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Election Petition, decided on 20th January, 1986.

--Ss. 52 & 99--Houses of Parliament and Provincial Assemblies (Elections) Order (5 of 1977), Art. 10(2) (b) (4)--Penal Code (XLV of 1960), S.21--Cooperative Societies Act (VII of 1925), S.65-B--Election petition--Disqualification--Petitioner challenging election of respondent to National Assembly on ground that he was in service of a Corporation controlled by Government--- Articles of Association of Corporation, wherein respondent employed, showing that said Corporation might be subject to various approvals, sanctions, directions and supersessions of its resolution and orders at hands of Registrar Cooperative Societies and latter or Government might be an Appellate or Revisional Authority in various matters but by no means these could make Corporation a body 'controlled by Government'--Corporation was an independent entity recognised by law and fact that it was subject to various items as enumerated above, would not take away its independence altogether- Respondent who was in service of such Corporation, therefore, was not hit by restrictive provisions.

---S. 99--Houses of Parliament and Provincial Assemblies (Elections) Order (5 of 1977), Art. 10(2)(b)(4)--Disqualification--Provisions of Act LXXXV of 1976 and Order 1977 being restrictive in nature and depriving people of seeking election to representative bodies by citizens of country to be construed strictly.--[Interpretation of statutes].

---Ss. 52 & 99--Houses of Parliament and Provincial Assemblies (Elections) Order (5 of 1977), Art. 10(2)(b)(4)--Purpose of provision that a person shall be disqualified from being elected "if he has been in the service of Pakistan or of any statutory body or anybody owned or controlled by Government or in which Government has a controlling share or interest" disqualify such persons, lest they might influence election to representative bodies at Provincial or National level--Idea is to man these Assemblies, of people who were not part of or subject to influence of executive Government of day--They should be independent people who constituted second pillar of the State--Exceptions.

An Officer serving a Cooperative Society or for that matter a company, or, a Charitable Institution whose activities in some matters are amenable to supervision of executive Government, is by no means to be taken as having lost his independence and because of his service to institution, to be disqualified on ground that the. institution is in some matters "controlled by the Government", though it is an independent legal entity having its own sphere of activities free from all interference while acting within the bounds of law. The restrictive provisions disqualifying Officers envisages that they are officers of a 'body' controlled by the Government. The body as a whole in its normal functions not on peraphere or limb be "controlled by the Government" and the control has to be over all the usual activities of the body and not only over certain specified matters. The control has to be over the body and directly all over. Not remote control.. Otherwise which person or property is not "controlled by Government" ultimately. An unwise decision of the Government within its own sphere of declaration of war can destroy people, property and country. But for that reasons, it cannot be said that people individually, or, collectively in form of body are "controlled by the Government". Essence has to be seen not the shadow, however deep that may be. The content of the provision and the purpose is to disqualify people who are officers of a body which in its entirety and as a whole in its usual and normal activities is directly and totally controlled by the Government. On these principles, respondent who was a Chief Manager of Corporation at relevant time would not be hit by aforementioned provisions.

This Election Petition under section 52 of the Representation of Peoples Act, 1976, questions the election of the respondent No. 1 to a National Assembly seat in Constituency No. N.A.-100-111, Gujranwala. The petitioner had obtained 39785 votes, whereas the respondent No. 1 obtained 64069 votes. The latter had been declared elected. The petitioner challenged the election of the respondent No. 1, on the grounds "(a) that the election of the respondent No. 1 is void ab initio as he was on the nomination day disqualified to be a member of the National Assembly or a candidate to the election of such Assembly, inasmuch as, he was Chief Manager upto 27-8-1984 of the National Industrial Co-operative Finance Corporation Ltd., earlier called as National Industrial Co-operative Bank Limited, by virtue of section 99 of the Representation of Peoples Act, 1976, (b) that being an employee of the Co-operative Bank and holding a public officer, the respondent No. 1 is a public servant within the meaning of section 21 of Pakistan Penal Code (Act XLV of 1860). The Co-operative Societies Act, 1925 has declared all Officers of a Co-operative Bank under section 65-B to be a public servant within the meaning of section 21 of Pakistan Penal Code, and (c) that the respondent No. 1 has failed to declare in. writing within the period of 5 years or a period of two years as envisaged under section 99(1)(d)(h)(i) of the Representation of Peoples Act, 1976, as well as (j) of the said Act." The Election Petition was filed on 16-4-1985.

