' 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:-- "(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 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),
(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 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 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 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 is repealed or is deemed to have been repealed, by, under, or by virtue of Constitution, the repeal shall not affect the previous operation of law or anything duly done or suffered under the law; affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; affect any penalty forfeiture of punishment incurred in respect of any offence committed against the law; or affect any investigation legal proceeding or remedy in respect of any such right, privilege, obligation.
Liability, penalty forfeiture or punishment. However, it shall not revive anything not in force or existing at the time at which the repeal takes effect. Article 264 of the Constitution shall not be applicable in the instant case firstly; for the reason that the IRA, 2008 was not repealed by, under, or by virtue of the Constitution, rather it died on expiry of the statutory period. Secondly; the purpose of Article 264 of the Constitution is to provide protection to the operation of law, rights, liabilities accrued, and penalties incurred in respect of any repealed law and does not state that it would provide protection to the laws previously in force. Article 264 of the Constitution is in a language that deals with the effect of repeal of laws and, unless the constitution provides otherwise, nothing will be revived which was not in force or existing at the time when the repeal takes effect. The IRA, 2008, was repealed by its own force in terms of section 87(3). Had it been an Ordinance issued under Article 89 of the Constitution. On the expiry of its statutory period the repealed law would have been revived but the provisions of this Article would not be applicable here because IRA, 2008 is not an Ordinance and has been enacted by the Act of Parliament, therefore, no sooner did it lapse on 30-4-2010, no other law earlier repealed including IRO, 1969 could occupy the field. In addition to it, the mandate of section 6 of General Clauses Act and Article 264 of the Constitution had not provided that on account of repeal, the law previously in field would stand revived as these provisions in broader sense had attached finality to the actions which were already done. The finding given by the High Court of Sindh that after the repeal of IRA, 2008, the IRO, 1969 came back in operation is not tenable. Thus it is held that the IRO, 1969 would not be revived after the repeal of IRA, 2008."
21. In the above noted case the honourable Supreme Court of Pakistan has laid down the rule that in view of Article 264 of the Constitution when law is repealed or deemed to have been repealed by, under, or by virtue of Constitution, the repeal shall not affect the previous operation of law or anything duly done or suffered under the law; affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; affect any penalty forfeiture of punishment incurred in respect of any offence committed against the law; or affect any investigation legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty forfeiture or punishment. However, it shall not revive anything not in force or existing at the time at which the repeal takes effect. Article 264 of the F Constitution shall not be applicable to the case in hand for the simple reason that Trade Organizations Ordinance, 2007 was not repealed by, under, or by virtue of the Constitution, rather it died on expiry of the statutory period. Secondly; the purpose of Article 264 of the Constitution is to provide protection to the operation of law, rights, liabilities accrued. And penalties incurred in respect of any repealed law and F does not state that it would provide protection to the laws previously in force. Article 264 of the Constitution is in a language that deals with the effect of repeal of laws and, unless the constitution provides otherwise, nothing will be revived which was not in force or existing at the time when the repeal takes effect.
