' This writ petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, seeks direction of this Court against the respondents, to act upon the law and register the transfer of the shares in the name of the petitioners and also to complete the other acts necessary in this regard.
2. The facts giving rise to the present writ petition are that respondent No,1 is a Limited Company incorporated under the Companies Ordinance, 1984. The petitioner purchased 1540 shares (180291 to 181830), 500 shares (186661 to 187160) and 1000 shares 184621 to 185620) from respondents Nos.2, 3 and 4 respectively issued by respondent-Company on 2-2-1995, 6-4-1996 and 5-3-1996. The petitioners applied for the transfer of the aforesaid shares in his name, registering the same in the Register kept for the purpose. The respondent, without any lawful justification refused to do so, as such, the present writ petition was filed for the necessary direction.
3. Mr. Muhammad Rafique Dar the learned counsel representing the petitioner contended that the respondent No,1 is a Limited Company, registered under the Companies Ordinance, 1984 which is controlled by the Government as such the Constitutional petition could be filed for the redressal of the grievance. The learned Counsel argued that the petitioner purchased the aforesaid shares of the respondent-Company from pro forma-respondents Nos.2 to 4. The respondent-Company was bound to register those shares in the name of the petitioner for which he also moved respondent No,5. On his failure to get the requisite relief, the petitioner approached the Registrar of Companies, Muzaffarabad who directed pro forma-respondent No,5 to get the needful done. Respondent No,5 once again, through Annexure 'E' directed the respondent-Company to transfer all the above mentioned shares in the name of the petitioner, It was contended by the learned counsel that it was the legal right of the petitioner which could not be refused, as such, the petition was filed for the purpose. The learned counsel referred to 1993 PLC (C.S.) 1201, in support of his assertions.
4. Haji Muhammad Afzal, the learned counsel representing the respondents, raised the following points, while controverting the arguments addressed by the learned counsel for the petitioner:--
(i) That the writ petition was not competent and it was liable to be dismissed on the sole ground that the same was filed against the private persons, therefore, extraordinary Constitutional jurisdiction under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 was not attracted;
(ii) that the writ petition was hit by laches as the same was filed after a considerable delay;
(iii) that no instrument of transfer of shares was presented before respondent No,1, as such, the question of transfer of shares, did not arise at all;
(iv) that respondent No,4 has died and his legal representatives have not been impleaded, as such, the petition fails for non-impleading the necessary parties;
(v) that the disputed questions of facts were involved in the writ petition, therefore, those could not be resolved in writ petition. The learned counsel referred to 1999 YLR 2499, 1980 Companies Cases, (Vol: 50) 553 and an unreported case titled Ch. Mushtaq Hussain and others v. M/s. Kashmir Textile Mills Ltd., Mirpur and others" in support of his contentions.
5. I have heard the learned counsel for the parties and also gone through the record carefully. Haji Muhammad Afzal, the learned counsel representing the respondents, while arguing, raised a preliminary objection that the writ petition was not competent as the same could not be issued against a private person. It was contended by him that respondent No,1 is a Limited Company incorporated under the Companies Ordinance, 1984. The Constitutional jurisdiction under section 44 of the Act, is not attracted against a private person. Dealing with the controversy, it appeared to be appropriate to refer section 44 of the Constitution Act which is reproduced hereunder:-- "44. Jurisdiction of High Court.--(1) The High Court shall have such jurisdiction as is conferred on it by this Act or by any other law.
(2) Subject to this Act, the High Court may if it is satisfied that no other adequate remedy is provided by law--
(a) on the application of any aggrieved party, make an order,--
(i) directing a person performing functions with the affairs of Azad Jammu and Kashmir or local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; or
(ii) declaring that any act done or proceedings taken--by a person performing functions with the affairs of the State or a local authority has been done or taken without lawful authority, and is of no legal effect; or
(b) on the application of any person make an order.---
(i) directing that a person in custody in Azad Jammu and Kashmir be brought before the High Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person---holding or purporting to hold a public office in connection with the affairs of Azad Jammu and Kashmir to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to the person or authority, including the Council and the Government, exercising any power of performing any function in, or in relation to, Azad Jammu and Kashmir as may be appropriate for the enforcement of any of the fundamental rights conferred by this Act.
(3)..
(4)
6. It is evident from the aforesaid scheme of law that an appropriate writ may be issued by the High Court in either of the aforesaid positions when the matter in dispute was found connected with the affairs of Azad Jammu and Kashmir or a local authority, as the case may be. Besides, an appropriate writ can be issued to the person or authority including the Council and the Government, for enforcement of any fundamental rights contained under the Act. It follows that writ petition could be filed on the application of any aggrieved party, directing a person performing functions in connection with the affairs of Azad Jammu and Kashmir or a local authority to refrain from doing not permitted by law or to do required by law or declaring any act or proceedings taken, without lawful authority and of no legal effect, or making an order giving any direction to the person or the authority including the Council and the Government exercising any powers in relation to Azad Jammu and Kashmir Government or for enforcement of any fundamental rights conferred by the Act of 1974. A direction may also be issued for a person in custody in Azad Jammu and Kashmir, to be brought before this Court to satisfy whether he is held in custody without lawful authority or otherwise requiring a person holding a public office in connection with the affairs of Azad Jammu and Kashmir, to show under what authority of law, he claims to hold that office.
