' NAIMUDDIN, J.-By this constitutional petition under Article 9 of the Provisional Constitution Order, 1981, the petitioners who claim to be the directors of the Sind Provincial Co-operative Bank Limited (hereinafter called the Bank) allegedly having been elected unopposed at the Special Meeting of the Bank allegedly held on 27-5-1983, have claimed against the Government of Sind. The Registrar, Co-operative Societies, Sind, Mr. Muhammad Ibrahim Memon,'Deputy Registrar, Co-operative Societies, Sind respondents Nos. 1 to 3, respectively, the following main reliefs :-
(i) for declarations:-
(a) that the committee appointed by respondent No. 2 pursuant to the order, dated 4-11-198_, has ceased to hold office and has no lawful authority to run and manage the affairs of the Bank ;
(b) that the petitioners and respondents Nos. 4, 5, 8, 11 to 15 are the elected directors of the Bank and are only the persons entitled to run and manage the affairs of the Bank ;
(c) that the refusal of respondents Nos. 1 to 3 to recognize the petitioners as elected directors entitled to manage the Bank is without lawful authority ;
(ii) for a direction to respondents Nos. 1 to 3 and the Members of the Managing Committee appointed pursuant to the order, dated 4-11-1982, and attendance thereto to hand over charge of the Bank to the petitioners and other directors elected on 27-5-1983 ;
(iii) for an injunction restraining the Committee appointed by respondent No. 2 by his order, dated 4-11-1982, from acting as joint administrators of the Bank.
2. The case of the petitioners is that on 4-11-1982, respondent No. 2 passed an order whereby in the exercise of powers vested in him under rule 48 of the Co-operative Societies Rules, 1929, he extended the period of supersession of the Board of Directors of the Bank for a further period of one year upto 14th August, 1983 or till the restoration of the Board of Directors through elections whichever was earlier. By the same order a Committee was appointed consisting of the following seven persons, who are respondents Nos. 4 to 9, namely :-
(1) Mr. Maqbool Alam Hafiz, Deputy Registrar, Co-operative Societies,
(2) A nominee of the Finance Department, not below the rank of Grade-18.
(3) A nominee of the Federal Bank for Co-operatives.
(4) Mr. Sardar Nabi Bux Solangi, Respondent No. 4.
(5) Mr. Ghiasuddin Ahmad, Respondent No. 5.
(6) Mr. Ramzan D. Merchant, Respondent No. 6.
(7) Mr. Shaft Muhammad Akund, Respondent No. 9.
3. Accordingly, on 4-5-1983, a notice for holding Special General Body Meeting of the Bank on 27-5- 1983 at 11.00 a.m. In Bank's premises at Serai Road, Karachi for the purpose of holding election of the Board of Directors as per Bye-Law No. 38 of the Bye-Laws of the Bank for a period of 3 years was issued. It was advised therein that all non-defaulting affiliated co-operative institutions (members), excluding "D" Class and liquidated societies, should send the names of their delegates duly nominated by their Managing Committee in prescribed form latest by 12-5-1983. It was provided therein that nomination papers should be filed with Mr. A. G. Jokbio, Returning Officer of the Central Office, Karachi on or before 19-5-1983, upto 1.00 p.m and the Returning Officer was required to scrutinize the nomination papers and announce the result by 1.00 p. m. On 21-5-1983. It was further piovided that aggrieved candidates would be supplied copies of the order upto 4.00 p.m. On 22-5-1983, and they could file appeal with the Chairman, Managing Committee at Karachi on 22-5-1983, upto 4.00 ppm. And the decisions were to be announced on 23-5-1983, upto 4.00 p. m. Accordingly, the following persons' nomination papers were either accepted or rejected as noted against their names :- ' List showing the Accepted/Rejected Nomination Papers of the Candidates Representing various Co-operative Societies of Sind for Contesting Election to the Board of Directors of Sind' Pray. Co-op., Band Ltd., Karachi fixed on 27th May, 1983.{{TABLE}} Distt. Name of Candidate Name of Soc. Rep. Remarks Thatta Mr. Ali Muhammad Memon Thatta Co- operative Credit Society Ltd., Thatta. Accepted Khairpur Mr. Nizamuddin K. Shah Piryaloi Agri!. Co-op. Mirs. Sty. Ltd., Piryaloi.
