P L D 1960 Dacca 541 (PLP)

(5) that the memo dated 7‑7‑47 alleged to have been issued by the office of the Registrar, Joint Stock Companies, Bengal informing the Company that intimation of the change of the registered office had been received by them, has not been filed in this case and hence no reliance should be placed on the letter of the Registrar, West Bengal dated 27‑12‑48 which is based on the alleged office copy of the said memo. The learned Advocate‑General appearing for the Government and Mr. A. S. Choudhury appearing for the Registrar have supported the contentions of Mr. Asrarul Hossain. Mr. Suhrawardy, the learned counsel for the Company, has contended that the registered office of the company had been shifted to Calcutta before Partition and by mistake the Managing Agents described 4, Simpson Road as the registered office in the notice dated 30‑11‑47 calling the 16th Annual General Meeting. He has relied on the following facts and circumstances to show that the registered office had been shifted to Calcutta before Partition: (1) that pursuant to the resolution of the Board of Directors dated 23‑6‑47 the Managing Agents informed the Registrar, Joint Stock Companies, Bengal on 30‑6‑47 that the registered office had been shifted to 8, Clive Street, Calcutta. As they did not apply in prescribed form the Registrar asked them to do so with requisite fees (2) that on 14‑6‑48 the Company filed requisite documents under section 277 (l) of the Act with the Registrar, Joint Stock Companies, East Bengal, and the same were accepted. (3) that on the 20th December 1948 the Company wrote to the Registrar, West Bengal confirming the change of the registered office and the Registrar on 27‑12‑48 replied by saying that the said intimation had been received "as is shown by the Memo dated 7‑7‑47 signed by the then Superintendent of this office"; (4) that after 23‑6‑47 in all the notices and proceedings 4, Simpson Road Dacca was described as "an office at Dacca" and not as "a registered office"; (5) that since partition they were filing their Returns with the Registrar, West Bengal ; and (6) that the records of the company were still lying with the Registrar, West Bengal. Mr. Suhrawardy has therefore contended that, in accordance with the provisions of section 2 (a) (1) of the Companies Act, this company, even though incorporated and registered in Dacca, was an Indian Company because its registered office had been shifted to Calcutta before Partition. The contentions set forth above show, that there is consider able dispute between the parties as to the time when the registered office was shifted to Calcutta. The petitioners' case is that it was not shifted before Partition whereas the contention of the Company is otherwise. This is a dispute which requires investi gation of facts and recording of evidence and therefore, it cannot be decided on the basis of the affidavits filed in these Writ Petitions. It is well settled that Writ Proceedings being in the nature of summary proceedings controversial, questions of fact should not be decided on the affidavits. It will however be open for the parties to agitate this question in an appropriate proceeding in a Court of Law. The next question is: Was the Registrar entitled to register this company as a foreign company after removing its name from the register of indigenous companies ? A reference to the Companies Act shows` that there are various statutory obligations cast upon the companies by the Act to file various documents and registers with the Registrar of the Joint Stock Companies. There is however no specific provision authorising the Registrar to change the domicile of a company. There cannot be such a provision because the domicile of the company clings to it provision its existence. The Registrar, in‑paragraph, 3 (d) of his affidavit, has stated :‑

"I received the original documents of the Chittaranjan Cotton Mills Ltd, at the time of the partition. I also received ledgers of the companies having their registered office now falling within the territory now in Pakistan from my counterpart in West Bengal and consequently the said company has its domi cile in East Pakistan after the Independence. The original ledgers were not parted with by the Registrar, Joint Stock Companies, West Bengal, Calcutta. Copies were made out by his staff and handed over to me personally in January 1948. In these copies of ledgers the name of the Chittaranjan Cotton Mills Ltd. have found entry as an indigenous company in East Pakistan." The copy of the register received by the Registrar of East Bengal from the Registrar of West Bengal can be regarded as a public document in view of the following provisions of the Law of Evidence Amendment Act of 1956 (East Pakistan Act XVIII of 1956) `'(4) Notwithstanding anything contained in the Evidence Act, 1872, copies of common records of the divided districts of Bengal and Assam in the custody of a public officer, the originals whereof are either in West Bengal or Assam, shall be