' IJAZ UL AHSAN, L---The appellant is aggrieved of an order dated 20-10-2010 passed by a learned Single Bench of this Court. Through the impugned order a constitutional petition filed by respondent No.1 was allowed and a demand of Rs. 19,000 as service and warranty charges made by the appellant and respondent No.4 was declared to have been created without lawful authority and of no legal effect.
2. Facts of the case are that respondent No.1 booked a tractor through respondent No.4 by availing a loan facility from Zarai Taraqiati Bank Limited, Pasroor. The appellant asked respondent No.1 to present a demand draft for delivery of the tractor and the same was presented. Subsequently, a further amount of Rs.19,000 was demanded as service and warranty charges which was challenged before this Court through a constitutional petition.
3. It appears that the actual price of the tractor was Rs.3,20,000 and the demand of Rs.19,000 was over and above the said price by way of service and warranty charges. The said charges were contested on the ground that the .Same were violative of S.R.O. No.839(1)/98 issued by the Federal Government. After hearing the parties, the learned Single Bench allowed the petition and held the claim of the aforenoted amount of Rs.19,000 to have been created without lawful authority. The said order is impugned in this appeal.
4. The learned counsel for the appellant has mainly argued that the appellant as well as respondent No.4 are private persons. No writ could be issued against them in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. He maintains that it is an established principle of law that an order under Article 199 of the Constitution can only be made against a person who is performing functions in connection with the affairs of the Federation, a province or a local authority. He maintains that the appellant does not fall in any of the aforesaid categories and being a limited company with private management and shareholders was not amenable to the constitutional jurisdiction of this Court.
5. The learned counsel for the respondent, on the other hand, has supported the impugned judgment. He maintains that an unlawful demand had been raised by the appellant company and this Court has the jurisdiction to interfere in matters, in which injustice is being done. Further the appellant company is regulated by the Securities and Exchange Commission of Pakistan, which is a state functionary, as such the learned Single Bench was justified in interfering in the matter and issuing a writ restraining the appellant from recovering warranty and service charges of Rs.19,000 from respondent No.1 in an illegal and unlawful manner.
6. We have heard the learned counsel for the parties and gone through the record. The only question requiring determination by this Court is whether a writ could be issued against a private company, which has private management and private shareholders. On hearing the learned counsel for the parties and examination of the record, our response to the said query is in the negative for the following reasons:--
(i) This Court exercises jurisdiction subject to the Constitution and the law. Writ jurisdiction is exercised under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The relevant portion of Article 199 of the Constitution is reproduced below for ease of reference:- 199 Jurisdiction of High Court.
(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,--
(a) on the application of any aggrieved party, make an order--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or ' A plain reading of the portion of Article 199 of the Constitution reproduced above indicates the following:-- I. Constitutional jurisdiction of the High Court can be invoked subject to the satisfaction of the High Court that no other adequate remedy is provided by law. II. On the application of any aggrieved party. III. An order can be issued by this Court directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority,
(ii) The word person has been defined under Article 199 of the Constitution in the following terms:- "person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan"
' There is no denial of the fact that the appellant is a limited company incorporated under the provisions of Companies Ordinance, 1984. It is neither owned nor controlled by the Federal Government, a provincial government or a local authority. I have specifically asked the learned counsel for the parties if the Federal Government or the Provincial Government holds majority shares or management control of the appellant. It is admitted by both the learned counsel that such is not the case. It is pointed out that both administrative and financial control of the appellant company is with the board of directors of the company, which consists of private individuals.
Neither the federal government nor a provincial government or a local authority has anything to do with the management or control of the appellant. As such the mere fact that the appellant is registered under the Companies Ordinance, 1984 and the regulatory authority for the companies is the Securities and Exchange Commission of Pakistan which is run and controlled by the federal government would not bring the appellant within the purview of the definition of a person performing functions in connection with the affairs of the federation, the province or a local authority.
(iii) In Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai and 10 others (PLD 1975 SC 1974), ' the Hon'ble Supreme Court of Pakistan dealt with a similar proposition and held as follows:-- "However private organization or persons, as distinguished from government or semi-government agencies and functionaries cannot be regarded as persons performing functions in connection with the affairs of the Federation or a Province simply for the reason that their activities happen to be regulated by laws made by the State. Accordingly, a joint-stock company, incorporated under the Companies Act, for the purpose of carrying on commercial or industrial activity for the benefit of its shareholders, cannot be regarded as a person performing State functions....."
(iv) The question of maintainability of constitutional petitions against limited companies has recently been examined by the Hon'ble Supreme Court of Pakistan in a judgment reported as Abdul Wahab and others v. Habib Bank Ltd. And others (2014 PLC (C.S.) 393. Mian Saqib Nisar, J writing for the apex Court has held as follows:- "It is an admitted position that the Bank has been privatized and the majority shareholding thereof, has been acquired and is vested in Agha Khan Foundation, there also is no discord that the Board of Management of HBL is predominantly represented by the said foundation. However, in order to bring the Bank within the purview and the connotations(s) of a 'person' and `authority' appearing in Articles 199, 199(5) and 199(1) (c) of the Constitution and also for the purposes of urging that appropriate order, in the nature of a writ can be issued independently by this Court under Article 184(3) (Constitution), to the Tank, the learned counsel for the petitioners has strenuously relied upon the 'function test'; and in this respect it is submitted that the State/Federation has a considerable, shareholding in the Bank and representation in the managing affairs thereto therefore it shall qualify having the status of a person/authority within the meaning of the law; besides, the Bank is being regulated by and under the authority of the State Bank of Pakistan thus on this account as well it (Bank) has the status mentioned above, therefore, this Court should exercise its jurisdiction in terms of the Article supra. In this context, it may be held that for the purposes of resorting to the 'function test', two important factors are the most relevant i.e. The extent of financial interest of the State/Federation in an institution and the dominance in the controlling affairs thereof. But when queried, it is not shown if the State/Federation has the majority of shareholding, or majority representation in the Board of Management of the Bank. As regards the authority and the role of the State Bank of Pakistan (in the above context), State Bank of Pakistan is only a regulatory body for all the banks operating in Pakistan in terms of Banking Companies Ordinance, 1962 and suffice it to say that such regulatory role and control of State Bank of Pakistan shall not clothe the Bank, with the status of a 'person' or the 'authority' performing the functions in connection with the affairs of the Federation. Rather it shall remain to be a private entity. In support of the above, reliance can be placed on two judgments of this Court reported as Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai and 10 others (PLD 1975 SC 244), which prescribes that "regulatory control does not make a person performing functions in relation to the federation or a province"; likewise in Pakistan Red Crescent Society and another v. Syed Nazir Gillani (PLD 2005 SC 806) it was held "such control must be particular to the body in question and must be persuasive... On the other hand, when the control is merely regulatory whether under the statute or otherwise it would not serve to make the body a 'State' therefore, we have no hesitation to hold that the Bank is a private institution for all intents and purposes. And we vide short order dated 17-10-2012 have deferred our decision on the issue if such a private person is amenable to writ jurisdiction in the context of Article 199(1)(c) of the Constitution.
(v) Admittedly the appellant is a private Company and cannot be regarded as a person performing functions in connection with the affairs of the federation or the province. In these circumstances, a writ could not have been issued against the appellant in exercise of powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
7. For the reasons recorded above, this appeal is allowed. The impugned order dated 20-10-2010 announced on 29-10-2010 is set aside. Consequently Writ Petition No.8786 of 2006 is dismissed. No order as to costs.