Accepted Jacobabad Mr. Mir Fazal Haq Al-Shams Agril.
Co-op. Sty. Ltd., Ghari Khairo. Accepted Larkana Mr. Muhammad Suleman Abbas Agril. Co-op. Sty. Ltd., Kamber. Accepted Tharparkar Mr. Mumtaz Hussain Nara Agril. Dev. Co-op. Sty., Umerkot Accepted Mr. Syed Qurban Ali Al-Hyderi Agril. M/P Co-op. Shah Syt. Ltd., Digri Rejected Distt. Name of Candidate Name of Soc. Rep. Remarks #TBS Sanghar Mir Zaigham Dirt Mujahid Ghulam Rasul Mr. Jan Muhammad Hingorjo Hyderabad Mr. Muhammad Bux Mr. Ghulam Ali Nizamani Karachi Mr. Ghiasuddin Ahmad Mr. Sabir Ahmad Sardar Nabi Bux Solangi Sukkur Mr. Ali Hassan Mangi Mr. Khadim Hussain Dadu Mr. Muhammad Hassan Mr. Mazher Hussain #TBE Aziz Agril. Co-op. Sty. Ltd., Shandadpur. Accepted Panhewar Agril. M/s. Co-op Sty. Ltd., Sanghar. Accepted Taluka Agril. Co-op. Sty. Ltd., Khipro. Rejected Hyderabad Co-operative Accepted Consumers Stores Ltd., Hyderabad.
Mahboob M/P Co-op. Sty. Ltd., Badin. Rejected Karachi Co-op. Housing Stys.
Union Ltd., Karachi Accepted Al-Riaz Co-op. Housing Sty.
Ltd., Karachi. Accepted Overseas Co-op. Housing Sty. Ltd., Karachi. Accepted Gharibabad Agril.
Devet Co-op. Credit Sty. Ltd., Sukkur. Rejected Naich M/P Co-op. Sty. Ltd., Mirpur Mathelo. Rejected Nagar Khan Farming Sty.
Ltd., Bhan. Rejected Dadu Taluka Agril. Co-op. Sty.
Ltd., Dadu. Rejected {{TABLE}}
4. It appears that on 21-5-1983, Mr. A. G. Jokhio, the Returning Officer, declared one of the contestants namely Nizamuddin K. Shaikh respondent No. 8 elected unopposed as per Annexure 'J' to the petition which reads as follows :- " Place ; Central Office, Serai Road, Kar. Dated : 21st May, 1983.
' The nomination papers of Mr. Nizamuddin K. Shaikh (candidate from District Khaipur Mirs) representing Messrs Piryaloi, Agricultural Co-operative Society Ltd., Piryaloi scrutinized and found in order. Nomination accepted. Mr. ,Nizamuddin K. Shaikh declared elected unopposed as Director from District Khairpur Mirs in view of there being no other nomination."
5. It appears that this was done pursuant to Bye-law No. 14 of the Bye-laws of the Bank, for conducting of the elections of the Board of Directors.
6. It is the case of the petitioners that on 27-5-1983, pursuant to the notice issued by respondent No. 2, the Members of the,.General Body of the Bank assembled at the premises of the Bank at Central Branch, Serai Road, Karachi at 11.00 a. m. Respondent No. 2 who was also ex officio Chairman, of the Bank, chose to remain absent from the said meeting and in default of his appearance pursuant, to Bye-Law No. 32, the Members assembled in the General Body/Meeting elected one Mir Fazal Hag, as Chairman of the Meeting. We may quote hereinbelow the Bye-Law No. 32, as the learned Advocate-General based some of his submissions thereon :- General Meetings "32. The supreme authority of the Bank shall be vested in the General Body, consisting of delegates from affiliated societies and Banks. Each such institution shall be entitled to send one delegate to attend meetings of the General Body. The delegates present shall have one vote each. Defaulting Societies and Banks shall not be entitled either to vote in election of the Directors or be eligible to stand as a candidate for election on the Board of Directors. One-fifth of the total number of delegates or 20 whichever is less shall form a quorum. At all general meetings the Chairman of the Board shall preside. In this absence the Vice-Chairman will do so. In the absence of both, the members present shall elect one of the Directors to preside. In the absence of all the Directors, the members present shall elect one of themselves to preside."
