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Petitioner: Sindhl NAVEED JAN BALOCH and 3 others VS Respondent: FEDERATION OF PAKISTAN through Secretary, Ministry of Commerce and 4 others
Court Name: Sindh High Court Judge(s): Muhammad Tasnim Title:Sindhl NAVEED JAN BALOCH and 3 others vs FEDERATION OF PAKISTAN
through Secretary, Ministry of Commerce and 4 others Case No.:Miscellaneous Appeal No,5 of 1998 Suit No,61 of 2012 Appeal No,5 of 1998 I.C.A. No,746 of 2011 C.P. No,903 of 2011 C.A. No,746 of 2011 Date of Judgment:2012-02-29 Reported As: 2012 CLD 1339 Result: Application dismissed Judgment ORDER ' MUHAMMAD TASNIM, J.---Through this order, I shall dispose of application (C.M.A. No,492 of 2012) under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C. Filed by the plaintiff No,1, praying therein to grant an injunction restraining defendant No,3 from declaring the defendant No,4 as the elected President of the Federation of Pakistan Chambers of Commerce and Industry (hereinafter called F.P.C.C.I.) for the 2012 turn. 2. Notice of this application was issued to the defendants. In response to the notice, defendant No,3 filed its counter-affidavit. After receipt of counter-affidavit, the plaintiff No,1 filed affidavit-in- rejoinder. 3. For the disposal of this application, facts in brief are that plaintiff is businessman and by virtue of nomination by Gawadar Chamber of Commerce and Industry he is member of General Body of defendant No,3. The elections of defendant No,3 were held on 29-12-2011, in which defendant No,4 contested for the post of President, After the elections, it appears that Maqsood Ismail (defendant No,2), who also contested the election for the post of President. Filed a constitution petition being C.P. No,D-4184 of 2011 before this Court on 26-12-2011. It further appears that in such petition vide order dated 28-12-2011 the learned Division Bench of this Court ordered that the result pertaining to elections of President of defendant No,3-Federation shall not be announced until ordered by this Court in such constitution petition. During the pendency of above petition, present suit was filed by the plaintiff with the following prayers:--
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"(a) Declare that the Trade Organization Rules, 2007 dated 7th June, 2007 are still in force in light of Article 264 of the Constitution of Islamic Republic of Pakistan, 1973. (b) Declare that defendant No,4 was ineligible and/or disqualified from contesting the elections for office of President of the FPCCI. (c) Declare that in view of defendant No,4 being ineligible/disqualified from contesting for the office of President of the FPCCL it is the runner up with the highest number of votes after defendant No,4 who has been elected as President of the FPCCI. (d) Declare that only a true representative of every province, nominated by the Provincial and district level Chambers is eligible to contest for Presidential Elections in the FPCCI. (e) Permanently restrain the defendant No,4 from assuming or exercising the powers of or acting as, the President of FPCCL (f) Permanently restrain the Defendants from putting into effect the results of the Presidential Election of 2012 FPCCI. (g) Any other relief which this honourable Court deems fit and proper in the circumstances of the case. (h) Costs of the Suit." 4. This application was taken up for the first time in Court on 19-1-2012 and after hearing the learned counsel for the plaintiffs and in view of order passed by this Court in C.P.No,D-4184 of 2011 it was ordered that till the next date of hearing result pertaining to the election of President of defendant No,3-Federation shall not be announced till the next date of hearing. 5. In the counter-affidavit defendant No,3 challenged the maintainability of the suit. It was stated in the counter-affidavit that respondent No,3 represents their respective territories in all the respective provinces, the associations are not restricted to any province or district but they are all Pakistan Based Associations comprising of membership from all Pakistan based. Likewise the defendant No,4 represents all Pakistan Contractors Association having its membership on all Pakistan Basis. It was further pleaded that defendant No,4 has been nominated by aforesaid association on Executive Committee as well as on General Body. It was further stated in the counter-affidavit that a provisional list of nominees of all the members Trade Bodies on General ' Body and Executive Committee of FPCCI was circulated on 18-11-2011 as per schedule of Election. Objections were invited which were required to be filed by 23-11-2011 and thereafter provision of filing representations were provided and finally the Election Commission was required to decide such representations by 3-12-2011. Appeal was also provided and the final list of voters/Member Trade Bodies for the General body and Executive Committee- was circulated on 19-12-2011 strictly in accordance with election schedule. It is further stated