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Complaint No.Nil of 1988, decided on 15th November, 1988.

S.99(1 A)(e) Disqualification of candidate to contest election Candidate tiling nomination papers was employee of Karachi Electric Supply Company, a body wherein Federal Government had controlling shares and was controlled by Federal Government Candidate, held, was disqualified for contesting election and his nomination papers would merit rejection Order of Returning Officer accepting nomination papers of the candidate was set aside and his name was struck off from list of contesting candidates.

Fatah Khan v. Sharaaf Khan PLD 1984 Lah. 106 ref.

Syed Safdar Rizvi for Respondent.

Date of hearing: 13th November, 1988.

Ministry of Water and Power Government of Pakistan has made a reference to Chief Election Commissioner that Mr. S. Safdar Rizvi is a candidate from Constituency No.N.A. 191, Karachi who is an employee of K.E.S.C. which is a body in which the Federal Government has controlling shares and is controlled by the Federal Government thus disqualified for contesting the election of the National Assembly or Provincial Assembly.

2. This complaint was forwarded to me by Chief Election Commissioner as a Member of Election Commission. The notice was issued to Mr. S. Safdar Rizvi who appeared on 13 11 1988 and argued at length, the matter was adjourned to 14 11 1988 and notice was issued to Deputy Attorney General.

The facts are that Mr. S. Safdar Rizvi filed three nomination papers with the Returning Officer for contesting National Assembly Election from Constituency No.N.A. 191, Karachi on 15 10 7988. The Returning Officer accepted his nomination papers on 17 10 1988 and his name is included in the list of contesting candidates.

I have heard Mr. S. Safdar Rizvi and his counsel Mr. Kazi Khalid Ali.

3. It is argued by Mr. Rizvi that K.E.S.C. is a limited company and is not a Government Institution, therefore his case is not covered under the disqualification clause. It is submitted that in the identical case a Member of Election Commission (Mr. Justice Syed Allay Madad Shah) decided that Haji Zaheerullah Afridi who was employee of the K.E.S.C. could contest the election from P.S.76 Karachi (West) as Government holds only 0.04 shares in the K.E.S.C. In support of this contention Mr. Rizvi produced a certificate duly signed by the Secretary, Karachi Electric Supply Corporation Limited in which it is mentioned that Government of Pakistan holds 0.035% shares in capital of K.E.S.C. as on 15 10 1988. It is argued by Mr. Rizvi that he is qualified to contest the elections.

The notice was issued to the learned Deputy Attorney General and he appeared. It is contended by the learned Deputy Attorney General that Government holds 93.77%, shares in the K.E.S.C. and that out of 13 Directors of K.E.S.C. 9 (nine) are nominated by the Government therefore, the K.E.S.C. is controlled by the Government and Government has a controlling shares and interest. It is, therefore, clear that employees of K.E.S.C. arc not qualified to elections. It is argued that Mr. Rizvi is disqualified and the Commission has got the power to review and pass any order according to law.

4. There are two organizations involved in this matter, one K.E.S.C. and other Pakistan Electric Agencies Private Limited. It is an admitted position that Pakistan Electric Agencies is controlled by the Government and arc Managing Agents of the K.E.S.C. in the terms of the agreement arrived at on 1st April, 1981 for 10 years. Mr. Safdar Rizvi the Chief Engineer (Administration) of Karachi Electric Corporation filed three nomination papers as stated above. His three nomination papers were accepted by the Returning Officer with the following order:

"The form is in order and is accepted in view of the decision of Mr. Justice Ally Madad Shah, Member Election Commission in Appeal No. P.S. M/2/1985 Haji Zaheerullah Afridi."

The photostat copy of the order of the learned Member was also produced before the Returning Officer which is on the record.

The Managing Director of the K.E.S.C. permitted Mr. Rizvi to contest National Assembly Election. This permission has subsequently been withdrawn by K.E.S.C. vide letter, dated 12 11 1988 and Mr. Safdar Rizvi was informed.