7. It is case of the petitioners that at the meeting 10 persons two of whom are the petitioners and the remaining are respondents Nos. 4 to 10 to the petition were declared elected. However, respondents Nos. 1 to 3 have denied and disputed the fact of holding any such meeting. It is their case that the meeting scheduled for 27-5-1983 at 11.00 a. m. Was postponed by the order of respondent No. 2 and on the same date notice postponing the meeting was issued, which reads as follows :"Notice ' By the order of the Registrar, Co-operative Societies, Sind/Competent Authority, the Special General Body Meeting of the Sind Provincial Co-operative Bank Limited, fixed for today 1. e. 27-5- 1983, is hereby postponed till further orders."
8. The notice of cancellation of the meeting was published in daily JANG dated 28-5-1983. The reasons for postponing the meeting are contained in the order, dated 27-5-1983, passed by respondent No. 2, which we may produce hereinbelow for convenience of future reference.
' Hyderabad : the 27th May, 1983. "Order ' Whereas the Affiliated Co-operative Societies of Badin and Shikarpur have represented that there is no representation of these two newly, created districts on the Board of Directors of the Sind Provincial Co-operative Bank.
' And whereas it will be against natural justice, equity and fairplay if elections are held without their representation for which purpose necessary amendments in the Bye-laws of the Sind Provincial Co-operative Bank Bank Ltd. Providing for two seats of Directorship to Badin and Shikarpur are necessary.
' Whereas on account of the decision/resolution of the Managing Committee of the Bank for postponement of elections and subsequently to move the High Court in that connection also created an atmosphere whereby almost very few nominations were filed from districts so much so that even in case of some of the district no nomination papers were even received.
' Whereas to ensure full representative elections from all over Sind and at one and the same time whereby maximum participation of Affiliated Co-operative Societies can be ensured.
' It is therefore hereby ordered that Special General Body Meeting called by the Sind Provincial Co- operative Bank Ltd., on 27.5-1983 for election purpose be postponed till necessary provision is made in the Bye-Law by amendments.
' The Sind Provincial Co-operative Bank Ltd., is advised to call Special General Body Meeting for amendments.
' All concerned may be informed accordingly."
9. Before we proceed further we may mention that the order dated 4-11-1982, was, challenged by Aziz Multipurpose Cooperative a Housing Society, Shandadpur in Constitutional Petition No. D-995 of 1982, in this Court, and a declaration was sought that the order, dated 4-11.1982, was without lawful authority and further prayer was made in the said petition for a direction that respondents Nos. 1 to 3 should hold elections to the Board of Directors of the Bank.
10. During the pendency of the constitutional petition on interlocutory application an order was passed on 3.4 1983, wherein inter alia following observations were made by the Division Bench of this Court consisting of the learned Chief Justice and Munawar All Khan, J.
"Mr. Muhammad Ibrahim Memon, Deputy Registrar, has stated that elections were scheduled for 27th May, 1983 and all the parties are agreed that the elections should be held by the said date."
11. It is the case of the petitioners that respondents Nos. 1 to 3 moved a C. M. A. No. 898 of 1983, in the said petition praying that they may be permitted to postpone the election to the Board of Directors of Bank. During the course of hearing of the said application respondent No. I pointed out to the Court that 10 out of 13 members of the Board of Directors of the Bank had been declared elected unopposed and that Petitioner No. 1 was elected unopposed from District Hyderabad and Petitioner No. 2 was elected from District Tharparkar. However, this application was not granted and has, we were informed subsequently been dismissed.
