MALIK MUHAMMAD QAYYUM, J. -- This order shall dispose of W.P. No. 18056/99, and W.P. No. 18055/99, in both of which similar questions of law and facts arise.
2. In W.P. No. 18056/99, respondent No. 3 is Lahore Chamber of Commerce and Industry, a body registered under the Trade Organisation Ordinance, 1961. Its membership comprises of two classes viz., chamber class and associate class. The elections to the executive Committees for both the classes were scheduled to be held on 22nd and 23rd September, 1999 respectively.
3. The learned counsel for the petitioners has stated that there is no dispute as regards the election to the seats from chamber class. However, in his words there was a large scale rigging in the election to the four seats of associate class. These elections have been dubbed by the learned counsel for the petitioners as a farce and free for all. It is elaborated that a large number of bogus votes were cast and the voters belonging to the petitioners' group were not allowed to cast their votes. It was in the background that these petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 were tiled by the petitioners in which apart from the persons who were declared elected to the seats reserved for associate class, the Federation of Pakistan and Director, Trade Organisation, Islamabad have been impleaded as parties. The prayers made in the petitions are as follows:- (W.P. NO. 18056/99)
"It is, therefore, respectfully prayed that this learned Court be pleased to declare the election held in the Lahore Chamber of Commerce and Industry on 23rd of September, 1999 is without lawful authority and of no legal effect."
(Prayer in W.P. No. 18055/99)
"Under the circumstances, it is, therefore, most respectfully prayed that the election held on 24.9.1999 be declared null and void.
It is, further prayed that respondents be directed not to announce the result of the said election, scheduled to be announced on 29.9.1999 till the final decision of the petition.
It is also further prayed that respondents be directed not to hold Annual General Meeting scheduled for 29.9.1999 till the final decision of this case."
4. On the last date of hearing, this Court had issued pre-admission notices in response to which, Mr. Hamid Khan, and Mian Qamar-uz-Zaman, Advocate entered appearance in W.P. No. 18056/99 while Mr. Muhammad Akram Sheikh, Advocate has appeared on behalf of respondent Nos. 2 to 4 in W.P. No. 18055/99. Arguments of the learned counsel for the parties have been heard.
5. An objection has been raised by the learned counsel for the respondents that these petitions are not competent; firstly, for the reason that the petitioners have equally efficacious remedy available to them under the Trade Organisation Ordinance, 1961 by invoking jurisdiction of the Director, Trade Organisation and secondly, that the Lahore Chamber of Commerce is not a person performing any functions in connection with th affairs of the Federation or the Province and, therefore, no Constitutional petition was maintainable against it.
6. Mr. A.K. Dogar, learned counsel for the petitioners has however, vehemently argued that under Section 9 of the Trade Organisation Ordinance, 1961, it was the duty of the Director, Trade Organisation t supervise the elections himself or to nominate any person for the purpose o control and supervision of the election but as he has failed to do so, and a such the elections are liable to be set aside.
7. In support of this argument, the learned counsel has relied upo the definition of words "control" watch and "supervise" as given in th BLACKS LAW DICTIONERY 7th Edition. He also cited Sadruddi Ansari v. Yar Muhammad Memon and another (PLD 1967 Kar. 196) t show that where there has been non-exercise of jurisdiction vested in Tribunal, the High- Court can interfere under Article 199 of th Constitution of Islamic Republic of Pakistan, 1973.
8. In reply, the learned counsel for the respondents have submitted that it was not obligatory on the part of the Director Trade Organisation to supervise or to appoint any Supervisor for the purpose of, elections to the Chamber and that the jurisdiction of the Director Trade Organisation starts only when the elections have been held and not prior thereto.
9. In order to resolve the controversy between the parties, it is convenient to reproduce the provisions of Section 9 of the Trade Organisation Ordinance, 1961:- "All acts and proceedings of a registered trade Organisation shall be subject to the control of the Central Government and, subject to such control the affairs of such trade organisation shall he managed and conducted in such manner as the Director may, from time to time, direct.
(2) Notwithstanding anything contained in any law for the time being in force or in the articles or memorandum of a registered trade organisation and without prejudice to the generality of the foregoing provision, the Director may:
(a) require any such trade organisation or any competent person connected therewith to furnish him with any information, documents and returns relating to the affairs of such trade organization or to answer orally or otherwise any query with respect thereto:
(b) inspect with or without prior notice, any office of such trade organisation including any of its branch or regional, circle, zonal or liaison office, or any record of documents found therein;
(c) attend any meeting of the general body or the executive committee of such trade Organisation or of any committee or other body set up or appointed to transact any business, or to conduct any affair, of such trade Organisation;
(d) watch and supervise, or cause to be watched and supervise, any election held by, or for the purpose of electing persons to the executive committee or other body including a regional, circle, or zonal body of any such trade organisation;
(e) within 30 days of the announcement of the results of any election held by any such trade organisation, or anybody exercising any function relating thereto for the purpose of electing any person to the executive committee or other body including regional, circle or zonal body of such trade organisation or for any other purpose and with the approval of the appropriate Government, annul such election, if he is satisfied.
