SH. RIAZ AHMED, J.- This order shall dispose of CP No. 818-L of 1999 preferred by Allied Management Group Vs. Federation of Pakistan, etc. And is directed against the judgment and order dated 21st of April, 1999 delivered by a Division Bench of the Lahore High Court in ICA No. 295 of 1999 whereby, the order dated 18.3.1999 of a learned single Judge rendered in Writ Petition No. 4539-99 was sustained.
2. Relevant facts in brief giving rise to the institution of this petition for leave to appeal against the aforesaid orders are that petitioner Allied Management Group is an organization of the employees of the Allied Bank Limited which is being privatized. Petitioner allegedly purchased 51% share of the bank from the Federal Government in terms of agreement dated 9.9.1991. As a result of the transfer of shares in favour of the petitioner group on 9.9.1991. It was complained in the writ petition that on account of the collapse of the stock exchange market, the value of the share of the bank depreciated from Rs. 70 to Rs.
9. It was alleged that Privatization Commission was still making efforts to privatize the bank at the behest of the Federal Government. According to the petitioner on 24.3.1997, the Privatization Commission had issued letter undertaking that it intended to disinvest 20% of its shares for transferring the same to the general public through stock exchange, It was further urged that on 17.10.1998 in a meeting of the Board of Directors of the bank, a nominee of the Federal Government had expressed its desire that the Federal Government intended to disinvest 49% shares of the bank to the general public through stock exchange, it was also complained that entry in the minutes of the meeting was manipulated and forged and was designed to benefit the spectators and greedy capitalists. Thus feeling aggrieved the petitioner invoked the Constitutional jurisdiction of the Lahore High Court seeking the following declaration:-
(i) Revision of decision to hold in abeyance the offloading of 49% balance shares of the respondent Bank through stock exchange is a malicious at which has been designed to cause undue benefit to vested interests who are manipulating the situation.
(ii) No provision of balance 49% shares currently held by respondent Federation can be offered for sale to the general public unless first all underhand transactions are reflected in the Register of Members and thereafter petitioners are placed in position to exercise their right which has statutory sanction to the effect that they shall have preferential right to purchase at the stipulated price from 49% shares portfolio so as to attain the level of 51%.
(iii) Respondent Privatization Commission has no lawful authority to prescribe or apply such criteria to the petitioner Group as is sought to be done by means of the impugned documents attached above, which has the specific design to out the petitioner Group in disregard of the fact that they are entitled to at as underwriters.
(iv) Respondents have no lawful authority to conduct any transfer of shares through stock exchange without first getting the respondent Allied Bank properly listed as required by law and Agreement.
(v) Respondents are under a statutory duty to ensure that the control of the respondent Bank does not stand transferred to persons who stand disqualified under the Banking Companies Ordinance, 1962.
The petitioner also sought a direction that the Federal Government be restrained from permitting any transfer of any portion of 49% shares still held by them under any pretext so long as effective steps are not taken to ensure that petitioner group is transferred 51% of its shares as envisaged by the agreement ibid. In addition thereto, another direction was also sought that respondents, be permanently restrained from permitting any transfer of shares in favour of any underwriter under any contrivance since petitioner group had already applied to at as the underwriter. The Lahore High Court while hearing this writ petition issued notice to the Federal Government and it filed the reply to the effect that it will abide by its agreement and will transfer such number of shares at the rate of Rs. 70/- per share to the petitioner so as to make their holding of 51% in tact, In para 7 of the reply it was also averred that Privatization Commission is in the process of having the shares quoted at the stock exchange which will be done very shortly. Once it was done, the public offer will be made, for which, the underwriter in accordance with law has to be appointed and the same shall be done in a transparent manner in the best national interest as well as in the best interest of the institution. The writ petition was dismissed by a learned single Judge of the Lahore High Court on 18.3.1999, thus being aggrieved, the petitioner preferred an ICA and as already stated above, the same too was dismissed in terms of order impugned herein.
3. In course the hearing of ICA it was urged that entries in the minutes of the meeting Annexure VI were foraged and manipulated and were designed to help the greed capitalists who wanted to grab the bank, It was further averred that one Ashtar Ali had purchased 70,00, 000 shares from the employees of the bank and was still determined to purchase the remaining shares, It was further urged that the stock exchange was in a shamble and it was not in the interest of the bank to privatize it at that juncture.
4. On behalf of the Federal Government, it was vehemently urged that petitioner did not approach the Court with 'clean hands the Government was still willing to honour its commitment made in the agreement of sale dated 9.9.1991, and if the petitioner approached it, the shortfall in their holding will be completed by selling them the requisite shares at the rate of Rs. 70/- per share, It was further contended that the Federal Government as well as the Privatization Commission had not announced any schedule for inviting bids with regard to the sale of 49% shares, therefore, both the writ petition and the ICA was premature.
