JAWAD HASSAN, J. Through this Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution "), the Petitioner has impugned the order dated 17.03.2017 passed by the Executive Director , Corporate Supervis ion Department (Company Law Division), Securities and Exchange Commission of Pakistan (the "SECP "), Islamabad (Respondent No.3) " and order dated 17.05.2017 of the Appellate Bench of SECP , being illegal and unlawful.
A. BRIEF F ACTS
2. Brief facts of the instant case are that the Petitioner/Crescent Jute Products Limited (the "Petitioner " or "Company ") is a public limited company functioning since 1964 and listed at the Pakistan Stock Exchange. The Company is manufacturing jute products including jute bags. As per contentions of the Petitioner , the Respondents have wrongly issued the show-cause notice dated 09.01.2017 against the Petitioner/Company , whereby the CRO has approached the Corporate Supervision Department for grant of sanction in terms of Section 309(b) read with Section 305(c) of the Companies Ordinance, 1984 (the "Ordinance ") to present a petition before the honorable High Court for winding up of the Company on the ground that the Company business has been suspended since1 2.5.201 1. Thereafter , Respondent No.3/the Executive Director , Corporate Supervision Department passed the impugned order dated 17.3.2017, whereby it was held that the Company is liable to be wound up as its business has been suspended since 2011 and the Registrar of Company Registration Office Lahore was authorized to present a petition for winding up of the Petitioner . Later on, the Petitioner filed an appeal before the learned Appellate Bench of the SECP against the impugned order dated 17.3.2017, which was held as not maintainable vide order dated 17.5.2017 due to proviso of Section 33(c) of the of the Securities and Exchange Commission of Pakistan Act, 1997 (the " SECP Act"). Hence, this Petition.
B. PETITIONER'S SUBMISSIONS
3. Mr. Saad Rasool, Advocate submits that the Respondent No.2 while pass ing the impugned order dated 17.03.2017 has failed to appreciate that the operating, running, closing or suspending the affairs of business is the basic right of shareholders/members of the Company and the same cannot be assumed and exercised on its own accord by SECP .
4. Mr. Shan Saeed Ghuman, Advocate further states that the Respondents have failed to rightly interpret Section 305 of the Ordinance because the words "may be wound up" confers discretionary power to wind up the Company , which must always be exercised by keeping in view the settled principle of jurisprudence and law. That the rules of statutory interpretation demonstrate that the use of word "may" in a statute, connotes to liberal interpretation, however , the word "shall" implies a mandatory command of law, therefore, by using the word "may" in Section 305 ibid, a discretionary power is conferred upon the Courts, which is to be exercised only where all hope of revival of a company is lost and that every effort to save a company is made before resorting to winding up of the same.
Learned counsel further states that Sectio n 309 of the Ordinance does not authorize the Respondents for filing of winding-up proceedings under Section 305(c) of the Ordinance. He adds that the Petitioner/Company is fulfilling all the legal/statutory requirements and neither the creditors/investors nor the other stakeholders of the Petitioner/Company have come forward to seek its winding-up. He adds that it is well settled principle of law that an order of winding up of a company cannot be passed when majority of shareholders opposed the same. Learned counsel lastly states that the impugned orders/actions of the Respondents infringed the fundamental rights of the Petitioner/Company guaranteed under Articles 4, 5, 8, 10-A, 14, 18, 25, 37 and 38 of the Constitution. He adds that mere running of company into losses would not justify a winding up order . He placed reliance on the judgments cited as "Joint Registrar of Companies v. Sh. Fazal Rehman& Sons Ltd." (2008 CLD 465) and "In re: Alliance Motors (Pvt.) Ltd." (1997 MLD 1966 ). He lastly submits that the impugned orders are illegal, arbitrary , against the principle of natural justice, discriminatory and are in clear violation of the due process of law and spirit of the Constitution, hence the same are liable to be set aside.
