2004 PLP 1254 (CLD)

GULZAR AHMED, J.--By consent of the learned counsel appearing for the parties the petition was heard at Katcha Peshi stage for its final disposal. The petitioner has sought' the following relief:-- "(a) Declare that the said Notification dated 7 October, 2003 is ultra vires of KPT Act; (b) suspend until the final decision in this petition the operation of the said Notification dated 7 October, 2003; (c) direct the respondent No.2 to withdraw their said Notification dated 7 October, 2003; (d) suspend any notification affecting petitioner's position subsequent to Notice of 2-7-2002; (e) declare that the nominee named by the petitioner be and is entitled to be nominated on the Board ; (f) declare that the action of the respondent No. 1 in not naming/notifying the name of the duly elected representative of the petitioner was without lawful authority and direct the respondent No.2 to allow the nominee of the petitioner to act as the trustee on the board alongwith other nominees; (g) grant an injunction against the respondents from nominating any person on the Board in contravention of Section 7(1) of the KPT Act; (h) grant an injunction against the respondent No.2 from holding any meeting of the Board of the trustees till the final decision in the petition; (i) allow costs to the petitioner; and (j) grant such other further or additional relief(s) as this Honourable Court may be pleased to consider fit or otherwise appropriate in the facts and circumstances of the case." Briefly the facts of the matter are, that Karachi Chamfer of Commerce and Industry was in existence since 1860 and was incorporated under the Companies Act, 1913 on 2-6-1925 by the Registrar of Companies, Bombay and after partition, by the Registrar, Joint Stock Companies, Karachi on 10-5-1960. It is stated Karachi Chamber of Commerce and Industry was named in subsection (1) of. Section 7 of the Karachi Port Trust Act, 1886 (the Act) to nominate its elected representative as a trustee on the Board of the respondent No.2., Pursuant to such provision a representative of the said Chamber has remained on the Board of the respondent No.2 since the inception of the respondent No.2. In 1968 the name of the said Karachi Chamber of Commerce and Industry was changed to that of Overseas Investor Chamber of Commerce and Industry i.e. the petitioner and since the change of name, the petitioner's representative has been on the Board of the respondent No.2 through notifications issued by the respondent No.1 under Section 9 of the Act. By notification dated 19-4-2002, respondent No.1 requested the petitioner to intimate the name of its elected representative to represent on the Board for the term 2002-2004 by 1-6-2002. The petitioner vide its letter dated 16-5-2002 gave the name of its representative The respondent No.1 issued notification dated 2-7-2002 notifying the name of the petitioner representative on the Board for the term 2002-2004. On 7-10-2003 the respondent No.1 issued another notification by which the Board was reconstituted for the term 2002-2004 in which in respect of the petitioner, it is noted as follows:-- "The seat for representative of Overseas Chamber of Commerce and Industries will remain vacant as there is no mention of any Overseas Chambers in the K.P.T. Act." The petitioner is aggrieved by the last mentioned notification and has filed the present petition. Pre-admission notice was issued to the respondents. Respondent No.2 has filed counter-affidavit to which rejoinder affidavit has been filed by the petitioner.

3. Mr. Khalid Rehman, learned counsel for the petitioner has contended that the Notification dated 7-10-2003 Annexure 'F' to the petition is illegal inasmuch as it is contrary to the provision of Section 7(1) of the Act. He further contended that the Karachi Chamber of Commerce and Industry has remained on the Board and since the change of its name to that of the petitioner in 1968, the petitioner has been on the Board until the impugned notification was issued and that the removal of petitioner's name from the Board is mala fide. In support, the learned counsel has relied upon the cases of Messrs central insurance Company v. Central Board of Revenue, Islamabad 1993 SCMR 1232, Central Board of Revenue, Islamabad v. Shaikh Spinning Mills Limited, Lahore 1999 SCMR 1442; Muhammad Bhi v. Islamic Republic of Pakistan, Islamabad PLD 1980 Kar. 166, M. D. Tahir, Advocate v. Federal Government through Secretary, Cabinet Division, Pakistan Secretariat, Islamabad PLD 2000 Lah. 251; Ali Muhammad H.K. Dada v. State Life Insurance Corporation of Pakistan PLD 1988 Kar. 279, Messrs Spinning Mills Limited v. Federation of Pakistan 2002 PTD 2959 and unreported order dated 22-8-2003 passed in C.P. No.1531 of 2002 Karachi Cotton Association v. Government of Pakistan and another by a Division Bench of this Court to which one among us (Gulzar Ahmed, J.) \\as also a member. Mr. Muhammad Sarfraz Sulehri, learned counsel for the respondent No.2 has stated that the name of the petitioner does not appear in Section 7(1) of the Act therefore, the respondents are not obliged to allow the representation of the petitioner on the Board of the respondent No.2.

