P L D 1965 Supreme Court 201 (PLP)

CORNELIUS, C. J.‑This is a certificated appeal by the Deputy Managing Director, National Bank of Pakistan at Dacca and the Chairman of the Local Board of the National Bank of Pakistan at Dacca and calls in question the issue of a writ by a Division Bench of the Dacca High Court declaring void for illegality an order of an Election Appeal Committee made under bye‑law 16 of the Election Bye‑laws of the National Bank of Pakistan. The Committee had held the election to the Bank's Central Board, of the respondent Ataul Haq, to be void for a serious irregularity and had ordered fresh election for the vacant seat. After hearing Mr. A. K. Brohi for the appellants and Mr. S. R. Pal for the contesting respondent, we have come to the conclusion that in the facts and circumstances of the case, the High Court of East Pakistan did not possess jurisdiction under Article 98 of the Constitution to issue a writ to produce the expressed result. Before, however, considering the provisions of the said Article which compel that conclusion, it is desirable that the relevant facts should be briefly dealt with. The election was held on the 20th July 1962, and the respond ent Mr. Ataul Haq was declared elected along with one other person. A relevant matter is that one of the candidates for election, a person named Mr. A. U. Muhammad Khalilullah withdrew from the contest on the date of the election. Four days after the election, one of the successful candidates, Mr. Sakhawat Hossain, filed an application under Bye‑law 16 raising a dispute as to the regularity of the election, and asked that an Election Appeal Committee should be constituted by the Managing Director as required by Bye‑law 16 (ii). In the first instance, the Managing Director rejected this application, but later, he re‑considered his order and appointed a Committee consisting of himself, Mr. Zahiruddin Ahmad, a Government‑nominated Director and Malik Muzaffar Ali, an elected Director. It should be noted that all three members of the Election Appeal Committee are residents in West Pakistan and were so at all material times. At its first meeting in Karachi on the 14th January 1963, the applicant Mr: Sakhawat Hossain was heard. The next meeting of the 28th March 1963, was held in Dacca, when Mr. Sakhawat Hossain produced two witnesses, as well as written statements by five shareholdeRs.At this meeting, the Committee gave a personal hearing to Mr. Ataul Haq. A notice of the meeting was sent to Mr. Ataul Haq on the 15th March 1963. Here, it should be noted that in his petition to the High Court for a writ, Mr. Ataul Haq described his appearance before the Election Appeal Committee in the following terms:‑ "Only once in the early part of the year 1963, while the Managing Director, Mr. Mumtaz Hasan along with Mr. Zahiruddin and Mr. Malik Muzaffar (both Directors of the Central Board) came to Dacca in connection with their Board Meeting, the petitioner called on the Managing Director in the usual course and there in course of conversation the said Mr. Zahiruddin and Mr. Malik Muzaffar also arrived later on and joined in the discussion. In the said discussion, Mr. Zahiruddin casually asked the petitioner if there were any irregularities in their election, to which the petitioner replied in the negative. But at no point of time was the petitioner ever told that they were sitting as a Committee or that they were enquiring into any specific allegations in connection with any complaint. Further, the petitioner was also not asked to answer any specific charge. As such the petitioner was never aware if there was any Election Appeal Committee and/or if it was enquiring into anything in relation to his election and at whose instance." A copy of the notice issued in connection with this meeting has been placed on the record. It is in the form of a letter addressed to the aforesaid gentlemen, Mr. Zahiruddin Ahmad and Malik Muzaffar Ali, noting that they had been appointed to the Election Appeal Committee to "decide the appeals preferred by Messrs Chowdhury Muhammad Sarwar and Sakhawat Hossain". The latter asked the addressees to make it convenient to attend two meetings to be held on Thursday, the 28th March 1963, at Dacca to decide the said appeals finally: There were three endorsements, the first being to Mr. Sakhawat Husain, the second to Mr. Ataul Haq, who was asked to make it convenient to appear before the Committee on the date fixed, and the third to the Deputy Managing Director of the Bank at Dacca asking him to make the necessary arrangements. As for the meeting. In the face of this document, the statement that Mr. Ataul Haq was only casually questioned, and he never knew that the Committee was sitting or that there was any Election Appeal Committee