C. RESPONDENTS SUBMISSION
5. Conversely , Mr. Adil Bandial, Advocate has strongly objected to the maintainability of this Petition by filing the report and parawise comments on behalf of the Respondents No. 3 to 5 by stating that the impugned orders do not suffer from any jurisdictional defect and have been passed strictly in accordance with law(s). He referred to the provision of Section 33(1) of the SECP Act which states that an appeal shall lie to an Appellate Bench of the Commission in respect of an order of the Commission made by one Commissioner . Mr. Adil Bandial, Advocate adds that as alternate and efficacious remedy is available to the Petitioner /Company , therefore, this writ Petition is not maintainable. He contends that the Petitioner/Company has been consistently floating a false and baseless narrative of reviving operations. Further states that throughout this last decade, the Petitioner/Company has been consistently incurring crippling losses, generating zero/nil revenue therefrom and failed to protect the catastrophic plummet of its share value. Mr. Adil Bandial, Advocate further adds that apart from effecting shareholders interest, these continued and exorbitant losses have been continuously adjusted against its depleting asset base, which has diminished the same to nil. He submits that the Petitioner/Company has filed this Petition just to evade accountability and checks and to continue with their plunder of the rights and intere st of its shareholders. He states that the Petitioner/Company has filed this Petition just to delay , derail and frustrate the process of law including the function of the Commission, hence the same is liable to be dismissed with exemplary costs. Learned counsel relied on the judgments reported as "The Tariq Transport Company , Lahore v. The Sargodha-Bhera Bus Service, Sargodha, (2) The Regional Transport Authority , Lahore and (3) the Provincial Transport Authority , Lahore" (PLD 1958 SC (Pak) 437), "National Steel Rolling Mills and others v. Province of West Pakistan"
(1968 SCMR 317), "Apollo Textile Mills Ltd. and others v. Soneri Bank Ltd." (PLD 2012 SC 268) and "Muzafar Ali v. Muhammad Shafi" (PLD 1981 SC 94), "Hussain Bakhash v. Settlement Commissioner , Rawalpindi and others" ( PLD 1970 SC 1 ).
D. DETERMINA TION BY THE COURT
6. It was contended on behalf of the Petitioner that his appeal against the sanction order of Respondent No. 3 was dismissed by the Appellate Bench of SECP on the sole ground that appeal against a sanction is barred under Section 33 (1) (c) of the SECP Act and since appeal to the High Court is only competent when order impugned is passed by Commission comprising of two or more commissioners or if it is passed by the Appellate Bench of SECP , which is not in the case in hand, so in the absence of alternative remedy , the Petitioner has no other resort to agitate its grievance other than before this Court under its extra-ordinary constitutional jurisdiction as ordained in Article 199 of the Constitution. The contention was strongly controverted by Mr. Adil Bandial, learned counsel for the Respondents No. 3-5 while quoting the substantive provision of Section 33 of the SECP Act and making a determinative reference of Section 485 of the Ordinance to assert that the Petitioner had an alternative remedy available in the form of appeal to the High Court and since alternative remedy was provided but not availed, so therefore instant Petition within the constitutional framework of Article 199 is not maintainable.
7. To begin with, it is deemed appropriate and necessary to examine the strength of these arguments propounded by the learned Counsels, and reproduce Section 33 of the SECP Act:
33. Appeal to the Appellate Bench of the Commission.- (1) Except as otherwise provided any person aggrieved by an order of the Commission passed by one Commissioner or an officer authorized in this behalf by the Commission, may within thirty days of the order , prefer an appeal to an Appellate Bench of the Commission constituted under sub-section (2): Provided that no appeal shall lie against -
(a) an administrative direction given by a Commissioner or an officer of the Commission;
(b) an order passed in exercise of the powers of revision or review;
(c) a sanction provided or decision made by a Commissioner or an officer of the Com mission to commence legal proceedings ; and
(d) an interim order which does not dispose of the entire matter .
(2) The Commission shall constitute an Appellate Bench of the Commission comprising not less than two Commissioners to hear appeals under sub-section (1).
(3) If any Commissioner who is included in the Appellate Bench has participated or been concerned in the decision being appealed against the Chairman shall nominate another Commissioner to sit in the Bench to hear that appeal.
(3A) Any clerical or arthematic mistakes in an order or error arising therein from any accidental slip or omission may at any time be corrected by the Appellate Bench on its own motion or on an application made to it by any party .
