C. P. NO. D-6686 of 2014
Present:
Mr. Justice Sajjad Ali Shah.
Mr. Justice Muhammad Junaid Ghaffar.
Engr. Daroo Khan Achakzai & another ------------------------- Petitioners
Versus
Regulator of Trade Organizations
And others ---------------------------------------------------------------- Respondents
C. P. NO. D-6687 of 2014
Engr. Daroo Khan Achakzai & another --------------------------- Petitioners
Versus
Regulator of Trade Organizations
And others -----------------------------------------------------------------Respondents
Date of hearing: 12.08.2015
Date of judgment: 18.08.2015
Petitioner: Through Mr. Khalid Javed Advocate.
Respondent No. 1 Through Mr. Salahuddin Ahmed Advocate.
Respondent No. 2 Through Mr. Shaikh Liaquat Hussain, Standing Counsel
J U D G M E N T
Muhammad Junaid Ghaffar, J. Through this common judgment, we intend to decide the aforesaid petitions which involve more or less, a similar controversy with regard to the election of Vice President from the Province of Baluchistan in the Federation of Pakistan Chambers of Commerce &Industry (“FPCCI”). In both the petitions the petitioners are same and in C.P. No. D-6686 of 2014, the grievance of the petitioner’s is against respondent No. 4 (Makran Chamber of Commerce & Industry), whereas, in C.P. No. D-6687 of 2014, the petitioner’s grievance is against respondent No. 4 to 6 (Gawadar Chamber of Commerce & Industry and its nominees for the post of Vice Presidents), hereinafter referred to as “Respondents”.
2. Precisely, the facts are that the petitioner No.1is a candidate for the post of Vice President on behalf of Petitioner No.2 namely Chaman Chamber of Commerce & Industry from the Province of Baluchistan in the elections of FPCCI. Whereas, the respondents as referred to hereinabove, are also candidates for the same post in the same elections on behalf of their respective Chambers of Commerce & Industries. The petitioner’s grievance is that these respondents are not eligible to contest the elections for the post of Vice President from the Baluchistan Province, as they are disqualified to be valid members of FPCCI. The elections were scheduled to be held on29.12.2014, therefore with the consent of all on 26.12.2014, an interim arrangement was made, whereby the voters from Gwadar and Makran Chamber of Commerce and Industry were allowed to participate and contest elections but their results were withheld till the decision of the aforesaid petitions and their votes were kept separately sealed and deposited with the Nazir of this Court. It was further agreed upon that in case the petitioner No.1 representing Chaman Chamber of Commerce and Industry contesting elections for Vice President obtains more than five votes, the result would be announced otherwise the result for the post of Vice President would be announced once this petition is decided.
3. Counsel for the petitioners has contended that the name of respondent No. 4 in C.P. No. D-6686 of 2014 was initially included in the provisional list of members, however, on an objection raised by the petitioners and their group, a clarification was sought by FPCCI / respondent No. 2 from respondent No. 1, who vide letter dated 31.10.2014, confirmed that respondent No. 4 is not registered under the Trade Organization Act, 2013, (“2013 Act”) and accordingly, while issuing the final list of voters on 3.12.2014, FPCCI had deleted the name of respondent No. 4 from such list. However, the respondent No. 1 thereafter, passed the impugned order dated 17.12.2014, whereby it allowed respondent No. 4 to exercise its voting right in the forthcoming elections and its name was included by FPCCI in the additional voters list dated 22.12.2014. Learned Counsel has contended that respondent No. 4 is not a registered and licensed body, under the 2013 Act, hence not eligible and or entitled to be a member of FPCCI. Accordingly, per learned Counsel, respondent No. 4 is also not eligible to participate in the elections of Vice President for the term of 2015. Without prejudice to the above, the learned Counsel has further contended that respondent No. 4, on becoming a member of FPCCI, would only be eligible to vote and participate in the elections, after two years of enrolment as a member of FPCCI as provided under Section 10(3) of the 2013 Act, and, further if the case of respondent No. 4 is to be classified as that of an old member, then it would be eligible to vote on completion of one year after payment of annual dues and restoration of its membership. Learned Counsel has further contended that once the name of respondent No. 4 was excluded from the final list of voters, the same could not have been added through the additional list of voters on the directions of respondent No. 1 dated 17.12.2014. As regards maintainability of instant petition, Learned Counsel has contended that when an order has been passed in excess of jurisdiction, and suffers from patent illegality, Constitution Petition is always maintainable and the petitioners may not be left at the mercy of departmental authorities, and to face rigors of law. With regard to C.P. No. D-6687 of 2014,learned Counsel has contended that similarly, the respondent No. 4 was not registered nor a license was issued to it till the date of announcement of the elections and its name was not included in the provisional list circulated to the members, and, when a clarification was sought by FPCCI from respondent No. 1, vide letter dated 31.10.2014, FPCCI was informed that respondent No. 4 was registered on 31.10.2014, therefore, per learned Counsel the respondent No. 4 is also not eligible to cast vote and contest elections as the period of two years has not been completed since issuance of license to it on 31.10.2014.