7. A similar point was raised in an earlier case titled 'Ch. Mushtaq Hussain and others v. M/s. Kashmir Textile Mills Ltd., Mirpur and others' wherein the same proposition was involved. An objection was taken in a Constitutional petition filed against the Kashmir Textile Mills, a limited Public Company, alongwith its Directors as respondents that the writ petition was not maintainable as the aforesaid limited Company was out of the purview of the provisions of section 44 of the Interim Constitution Act. The learned Chief Justice in his judgment recorded on May 17. 1992, resolved the proposition in the following manner:-- "-The petitioners claim that they are shareholders of the Company. The Directors of the Company acted in derogating to the provisions of the Companies Law and the Articles of the Association in holding annual general meeting etc. Irrespective of the fact that actions and decisions relating to business of the Company were in accordance with relevant law and the Articles of Association or not, they do not fall within the purview of the provisions of section 44 of the Azad Jammu and Kashmir Interim Constitution Act. As such, special jurisdiction of Court cannot be invoked in the case. The authorities cited by the learned counsel for respondents, though are not directly applicable, yet provide ample guidance in support of the aforesaid view.--"
8. The proposition also came under consideration before the Supreme Court of Azad Jammu and Kashmir in Muhammad Sayab Khalid's case (1999 YLR 2499) wherein the same was resolved in the following words:- "-After examination of the writ petition, we find that first part of the writ petition in which the petitioner seeks a declaration about the actions of Mohtarama Benazir Bhutto and Mohtram Hamid Nasir Chatha, is not maintainable because writ does not lie against a private person. Under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, a declaration can only be given that 'any act done' or proceedings taken by a person performing functions in connection with the affairs of the State or a local authority has been done or taken without lawful authority and is of no legal effect.' Mohtarma Benazir Bhutto and Mohtaram Hamid Nasir Chatha are private persons performing no function in connection with affairs of the State, therefore, a writ cannot issue against them."
9. A similar situation arose before the Punjab and Haryana High Court in Ram Singh's case (1980 Company Cases (Vol.50) 553), wherein it was observed as under:-- "--A company being a non-statutory body and one incorporated under the Companies Act there is neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a writ of mandamus nor is there in its workmen any corresponding legal right for enforcement of any such statutory or public duty.
' A writ petition was filed by an employee of the Fertilizer Corporation of India for quashing an order reducing his salary: ' Held, that the Corporation was a limited company incorporated under the Companies Act and as such, the writ petition was not competent."
10. Mr. Muhammad Rafique Dar, the learned counsel appearing for the petitioner, on the strength I of Muhammad Rashid Chaudhary's case (1993) PLC (C.S.) 1201), argued that the writ petition was held competent in the aforesaid case against the Azad Kashmir Logging and Saw Mills Corporation. It was also contended by him that the limited Companies are registered under the statutory law and are also controlled by the Government, whereas the AKLASC, a statutory Corporation, was also controlled by the Government. Therefore, there was no practical difference, as such, the writ petition filed by the petitioner was competent. The answer is provided in the aforesaid authority at page 91 which is reproduced as under:- "-The above extracted passages lay down, we say so with respect, the correct enunciation of law and we follow the wisdom contained therein. It may not be out of place to add, however, that the question whether functions being performed by an organization or person are indeed functions of the State involving some exercise of sovereign or public power is not always easy to answer. In fact, Sometimes it is difficult to draw a line between the functions of the State and the functions which are outside its ambit. At one stage commercial banking was a private business and was carried on by private citizens by forming themselves into public or private limited companies but through operation of law banking was completely taken over by the Government. The recent development is that it has again been opened to private citizens. There are numerous instances where statutory Corporations are set up under control of the Government to perform functions which apparently seem to be nothing but business. Mills set up by Pakistan Industrial Development Corporation in Pakistan is a case in hand. Then we see that the stores set up by the Utilities Stores Corporation, a statutory body, are nothing but grocery shops. On the contrary there are certain activities which appear purely to belong to the State but' they are being turned over to private citizens. Amongst them can be found examples of Post, Telegraph and Telephone services.
' Construction of public roads is a function of the State but certain motorways are being constructed under the control of statutory Corporations with funds provided by private investors.
Therefore, we are disposed to think that in order to resolve this question the acid test should not be whether a particular function is a function of the State or not but it should be whether in the performance of that function sovereign or public power is being exercised. It is being exercised, it should be sufficient to conclude that the concerned person is performing functions in connection with the affairs of the State/Azad Jammu and Kashmir. The reason which persuades us to reach that conclusion is that it is the Legislature which determines as to what functions are to be performed by the other organs of the State. When the Legislature authorizes the Government through a law to set up a statutory corporation or authority to perform a particular function, under some of official control as may be found necessary, such corporation or authority exercises sovereign power in performance of its functions. It, therefore, follows that it performs functions in connection with affairs of the State/Azad Jammu and Kashmir.--"
11. The nutshell of the above discussion is that the respondent-Company is neither a statutory Corporation nor a local authority, as such, shall be termed as a private person. Therefore, relying upon the aforesaid authorities, the writ petition against the respondents, is not competent, as such, the same is dismissed with no order as to costs. The other points raised in the petition by the parties, in the circumstances, are not required to be adverted to as the writ petition stands disposed of on the aforesaid point.