2019 C L C 316
[Balochistan]
Before Mrs. Syeda Tahira Safdar CJ and Muhammad Ejaz Swati, J
ALL PAKISTAN LAND ROUTE CUSTOM AGENT ASSOCIATION through
Secretary General and others ----Petitioners
Versus
The FEDERATION OF PAKISTAN through Secretary Ministry of Commerce and 2 others ----Respondents
C.Ps. Nos. 1023 and 1062 of 2018, decided on 28th September, 2018.
Constitution of Pakistan ---
----Arts. 25, 30(2) & 199---Constitutional jurisdiction of High Court ---Judicial restraint in
policy matters ---Reasonable classification and positive discrimination---Presumption in
favour of Constitutionality of statutory enactments ---Scope ---High Court under Art. 199 of
the Constitution can exercise judicial restraint and such restraint was to be legally exercised
in policy matters ---Under Art. 30(2) of the Constitution, mandate of any law could not be
called into question on Principle(s) of Policy ---Fundamental right under Art. 25 of the
Constitution was subject to reasonable restrictions imposed by law and person s situated
differently must be treated differently and those similarly placed were to be treated similarly -
--State was not prohibited to treat its citizens on basis of reasonable classification ---
Presumption existed in favour of Constitutionality of an ena ctment and burden was upon the
person who challenged such enactment to show that there had been a clear transgression of Constitutional principle(s).
Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of
Education (Ministry of Education), Civil Secretariat, Islamabad and others, 2001 SCMR 1161 rel.
Tariq Ali Tahir for Petitioners (in C.Ps. Nos. 1023 and 1062 of 2018).
Date of hearing: 5th September, 2018.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ----Since common question of law and fa cts are
involved in both the petitions, therefore, same are being disposed of through this common order.
2. The Majlis -e-Shoora (Parliament) passed an Act -II of Trade Organization Act 2013
(the Act of 2013) and in view of section 31 of the Act Trade Rule 2013 (the Rule 2013) was
framed.
Subsection (7) of section 10 of the Act of 2013 and Rule 15(a) of the Rule, 2013 (the
impugned enactment) provides eligibility of the members to vote at the Election of a Trade Organization subject to following conditions:
"(7) New members of the chambers and associations shall be eligible to vote on completion of two years of their enrolment and payment of all dues:
Provided that old members of the chambers and associations at the time of renewal of membership which has be en discontinued due to non- payment of subscription dues
shall be eligible to vote on completion of one year of their re -enrolment and payment
of all dues."
Rule 15(a) of the Rule 2013:
(a) the member has completed two years of valid membership of the trad e organization as
on the date of announcement of election schedule by the executive committee of the trade organization:
Provided that old members shall be eligible to vote on completion of one year of their enrolment and payment of all dues; and... ... ......................
3. The petitioner (in C.P. No. 1023 of 2018) obtained trade licence and certificate of
registration as an association to represent Land Route Custom on February 6th of 2017, while the petitioner (in C.P. No. 1062 of 2018) obtained suc h licence and certificate of registration
as a trade organization to represent Commerce Industry and Service of any combination thereof in Chaghi on February 15th of 2017. The petitioners in view of the impugned enactment are not eligible to cast their res pective vote in the election for the Federation of
Pakistan Chamber of Commerce to be held during the period of October to December of the year in case of all other trade organizations during the period of July to September of the year. It is also necessar y to mention here that elections of the Federation of Chamber of
Commerce are held on rotation basis giving opportunity to every trade organization and Chamber of Commerce exist in Pakistan on Provincial basis on rotation and in this respect there are two zones i.e. South Zone and North Zone. The South Zone consists upon Province
of Punjab, Khyber Pakhtunkhwa and Federation, whereas North Zone consists of Balochistan and Province of Sindh. As per rotation, it is for Balochistan to represent the elections of the
Federation of Chamber of Commerce for the post of president. As per impugned enactment, the petitioners being new members are not eligible to cast their vote unless completed two years as members. The petitioners challenged the impugned enactment being inconsistent to the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution).