in the counter-affidavit that the name of defendant No,4 was available in the provisional list of nominees circulated on 18-11-2011, and in the final list of nominees circulated on 19-12-2011, but the plaintiff No,1 has not filed any objection inspite of the opportunity provided as per election schedule. It is further stated in the counter-affidavit that once the defendant No,4 has become member of General Body and member of Executive Committee of FPCCI without any objection he becomes eligible to contest election or the post of President. It is further stated in the counter-affidavit that election for the post of President was held on 29-12-2011. The President FPCCI is elected amongst the members of Executive Committee of FPCCI-defendant No,3 and the Electoral College for said election comprised of the members from entire Pakistan, who come from different parts of the country for casting their votes. It is further stated in the counter-affidavit that plaintiff No,1 filed the present suit in collusion with defendants Nos.5 and 6. 6. On the legal aspect of the matter, defendant No,3 stated in the counter-affidavit that Trade Organizations Ordinance, 2007 so also Trade Organizations Rules, 2007 are not in the field as the Trade Organization Ordinance, 2007 has been repealed by subsequent legislation. It is further
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stated that Trade Organizations Ordinance, 2007 has since been repealed the post of Director General Trade Organizations is no more in existence and has become functus officio. It is further stated that Trade Organizations Ordinance, 2009 along with other Ordinances were declared as invalid by the honourable Supreme Court of Pakistan through judgment dated 31-7-2009 passed in Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879). 7. Mr. Abdul Sattar Pirzada, learned counsel for plaintiff No,1 in support of the above application has submitted that defendant No,4 was not legally competent to contest the election for the post of President of defendant No,3. He further submitted that under the Trade Organizations Rules, 2007 no procedure was ever provided to file objections against the nominations of member of Executive Committee of defendant No,3, who intends to contest the election for the post of office bearers including President. Learned counsel further submitted that in view of adoption of Trade Organizations Rules, 2007 as part of Articles of Association of defendant No,3, such rules are enforceable in Court particularly procedure in relation to process of election in defendant No,3. Learned counsel further submitted that under Article 264 of the Constitution of the Islamic Republic of Pakistan.. 1973 by virtue thereof the temporary law once lapsed, the permanent law, which was repealed by temporary law, is revived. He further submitted that as per provisions of rules of Trade Organizations Rules, 2007 and Articles of Association of defendant No,8 all the four provinces are entitled to nominate one candidate for President on their turn and submitted that this time, it was the turn of Balochistan province. Learned counsel for the plaintiff has also submitted that Trade Organizations Ordinance, 2007 was promulgated on 5-6-2007 and Trade Organizations Rules, 2007 were framed on 7-6-2007 under rule making power as provided under section 31 of the Trade Organizations Ordinance, 2007. He further submitted that Trade Organizations Ordinance, 2007 lapsed in October, 2007, thereafter another Trade Organizations Ordinance, 2007 was promulgated on 14-12-2010 during the period when Provisional Constitutional Order was in force. Learned counsel has also invited attention of the Court to the Articles of Association of defendant No,3 more particularly Article 1(x) dealing with Member Trade Bodies, Article 1(xiv) providing definition of Trade Ordinance, Article 1(xvi) providing definition of Trade Rules, Article 9 dealing with General Body, Article 10 dealing with Executive Committee, Article 12 dealing with President of the defendant No,3, Article 15 dealing with Eligibility to Vote, Article 16 dealing with Election Commission, Article 17 dealing with Election of Office Bearers and Article 18 dealing with the Election Schedule. Learned counsel for the plaintiff further submitted that no right of filing objection has been provided to member to file objection to nomination of candidate contesting for the post of Office Bearers including President. He further submitted that Election Schedule was circulated on 15-10-2011 and elections were held on 29-12-2012. He further submitted that defendant No,4 was not eligible to contest the election as defendant No,4 was not a corporate member in terms of Trade Organizations Rules, 2007. He further submitted that defendant No,4 also did not have turnover of business to Rs,50 Million as required by Trade Organizations Rules, 2007 and Articles of Association. Learned counsel further submitted that NTN number provided by defendant No,4 in the nomination form is 2225784, which is