that was alleged was that although there were three candidates for Presidentship the third candidate G. H. Arshad had been pursuaded to withdraw his candidature on the polling day and the ballot paper contained the names of only two candidates instead of three which amounted to gross violation of the established norms of election. The letter concluded with a request for annulment of the result of the Federation's Election and an order for fresh election, before which, the outgoing President Shaikh Ishrat Ali should be asked to hand over charge immediately and the newly-elected President namely, the petitioner, should not be allowed to hold office pending fresh elections. Neither the petitioner nor the Federation were at any time informed about the contents of this letter. 5. On 9-2-1980 the Federation received from the Commerce Ministry a telex message dated 7-2- 1980 informing the Federation that the members of the Managing Committee or of the General Body connected with the Presidential Election, election of the Federation desirous of recording (?) may be asked to meet the Director, Trade Organisation on 10th or 11th February, 1980, in the office of the Federation. The Director, Trade Organisation duly arrived, and as it would appear from his report dated 17-2-1980 he got reconstituted the file of the Federation relating to the election of the President and took it in his safe custody, obtained photostat copies of the relevant pages of the register containing the details of the proxies received and as recorded by the office of the Federation, recorded the statements of three contesting candidates, the Presiding Officer, the immediate past President Shaikh Ishrat Ali, General Secretary and Administrative Officer of the Federation and some of the Members-elect of the Managing Committee for the year 1980. He also consulted the constitution of the Federation, its election files, the relevant sections of the Companies Act. He held formal and informal discussion with all concerned, kept a close Watch of the general atmosphere prevailing amongst the members-elect of the Federation and also addressed the three candidates in presence of the past President Shaikh Ishrat Ali and the
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Presidents of the Chamber of Commerce and Industry, Gujranwala and Sukkur with a view to bring about a reconciliation. 6. The Director-Trade Organisation had also issued type questionaire to several members. Syed Inayat Ali, the learned Standing Counsel has been pleased to produce in Court the entire material which was before the Director, Trade Organisation and we have had the benefit of examining the same. 7. On 21-2-1980, an order was communicated to the Secretary-General of the Federation annuling the election of the petitioner as President of the Federation in exercise of the powers conferred by clause (e) of subsection (2) of section 9 of the Trade Organisation Ordinance, 1961. The order recites that irregularities were alleged to have been committed in the election of the President and the Director, Trade Organisation had been satisfied that the investigations made into the allegations have shown that irregularities had in fact taken place in the said election. 8. By another communication the Government gave a new schedule for the election of the President under its supervision to be held on 28-2-1980. 9. The petitioner objected both to the annulment of his election as well as holding of fresh election of the President but has admittedly filed his nomination for the same but under protest and subject to his right to challenge the annulment of his election separately. 10. The present petition was filed on 24-2-1980 and the report submitted by the Director, Trade Organisation to the Government following his enquiry into the petitioner's election as President held on 4-2-1980 was for the first time made available to the parties when the same was filed in the Press proceedings. This report is in three parts ; the preliminary part which speaks of the nature of the enquiry held by the Director, Trade Organisation ; the second part gives the observations of the Director, Trade Organisation which catalog no less than eleven irregularities found by him and this part deals with the conclusions. The concluding part states that a combination of violation of election rules, irregularities on the part of the office-bearers of the Federation, indisciplined conduct of election by the Presiding Officer and undesirable, game of proxy amongst just 30 individuals had resulted in an atmosphere of incordiality, unhealthy politics and no-confidence in the business community. It further states that since no reconciliation amongst the parties concerned had so far been reported the Director, Trade Organisation recommends the annulment of the election of the President of the Federation for the year 1980 held on 4-2-1980 and directed the Federation to hold election afresh under the supervision of the nominee of the Government. 11. Before I come to examine the substance, if any, in the irregularities found by the Director, Trade Organisation it is desirable to ascertain the jurisdiction of the Director, Trade Organization as regards the annulment of an election under the said Ordinance. 