22. The judgment cited by learned counsel for the plaintiff No,1 in the case of Sindh High Court Bar Association (supra), it will be noticed that in paragraph 184 of the judgment the honourable Supreme Court of Pakistan while dealing with the provisions of Articles 89 and 128 read with Article 264 of the Constitution of the Islamic Republic of Pakistan, 1973 and section 6 of the General Clauses Act, 1897 has ruled that during the period of the unconstitutional illegal proclamation of emergency i,e, from 3rd November, 2007 to 15th December, 2007 (both days inclusive) It was recorded that on 3rd November, 2007 the Constitution was held in abeyance and Pakistan was made to be governed, as nearly as may be, in accordance with the Constitution, but subject to PCO No,1 of 2007. It was further rioted that Article 4 of the PCO No, I of 2007 provided that notwithstanding the abeyance of the provisions of the Constitution, subject to the orders of the President. All laws other than the Constitution, all Ordinances, Orders, Rules, Bye-laws, Regulations, Notification and other legal instruments in force in any part of the Pakistan, whether made by the President or the Governor of the Province, would continue in force until altered, or repealed by or any authority designated by him. Clause (1) of Article 5 ibid provided that an Ordinance promulgated by President or by the Governor of a Province shall not be subject to any limitation as to duration prescribed in the Constitution. Likewise, under clause (2) of the said Article, an Ordinance issued by the President or by a Governor which was in force immediately before the commencement of Proclamation of Emergency of the 3rd November. 2007 as well as the Ordinances which were promulgated on or after 3rd November, 2007 upto 15th December, 2007 were continued in force as permanent laws and were not laid before the respective . Legislators during the period prescribed by the Constitution. In paragraph-186 of the judgment Proclamation of Emergency and PCO No,1 of 2007 having been declared unconstitutional and void ab initio and, the validity purportedly conferred on all such Ordinances by means of Article 270AAA and by the Judgment in Tikka Iqbal Muhammad Khan's case (Ma Iqbal Muhammad Khan v. General Pervez Musharaf and others (PLD 2008 Supreme Court 6), Tika lqbal Muhammad Khan and others v.
General Pervez Musharaf and others (PLD 2008 Supreme Court 178) and Tika Iqbal Muhammad Khan v. General Pervez Musharraf, Chief of Army Staff Rawalpindi and others (PLD 2008 Supreme Court 615) also having been shorn, such Ordinances would cease to be permanent laws with the result that the life of such Ordinances would be limited to the period specified in Articles 89 and 128 of the Constitution, viz., four months and three months respectively from the date of their promulgation. Under Article 89 of the Constitution, an Ordinance issued by the President. If not so laid before the National Assembly, or both Houses of Parliament, stands repealed on expiration of four months from its promulgation. Similarly, under Article 128 of the Constitution, an Ordinance issued by the Governor, if not so laid before the concerned Provincial Assembly, stands repealed on expiration of three months from its promulgation. It was further observed in paragraph-187 of the judgment that it may be noted that such Ordinances were continued in force throughout under a wrong notion that they had become permanent laws. Thus, the fact remains that on the touchstone of the provisions of Articles 89 and 128 read with Article 264 of the Constitution and section 6 of the General Clauses Act, 1897, only such rights, privileges, obligation, or liabilities would lawfully be protected as were acquired, accrued or incurred under the said Ordinances during the period of four months or three months, as the case may be, from their promulgation, whether before or after 3rd ' November, 2007, and not thereafter, until such Ordinances were enacted as Acts by the Parliament or the concerned Provincial Assembly with retrospective effect. There cannot be any cavil with the legal proposition as laid down by the honourable Supreme Court of Pakistan in the above noted case. Applyinng the above rule to the case in hand it will be noticed that Trade Organizations Ordinance, 20071 was promulgated on 5-6-2007 and by aft-lux of time lapsed/repealed in October, 2007, whereas Provisional H Constitutional Order was issued by President on 3rd November, 2007, which was after the expiry of the Trade IH Organizations Ordinance, 2007, hence the judgment in the case of Sindh High Court Bar Association (supra) is of no help to the learned counsel for the plaintiff No,
1. However, the legal position as laid down in the case of Sindh High Court Bar Association (supra) with regard to provision of Articles 89 and 128 of the Constitution of Islamic Republic of Pakistan, 1973 dealing with the life of an Ordinance is fully applicable to the case in hand.