deemed to be public document within the meaning of clause (1) of section 74 of the Evidence Act, 1872 and other provisions of the said Act shall apply accordingly," In the said copy this company was shown as an indigenous company. The Registrar has, therefore, rightly admitted that legally he was not justified in registering this company as a foreign company. He has further submitted that he removed the name of this company from the category of the indigenous companies under the order of the Secretary of the Department of Commerce, Labour and Industries. There is however no provision in the Companies Act which authorises the Registrar to transfer the name of a company from the category of indigenous companies to that of foreign companies. If the registered office had been shifted to Calcutta before Partition, the company should have applied to Court for necessary directions for correction of the register. We are really surprised how a Minister‑in‑charge of Commerce, Labour and Industries or his officer could pass an order for registration of this company as a foreign company particularly when the name of the company appeared in the register as an indigenous company. As the said Minister is not a party to this proceeding, we are not entitled to investigate as to the circumstances under which he passed this direction. The fact however remains that he was not competent to make this order. We may point out that neither the Registrar nor the Government has any power to change the nationality of any company. Whatever be its domicile after partition, it would cling to the company throughout its existence. Mr. Suhrawardy' has also found it difficult to support this action of the Registrar. All that he has contended is that cancellation of the order of the Registrar will put the company to great inconvenience. Now the question is: Whether we should interfere with this order of the Registrar changing the nationality of this company ? It would be a great mistake to suppose that the High Court has no jurisdiction over the Registrar in such cases as those now under consideration. The duty of the Registrar is to perform his duty and if he fails to do so he becomes immediately amenable to the jurisdiction of this Court. In the case of Rex v. Registrar of Companies reported in ((1912) 3 R B 23, 34), Avory, J. observed: "I think that the moment it is admitted that the registrar must exercise some discretion in the registration of a company, the name of which is suggested to be either identical with that of another company already registered or so nearly resembling it as to be calculated to deceive, then in order to displace the decision of the Registrar and justify this Court in interfering by mandamus it would be necessary for the applicants to show one or more of three things : either that the registrar had not in fact exercised any discretion in the particular, case, or that he had exercised it upon some wrong principle of law, or that he had been influenced by extraneous considerations which he ought not to have taken into account. I think that one of these three things at least must be made out to justify this Court in interfering by mandamus." Similarly, in Bowman v. Secular Society, Limited reported in (1917 A C 406), the Law Lords held that a Registrar fulflls a quasi‑judicial function. In this case the Registrar admits in his affidavit that in registering this company he had been influenced by extraneous considerations, namely, order of the Minister. In other words, he had considered circumstances which ought not to have influenced him. It is thus clear that the Registrar's order being illegal can be interfered with by mandamus. Mr. Suhrawardy has challenged the petitioners' right to apply for a Writ. Mr. Suhrawardy has contended that this extra ordinary power should be exercised only when it is necessary for the protection of a legal right and should not be invoked by any person who is unable to justify before the Court that any such right of his has been violated or infringed. This proposition to an extent is undoubtedly correct. As regards the petitioner's right to obtain a Writ, the following rules have been stated in Halsbury's Laws of England, 2nd Edition, Vol. IX, at page 770: "The legal right to enforce the performance of a duty must be in the applicant himself. The Court will, therefore, only enforce the performance of statutory duties by public bodies on the application of a person who can show that he has himself a legal right to insist on such performance." The following observations of the Supreme Court in the case of The State of Pakistan v. Mehrajuddin reported in (P L D 1959 S C (Pak.) 151, 159), is also very pertinent: "An applicant for a mandamus must show that he has a legal right to the performance of a legal duty by the party against whom a mandamus is sought. The prosecutor must be clothed with a clear legal and equitable right to something which is properly the subject of a writ, as a legal right by virtue of an Act of Parliament. The