not the NTN number of Messrs Sherani Brothers, but such NTN number belonged to Company namely Messrs Sherani Hajj and Umrah tour Organizers (Pvt.) Ltd. And Messrs Sherani Traders. , He further submitted that Messrs Sherani Hajj and Umrah tour Organizers (Pvt.) Ltd. Is no more a company registered and the same has been dissolved by notification dated 8-9-2010. Learned counsel for the plaintiff No,1 in the end submitted that interim order passed earlier be confirmed and this application be allowed. In support of his contentions learned counsel placed reliance on the following case-law:-- (1) Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879), (2) Zamir Ahmed Shaikh, Ex-Deputy Chief Controller of Purchase/C.F. Pakistan Railways, Lahore v. Pakistan Railways and others (PLD 2000 Lahore 181),
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(3) Umar Mujeeb Shami v. District Magistrate/Deputy Commissioner, Islamabad and others (2003 CLC 430), (4) Karachi Watch v. Imran Fasihi and another (2008 CLC 222), (5) Government of Punjab v. Zia Ullah Khan and others (1992 SCMR 602), (6) Mr League of PIAC Employees v. Federation of Pakistan M/O. Labour and Manpower Division. Islamabad and others (2011 SCMR 1254). 8. Mr. Sameer Ghazanfar, learned counsel for the plaintiffs Nos.3 and 4 submitted that Trade Organizations Rules, 2007 framed on 1-6-2007 are in force inspite of the fact that the law under which such rules were framed had lapsed. He also submitted that statement filed by defendant No,4 on 20-2-2012 shows that defendant No,4's business turnover was only 10 Million. He also submitted that certificate submitted by defendant No,4 does not carry ITN number. In support of his contentions, learned counsel for the plaintiffs Nos.3 and 4 placed reliance on the case of Mian Ahmad Saeed and others v. Election Tribunal For Kasur at Okara and others (2003 SCM R 1611). 9. Mr. Rehman Aziz Malik, learned counsel for the plaintiff No,2 adopted the arguments of Mr. Abdul Sattar Pirzada, learned counsel for the plaintiff No,1 and has relied upon the following case-law:- (1) Manzoor Ali and others v. United Bank Limited (2005 SCM R 1785), (2) Allan Rafi-ud-Din and others v. Chief Settlement and Rehabilitation Commissioner and others (PLD 1971 Supreme Court 252), (3) United Liner Agencies of Pakistan (Pvt.) Ltd. Karachi and others v. Miss Mahenau Agha and others (2003 CLD 183). 10. Conversely, Mr. Khalid Javed, learned counsel for the defendant No,3 has submitted that defendant No,3 Federation was originally incorporated and registered in 1960 under the Companies Act, 19.3. He further submitted that Trade Organizations Ordinance, for the first time, was promulgated in 1961. He further submitted that on repeal of the Companies Act 1913 defendant No,3 was registered under the Companies Ordinance, 1984. Learned counsel further submitted that Trade Organizations Ordinance, 1961 was repealed in 2006 and after expiry of Ordinance, such law was re-promulgated on 5-6-2007. He further submitted that in pursuance to the Trade Organizations Ordinance, 2007. Rules were framed, which were known as Trade Organizations Rules, 2007. He further submitted that by afflux of time Trade Organizations Ordinance, 2007 lapsed. Similarly rules framed thereunder also lapsed and presently they are not in force. Learned counsel further submitted that after lapse of Trade Organizations Ordinance, 2007 another Ordinance known as Trade Organizations Ordinance, 2007 was promulgated on 14-12-2007 and the last Ordinance promulgated on the subject was on 27-11-2009. But at present, according to learned counsel, neither any Trade Organizations Ordinance is in field nor any rules made thereunder. Learned counsel for the defendant No,3 submitted that in view of repeal of Trade Organizations Ordinance, 2007 and rules framed thereunder the affairs of defendant No,3 are being run as per its memorandum and Articles of Association. He further submitted that defendant No,3-Federation is not performing the functions in connection with the affairs of Federation, any province or local authority. He further submitted that Trade Organizations Ordinance, 2007 promulgated on 5-6- 2007 has outlived its life, accordingly, rules framed thereunder also not in force. He further submitted that after lapse of Trade Organizations Ordinance, 2007 earlier Trade Organizations Ordinance, 1961 shall not revive. Learned counsel further submitted that inspite of the fact that neither Trade Organization Ordinance, 2007 is in force nor any rules made thereunder, but elections have been held in line with the provisions of Trade Organizations Rules, 2007. He further submitted that defendant No,4 was eligible to contest the election in terms of Articles of Association and has rightly contested the same. Learned counsel further submitted that plaintiffs have failed to make out, prima facie, case for grant of injunction and balance of convenience also does not lie in their favour. He further submitted that on the contrary irreparable loss shall be caused to the defendant