23. Now the second point, which needs to be considered, is as to 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 the Trade Organizations Rules, 2007. It is an admitted position that while the Trade Organizations Rules, 2007 were in force, they were made part of Articles of Association of defendant No,3Federation. During the course of arguments it was admitted by learned counsel for the plaintiff No,1 that provisions of Trade Organizations Ordinance, 2007 was not in the field when election process in defendant No,3-Federation commenced. He submitted that since provisions of Trade Organizations Rules, 2007 were made part of Articles of Association, they became the part of Articles of Association of defendant No,3-Federation. His submission was that provisions of Trade Organizations Rules, 2007 having become part of the Articles of Association will be applicable in the circumstances of the case. During the course of the arguments minutes of meeting of Executive Committee of defendant No,3 dated 10-9-2011 have been referred, wherein at Sr. No,11.1 following decision was taken:-- "11.1 FPCCI should continue with the election process according to the procedure as laid down in the TOO 2007 Rules."
24. After taking the above decision by defendant No,3-Executive Committee, election schedule of defendant No,3 for the post of President and Vice-President for the term 1st January, 2012 to 31st December, 2012 was issued.
25. A perusal of the schedule of Election shows that clause (1) of Election Schedule provides that notices to the Member Trade Bodies inviting their nominations for the Executive Committee and General Body of defendant No,3 was to be issued by October 15, 2011. Clause (2) of Election Schedule provides that last date of receiving of nomination papers from the Member Trade Bodies was November 12, 2011. In terms of clause (3) of the Election Schedule provisional list of members eligible to vote was to be displayed on the notice board of Head Office and Regional Offices of defendant No,3 and uploaded on website of defendant No,3 by November 18, 2011. In terms of clause (4) of the Election Schedule last date for filing of objections on the voter list to the Secretary-General of defendant No,3 was fixed as November 23, 2011. As per clause (5) of the Election Schedule Secretary-General of defendant No,3 was to intimate action on the objections or changes sent by members by November 26, 2011. In terms of clause (6) of the Election Schedule representations by the member of Trade bodies on the decision of Secretary General to the Election Commission was to be made by November 30, 2011. In terms of clause (7) of the Election Schedule the Election Commission was to decide representations received by December 3, 2011. As per clause (8) of the Election Schedule appeals against the decision of Election Commission to D.G.T.O. Was to be made by December 8, 2011. It is to be pointed out that Director-General Trade Organizations was a forum created under the Trade Organizations Ordinance, 2007. The Director- General was to be appointed by the Federal Government by notification in the Official Gazette under section 11 of the Trade Organizations Ordinance 2007, which was not in force at the time when election process in defendant No,3-Federation commenced. Under clause (9) of the Election Schedule the decisions of D.G.T.O. Against the appeals by representatives of Trade Bodies was, to be finalized by December 16, 2011. In terms of clause (10) of the election Schedule final list of voters was to be issued and to be displayed on the notice board of head office and regional offices of defendant No,3 and it was to be uploaded on the website of the defendant No,3 by December 19, 2011. Under clause (11) of the Election Schedule last date of receipt of nomination for the election of office bearers duly proposed and seconded by the Executive Committee members and signed by candidates to the Election Commission was fixed December 22, 2011. The clause (12) of the Election Schedule provided date for withdrawal of nomination papers from the Election of President and Vice President by December 23, 2011. Under clause (13) of the Election Schedule, the scrutiny of nomination papers of candidates for the office bears by Election Commission and the final list to be displayed by December 24, 2011. Under clause (14) of the Election Schedule the polling for the election of office bearers of defendant No,3 at head office of defendant No,3 at Karachi was to be held on December 29, 2011. Under clause (15), official announcement of Members of the Executive Committee and result of Office Bearers (President and Vice-Presidents) of F.P.C.C.I, for the year 2012. Was to be announced at the annual General Body Meeting on December 30, 2011.