(4) The form in which an appeal is to be filed and the fees to be paid therefor and other related matters shall be prescribed by rules (emphasis added).
8. Although any person aggrieved by an order of SECP passed by one Commissioner or an officer authorized by SECP may prefer an appeal to an Appe llate Bench of the Commission, the plain reading of sub-clause (c) of proviso to Section 33 of the SECP Act made it abundantly clear that appeal is not competent before the Appellate Bench of SECP against a sanction provided or decision made by a Commissioner or an officer of the Commission to commence legal proceedings.
E. LAW POINT FOR DETERMINA TION
9. In view of the above reproduced Section 33 of the SECP Act, the following moot points require determination of this Court:
(1) Whether the impugned order dated 17.3.2017 was a sanction or decision made by a commissioner or an officer of SECP to commence legal proceedings, and whether the appeal before the Appellate Bench of SECP against such order was competent or not?
(2) Whether the Petitioner has an alternate remedy under Section 485 of the Ordinance and the instant Writ Petition is not maintainable within the parlance of Article 199 of the Constitution?
10. Before going any further , it is essential to highlight contents of the impugned order dated 17.3.2017 passed by the Respondent No. 3, which provides as follows:
9. From the above discussion and after careful consideration of all the facts and circumstances of the case, I am of the view that the Company is liable to be wound up as its business has been suspended since 2011. It is a settled principle of law that a company is liable to be wound up under clause (c) of section 305 of the Ordinance if it has suspended its business for a whole year furthermore there is no reasonable plan on grounds for its revival.
10. For the foregoing, I, in exercise of the powers conferred on me under Section 309 of the Ordinance, hereby authorize the Registrar , Company Registration Office, Lahore, to present a petition for winding up of [the Petitioner] (emphasis added).
11. It is agitated by the Petitioner that the Respondent No.3 passed the sanction order in favor of Respondent No. 5 illegally . To appreciate the strength of this argument, it is deemed appropriate to examine what is meant by the term 'sanction' and whether it was within the competence of the Respondent to pass the order of sanction and authorizing the Respondent No. 5 to initiate winding up proceedings against the Petitioner Company before this Court. Perusal of clause (o) of sub-section (4) of section 20 of the SECP Act reveals that the Commission is empowered to perform any such functions which the Federal Government delegates to it or any other law enforced for the time being confers upon it. Serial No. 23 of the Schedule under the SECP Act, which has enlisted the powers and functions conferred on the Authority under the Ordinance to be exercised by the Commission clearly provides as under:- "23. T o make application to the Court for winding up a company (section 309 of the Ordinance)."
12. Similarly , Section 309 of the Ordinance provides in an unequivocal term that an application to the High Court for the winding up of a company can be made by the Registrar , or by the Commission or by a person authorized by the Commission in that behalf. However , sub-section (b) of Section 309 imposed a statutory condition that the Registrar shall not be entitled to present a petition for the winding up of a company unless the previous sanction of the Commission has been obtained to the presentation of the petition. It is thus undeniably established that it is well within the power and competence of the Commission to pass a sanction authorizing the Registrar to petition for winding up of a Company if it has committed any default well within the meaning and instances of Section 305 of the Ordinance.
13. From the literal standpoint, the expression "sanction" is also required to be understood in order to appreciate its meaning and scope and its adversarial implication against the rights of the Petitioner , if any. The expression has been defined in Longmans English Larousse (Page-1031) as: "Explicit permission given by someone in authority ." While according to The Cambridge English Dictionary (Page-358) it signifies: "Confirmation; ratification; authority . To ratify; to authoriz e; to countenance ." As per Stroud' s Judicial Dictionary of Words and Phrases, (Eighth Edition, Volume 3 Page-2639) the term has been defined as: "Sanction" not only means prior approval; generally , it also means ratificat ion". According to Words and Phrases, Permanent Edition (Volume 38, Page-361) it has been defined as: "Sanction " can mean to give approval to, to give countenance to". The Black' s Law Dictionary (Ninth Edition, Page-1458) defined the expression as: "Official approval or authorization ." The expression is defined in Advanced Law Lexicon (4th Edition, Volume 4 Page-4346) as: "An express authorization, permission or recognition (e.g. of an action, custom, institution, etc......"Sanction" also means prior approval; generally , or ratification."
