P L D 1964 Dacca 730 (PLP)

SATTAR, J.‑The petitioner is a shareholder of the National Bank of Pakistan and has been registered as such in the Branch register maintained at Dacca. In pursuance of an election held on the 20th July 1962, he along with one Mr. Chowdhury Mohd. Sarwar was elected as a Director of the Central Board of the Bank for the Dacca Area. In the said election, there were six candi dates including one Mr. A. U. Mohd. Khalilullah. On the date of election, Mr. Khalilullah withdrew from the contest. On the 24th July 1962, Mr. Sakhawat Hossain, one of the unsuccessful candidates, filed an application to the Managing Director of the Bank under rule, 16 of the Election Bye‑Laws framed under the provisions of section 32 of the National Bank of Pakistan Ordi nance, 1949, alleging that some irregularities and illegalities in holding the said election had taken place and prayed that a Com mittee be constituted as provided by clause 16 (ii) of the Election Bye‑Laws to enquire into the said election. He further prayed for declaration that he along with another gentleman should be dec lared as elected. The Managing Director, however, on the 16th August 1962, informed Mr. Sakhawat‑ Hossain that his request for appointment of an Enquiry Committee was not acceptable as no valid ground existed for such an enquiry. Mr. Sakhawat Hossain thereafter filed a petition under Article 98 (2) of the Constitution challenging the aforesaid order. He however, ultimately withdrew the petition. The petitioner asserts that thereafter he went on functioning as a Director of the Bank but received a communication from the Deputy Managing Director dated the 20th August 1963 that, in view of the decision of the Election Appeal Committee, his election to the Board of Directors had come to an end. The petitioner asserts that no formal enquiry was held by the Election Appeal Committee and he was not informed that the Managing Director had constituted a Committee consisting of himself, Mr. Zahirud din and Mr. Malik Muzaffar. The petitioner has challenged the decision of the Election Appeal Committee on the ground inter alia that its decision is based on a matter which did not form the subject‑matter of enquiry by the Committee nor was that a ground taken by Mr. Sakhawat Hossain in his petition for constituting an Enquiry Committee. An affidavit‑in‑opposition on behalf of the Chairman, Local Board, National Bank of Pakistan and the Deputy Managing Director,. National Bank of Pakistan has been filed in this case. The affidavit has been affirmed by Mr. A. A. Sherkoti, Ex‑Secretary of the Election Appeal Committee. It has been asserted inter alia that the petitioner was wrongly elected as a Director inasmuch as he secured the votes of the Red Cross Society, Dacca which were wrongly cast in his favour as the person who was authorised by the Society to cast the votes was not given any such authority. It has further been said that as the time for withdrawing from contest had already expired, Mr. Khalilullah could not withdraw from contest on the date of election. In this affidavit it has also been said that the Election Appeal Committee after one notice to the petitioner enquired into not only the allegations made in the petition filed by Mr. Sakhawat Hossain but also matter concern ing the votes of the Red Cross Society which were cast in favour of the petitioner. The findings of the Election Appeal Committee are to be found in Annexure `E' to the petition. It will be seen that the Committee rejected all the allegations made by Mr. Sakhawat Hossain in his petition. The Committee however found an irregu larity in the course of the enquiry held by it and on account of it declared the election of the petitioner invalid and directed fresh election. The finding of the Committee in this regard is to the following effect: "In the course of the enquiry and examination of the election papers and records, it came to the notice of the Committee that in his election as a Director of the Central Board, Mr Ataul Hoq had received an undue benefit of 50 votes of the East Pakistan Branch of the Pakistan Red Cross Society. The Society had, by means of a resolution passed on the 7th July 1962, authorised their Representative to cast their 50 votes in favour of Mr. Chowdhury Md. Sarwar and Mr. A. U. Md. Khalilullah but in the relative voting card, the name of Mr. Ataul Hoq was marked as being the beneficiary of the votes in place of Mr. Khalilullah, as a result of which these 50 votes were count ed illegally on the side of Mr. Ataul Hoq enabling him to defeat one of his opponents by 30 votes. The representative of the Society had to carry out the wishes of the Society in the meeting: he had no discretion of his own to depart from the decision taken by the Share‑holder Society. For the reasons stated above, the Committee finds that no material irregularity occurred in so far as the election of Chowdhury Mohammad Sarwar is concerned but that in the election of Mr. Ataul Hoq, a serious irregularity was committed which materially affected the result of the election. The Com mittee, therefore declare Mr. Ataul Hoq's election to be invalid and orders fresh election for the seat so vacated." Mr. Hamidul Hoq has challenged the right of the Managing Director to constitute the Election Appeal Committee after having once rejected the application of Mr. Sakhawat Hossain. The rejec tion does not appear to have any legal sanction and it is therefore not unlikely that the Managing Director thought of revising his decision during the pendency of Mr. Sakhawat Hossain's petition before the High Court, as has been submitted by Mr. Asrarul Hossain. It is true that what Mr. Asrarul Hossain has stated does not find place in the affidavit‑in‑opposition filed on behalf of the respondents but we feel that, if the Managing Director revised his order which was not in accordance with law, he committed no illegality. In accordance with the Bye‑Laws, on receipt of a complaint of irregularity, other than an improper acceptance or rejection of voting paper made by a candidate within 15 days of the date on which the result of the election is declared the Manag ing Director is bound in law to constitute a Committee as provided in sub‑clause (ii) of clause 16 of the Bye‑Laws. We are, therefore, now to consider how far the order of the Election Appeal Com mittee is sustainable in view of the fact that it is based on a ground which was not the subject‑matter of complaint in the application filed by Mr. Sakhawat Hossain under Bye‑Law