order is only granted to compel the performance of a duty of a public nature." These are applications by several shareholders. It cannot be disputed that by the action of the Registrar the individual rights of the shareholders are invaded. In Palmer's Company Law (20th Edition) at page 493, the right of an individual member has been thus stated: "The right to maintain (himself) in full membership with all the rights and privileges appertaining to that status." This right implies that the individual shareholder can insist on the strict observance of the legal rules, statutory provisions, and provisions in the memorandum and articles which cannot be waived by a bare majority of shareholders." The shareholder has therefore a right to demand that the Registrar, while registering a company as a foreign company, must act in accordance with law. As he has acted contrary to law, a share holder can demand that a mandamus should go to correct that', error. This also finds support from the following observations of Jenkins, L. J in Edwards v. Halliwell (2 A E R 1064, 1067). "The personal and individual rights of membership of each of them have been invaded by a purported, but invalid alteration . . . . . In those circumstances, it seems to me the rule in Foss v. Harbottle [(1843) 2 Haro 461] has no application at all, for the individual members who are suing sue . . in their own right to protect from invasion their own individual rights as members." It can, therefore, be said that a shareholder has an actual and personal interest in the performance by the Registrar of a public duty, namely, to maintain the register in accordance with law. Now, when the Registrar fails to exercises jurisdiction or exercises his jurisdiction or acts in a manner which may be said to be on the face of it illegal or grossly improper, a Writ of mandamus will' lie for issue of a proper 'direction to the Registrar or even to correct his error. In this case it will be difficult to say that by this act of the Registrar the rights of shareholders have not been invaded or affected. We may however observe that Sakhawat Hossain, petitioner of Writ Petition No: 8, the alleged purchaser of certain shares, has not so far been registered as a shareholder in the books of the company and hence he has no locus standi to file this petition challenging the act of the Registrar. We however hold that the other two applications are maintainable. Mr. Suhrawardy has also contended that these applications are really for declaratory reliefs and as such could not be granted in a Writ Petition. These petitions are for an order directing the Registrar to correct the entries made by him illegally in the register. Hence we are unable to accept the contention of Mr. Suhrawardy. Finally, it was urged by Mr. Suhrawardy that these belated petitions should be dismissed. The Registrar made the impugned entries in 1952 and the applications were filed in 1960. No doubt, laches and negligence are always discountenanced. It is true that a Writ will be generally refused in cases where the petitioner fails to show that he has proceeded expeditiously after the discovery that it was necessary to resort to it. We have therefore to see if the petitioner has slept over his rights or is guilty of negligence. The petitioners' story is that in November 1959 they learnt that Mr. D. N. Bose, the Managing Director of the Company, had been convicted for smuggling Pakistan currency out of Pakistan. This led them to enquire if the company was really a foreign company. They then discovered that in 1952 under official pressure the Registrar had registered this company as a foreign company. There is therefore much substance in the explanation offered by the petitioners. In these circumstances we are unable to hold that the delay is fatal to the grant of the Writs prayed for. We are, therefore, of opinion that a mandamus shall go directing the Registrar to remove the name of Chittaranjan Cotton Mills Ltd. from the register of foreign companies and to restore it in the register 'of indigenous companies. We however make it clear that we are not expressing any opinion on the question as to whether the registered office of the company had been shifted to Calcutta before partition or not. The parties will be at liberty to agitate this question in an appropriate, proceeding if they are so advised. In the result, we allow the Writ Petitions 6 and 7 of 1960 and make the Rules absolute. We however dismiss the Writ Petition No. 8 of 1960 and discharge the Rule, for the reasons already stated. Having regard to the facts and circumstances of the case, we make no order as to the costs of these applications. The company has filed applications praying that the issue of Writs may be stayed at least for four weeks to enable it to file an application for leave to appeal to the Supreme Court. We grant the stay prayed for. The certified copy of the judgment may be supplied to them as expeditiously as possible. ASIR, J.‑I agree. A. H. Order accordingly.