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Petitioner: SULTAN MAWJEE AND Other VS Respondent: FEDERATION OF PAKISTAN CHAMBER OF JUDGMENT
Court Name: Sindh High Court Judge(s): Ajmal Mian, B. G. N. Kazi Title:SULTAN MAWJEE AND Other vs FEDERATION OF PAKISTAN CHAMBER OF
JUDGMENT
Reported As: PLD 1982 Karachi 889 Result: Petition dismissed Judgment JUDGMENT AJMAL MIAN, J. The petitioners through this petition . Have prayed for the following reliefs :- "(1) Declaration that the order/directive of respondent No. 2 dated 24th June, 1981 Annexure "B" and are order/decision of respondent No. 1 in rejecting the nomination paper of respondent No. 4 and thus omitting to hold election for the office of President of respondent No. 1 for the year 1981-82 is without lawful authority and to no legal effect. (2) A prohibitory injunction do issue to the respondents Nos. 1 and 2 restraining them from declaring Presidential election results in meeting and from allowing respondent No. 3 from assuming, acting, holding himself out as President of respondent No. 1. The said respondent No. 3 be further restrained from performing any duty as President, and/or from availing any benefit or privilege, appertaining to the said office of President of Respondent No. 1. (3) A mandatory injunction do issue to the respondents Nos. 1 and 2 to fix the date for election of the Presidential office of respondent No. 1 for the year 1981-82 so that the respondents Nos. 3 and 4 may contest such election thus enabling petitioners 1 and 2 and other members of the committee to cast their respective envisaged votes and the result of such election be announced in the prescribed manner by res--pondent No. 1, Any other order or direction deemed fit and proper in the circumstances of the case be passed along with the petition." 2. (a) The brief facts leading to the filing of the above petition are the petitioners Nos. 1 and 2 are the members of the newly-elected Managing Committee of respondent No. 1 (i e. The Federation of Pakistan Chamber of Commerce and Industries). Whereas petitioner No. 3 is the Member of the
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General Body of respondent No. 1, petitioner No. 4 is a member of a cons--tituent Chamber of respondent No. 1. Respondent No. 1 was established on 24-6-1960 and was incorporated under the Companies Act, VII of 1913. The objects of the respondent No. 1 inter alia include "to promote friendly relationship and unanimity of purpose among various Chambers of Com--merce and Industries and Trade and Industrial Associations in Pakistan and. Azad Jammu & Kashmir and to help co- ordination among them and their counterparts in other countries of the world". The President and three Vice-Presidents of respondent No. 1 are annually elected by its Managing Committees. It seems that respondent No. 1 issued a notice dated 14-6-1981 of the annual general meeting for the year 1980-81 (July to June) Sub-para. V of the above notice provided for the announcement of the annual election result for the year 1981-82. It further seems that respondent No. 1 also issued another notice dated 18-6-1981 for the election meeting to elect the President and Vice-Presidents. It also seems that thereafter respondent No. 1's Secretary-General issued a Circular dated 24-6- 1981, in which a letter dated 24-6-1981, received from the Director, Trade Organiza--tion and Deputy Secretary, Ministry of Commerce, Government of Pakistan, Islamabad, directing to earmark Presidentship this year for N: W. F. P. Was reproduced for circulation among the Members of the Managing Com--mittee. It further seems that respondents Nos. 3 and 4 filed their nomi--nation papers. However, respondent No. 4's nomination paper was re--jected by the Secretary-General of respondent No. 1 through the follow--ing note :- "Note.-In view of the Federal Government's directive received vide telex No. 6 (II)/77-T. O. Vol. II dated 24-6-1981 and Clarification of even No. Dated 25-6-1981 also received by telex in response to query by the FPCC & I Secretariat, the nomination of Mr. A. Aziz Zulfiquar, stands rejected. Consequently there is only one valid nomination of Mr. Muhammad Yousuf Zia, for the office of the President F.P.C.C. & I for 1981-82. There is, therefore, no need for balloting." Since only respondent No. 3 remained in the field, no election for the post of the President was held and consequently he was declared as elected. The petitioners being aggrieved by the above directive of respondent No. 2 i.e. The Director of Trade Organization dated 24-6-1981 (referred to herein--above) and also by the fact that respondent No. 3 was declared elected without election, have filed the present petition, inter alia on -the ground that the provisions of