12. The petitioners, therefore, on 31-5-1983, filed the present petition claiming the reliefs mentioned hereinbefore. Alongwith the Petition the petitioners also filed an application under Order XXXIX, rules 1 and 2, C.P.C. For inter ally restraining respondents Nos. 1 to 9 from managing the affairs of the Bank and disposing of any property of the Bank including the Commercial Complex described as "Mercantile Chamber, Hyderabad". During the pendency of the petition and the application for interim relief, respondent No. 2, issued another notice, dated 27-6-1983; calling a Special General Body Meeting of the Bank for 2744933, for the purpose of holding elections of the Board of Directors as per Bye-Law 38 of the Bye-Laws of the Bank. This led the petitioners to file another application under Order XXXIX, rules 1 and 2, C. P. C. Praying for interim injunction restraining from holding fresh elections of the Board of Directors pursuant to the said notice. On the first application the Court by the order, dated 19-6-1983, restrained respondents Nos. 1 to 3, from disposing of Mercantile Chamber, till the disposal of the petition, and ordered the hearing of the petition during vacation, in the third week of July, 1983. The hearing of the second application as well as the main petition was fixed for 24-7- 1983, by the order, dated 21-7-1983 without granting any ad interim relief. However, on 24-7.1983, the hearing was adjourned at the request of the Additional Advocate-General for 26-7-1983.
13. Accordingly, we heard Mr. N. A. Faruqui learned counsel for the petitioners and Mr. Saeed A.
Shaikh Advocate-General, Sind, Mr. Abdul Sattar Shaikh, learned Additional Advocate-General, Sind, Mr. Sulairnan 11/lemon and Rasheed Rizvi learned Advocates for the respondents at length on-26- 7-1983, 27-7-1983 arid 28-7-1983. However, meanwhile on 27-7-1983, fresh elections to the Board of Directors were held pursuant to the notice dated 27-6-1983.
14. Mr. N. A. Faruqui learned counsel for the petitioners raised before us the following contentions-
(i) that the petitioners were duly elected at the meeting held on 27-5-1983; and even otherwise.
(ii) the postponement of election meeting scheduled for 27-5-1983, by the order of even Gate was illegal and without lawful authority ;
(iii) that notice dated 27-6-1983, for holding fresh elections on 27-7-1983, was illegal.
15. In reply the learned Advocate-General, Sind submitted that the petition is not maintainable as the alternate remedy under section 54 of the Co-operative Societies Act was available to the petitioners. He further submitted that the Sind Provincial Co-operative Bank Limited has not been impleaded as a party and therefore, no relief could be granted in their absence. He also submitted that the order of postponement of the election meeting has not been challenged in this petition and similarly the elections scheduled for 27-7-1983, have also not been challenged in the petition, therefore, no relief could be granted in respect thereof.
16. Before we consider the contentions raised by Mr. Faruqui, we may first dispose of the two preliminary objections raised by the learned Advocate-General, Sind namely, that the alternate remedy under section 54 of the Co-operative Societies Act, 1925 was available to the petitioners and therefore, the petition is not maintainable and that the Bank has not been joined as a party to the petition, and therefore, no relief could be granted.
17. Now, so far as the objection as to the availability of alternate remedy is concerned, in our view, the same might have offended the principles of natural justice for in this petition the petitioners have claimed that they and respondents Nos. 4, 5 and 8 were allegedly elected as directors of the Bank at Special General Body Meeting of the Bank held on 27-5.1983, which meeting, according to respondent No. 2 was cancelled under his order dated 27-5-1983. Therefore, the dispute as to the elections of the petitioners at the meeting of 27-5-1983, or the validity of the postponement of the meeting, it could be referred under section 54 of the Co-operative Societies Act, 1925, has bad to be referred to the registrar who could choose to decide the same himself, and therefore, in such a case, he would have been a Judge in his own cause and accordingly an action under section 54 of the Co-operative Societies Act, 1925, could not, be considered to be an adequate remedy provided by law. We may here refer to a passage from the book entitled "Fundamental Rights and Constitutional Remedies in Pakistan", by Syed Sharifuddin Pirzada 1966 Edition, p. 314, wherein the learned author while considering the question of adequate remedy) at page 514 observed as follows :- "(g) If there is such other remedy, but there is something so special in the circumstances of a given case that the other remedy while generally adequate, to the relief required for that category of grievance, is not adequate to the relief that is essential in the very special category to which that case belongs, the Courts should give the required relief under Article 98. In the words of an eminent author :- 'that would be something in the nature of the act or proceeding that makes it apparent to the superior Court that it will not be able to protect the rights of the litigants or afford them adequate redress otherwise than though the exercise of the extraordinary jurisdiction'."
