JUDGMENT MUHAMMAD MUZAMMAL KHAN, J. This Constitutional petition seeks order dated 16.9.2003 passed by respondent Np. 2 to be declared as void, illegal, without lawful authority, hence of no legal consequences, with an added prayer by way of interim measure to direct respondent No! 2 to hold elections and to complete' process, thereunder according to the schedule, announced for the elections of Lahore Chamber of Commerce, Lahore.
2. A short factual background of the case is that according to the memorandum and articles of association of the Lahore Chamber of Commerce and Industry, it will have an executive committee of 27 members, who will be elected for three years and nine of these members, will retire every year and elections accordingly will be held for nine members every year. Manner of elections of these nine members is that four are elected by the Chamber Members, four are elected by Associate Members whereas one by the Trade Groups. Manner for the election of a member of the executive committee of the Lahore Chamber of Commerce and Industry (LCCI), representing the Trade Groups, is that members of trade groups elect delegates to cast their votes for this purpose. Five members of a Trade Group elect one delegate and this year this election was held on 31.7.2003 and it has to be before the issuance of the election programme/schedule.
3. In terms of memorandum of articles of association of L.C.C.L, the group members met on 31.7.2003 and the list of trade group members, enrolled through respective groups was circulated, record of renewal of trade groups, and their membership was thoroughly checked by the Secretary LCCI and after scrutiny, number of eligible elected delegates dropped to 20 instead of 21 and thus they were to be recorded on the election day as i.e members who were to elect one delegate member. After above referred exercise, rectification of arrears was issued by the Secretary and election of the delegate members was held under his supervision. 49 delegate members were elected and list of the delegates, was accordingly issued. List of candidates for associate members, chamber members and trade groups was also issued by the Secretary of LCCI. Three names were proposed for the seat of the executive committee reserved for trade group i.e. (i)
Javed Hussain Dar (petitioner), (ii) Muhammad Saleem Shah, and (i.e) Muhammad Yousaf son of Ghulam Mohy-ud-Din (respondents Nos.4 and 5 respectively). Nomination papers of these three were also scrutinized and no objection thereto was raised by any of the contestants or by the office itself. Thereafter Secretary LCCI on 11.9.2003 issued a list of validity nominated candidates, consisting of above-named three persons.
4. Before the issuance of list of valid candidates by LCCI on 6.9.2003 Muhammad Yousaf (respondent No. 5) filed Writ Petition No. 12263/2003 complaining that Director of Trade Organization Ministry of Commerce, Islamabad, who has been appointed to supervise the annual elections according to the schedule displayed for this purpose is not sticking to the schedule and is not displaying eligible voters' list, in terms thereof, which was to be displayed on 2.8.2003. He further asserted in his writ petition that inspire of his written complaint to respondent No. 2 needful is not being done. This Court on 11.9.2003 disposed of the petition with a direction to respondent No. 2 to decide application/representation of respondent No. 5 after holding due inquiry into the matter providing an opportunity of hearing to all concerned, one way or the other, through a written order expeditiously preferably within a period one week as the elections were schedule to be held on 24.9.2003. Under the cover of this order passed in Writ Petition No. 12263/2003, respondent No. 2 instead of deciding application of respondent No. -5, constituted a scrutiny committee, who started some exercise for exclusion of certain candidates from the elections, but in the meanwhile, this writ petition was filed, wherein as an interim measure, respondent No. 2 was directed to hold the elections strictly in accordance with the schedule already displayed. These orders were passed on 23.9.2003, and appear to have been complied. Election to the seat of execute committee representing trade group was held according to the schedule but the result thereof has not so far been announced. Petitioner seeks declaration of result of the election whereas respondents Nos. 2 and 3, on the one hand and 4 and 5 on the other, claim that they intend to scrutinize the eligible voters' list and valid candidates' list and thereafter they will announce the result. Petitioner seriously opposes this stand of the respondents as he apprehends his exclusion from the eligible voters' list, which would obviously result into exclusion of his name from the valid candidates' list and thus he will be ousted from the elections. Just to verify the position. I have required the Secretary LCCI to place on i.e of this case, the unofficial results which he has placed before me and according to these results writ petitioner is a winning candidate, anyway his success will be subject to decision of this writ petition.