Article 15 (b) of the Articles of Association have been violated and that the action of respondent No. 2 is without jurisdiction. (b) Respondent No. 1 has filed a counter-affidavit, in which inter alia it has been averred that respondent No. 2 has issued a directive to the effect that this year the office of the President should be earmarked for a person from N: W. F. P. Who otherwise satisfied all the qualifications and that the above directive was in consonance with section 9 (i) of the Trade Organiza--tion Ordinance, 1961 (hereinafter referred to as the Ordinance). It has been further averred that all acts and proceedings of a registered trade organization are subject to control of the Director, of Trade Organization and the affairs of the Federation of Pakistan Chamber of Commerce and Industries are to be managed and conducted in such a manner as to Director, from time to time may provide which includes the power to cancel, suspend or modify any resolution or decision adopted or made. It has also been averred that the aforesaid directive of respondent No. 2 dated 24-6-1981 was circulated to all members of the outgoing Managing Committee of respondent No. I and that in an emergent meeting of the Managing Committee held under the Presidentship of the - outgoing President on 27-6-1981, the aforesaid directives of the respondent -No. 2 were endorsed unanimously and accordingly the deponent of the counter---affidavit, i. e. the Secretary-General of the respondent No. 1 was direc--ted to act accordingly. It has also been averred that from the list of the post Presidents of respondent No. 1 filed with the counter-affidavit for the years 1960-61 to 1980-81, it is evident that the representative from the .N.-W. F. P. Held the post of the President of
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respondent No. 1 during the last 20 years for three times only i. e. in the years 1963-64, 1968 and 1975. (c) A counter-affidavit has also been filed by respondent No. 2, in which it has been averred that Article 15 (2) of the Articles of Association of respondent No. 1 was amended in the year 1979 and that before the amend--ment, the position was that the President was alternatively elected from among the members of the Managing Committee from the Eastern Zone in one year and from the Western zone in the next year. It has been further averred that with the separation of the East Pakistan, the elections were held in Pakistan from year to year and that amendment in the year 1979 divided the Federation of Pakistan for purposes of these elections into Northern Zone consisting of the Provinces of Punjab and N.-W. F. P. And Southern Zone consisting of Sind and Baluchistan. It was provided that within Northern Zone Punjab would have two yearly chances out of three and N: W. F. P. Would have one chance, in the Southern Zone Sind would have two chances out of three and Baluchistan would have one chance. It has also been averred that the above provision was further amended in April, 1981 which provides for inclusion of Azad Jammu and Kashmir in Northern Zone with the proviso that within Northern Zone Punjab will have two chances out of 4 and N: W. F. P. And Azad Jammu and Kashmir will have one chance each. There was no amendment as to the Southern Zone. It has also been averred that one Mr. Sheikh Ishrat Ali was elected the President of respondent No. 1 from Punjab for the period commencing from February, 1979 to December 1979, and that during his tenure, the above amendment was made in Article 15 (b) and that exen after the expiry of his term in December, 1979, Mr. Ishrat continued to act as such till 3-7-1980 on account of filing of Writ Petition No. 303/80 in this Court and that thereafter, Mr. Mehar Ali from Southern Zone was elected as the President of the Federation for the year 1980-1981 1. e. July, 1980 to June, 1981. It has been further averred that it was in June, 1981, that the ques--tion of election for the next year arose. It has also been averred that representations were made by the members of Sarhad Chamber of Com--merce to the President of Pakistan, Ministry of Commerce, Government of Pakistani to the effected that no member from the Sarhad area was elected to the office of the President of the Federation since the year 1975, and there--fore, they requested that this turn should be assigned to N.