12. According to Messrs N. A. Faruqui, Sharaf Faridi and Niaz Ahmed, the learned counsel, for the petitioner, the Federation and respondent No, 6, a member of the Managing Committee, respectively, there is no power in the Director Trade Organisation to annul the election of a President under section 9 of the Ordinance for that power, according to them is limited to annuling the election to the Managing Committee. According to Mr. A. K. Brohi, the learned counsel for the respondent No, 5 not only the Director, Trade Organisation has the power to annul any election held by the Federation including the election of its President but it is within the exclusive domain of the Director, Trade Organisation, for' such reasons as he may deem fit to annul any election so much so that it is not open to this Court to examine its validity or reasonableness. 13. For reasons appearing hereafter it is not possible for me to accept either of the two views propounded by the learned counsel. Firstly, if clause (e) of subsection (2) of section 9 is read in the following manner as was suggested by Mr. A. K. Brohi, it becomes clear that it is open to the Director, Trade Organisation to annul the election of an office-bearer of the. Federation, including its President :-
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"Within 30 days of the announcement of the result of any election held by any such trade organisation, or any body exercising any functions relating thereto for the purpose of electing any person to the Executive Committee or other body or for any other purpose annul such election." ' The field occupied by the Trade Organisation Ordinance, 1961 is very wid and there is, therefore, no reason why the aforesaid clause (e) should be given a narrow and restricted interpretation so as to limit the jurisdiction of the Director, Trade Organisation to annul the elections of members of the Executive Committee only. The expressions, "any election", "any body", or "other body", occurring in this clause coupled with the words `for any other purpose", makes it clear that the law also contemplates annulment of election of office-bearers of a trade organisation including its President. 14. Coming to the argument of Mr. A. K. Brohi, the learned counsel for respondent No, 5, though there is no doubt that the Director, Trade Organisation has the authority to annul the election of an office-bearer of a trade organisation including its President and the enquiry that is to precede such annulment is left to the discretion of the Director, Trade Organisation for he may act upon his own knowledge or adopt for the purpose such procedure as he may deem fit, the irregularities that must be found in the conduct of the election must be such as to justify its annulment. In other words, it must be for justifiable reasons which means reasons germane and pertinent to the election. There must, therefore, be not only an irregularity in the conduct of the election, not every or any irregularity, but such irregularity affecting the result of the election which empowers the Director, Trade Organisation to annul an election. If this be the correct interpretation of section 9, it must follow that if the Director, Trade Organisation annul an election for reasons not only extraneous to election but for reasons no affecting the result of the election he will be doing so in excess of his authority. Furthermore, even the conclusion that any irregularity had affected the result of an election will be open to judicial review by Superior Courts if the reasons given do not in law or in fact justify such a conclusion or arriving at such a conclusion the Director, Trade Organisation had based on no evidence or such evidence on which the conclusion could no reasonably be founded. Such a finding would be in excess of his authority and the Courts will step in to check such excess of Administrative powers. Even in relation to orders made within jurisdiction our Courts have in exercise of jurisdiction under Article 199 of the Constitution struck down the decision of quasi judicial Tribunals as erroneous in law or one that cannot stand the test of reasonableness or in absence of factual basis of administrative determination. I may with advantge refer to some of these decisions. (i) In Mohomed Mohsin Siddiqui v. The Chief Judge, Karachi (1), this Court quashed an order of an Election Tribunal setting aside the election of a candidate and invalidating 339 votes on the ground that the election Tribunal failed to consider whether the irregularities in question had affected the election result. It was further observed that the result of an election cannot be said to be materially affected unless the irregularities had actually turned the scale in favour of the winning candidate. (ii) In the case of Tariq Transport Co: Lahore v. Sargodha Bhirya Bus Service (2), the Supreme Court observed that in each case provisions of the statute under which the action has been taken has to be correctly construed and when on facts found, whether subjectively or objectively, the order in question could not have been made such order would be open to judicial review. (iii) In Farid Ahmed Y. Ghiasuddin Chauahry (3), the Supreme Court in an election dispute observed that though the High Court's power under Article 98 of the 1962 Constitution to interfere with an order of Election (1) PLD 1956 Kar. 203 (2) PLD 1958 SC 437 (3) 1968 SCMR 88 Tribunal was extremely of a limited nature and the Court will not in the exercise of this jurisdiction question a finding of fact by the Tribunal merely on the ground that a different view could be taken
