P L D 1984 Supreme Court 385 (PLP)

SHAPIUR RAHMAN, J.-Leave to appeal was granted to the appellant, registered voter for election to Zilla Council, Attock, to examine whether the Lahore High Court has in dismissing his constitutional petition by its judgment, dated 22-10-1983 correctly interpreted and applied clause (aa) of the Article 10 (2) of the Houses of Parliament and Provincial Assemblies (Election) Order, 1977 (hereinafter referred to as the Order) incorporated in the Punjab Local Government Ordinance by its section 21 subsection (1), clause (f ). Muhammad Hayat respondent contested the election to Zilla Council, Attock, from electoral Unit No. XII and was notified on the 3rd of October, 1983 under sub-rule (2) of rule 41 of the Punjab Local Council (Election) Rules as having been elected. The appellant who is a registered voter of that constituency, his name appearing at serial No. 948 of the Voters' List, challenged by a constitutional petition in the nature of quo warranto, the qualification of the respondent to hold such an elected public office. The grounds on which such a challenge was thrown, were that he was a full-time employee of the Pakistan Oil Fields Limited Company since 15-2-1972, was working as a Switch Board Attendance, was listed and declared an essential personnel under the Pakistan Essential Services (Maintenance) Act, 1952. Pakistan Oil Fields Limited Company, according to the learned counsel, was a public limited Company fully under the control of the Government of Pakistan and being its employee, on the express words of clause (aa) of Article 10 (2) of the Order, he was disqualified to hold that public office. The Lahore High Court by the impugned judgment dismissed the petition in limine on the ground reproduced hereunder : "The mere fact that a company has to comply with a host of directions imposed by or succumb to pre-emptive rights arrogated to itself by the Government under statutory enactments or Rules or by the terms of Exploration and Prospective Licenses granted by the Government, does not meant that the company is controlled by the Government. There is nothing in these provisions to show that the Board of Directors of the company is controlled in its day to day working by the Federal Government or that it has no mind of its own and cannot act, but under the compelling dominance of the Federal Government which burden it involuntarily has accepted out of the dictates of sheer necessity." In drawing this conclusion that the learned Judges of the High Court were influenced also by the decision of this Court in Salahuddin's case PLD1975SC

244. The learned counsel for the appellant placed his implicit reliance on the express words of the statutory disqualification. It is reproduced hereunder : - "A person shall be disqualified from being elected or chosen as, and from being, a member of Parliament . . . . . (aa) if he is in the service of any statutory body or anybody which is owned or controlled by the Government or in which the Government has a controlling share or interest." According to the learned counsel, the expression "controlled by the Government" should be given its ordinary plain meaning and notwithstanding the principle of interpretation that a rule of disqualification has to be construed strictly, its effect cannot be avoided. In this context, the learned counsel has referred to the meaning of the word "control" in various dictionaries : i.e. Webster to exercsied restraining or directing influence over, to dominate, regulate), Black (power or authority to manage, direct, superintend, restrict,' regulate, govern, administer or oversee) ; Stroud (the word control is wide enough to include many types of possession which are not commensurate with full ownership). He has also relied on a decision of this Court in Karachi Electric Supply Corporation v. National Industrial Relations Commission PLD1982SC113, where the meaning of word `Regulate' was taken to be "to control, to adopt or to adjust by rule." It was considered synonymous with the word control or govern. The learned counsel for the appellant also contended that the use of word `control' alongwith the words "own" or "controlling share" should not give the impression of any implied limitation on the meaning of word. On the contrary the scheme of legislation is such that each category has been enumerated and each category is distinct and separate. Given the meaning that it has the respondent would certainly be hit by disqualification clause and would be ineligible to hold a public office. By reference to Article 5 of the Constitution the learned counsel for the appellant contended that to enjoy the protection of law and to be treated in accordance with the law is the inalienable right of every citizen. Therefore, control exercised by the Government over a Company or body through the instrumentality 4 a statute, statutory rule or a contract will also qualify as control for all acts of Government must have a cover of law. Article 172 (2) of the Constitution vests in the Federal Government all mines and other things of value. Mineral oil and natural gas is listed as a Federal subject at item No. 2 Part II of the Fourth Schedule to the Constitution. The extensive statutory control of the Government of Pakistan would appear from Act XXIV of 1948 which itself is entitled "The Regulations of Mines and Oil Fields and Mineral Development (Government Control) Act, 1948." It has been in that Act declared expedient in public interest that the Federal Government shall have powers 'to make rules to provide for a number of the matters including the grant and renewal of exploration or prospecting licences in oil, the rats at which and conditions subject to which relevant rents and taxes shall be paid by licencees and lessees and mining concession, the control of production storage and distribution of minerals and mineral oils the fixation of price at which these will