P L D 1989 Karachi 471 (PLP)

(i) As per petitioners on the basis (On the basis of the of the balance sheet prepared by balance sheet for the Messrs Nariman Mana and Company period ending on Rs.145 per share. 30‑9‑1971. Annexure 'A' to the petition). (ii) As per Messrs Taseer Hadi Rahman (On the basis of the Huq and Co.'s Certificate, who balance sheet for the were appointed by the New period ending 30‑9‑1971 Management Rs.65.53 per share. Annexure 'B‑1' to the Petition). (iii) As per Messrs Taseer Hadi Rahman (On the basis of the Huq and Co.'s second certificate balance sheet for the Rs.31.64 per share. period ending on 2‑1‑1972, Annexure 'B‑2' to the petition). (iv) As per respondent No. 2's letter (On the basis of the dated 9‑3‑1974 Rs.00 per share. balance sheet ending on 30‑6‑1972, Annexure 'D' to the petition). (v) As per Ministry of Production's (On the basis of the Letter dated 13‑12‑1979 Rs.8.16 balance sheet ending on per share. 30‑6‑1973, Annexure 'O' to the petition). (vi As per petitioners Rs.373.69 per (On the basis of the share. balance sheet for the year ending on 30‑6‑1973, Annexure 'T' to the petition).

4. In support of the above petition Mr. Khalid Anwar, learned counsel for the petitioners has vehemently urged as follows: (i) That either the petitioners should be paid compensation on the basis of the balance sheet prepared by the Company's Auditor Messrs Nariman Mana and Co., Chartered Accountants for the year ending on 30‑9‑1971 or Rs.373.69 on the basis of the balance sheet prepared by the petitioners for the year ending on 30‑6‑1973. (ii) That the respondents have made reverse entries in the accounts retrospectively in order to reduce the break‑up value of the shares which they could not have done under the law. On the other hand Mr. Qadir H. Sayeed, learned Deputy Attorney‑General appearing for the respondents has submitted as under: (i) That the petition suffers from laches. (ii) That the petition involves adjudication of disputed questions of facts and, therefore is not maintainable. (iii) That the grant of the relief prayed for would amount to granting of a money decree. (iv) That even otherwise under the law the petitioners are not entitled to challenge the break‑up value of Rs.8.16. on the basis of the year ending on 30‑6‑1973 as the same has been determined in accordance with law. 4‑A. At the outset, it may be stated that Mr. Khalid Anwar has not challenged the legality of the take over and, in our view, rightly so in view of the judgment of the Honourable Supreme Court in the case of Fauji Foundation and another v. Shamimur Rehman, reported in P L D 1983 Supreme Court 457.