(i) upon his own knowledge and after such investigation as he may think fit make, or
(ii) upon a report made by a person authorised by him to make investigation for the purpose, that the irregularities in the conduct of such election justify such annulment and, by order in writing, direct fresh election to be held within such period as may be specified in the order, (0 cancel, suspend or modify any resolution adopted or any decision taken, by the general body or the executive committee of such trade organisation, if he is satisfied that such resolution or decision is not in confirmity with the provisions of the articles or memorandum or any rules or regulations made thereunder, or that the requirements of the provisions of the articles or memorandum or any rules or regulations made thereunder have not been complied with while adopting such resolution or taking such decision, or that such resolution or decision is contrary to any rules, regulation, directions or instructions issued by the Directo or by the appropriate Government to such trad organisation;
(g) if he considers it necessary for smooth, orderly and efficient functioning of any such trade organisation,
(i) remove or cause to he removed any member of the executive committee, not exceeding a total of 5 in any calendar year, of such trade organisation and fill up, or cause to he tilled up, the resultant vacancy,
(ii) suspended or cause to he suspended, for a specified period, any member not exceeding a total of 15 in one calendar year, of any such trade organisation and cancel, or cause to be cancelled, any such suspension or the suspension of any member otherwise than by or at the instance of the Director,
(iii) remove, or cause to he removed, from the membership register, the name of any member, not exceeding total of 15 in one calendar year, of any such trade organisation, and reinstate, or cause to be reinstated, in the membership register, any member so removed or removed otherwise than by or at the instance of the Director, provided that the power for removal or suspension under this clause shall not be exercised except with the approval of the appropriate Government."
10. On an accumulative reading of various clauses of this provision it shall be seen that it is not obligatory or mandatory on the part of the Director, Trade Organisation to supervise or control the election or to appoint any other person to do so. The use of the word "may" makes the provision enabling in nature. Be that as it may, at no stage before the elections were held, had the petitioners approached the Director Trade Organisation with a request to either supervise or to watch the elections, or appoint any person to do so in terms of Section 2(2)(d) of the Trade Organisation Ordinance, 1961. 1 am, therefore, unable to accept the contention of as under:- "Respectfully following the authoritative pronouncement of the Supreme Court, I inclined to agree that the Director cannot interfere with the election and can only annul it after it was held. When faced with this situation, Mr. Abid Hussan Minto, submitted that the writ petitioners have merely sought a direction against the Director to perform his duties, which is his statutory duty to perform under the Ordinance. I am afraid, the reply is not satisfactory. It is well-settled that if a relief cannot be claimed directly, the same cannot he permitted to obtain indirectly in the garb of a direction to the Director to perform his duties. Reference may also be made to Section 9 (2)(e) of the Ordinance which would show that even in the case of irregularities in the conduct of election, the Director cannot annul it without the approval of the appropriate Government. The rationale behind the provisions of Section 9(1) of the Ordinance appears to be that the Director is not competent to interfere with the internal management or affairs of a limited company like the respondent Chamber, which admittedly is not a person performing functions in connection with the affairs of the Federation or a Province or a local authority. Mr. S.M. Zafar has rightly pointed out that in view of the dictum of the Supreme Court in Salah-ud-Din and 2 others . v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai and 10 others (1) the provisions of Article 9 of the Provisional Constitution Order, 1981, cannot he invoked for seeking any interference directly or indirectly in the internal management or the affairs of a limited company like the respondent Chamber. In support of his contention Mr. S.M.
Zafar has placed reliance on Frid Sons Ltd. v. Karachi Cotton Association Ltd. (2) V. N. Bhakjekar v.
K.M. Shinkr and others (3) Reliance is also placed on Mrs. Amai Fakirji Cowasji v. E.A. Person and others (4) wherein it was held that no share-holder before hand can seek to obtain information which can be supplied at the general meeting and ask the Court to stop the meeting till the information is supplied.
