P L D 1967 Karachi 55 (PLP)

"The defendants have also made their intention quite clear that they will not allow the authorised representatives of the aforementioned share-holders to exercise their votes personally at the said election scheduled to be held on the 20th April, 1963." Further : "A large number of proxies have also been deposited with the defendant No.1 (Mr. Masood Bari) above-named favouring the other contesting candidate and the plaintiff has reason to believe that a considerable number of the said proxies have not been executed by duly authorised persons and should have, therefore, been rejected but the defendant No.1 above-named has illegally, improperly and arbitrarily held them valid and has illegally, improperly and arbitrarily refused to the plaintiff the opportunity to scrutinise the said proxies and the instruments under the authority of which the said proxies are purported to have been executed."

5. After instituting the above suit, Mr. Abdul Aziz made an application for interim injunction for restraining Mr. Masood Bari and the Industrial Development Bank of Pakistan from holding the election on the 20th of April, 1963. On receipt of a notice of the application and the interim injunction order, Mr. Masood Bari and the Bank applied to the trial Court under Order VII, r. 11 and section 151, C. P. C. praying that the plaint be rejected as civil Courts had no jurisdiction to try the suit. The parties were heard on the 23rd of September, 1963. The injunction order was confirmed and the following view was taken. "The decision of the Election Officer made in accordance with clause 37 of the Regulations shall be final and subject to regulation

48. But if there is no 'decision', it is neither final nor subject to clause 48 of the Regulation. Besides, I think, clause 48 of the Regulations is one which is invoked as it appears from the context of its sub-clauses (1), (2) and (3) after the election only when there is some doubt or dispute in regard to the qualification' or disqualification of a person deemed or declared to be elected or otherwise as to the validity or invalidity of an election. "In view of the above, I am inclined to hold prima facie that while rejecting the proxies in question, defendant No. 1 does not appear to have taken a `decision' as envisaged by clause 37 of the Regulations." It appears that Mr. Masood Bari and the Industrial Development Bank of Pakistan pressed the view that their application under Order VII, r. 11 and section 151, C. P. C. had not been disposed of. The consequence was that an order was made on the 7th of October, 1963 on that application as follows:-- "Heard the advocates, with the parties. Application will be considered at the time of final disposal of the suit."

6. Mr. Masood Bari and the Industrial Development Bank of Pakistan filed a revision application against the orders dated the 23rd of September 1963 and the 7th of October 1963 in this Court on the 30th of October, 1963, but it transpired during the preliminary hearing, according to Mr. Mansoorul Arfin, that the order confirming the injunction was separately appealable; therefore he filed an appeal against that order being Miscellaneous Appeal No. 119 of 1964 in the Court of the Civil Judge First Class, Karachi on the 2nd of November, 1953, and in December, 1963 got his revision application, which was already pending in this Court, amended by giving up his objection to the confirmation of the injunction.

7. When the parties appeared before me on the 24th of March, 1965 for the disposal of the revision application which bore No. 391 of 1963, it was felt that the basic grievance in the appeal as well as in the revision application was one and the same; therefore, it would be proper that the appeal be withdrawn under section 24, C. P. C. and heard and decided along with the revision application. An order was accordingly: made on the 24th of March, 1965. In consequence of that order the revision application and the appeal, which after transfer from the District Court has been renumbered as Miscellaneous Appeal No. 120 of 1965 in this Court, are before me today for disposal.

8. Mr. Mansoorul Arfin appearing for Mr. Masood Bari and the Industrial Development Bank has stated that he would rely on one contention only in support of the appeal as well as the revision application, That contention is that the decision of an Election Officer with reference to the validity of proxies taken under regulation 37 of the Industrial Development Bank of Pakistan General Regulations, 1962, which have been framed under section 46 of the Industrial Development Bank of Pakistan Ordinance XXXI of 1961 is final subject only to regulation

48. The two regulations have been reproduced above.

9. Counsel has contended that the right to vote at the election which was to be held on the 20th of April, 1963 was the creation of the Industrial Development Bank of Pakistan Ordinance XXXI of 1961, and that a machinery was provided by regulation 48 of the said Regulations for questioning the correctness or otherwise of the decision of the Election Officer. In these circumstances, the tribunal which can reconsider the decision of an Election Officer is the Committee which is to be constituted in terms of regulation 48 and has the exclusive jurisdiction to do so. The words, according to counsel: "the decision of the Election Officer shall be final and subject to Regulation 48" by necessary implication exclude the jurisdiction of civil Courts to question the correctness or otherwise of the decision of the Election Officer as to the validity or invalidity of proxies. In support of this proposition, counsel has referred to: (1) Sultan Ali v. Nur Hussain A I R 1949 Lah. 131, (2) Joti Prasad v. Amba Prasad A I R 1933 All. 358, (3) Bhaishankar v. The Municipal Corporation of Bombay, I L R 31 Bom. 604, and (4) Secy of State v. Mask & Co. A I R 1940 P C 105.

