P L D 1961 (W (PLP)

S. A. MAHMOOD, J.--‑A licence under section 26 of the Companies Act having issued to the Multan Chamber of Commerce and Industries, Multan, by the Central Government in April 1959, a certificate of incorporation was granted to it on the 15th of September 1959. Under the Articles of its Association, its first election to elect members to various offices of the Chamber, namely, President, Vice‑President, Secretary, Joint Secretary and to the Executive Committee, was to be held in July 1959, but could not be held for one reason or another. The election was held in September and October 1960 and its validity was challenged in this Court by Writ Petition No. 794 of 1960 (Sh. Muhammad Alamgir v. Multan Chamber of Commerce). As we found that the election was for the official year 1960‑61 and that it had not been h81d in accordance with the Articles of Association of the Chamber, we, accepting the writ petition, set aside the election and directed a fresh election to be held, so as to be completed by the 15th of March 1961. We directed as follows: "(1) The result of the election, which has already been heid, shall not be announced. (2) The election of the Executive Committee of the Chamber shall be held so as to be completed by the 15th of March 1961. This election shall be deemed to be election for the year 1960‑61 (i. e., from the 1st of October 1960 to the 30th of September 1961) as if the election had been held at its proper time. (3) Members who were entitled to be brought on the register of members on the 30th of September 1960 under Article 34 of Articles of Association of the Chamber shall be the members entitled to vote at the election directed by us. The list of such members shall serve as the electoral roll for the election. (4) Members who have not paid the subscription on account of the fact that elections were not held at the proper time shall be liable to pay the subscription before they exercise their right of vote at the election directed by us, and the mere fact that their names exist on the electoral roll will not give them the right to vote, if they have not actually paid the 'subscription before they want to exercise their right of vote. (5) The election of President and Vice‑President, result of which is claimed to have been declared, shall be deemed not to have been held, and the ad hoc committee, which had held those elections, shall arrange to hold the election directed by us." A fresh election was held by the due date and as a result Farooq A. Sheikh, Respondent No. 1, was declared elected as President, Sultan Ahmad, respondent No. 2, as Vice‑President Syed Sanobar Shah respondent No. 3, as Secretary and respon dents Nos. 4 to 15 as members of the Executive Committee. The validity of this election is challenged before us in this writ petition on various grounds, and it is prayed that a writ of mandamus be issued, setting aside as invalid the election of the respondent and that the petitioner may be declared elected, and in the alternative that any other suitable relief may be granted. 2, The two main grounds pressed before us by learned counsel for the petitioner are :‑ (i) that contrary to para. 4 of our order mentioned above, 185 persons whq had not paid subscription for the year 1960‑61 (beginning from the 1st of October 1960 and ending on the 30th of September 1961) were allowed by the ad hoc committee to participate in the election, although they could not do so, and (ii) that as out of 461 members on the Register of members of the Chamber, 185 members, who had not paid their subscription, were not entitled to vote, which left only 276 members, who were entitled to vote, but 498 members had cast their ballot papers, the whole election was void, and that it is obvious that there have been irregularities and malpractices in the conduct of the election as 498 ballot papers were cast, though there were 461 members only on the Register of members. 3. It is admitted by Mr. Khurshid Ahmad, learned counsel for respondent No. 1, that respondent No. 1 and 184 other members paid admission fee and annual subscription once only in 1959 and thereafter annual subscription had not been paid by them. Respondent No. I paid the subscription and admission fee on the 15th of July 1959. Learned counsel for the petitioner argues that as the election which was held, was for 1960‑61, only, those members could have participated in it, who had paid subscription by the 1st of February 1960 under the Articles of Association, or before casting their votes as directed by our orders, and that those who had not paid were not entitled to vote or stand for election. Learned counsel for the respondents contended on the other hand that as under para. 14 (b) of the Articles of Association, all those persons who had paid subscription in the previous year were entitled to participate in the election, and as the subscription of the 185 members though paid in 1959, was to be deemed to be for 1959‑60, which was the previous year, the members were entitled to participate in the election. Article 14 of the Articles of Association provides as under :‑ "14. Arrear subscription and forfeiture of the right of vote of defaulter members‑ (a) Annual subscription paid in any month of the Calandar year shall be counted for the year commencing from 1st October, which is the official year of the