5. It is relevant to reproduce the provisions with regard to the disqualification. According to section 99 (1 A)(e) of the Representation of the People Act 1976, "a person shall be disqualified from being elected as, and from being Member of Assembly if he is in service of any statutory body which is owned or controlled by the Government or in which, the Government has a controlling share or interest". The identical provision also appears in Article 63(1)(e) of the Constitution of Islamic Republic of Pakistan. A simple point before me for consideration is that whether the respondent is hit by the provisions of disqualification as mentioned above. It is an admitted position that K.E.S.C. is not statutory body nor it is owned by the Government but it is to be seen whether K.E.S.C. Is controlled by the 6overnmenl or the Government hits controlling shares or interest, under clause 5 of the agreement, dated 1 4 1981 between K.E.S.C. and the Pakistan Electric Agencies, the Pakistan Electric Agencies shall have general conduct and management of the business and affairs I of the K.E.S.C., etc. subject to the control of the Directors. The relevant para. 5 is reproduced as under:

"5. Subject to the control of the Directors, the Agency Company shall have the general conduct and management of the business and affairs of the Corporation and in particular shall have power on behalf of the Corporation to enter into arrangements with any Government or Authorities Municipal, Local or otherwise and to obtain from any such Government or Authority all rights, concessions, licences and privileges and to institute, conduct, defend, compromise, refer to arbitration and abandon legal and other proceedings and claims by .and against the Corporation and the Directors and Officers of the Corporation and otherwise concerning the affairs of the Corporation and to purchase, provide, maintain and keep up such immovable and movable property, machinery, implements or stock whether stationary or otherwise and all other things necessary for the Corporation and from time to time to sell or dispose of the, same or any part thereof and to execute, become parties to and where necessary to cause to be registered all deeds agreements, contracts, receipts and other documents and to insure the property of the Corporation for such purpose and to such extent and in such manner as the Agency Company may think proper and to give effectual receipts and discharge on behalf of and against the Corporation for any moneys, funds, goods or property lent to or payable or belonging to the Corporation and to draw, accept, endorse, negotiate and sell bills of exchange and hundis and to make, endorse and negotiate promissory notes all with or without security and to draw cheques against the moneys of the Corporation and to purchase and sell and for that purpose to sign, endorse and transfer Government Promissory Notes or other securities issued by the Government of Pakistan standing in the name of the Corporation or any bonds of any Public Authority and to collect and give receipts for the dividends or interest from time to time due or to become due on any such securities and to appoint and employ in or for the purposes of the transaction and management of the affairs and business of the Corporation or otherwise for the purpose thereof and from time to time to remove or suspend such solicitors, bankers, managers, secretaries, experts, engineers, electricians, clerks, brokers and any other person as they shall think proper with such powers and duties and upon such terms as to duration of office remuneration or otherwise as the Agency shall think fit and to delegate all or any of the powers, authorities and discretions for the time being vested in the Agency Company and also from time to time to provide by the appointment of an Attorney, or attorneys, manager or managers for the management and transaction of the affairs of the Corporation in any specified locality and generally to make all such arrangements and do all such acts and things on behalf of the Corporation as may be necessary or expedient."

Under clause 9, the Pakistan Electric Agencies Limited shall have a right and is entitled to nominate one Director as representative of Pakistan Electric Agency on the K.E.S.C. and such nominee shall be ex Officio Chairman of the Board of Directors of the K.E.S.C. Presently Mr. Naqvi is Managing Director of the K.E.S.C. as well as of Pakistan Electric Agencies Ltd. There are in all 13 Directors of the K.E.S.C., out of which 9 (nine) arc nominated by the Federal Government and 3 (three) arc from the other private share holders. Under Article 77 of Memorandum and Articles of Association of the Electric Agencies Ltd., as Managing Agents of the Company shall have the right of nominating from time to time one of their representatives as a Director of the Company and such Director shall also be the Chairman of the Board of Directors. It is, therefore, clear that Director so nominated by the Pakistan Electric Agencies Ltd., becomes Ex Officio Chairman of the Board of Directors of K.E".S.C. The powers of the Directors and their duties are given under Article 64 of the Memorandum of Association of the K.E.S.C. by which the management of the business of the Company is vested in the Directors. As such the Managing Director of the K.E.S.C. m other words is nominated by the Pakistan Electric Agencies which is controlled by Government, and he is empowered to preside over the meetings of the Board of Directors is vested with other powers of both these organisations as a Chairman. The Chairman of the K.E.S.C., in these circumstances is a person who is nominated by the Federal Government. The following are the Directors of Pakistan Electric Agencies Ltd.:

These five Directors are representatives of Federal Government. The names of the Directors of KESC are as under:

The next important point which learned Deputy Attorney General has taken is that Government hold more than 93% shares in the K.E.S.C. The statement duly signed by the Secretary of K.E.S.C. with regard to the shares in the K.E.S.C. is as under:

The shareholders in the K.E.S.C. are individuals, Financial Institutions, Government of Pakistan, Investment Companies, Insurance Companies, etc. In the institutions, as mentioned in the list, either the Govt. funds are involved, National Bank of Pakistan and other banks which are controlled by the Government or in other case Government has more than controlling share. The Insurance Companies have been nationalised. From the above fact it is clear that in K.E.S.C. the controlling share and interest is that of Government.

