DORAB PATEL, J. This Constitutional petition turns on the construction of the Co-operative Societies (Reforms) Order, 1972 (hereinafter called the Order). The petitioners are the share--holders of the Mercantile Co-operative Bank Limited, which is a society registered under the Co-operative Societies Act. We shall refer to this Bank as the Bank and it was managed by its directors who used to be elected according to its rules. However, according to Mr. Ghani, these rules were superseded by the order and the, entire board of the bank had to be elected in 1972 under clause 5(6) of the Order. This sub-clause read, as follows: "Where the Committee of a society stands superseded in pursuance of clause (5), the vacancies In the committee shall be filled by election in a general meeting of the society to be called by the Registrar on a date between the first day of August 1972, and the thirty-first day of October 1972". As the Order does not contain any provisions permitting the Registrar to hold the elections of a Co-operative Society after 31st October before us) called the general meeting of the bank on 29 October 197 2, for thepurpose of having the bank's Board elected under the said sub-clause. The meeting thus called by the 1 respondent was duly held, but according to Mr. Ghani it unanimously decided to postpone the elections to 18 November 1972. As this date was after the expiry of the period fixed in the said sub-clause the bank's administrator and manager (formerly impleaded as respondent No. 3) issued a public notice informing the members of the bank that the meeting fixed for 18th November 1972, had been postponed. The petitioners protested against this postponement of the elections and as their representations were unsuccessful they have filed this petition and according to Mr. Ghana, theth st th relief which they seek from this Court is a direction to the 1 respondent ordering -him to hold the elections of the bank forthwith and/or before 15 March 1973.
2. Although the petitioners thus seek an order for holding the elections to the bank's board, it is significant that they have not impleaded the bank. Secondly, the petition had alleged mala fides against respondents 2 and 3, but no particulars whatever had been given of these allegations.
Perhaps for this reason, on 14 December 1972, Mr. Ghani stated that he wished to drop respondent No. 3 and we allowed him to do so. And this was because, according to learned counsel, the petition turned on a very short point of law. That very short point of law was that the Registrar was competent, on a proper construction of the said clause, quoted above, to hold the elections of a Co-operative Society even after 31 October 1972.
3. In support of this submission, Mr. Ghani pointed out that if his construction of the said clause was not accepted the bank would continue to be managed by an Administrator and the elections might not be held until after 15th March 1973, therefore there was a deadlock and the aforesaid clause had to be given a beneficial construction in order to prevent this deadlock. The learned Assistant Advocate-General opposed the petition and submitted that there was no deadlock but if any difficulties had arisen they were self-induced. And in reference to the plea of deadlock, Mr. Osman Ghani referred us to clause 14 of the Order which states: "If any difficulty arises in giving effect to the provisions of this Order, the Central Government may make such order, not inconsistent with the provisions of this Order, as may appear to it to be necessary for the purpose of removing the difficulty." We agree with the Assistant Advocate- General that Mr. Ghani's apprehension of a deadlock is not justified in view of this clause.
Additionally, in view of this clause and the objects of the Order, we do not see how we can alter the plain language of clause 5(6). However, Mr. Ghani stated that his submission was supported by authorities and accordingly we will now consider the authorities cited.