-W. F. P. It has also been averred that after taking the aforesaid representations into consideration and finding them to be correct, respondent No. 2 acted in all fairness. Is exercise of his power under section 9 (1) of the Ordi--nance directing that the President for the year to be elected from N: W, F. P. (d) Respondent No. 3 has also filed a counter-affidavit, in which inter alia it has been averred that the petitioners have no locus standi to file the above petition as they were not the candidates for the Presidentship. It has also been averred that in any case without prejudice to the above con-- tention, the petitioners have an alternate remedy by way of appeal to the Central Government in terms of section 15 of the Ordinance. It has also been averred that upon the notification of the date of election of the President some members of the Sarhad Chamber of Commerce approached the Director of Trade Organisation to ensure that the affairs of the res--pondent No. 1 were managed in accordance with its Memorandum and Articles of Association and that in pursuance of the above representations, the above directive was issued. It has been further averred that the directive of respondent No: 2 was unanimously endorsed by the Managing committee of respondent No. 1. It has been denied that the deponent is illegal beneficiary of the directive. It has also been averred that respon--dent No. 4 was the nominee of Gujranwala Chamber of Commerce and Industries and that he could not as such by a candidate for the post of President for the year 1980-1981. It has also been averred that the deponent 4eok over as the President well before 12-30 p.m. When an interim order for status quo was passed by this Court. (e) It may be pertinent to observe that the above petition was filed on 29-6-1981. It was placed for Kutcha Peshi on 30-6-1981, when a Division Bench of this Court while issuing a notice on the
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injunction application to the respondents ordered the maintenance of status quo. It seems that the petitioners filed an application under sections 3 and 4 of the Contempt of Court Act, 1976 (Mist. Appln. 1470/81) for taking action against respon--dent No. 3 and Mr. Siddique (Secretary-General of Respondent No. 1) for having wilfully disobeyed and disregarded the order of status quo. The respondents filed counter-affidavit and also affidavits of numerous persons in support of their averment that no contempt has been committed. The petitioners have also filed numerous affidavits in support of their con--tention that in fact status quo order have been violated. The above appli--cation will be taken up after the disposal of the. Above petition through this judgment. 3. (a) In support of the above petition Mr. Nasim Farooqi, learned counsel for the petitioners has made the following submissions. (i) That the impugned directive of respondent No. 2 is without jurisdic--tion and is in violation of Article 14 (b) of the Articles of Association of respondent No. 1. (ii) That the rejection of respondent No. 4's nomination paper is inoperative being arbitrary and being vitiated by mala fide in law. (iii) That the amendment in Article 15 (b) of respondent No. 1's of the Articles of Association is prospective and not respective in effect. (iv) That the rejection of nomination paper of respondent No. 4 without hearing is in violation of principles of natural justice. (v) That the respondent No. 1 having received respondent No. 4's nomi--nation papers were estopped from rejecting the same. (b) On other hand Mr. Khalid Ishaque, learned counsel for respondent No. 3 had made the following submissions :-- (i) That the petition is not competent as the petitioners have no locus standi to file the same. (ii) That the impugned directive does not violate Article 15 (b) of the Articles of Association of respondent No. 1, but in fact ensured the implementation of the same. (iii) That without prejudice to the above contentions even if it is to be held the impugned directive is in violation of Article 15 (b), the same is legal as under section 9 (i) of the Ordinance, respondent- No. 2 was competent to issue such a directive. (b) Mr. Ali Amjad, learned counsel for respondent No. 1 has adopted the above contention of Mr. Khalid M. Ishaque and has further contended as follows :- (i) That since Article 15 (b) does not provide the mechanism/manner as to how the provinces within a zone will get their turn, respon--dent No. 2 was competent to issue the impugned directive to provide for it. (ii) That the outgoing Managing Committee of respondent No. I was competent to accept the above directive and to act upon it. (iii) That respondent No. 2 has the same power as to the conducting of the affairs as the Managing Committee of respondent No. 1. (d) Mr. Inayat Ali appearing for respondent No. 2 adopted the argu--ments of M. Khalid Ishaque and M. Ali Amjad and contended that if the pre--amble of the Ordinance is to be read with the provisions of the Ordinance, it will be evident that the impugned directive could have been issued by respon--dent No. 2. , (e) Mr. Kazi Mahfooz Advocate, appearing for respondent No. 4 adopted the arguments of the learned counsel for the petitioners Mr. Naseem Farooqui and requested that respondent No. 4 may be transposed as petitioner No. 5. His contention was that the most aggrieved party is respondent No. 4 as his nomination paper was rejected by respondent No. 1's Secretary-General. 4. (a) Before taking up the contentions on merits, it will be appropriate to take up the question of the petitioners' locus standi to file the above petition. In support of his contention that the