5. Before dilating upon the contentions on merits, it may be appropriate to take up the above legal objections urged by the learned Deputy Attorney‑General. Adverting to the question of laches, it may be mentioned that the learned Deputy Attorney‑General has invited our attention to the fact that the management was taken over on 2‑1‑1972, whereas the shares were acquired on 29‑11‑1973 but the present petition was filed on 2‑6‑1981 i.e. after the expiry of more than eight years and, therefore, it has been contended by him that the petition is liable to be dismissed on that account. On the other hand Mr. Khalid Anwar has invited our attention to para 19 of the petition in which it has been averred that on 17‑12‑1979 petitioners received a letter dated 13‑12‑1979 from Mr. Asif Rahim of Ministry of Production informing them that the break‑up value of the shares has been worked out afresh on the basis of the balance‑sheet for the year ending on 30‑6‑1973, namely, Rs.8.16 per share of Rs.100 each. He has also invited our attention to pars 25 of the petition in which it has been asserted that the petitioners received the copy of the balance‑sheet on the basis of which the above break‑up value of Rs.8.16 per share was worked out through the Ministry of Production's letter dated 19‑5‑1981 and, therefore, the petition was filed within two weeks. The above factual aspect highlighted by Mr. Khalid Anwar seems to be correct and, therefore, the petition does not suffer from any laches. In our view, it is not the date of acquisition of the shares which is material but it is the date on which the petitioners were finally told that they were entitled to receive compensation on the basis of the break‑up value of shares, namely Rs.8.16. Even otherwise simpliciter laches is no ground for non‑suiting a petitioner if the equities are not against him. In this regard reference may be made to the case of Pakistan Post Office v . Settlement Commissioner and others reported in 1987 SCMR 1119, in which the honourable Supreme Court has been pleased to hold that constitutional Petition cannot be dismissed on ground of laches, without examining the dictates of justice in the claim of each party in addition to examination of law and jurisdictional points involved in the case. As regards Mr. Qadir H.Sayeed's second submission that the petition involves disputed questions of facts, it may be observed that he has pointed out that the above objection has been raised by the respondent in their counter‑affidavit and, therefore, the unreported judgment of the honourable Supreme Court in the case of the Pakistan Shipping Corporation and another v. Rustam F. Cowasjee and others (C.A.No.122 of 1982) decided on 29‑8‑1988 upholding a judgment given by a Division Bench of the Lahore High Court in the case of Pakistan Shipping Corporation and another v. Rustom F. Cowasjee and 5 others, reported in P L P 1982 Lahore 671, which is referred to hereinbelow more in detail, supports the respondents' above contention by observing that in the said case no such objection was taken in the written statement‑ In this connection, it may be pertinent to point out that the above petition was filed, as observed hereinabove, on 2‑6‑1981 whereas the respondents filed their counter affidavit on 26‑8‑1987 i.e. after the expiry of more than six years and, therefore, raising of a technical objection after the expiry of more than six years will not have much significance in the context of the facts of the above Supreme Court case. We are inclined to hold that technical objection which may non‑suit a petitioner is to be raised by a respondent at the earliest opportunity so that the petitioner may rectify the technical defect either by amending the petition or if necessary by filing some other competent proceedings after withdrawing the petition. The Court, therefore, will be reluctant to entertain a technical objection to the maintainability of the petition at a late stage. Coming to the merits of the above objection we may observe that we are not going to decide any disputed question of fact. The only point which we intend to decide is the question on what basis the petitioners should have been paid the compensation in terms of the order read with 2nd Schedule. The above objection has therefore no merits. Reverting to Mr. Qadir Sayeed's third objection that the grant of relief will amount to granting of a money decree, it may be stated that generally a constitutional petition is not suited for grant of a prayer which involves calculation or assessment of an amount. Such a prayer can be more appropriately the subject matter of a suit. However, when no calculation or assessment of the amount is involved' and the only question which requires determination is the basis on which a person is entitled to receive the compensation or any other amount in terms of the relevant law the Court can in exercise of constitutional jurisdiction direct that the petitioner should be paid on the basis provided under the relevant law without specifying the amount which is a matter of calculation.