2. An application under section 62(3) of the Representation of Peoples Act, 1976, for amendment of the election petition was filed by the petitioner, saying that the petitioner had assailed the election of the respondent No. 1 on the ground that he being a salaried Chief Manager of the National Industrial Co-operative Finance Corporation Limited was disqualified to be elected as Member of Parliament; that the above disqualification is provided for by section 99 of the Representation of Peoples Act, 1976, as well as by Article 10(2) sub-clause (b)(4) and sub-clause (7)(b) of President's Order No. 5 of 1977 besides Article 63 of the Constitution, that the references to the precise provision of President's Order No. 5 of 1977 and the. Constitution have been inadvertently omitted in Ground (A) of the petition. The omission, however, is inconsequential as the ground for disqualification remains the same and amounts only to a reference to a relevant legal provision. This application is, dated 3-10-1985.

3. When the case came up for hearing on 5-10-1985, it was recorded that "the only point involved according to the learned counsel appearing for the parties is as to whether the respondent No. 1 was disqualified to contest the election and hold office in view of the fact that he was the Chief Manager of the National Industrial Co-operative Finance Corporation Limited from 23-2-1970 to 27-8-1984. The admitted position is that the respondent No. 1 was the Chief Manager of the aforesaid Corporation. The only matter left is to determine as to whether in accordance with law the respondent No. 1 was entitled to seek election or hold office as a result thereof. Both the learned counsel state that no evidence is to be led. They seek time for arguing the legal question involved." The case has finally been heard.

4. Learned counsel for the petitioner his contended that under President's Order No. 5 of 1977, vide Article 10(2)(b)(4), it is provided that "a person shall be disqualified from being elected and chosen as being a Member of the Parliament, if he has been in the service of Pakistan or 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, unless a period of two years has elapsed since he ceased to be in such service. The precise and only contention of the learned counsel for the petitioner is that the respondent No. 1 has been the Chief Manager of the National Industrial Co-operative Finance Limited from 23-2-1970 to 27-8-1984 and that is a body which is "controlled by the Government" and undisputedly a period of two years had not elapsed, since his resignation from the office of the Chief Manager of the aforesaid Corporation by the time he sought election. Learned counsel has referred to the Bye-Laws of the aforesaid Corporation and submitted that:

Under Clause 12 ... The Capital shall be composed of:

1. ------------------

2..........................

3. Loans as sanctioned by the

Registrar.

4..........................

5. Subsidies and grants in aid by the

Government and other Institutions.

Under Article 15 ---- The acceptance of deposits and

loans from non-members shall be

subject to any restrictions which

may be imposed by the Registrar.

Under Article 16 ---- General Meetings have to be called

when summoned by the Registrar.

Under Article 21 ---- (a)The election has to be held

in accordance with the Rules framed

by the Registrar and adopted by

the General Meeting.

(b) ----------

2 . .........................

3. .........................

5. The amendment of the Bye-Law is

subject to the sanction of the

Registrar.

Under Article 24 --- (c) Election to the Managing

Committee shall be governed further

by such rules as may be framed

by the Corporation, subject to the

approval of the Registrar and that

any rules of amendments thereto

suggested by Registrar or his

nominees shall be accepted, by the

Corporation.

Under Article 33 --- The Board of Directors have to

consider inspection notes of the

Registrar and take necessary

action.

Under Clause 11 ---- Contracts for loans have to be with

the sanction of the Registrar.

Under Clause 18 ---- Against an order of dismissal or

punishing an employee, the

aggrieved person has been provided

a right of appeal before the

Registrar.

Under Article 35 ----- (b) The Registrar has a right to

suspend the execution of any

Resolution of the Managing

Committee or prohibit doing of

anything contrary to the

Co-operative Societies Act or

Bye-Laws.

Under sub- clause (c) --- Against the decision of the

Registrar, there is a right to

appeal to the Government.

Under Article 36 ---- The Secretary, a treasurer or a

Manager are required to give such

securities as required by Rules

made by the Government.

Under Article 37 ---- (a)The Registrar, Co-operative

Socities, his Deputy or Assistant

shall exercise the following powers:

(i) If necessary or expedient in

the public interest, he may

determine the policy in relation to

advances to be followed by the

Corporation, and when the policy

has been so determined the

Corporation shall be bound to follow

(ii) He may caution or prohibit

Corporation against entering into

any transactions or class of transactions.

(iii)He may by notice in writing

require the Corporation to furnish

such information in such manner

and within such time as may be

specified in the notice relating to

business of the Corporation.