18. We may also refer here to a case of this Court in Maher Alavi v. Pakistan and S others (1), wherein an objection somewhat similar in nature, was raised by the learned counsel for the respondent and was rejected. We may produce hereinbelow the relevant objections of Tanzilur Rahman, J. Which read as follows :- "16. I will first deal with the last contention. In general, the existence of alternate remedy does not furnish as an inflexible rule to refusing the exercise of the Constitutional jurisdiction of this Court. I will not hesitate in granting the relief, in spite of the availability of an alternate remedy, if it is shown to me that the alternate remedy is not so speedy and efficacious or is otherwise not proper. The contention of Mr. Nam Farooqi, the learned counsel for the petitioner is that in view of the fact that the Federal Government has already approved the action of the Director, Trade Organisation in annulling the Presidential election of the Federation, it will be mere illusory to have resort to the alternate remedy, as provided in Article 15 of the Ordinance of 1961. The contention of Mr. Brobi is that if this argument simpliciter is accepted, section 15 of the Ordinance in the circumstance, will itself become nugatory. The Legislature was conscious of the fact that action under section 9(2)(e) was being subjected to the approval of the e entre' Government still the appeal was provided in the Statute. The purpose of section 15 seems to be understandable inasmuch as the incidents of action contemplated under section 9(e) are quite different inasmuch as the Government acts on the basis of "report submitted by the Director, Trade Organisations in approving or disapproving the same in the absence of the parties affected thereby, if any, whereas, in appeal the aggrieved parties are heard ex post facto. Mr. Brohi, therefore contends that it was open to the petitioner to immediately file an appeal as provided in section 15 of the Ordinance and even apply for stay of election ordered to be held on 28th February, 1980. Failing to achieve the desired result, it was open for the petitioner to involve the 'High Court's Constitutional jurisdiction. But, if the provisions of section 15 are studied carefully, it is manifest that it is against the decision or order of the Director, that the appeal has been provided to the Central Government. In the facts and circumstances of the case it cannot be said that the order of annulling the election under section 9t 7)(e) of the Ordinance has emanated from the sole jurisdiction and exercise of power of that of the Director and thus appealable to the Central Government, when it could only be and bas, in fact, been {{FOOT NOTE}}
(1) PLD 1980 Kar. 609 {{FOOT NOTE}} ' passed with the approval of the Central Government itself, as a condition precedent. I am, therefore, of the view that no appeal against such an order is contemplated by the statute. Hence the question of exhausting the alternate remedy does not arise in this case. In any case, the Central Government having already applied its mind it will be mere illusory for the petitioner to appeal to the Central Government. The petition, therefore, cannot be struck down on this ground even if it is held that the right of the appeal is available in this case."
19. As regards the second objection that in the absence of the Bank no remedy could be granted, it would suffice to say, that firstly, no action of the Bank so such has been impugned in the petition under consideration, secondly, no relief against the Bank has been claimed. We therefore, find no substance in these objections and accordingly overrule the same.
20. Having disposed of the preliminary objections we now proceed to take up the second and the third contentions first. In this regard it was submitted by Mr. Saeed A. Shaikh and Mr. Suleiman Memon that the second and third contentions could not be considered as the notice for postponing the election meeting scheduled for 27.5-1983, by the order of even date and the notice, dated 27-6-1983, for holding fresh elections on 27-8.1983, have not been questioned in any manner.
In reply it was submitted by Mr. Faruqui that the notice for holding fresh elections was issued during the pendency of the petition, and therefore, relief could be granted in respect thereof aid since an application for restraining respondents Nos. 1 to 3 from holding fresh elections was already made, respondents Nos. 1 to 3 would not be prejudiced, if that relief is granted for they have had notice of the same also.
21. We are however, of the view that so far as these two contentions are concerned the proper course for the petitioners would have been to apply for amendment of the petition by specifically challenging the order of postponement of the meeting and the notice for holding the elections by stating the grounds on which the attack was made and also for inclusion of necessary prayers therein. They had ample time and opportunity to do so as we did ask the counsel for the petitioners whether he would like to amend the petition in view of the changed circumstances but he didn't choose to do so. There is, no doubt, that the concerned respondents had notice of the application for injunction to restrain them from holding fresh elections of Directors of the Bank, but since no interim relief was granted, and the petition and the second application were ordered to be heard together and were in fact being heard on 27-7.1983, and fresh elections of the Directors were held as scheduled, we are not inclined to interfere with it. It was of course, argued by Mr. Sated A. Shaikh that the petition has become infructuous. We would consider this question a little later.