6. This leads us to the question, whether the break‑up value of Rs.8.16 per share has been properly determined in terms of the 2nd Schedule. This involves adjudication upon the question whether the petitioners are entitled to the compensation on the basis of the balance sheet for the year ending on 30‑9‑1971 or on the basis of the balance sheet for the year ending on 30‑6‑1973. Mr. Khalid Anwar has invited our attention to the fact that in the above Lahore Judgment which was upheld by the Hon'ble Supreme Court, as stated hereinabove, lates, balance sheet available at the time of taking over of the management and not at the time of acquiring the shares was made the basis. Our first impression was that it appears to be reasonable. However, when we examined the facts of the said case and the provisions of the order under reference, in context with the facts of the present case, in our view the above cannot be the basis in the instant case particularly in view of the fact that the above question had not been dilated upon in the above Lahore Judgment. The taking over of the management of a Company is different from acquiring of the shares of the Company under the Order. It may be observed that under section 4 of the Order the Federal Government was empowered to take over the management of a Company by appointing Managing Director of its choice but it did not involve any divesting of the ownership in the shares whereas under section 7B of the Order the Federal Government was empowered to acquire the entire shares of a Company, whereas under section 7C it was liable to pay compensation for the shares so acquired under the terms of para 3 of the 2nd Schedule which provided in cash or in the form of Government Bonds redeemable at any time at the option of the Federal Government within a period of fifteen years and carrying with effect from the date of acquisition. a rate of interest one per cent above the bank rate as notified by the State Bank of Pakistan from time to time, as pointed out hereinabove. In other words, the compensation is payable from the date of acquisition of the shares and not from the date of the taking over of the management. It may be observed that even otherwise a shareholder of a Company cannot file a suit for the recovery of dividend till the time the dividend is declared in accordance with the Companies Ordinance. In the instant case the petitioners would have been entitled to dividend if it would have been declared by the new management but since it was not declared there cannot be any claim for the period commencing from the date of the taking over of the management of the Company till the date of acquisition of the shares of the Company i.e. for the period from 2‑5‑1972 to 29‑11‑1973. It may also be pointed out that non‑declaration of dividend by the new management generally would not have prejudiced the shareholders as the break‑‑up value of the shares on a subsequent date from the date of taking over of the management would include the profit which might have been earned in the form of additional reserves and/or assets of the Company if the Company would have done good business. We are, therefore, of the view, that the petitioners were entitled to the compensation on the basis of the latest balance sheet which was for the year ending on 30‑6‑1973 which is in consonance with the pleading of the petitioners in the body of the petition, wherein in para 12 they have averred that "the compensation value should be determined not as on 30th June 1972 but as on 30th June, 1973 as the shares were actually acquired by the Federal Government in November, 1973." It has been vehemently urged by Mr. Khalid Anwar that the break‑up value of Rs.8.16 worked out by the respondent for the year ending on 30‑6‑1973 cannot be accepted as the respondents have made some reverse entries in the account retrospectively, the detail of which is given in para 23 of the petition and, therefore the break‑up value worked out by the petitioners as Rs.373.69 per share is to be accepted, or in any case Rs.145 per share on the basis of the balance‑sheet for the year ending on 30‑9‑1971 on the basis of the balance‑sheet of the Company's Auditor Nariman Mana and Co. He has referred to the above judgment of the Division Bench of the Lahore High Court wherein the learned Judges did not accept the balance‑sheet prepared by the new management for the purpose of computation of the compensation amount as certain reverse entries were made in order to reduce the break‑up value of the shares for the payment of compensation to the owners of the shares which were required under Pakistan Maritime Shipping (Regulation and Control) Ordinance, 1974 (Ordinance III of 1974), which have more or less identical provisions with the Order under reference. We are not inclined to examine the question, whether the respondents were justified in making the entries referred to in para 23 as the above question can be more suitably adjudicated upon by a qualified Chartered Accountant or other expert, but at the same time we are of the view, that the working of the break‑up value at Rs.8.16 per share by the respondents cannot be relied upon. In this regard, it may be pointed out that admittedly the petitioners were not given any opportunity to express their views before the working out of the above break‑up value. It is true that in para 3 of the 2nd Schedule to the Order, it has not been expressly provided that the shareholders be given an opportunity before determining the break‑up value of their shares or that they can raise any objection to the balance‑sheet of the year on the basis of which the break‑up value is worked out, but in our view, when the question of payment of compensation is to be determined, the person who is entitled to compensation is also entitled to be heard, particularly when certain entries in the balance sheet are to be reversed to his detriment. The factum that the petitioner had made representations subsequent to the working out of the above break‑up value in our view, does not fulfil the requirement of the principle of natural justice, (Maxim audi alteram partem) which has been enshrined as a hall‑mark in the modern jurisprudence. It has been consistently held by the Hon'ble Supreme Court that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be complied with if the proceedings might result in consequences affecting "the person or property" or other rights of the parties are affected. We are in respectful agreement with the view of the above D.B, Lahore High Court judgment that notwithstanding that the relevant statute does not provide for hearing the person likely to be affected and notwithstanding matter of determination of net worth value being dependent on calculations, parties to be affected are entitled to opportunity of being heard. We may observe that on 14‑1‑1982, the learned Deputy Attorney‑General had filed a statement on behalf of respondent No.l to the effect that within 90 days compensation bonds of Rs.3.26 lacs shall be tendered without prejudice to the contentions of the parties in the main petition, which fact is reflected in the Court's order dated 14‑1‑1982.

7. We would therefore, allow the above petition and declare that the working of the break‑up value at Rs.8.16 per share is without lawful authority and of no legal effect. We would direct the respondents to appoint a reputable firm of Chartered Accountants for working out the break‑up value of the petitioners' shares on the basis of the financial year ending on 30‑6‑1973 after hearing both the parties. We also declare that the petitioners would be entitled to the payment of compensation in terms of para 3 of the second schedule to the Order after adjusting the ‑amount of the bonds if already received by them during the pendency of the above petition in terms of the above order dated 14‑1‑1982 at Rs.8.16 per share. However, there will be no order as to costs. A.A. /S‑353/ K Order accordingly.