4. Mr. Ghani referred us first to the judgment of the Supreme Court in Sutlej Cotton Mills v. Industrial Court, West Pakistan (PLD 1966 SC 472The appeal before their Lordships related to an industrial dispute which had been 'referred to an Industrial court under the Industrial Disputes Ordinance, 1959 after the issue of the usual failure certificate by the Conciliation Officer under section 5 of that Ordinance. But according to the section, the failure certificate has to be issued "within 28 days of the commencement of the conciliation proceedings" unless the period of conciliation proceedings is extended by mutual consent. Subsection (5) then prescribes "any party to whom a certificate has been issued -under subsection (4) may make an application . . . . ." for referring the dispute to the Industrial Court. Now in the case before their Lordships the Failure Certificate had been issued after the expiry of the period prescribed in subsection (4), but as the appellant had not given its consent to the extension of time its contention before their Lordships was that the reference 6f the dispute to the Industrial Court had become illegal in consequence. In repelling this contention, Hamoodur Rahman, J., as he then was, now the Chief Justice observed at page 477: "This section does not itself provide the consequence of such failure on the part of the Conciliation Officer nor have the parties before the Conciliation Officer any control over his actions. In the circumstances the direction in the statute as to the time within which the Conciliation Officer is to perform a public duty cannot be regarded as a mandatory provision". We are in respectful agreement with these observations, but we do not see their relevance to the present case, because the language of the clause under construction is very different from that of section 5 of the Industrial Disputes Ordinance. And unlike that Ordinance, the Order is an emergency measure and not a piece of welfare legislation, but according to Mr. Ghani the principle laid down by their Lordships was that a beneficial construction had to be resorted to in order to prevent a deadlock. This argument might have merited consideration if the petitioners could have established that the conduct of the respondents bad- created a deadlock. . But there is no deadlock, because the Order itself hasst th th st provided a remedy for hardships in clause 14. Secondly, assuming that there is a deadlock, unlike the facts in the case cited, that deadlock is self-induced and is the consequence of the wilful disregard by the shareholders of the provision of clause 5(6) of the Order. Despite our repeated enquiries Mr. Ghani was not able to explain why the shareholders had adjourned the elections to an illegal date, namely after 31st October. Learned counsel merely stressed that the petitioners had not been able to attend the meeting, but whether they were able to attend the meeting or not they knew that they would be bound by the decision of the majority and according to Mr. Ghani the decision for the illegal postponement was unanimous. Yet the petitioners allege mala fides against the respondents, but no allegation has been made against the majority which arrived at the illegal decision. The petitioners have therefore failed to make out a case that the alleged deadlock has arisen out of the failure of a public officer "to perform a public duty" and so they cannot bring their claim within the rule laid down by their Lordships in the case cited.
5. Mr. Ghani then referred us to another judgment of the Supreme Court in Zain Noorani v.
Secretary, National Assembly (PLD 1957 3 C (Pak.) 46). There the appellant challenged before their Lordships a by-election on the ground that it was held after the period for holding by-elections prescribed in article 144 of the 1956-Constitution. And in dismissing the appeal, Shahabuddin, J.
Observed at page 62: "she object of fixing a time limit in Article 141 was to secure the prompt holding of by-elections. This was done obviously because in the past there were several instances of casual vacancies remaining unfilled for a long time. If the provision fixing the time limit is not considered as merely directory then the very object of fixing the limit would be defeated for if once it is be found that an election held beyond time is not valid then it would help the persons who are interested in not holding the by-elections and cause prejudice to the right of the people of the area concerned to have their representatives in the assembly". We are in respectful agreement with these observations, but the construction of a constitutional provision, and that relating to national elections, is rather a different matter from an Order governing co-operative societies, and it is clear from the observations quoted that the view of their Lordships was based on the overriding necessity of preserving the purity of the electoral process. But the objects of the Order are very different: Its provisions appear to be aimed at removing corruption and' mismanagement in co- operative societies. We have in this connection to point out that the Order does not permanently supersede the rules or the by-laws of co-operative societies, and under the by-laws of the bank, one-third of the Board of Directors has to retire every year. As these by-laws remain valid except for the elections ordered in 1972, it is obvious that the effect of the Order is of a temporary nature and the relevant provisions are contained in clause 5. This clause disqualifies for a period of one year the persons who have been members of the societies' committees (and this expression covers Boards of Directors) "far more than two consecutive terms . . . ." And further the persons who had been members of committees for six consecutive years "immediately preceding the commence--ment of this order or for a longer period shall forthwith cease to be members . . . . . . " It is also provided that if the vacancies resulting from these provisions are less than one---third of the members of the committee, the vacancies would be filled "in accordance with the by-laws of the society." But if the number of vacancies caused by the operation of the Order exceeds one- third, then the committee "shall stand superseded". Finally, it is only in the cases where the committees stand superseded that elections had to be held by 31st October 1972. From a perusal of these provisions it is clear that the objects of the Order are very different from those of Article 141 of 1956 Constitution. And when we pointed out to learned counsel that the effect of the Order was temporary, learned counsel submitted that the petitioners were desirous of immediate elections, because then certain persons whom they did not consider suitable would be disqualified from standing for elections as directors in view of the aforesaid bar in clause 5. But if the Government in the exercise of its discretion under clause 14 delayed the elections until after 15-3-1973 then that bar would cease to be operative against those persons. Thus, the clash is of personalities, and this is not a matter fit to be decided behind the backs of the majority of shareholders of the bank. With the utmost respect therefore we do not think that the principle laid by Shahabuddin, J. Can possibly be extended to the present case. Finally, Mr. Ghani stated that Noorant's case had been followed by tee West Pakistan High Court in Pakistan v. Amin Agencies (PLD 1962 Kar. 467). That is correct, but the question in the Karachi case was whether the word "may" in Article 175 of the then Constitution was directory or mandatory. As there is no similarity between that Articles and Clause 5 (6) of the Order, the judgment is not relevant. Accordingly, we agree with the learned Assistant Advocate-General that the Registrar was not competent to extend the date of the banks' elections but that the Government may do so under clause 14, the more so as it would be a fit case for the exercise of discretion under that clause. But this means that the petitioners have an alterna--tive remedy which they have not sought and on this ground also the petition fails.