22. Now considering the first contention that the petitioners were duly elected at the meeting held on 27th May, 1983, it was submitted by Mr. Faruqui that the special general meeting convened for 27th May, 1983 was duly held on the appointed date and place at which the petitioners were declared to have been duly elected. Even otherwise it was submitted by Mr. Nasim Faruqui that nomination papas were filed by the petitioners with Mr. A. G. JAW, Returning Officer of Central Office, Karachi before 19th May, 1983 and the Returning Officer had scrutinized the same on 21st May, 1983 in accordance with the election programme contained in the notice, dated 4th May, 1983 (Armature IR' to the atria it-in-joinder). In accordance with the paragraph 4 of the same notice aggrieved candidates were required to file appeal with Appellate Authority T. e. The Chairman of the Managing Committee at Karachi on 22-549-33 upto 4.00 p. m. And the decision was to be announced on 23rd May, 1983 upto 4.00 p. m. Which was to be final. Accordingly, the Retuning Officer on 2.St May, 1983 had prepared a list of the candidates whose nomination papers were accepted or rejected vide Annexure 4C' to the petition. According to this list so far as petitioner No. 1 is concerned his nomination paper was accepted from Hyderabad District and the nomination paper of Ghulam Ali Nizamani who was his only rival was rejected. Similarly the nomination paper of Petitioner No. 2 from District Tharparkar was accepted while the nomination paper of Syed Qurban Ali Shah who was his only rival was rejected. In the premises, it was contended by Mr. Faruqui that in accordance with the provisions of rule 14 of the Rules framed under Bye-laws 38 of the Bank the two petitioners stood elected.
23. In order to appreciate the contention it may be convenient if we here quote the rule, which reads as follows :- "14. If the number of valid nominations are equal to the number of seats for respective areas, the candidates shall be deemed to have been elected and the result shall be declared accordingly."
24. On the other hand, relying on rule 18 of the Election Rules, learned Advocate-General Mr. Saeed A. Shaikh contended that elections were to be held at the special general body meeting of the bank due to be held on 27th of May, 1983 at 11.00 a. m. In the bank premises and at which the results of the elections were to be announced and since this meeting was postponed under the order of respondent No. 2 by the Returning Officer, the petitioners could not be said to have been elected at such a meeting. We may also quote here rule 18 of the Election Rules which reads as follows "18. The presiding authority shall conduct' the elections as provided under Bye-Law 39. The names and addresses of the candidates along-with number of votes secured by each candidate shall be announced and the candidate securing highest number of votes in constituency shall be declared elected."
25. The question whether the meeting was actually held on 27th May, 1983 or was postponed under the order of respondent No 2 is a disputed question of fact in view of the contents of the petition and the counter-affidavit a and in the exercise of constitutional jurisdiction, we cannot decide the same in these proceedings. However, the question whether the petitioners have been elected or not, in our opinion, does not depend on the holding of meeting scheduled for 27th May, 1983 for in our opinion under rule 14 of the Election Rules petitioners are deemed to have been elected as they were the only candidates in the field from the districts of Hyderabad and Tharparkar and the nomination papers of rival candidates were rejected and it is not claimed that they filed any appeals. In our view the provisions of rule 14 are clear and do not admit any two interpretations.
Further, since the question of poll in the case of the petitioners did not arise, the provisions of rule 18 are not at all attracted. It may be remembered that the terms 'election' and 'poll' are not synonymous and a poll under rule 18 is required to be held only in case of contest and not otherwise. Accordingly, the petitioners are deemed to have been elected. Respondent No. 2, in our opinion, could not have lawfully nullified the election of petitioners by postponing the meeting of 27-5-190, and calling a fresh meeting for 27th July, 1983 by the notice, dated 27-6-1983, even not for the reason that the amendments in the Bye-Laws of the Bank providing for two seats of directorship for the two newly-created districts of Badin and Shikarpur for the purpose of giving representation to the said districts were to be made for firstly, the districts of Badin and Shikarpur were created several years ago ; secondly, the bye-laws could be amended even after the holding of special general body meeting due to be held on 27-5-1983. There are allegations of mala fide and the petitioner's claim is that the meeting of 27-5-1983 was postponed after the meeting was already held and, in any case, on the same day the notice for postponement was published in the newspaper of the next day i. e. On 28th May, 1983. In this regard it was submitted by Mr. Faruqui that respondent No. 3 during the hearing of Petition No. 995/82 had stated before the High Court that elections to the Board will be held on 27-5-1983. In this regard he pointed out the following observations made by the High Court in the order, dated 3-4-1983 :- "Mr. Muhammad Ibrahim Memon, Deputy Registrar has stated that elections were scheduled for 27th May, 1983 and all the parties are agreed that the elections should be held by the said date."