4. We have considered the arguments of the learned counsel of the parties and have gone through the record. In the counter-affidavit filed by the respondent No.2 the facts alleged in the petition are not disputed and it is only pleaded that the name of the petitioner is not mentioned in Section 7(1) of the Act and the change of name if made, the amendment in the Act should have been sought through Parliament which is not the case in this petition.

5. Section 7(1) of the Act is as follows:-- "

7. Nomination of other trustees.

(1)...of the remaining trustees, one shall be elected by the Chamber of Commerce and Industry, Karachi, one shall be elected by the Karachi Chamber of Commerce and Industry, Karachi, one shall be elected by the Karachi Cotton Association, Karachi, one shall be elected by the Pakistan Ship-owners Association, Karachi, one shall be elected by the Karachi Municipal Corporation and five, of whom one shall be a non-official associated with the Karachi Port Trust Labour Unions, shall be appointed by the (Federal Government)." The above-quoted provision shows that among the trustees one shall be elected by the Chamber of Commerce and Industry, Karachi, one shall be elected by the Karachi Chamber of Commerce and Industry, Karachi, one shall be elected by the Karachi Cotton Association, Karachi, one shall be elected by the Pakistan Ship-owners Association, Karachi, one shall be elected by the Karachi Municipal Corporation and 5 of whom one shall be a non-official associated with the Karachi Port Trust Labour Unions shall be appointed by the Federal Government. The case of the petitioner is that its previous name was Karachi Chamber of Commerce and Industry, Karachi which name was changed to that of the petitioner. The circumstances leading to the change in name is attributed to the letter dated 12-3-1968 which is annexed as Annexure 'E-I' to the petitioner and it is reproduced as follows:-- CHAMBER OF COMMERCE AND INDUSTRY, KARACHI Aiwan-e-Tijarat, Nicol Road P.O. Box No.4158 Karachi