5. Learned counsel for the petitioner submits that according to the prescribed and prevalent procedure for scrutiny, eligible voters' list was put to scrutiny as, names of each number is called in the general house meeting, objections are invited and after determination of these objections, name of the member is retained or excluded from the list. According to him a general house meeting was called on 31.7.2003, voters' list was put to the exercise, detailed above, no objection was raised and consequently final list of the eligible voters was displayed on 12.9.2003. Learned counsel further submits that after displaying eligible voters' list, none of the respondents can again undertake the exercise of scrutiny, which if allowed, would be used for ulterior motives, whereunder respondents intend to exclude the petitioner. Learned counsel for the petitioner also seriously objects to constitution of committee by respondent No. 2 which according to him, was neither directed by this Court nor was needed in the circumstances of the case and at-the same time is not provided under law. Learned counsel for the petitioner elaborates his submissions by saying that if at all the committee in question was to be constituted, it could not have been, without hearing the petitioner because it was so directed by this Court in order dated 11.9.2003. He attacks constitution of committee by waying that committee consists of been-ud-Din Hasan as its member, who being himself a member of trade group, is subject to scrutiny by the committee and while sitting as its members, he cannot be a judge in his on cause and thus the committee should be annulled. In the end learned counsel for the petitioner claims that if the scrutiny committee is allowed to undertake the given task, it could result in nullifying the entire exercise of elections because respondents Nos. 2 and 3 are out to bring on the scene their on hand picked persons.
6. Learned counsel appearing on behalf of respondents Nos. 2 and 3 has not denied holding of general house meeting of 31.7.2003, but he urged that due to scarcity of time, scrutiny on the day of meeting, could not be done. Learned counsel for the respondents under the cover of order passed in Writ Petition No. 12263/2003 urged that the scrutiny committee was constituted to comply with the directions of this Court. He further emphasized that under law they can scrutinize eligible voters' list, nomination papers and valid candidates list even after the elections and declaration of result, thereof, It is inevitable to do the scrutiny of eligible voters' list because according to learned counsel for the respondents, some income tax official through his letter dated 11.9.2003 has conveyed to respondents Nos. 2 and 3 that National Tax Numbers (NTN) of most of the eligible voters, are fake and for this reason, in order to earn true representation of their real number, they wish to again scrutinize eligible voters' list displayed by them. Learned counsel for the respondents has also contended that rejection, if at an, of one seat out of 27 process of scrutiny should not be allowed to be distributed, It is also his submission that to achieve real purpose of election they may be permitted to undertake the exercise of scrutiny as claimed.
7. Learned counsel appearing on behalf of respondents Nos.4 and 5, primarily argued on the lines of arguments, adopted by the counsel appearing on behalf of respondents Nos. 2 and 3. I have considered the respective contentions of the parties and have examined the record appended herewith. Undeniably, on 2.8.2003 Secretary LCCI vide letter No. MSD-3/03 gave notice of annual elections for 2003 to its all members and there along declared the election schedule. None of the parties has any objection to both these acts of LCCI of having already given the notice of election and having already carved the schedule of election according to which:- 2.8.2003 was fixed for nomination form, display of list of members eligible to vote with their NT numbers and names of their representatives.
9.8.2003 was fixed for receipt of changes, if any, in the list of representatives.
16.8.3 was fixed for intimation by Secretary regarding changes in the list of voters.
19.8.3 was reserved for reference or presence to the scrutiny committee against decision of Secretary.
26.8.3 was for decision by the scrutiny committee on reference made to it.
2.9.2003 was for displaying eligible voters' list after decision of scrutiny committee and changes in, if any, otherwise allowed by the Secretary/scrutiny committee.
Likewise this schedule gave different dates for different acts in relation to these elections and thus even after the conclusion of the election i.e. General meeting of the house for announcement of the final results of elections. Claim of the respondents that exercise of scrutiny and constitution of committee for this purpose was done in compliance tp orders passed by this Court in Writ Petition No. 12263/2003, dated 11.9.2003, it is absolutely misplaced. This writ petition was filed by respondent No. 5 seeking a direction to respondent No. 2 to display eligible voters' list according to the schedule already carved out for the purpose of election. In this writ petition neither there was any assertion by respondent No. 5 nor there was any direction by this Court to respondent No. 2 for undertaking any kind of such exercise. Relevant paragraph of the order dated 11.9.2003 is paragraph 5, which is reproduced below for ready reference:- "5. This is the minimum which the petitioner expects and demands from a state functionary to discharge his statutory obligations by deciding the application-representation, as referred to above, after hearing all the concerned including the petitioner through a written order, in accordance with law. I, therefore, direct respondent No. 2 to decide the application-representation of the petitioner after holding due inquiry into the matter, providing an opportunity of hearing to all the concerned, one way or the other, through a written order in accordance with law, expeditiously, preferably within a period of one week, as the elections are alleged to be scheduled for 24.9.2003.
Compliance of this order shall be reported through the Deputy Registrar (judicial) of this Court."