16. The Bye‑Laws in question have been made by the Central Board of the National Bank of Pakistan in exercise of the powers conferred by section 32 of the Ordinance with the previous appro val of the Central Government. Mr. Asrarul Hossain has sought to support the order with reference to the provisions of Bye‑Law 16 (iii) which empowers the Committee to "make such enquiry as it deems necessary". We are afraid this contention cannot be accepted. If the Bye‑Law is read as a whole, the enquiry referred to in sub‑clause (iii) can have no reference to anything else than in regard to the complaint made in the application filed by a candidate or shareholder. Sub -clause (ii) provides that, on receipt of the application, the Manag ing Director shall constitute a Committee "and refer the applica tion for the decision of the Committee so constituted". The Committee has no power to interfere suo motu or on grounds which are not the subject‑matter of complaint in the application referred to it. We are, therefore, of the view that the order of the Election Appeal Committee is not warranted by the law under which it was constituted and asked to give its decision. We now proceed to consider two objections to the maintain ability of the present petition. It is contended that the order in question does not come with in the purview of Article 98 (2) of the Constitution. This Sub- Article permits the High Court to give directions with regard to failure to perform certain acts which law enjoins or omission to perform such acts or to give declarations in regard to acts done in contravention of law if such acts are done or required to be done by "a person performing in the Province functions in connection with the affairs of the Centre, the Province or a Local Authority." "Local Authority" has not been defined in the Constitution, and its meaning cannot be gathered with reference to the General Clauses Act as the same cannot be invoked in aid for the interpre tation of the Constitution in the absence of any express provision in it to that effect. In Stround's Judicial Dictionary, "Local Authority" has been described thus: " "Local Authority" is a modern phrase, and in a modern Act is generally defined by the Act's interpretation clause, according to the subject‑matter of the Act". In this Book a list of Local Authorities has been given which are to be found in Acts like adoption Act. Allotments (Scotland) Acts, Electricity, Supply Act, Food and Drugs Act, etc. etc. The National Bank of Pakistan is a statutory Body created by Ordi nance No. XIX of 1949. The Central Government owns 25% of its share and under section 16 appoints its Managing Director. Three of the Directors of the Central Board are also appointed by the Central Government‑(See section 14). Under section 28 the Central Government may appoint Auditors to examine and report upon the accounts of the Bank. The Management of the Bank under section 14 rests with the Central Board which consists of the Managing Director, 9 Directors elected by the shareholders and 3 Directors appointed by the Central Government. The President of the Central Board is also appointed by the Central Government from amongst the Directors. Regard being had to these provisions of the Ordinance, we are unable to reject the contention of Mr. Hamidul Huq that the Bank is a "Local Autho rity" within the meaning of Article 98 of the Constitution. We find that, under sub‑Article (5) of Article 98, "Person" includes any Body Politic or Corporate, any Authority of or under the Control of the Central Government or of a Provincial Govern ment, etc. we are therefore of the view that the Bank comes with in the purview of sub‑Article (2) of Article 98 of the Constitution. The next point urged by the teamed counsel for the respon dents is that as the decision which is the subject‑matter of challenge in this petition was given in Karachi, this Court has no jurisdiction The election in question was held for electing two Directors 'by the shareholders registered in the Dacca Register of the Bank. The Central Board performs in this province func tions in connection with the affairs of the bank. The enquiry by the Committee, according to the affidavit‑in‑opposition, was held t in Dacca. In these circumstances the mere fact that the decision by the Committee was announced and signed in Karachi does not affect the jurisdiction of this Court. Mr. Asrarul Hossain s sub mission ultimately reduces itself to the form of the prayer. He points out that, had the petitioner prayed for a declaration that he is still the Director of the Bank or for a direction not to give effect to the order of the Committee, no question of jurisdic tion could be raised. We fail to appreciate the soundness of this argument. Such a declaration or direction could only be given on a finding that the order of the Committee is illegal. The argument suggests that what cannot be done directly can be done indirectly. We do not agree. In our view, this Court has jurisdiction to give the declaration asked for in this case. The result, therefore, is that this Rule is made absolute. It is declared that the order of the Election Appeal Committee is invalid and has been made without Lawful Authority and is of no legal effect. We., however, direct the parties to bear their own costs. Mr. Asrarul Hossain has asked for a Certificate under Article 58 (2) (a) of the Constitution. We certify that this case involves a substantial question of law as to the interpretation of the Constitution. The learned counsel has also asked for stay of the operation of the order passed by this Court. In the facts and circumstances of this case, we do not think we can entertain such a prayer. The prayer for stay is rejected. M. R. KHAN, J.‑I agree. K. B. A. Rule made absolute.