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petitioners have no locus standi Mr. Khalid Ishaque, learned counsel for respondent No, 3 has pointed out that admittedly this year the Presidentship was to go to the Northern Zone and, therefore, the petitioners cannot have a grievance as they could not have been a candidate for the same. He has further submitted that none of the petitioners was in fact a candidate and, therefore, they cannot be said to be an aggrieved party, particularly when the Managing Committee of respondent No. 1 adopted the directive of the respondent No. 2 by unanimously endorsing the same. On the other hand Mr. Naseem Farooqui, learned counsel for the petitioners has urged that it is not necessary that the petitioners should have legal right/interest in stricto senso. In support of his above contention he has referred to the case of Mian Fazaldin v. Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223in the case of Arsalla Khan v. Bashir Ahmed Blour and 3 others (PLD 1976 SC 581the case of Messrs Everready Pictures Ltd. v. Government of Pakistan and others (PLD 1979 Kar. 155 (i) Reverting to 1969 SC., it may be observed that the facts of the above case were that the respondent Lahore Improvement Trust formulated a composite scheme consisting of a development scheme and a house accommodation scheme, which was sanctioned by the Government and which was also duly notified in the official Gazette. A plot of land was earmark-- ed in the sanctioned scheme for the construction of a market. However, subsequently, the respondent Trust made an alteration, namely, certain portion of the aforesaid plot reserved for the market was re-allocated for the construction of a mosque. The petitioner was the owner of a house constructed on Plot No. 86-D/1 in the aforesaid scheme. The petitioner's plot was situated very close to the aforesaid plot of land reserved for market. The above petition was opposed by the respondent inter alia on the ground . That the petitioner was not an aggrieved party within the meaning of Article 98 of the late Constitution of Pakistan of 1962. The above petition was dismissed by the High Court inter alia on the above ground. Upon an appeal before the Supreme Court, it was again contended that the petitioner was not an aggrieved party. On the other hand it was urged by the petitioner that he was induced to purchase the aforesaid plot of land because in the sanctioned scheme, the plot in dispute was earmarked for the market, which particularly was opposite to his plot. The Hon'ble Judges of the Supreme Court relying upon the case of Montgdmery Flour & General Mills Ltd. v. Director Food Purchases (PLD 1957 Lah. 914and the case of 1kram Bus Service v. Board of Revenue (PLD 1963 SC 564held that in order to maintain a Writ Petition of the nature, it is not necessary that the petitioner should have a right in the strict juristic senso but it is enough if the petitioner discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or property or frandise. (ii) With reference to 1976 SC it will suffice to observe that in the above case it was held that a person hiding at the auction for collection of octroi duty, complaining of having received no notice of auction is an aggrieved person within the meaning of Article 19 of the Constitution of 1973. (iii) Referring to 1979 Karachi, it may be observed that in the above case a petition was filed by an agent against the decertification of a film. It was contended by the respondent that the petition was not maintainable as the petitioner had no locus standi as he was neither the owner nor the assignee of the film and, therefore, not an aggrieved person within the meaning of Article 199 of the Constitution. A Division Bench, to which one of us was a member after referring to the aforesaid Lahore case of 1977 and the Supreme Court of 1963, held that any person whose interests are affected by the order can maintain a petition for writ or direction and that all the orders of the execution officers are subject to challenge by those affected by the orders and that a person would be deemed to be affected if he loses some benefit or advantage which he would have gained if the order would have been passed in accordance with law.
