2009 PLP 1462 (YLR)

JAMSHED RAHMAT ULLAH, J.--The petitioner being owner of landed property, got booked 10 new Messiferguson-240 tractors for her own use through respondent No.4 i.e. Multan Autos Dealer of Millat Tractors Limited Company on 13-11-2007, through Booking No.265663-72. The Respondent No.4 being a dealer of Millat Tractors Limited promised to supply/deliver the afore-mentioned tractors within four to five months of the booking date. The petitioner further deposited the whole sale amount of Rs.33,90,000 through bank Pay Order No.140030, dated 12-11-2007 of Faysal Bank Limited in the name of Millat Tractors Limited, but Respondents Nos. 1 to 4 did not supply the tractors to the petitioner, according to their promise. Subsequently, the prices were enhanced by the Millat Tractors and respondent No.4 asked the petitioner to deposit the enhanced price of the tractors in the account of Millat Tractors Limited. According to the petitioner, whenever, the respondents demanded the enhanced price, it was deposited, she had been doing so, in compliance. The petitioner has deposited the entire price on 13-11-2007. The Millat Tractors Limited, had been receiving the balance sale-price illegally by way of enhancement.

2. Learned counsel for the petitioner argued that Millat Tractors Limited is a Company, registered under Companies Ordinance, 1984. Its Chief Executive and Directors hold public offices, therefore, this writ petition is maintainable. He has placed reliance to the cases of Arif Majeed Malik and others v. Board of Governors Karachi, Grammer School (2004 CLC 1029), Salah-ud-Din and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokhi Bhai and 10" others (PLD 1975 SC 244) and (2005 MLD 28).

3. The precise objection on behalf of learned counsel for the respondent in this petition is that Millat Tractors Limited Company is not a person within the purview of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. According to respondent, the Millat Tractors is a private Limited Company having about 31 objects, which are contained in its Memorandum and Articles of Association. The respondent's counsel further argued that in this company, there is only investment of 7 persons, whose names are mentioned in the Memorandum and Article of Association, of Millat Tractors Limited Company and apart from them, there is no other person. There is no share of Government, nor the Government has any managerial control over it. Upon enquiry, petitioner's counsel confirmed that Government has no share in the Company. The respondents' counsel contends that a writ of mandamus can be issued to a person performing functions in connection with the affairs of Federation or Province or local authority. He has placed reliance on the case of Anoosha Shaigan v. Lahore University of Management Science through Chancellor and others (PLD 2007 Lah. 568), in which, the case-law referred by learned counsel for the petitioner has also been discussed in the judgment.

4. The learned counsel for the respondent has also referred to the contents of the application for provisional booking of Agricultural Tractor, according to which, the booking of the tractors were provisional and purchaser has to pay the amount, which prevail at, the time of delivery. Learned counsel also referred clause 12 of the terms and conditions executed between the parties, which is as under:-- "In case of any dispute between the applicant and authorized dealers and/or the company, the case shall be referred to the Chief Executive! Managing Director, Millat Tractors Limited Lahore, whose decision shall be final and binding on all parties in all respects." When this condition was referred to the petitioner's counsel, he admitted that prior to the filing of the writ petition, the petitioner has not approached the Chief Executive/Managing Director, Millat Tractors Ltd. for the redressal of her grievances. After hearing both the parties, I am of the considered view, that a writ of mandamus can be issued against a person performing functions in connection with the affairs of the Federation, a Province or local authority. Thus, it cannot obviously be issued to someone, who does not fall within the purview of the "person" defined in the Article means:-- "(5) `person' includes any body politic pr corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court, or a Court or Tribunal established under a law relating to the Armed Forces or Pakistan." The word "control" appearing in the aforementioned definition is also quite significant and it is not restricted only to financial control.

6. On account of the cases-law referred to by learned counsel for the respondent, this Court is of the considered view, that the absolute control over the management of a body/an organization by the Federation etc., is a condition most important for a declaring it to be a "person" performing its functions in connection with the affairs of the Federation etc; the Federation etc., should have a complete domination to do and undo whatever it decides in running the affairs of such a body and should have the exclusive, complete and final authority to take the vital policy decisions. Such control, must be absolute, unfettered, unbridled and exclusive, besides, the State must also have the financial control of the Organization. The judgments referred to by learned counsel for the petitioner are distinguishable and do not apply to the facts and circumstances of the present case. When both the "administrative" and the "financial" control of the Federation over respondent No.1 is lacking, I am constrained to hold that Millat Tractors is not a "person" within the .meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which could be held to be performing its duties in connection with the affairs of the Federation or the Province.

7. For the foregoing reasons, this writ petition having no force is dismissed. H.B.T./K-18/L Petition dismissed.