at all, is clearly disingenuous, That is not, however, to say that he was apprised of the ground on which his election was eventually avoided. To proceed with the narration of the Committee's proceedings, further meetings were held on the 29th April the 10th May and the 27th May 1963, when the allegations of Mr. Sakhawat Hossain were investigated and "election papers and other relevant documents" were examined, following which the Committee's final decision was issued on the 18th August 1963. Mr. Sakhawat Hossain had raised a number of objections which clearly demanded a recount. One was that the Election Officer had cancelled the proxies issued by eleven shareholders in favour of Mr. Y. A. Bawanv and Mr. Sakhawat Hosain but similar proxies issued in favour of Mr. Muhammad Sarwar and Ataul Haq were held valid and thus 103 votes covered by the proxies had been cast in favour of the two latter persons. Under Election Bye‑law No. 9, both sets of proxies should have been cancelled. Another allegation was that resolutions submitted on behalf of three shareholder Companies each entitled to 50 votes were not true copies of the resolutions actually passed by the Boards of those Companies, and Mr. Muhammad Sarwar and Mr. Ataul Haq should not have been allowed the advantage of these votes. A third allegation was that Mr. Muhammad Sarwar had taken advantage of a proxy produced by him and purporting to be granted by one Muhammad Hasan, but in fact this person had given his proxy in favour of Mr. Y. A. Bawany. It is evident that each of these allegations, if established would have required a recount of the votes. The Committee examined the evidence regarding each of these allegations. It found that 10 of the 11 shareholders referred to in the first objection had revoked their proxies, in favour of Messrs Y. A. Bawany and Sakhawat Hossain and the Election Officer was therefore right to accept the proxies which had not been revoked. But in ‑ the case of one of these shareholders, it was a fact that proxies had been given to both groups of contestants, and the Committee expressed the opinion that even if the 15 votes, to which the shareholders were entitled, were counted in favour of Mr. Sakhawat Hossain the result of the election would not have differed. As to the allegedly false copies of the resolutions, it was found that those produced were attested by a Magistrate under his official seal and the objection was overruled. The third objection regarding the shareholder, Mr. Muhammad Hossain, was also found to be baseless. A general allegation that the Bank staff had allowed irregularities to be committed in the election was expressly withdrawn by Mr. Sakhawat Hossain. But in the course of the scrutiny, the Committee discovered that Mr. Ataul Haq had been given the benefit of 50 votes of the East Pakistan Branch of the Pakistan Red Cross Society. The representative of the Society had been expressly authorised to cast his votes for Mr. Muhammad Sarwar and the aforesaid Mr. A. U. Muhammad Khalilullah. The Election Appeal Committee held that the representative was bound to carry out the wishes of the Society and had no discretion of his own to vote for any person other than those nominated by the Society. Nothing is said in the order of the Committee as to the fact that Mr. Khalilullah had withdrawn from the contest on the election day, or as to whether under the general law, the agent of the Society was or was not within his rights in the emergency which arose, to act according to his discretion so that a part of the voting power of his principal should not go to waste. Nor was the question, which might well have been raised, as to whether the action of the agent had been ratified by the principal, considered by the Committee. The result of the Committee's conclusion that 50 votes had been "counted illegally on the side of Mr. Ataul Haq" was that on taking a recount, they found that if those 50 votes were deducted from his total, he would not have been elected, as his majority over the candidate next below him was only of 39 votes. They consequently declared the election of Mr. Ataul Haq void, and directed a fresh election for his seat. The result was that on the 20th August 1963, the Deputy Managing Director of the Bank at Dacca issued a letter to Mr. Ataul Haq informing him of the Committee's decision and that with immediate effect, he ceased to be a Director of the Central Board of the Bank. Eight days later, Mr. Ataul Haq filed his petition in the High Court for a writ calling upon the respondents, whose particulars will be given immediately, to show cause why the order of the Election Appeal Committee should not be held to be void and without lawful authority, and for other ancillary reliefs. The respondents in the petition