Chamber. (b) No member, who did not pay his annual subscription by 1st February during the previous official year of the Chamber, shall be eligible to vote in the election of office bearers and members of the Executive Committee for the ensuing year., (c) A person or firm who is newly enlisted as member of the Chamber on or before 1st August during the previous official year of the Chamber, shall however be entitled to vote in election of office bearers and members of the Committee for the ensuing year ; (d) A member shall cease to be a member of Chamber if he fails to pay his annual subscription by 1st July in each official year of the Chamber, in spite of a registered reminder having been issued to him by the Secretary, however the Executive Committee can give grace of two months." According to the learned counsel for the respondents, the, subscription paid in 1959 is to be counted as subscription for the period from the 1st of October 1959 to the 30th of September 1960, and as this is a year previous to the year A of election, the persons were entitled to vote under Article 14 (b) of the Articles ' of Association. It is obvious, however, that the Articles of Association make it necessary that the subscription should have been paid by 1st February in the previous official year. Since the election was held 'to 1960‑61, which commenced on the 1st of October 1960, sub scription should have been paid by 1st February 1960 and this was not done. The subscription paid in 1959 was to count for 1959‑60, and for the official year 1960‑61, it was nocessary to pay another subscription by February 1960. The subsaription has to be paid annually and not bi‑annually, but on the contention of the learned counsel, the first subscription was to count towards two official years 1959‑60 and 1960‑61. This is untenable. The subscription for 1960‑61 had to be paid under the Articles of Association by 1st February 1960, but we extended the time and permitted payment of the annual subscription before casting of vote. Thus subscription, which bad to be paid by the 1st of February 1960, could be paid before casting of vote, and this was a necessary condition for participating in the election. Since no less than 185 members, who were not entitled to participate, voted, the election held is invalid. It is also obvious that there have been serious irregularities in the polling of ballot papers, for ballot papers hi excess of total number of members have been cast. We therefore, declare as invalid the election held on the 15th of March 1961. 4. Ordinarily, the members, who had not paid their subscription before casting of votes on 15th March 1961 would not be entitled to partioipate in the fresh election, but learnad counsel for the respondents argues that as respondent No., 1 and the remaining 184 members had not paid the subscription in the honest belief that they were not required to pay the subscription as their subscription for the previous year entitled them to participate in the election, they should be allowed to participate in the election on payment of subscription and should not be excluded from participation. He contends that their failure to pay was not deliberate, but was due to an honest, mistake. We have already held in our previous order that the Articles of Association are ambiguous and it is possible that these members may have been misled into a belief that they did not have to pay. We are not inclined, therefore, to debar them from participating in the election to be held, if they pay the subscription, nor did the learned counsel for the petitioner oppose the prayer of the learned counsel for the respondents that they may be allowed to participate in the election. If they pay before the election, i9 held. We, therefore, direct that all those members who have not paid subscription at any time for the official year from the 1st of October 1960 .to the 30th September 1961 shall now pay the annual subscription for the year 1960‑61 by the 16th May 1961 and that if any member has not paid and does not pay the subscription by that date, he shall not be entitled to vote. 5. Since allegations of malpractices in the conduct of the election by the ad hoc committee have been made and as these allegations are not without substance, we consider it necessary that an independent person should be associated with the election. We are making this order with a view to ensure a fair election and in order to avoid another writ petition on grounds of malpractices and irregularities. We order that though the ad hoc committee shall issue the ballot papers to those members who are entitled to vote, the ballot papers will be returnable to the District Judge, Multan so as to reach him by the 27th of May 1961 at .the latest, and that the counting of the ballot papers shall take place in the office of the District Judge at 8 a. m. on the 28th of May 1961. All the members of the Chamber, who have paid their subscription for 1960‑61, will be entitled to be present at the counting. The District Judge will count the ballot papers and declare the result. He will retain the ballot papers. Ids. 500 shall be paid to him by the Chamber as his honorarium for the work entrusted to him. 6. We accept the writ petition with costs, which shall be paid by respondent No. 1. The counsel's fee is assessed at Rs. 2,500. A. H.Petition accepted.