6. We may alto refer here to another obvious impediment to the petition. The petitioners seek to enforce their rights as members of an association, yet they have not impleaded that association.
And it seemed to u9 obvious that the association would be managed under its rules in accordance with the wishes of the majority; therefore, as we were, astonished by the averments in the petition, we invited Mr. Ghani to show us whether the petitioners could conceivably claim to represent the majority interest of the bank. Mr. Ghani had to admit that the petitioners between them held 5 shares whereas the bank has issued about 19000 shares. Now, even on the assumption that the Registrar is competent to extend the date for the elections of 1972, it may well be that on account of the clash of personalities to which we have referred earlier, the majority of the members would not like an extension of the date for the elections by the Registrar but would prefer the Government to exercise its powers under clause 14. In this view of the matter, is it equitable or just for the Court to interfere at the instance of an infinitesimal minority of the shareholders? We do not think so, because a co-opera--tive society too is only a type of association, and when a member joins an association, in the words of Bhagwati, J. In Satyavarat and others v. Arya Samaj (AIR 1946 Bom.
516), he does so "on the basis that prima-facie the majority of the members is entitled to exercise its powers and control its operations generally." And so that the Courts may not interfere with the rights of the majority to control their own affairs, the rule laid down in Foss v. Harbottle (67 E R 189), was that litigation on behalf of a company can be brought only in the name of the company by those controlling it. The rule is of long standing, and is base) on the equitable principle that companies are entitled to regulate their affairs in accordance with their own rules. As was observed by the Privy Council in Burland v. Earle (1902 A C 83), the members of a company "cannot complain of acts which are valid if done with the approval of the majority of the shareholders, or are capable of being confirmed by the majority." But lest the' majority abuses their powers or deprive the minority of their rights, the Courts have laid down exceptions to the rule in Foss v.
Harbotale, and to quote the Judicial Committee again "The cases in which the minority can maintain such an action are, therefore, confined to those in which the acts complained of are of a fraudulent character or beyond the powers of the company: A familiar example is where the majority are endeavouring directly or indirectly to appropriate to themselves money, property, or advantages which belong to the company, or in which the other shareholders are entitled to participate". The Courts' power to protect the minority against fraud or oppression and to prevent the company from acting ultra vies of its powers is not fettered, and therefore, as observed by Buckley (12th Edition, page 169) ": . . . . . Any case fn which the claims of justice require that an action in which the company is not plaintiff should be entertained may be made an exception to the rule (in Foss v. Harbottle)." In our view, the Courts to make exceptions to the rule In Foss v. Harbottle permits a just balance between the rights of the majority and of the minority, but according to learned counsel every member of a company or an association has the right to institute litigation against the company or with, regard to its affairs. That is another matter; and if this plea were accepted, it would lead to frivolous litigation and it may put the Courts in an embarrassing situation. In reference to this very question, whether a shareholder should be allowed to institute litigation on behalf of the company Mellish, L. J. Observed in MacDougall v. Gardiner ((1876) 1 Ch. D 13): "Now if that gives a right to every member of the company to file a bill . . . . . . . . . . Then if there happens to be one cantankerous member, or one member, who loves litigation every thing of this kind will be litigated; whereas If the bill must be filed in the name of the company then unless there is a majority, who really wish far litigation it will not go on. Therefore, holding that such suits must be brought in the name of the company does certainly greatly tend to stop litigation."