were (1) the Chairman and Members A of the Election Appeal Committee, through the Deputy Managing Director at Dacca, (2) the said Deputy Managing Director, (3) the Chairman of the Local Board of the Bank at Dacca, and (4) the President of the Central Board at Karachi, through the said Deputy Managing Director. Now, the head office of the Bank is, by the National Bank of Pakistan Ordinance, 1949 directed to be located at Karachi and it is from there that all the affairs and business of the Bank are to be conducted, by the Central Board. The President of the Central Board is appointed by the Central Government from amongst the Directors, who are to be firstly the Managing Director appointed by the Central Government under section 16 of the Ordinance, who is a salaried official, and 9 elected Directors as well as three Director appointed by the Central Government. In the application for a writ, the Managing Director has not been impleaded. The President of the Central Board is impleaded, but through the Deputy Managing Director at Dacca, which clearly seems a device adopted to bring the case within the jurisdiction of the East Pakistan High Court, which, in respect of territory is confined to the Province of East Pakistan, and does not include Karachi. It is difficult to see why the Chairman of the Local Board at Dacca was impleaded, since the question is not one relating to any Local Board. Again the Deputy Managing Director at Dacca is plainly not a person competent to take such action as was desired, that action being in consequence of the decision given by the Election Appeal Committee, to which it effect was given by the Managing Director, presumably, for the telegram intimating that Mr. Ataul Haq had ceased to be a Director of the Central Board was issued from the head office of the National Bank at Karachi. Finally, the Chairman and Members of the Election Appeal Committee presumably became functus officio after the decision of the appeals entrusted to them arising out of the election in question, since their appointment was made ad hoc in relation to these appeals. That Election Appeal Committee was no longer in existence when the petition was filed. Here again, presumably to give jurisdiction to the Dacca High Court, the Chairman and Members of the Election Appeal Committee were impleaded, through the Deputy Managing Director, at Dacca, who was clearly not a person who could be described as an agent or representative of that Committee. The grounds on which the High Court thought fit to issue a writ may be briefly set out as follows:‑ (1) the order of the Committee declaring Mr. Ataul Haq's election to be void was based on a ground which was not the subject‑matter of the complaint in the application filed by Mr. Sakhawat Hossain; the bye‑law provides that such application should have been referred for decision to the Committee; (2) the Committee had no power to interfere with the result of the election suo motu or on grounds which were not included in the application; therefore, the order of the Election Appeal Committee was not warranted by the law under which it was constituted; (3) to the contention that the High Court did not have jurisdiction under Article 98, sub‑Article (2) of the Constitution, which confines its jurisdiction to the issuance of the declarations in respect of acts done by "a person performing in the Province functions in connection with the affairs of the Centre, the Province or a Local Authority," the learned Judges replied that in the .relevant respect, the Bank was a local authority, giving as reasons for this conclusion, that it was statutory body, its Managing Director and three of its Directors as well as its Auditors were to be appointed by the Central Government, and the President of the Central Board to which the management of the Bank is entrusted by the Ordinance is also appointed by that Government; the Bank, as itself a body corporate was to be regarded as "a person"; (4) the fact that the decision of the Election Committee was given in Karachi, did not affect the jurisdiction of the Court for the reason that the election in question was for election of two Directors to represent the Dacca‑registered shareholders on the Central Board, which "performs in this Province functions in connection with the affairs of the bank" and "the enquiry by the Committee was held in Dacca"; and (5) that the contention that if by the writ the relief which in substance was required, namely, a declaration that Mr. Ataul Haq was still a Director of the Bank, or a direction to the appropriate authorities not to give effect to the decision of the Committee, had been sought, it would have been clear that the High Court of East Pakistan had no jurisdiction, the reply was given that unless a