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No,3, if injunction is confirmed. He submitted that defendant No,3-Federation is suffering due to injunction granted by this Court. Learned counsel relied upon the following case-law:-- (1) Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879), (2) Muhammad Arif and another v. The State and another (1993 SCM R 1589), (3) Unreported order passed by this Court in Miscellaneous Appeal No,5 of 1998 dated 1-2-1999 (4) Unreported order dated 28-12-2011 passed by Balochistan High Court in C.P. No,903 of 2011; and (5) Unreported order dated 24-1-2012 passed in I.C.A. No,746 of 2011 by Lahore High Court. 11. Mr. Baz Muhammad Kakar, learned counsel for the defendant No,4 adopted the arguments of Mr. Khalid Javed, learned counsel for the defendant No,3 and submitted that no prejudice has been caused to the present plaintiffs as President is elected from the Executive Committee, whereas plaintiff No,1 is member of General Body. Learned counsel for defendant No,4 further submitted that defendant No,4 was eligible to contest election and at the time of filing the nomination no objection was raised and the plaintiff No,1 at the behest of other co-plaintiffs and defendants have filed the present collusive suit just to defeat the democratic process through which defendant No,4 has been elected as President. He further submitted that defendant No,4 has been member of defendant No,3 for more than once as member. Executive Committee. He further submitted that defendant No,4 is life member of defendant No,3 and in past no objection, whatsoever nature, has been raised against defendant No,4. He further submitted that after the election, plaintiff No,1 filed the present suit with mala fide intentions. Learned counsel further submitted that interim order passed in this suit be recalled and application be dismissed. 12. I have heard the learned counsel for the parties and have perused the record with their assistance and have also gone through the case-law cited at the bar. 13. From the arguments of the parties and after perusal of the record, following points emerged for consideration by this .Court: -- (i) Whether after expiry of Trade Organizations Ordinance, 2007, the rules framed thereunder shall continue to be in force or shall, abate? (ii) Whether the elections in defendant No,3-Federation were conducted in accordance with the Articles of Association of the Federation and in line with the provisions of Trade Organizations Rules, 2007? (iii) Whether defendant No,4 was eligible to contest the elections for the post of President? (iv) Whether plaintiffs or any of the parties raised any objection at the time of receipt of nomination of defendant No,4 from Pakistan Contractors' Association for the post of President for Balochistan? (v) Whether any objection was filed before the Election Commission by any voter or candidate at the time of submission of nomination papers by defendant No,4 to contest Election as present? (vi) Whether plaintiffs have made out, prima facie. Case for grant of injunction? 14. Now taking up the first point as to whether after expiry of Trade Organizations Ordinance, 2007, the rules framed thereunder shall continue to be in force or shall abate. It is an admitted position that Trade Organizations Ordinance, 2007 was promulgated on 5-6-2007. It is also an admitted position that the Trade Organizations Rules, 2007 were framed under Rules Making Power provided under the above ordinance on 7-6-2007. Trade Organizations Ordinance, 2007 lapsed by afflux of time in October, 2007. Learned counsel for the plaintiff No,1 has submitted that no doubt Trade Organizations rdinance, 2007 promulgated on 5-7-2007 lapsed but the r es made thereunder on 7- 6-2007 shall continue to be in force. He has made the above submission to strengthen/his arguments that the elections of the defendant No, 3-Federation which is under challenge were not held in accordance with the provisions of the Trade Organizations Rules, 2007. 15. To examine the above arguments of the learned counsel for the plaintiff No,1, it will be advantageous to quote repeal of statute as provided in Craies on Statute Law, seventh edition, by
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S. G. G. Edgar, C.B.E., at page-411, as under:-- "When an Act of Parliament is repealed," said Lord Tenterden in Surtees v. Ellison, "it must be considered (except as to transactions past and closed) as if it had never existed. That is the general rule." Tindal C.J. Stated the exception more widely. He said "The effect of repealing a statute is to obliterate it as completely from the records of the Parliament as if it had never been passed: and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law," This rule is recognized in section 38(2) of the Interpretation Act 1889. In order to decide whether any particular transaction is affected by the repeal of an Act, it is necessary to ascertain whether the transaction in question was complete or incomplete at