2. March 12, 1968 Ref. No.III-3/6687 Mr. Rashid Ahmed, T.Q.A. Director of Trade Organization, Ministry of Commerce Government of Pakistan, Islamabad. Subject: Question of change of name of Karachi Chamber of Commerce and Industry. Dear Sir, This is in reference to your telegram dated 8th March, 1968 on the above-mentioned subject. In the Constitution of the Federation of Pakistan Chamber of Commerce and Industry which was recently amended there is now a provision of two seats on the Managing Committee of the Federation for our Chamber. A provision has also been made in the Constitution for providing one seat on the Managing Committee of the Federation in the event of any Chamber of Commerce and Industry of foreign businessmen joining the Federation as ordinary member. This means if the name of Karachi Chamber of Commerce and Industry is changed and seeks admission for membership on the Federation, the vacant seat on the Managing Committee of the Federation, as provided in the amended Constitution may be filed by this foreign Chamber. We have no objection to this provided the name of the Karachi Chamber of Commerce and Industry is changed. We confirm that if the name of Karachi Chamber of Commerce and Industry is changed to a different name reflecting the nature and composition of that foreign Chamber, our Chamber will not 'adopt the name of Karachi Chamber of Commerce and Industry. Thanking you and assuring you of the Chamber's best cooperation. Yours faithfully, (Sd.) (M. Rafiq Khan) The Government of Pakistan, Ministry of Commerce through its letter dated 14-3-1968 gave assurance to the Karachi Chamber of Commerce and Industry, Karachi that in the event of change of its name, the Karachi Chamber of Commerce and Industry, Karachi would not adopt its name. The Government of Pakistan, Ministry of Commerce through its letter dated 13-4-1968 Annexure D-I to the petition addressed to the Secretary, Karachi Chamber of Commerce and Industry informed that the Government of Pakistan has approved the adoption of its Chamber name as Overseas Investors Chamber of Commerce and Industry. The Asstt. Registrar Joint Stock Company, Karachi Region also issued a certificate of incorporation Annexure D-2 to the petition dated 23-5-1968 certifying the name of Karachi Chamber of Commerce and Industry has this day been changed to Overseas Investors Chamber of Commerce and Industry and that the said company has been duly incorporated as a Company under the provision of the Companies Act. Now it is an admitted position that the representative of the petitioner was notified as trustee on the Board of respondent No.2 for the term 2002-2004 through notification dated 2-7-2002. It was contended by the learned counsel for the petitioner that the notification dated 7-10-2003 was issued only to accommodate the representative of the Federation of Pakistan Chamber of Commerce and Industry in place that of the petitioner although the said Chamber is not entitled to representation on the Board of respondent No.2 by virtue of Section 7(1) of the Act. The impugned notification dated 7-10-2003 reads as follows:-- Pakistan extraordinary Government of Pakistan Ministry of Communication Islamabad the 7 October, 2003. No. 5(45)/2001-P&S-1. In supersession of this Ministry's Notification of even number dated 30 Sep., 2003 and powers conferred upon subsection 7(1) and Section 9 of the Karachi Port Trust Act, 1886 (Bombay Act VI of 1886), the Federal Government is leased to reconstitute the Board of Trustees of Port of Karachi for the terms 2002-2004 as under:-- (i) The Chairman Karachi Port Trust Karachi. (ii) Joint Secretary Ministry of Communications. (iii) Representative of Karachi Cotton Association, Karachi. (iv) Representative of Federation of Chambers of Commerce and Industry, Karachi. (v) Representative of Karachi Chamber of Commerce and Industry, Karachi. (vi) President of National Bank of Pakistan. (vii) Chairman, Pakistan National Shipping Corporation, Karachi. (viii) Representative of Ministry of Defence, Rawalpindi. (ix) Representative of Pakistan Railways. Note:- The seat for representative of Overseas Investors, Chamber of Commerce and Industries will remain vacant as there is no mention of any Overseas Chambers in the K.P.T. Act. (Junaid Mushtaq Qureshi) Deputy Secretary (I) Phone No.9205635 The Manager, Printing Corporation Press University Road, Karachi." The reading of the above notification shows that the name of Karachi Chamber of Commerce and Industry, Karachi is mentioned at Serial No.(v). From the facts and documents filed by the petitioner and not disputed by the respondent, it is apparent that the name of Karachi Chamber of Commerce and Industry, Karachi was changed to that of the petitioner as back gas in the year, 1968 and from the allegations made in the petition which have not been denied by the respondents, that since after the change of name in 1968, the petitioner's representative has remained on the Board of the respondent No.2. Such fact is also supported by notification dated 2-7-2002 as well as the notification dated 7-10-2003 which shows that the petitioner representative was having a seat but has been left vacant because the name of the petitioner does not appear in the Act. In our view, the objection of the respondent that the name of the petitioner does not appear in the Act has no force for the reason that the Act has given right of representation on the Board of the respondent No.2 to the entity of Karachi Chamber of Commerce and Industry, Karachi. Admittedly the name of Karachi Chamber of Commerce and Industry, Karachi was changed to that of the petitioner. The change of name has not brought the change in the entity of the said Chamber. The grounds on which trustee shall vacate office are mentioned in Section 158 of the Act. Subsection (2) of which is as follows:-- "(2). In the event of the Chamber of Commerce and Industry, Karachi, or the Karachi Chamber of Commerce and Industry, Karachi, or the Karachi Cotton Association, Karachi, or the Pakistan Ship-owners Association, Karachi, or Karachi Municipal Corporation being dissolved, or ceasing to exist, the office of the trustee elected by the body which is dissolved, or which ceases to exist, shall become vacant." Therefore, for vacating the office of trustee the said Karachi Chamber of Commerce and Industry, Karachi, it has to be shown that it has dissolved or has ceased to exist. Indeed, none of the two eventualities has happened in case of said Chamber. The only conclusion that can be drawn from this is that the entity of Karachi Chamber of Commerce and Industry, Karachi still exists albeit with the changed name that of petitioner. The impugned notification dated 7-10-2003 also admits of existence of the entity of Karachi Chamber of Commerce and Industry, Karachi as it has listed it at Serial No.(v). In this view of the matter, we are of the considered opinion that the case in hand is merely of change in name of Karachi Chamber of Commerce and Industry, Karachi to that of the petitioner otherwise it is one and the same entity. The petitioner, will therefore, be entitled to the rights, benefits and obligations in its own name flowing from the Act to the Karachi Chamber of Commerce and Industry, Karachi. In reaching the above conclusion, we are supported by the case of Sikandar v. C.I.T. Group/Capital Equipment Financing Inc. PLD 2002 Kar. 395 a judgment of Division Bench of this Court wherein at page 401 it is observed as follows:-- "The law is a living organism and is required to be updated according to the needs of the time. However, if amendment is not made in laws in accordance with the needs and requirements of the changing times, the superior Courts shall always be supposed to prescribe the conditions lacking in the law, keeping in view the purpose and intent of the Legislature, provided always, it does not contravene any specific provision of law and is without doing any violence to the patent or latent intention and purpose of the law and is only meant to promote the ends of justice and is in furtherance of the purpose of law. Doing so, would not amount to resorting to a legislative act but it would only mean the fulfilment of the purpose and intent of the legislation." Therefore, we hold that the impugned notification dated 7-10-2003 is contrary to the provision of Section 7(1) of the Act and is struck down with direction to the respondent No. 1 to issue fresh notification within seven days of the receipt of this judgment notifying the name of the representative of the petitioner as a trustee on the Board of the respondent No.2. The petition is accordingly allowed. M.H./O-5/K Petition allowed.