7. The experience of the English Courts is not unique, and these observations of Mellish, L. J. Were followed by Bhagwati, J. In Satyavarat's case, to which we have referred earlier. Not only are we in agreement with the view of Mellish, L. J. Bat it seems to us that any other approach would put the Courts in embarrassing position. Thus, for instance in the present case, there are obviously differences between the shareholders of the bank as to who should be the bank's directors. But even if we assume for the sake of argument that the Registrar was competent to extend the date for the bank's elections after 31 October 1972, possible that the majority of the shareholders would prefer to refer the matter to the Govern--ment, and the petitioners' failure to implead the bank cannot but support such an reference. Therefore, if we were to allow the petition, we might be acting against the wishes of the majority of the shareholders, and if they insisted on their lights, they could nullify the order of this Court. In these circumstances, as the petitioners bad not impleaded the bank, we enquired from learned counsel whether they would be willing to take proceedings under Order 1, rule 8, C. P. C. 'Learned counsel stated that the petitioners would not do so and also submitted that the provisions of Order 1, rule 8, C. P. C. Were not applicable to constitutional petitions. Although the provisions of the Civil Procedure Code are generally applicable to constitutional petitions, learned counsel did not even attempt to explain why the provisions of Order 1, rule 8, C. P. C. Were not applicable to such petitions. Be that as it may, the result is that we are invited to decide a question which affects all the shareholders of the bank without giving them any opportunity to be heard. No Court can approve of such a procedure and as a constitutional petition is a discretionary remedy, on this ground alone, the petitioners' claim is fit to be rejected.
8. We are aware that the bank is a Co-operative Society, but the principles laid down in Foss v.
Harbottle, Burland v. Earle, MacDougall v. Gardiner and the other decisions on the question are based on principles of equity and justice and were extended in Satyavarat's case to societies registered under the Societies Registration Act. We see no reason why these principles should not be extended to Co-operative Societies, nor did Mr. Ghani advance any arguments to show that these principles were not fit to be applied to co-operative societies. His only submission on this question was that as the petitioners were seeking to enforce their own rights these principles were not attracted to the present case. By the rights of the petitioners, learned counsel meant their claim that the Registrar was competent to extend the date for the elections under clause 5 (6) of the Order. But the alleged claim has accrued to the petitioners only as members of the bank, and any decision in their favour could prejudice the rights of the vast majority of the other shareholders, therefore we are not impressed by this attempt to distinguish between the rights of the petitioners as shareholders of the bank and the rights of the bank. Mr. Ghani however submitted that his argument was supported by a judgment of the Dacca High Court Abdur Rab Choudhry v. Registrar, Joint Stock Companies (PLD 1960 Dacca 541). Accordingly, we have examined this judgment.
9. The facts in Abdur Rab Chaudhry's case were very peculiar. The Managing Agents of a company had tried to shift the head office of the company from Dacca to Calcutta, but when the action of the Managing Agents was challenged, the company filed a suit seeking declarations in which itst stated that its registered office had not been shifted from Dacca. Later, this suit was compromised, but the Registrar transferred the name of the company from the list of local companies to the list of foreign companies. And on coming to know of this order, the petitioners filed a petition against the company and the Registrar for - an order directing the Registrar to restore the company to the list of local companies. The company opposed the petition on the ground that its registered office had been shifted to Calcutta long before Partition The learned Judges held that if the company's contention was correct it should have applied to the Court for the necessary directions but that there was no provision In law which permitted the Registrar to transfer its name from the category of indigenous companies to that of foreign companies. But this --finding was based on the Registrar's admission that his action was illegal and that he had merely carried out the orders of the Minister of Commerce. On this admission, the Registrar's action was mala fide on the ground that he had acted on extraneous considerations. And as the company thus supported an order which was held to be Illegal and mala fide, the case was clearly one of oppression of tile minority, and the petition could properly have been allowed within the well known exceptions to the rule in Foss v. Harbottle. However, the learned Judges did not allow it on this ground but instead they observed at page 549 that a shareholder had "a right to demand that the Registrar while registering a company as a foreign company must act in accordance with law. As he has acted contrary to law a shareholder can demand that mandamus should go to correct that error". With great respect, we do --not think a departure from the settled law was warranted by the facts of the case, but Mr. Ghani pointed out that the view of the learned Judges was based on a passage in Halsbury and on the judgment of the Supreme Court in Pakistan v. Mehrajuddin (PLD 1959 SC (Pak.) 147). However, on examining the judgment, we find that the attention of the learned Judges was not drawn to Halsbury's observations on the right of companies to file suits. And on the contrary we find that Halsbury has approved of the rules laid down in Foss v. Harbottle, Burland v.