I am of the view that K.E.S.C. is controlled by the Government, the Government has controlling share and interest as 92.960% investments are of Investments Companies, Financial Institutions, Banks and Government. The entire control is of Managing Director of K.E.S.C. Directors and M.D. are nominees of Government and majority of Directors are also from Government. The affairs of K.E.S.C. are directly as well as indirectly controlled by the Government. On this point I may refer to a case of Fatah Khan v. Sharaaf Khan reported in PLD 1984 Lah. 106. The Division Bench of Lahore High Court has dealt with this issue m detail about the disqualification of the employee of Sul Northern Gas Pipelines Limited. The findings arc that Sharaaf Khan being an employee of Sui Northern Gas Pipelines was not qualified to contest the election of Union Council, Attock in any lawful authority. Their Lordships in this case have discussed in detail about the control or interest of the Government in the abovesaid institution namely Sui Northern (Jas Pipelines Limited. In this case all aspects such as jurisdiction when objection to nomination was not raised has also been dealt with.

Now I revert to the judgment of my Lord Mr. Justice Syed Ally Madad Shah on the basis of which nomination of S. Safdar Rizvi was accepted. In case of Haji Zaheerullah Afridi it was pointed out to the learned Member of the Election Commission that according to Printed Annual Report of the K.E.S.C., the Government holds only 0.04 share. This point has persuaded my Lord to hold that in view of this position the Government has got the only interest to the extent of Managing Agents. Presently this position has been clarified by the learned Deputy Attorney General about share and control of Government on K.E.S.C. The point was not argued before learned Member of the Election Commission therefore he has rightly not considered that position which was not argued before my Lord.

Mr. Rizvi was present on 13 11 1988 alongwith his counsel and both argued and they did not raise any objection to the jurisdiction of the Commission, etc. but when he heard the arguments of learned Deputy Attorney General today about the controlling shares of the Government in the K.E.S.C. he sought time and came after two hours with preliminary objections not touching that point about interest and shares of Govt. stating therein that notice does not disclose provisions of law under which it was issued and there was no objection to the acceptance of the nomination paper from other candidates. As such Tribunal has no jurisdiction to re open issue as the matter can only be agitated after the election by way of election petition. He has stated that use of the word Government is key word in the statute and as the matter pertains to the disqualification and other agencies arc not governed by the Government. On 13 11 1988 he argued at length and his counsel also argued but no such plea was taken however it is relevant to give findings on the points raised by Mr. Rizvi, Under section 103(b) of the Representation of the People Act 1976 which reads as under:

"The Commission to ensure fair election, etc. Save as otherwise provided "the Commission may review an order passed by an officer under this Act or the rules including rejection of a ballot paper.

In this case the nomination papers were accepted by a Returning Officer under the Representation of People Act, 1976 and the rules, therefore the Commission is empowered to review that order under this provision of the law. The matter was brought to the notice of Commission and notice has issued to the respondent to appear and argue his case. According to section 4 of the same. Act the Commission may authorise its Chairman or any of its member or any officer of the Commission to exercise and perform all or any of its powers and functions under the Act. The Commission on 11th October, 1988 delegated powers under the Act excepting the powers under subsection (7) of section 7 and section 103-AA of the Act to the Members as such in exercise of the powers, I took cognizance of this matter which was referred by the Chief Election Commissioner therefore the Commission has got the jurisdiction to deal with these matters. Objections raised by respondent S. Safdar Rizvi even at the later stage a have been considered and dealt with but without substance.

For the foregoing reasons I hold that respondent S. Safdar Rizvi is not qualified and his case is hit by section 99(1-A)(e) of the Representation of People Act, 1976. He is disqualified and cannot contest the election. His nomination paper has wrongly been accepted. I, therefore, order that his name be struck off from the list of contesting candidates from Constituency No.N.A. 191, Karachi.

H.B.T./39/E

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