Respondents instead of complying the orders passed in this writ petition and without taking any decision on the application of respondent. No. 5, opted to constitute a scrutiny committee which under law, they could not constitute because once they having scrutinized all the members in the general house meeting dated 31.7.2003 where none of the persons present in the house, raised any kind of objection against the petitioner and thereafter, respondents Nos. 2 and 3 themselves displayed final eligible voters' list on 12.9.2003r they cannot touch this list subsequently and especially after the holding of elections.
It goes without saying that a scrutiny committee consists of a member whose on papers will be scrutinized by this committee being member of trade group i.e. Been-ud-Din Hassan, thus this committee cannot be allowed to stand, on the principle urged by the learned counsel for the petitioner that no one can. Be a judge in his on cause. A similar situation also in the case of Khadim Hussain and another v. Director, Trade Organization, Ministry of Commerce, Islamabad and 4 others (1994 CLC 1860) and this case also related to the election of the executive committee of Trade Organization, where respondent No. 2 was appointed to supervise the conduct of elections, In the precedent case, respondent No. 2 intended to scrutinize eligible voters' list and while examining his authority, in this behalf, it was observed by this Court that:- "The election process is at advance stage and at this stage if the Supervisor is authorized to scrutinize the list of voters, then election process cannot be completed according to the schedule.
The conferment of such power to Supervisor is out of context. Malik Abdul Basit Khan, as such was not authorized to entertain any such complaint. He should have left the matter of these allegations to be sorted out in accordance with law after the election process was complete".
In another matter relating to election of Chamber of Commerce, this Court in the case of AH Asghar Malik and 3 others v. Federation of Pakistan through Secretary Ministry of Commerce, Prime Minister Secretariat, Islamabad and 9 others (2000 CLR 7) took the view that:- "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 Organization 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."
And thus it was observed that role of Director, Trade Organization is to supervise and control the elections of the Chamber of Commerce and not to scrutinize the list as above-mentioned.
8. Process of election had started much earlier, as members of the trade groups were to be elected before issuance of election programme/schedule and in this manner respondents Nos. 2 and 3 had much time to scrutinize membership and other connected things like National Tax Numbers etc. And thereafter there was sufficient time for their checking the eligible voters' list and list of valid candidates, which they had also scrutinized in general house meeting on 31.7.2003. I am not ready to accept contention of respondents Nos. 2 and 3 that due to scarcity of time scrutiny could not be done on 31.7.2003. According to the prevalent practice, scrutiny had to be in general house meeting by calling name of each member and this exercise was, as a matter of fact, undertaken by them and minutes of those meetings are the best evidence which negates stand of the respondents.
Now under law, once having scrutinized membership, lists of eligible voters and valid candidates, no one can be permitted to undertake any such scrutiny when there is no such schedule given by the respondents themselves, dated 2.8.2003, especially when there is an allegation by the writ petition that they intend to oust him with mala i.e intention. Unofficial results conveyed by the Secretary, LCCI (respondent No. 3) support the assertion of the writ petitioner. Thus I conclude that under law and principles, governing administration of justice, respondents cannot be given an authority to oust any member or candidate or office bearer, under the garb of scrutiny which they have already done and, if at all, it was not done, it was fault of the respondents and not that of the petitioner, thence they cannot be allowed to undertake any kind of such exercise, especially after close of election.
9. Learned counsel for respondents Nos.4 and 5 had objected to the maintainability of writ petition, in presence of provisions of Section 15 of Trade Organizations Ordinance,- 1961, which provides an alternative remedy before the Federal Government, by way of revision besides his objection that since DTO has passed an order of scrutiny in terms of Section 9(1 )(e) of the Trade Organizations Ordinance, having the jurisdiction in the matter, the same cannot be challenged in Constitutional jurisdiction of this Court. Both these objections are not sustainable and I cannot see an eye to eye with him for the reason that availability of alternative remedy, if at all, is only a matter of convenience of the Court and it does not exclude a jurisdiction vested. This Court out of convenience can say that party concerned may seek alternative remedy available at law, but this remedy, at its on strength, does not exclude jurisdiction of this Court to scrutinize acts/steps done/taken by respondent No. 2. As regards the other objection of respondents regarding order of DTO being with jurisdiction. I have already observed that second time scrutiny could not be ordered especially after the close of elections and the poll is over, thus I do not think that order passed by respondent No. 2 can be graded as one passed with jurisdiction.
10. For what has been discussed above, I am of the considered view that order of DTO dated 16.9.2003 constituting scrutiny committee for its exercise, in second round, is without any lawful authority or jurisdiction and is absolutely not justified and hence is without any lawful authority or of not legal effect. Respondent No. 3 is bound, under law, to announce results of the elections according to schedule dated 2.8.2003 and he cannot- withhold the results of the elections, unilaterally. Consequently, this petition is accepted and writ as prayed is issued. There will be no order as to costs.