Earle and the other decisions on this point in the volume of companies (see 3 Edition, volume 6, para. 810). Then as to the judgment of the Supreme Court the learned Judges have placed, reliance on a passage in the judgment of Cornelius. C. J. In which-- Cornelius, C. J. Has defined the essentials of a writ of mandamus. We are in respectful agreement with the observations of the Chief Justice, but they had reference only to the ingredients of' a writ of mandamus. Further the observations were made In a service dispute and therefore their Lordships did not have occasion even to consider the rule in Foss v. Harbottle. Accordingly, having given anxious thought to the view of their Lordships, we are of opinion that judgment is distinguish--able on the facts and has no relevance to the present case.-- On the other hand, learned counsel was not able to refer us to any judgment on the point under consideration, namely whether the principles applicable to litigation by members of a company cease to be applicable when the member files a writ petition instead of a suit, and on general principles we see no reason whatever why the settled law with regard to the institution of suits against companies by its member should not be extended to constitutional petitions.
10. However, as the learned Judges of the Dacca High Court have also relied on a judgment of the Court of appeal in Edwards v. Halliwell ((1950) 2 A E R 1064) we have examined this judgment. The dispute in this case related to the construction of the rule of a Trade Union which fixed the contributions of members and prescribed that "no alteration to same shall be made until a ballot vote of the members has been taken and two---third majority obtained". Contrary to the mandatory provisions of this rule, the union's executive committee increased the contri--bution by an ordinary resolution of the union. As the resolution was not passed by a two-third majority and as voting was not by ballot, the respondents sued the executive committee of the union on behalf of themselves and the other members of the union. Their claim was upheld, and their plea attracted the exceptions laid down in Foss v. Harbottle and Burland v. Earle, the action of therd committee was both ultra vires and amounted to oppression of the minority. That was also the view of the Court of Appeal, and Asquith, L. J. Based his decision solely on the ground that "the action complained of here was strongly tinctured not indeed with fraud but with "oppression" and "unfairness" Jenkins. L. J. Also observed that the case fell under the exceptions to the rule in Foss v.
Harbottle and then observed at page 10671 "I would go further. In my judgment this is a case of a kind which is not even within the general ambit of the rule. It is not a case where what is complained of is a wrong done to the union, a matter in respect of which the cause of action would primarily and properly belong to the union. It is a case in which certain members of a Trade Union complain that the union acting through the delegate meeting and the executive council in breach of the rules by which the union and every member of the union are bound has invaded the individual rights of the complainant members . . . . . . The gist of the case is that the personal and individual rights of membership . . . . . . Have been invaded . .In those circumstances it seems to me the rule in Foss v. Harbottle has not application at all . . . . . .". With respect, we are not able to agree with these observations. In our humble opinion it would be difficult to distinguish between a right of a member which would "primarily and properly belong to the union", as observed by Jenkins, L. I.
And a right which belongs exclusively to the member. After all the right of the respondents to pay their contributions at the old rate was based on their right that the rule of their Trade Union should be enforced, and this was a right which had accrued to them only as members of the union, and any decision with regard to their claim affected the entire union. Therefore, in our ;humble opinion, the view of Asquith, L. J. Is the better view. And further, for the reasons which we have given, any departure from the settled view will create complications. There cannot be a better illustration of our apprehension than the conduct of the petitioners before us. Although they seek relief with regard to the management of the bank, they have not impleaded the bank, and they wish to obtain an order in their favour behind the backs of the vast majority of the share--holders of the bank. It is true that the petitioners have thus gone farther than the Dacca case because, in that case, the company concerned was at least impleaded. But, as rightly submitted by Mr. Ghani, if the Dacca High Court's view is correct, he was not required to implead the bank or even to take any steps under Order I, rule 8, C. P. C. The petitioners' conduct is sufficient to show the undesirability of any departure from the rule in Foss v. Harbottle, as modified by the exceptions to it. Accordingly, with respect, we cannot agree with the view of the learned Judges of the Dacca High Court or the view of Jenkins, L. J. And therefore, on this ground also, the petition fails.
11. The learned Assistant Advocate-General has produced a copy of the Registrar's letter to the Provincial Government, dated 17th November 1972, inviting it to take action under clause 14 of the Order. This letter is placed on record and we hope that action will be taken without delay. The petition is without merit and is dismissed with costs.