4. Conversely, learned Counsel for the contesting respondents in both the aforesaid petitions, has raised a preliminary objection with regard to maintainability of these petitions, on the ground that the petitioner ought to have availed alternate statutory remedy as provided under Section 21(2) of the 2013 Act. In support of his contention the Counsel has relied upon the case of KSB Pumps Vs. Government of Sindh (2011 MLD 1876) and Muhammad Akbar Shah Vs. Federation of Pakistan (2011 MLD 1484). Learned Counsel has further contended that even otherwise, the 2013 Act, read with its Rules provides a complete mechanism for raising of electoral objections, and per learned Counsel, the petitioners could have availed such remedy instead of filing the aforesaid petitions. In support of his contention the Counsel has relied upon the cases of Mumtaz Steel Vs. Pakistan Steel Rerolling Association (PLD 1990 Karachi 335), Usman Ashraf Vs. Director Trade Organizations (2004 CLD 157), Naveed Jan Baloch Vs. Federation of Pakistan (2012 CLD 1339), Saifuddin Vs. Chamber of Commerce Baluchistan (PLD 1982 Quetta 136) and Ali Asghar Malik Vs. Federation of Pakistan (PLD 2000 Lahore 143). As regards merits of the case, learned Counsel submits that the respondents in both the petitions were already registered under the repealed Trade Organization Ordinance, 1961, whereas the respondent No. 1 vide letter dated 31.10.2014, has only clarified the status of both the Chambers with regard to their registration under the 2013 Act, and not with regard to their voting status. Learned Counsel has further contended that previously also, the respondents in both the petitions, on promulgation of Trade Organization Ordinance, 2007, were restrained from participating in the elections on similar grounds that they were not registered under the Ordinance, 2007 however, such objection was repelled by the Hon’ble Baluchistan High Court vide judgment dated 7.1.2012 in C.P. No. D-927 of 2011 in respect of Makran Chamber of Commerce & Industry, (respondent No. 4 in C.P. No. D-6686 of 2014) and judgment dated 8.12.2011 in C.P. No. D-132 of 2009 in respect of Gwadar Chamber of Commerce & Industry, (respondent No. 4 in C.P. No.D-6687 of 2014). Learned Counsel has further submitted that the restriction as provided under Section 10(3) of the 2013 Act, is not applicable on respondent No. 4, as Section 4(3) of the said Act, provides that all previous licencees who had already applied for issuance of fresh licences under the 2013 Act, would be entitled to continue as a Trade Organization, until the Government decides their applications for grant of license and until the first elections are held according to the rules made under this Act. Per learned Counsel, the intention of the legislature is that all existing Trade Organizations shall continue to function until their fresh applications for issuance of licenses are decided, therefore, per learned Counsel the mandatory requirement of continuous membership for a period of one year and or two years, as pleaded on behalf of the petitioners, would not apply to the case of answering respondents. Counsel has finally contended that it is an admitted position that the said respondents have been participating in the elections of FPCCI in the previous years, whereas, the objections with regard to their status in this year’s elections is to deprive them from participating in the elections and disfranchise the people of remote areas in connivance with the Ruling Group of FPCCI.
5. Comments have also been filed on behalf of the respondent No.1, which reflects that they support the case of respondents in the instant matter, and have prayed for dismissal of aforesaid petitions, as according to them, the respondents in the aforesaid petitions continued to be a Trade Organization within the contemplation of the repealed Ordinance, and the condition as stipulated in Section 10(3) of the Act, 2013 would not apply to their case. It has been further stated that they cannot be deprived from participating in the elections only for the reason that their names were not included initially or were excluded thereafter, from the list of voters, and such mistake or lapse, if any, on the part of the regulator, has been redressed before time.
6. We have heard all the learned Counsel and perused the record. By consent of all the learned Counsel, both the aforesaid petitions are being finally decided at Katcha peshi stage. It appears that the precise controversy as raised in the aforesaid petitions is, with regard to the eligibility of respondents to participate in the elections of FPCCI, firstly as executive members, and, thereafter for office bearers as Vice Presidents. The petitioners contend that since the licences issued to the respondents under the 2013 Act, are fresh licences, therefore, until they complete the mandatory period of two years as being members of FPCCI, or in the alternative, for a period of one year as provided in Section 10(3) of the 2013, they are disqualified from being elected and to participate in the forthcoming elections of FPCCI. The second leg of argument appears to be, that since their names were not included in the provisional list of voters, or were thereafter excluded, inclusion of their names through the additional list of voters is without any lawful authority; hence they remain disqualified from participating at least in these elections. In order to resolve the controversy as raised hereinabove, it would be advantageous to refer to the relevant provisions including Sections 2(f), 4 and 10(3) of the 2013 Act, which reads as under:-
“2. Definitions;
2(a) ------------
2(b) ------------
2(c) ------------
2(d) ------------
2(e) ------------
2(f) “existing trade organization” means an organization licensed under the Trade Organizations Ordinance, 1961 (XLV of 1961).