the time the Act was repealed. Thus, if an Act gives a right to do anything, the thing to be done, if only commenced but not completed before the Act is repealed. Must upon the repeal of the Act be left in status quo." 16. Similarly the net result of the above quoted extract is that if a law is repealed then effect of repealing a statute is to obliterate it as completely from the records of the Parliament as if it had never been passed and it must be considered as a law that never existed except for the purpose of those actions which were commenced. Prosecuted and concluded whilst it was an existing law. 17. To ascertain as to what will be the effect on rules or bye-laws made under statute, which were subsequently repealed. The above, proposition of law has been dealt with in Crates on Statute Law, seventh edition; at page-336, as under:- "If the statute under which by-laws are made is repealed, those by-laws are impliedly repealed and cease to have any validity unless the repealing statute contains some provision preserving the validity of the by-law notwithstanding the repeal. This follows from the rule stated below that when an Act of Parliament is repealed it must be considered (except as to transactions past and closed) as if it had never existed. There is nothing in the Interpretation Act .1889 to keep alive by- laws after the repeal of the statute under which they are made." 18. The above legal aspect has been dealt with by the Indian Supreme Court in the case of Harish Chandra v. The State Of Madhya Pradesh (AIR 1965 Supreme Court 932), wherein it has been held as under:-- "We consider that this submission is entirely without force. Mr. Agarwala fairly conceded that the language of S. 24 would not cover a repeal of the Madhya Bharat Scrap Order by the introduction into the Madhya Bharat territory of the Indian Scrap Order, 1943 but he suggested that even though the section was in terms inapplicable, he could invoke the principle underlying it. But this argument. However, proceeds on assuming that S. 24 was declaratory of the common rule of interpretation and that even in the absence of S. 24 the same principle of law would apply,. The position apart from a statutory provision such as is found in S. 24 of the General Clauses Act, is thus summarized in Craies on Statute Law 6th Edn. 334: "If the statute under which bye-laws are made is repealed, those by-laws are impliedly repealed and cease to have any validity unless the repealing statute contains some provision preserving the validity of the by-law notwithstanding the repeal. This follows from the rule 'when an Act of Parliament is repealed it must be considered (except to transactions passed and closed) as if it had never existed." ' This submission, has, therefore, no merit and must be rejected". 19. From the above, it can safely be concluded that when an Act of Parliament is repealed it must be considered (except as to transaction passed and closed) as if it had never existed. It would further follow that any bye-law made under D repealed statute ceases to have any validity unless repealing Act contains some provision preserving the validity of the bye-law notwithstanding the repeal. Admittedly Trade Organizations Ordinance, 2007 died its natural death by operation of statute after expiration of four months, hence there was no question of having any provision
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preserving the validity of the Trade Organizations Rules, 2007. In other words the provisions of the Trade Organizations Ordinance, 2007 and the Rules made thereunder shall not be operative after expiry of four months as provided in Article 89 of the Constitution of Islamic Republic of Pakistan, 1973 and in view of the provisions as contained in the General Clauses Act, 1897. 20. The other arguments raised by the learned counsel for the plaintiff No,1 was that after repeal of temporary law the permanent law, which was repealed by temporary law, is revived. This point has been thoroughly dealt with by the honourable Supreme Court of Pakistan in the case of Air League of PIAC Employees v. Federation of Pakistan WO. Labour and Manpower Division Islamabad and others (supra) in the following words:-- "17. Next question, which has cropped up is that what would be effect of repeal of IRA, 2008. Learned counsel for the petitioner has vehemently argued that in terms of section 6 of General Clauses Act and Article 264 of the Constitution. The IRO, 1969, which was permanent legislation, would be revived. It is to be noted that section 6 of the General Clauses Act applies to the casks where any enactment is repealed by the General Caluses Act or any other Central Act, 'therefore, the same is not applicable in the instant case because of reason that IRA, 2008 was not repealed by any other legislation rather it stood repealed on the expiry of period mentioned in section 87(3) of the Act. Similarly, Article 264 of the Constitution provided that where a law…
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