26. Article 9 of the Articles of Association of defendant. No,3 provides that the General Body of the FPCCI shall comprise representatives nominated by the Member Bodies in the manner prescribed thereunder, which provides that two representatives shall be nominated by each licensed Chamber, Association. Women's Chamber and Chamber of Small Traders. If further provides that the representatives shall be members of the nominating trade organizations. It further provides that in the case of a Chamber or Women's Chamber, one representative shall be nominated from each class of members as provided in sub-rule (7) of Trade Rules and in case of an Association, at least one representative shall be nominated from the corporate class. It further provides that member of. The General Body shall hold office for a term of one year beginning from 1st January of the year during the year in which they have been nominated by the. Respective Member Bodies, and shall continue to hold office till the Annual General Meeting, and no fresh nomination shall be made by the concerned Member Bodies unless a vacancy is caused by death or resignation by the nominee concerned. However, the nominations to the Executive Committee shall be for a period of two years until 31st December. In case of delay in holding Annual General Meeting for reasons beyond the control of the incumbent Executive Committee. Extension in time for holding Annual General Meeting may be taken in a manner provided for in the Ordinance/Rules. The composition of the Executive Committee of defendant No,3 has been provided under Article 10 of the Articles of Association, which provides that the Executive Committee of defendant No,3 shall comprise one out of two representatives nominated on the General Body by each Trade Organization, while making nomination, each Trade Organization shall indicate as to which of the two nominees shall represent it on the Executive Committee of the FPCCI It further provides that immediate past President of the FPCCI shall be Ex-officio Member of the Executive Committee without voting right.
Article 11 of the Articles of Association provides that there shall be President and nine Vice- Presidents of the FPCCI to be elected in the manner provided thereunder, whereby there shall be four seats of Vice-Presidents allocated to the Associations for which the electoral college shall be the members of General Body representing the Associations. It further provides that in addition to the seats provided for as above there shall be following four seats of Vice-Presidents allocated to the Chambers and Women's Chamber i,e, one for Punjab including the Islamabad Capital Territory, one for Sindh, one for Khyber Pakhtunkhwa and one for Balochistan. Explanation of. The above article provides that Electoral College for the four seats of Vice-Presidents provided for the above provinces shall be members of General Body representing Chambers and wornen's Chamber from the respective province. In addition to seats provided above, there shall be one seat more for Vice- President allocated to the Chamber of the Small Traders for which the electoral college shall be the members of the General Body representing the Chambers of Small Traders.
27. Article 12 of the Articles of Associationprovides that the President and Vice-President shall be elected from amongst the members of the Executive Committee for a period of one year. The office of the President shall be subject to the rotation as provided in schedule-E to the Trade Rules.
According to which, as per rotation Sindh has to take its turn first, then Khyber Pakhtunkhwa, thereafter Balochistan, then Punjab including Islamabad Capital Territory, then again Sindh and Punjab including Islamabad Capital Territory once again, Provided that the tenure of the Executive Committee and Office Bearers of FPCCI shall remain two years till 31st December. Article 15 deals with the eligibility of the voters and provides that members of the Executive Committee shall be eligible to vote only if they fulfil the condition laid down in section 10 of the Trade Organizations Ordinance, 2007 and the Trade Rules. Article 17 provides that the Election of the Office Bearers of FPCCI shall be held every year as per election schedule announced by the Executive Committee between the Ist October to 31st December. Article 18 deals with the Election Schedule and said article provides that election schedule for the FPCCI shall be approved by the Executive Committee and issued by the Secretary-General in the first half of the October each year. The Schedule shall be displayed at the notice' board of the Head Office and Zonal Offices and displayed at the website of FPCCI and submitted to the Director-General.