be bought and sold. Section 3 (A) of Act XXIV of 1948 permits the President of Pakistan to enter into an agreement with any company for the grant of a licence or lease to explore, prospect and mine petroleum on the basis of production Sharing Agreement and on such terms and conditions as may be agreed upon between the Federal Government and the Company. Extensive control exercised by the Government also appears from the provisions made in Part V of Petroleum Production Rules, 1949 read with Schedules. The President is authorised (clause 56 Schedule A being part of Second Schedule Part 111) to require the Company to join others for unit development, to associate Pakistan Capital (clause 59 ibid) to meet internal requirements of Pakistan (clause 58) to the satisfaction of the Government. The Director Petroleum a functionary of the Government has access to all records and accounts of the Company and supervises the performance. Even the Articles of Association of the Company provide (Article 5) that "the Directors shall have regard to and comply with the Pakistan Petroleum (Production) Rules, 1949 or other requirement of the Government of Pakistan for the time being in force in regard to the issue and allotment of shares". According to the learned counsel for the appellant, all this shows that in diverse manners the Government exercises extensive control over the Company and its employee must for that reason incur the prescribed disqualification. The learned counsel for the respondent on the other hand raised a preliminary objection that the petition is in the nature of quo warranto and did not at all lie at the instance of the appellant. He was not only a voter but had been the Polling Agent of the unsuccessfull candidate. The unsuccessful candidate has already taken the same matter to the Election Authority and the Election Tribunal where it is still pending. Besides, according to the learned counsel for the respondent, it is clear that the appellant is not acting pro bono publico or is serious in his own cause but is actually playing the game for the benefit of someone else and it is only proper that he should be denied relief in discretionary jurisdiction. He has for this preliminary objection relied on Dr. Kamal Hrissain and 7 others v. Muhammad Sirajul Islam and others PLD 1969SC42, and Azizur Rahman v. M. Nasiruddin and others PLD 1965SC236, and on a passage in Halsbury, 3rd Edn., Vol. II, pages 148-150 reproduced in Haji Muhammad Siddiq v. Babu Karam Bakhsh and. others P L D 1971 Lab.

912. On merits the learned counsel for the respondent contended that the word "control" has been used in the company of other words like `ownership', `controlling share' or `controlling interest' and these words should limit the meaning and connotation of a word having a wider and somewhat ambiguous meaning. The statutory control the regulatory control and the control by persona designata under a legislative instrument should be excluded altogether. It should be confined to non-statutory proprietary control or similar directing interest. As regards the preliminary objection, we do not consider it necessary to adjudicate can it at this stage. It is so because the High Court has not taken notice of it or dealt with it. It was not required to deal with it because the' constitutional petition was dismissed in limine without notice to the respondent. No such objection could, therefore, be taken. Besides, we find that a question of fact has been raised which will require further inquiry. On an affidavit and with two supporting documents, it has been urged that the appellant was appointed and acted as Polling Agent of the respondent in the elections in which the respondent came out successful by a wide margin. In the circumstances, he should be deemed to be acting not pro bono publico but for the benefit of a losing candidate. We bad no opportunity to get a rebuttal to' this as the affidavit was filed on the last day of the hearing of the arguments in this case. In view of our decision, on merits it is not necessary to dispose oft this preliminary objection. From the various definitions of the word `control' reproduced above by the learned counsel for the appellant, it is clear that at one place (Stroud) it has been demeed as; "an unfortunate word of such wide and ambiguous import that it has been taken to mean something weaker than restrain something equal to t regulation." The amplitude of the meaning of the word `control' would be clearer from the following definition of it (18 C J S 28) :-- "A comprehensive term, of well-understood meaning, having various significations, and subject to different limitations, but having no legal or technical meaning distinct from that given in the popular acceptation It has been said that, when broadly used, the term may embrace every form of control, actual or legal, direct or indirect, negative or affirmative, and under particular circumstances, has been held to import F complete control of the full or unqualified right to control and direct legal control, potential control or direction, or the right of control as distinguished from actual physical control." Interpreted in its ordinary dictionary meaning, given a broad and uncontrolled effect, -it will certainly imply what the learned counsel for the appellant has in mind. Nevertheless, there is a rule of interpretation well-understood and recognised in law and it is of noscitur ex socils. Maxwell on Interpretation Statutes (12th Edn., page 289) explains it as follows :- "Where two or more words which are susceptible of analogous meaning are coupled together noscitur ex socils they are understood to be used in their cognate sense. They take as it were the colour from each other the meaning of the more general being restricted to a sense analogous to that of less general." Crawford on Statutory Construction (p. 325) comments on this rule of interpretation as follows - "In order to ascertain