(iv) He may fine the person who

in any return statement or other

information required by or under

this Act wilfully makes a statement

which is false in any material

particular knowing it to be false,

or wilfully omits to make a material

statement.

Under sub-clause (6) The borrowing power is subject to

the previous sanction of the

Registrar.

Under Clause 15 The accounts have to be opened

by the Corporation with other

Banks approved by the Registrar.

Under Article 43 The accounts of the Corporation

shall be audited at last twice a

year by an auditor duly appointed

to the Registrar.

Under Article 45 All disputes concerning Bye-Laws

or, the business of the Corporation

shall be referred to the Registrar,

"'has provided in the Rules notified

by the local Government.

and Under Article 47 The Corporation shall be liquidated

only by order of the Registrar

under section 39 of the Act:

Learned counsel for the petitioner also referred to va- ious provisions of the Co-operative Societies Act, 1925, to show that the Registrar and the Government exercises control over Co-operative Societies.

5. Learned counsel appearing for the contesting respondent No. 1, submitted that the election petition is liable to be dismissed for the reason that the only disqualification stated in the election petition against the answering respondent was that he was the Chief Manager of the aforesaid Co-operative Finance Corporation upto 27-8-1984 and was disqualified by virtue of section 99 of the Representation of Peoples Act, 1976. Learned counsel submitted that the said provision expressly excludes its applicability to the officers of a Co-operative Society. He read out section 99(1) which to the following effect:-

99.--MA person shall be disqualified from being elected as. and from being a member of an Assembly, if--

(i) being a managing agent, manager or security of, or holding any other office carrying the right to remuneration in, any company or corporation (other than a co-operative society) in the capital of which the Government has not less than twenty-five per cent share or which is managed by the Government, he does not after his election as a member but before making oath as such, make a declaration in writing to the Commissioner that he is such managing agent, manager or secretary, or holds such office, unless a period of five years has elapsed since his failure to do so."

Learned counsel submitted that from the above, it would be quite clear that the Officers of the Co-operative Societies are exempted from the application of the above disqualification and it is undisputed that the National Industrial Co-operative Finance Corporation Limited is a Co-operative Society registered under the Co-operative Societies Act, 1925. Learned counsel further submitted that since the ground on which the election of the answering respondent was questioned was realized not to be available, the amendment application under section 62(3) of the Representation of Peoples Act, 1976 was filed, to say, as contended, that the respondent No. 1 was disqualified under Article 10(2) sub-clause (b)(4) which lays down that "person shall be disqualified from being elected or chosen as, and from being a member of Parliament, if he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service." Learned counsel contended that this provision proceeds on the basis that a person is in the service of a body which is controlled by the Government" and that the answering respondent belonged to such a body i.e. National Industrial Co-operative Finance Corporation Limited, which is controlled by the Government. This fact was not stated in the election petition that the Corporation to which the answering respondent belonged was "controlled by the Government". This cannot be urged or sought to be urged by amendment of the election petition because section 62(3) under which the application has been filed, provides that "the Tribunal may, at any time, upon such terms and on payment of such fee as it may direct, allow a petition to be amended in such manner as may, in its opinion, be necessary for ensuring a fair and effective trial and for determining the real questions at issue, so however that no new ground of challenge to the election is permitted to be raised." Learned counsel for the contesting respondent contended that no new ground can be urged nor raised by amendment of the election petition because that is not permissible under the aforequoted provision.

6. On merits, the learned counsel for the respondent No.l submitted that the Articles of Association, to which reference has been made by the learned counsel for the petitioner to show that the Corporation was a body controlled by the Government, is not quite correct as such like provisions are always in the Bye-Laws of Co-operative Societies and because of such provisions the Co-operative Societies cannot be said to

(Abdul Shakoorul Salam, J)

be "controlled by the Government." Learned counsel submitted that many Institutions, which are undeniably independent, are subject to various Authorities-executive or legislative in financial or administrative matters in their sphere of activities but these Institutions, by no means, lose their independence, nor are these "controlled by the Government".