14. The literal interpretation of the expression 'sanction' well denotes that it is an official permission, an approval, authorization or ratification and while applying the same to case in hand, it cannot be equated with or even compared to a decision or prejudicial act since it is not a sort of final or definite outcome but an administrative official measure to draw up an action or cause before the appropriate forum and nothing more. This sanction is not a decision or judgment rather authorization to initiate legal proceedings before the Court, which is a forum to decide the matter in accordance with law and principles of legal justice.
15. By applying principle of literal interpretation, no inference can be drawn other than that the sanction order of Respondent No. 3 in favor of Respondent No. 5 falls well within the exception clause of Section 33 and appeal against such sanction authorizing initiation of legal proceedings before competent court of law is not amenable to appellate jurisdiction of Appellant Bench of SECP . Right of appeal is not an inherent right but a right created by the statute and unless such right is provided by a statute, it cannot be claimed or exercised on the strength of plea of denial of justice.
16. Now, when it is unequivocally established that the Petitioner does not have the remedy of appeal against the sanction before the Appellant Bench of SECP , the most significant question is that if he has any other remedy available under the law in the alternative which is both adequate and efficacious in nature so as to make instant petition not maintainable within the parlance of Article 199 of the Constitution or not. Section 485 of the Companies Ordinance is of significance and relevan ce to find answer of this query . For the sake of ready reference and comprehension, the relevant portion is reproduced as under:-
485. Appeals against orders etc.- (1) Any person aggrieved by an original order , directive or judgment of the Commission or the Federal Government other than an order , directive or judgment passed on a revision or review application may, within thirty days thereof, as an alternative to making an application for revision or review to the Commission or the Federal Government, as the case may be, prefer an appeal to the High Court within whose jurisdiction the order , directive or judgement is passed: Provided that no appeal under sub-section (1) shall lie from an order which does not dispose of the entire case before the Commission or the Federal Government, as the case may be.
(2) An appeal under sub-section (1) shall be heard by a Bench of two Judges of the High Court and shall lie on any one of the following grounds, namely:-
(a) the decision being contrary to law or to some usage having the force of law; or
(b) the decision having failed to determine a material issue of law or usage having the force of law; or
(c) a substantial error apparent in the procedure provided by or under this Ordinance which may possibly have led to an error in the decision (emphasis added)
17. The above reproduced Section 485 of the Ordinance clearly provides that any aggrieved person by an original order , directive or judgment of SECP , other than an order , directive or judgment passed on a revision or review application, may prefer an appeal before a bench of two (2) judges of the High Court within whose jurisdiction the order , directive or judgement is passed. This appeal has to be preferred as an alternative to making an application for revision or review to SECP . Such appeal does not lie from an order which does not dispose of the entire case before SECP , and lies on any of three grounds including (a) the decision being contrary to law or to some usage having the force of law; or (b) the decision having failed to determine a material issue of law or usage having the force of law; or (c) a substantial error apparent in the procedure provided by or under this Ordinance which may possibly have led to an error in the decision.
18. It leaves us in no doubt to hold that the Petitioner did have the remedy of appeal against sanction order dated 17.03.2017 before a bench of two judges of this Court in the capacity of appella te jurisdiction under the above referred provision. Now, when it is evident that an alternative remedy was available to the Petitioner but was not availed by him, it is to be determined whether the present petition under Article 199 of the Constitution is competent or not. Article 199 of the Constitution confers extra-ordinary jurisdiction in the High Court to pass appropriate directions in the nature of mandamus, certiorari, prohibition, quo warranto and habeas corpus subject to fulfilling the requirements laid down under Article 199 of the Constitution and in order to invoke this extra-ordinary jurisdiction, a petitioner is bound to also establish that he has no alternative and efficacious remedy under the ordinary law. If a petitioner failed to fulfill this mandatory criterion requirement, then all other grounds which favors him loss significance and does not merit any consideration because the extra-ord inary remedy cannot be sought and secured when an ordinary remedy is well available.