the meaning of any. word or phrase that is ambiguous or susceptible to more than one meaning the Court may properly resort to the other words with which the ambiguous word is associated in the statute. . Accordingly, if several words are connected by a copulative conjunction a presumption arises that they are of the same class unless of course a contrary intention is indicated. On the other hand, the maxim noscitur ex soclis is not to be applied where the meaning of a word is clear and unambiguous. Nor is it to be used so as to render general words useless. Like all other principles of construction it is to be used only as an instrumentality for determining the intent of the Legislature where it is in doubt." ' The other principle which points to a limitation being placed on the general word, calling for a strict interpretation of the statutory provision, is that it being a provision disqualifying persons from being elected to public office, it should be given a restricted meaning, well-defined and certain rather than a general, ambiguous and vague meaning. These two principles combined would entitle the Court to place a restricted meaning on the word "control." Control over persons and their affairs in the context of the dispute before us, may be either proprietory or regulatory The source, scope and the nature) of each of these two powers is materially different. The incidence of ownership) is a right to possess, a right to use and enjoy, a right to consume or destroy or alienate the thing owned. The State, the Government, or the functionary of Government as an owner will normally be possessed of all such power incidental to ownership. The regulatory power of the State is very dissimilar to ownership. As an inherent attribute of sovereignty, and a necessary attribute of every civilized Government, the State is imbued with a power to promote order, safety, health, moral and the general welfare of the society. In legal parlance it is called its police power. Business and occupations are subject to regulation under this power. Statutes intended to provide relief in an emergency depend for their validity on a proper exercise of this police power. This dichotomy finds express mention and recognition in Fundamental Right No. 18 of our Constitution in the following words : "(18) Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business Provided that nothing in this Article shall prevent -- (a) the regulation or any trade or profession by a licensing system; or (b) the regulation of trade, commerce or industry in the interest of free competition therein ; or (c) the carrying on; the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or, service, to the exclusion, complete or partial, of other persons." A clearer expression of it is found in Vol. 73 Corpus Juris Secundum para. 10 in the following words "It is a fundamental rule of law that, when private property is affected with a public interest it ceases to be juris private only, and becomes subject to public regulation .... Accordingly the State has inherent power, within reasonable and proper limits, to regulate and control public utilities operating within its borders . . . . . the power of the State to regulate the conduct and business of public utilities is limited by the consideration that it is not the owner of the property of the utility or clothed with the general power of management incident to ownership, since the private right of ownership of such property remains and is not destroyed by the regulatory power. The power ordinarily resides with the legislative, may be exerted either directly by the legislative authority or by administrative bodies endowed with power to that end." In "The law relating to Government Control over private enterprise" Mr. Menson observes as follows "Broadly speaking there are two types of techniques through which the objectives of economic planning are achieved outside the area of the public sector. Firstly, there is the overall regulation of economic activity through fiscal, monetary and credit policies . . . . The second category of controls includes devices like commodity controls, export and import controls, regulation of capital issues, fixation of profit margins, allocation of scarce raw materials, or foreign exchange and direct financial assistance in the form of loans and subsidies etc." The regulatory power of the State is in this sphere all pervading and transcends the proprietary or ownership rights in 'property. An amalgam of the two and recognition of the superior power finds place in Article 5 of the Articles of Association of Pakistan Oil Fields Limited. It provides as follows "Subject to the provisions of the Act and of these Articles, the share. shall be -under the control of the Directors who may allot of otherwise dispose of the same to such persons on such terms and conditions and either at a premium or at par, and at such times as the Directors think fit, and with full power to give to any person the call of any shares either at a par or at premium during such time and for such consideration as the Directors think fit. The Directors shall have regard and comply with the Pakistan Petroleum (Production) Rules, 1949 other requirements of the Government of Pakistan for the time being in force in regard to the issue and allotment of shares." It is, not disputed that not more than three out of eight Directors are nominees of the Government and that the Government share in the Company does not exceed 34.76 Y.. It is, therefore, clear that the Government has no proprietary control as such. The plenary statutory and regulatory control of the Government by itself would not in the circumstances entail disqualification of the employee of a non-statutory, non-governmental company, undertaking or enterprise. The view taken by the High Court is correct. This appeal must fail. II is dismissed leaving the parties to bear their costs. M. z. M. Appeal dismissed.