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(b) It is by now a well-established principle of law that a petition can be maintained by a person, who may not have a legal right/interest in stricto senso, but may have some interest in the proper performance of in act/duty or in passing of an order in accordance with law. In the above petition if we were to hold that the respondents have violated Article 15 (b) and that respondent No. 2 has no power to issue the impugned directive, in our view, the petitioners Nos. 1 and 2 being the members of the new managing committee and petitioner No. 3 being a member of the general body of respondent No. 1 and petitioner No. 4 being a member of a constituent chamber of respondent No. 1 may be interested in the enforcement of Article 15(b) of the Articles of Association of respondent No. 1 and, therefore, they will have sufficient interest as to entitle them to maintain the above petition. . (c) It was also contended by Mr. Nasim Farooqui the main relief pray--ed for in the petition is in the nature of a quo warranto to and that in order to maintain a petition for the above relief, what is required is that a person may lay the information before the Court to the effect that certain person, who not entitled in law to hold a particular public office, is holding the same in violation of the same. In support of his above contention, he has referred to the case of M. U. A. Khan v. Rana M. Sultan and others (PLD 1974 SC 228) In the above case the petitioner had challenged the appointment of the respondent in the petition to the post of Chief Inspector of Mines. West Pakistan, which was dismissed by the High Court inter alia on the ground that the petitioner was not an aggrieved party within the meaning of Article 98 of the late Constitution of 1962. The petitioner filed an appeal which was though dismissed on different grounds, but it was held that the language employed in above Article 98 namely, while sub-clauses (a) and (c) were prefaced with the words "on the application of any aggrieved party" whereas sub-clause (b) of the above Article omitted the phrase "aggrieved party" and used the words in its place "any person", meaning thereby that any person not necessarily an aggrieved party, can be pertinent to observe that clause (b) of Article 98 provided relief in the nature of quo warranto). It will suffice to observe that the above principle was incorporated in clause (b) of Article 98 of the late Constitution of 1962, which was reproduc--ed in Article 199 (i) (b) (ii) of 1972 Constitution on the basis of a well---established convention/principle, obtaining in England that a writ of quo warranto can be sought by any member of the public in respect of a public office. In our view it is not necessary for the decision of the above petition to go into the question, as to whether the Presidentship of respondent No. I's federation is a public office of the nature in respect of which relief of quo warranto can be sought.. 5. (a) Reverting to the contention of Mr. Naseem Farooqui that respon--dent No. 1's impugned directive is in violation of Article 15 (b) of the Articles of Association of respondent No. 1 and is without lawful authority, and that in consequence the rejection of respondent No. 4's nomination paper is illegal and inoperative, it may be pertinent to refer to the above Article 15 (b), the impugned directive and section 9 of the Ordinance under which the impugned directive was issued, which read as follows; President "Art. 15 (b): The managing committee shall elect, from amongst its member of President who shall be called the President of the Federa--tion. The President shall be elected alternately from amongst the member of the Managing Committee from the Northern Zone in one year and from the Southern Zone in the next year provided that the Northern Zone will consist of Punjab and North-Western Frontier Provinces and Azad Jammu and Kashmir and the Southern Zone would consist of Sind and Baluchistan Provinces. Provided further that within Northern Zone Punjab will have two yearly chances out of four and N.-W. F. P. Will have one and Azad Jammu and Kashmir one chance and in the Southern Zone Sind will have two chances out of three and Baluchistan will have one chance."
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"Impugned directive.-The undersigned has received a large number of representations from the members of the Sarhad Chamber of Commerce arid Industry to the effect that the Office of the President of the Federation of Pakistan Chambers of Commerce and Industry for the year beginning with 1st July, 1981 to 30th June, 1982 should be earmarked for a person from N.-W. F. P. In accordance with the principle of rotation stated in Article 15 (b) of the Memorandum and Article of the Association of the Federation. These presentations of the members of the Sarhad Chamber of Commerce and Industry have been examined in consultation with the Ministry of Law and it has been found that in accordance with Article 15 (b) of the Memorandum and Article of the Association of the Federation, it is the turn of the N:-W. F. P. To hold the office of the President for the year beginning with 1st July, 1981 and ending on 30th June, 1982. 2. Therefore, in exercise of the powers conferred on me by section 9 (1) of the Trade Organisation Ordinance, 1961, I direct the Federation to earmark the office of the President of the Federation of Pakistan Chamber of Commerce and Industry for a person, who satisfies all other qualifications to hold the Presidentship of Federation. For a person from N.- W. F. P. For the period mentioned in the preceding paragraph. 3. Kindly acknowledge receipt and report compliance." "Section 9.-(1) All acts and proceedings of a registered trade organiza--tion shall be subject to the control of the (Central) Government and, subject to such control) the affairs of such trade organization shall be managed and conducted in such manner as the Director may, from…
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