declaration was given that the order of the Committee was illegal, no such reliefs as these suggested to be the true reliefs sought could have been given. The conclusion that the National Bank of Pakistan is a "local authority" in East Pakistan is one with which, speaking with respect, we find it entirely impossible to agree. The expression "local authority" has been used in statutory phraseology in the Indian sub‑continent for a great many years, and is always understood to mean an authority which is entrusted with the administration of a local fund. Local authorities are bodies exercising within limited territories included in a Province, powers which belong to the Province, but which by statute are delegated to the local authority. A local authority is ordinarily charged with functions of self‑Government, and has power of making bye‑laws, of imposing taxation, and of maintaining and administering a local fund. In fact, it is evident from the order in which Article 98 mentions the three tiers of authorities that these are in a descending order of importance, first i.e., the Centre, being the most important, a Province being next in order of importance, and a local authority being the last in that order. It is clearly impossible, in view of this clear distinction to treat the Centre as being a `local authority' at whichever place in Pakistan, it conducts its affaiRs.The National Bank of Pakistan was set up by a Central Ordinance, in order "to extend banking facilities generally and also to provide credit for agriculture and agricultural produce. It bears no resemblance to the recognised conception of a `local authority'. The further facts that the Ordinance gives power to the Central Government to appoint the Managing Director and a number of Directors, to appoint the Auditors, as well as the President of the Central Board, are simply sufficient to show that the National Bank of Pakistan is a body entrusted with the conduct of certain affairs appertaining to the Centre. It is a body which is constituted by section 3 of the Ordinance to be "a body corporate having perpetual succession" which may sue and shall be sued in the name of the National Bank of Pakistan. There seems no doubt whatsoever that after the Election Appeal Committee became functus officio through pronouncing its decisions in the two appeals which had been referred to it, the record of its proceedings became records of the Bank and it is clear also that what was sought in substance in the present case was a writ of certiorari for the certification of the said record to that Court so that investigation might be made as to the propriety and regularity of the proceedings of the Committee with a view to determine whether the final decision, being in the nature of a quasi judicial decision, should be maintained. Such a writ could only issue to the National Bank of Pakistan at its head office in Karachi where also the records in question were held, and it seems clear enough from the wording of the relevant provision in Article 98 that as Karachi is outside the territorial jurisdiction of the High Court at Dacca, the writ sought could not have issued from that High Court. As has been observed already, it appears that the respondents to the petition for a writ were carefully selected and named in such a way as prima facie, to bring the action within the territorial jurisdiction of the High Court. As to the further reasons given by the High Court; the point that the election in question was for electing two Directors from among the Dacca registered shareholders is not relevant, since relief was sought in respect of the record kept at Karachi, in the custody of the National Bank and what was at stake was a seat on the Central Board of that Bank, which sits at Karachi. The argument that a part of the enquiry was held at Dacca is equally insubstantial, for the Committee was an agency of the Central Organisation of the Bank and it seems quite clear that the discovery made by the Election Appeal Committee (we do not express any opinion as to whether their conclusion was correct or not) regarding the action of the representative of the East Pakistan Branch of the Pakistan Red Cross Society in casting the votes of the Society for a person who had not been nominated for the purpose by the Society itself, was made at one or other of the later meetings held in Karachi, where the recount was taken. On these considerations, we are satisfied that the claim o jurisdiction in the High Court of East Pakistan to issue a writ to quash the order of the Election Appeal Committee is not soundly based, and we accordingly allow this appeal and direct that the writ be recalled, but in the circumstances of the case, we leave the parties to bear their own costs. A. H. Appeal allowed.