7. After hearing the learned counsel for the parties at length there are two points which require determination. Firstly, as to whether the amendment sought to be made with reference at Article 10 (2) (b) (4) of the President's Order No. 5 of 1977, for disqualifying the respondent No.l can be allowed as in the election petition originally filed, the disqualification was stated to be by virtue' of section 99 of the Representation of Peoples Act, 1976. Since the said section allowed exemption from disqualification of Officer of the Co-operative Societies, the amendment sought is with reference to Article 10 (2)(b)(4) of the aforesaid Order, which provides disqualification of a person who has been in the service of Pakistan or on any statutory body or anybody which is owned or controlled by the Government. For this argument to succeed, the petitioner had to say that the respondent No.l was an Officer of a body "controlled by the Government." Neither any assertion was made in the petition that the respondent No.l belonged to the body "controlled by the Government" nor any evidence has been led in that behalf. The fact of the body being "controlled by the Government" was a fact and a ground of disqualification which had to be stated at the time of filing of the election petition. Section 62 (3) of the Representation of Peoples Act, 1976, relied upon for permission of amendment expressly debars allowing of new ground of challenge to the election. The contention of the learned counsel for the petitioner that the amendment sought is not a new ground to challenge the election of the respondent No.l on account of his disqualification but is only a reference to a different legal provision that the one mentioned in the , petition, is specious but the facts to be stated for disqualification as provided under section 99 of the Representation of Peoples Act, 1976, and under Article 10 (2) (b) (4) of the President's Order No. 5 of 1977, are different and what may have not have constituted a disqualification under the aforesaid Act, 1976, may not be the same which will constitute disqualification under Article 10 (2) (b) (4) of the President's Order No.5 of 1977. There is no doubt that the disqualification urged now that the respondent No.l being an Officer of a body "controlled by the Government" is a new ground which was not there under section 99 of the Representation of Peoples Act, 1976, upon which petitioner had relied in the election petition. The second point which requires determination is as to whether the National Industrial Co-operative Finance Corporation Limited, of which the respondent No. 1 has been the Officer, is a body which is "controlled by the Government." The various Articles of Association of the aforesaid Corporation referred to by the learned counsel for the petitioner and quoted above would show that the Corporation may be subject to various approvals, sanctions, directions and supersession of its resolutions and Orders at the hands of the Registrar and the latter or the Government may be the appellate or revisional authority in various matters, but no means these would make the Corporation a body "controlled by the Government." The Corporation is an independent entry recognized by law. The fact that it is subject to various items, as enumerated above, would not take away its independence altogether. Many Institutions are subject to other authorities, Government or Legislative in matters of Finance, Administration, Scope of its powers etc. etc., but within their sphere of activity, they are independent and cannot be said to be under the control of other authorities, administrative or legislative. The provision relied upon by the learned counsel for the petitioner being restrictive in nature and depriving people of seeking of being lB elected to representative bodies by the citizens of the country, has obviously to be construed strictly. It provides that a person shall be disqualified from being elected" if he has been in the service of Pakistan or of any statutory body or anybody which is owned or controlled by the Government or in which the Government has a controlled share or interest". The purpose obviously is to disqualify persons in the service of the Government statutory body or anybody owned or controlled by the Government or in which the Government has a controlling share or interest, lest they may influence the election to the representative bodies at the Provincial or National level. The idea is to man these assemblies, of people who are not part of or subject to the influence of the executive Government of the day. They are independent people. They constitute the second pillar of the State. However, an Officer serving a Co-operative Society or for that matter a company, or, a Charitable Institution, whose activities in some matters are amenable to the supervision of the executive Government, is by no means to be taken as having lost his independence and because of his service to the institution, to be disqualified on the ground that the institution is in some matters "controlled by the Government", though it is an independent legal entity having its own sphere of activities free from all interference while acting within the bounds of law. The restrictive provision disqualifying Officers envisages that they are Officers of a 'body' controlled by the Government. The body as a whole in its normal functions not on peraphere or limb be "controlled by the Government" and the control has to be over all the usual activities of the body and not only over certain specified matters. The control has to be over the body and directly all over. Not remote control. Otherwise which person or property is not "controlled by the Government" ultimately. An unwise decision of the Government within its own sphere of declaration of war can destroy people, property and country. But for that reason, it can be said people individually, or, collectively in the form of body are "controlled by the Government". Essence has to be seen, not the shadow, however, deep that may be. The content of the provision and the purpose is to disqualify people who are Officers of a body which in its entirety and as a whole in its usual and normal activities is directly and totally controlled by the Government. On these principles, the respondent No. 1, who was a Chief Manager of the National Industrial Co-operative Finance Corporation Limited at the relevant time would not be hit by the aforementioned provision relied upon by the learned counsel for the petitioner.

8. In view of what has been stated above, there is no force in this petition and the same is, accordingly, dismissed. But, as the question involved was one of law, the parties are left to bear their own costs.

M.Y.H. Election petition dismissed.

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