1980 PLP 1780 (CLC)

S. 9(2)-Board constituted under Act--A body corporate and con tinues to be so notwithstanding some of its n embers ltuving ceased to be members or been satisfied by other members. adubarak Husain Siddiqui for Petitioners. Shah Jamil Alam, Deputy Attorney-General for Respondents. Date of hearing : 5th December 1979. FAKHRUDDIN G. EBRAHIM, J.--The petitioner No. 1 is a Homoeopath who was in the year 1,968 elected as Member of the Board of Homoeopathic system of Medicine under the Unani, Ayurvedic Homoeopatbic Practitioners Act, 1965 which Board consisted of 19 members, more particularly, three members of whom two were Homoeopaths nominated by the Central Government six practitioners of Homoeopathy consisting of three from each of the then existing two provinces of Pakistan, nominated by the Central Government after consulting the Provincial Governments concerned; eight members consisting of four from each of the then two provinces of Pakistan to be elected by the registered practitioners of Homoeopathy in the Province concerned from amongst themselves, and two members consisting of one from each of the then two provinces to be elected by the teachers of all the recognized teaching institutions of Homoeopathy in the Province concerned from amongst themselves. The petitioner No. 1 was one of eight members- elected by the registered practitioners of Homocopathy in the then province of West Pakistan. The petitioner No. 2 is a registered Homoeopath. The said Act was amended on 28-5-1978 by Ordinance XXII of 1978 and so far as it relevant for our present par poses the composition of the Board of Homoeopathic system was altered by this Ordinance so that the Board consisted of four number s, being registered Homoeopathy to be nominated by the Federal Government after consulting the Provincial Government concerned, of w horn one shall be from each Province; 11 members to be elected from amongst themselves by- registered and listed Homoeopaths, of whom 5 shall be frqni the Punjab, 3 from Sind, 2 from N.-W. F. P. and one from Baluchistan two members, to tie elected from amongst themselves by the teachers of recognized institutions of Homoeo. pathy, and four members to be nominated by the Federal Government, of who one shall be a scientist. Thus. under the Ordinance, the Board 'consisted of 21 members of which 8 were nominated members. 2. Notwithstanding the aforesaid amendment no steps were taken for constituting the Board and the Board of elected in 1968 continued to function until 8th February 1970, when the Government notified 8 nominated members to the Board as contemplated by the aforesaid Ordinance. The notification further declared that the earlier elected members of the Board will cease to be the Members of the Board. 3. Mr. Mubarak Hussain, the learned counsel for the petitioners has questioned the aforesaid decision of the Government dated 8th February 1979 on the ground that the Board contemplated by -the Act as well as the Ordinance is a body corporate and under section 9 of the Act the members of the Board, both nominated or elected, are to hold office for such term as may be described Arles arid Wader its subsection (2) every member of the Board shall subject to the other provisions of this Act and the rules to be made thereunder hold office until the election or nomination, as the case may be, of his successor at the end of the prescribed term Under the rules the prescribed term of the Board, that came into existence in the year 1968 was five years. The argument of the learned counsel, therefore, was that notwithstanding the expiry of this term the petitioner No. 1 who was elected member of the Board continued to be its member and, will so continue until fresh election are held. Admittedly, no election ha'/s been held since 1973 when the term of the previous Board expired but is obvious to us that under subsection (2) of section 9 the petitioner No.. l in the absence afresh election, continued to remain the member of the Board. The petitioners, however, are not satisfied with this result for their contention is that even the members nominated by the Government in 1968 notwithstanding the fresh nomination by the Government on 8th February 1979, continue to remain the members of the Board. This result was sought to be achieved by reason of the fact that the Board is a body corporate having perpetual succession and that section 42 of the Act contemplates super cession of the Board and not its members. Reference to section 42 is irrelevant inasmuch as it contemplates as altogether different situation in which the Central Government deems fit to supersede a Board. As to the argument that the Board is a body corporate, the Board will continue to be a body corporate notwithstanding the fact that some or its members may cease to be the members or substituted by other members. Furthermore, subsection (2) of section 9 quite clearly distinguishes the two sets of members of the Board, the elected and the nominated, and the former will continue to be members until election and the latter until the fresh nomination on the expiry of the Board's term. 4. The result, therefore, is that this petition partly succeeds to the extent that the petitioner No. 1 who was elected to the said Board in the year 1968 continues to be the elected member of that Board under section 9(2) of the Act notwithstanding the expiry of the term of that Board, until fresh elections and in so far as the nominated members are concerned they have been replaced by fresh nomination by the Central Government on 8th February 1979. 5. The petition is disposed of in terms aforesaid but in the circumstances there will be no order as to costs. M. Y. M. Petition disposed of.