4. Revocation of licences of existing trade organizations.____(1)Except as hereinafter provided and notwithstanding anything in any other law for the time being in force and memorandum and articles of association of any trade organization, any licence granted under section 3 of the repealed ordinance to an existing trade organization shall stand revoked with effect from the 30th December, 2006 and such trade organization shall be required to apply for grant of licence under this Act by the date notified by the Federal Government.
Provided that revocation of licence of a trade organization shall not prevent its members from assuming office, subject to section 11, consequent upon elections under the repealed ordinance.
(2) The Federal Government shall decide the application for grant of licence within such period of its filing as notified by the Federal Government.
(3) An existing trade organization which has applied for grant of licence within the time notified by the Federal Government shall continue to function as a trade organization until the Federal Government decides its application for grant of licence and until the first elections are held according to rules made under this Act.
10. Membership of Trade Organization;
(1) ----------
(2) ----------
(3) A chamber or an association which is a member of the Federation of Chambers of Commerce and Industry shall be eligible to vote in the election of office-bearers and committees of the Federation on completion of two years of grant of licence.
Provided that the existing trade organizations, on grant of licence under this Act, shall be deemed to be members of the Federation and shall be entitled to vote.”
7. Perusal of the aforesaid provision of Section 2(f) of the 2013 Act reflects, that an “existing trade organization” means an organization licensed under the Trade Organizations Ordinance, 1961 which admittedly stands repealed. Similarly, in Section 4(3) of the Act ibid, it has been provided that an “existing trade organization” which has applied for grant of licence within the time notified by the Federal Government, shall continue to function as a Trade Organization until the Federal Government decides its application for grant of licence and until the first elections are held according to rules made under this Act. Whereas Section 10(3) of the 2013 Act, provides that a Chamber, which is a member of FPCCI shall be eligible to vote in the election of office-bearers and committees of the Federation, on completion of two years of grant of licence, provided that the existing trade organizations, on grant of licence under this Act, shall be deemed to be member of the Federation and shall be entitled to vote. When all the aforesaid provisions are read in juxtaposition, it appears that the case of respondents is not of issuance of fresh licences. Admittedly, both of them were issued licences under the repealed Ordinance of 1961, and had initially applied for issuance of licences under the Ordinance, 2007 (since lapsed), and thereafter under the 2013 Act. It has been brought on record on behalf of respondents that they were issued licences on 8.7.2000 (Makran Chamber) and 18.11.2002 (Gwadar Chamber) under the repealed Ordinance of 1961, whereas, such factual assertion of respondents has not been controverted by the petitioners with any supporting material. Therefore, their case in our candid view does not fall within the contemplation of Section 10(3) of the 2013 Act, so as to compel them completion of two years standing as members, after grant of licences and is more appropriately covered under the proviso to Section 10(3) of the 2013 Act, which provides that an existing Trade Organization on grant of Licence under this Act, shall be deemed to be a member of Federation (FPCCI) and shall be entitled to vote. It is also pertinent to mention that in fact the provision of Section 4(3) of the 2013 Act is more appropriately applicable to the case of respondents, as admittedly they had applied for grant of licences under the new Act of 2013, and their applications were pending. It has also been brought on record and which has not been disputed by the petitioners, as well as other respondents, that when the Ordinance 2007, was in field and their applications were pending, same objections were raised with regard to their eligibility to contest elections in previous years and such matter was decided by the Hon’ble Baluchistan High Court as referred to hereinabove, whereby the Hon’ble Baluchistan High Court had allowed the respondents to continue as members and to participate in the elections by treating their licences issued under the repealed Ordinance 1961 as valid, till their cases are finally decided under the new Ordinance. It is not the case of the petitioners that the licences issued to the respondents under the repealed Ordinance of 1961, were either cancelled or revoked by respondent No.1, therefore, we are of the view that for all legal and practical purposes, the licences issued to the respondents under the repealed Ordinance of 1961, continued to be valid till fresh licences were issued to them under the 2013 Act, by respondent No.1. It is on the basis of such position, that respondent No. 1 has directed FPCCI to include the names of respondents through additional list of voters and allow them to compete and participate in the elections.
8. Before parting with this judgment, we may observe that since the term of elections is one year, whereas, considerable time has already lapsed; we have, in the interest of justice and to put the controversy at naught, purposely not touched upon the objection with regard to maintainability of these petitions viz.a.viz. Section 21 of the 2013 Act, and have decided these petitions on merits, and leave such question open for deciding it in an appropriate case as and when the same is brought before this Court.
9. In view of hereinabove facts and circumstances of the instant case, we are of the view that instant petitions being misconceived in facts and law are liable to be dismissed. Accordingly, both the aforesaid petitions are dismissed with directions to the Nazir of this Court to announce the result kept with him in sealed condition and convey the same to FPCCI / respondent No. 2 who shall proceed further in accordance with the Rules / Bye laws.
JUDGE
ARSHAD/