19. The Honorable Supreme Court in "Rana AFTAB AHMAD KHAN Versus MUHAMMAD AJMAL and another"
(PLD 2010 Supreme Court 1066 ) authenticated similar view while holding that "the High Court had rightly refused to interfere in its constitutional jurisdiction, when an appropriate, efficacious and adequate alternate remedy available to the petitioner has not been availed by him without any justification." The Honorable Supreme Court in GHULAM SAR WAR Versus NATIONAL BANK OF PAKIST AN and others (2007 CLD 530) enunciated the same principle in the following manner:-" The precise answer posed to the learned counsel would be in negative as in the presence of statutory legal remedy provided by law having not been availed the petitioner cannot be allowed to bypass such course and invoke the extraordinary jurisdiction of the High Court which could only be availed after exhausting all available remedies provided under the law ."
20. Further , this Court in "IRAM SHAHZADI Versus GOVERNMENT OF PUNJAB through Chief Secretary and others" (PLD 2021 Lahore 24) also reiterated the same view while observing that "While dealing with the question of maintainability of a petition before this Court in the wake of an alternate efficacious remedy available to a litigant, the Hon'ble Supreme Court of Pakistan in judgments reported as "Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others" (2016 SCMR 842), "Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others" (2011 SCMR 1813 ) and "Muhammad Abbasi v. S.H.O. BharaKahu and 7 others" (PLD 2010 SC 969) has held that in the wake of availability of an alternate efficacious remedy , jurisdiction of this Court under Article 199 of the Constitution cannot be invoked." Similar view was expressed by this Court in "MAQBOOL AHMAD and others Versus ENVIRONMENT PROTECTION AGENCY and others" (2019 CLD 946) while holding that "it can safely be held that this Court is bound to exercise its extra ordinary Constitutional jurisdiction where no other adequate remedy is provided by law but in the present case alternate remedy by filing an Appeals to the competent authority is available to the Petitioners, therefore, this petition is not maintainable." In "IMRAN HAFEEZ Versus PAKIST AN ELECTRONIC MEDIA REGULA TORY AUTHORITY (PEMRA) through Chairman and 3 others" (PLD 2019 Lahore 587), this Court also laid down the same principle while holding that "It is settled law that when statutory remedy is available to the aggrieved party , no writ petition is maintainable."
21. Similarly , the Islamabad High Court in "EASTERN TESTING SERVICES (PVT .) LTD Versus SECP and others" (2016 CLD 581) while making a survey of precedents on the subject, summarised the principle for entertaining a petition under Article 199 of the Constitution in the following manner:-
(i) The rule that the Court will not entertain a petition under Article 199 when other appropriate remedy is available is not a rule of law barring the jurisdiction of the Court.
(ii) When the law provides an adequate remedy , constitutional jurisdiction under Article 199 of the Constitution will be exercised in exceptional circumstances.
(iii) The exceptional circumstances which may justify invoking jurisdiction under Article 199 of the Constitution when adequate remedy is available are when the order or action impugned is palpably without jurisdiction, mala fide, void or coram non judice.
(iv) The tendency to bypass the remedy provided under the relevant statute by resorting to the Constitutional jurisdiction of a High Court is to be discouraged so that the legislative intent is not defeated.
(v) Constitutional jurisdiction under Article 199 cannot be readily resorted to when the matters amenable to the jurisdiction of an exclusive forum is mandated by the Constitution itself or when hierarchy provided under a statute ends up in appeal, revision or reference before a High Court or directly the apex Court.
(vi) The High Court in exercising its discretion will take into consideration whether the remedy provided under the statute is illusory or not.
22. Now in the case in hand, in view of Section 485 of the Ordinance, the Petitioner had an alternative efficacious remedy available, which was far from illusory and therefore this Petition has failed to meet the mandatory criterion necessary for justifying exercise of such extra-ordinary constitutional jurisdiction under Article 199 of the Constitution. The Honorable Supreme Court in "PRESIDENT , ALL PAKIST AN WOMEN ASSOCIA TION, PESHA WAR CANTT . Versus MUHAMMAD AKBAR AWAN and others" (2020 SCMR 260) has already laid down that constitutional jurisdiction is equitable and discretionary in nature and should not be exercised to defeat or bypass the purpose of a validly enacted statutory provision.