4. Learned counsel for the petitioners contended that the petitioners are holder of licence
of Trade Organization and being registered with Federation of Pakistan Chamber of Commerce and Industry (FPCCI) are entitled to cast their respective votes in the forthcoming elections of Chamber of Commerce and contended that the impugned enactment is ultra vires and discriminatory in nature, therefore, same is liable to be declared null and void and
further to direct the respondent to incorporate the name of the petitioner in the voter list and
they be allowed to cast their respective votes; that Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 (the Const itution) has been violated on the ground that all the
members of the Organization/Federation are equal, but the petitioner (new members) have been denied the right to undemocratic purpose; that soon after obtaining the licence and
certificate, the petition er being a member of the Federation of Chamber of Commerce and
Industry are eligible to cast their vote and the condition of two years after obtaining licence
and registration for casting vote is ultra vires; that the old members of the Chamber and Associa tion as per subsection (7) of section 10 of the Act, 2013 are eligible to cast their votes
on completion of one year of their re -enrolment and payment of their dues, but casting of
votes for new members (petitioners) has been stipulated for two years; that the impugned
enactment is discriminatory in nature, therefore, same is liable to be struck down.
5. We have heard the learned counsel for the petitioners and perused the record. It is
well settled principle that in exercise of its discretionary jurisdicti on under Article 199 of the
Constitution, the High Court should have exercised judicial restraint and such restraint should legally exercise in policy matters. The question that this Court has justified in striking down the impugned enactment on the touchs tone that the petitioners being members of the
Federation of Chamber of Commerce (less than two years) are unable to cast their votes, due to bar contained in the impugned enactment. The purpose of the Act, 2013 and the Rules 2013 is to ensure the appropri ate representation of all genders and business sectors at all
levels in all trade organizations to play significant role in developing policy framework for proving business environment and economic growth for Trade Organizations and for matters connected t herewith and incidental thereto. The purpose of the Act, 2013 including the
impugned enactment requires the organizations to function faithfully and observe the law
therein. It is the mandate of Article 30(2) of the Constitution that validity of law cannot be
called into question on the principle of policy. The petitioners challenged the impugned enactment being inconsistent of Article 25 of the Constitution and contended that all the members of Federation of Chamber of Commerce and Industry are equal, ther efore, the bar
imposed under the impugned enactment is violative of fundamental right guaranteed by the Constitution, as such, same are discriminatory as soon after getting valid membership with Federation of Pakistan and Chamber of Commerce and Industry, the petitioners became eligible to cast their respective votes in the forthcoming elections, therefore, the impugned enactment is ultra vires to the provision of the Constitution. The contention so raised by the learned counsel for the petitioners is not t enable. The fundamental rights envisaged under
Article 25 of the Constitution is subject to reasonable restriction imposed by law. It is settled that persons situated differently must be treated differently and similarly placed are to be treated similarly. State, however, is not prohibited to treat its citizen on the basis of
reasonable classification. In the case titled Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others, 2001 SCMR 1161, the Hon'ble Supreme Court of Pakistan laid down
principle with regard to equal protection of law and reasonable classification, which reads as under:
"Adverting to the question of equal protection of law and equal treatm ent before law I
am reminded of the following illustrious principles laid down by this Court in I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041: -
"(i) that equal protection of law does not envisage that every citizen is to be treated alike
in all ci rcumstances, but it contemplates that persons similarly situated or similarly
placed are to be treated alike;
(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for different sexes, persons in different age
groups age groups, persons having different financial standings and persons accused of heinous crimes;
(iv) that no standard of universal application to test responsibilities of a classi fication can
be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
(v) that a law applying to one person or one class of persons may be Constitutionally valid if t here is sufficient basis or reason for it, but a classification which is arbitrary
and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
(vi) that equal protection of law means that all p ersons equally placed be treated alike
both in privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable, it should be based: -
(a) on an intelligible differentia which distinguishes persons or things that are gr ouped
together from those who have been left out;
(b) that the differentia must have rational nexus to the objection sought to be achieved by
such classification."
6. In the instant case, the petitioners being new members have not completed years of
valid membership of the Trade Organization on the date of intended announcement of election to be scheduled by the Executive Committee of the Trade Organization, as such would not be eligible to vote at the Election, whereas the old members shall be eligib le to
vote on completion of one year of their enrolment and payment of all dues.
7. In the above two categories, fulfilment of condition of membership as required under
Rule 11 of Rule 2013 and renewal thereof is involved. There is reasonable distinction between membership and renewal thereof, both are not alike nor similarly situated or
similarly placed, thus no question of discrimination arises, as the impugned enactment is founded on reasonable basis. There is always presumption in favour of constitutionality of an enactment and the burden is upon him, who challenged it to show that there has been clear transgression of the constitutional principle. The learned counsel for the petitioners could not point out that the impugned enactment takes away or abridge any of the fundamental right enumerated under Article 25 of the Constitution.
In view of the above, Constitutional Petitions Nos. 1023 and 1062 of 2018 are
dismissed in limine.
KMZ/78/Bal
Petitions dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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