2019 PLP 1026 (MLD)

ATHAR MINALLAH, C.J.

The petitioner has invoked the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the 'Constitution') assailing letter, dated 20-02-2019, issued by the Registrar of Pakistan Council of Architects and Town Planners, (hereinafter referred to as the 'Council').

2. The facts, in brief, are that the petitioner asserts that he is one of the members of the Council and that he is aggrieved because the Annual General Meeting of 2019 is scheduled to be held on 08.03.2019 at Karachi.

3. The learned Counsel for the petitioner at the very outset was asked to satisfy this Court regarding maintainability of the instant petition on the touchstone of the 'function test' laid down by the august Supreme Court in case of 'Pakistan Defence Officers Housing Authority and others v. Lt.-Col Syed Jawaid Ahmed and others', [2013 SCMR 1707]. The learned Counsel for the petitioner has argued that the Council has been established under the Pakistan Council of Architects and Town Planners Ordinance, 1983 (hereinafter referred to as the 'Ordinance of 1983') and, therefore, it is amenable to the jurisdiction of this Court under Article 199 of the Constitution. The learned Counsel has placed reliance on the cases of 'Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others' [2017 SCMR 2010], 'Acces Solar (Pvt.) Ltd and 2 others v. Federation of Pakistan and 3 others' [2017 CLC 1259 (Islamabad)], 'Dr Farzana Bari v. Ministry of Law, Justice and Human Rights through Secretary and 3 others' [PLD 2018 Islamabad 127], 'Aitchison College, Lahore through Principal v. Muhammad Zubair and another' [PLD 2002 SC 326] in support of his contention that since the Council has been established through an Act of the Majlis-e-Shoora (Parliament), thus a writ would be competent.

3. The learned Counsel for the respondent Council on the other hand has argued that the function test laid down by the august Supreme Court is not fulfilled in case of the Council and, therefore, the instant petition is not competent.

4. The learned Counsel have been heard and the record perused with their able assistance.

5. The Council has been established under the Ordinance of 1983 and its composition is described in section 3 ibid. A plain reading of the Ordinance, 1983 explicitly shows that the Federal Government does not exercise either administrative or financial control over the Council.

6. The august Supreme Court in the case of 'Pakistan Defence Officers Housing Authority and others v. Lt.-Col Syed Jawaid Ahmed and others', [2013 SCMR 1707] has conclusively interpreted the expression "person" in the context of jurisdiction under Article 199 of the Constitution. The three pronged "function test" laid down in 'Pakistan International Airlines v. Tanweer-ur-Rehmani' [PLD 2010 SC 676] has been affirmed for determining whether a "person" will be amenable to the jurisdiction under Article 199 of the Constitution. In paragraph 22 of the judgment the test has been described as follows:- (i). "Whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; (ii). Whether the control of the organization vests in a substantial manner in the hands of Government; and (iii). Whether the bulk of funds is provided by the State."

7. It was above "function test" which was applied in case of the statutory bodies to determine whether they were to be treated as a "person" or not. It is obvious that the test (i) is subject to (ii) or (iii). On the touchstone of the "function test" the Council is not a "person" for the purposes of Article 199 of the Constitution.

8. In view of the above, the Council is not a 'person' for the purposes and in the context of Article 199 of the Constitution and, therefore, not amenable to the jurisdiction of this Court thereunder.

9. For what has been discussed above, the instant petition is not maintainable and, therefore, accordingly dismissed. MH/51/Isl. Petition dismissed.