23. With respect to the assertion agitated by the Learned Counsel for the Respondents No. 3 & 5 that default of the Petitioner company comes within the purview of Section 305 clause (c) of the Companies Ordinance and the negation of the said argument with insistence by the learned counsel for the Petitioner that such is not the case, suffice is to observe that determination regarding this ground is unwarranted at this stage because it will be the dominion of this Court in its Company jurisdiction when petition for winding up will, if ever, be preferred before it and before then, it does not merit determination within the spectrum of Constitutional jurisdiction.
24. Since the instant Petition is not maintainable under Article 199 of the Constitution, there is no need to consider and discuss the whole set of arguments of the Petitioner regarding interpretation of word "may" used under Section 305 of the Ordinance and its being non-mandatory in nature, to avoid prejudice to the competent proceedings.
Even otherwise, these arguments are pre-mature and are based on supposition, therefore needs not to be addressed because the sanction is not a decision or judgment rather authorizat ion to initiate legal proceedings before the Court, which is a forum to decide the matter in accordance with law and principles of legal justice. At this stage, it is quite early rather obscure to assume that the things initiated before the court will go towards a certain conclusion and such an approach is only pre-emptive and based on assumptions which does not merit any juridical interference under Constitutional jurisdiction.
25. Needless to observe that in "The ADDITIONAL REGISTRAR COMP ANY Versus AL-QAIM TEXTILE MILLS LIMITED" (2021 CLD 931) this Court though on one hand declared that SECP is regulator of entire companies ' law in Pakistan with the power and function as provided under Part VI of the SECP Act yet at the same time has also laid down the principle that in the winding up cases, utmost endeavor should be made for survival of corporate sector rather than to dismantle it, so the Petitioner will have a fair and square and rather a considerate chance and opportunity to defend the petition for winding up, if and when, so preferred by the SECP .
26. The preamble of the SECP Act uncloak the purpose and intent behind the establishment of SECP , for the beneficial regulation of the capital market s, superintendence and control of corpora te entities and for other matters connected therewith and incidental thereto. It hardly needs any reference, though there are plenty , to reiterate that a preamble though is not a substantive part of a statute yet it holds a significant position to unveil the intent and scope and of the law and most importantly the purpose which precipitated its enactment. The Honorable Supreme Court in "DIRECT OR GENERAL, FIA and others Versus KAMRAN IQBAL and others " (2016 SCMR 447) highlighted the significance of preamble of a statute in the following manner:-
5. Indeed, preamble to a Statute is not an operative part thereof, however , as is now well laid down that the same provides a useful guide for discovering the purpose and intention of the legislature. Reliance in this regard may be placed on, the case of Murree Brewery Company Limited v. Pakistan through the Secretary of Government of Pakistan and others (PLD 1972 SC 279). It is equally well established principle that while interpreting a, Statute a purposive approach should be adopted in accord with the objective of the Statute and not in derogation to the same.
27. It is thus evident that the purpose behind the establishment of SECP is to beneficial regulation of the capital markets and superintendence and control of corporate entities in a manner , which must equally secure the rights and interests of every stake-holder involved in the process and with reference to the instant case, the company as well as its share-holders without prejudicing legal rights and interests of any of them. For the sake of reiteration, it is noted that the Petitioner/Company has all the rights to defend its position with the grounds raised therein, if the SECP proceed in the mater as per the law developed by this Court in the judgment reported as "Saudi Pak Industrial & Agricultural Investment Company Ltd Versus Chenab Limited" (2020 CLD 339) and "The ADDITIONAL REGISTRAR COMP ANY Versus AL-QAIM TEXTILE MILLS LIMITED" ( 2021 CLD 931 ).
28. In the light of discussion made hereinabove, the Petitioner had an alternate remedy under Section 485 of the Companies Ordinance, 1984 which was adequate and efficacious; therefore, this Petition is meritless and consequently dismissed. "The Rule of Law, Pengiun Publishers, London 2011 1