2010 PLP 224 (CLC)

KHAWAJA FAROOQ SAEED, J.

Through, this writ petition, the petitioner has sought cancellation of election result of High Court Bar Association, Bahawalpur for the year, 2009-2010.

2. The brief facts of the case are that the petitioner contested the elections for the above year as President. During the course of elections, as per her version, certain illegalities and irregularities were noticed, on which, the election was stopped but, however, later, the same was conducted again against the wishes and the consent of the present petitioner.

3. Since the irregularities and illegalities were noticed and found to be as correct, the subsequent conduct and election is challenged to be as illegal exercise of jurisdiction. Consequently, through this writ petition, the direction is sought for declaring the election result to be as illegal, ineffective. Further directions are sought to hold the same again after mutual agreement harmoniously acceptable to all concerned.

4. The petitioner was asked to explain as to how a writ petition in the circumstances of this case was maintainable. Her answer was that there is no other remedy. She, however, did not, reply as to how the respondents in this case became a person performing functions in connection with the affairs of the Federation, a Province or a Local Authority.

5. In fact, writ petition in this case cannot be entertained as the same is not against a person defined under Article 199 of the Constitution of the Islamic Republic of Pakistan. Under Article 199, an aggrieved person can undoubtedly challenge the order of any functionary working in or under the Federal Government, a Provincial Government or local authorities of this country. The High Court Bar Association, Bahawalpur, is obviously neither performing the functions of the Federal Government or a Provincial Government or a local authority. The High Court Bar Association Bahawalpur is basically an "Association". Its by-laws and rules have been prepared for its members to manage its own affairs. It is an association within its own framework for which its members and election rules, if any, are prepared to conducts it affairs within themselves. The Election Commission having been nominated under the said rules of the Association also does not have any status of a functionary dealing, with the matters of State. The provision of Article 199 of the Constitution, therefore, would not apply in any form thereon the facts mentioned in the petition are not being discussed obviously for the reason of the maintainability of a writ petition under the circumstances. Reliance in this regard can be placed on the judgment of this Court in the case of Ardeshir Cowasjee and 7 others v. K.B.C.A. and others 2002 CLC 673 wherein while dealing, Article 199 of the Constitution of Islamic Republic of Pakistan, it has been stated that:

"Persons expressly mentioned in Article 199 of the Constitution include persons performing functions in connection with the affairs of the Federation, a Province or a local authority. Builder in a private business is not a "person performing functions in connection with the affairs of the Federation, a Province or a local authority". No direction to, or order against a private person can be made in a constitutional petition." Further reliance can be placed on Maqsood Ahmed Toor and 4 others v. Federation of Pakistan through the Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others 2000 SCMR 928 wherein it has been held that:

"Person performing function in connection with affairs of Federation/Province". Primary test must always be as to whether the functions entrusted to the organization or person or indeed function of the State involving some exercise of sovereign or public powers; whether the control of organization in substantial manner is in the hands of Government and whether the bulk of the funds is provided by the State. Foundation executing a social welfare on "no profit no loss basis" by virtue of its registration under Companies Ordinance does not enjoy the status of a statutory corporation establish and control by the Federation nor it is performing any of sovereign functions of the State so as to be declared as a body corporate performing functions in connection with the affairs of the Federation."

6. In view of the above discussion and also for the reason that the petitioner as well as the respondent all are private litigants, this Court is c constrained to hold that the controversy among them cannot be decided in a writ jurisdiction and the petitioner, at her own sweet will, may avail the other alternate remedy. H.B.T./K-57/L Petition dismissed.