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upon the same evidence but if there is an error patent and so flagrant that no reasonable body of person could arrive at such a conclusion, the High Court can interfere under Article 98. (iv) In the case of Province of East Pakistan v. Abdul Subhan Saudagar (1). The Supreme Court at page 7 of the Judgment observed that the High Court will be entitled to interfere with those conclusions of a Tribunal if acting reasonably a person could not have reached those conclusions at all or where some relevant circumstance has not been taken into consideration or a circumstance in fact irrelevant has affected the decision. (v) In Akbar Ali v. Raisur Rehman (2), the Election Tribunal cancelled certain ballot papers which on the record presented were proved to be free from any defect. The Supreme Court held that the Tribunal had acted wantonly in excluding from count those ballot papers as spoilt and the order was held to be without lawful authority. The earlier decision of the Supreme Court in Mian Jamal Shah's case was referred to and it was observed that it was not to the effect that an untenable interpretation of law by the Election Commission which may amount to excess of jurisdiction or failure to exercise jurisdiction is not susceptible of interference by the High Court. (vi) In the Province of East Pakistan v. Amir Hussain (3), the Supreme Court of Pakistan reversed the finding of guilt of a Government servant because the facts on which he was found by the Screening Committee to be guilty of misconduct were wholly insufficient to sustain it. (vii) In N. M. Khan and another v. The Settlement and Rehabilitation Commissioner (4), the Supreme Court maintained an order made by the High Court under Article 98 of the Constitution which had reversed a finding of fact by the Settlement authorities that the house in dispute was a single independent entity. The Supreme Court observed that the view that prevailed with the Settlement Authorities having been influenced by an erroneous deduction from facts which manifestly could not support an inference reduced their decision to an arbitrary and illegal exercise of power and threw it open to review in writ petition by the High Court. (viii) In Noora v. Settlement and Rehabilitation Commissioner and others (5), the Supreme Court maintained an order made by the High Court in a writ, reversing an order made by a Settlement Commissioner on an interpretation of a document holding that he had misread and misconstrued this document. (ix) In the case of Karachi Electric Supply Corporation v. K E. S. C. Labour Union (6), the question before the Supreme Court was whether the Labour Court had correctly interpreted a settlement between the employer and his employees. The Supreme Court observed that it was the duty of the Court to give true meaning to words appearing in a legal instrument. The Supreme Court held that to place a true construction upon laws and legal instruments of all kinds is the special and peculiar responsibility of (1) PLD 1964 SC 1 (2) PLD 1966 SC 492 (3) PLD 1963 SC 185 (4) 19-0 SCMR 158 (5) 1969 SCMR 517 (6) PLD 1967 SC 513 the Superior Courts and if a subordinate judicial or quasi-judicial authority should be found to have placed an untenable construction upon a legal instrument, the special responsibility of these Courts is attracted for rectifying the matter and that the exercise of lawful authority is subject to the necessity of interpretation of the law which is being applied and where that law is wrongly interpreted the action cannot be held to be otherwise then devoid of lawful authority. (x) In Collector of Central Excise and Land Customs v. Imdad Ali (1), the Supreme Court rejected the evidence of value of the goods imported on the basis of which the importer had been convicted under section 167(8) and (9-B) of the Sea Customs Act on the ground that such evidence could not form the criterion for determining the market rate prevailing on the relevant date. The contention on behalf of the Department that High Court should not have interfered merely because it took a
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different view as to the weight to be attached to evidence relied upon by the Collector, was not accepted. (xi) In the case reported in Muhammad Khan and another v. Chief Settlement and Rehabilitation Commissioner and others (2), the Rehabilitation Authorities sought to dispossess the mortgagees of their possession of the property in dispute. The Supreme Court of Pakistan held that on the true interpretation of section 4 of the Displaced Persons (Land Settlement) Act, 1958, the right, title and interest of the mortgagees had not been acquired by the relevant notification issued under section 4 of the Act. (xii) In the case of Singer Sewing Machine Co. v. Commissioner of Income-tax (3), the Supreme Court of Pakistan issued a Writ interfering with an order of the Income-tax Authorities on the true interpretation of sections 15-B and 33-A-2 of the Income-tax Act. In this case, again, therefore, an administrative order was reviewed upon a true construction of a statute. (xiii) A Division Bench of the Quetta High Court in the case of Nasreen Fatima v. Principal Bolan Medical College (4), graphically detailed in paragraph 27 of its Judgment the…
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