5. After going through the facts of the case and after hearing Dr. A. Basit, ASC it is manifestly clear that neither the Federal Government nor the Privatization Commission had issued any invitation in the press or otherwise to of load its 49% shares in the bank to the general public and it was thus rightly concluded by the High Court that writ petition was premature.
6. It is not disputed that 49% of the shares in the bank are owned by the Government of Pakistan and obviously it is the prerogative of the Government to transfer it to the general public through any means including the stock exchanges, In addition thereto, the Federal Government had expressed in unequivocal terms that it will abide by its commitment made through agreement dated 9.9.1991.
7. The chequered history of the dispute also revealed that petitioners' case was that it did not own 51 % of shares as envisaged in 1.9 read with paras 2.5 and 2.6 of the agreement dated 9.9.1991 and therefore, it was the obligation of the Government of Pakistan to make up this deficiency of of the remaining 49% shares owned by the Government of Pakistan which are intended to be disposed of through underwriters. Petitioner's case was that decision not to offer 49% shares to the petitioner was arrived at through underhand means, It was alleged that action of the respondents is in violation of the provisions of section 82(2)(3) of the Companies Ordinance, 1984 and Section 11 (c) of the Banking Companies Ordinance, 1962.
8. At one point of time it was offered by the Government of Pakistan that if the petitioner deposits the price of the shares as given in the agreement itself within two weeks, then the shares shall be transferred to the petitioner, but the petitioner did not accept this offer which disentitled it from any relief in the Constitutional jurisdiction. It may also be noted that the petitioner had also applied for enlistment as underwriter for the disposal of 49% shares of Allied Bank Limited and therefore the petitioner was estopped by its own conduct to invoke the Constitutional jurisdiction, In course of the hearing of the writ petition, it was stated that the petitioner at no stage had intimated any shortfall in its 51% shares, and if any shortfall is found in accordance with the record, the deficiency was promised to be made good at the rate of Rs. 70/- per share.
9. In course of the hearing of the writ petition it was brought to the notice of the Court that writ petition of of which ICA arose was filed by petitioner through Muhammad Amal the President of the Allied Bank Management Group supported by its affidavits while the earlier writ petition No. 11163/1998 was disposed of vide order dated 2.7.1998 wherein an offer was made to the petitioner to purchase the shares within two weeks at the rate of Rs. 70/- per share. Allied Bank Workers Federation of Pakistan was petitioner No. 1 and was sued through Muhammad Amal and others have also singed the Power-of-Attorney in favour of Dr. A. Basit, Advocate, In writ petition 11163/98 Syed Abu Zar Bokhari, Aziz Ahmad Khan, Syed Ijaz Hussain, Muhammad Amal and Muhammad Akram had signed three power-of- attorneys alongwith others who again signed the power-of- attorney in favour of Dr. A. Basit Advocate in writ petition No. 4539. In this view of the matter, the learned single Judge rightly concluded that petitioner was trying to become over smart and was resorting to clever devices with a view to mislead the Court. Respondent No. 2 had invited application for the enlistment of the underwriters and petitioner is one of the applicants. All the these events show the mala fide on the part of the petitioner group and disentitled it to seek any relief from the High Court in its Constitutional jurisdiction.
10. The claim of the petitioner is untenable inasmuch as it offered to purchase 51 % shares of the bank at the rate of Rs. 70/- per share and the said offer was accepted, under which, an amount of Rs. 500 million was paid and respondent No. 2 had transferred 51% controlling shares to the petitioner. The Government of Pakistan and the Privatization Commission had only expressed their intention to sell the remaining shares or part thereof to the general public through stock exchange.
Obviously, the petitioner had no claim in law nor could be considered genuinely aggrieved of it for the simple reason that the petitioner group did not own the same. The argument that under the agreement, respondents are bound to make good deficiency of 51% shares is fallacious, because 51% shares have already been allocated to it. The precise argument being advanced is that some of members of the petitioner group has sold their shares to respondents Nos. 5 to 13 and therefore, the ratio of 51 % has decreased and thus the Government is bound to make up this deficiency, In this context admittedly no application has been put up for the transfer of any share allocated to the petitioner upto date, therefore, the argument has no substance. Furthermore, the petitioner had miserably failed to prove any shortfall in its shares. To the contrary, the bona fide of the Government can be highlighted by the fact that in course of the hearing of the ICA, again an offer was made to make up the deficiency after verification but the petitioner had failed to respond to such offer, In any case, the arrangement for the sale of 49% shares to the general public does not appear to be violative of section 82(2)(3) of the Companies Ordinance, 1984 as well as section 11(c) of the Banking Companies Ordinance 1962. Petitioner cannot be paid any premium under the law of the land or under the agreement for lapses on the part of its own members, therefore, it can be safely inferred that petitioner is neither interested to purchase the shares nor is permitting its sale in favour of the general public, In this view of the matter, this petition is mala fide, therefore, we do not find any merit in the same and dismiss it accordingly. Leave to appeal is refused.