11. The above cited judgment also supports the contention of the learned counsel for the respondents that if the Director Trade Organisation is allowed to interfere in the process of election before the election is actually held, it would render the provision of Section 9 (2)(e) as negatory and redundant. No doubt, Section 9 (1) authorises the Federal Government to control all acts or proceedings of a registered trade organisation and subject to that control, the affairs of the trade organisation shall be managed and conducted in such manner as the Director may from time to time direct and further that according to sub-section (2) clause (d) of Section 9 the Director Trade Organisation is empowered to watch and supervise or cause to be supervised any election held for executive committee or any other body but it does not in any way permit him to interfere in the election process. He can, however, monitor the election so as to enable him to take action under clause (e) of sub-section (2) of Section 9 of the Ordinance which may be that of annulment of the election. This view also finds Suppun from the judgment of my learned brother Khalil-Rehman Khan, J. (as his lordship then was) in Khadim Hussain and others v. Director Trade Organisation, Ministry of Commerce, Islamabad and 4 others (1994 DLC 1860).
12. Coming now to the question of maintainability of these petitions, the objection of the learned counsel for the respondents is two fold, firstly; that the Lahore Chamber of Commerce is not a person performing functions in connection with the affairs of the Federation or the Province and as such its action cannot be challenged in a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and secondly, that in any case, there is equally efficacious and adequate remedy available to the petitioners which has not been availed of. So far as the first part is concerned, there can be no two opinions that the Lahore Chamber of Commerce and Industry is not a person performing functions in connection with the affairs of the Federation or the Province. It is, on the other hand, a body set up by the Members with the object of promoting their interest.
Though it is a trade organisation within the meaning of Section 2 (2) of the Trade Organisation Ordinance, 1961 and has to be registered and licensed by the Director Trade Organisation, but this does not change the nature and character of the Organisation itself. Consequently, till such time, an order s passed or action is taken by the statutory functionaries of the Federal Government under the Trade Organisation Ordinance, 1961, no constitutional petition can be maintained. It was so held by a Division bench of the Sindh High Court in Siddique and another Vs. Chamber of commerce and Industries, Karachi and another (1992 M LD 651). The earned Judges went on to observe:- "We have heard the learned counsel for the petitioners at length and after hearing his contentions have come to a conclusion that this petition is not maintainable against the respondents. It may he pointed out neither of the respondents can he said to he persons performing functions in connection with the affairs of the Federation, a Province or a Local Authority."
Reliance of the learned counsel for the petitioners on Muhammad Aleem v. Provincial Election Authority, Sindh at Karachi (PLD 1985 Karachi 135) is of no avail as in that case the dispute was in respect of the section of the Chairman of the Town Committee which, admittedly, performs statutory functions in accordance with the Sindh Local Govt. Ordinance.
13. The other objection that the Constitutional petition is not maintainable because the petitioners have an adequate remedy is also unexceptionable. As already mentioned Section 9 (2)(e) of the Ordinance, ests power in the Director Trade Organisation to annul the election, if he comes to the conclusion after making an inquiry that there have been regularities in the election which justifies invalidation of the same. Similar view was taken in Siddique's case supra, where the learned Judges were leased to observe as under:- "Mr. Farooqi has also contended that there is no alternate remedy available to the petitioners as filing of a suit is expressly barred under Section 12 of .West Pakistan Ordinance (XLV of 1961) and consequently, the only remedy which is available to the petitioners is by way of a Constitutional petition. We also find no merit in his argument because apart from the fact that Section 9 of the said Ordinance provides a remedy by filing a petition for annulment of the elections within 30 days of the announcement of the result thereof, the main question still would be whether the respondents in this case are amenable to the writ jurisdiction of this Court. As we have already held that the said respondents are not amenable to suc jurisdiction, we are unable to accept Mr. Farooqi argument."
Similarly, in M/s. Mumtaz Steel Corporation (Pvt.) Ltd. v. Pakistan Steel Rerolling Mills Association (PLD 1990 Kar. 335) it was held that n Constitutional petition could be filed in the presence of Section 9 (2)(e) o the Trade Organisation Ordinance, 1961. It is useful to reproduce th following observation of the Division Bench:- "As a result of the above discussion, we are of the vie that the Trade Organisation Ordinance, 1961 provides into alia machinery for resolving the grievances relating t election of the trade organisation including irregularities connected with proxies."
14. Before partint with the case, it may be mentioned that th petitioners have themselves already approached the Director Trad Organisation by making an application to him, a copy of which has bee filed as annexure 'H' to W.P. No. 18056/99. That application was filed o 23.9.1)99 but the petitioners without waiting for any reply or any action o the part of the Director Trade Organisation rushed to this Court by filing Constitutional petition on 28.9.1999.
15. At the end, the learned counsel for the petitioners prayed that I this Court was of the view that the matter has to be decided by the Direct Trade Organisation then, these petitions he kept pending so as to await th decision of the Director Trade Organisation. I am not inclined to do so, as in these petitions no order passed by the Director Trade Organisation has been assailed. If and when any order is passed by him, which the petitioners consider detrimental to their interest, they shall he free to file a fresh petition.
16. As a result of what has been said above, both these petitions are dismissed in liming. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.