28. On the other hand, the Trade Organizations Rules, 2007, though such rules are not in force, if examined, it will be seen that election procedure has been provided under Rule 20 of the Trade Organizations Rules, 2007. Sub-rule (1) to Rule 20 provides that the Election of the trade organization shall be conducted according to the procedure laid down in the respective Articles of Association subject to the condition that the election of the members of Executive Committee shall be held by secret ballot, neither postal ballot nor proxy shall be allowed and the polling shall be held simultaneously at the head office, regional offices or where the number of voters exceeds fifty at the branch offices of the trade organization. Sub-rule 2 to Rule 20 provided that within three days of the announcement of the election schedule member firm desiring to change their representative shall intimate changes regarding name of representative to the Secretary-General along with necessary proof of eligibility. Sub-rule 3 to Rule 20 of the Trade Organizations Rules, 2007 provided that the Secretary-General of trade organization shall display within seven days of the announcement of election schedule, the provisional list of the members eligible to vote along with their national tax number, sales tax registration number, if applicable, the name and national identity card number of their representative and the list shall be displayed at the notice board of the head office of the trade organization and the website of the trade organization. Sub-rule (4) to Rule 20 provided that the members who have any objection to the entries in the list of voters shall send their objections in writing to the Secretary-General within seven days of the issuance of voters' list. Sub-rule (5) to Rule 20 provided that the Secretary-General will intimate action on the objections or changes sent by members within five days from the last day under preceding clause.
Sub-rule (6) to Rule 20 provided that any person aggrieved by the decision of the Secretary- General may make a representation, within three days to the Election Commission which shall decide the case within next three days. Sub-rule (7) to Rule 20 provided that within three days of the decision, of the commission or in case the Commission fails to decide within the stipulated time provided in sub-rule (6), any person aggrieved by the decision of the commission may appeal to the Director-General who shall decide the case within 10 days and his decision in this regard shall be final. Sub-rule (8) to Rule 20 provided that within two days of the decision of Director-General the final voter list shall be displayed at the notice board of the head ' office and regional office of the trade organization, displayed at the website of the trade organization and copy shall be submitted to the Director-General provided that if no appeal has been filed to the Director-General, the final list of voters shall be displayed within fifteen days of the decision of the election commission under sub-rule (6). Sub-rule (9) to Rule 20 provided that within four days of the display of the final list of voters, any person who is eligible to contest the election for the vacant post, shall send his nomination duly proposed and seconded by a duly registered voter and singed by the candidate to the Secretary-General. Sub-rule (10) to Rule 20 provided that within twenty-four hours of receipt of nomination papers a copy of the final list of voters shall be provided to each contesting candidate. Sub-rule (11) to Rule 20 provided that nomination papers shall be scrutinized by the commission and list of candidates shall be displayed within twenty-four hours of the last date of receipt of nomination papers. Sub-rule (12) to Rule 20 provided that the objections, if any, to the nomination of the candidates can be filed to the election commission within twenty-four hours of issuance of the list of candidate, which shall be decided by the election commission within two days. Sub-rule (13) to Rule 20 provided that within two days of decision of the commission or in case the commission fails to decide within stipulated time provided in sub- rule (12), any candidate aggrieved by the decision of the commission may file an appeal to the Director-General, who shall decide within seven days and his decision in this regard shall be final.
29. If the Election Schedule is examined in juxtaposition to the Articles of Association and Trade Organizations Rules, 2007, it will be noticed that election schedule is in line with the provisions of Articles of Association and Trade Organizations Rules, 2007 though such rules are not in force.
Learned counsel for the plaintiff No,1 could not point out any provisions of Articles of Association, which has not been followed by Executive Committee of defendant No,3 at the time of preparing election schedule. Election Schedule has been minutely examined and it has been noted that right of objection/appeal was provided at the very start of the process when nominations were invited by defendant No,3 from Trade Bodies. It further provided that after entertaining the objections, if any: final list of voters was to be prepared. With regard to grievances of the learned counsel for the plaintiff No,1 that appeals to the Director-General Trade Organization were not available to the plaintiff is of no consequences as held above. The Trade Organizations Ordinance, 2007 is not in force hence the forum of the Director General Trade Organizations is not in existence. Since the election schedule appears to have been drawn by following the provisions of Articles of Association of defendant No,3-Federation in its letter and spirit. By virtue of nomination by different trade organization whose nominees became member of General body and Executive Committee without any election at defendant No,3. One President of FPCCI and nine Vice-Presidents of FPCCI were to be elected through election which is to be contested by the members of Executive Committee only, the electoral college for such election is consisting of members of General Body and Executive Committee. It is also admitted position that at the time of finalization of voter list, no objection was received from anyone.