10. The observation which are contained in the above judgments, leave no doubt that the proposition which counsel has pressed that- "Where a special tribunal out of the ordinary course is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive . . . . . .The jurisdiction of the courts can be excluded not only by express words but also by implication . . . . . . ".

11. Mr. A. H. Faruqui, counsel for Mr. Abdul Aziz raised the following three contentions to oppose the appeal and the revision application: Firstly, he said that the right to elect was not created by the Industrial Development Bank of Pakistan Ordinance, 1961 because voting had to take place simply as a necessary consequence of the provision that three directors were to be elected directors. This consequential right of vote, according to counsel, could not be considered to be a creation of that statute. Secondly, counsel argued that no adequate remedy existed in terms of regulations 37 and 48 because in terms of regulation 48 objection to the invalidity of proxies could be taken only after the election of the Directors had been over. But in this case, counsel contended, the object of Mr. Abdul Aziz was to rectify the situation before the election so that by may not illegally loss his opportunity of being elected. Thirdly, according to counsel, the nature of the enquiry which is envisaged in regulation 48 is unknown because the Committee is entitled to- "make such enquiry as it deems necessary, and if it finds that the election was a valid election, it shall confirm the election, or if it finds that the election was not a valid election, it shall make such order and give such directions including the holding of afresh election as shall, in the circumstances, appear just to the Committees" This scope of the enquiry, counsel argued, did not provide an adequate remedy to his client because the Committee could make a short work of his disputes by disposing of them in a summary manner. Finally, counsel argued that if an action was taken which was not in accordance with the provisions of law, then that action could not be said to fall within the ambit of the relevant law, with the consequence that such action should be considered to be neither under the relevant law, nor subject to such limitations on the jurisdiction of Civil Courts as are imposed by such law. In support of this proposition, he has referred to Abdul Hamid Khan v. Government of West Pakistan (P L D 1959 Pesh. 136) and Salim Ullah Beg v. Motia Begum (P L D 1959 Lah. 429).

12. The first contention of counsel that the right to vote is not the creation of the statute is obviously not a tenable proposi tion. As pointed out by a Full Bench of Lahore High Court in Sultan Ali v. Nur Hussain electoral right, which may generally be defined as the right to vote at an election, or the right to be elected as a member, or the privileges and disabilities attaching to the status of a person when elected as such is purely a creation of the relevant law.

13. The second contention of counsel does not carry much weight because the only inadequacy of the remedy provided by regulation 48 which counsel has pointed out is, that his client is not able to seek his remedy before the election is over. In other words, the time lag which exists in the remedy that is provided is unfavourable; but this aspect alone cannot be said in the present circumstances to make the remedy inadequate; therefore, it- is not correct to Say that regulation 48 offers him no remedy to meet the situation.

14. The third contention of counsel that under regulation 48 the Committee is entitled to make such enquiry as it may deem necessary; Therefore the inquiry is bound to be unsatisfactory, is an apprehension for which there is no material at present. The apprehension that the Committee may not give satisfactory hearing to Mr. Abdul Aziz is more a matter of surmise than a real ground against it. In this view of the situation, the third argument should also fail.

15. The last argument of counsel for Mr. Abdul Aziz was that the Election Officer has rejected a large number of proxies of N1r. Abdul Aziz and has accepted a large number of proxies of Mr. Amir Chinoy without stating any reason for doing so; since no reasons were given, the orders accepting and rejecting the proxies were, according to counsel, invalid. I do not wish to express any opinion in this respect because, in my view, even if according to Mr. Faruqui, the Election Officer was bound to give reasons for accepting or rejecting proxies and had illegally omitted to do so, then his client could raise this objection before the Committee under regulation

48. Supposing for the sake of argument that it was necessary to express in writing the reasons, there is nothing which has been pointed out' by Mr. Faruqui to show as to why this objection should be taken to have been excluded by the language of regulation

48. If it is correct that this objection could also be raised before the Committee under regulation 48, then it follows that the jurisdiction to examine and decide his objection has been excluded from the jurisdiction of civil Courts.

16. The above discussion leads to the conclusion that the suit which has been filed by Mr. Abdul Aziz is not competent owing to the lack of jurisdiction of civil Courts. The order of Mr. Sayed Wajid Ali, Civil Judge, First Class, Karachi, dated the. 23rd of September 1963, by which lie confirmed the injunction order is hereby set aside and the injunction is discharged. On the same grounds, the application under Order VII, rule 11 and section 151, C. P. C. of Mr. Masood Bari and the Industrial Development Bank of Pakistan is accepted and the plaint is rejected as barred by the Industrial Development Bank of Pakistan Ordinance XXXI of 1961 and the above-mentioned regulations made thereunder. The respondents will pay the costs of the appeal, the revision application and the suit. K. B. A. Petition accepted.