26. Although these circumstances do tend to lend support to the allegation of mala fide but we need not go into the question for, in our view, so far as the petitioners are concerned they alongwith respondents Nos. 4, 5, 8 and 11 to 15 are deemed to have been elected after the rejection of the nomination papers of their rival candidates and on their failure to file appeal against the rejection of their nomination papers within the prescribed period 1. e. 22-5-1983 at 4.00 p. m.
27. However, the question is what relief could be granted to the petitioners in this case. We have already mentioned the stand taken by Mr. Saeed A. Shaikh that this petition has become infructuous on the holding of fresh meeting on 27th July, 1983 and fresh elections of the directors.
28. Now so far as prayers contained in clauses (i), (iv) and (v) are concerned, in the absence of amendment of the petition, we are of the opinion that they have become infructuous in view of the fresh elections of the Board of Directors held in the meeting of 27th July, 1983. However, it was submitted by Mr. N. A. Faruqui that an order in tne nature of a writ of quo warranto could be issued to the so-called directors elected at the meeting of 27th July, 1983 but since the petition has not been amended, some of the newly-elected directors are not parties to this petition and cause of action for the same has arisen during the pendency of the petition, we leave this matter to be decided in future proceedings, if any.
29. But so far as the prayers for declaration contained in clauses (ii) and (iii) are concerned, we are of the opinion that no such declarations could be granted in the present proceedings in view of the provisions of Article 199 of Constitution and Article 9 of the Provisional Constitution Order, 1981 though no doubt, we have already found that the petitioners alongwith respondents Nos. 4, 5, 8 and 11 to 15 are deemed to have been elected. However, this will not preclude the petitioners from seeking such remedy as may be available to them under law: We may here refer to the case of Salahuddin and 2 others v. Frontier Sugar Mills & Distillery Ltd. (1) wherein Anwarul Haq, J. (as he then was while delivering the opinion of the Court at page 262 observed as follows "In the light of the foregoing discussion, the position of a public limited company, in relation to the applicability of the various clauses of Article 201 of the Interim Constitution, or Article 199 of the permanent {{FOOT NOTE}}
(1) PLD 1975 SC 244 {{FOOT NOTE}} ' Constitution of 1973, may be summoned up by saying that while it cannot ordinarily be regarded as a person performing functions in connection with the affairs of the Federation, a Province or a local authority simply for the reason that its functioning is regulated by a statute ; yet nevertheless the offices held by its Director, and its Chief Executive, which term would include a Managing Director, must be regarded as public offices inasmuch as they involve the perform ance of public duties which are of the 'greatest importance to the public interest in the field of the operation of public joint stock companies under the Company law. As a consequence, although a joint stock company may not be amenable to the issuance of a writ under clauses (2)(a)(1) and (2)(a)(ii) of Article 201 of the Interim Constitution, but its Directors and the Chief Executive are within the purview of clause (2)(b)(ii) of the said Article which permits the High Court to issue a writ in the nature of quo warranto, requiring a person within its territorial jurisdiction holding or purporting to hold a public office to show under what authority of law he claims to hold that office. It is also clear that, while acting under clause (2)(b)(ii), the High Court would only grant a declaration as to the authority of the respondent to hold the office in question, but it could not grant mandamus to restore or reinstate the applicant to that office in case it comes to the conclusion that the incumbent had no authority to hold the same (underlining is ours for emphasis). The High Court would in such a case only declare the office to be vacant, leaving the rightful claimant, if any; to take whatever steps may be open to him to occupy the same."
30. Subject to above observations, we dismiss this Petition, leaving the parties, in the circumstances of this case, to bear their own costs.
'Were in italics)