30. In view of above, it is held that elections of defendant No,3 were conducted in accordance with the Articles of Association of Federation and in line with provisions of Trade Organizations Rules, 2007 though such rules are not in force.
31. With regard to third point as to whether defendant No,4 was eligible to contest the elections for the post of President. From the perusal of the record, it appears that defendant No,4, was a member of All Pakistan Contractors' Association having its membership at all Pakistan based.
Defendant No,4 was nominated from the province of Balochistan by the said association at Executive Committee as well as at General Body of FPCCI The provisional list of the nominations of all the Member Trade Bodies, General Body and Executive Committee of FPCCI appears to have been circulated on 18-11-2011 as per schedule. It further appears that objections were invited, which were required to be filed by 23-11-2011 and thereafter provisions for filing representations were provided and finally election commission was required to decide such representations by 3-12- 2011. Appeals were also provided and 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 further appears that name of defendant No,4 was appearing in the provisional list of nominations circulated on 18-11-2011 and the final list of nominees was circulated on 19-12-2011 but the plaintiff appears to have not filed any objection in spite of the opportunity having been provided as per election schedule. As per Articles of Association, defendant No,4 became member of General Body and Executive Committee of FPCCI without any objection and he consequently became eligible to contest the election for the post of President.
32. Learned counsel for the plaintiff has invited the attention of Court to number of documents available on record including NTN number mentioned in the nomination form of defendant No,4.
Learned counsel submitted that defendant No,4 as per nomination form is nominee of Messrs Sherani Brothers having NTN No,2225784. He further submitted that NTN number provided by the defendant No,4 is not the NTN number of Sherani Brother, but in fact it belonged to Company namely Messrs Sherani Hajj and Umrah Tour Organizers (Pvt.) Ltd. He submitted that Messrs Sherani Brothers also does not have turnover of business of Rs,50 Million per annum. Learned counsel furthers submitted that as per Taxpayer Online Verification, NTN number 2225784-5 belonged to two companies 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 registered company and has been dissolved by notification dated 8-9-2010. He further submitted that since the company of the defendant No,4 did not have business turnover of Rs,50 Million, as such he was not legally competent to contest the election for the post of President.
33. On the other hand, learned counsel for the defendant No,4 has submitted that name of defendant No,4 was nominated by All Pakistan Contractors' Association and they have given the NTN number of other company by mistake but such company as well belonged to Haji Fazal Kadir Shiranidefendant No,4. The objection raised by the learned counsel for the plaintiff No,1 at this stage cannot be entertained, as such objection was not raised at the time of receipt of nominations and circulation of provisional list. No objection appears to have been filed at the appropriate stage challenging the nomination or candidature of defendant No,4, which, prima facie, shows that there was no inherent defect in the candidature of defendant No,4, but after the election present suit was filed by plaintiff No,1 only, who was member of General Body and even was not member of Executive Committee. It further appears that defendants Nos.5 and 6 had challenged the Election of defendant No,4 before Balochistan High Court so also before the Lahore High Court, but having failed in their objectives they have joined hands with the plaintiff No,1 in the present proceedings.
34. In my view this is not a proper stage to challenge the eligibility of the defendant No,4 after the Election is over and the opportunity provided during the election process through the election schedule was not availed of by the plaintiffs hence they cannot take advantage of their own wrong at this belated stage. The objection with regard to eligibility of defendant No,4 appears to be an afterthought, which is, accordingly, repelled.
35. Now taking up fourth point as to 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, it is no body's case that at the time of nomination by the Trade Bodies any objection was raised to the nomination of defendant No,4. Learned counsel for the defendant No,4 submitted that eligibility to contest the elections by defendant No,4 was never objected to and no one raised any objection though provisional list of nominations wa's circulated.
He further submitted that defendant No,4 has been member of defendant No,3 more than once as member of Executive Committee and he is also life member of FPCCI. He further submitted that in past as well no such objection was raised about the eligibility of defendant No,4. Learned counsel for defendant No,4 submitted that for the fist time after election, plaintiff No,1 filed present suit on 19-1-2012. It may be pointed out that plaintiff No,1 is member of General Body and he is member of electoral college. But he cannot contest elections for the post of President FPCCI according to Articles of Association of defendant No,3, election for the post of President is to be contested amongst the member of Executive Committee. Learned counsel for the plaintiff could not point out any objection from the record, which was raised by any of the candidates at the time of receipt of nomination of defendant No,4 by defendant No,3. Learned counsel for the plaintiff No,1 also could not meet the objections of defendant No,4 to the effect that he has been member for more than once and as member of Executive Committee and he is also a life member of defendant No,3. No objection appears to have been filed at the time of circulation of provisional list. The objection being raised by the learned counsel for the plaintiff at this stage in the suit appears to be an afterthought and full of malice. No objection was raised at the time of becoming defendant No,4 as member of General Body and Executive Committee of defendant No,3 though time for filing objections was provided as per election schedule. The defendant No,4 was accepted and elected as member of Executive Committee as well as General Body in accordance with Articles of Association and Election Schedule. Thereafter a list of voters was prepared on 19-12-2011 containing the name of defendant, but no objection, whatsoever, was filed. The Election Schedule was issued in terms of Articles of Association with the approval of Executive Committee and the same was issued by Secretary-General in accordance with Articles of Association. Learned counsel for plaintiffs could not point out any violation of Election Schedule. In view of above, point No,4 is answered in negative.
36. Now taking up fifth point as to 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. Perusal of the clause (11) of the Election Schedule shows that last date of receipt of nomination for the election of Office Bearers by Election Commission was 22-12-2011, withdrawal of nomination from election of President or Vice-President of FPCCI was fixed as 23-12- 2011, scrutiny of nomination papers of the candidates for the Office Bearers by Election Commission and list to be finalized in terms of clause (13) of the Election Schedule and such scrutiny is to be done on 24-12-2011. Thereafter actual polling was fixed on 29-12-2011. Learned counsel for the plaintiffs or defendants could not point out from the record that any objection to the candidature of defendant No,4 was filed. Since no objection was raised with regard to candidature of defendant No,4 right from the commencement of election process started from 15-10-2011 till 29-12-2011, any objection at this belated stage is of no consequences. The election of defendant No,3-Federation has been held strictly in accordance with the Articles of Association and in line with the Trade Organizations Rules, 2007. Though such rules are not in force, however, they have been followed by the defendant No,3-Federation.
37. In view of above, objection raised by the plaintiffs to the candidature of defendant No,4 at this stage cannot be entertained.
38. With regard to point as to whether plaintiffs have made out a, prima facie, case for grant of injunction or not, it is suffice to say that plaintiffs have failed to challenge the candidature of defendant No,4 at the appropriate time and now when elections are over and other nine Vice- Presidents, who were elected in the same election along with defendant No,4, have taken over charge of their offices, but only result of the President has not been announced due to passing of the interim order in these proceedings. If ad-interim order passed on 19-1-2012 is allowed to continue, it will run against the democratic process carried on in accordance with law coupled with the facts that plaintiffs and defendant No,5 had ample opportunity to point out the defect, if any, in candidature of defendant No,4 at the appropriate stage. Defendant No,5 and plaintiffs have not availed such opportunity, hence they have failed to make out a case for confirmation of order dated 19-1-2012 against the defendant No,4. Even otherwise no ease for grant of injunction is made out. Consequently, application (C.M.A. No,492 of 2012) is hereby dismissed. Interim order passed on 19-1-2012 in these proceedings is hereby recalled.