Sunny Vision Cable Network vs D.G Pemra etc.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

FAO No. 85 of 2017.

Sunny Vision Cable Network through its Chief Executive vs Director General (Licensing), PEMRA etc S.No. of Date of Order with signature of Judge and that of parties or Order/ order/ counsel where necessary Proceeding proceeding 11.06.2018 Syed Athar Hasan Shah Bukhari, Advocate for appellant. Mr. Khalid Ashraf Khan, Advocate for respondent Nos. 2 and 3.

Rana Muhammad Imran, Advocate for respondent

PEMRA.

Through this appeal under Section 30-A of Pakistan Electronic Media Regulatory Authority Ordinance, 2002, the appellant company has called in question the order dated 05.10.2017 passed by the Director General (Licensing), PEMRA,

Islamabad/respondent No.1 whereby the application filed by the appellant regarding upgradation of its license and change of headend location was dismissed.

2.The brief facts of the case are that the appellant company was issued B-3 category license by respondent authority. The appellant filed an application addressed to the authority/ Regional General Manager, PEMRA,

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Multan regarding upgradation of its license and change of headend location but the Regional General Manager did not accede to the said request. Consequently, the appellant filed a constitutional petition (WP No.12189 of 2017) whereby this Court vide order dated 11.09.2017 directed the respondent No.1 to decide the application of the appellant. The respondent authority took up the matter for consideration on 26.09.2017 and dismissed the application of the appellant on 05.10.2017, which order is under challenge through this appeal.

3.Learned counsel for the appellant has argued that the appellant was provided B-3 category license on 17.10.2014 for operating terrestrial cable television transmission system which is valid for a period of five years subject to annual permission/renewal. The appellant filed an application with the respondent authority for upgradation of its license and change of headend location but respondent No.1 did not proceed with the matter in accordance with law while dismissing the claim of the appellant vide order dated 05.10.2017.

Prays that the said order be set-aside and the respondents be directed to allow the application filed by the appellant.

FAO No.85 of 2017 Dated 11.06.2018.

4.Conversely, the learned counsels appearing on behalf of respondent No. 1 / PEMRA and private respondent Nos. 2 and 3 have supported the orders passed by the respondent authority. Besides, the authority of CEO Jabbar Ali to file this appeal on behalf of the company has also been challenged by the respondents on the ground that he has neither been authorized by a resolution of Board of Directors nor by Articles of Association of the Company for the said purpose.

5.Heard. Record perused.

6.The appellant is a private limited company and has filed this appeal through its Chief Executive Officer Jabbar Ali who claims to be the license holder of the company but from perusal of the license dated 17.10.2014, issued in favour of the appellant company, it is observed that the said license has been issued in the name of M/s. Sunny Vision Cable Network (pvt.) Ltd company and not in the name of its CEO. The appellant although is its Chief Executive Officer but has not placed on record any resolution of the Board of Directors to show that he has been authorized by the company to file this appeal against the PEMRA authorities to challenge the orders passed by it. It is argued on behalf of the

FAO No.85 of 2017 Dated 11.06.2018.

appellant that respondent Nos. 2 and 3 have no concern with the company, whatsoever, and for that purpose a civil suit filed by the appellant is pending adjudication before the civil court. The respondents have relied upon Articles of Association and the subscription forms attached with the Memorandum and the Articles of Association of the appellant company, wherein the respondent Nos. 2 and 3 have been shown as the directors and the appellant as well as respondent Nos. 2 and 3 are shown to be holders of 33% shares each in the afore referred company. Both respondent Nos. 2 and 3 deny having authorized the appellant to file this appeal on behalf of the company and state that in the absence of authorization by the Board of Directors of the company, the appeal is incompetent. Even otherwise they also oppose the relief sought by the appellant regarding upgradation of its license and change of headend location on various legal and factual grounds raised by them.

7.Learned counsel for the appellant has although denied that respondent Nos. 2 and 3 are the directors of the company, nothing has been placed on record to show that who instead of respondent Nos. 2 and 3 are the present directors of the company and how the appellant

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being CEO has been authorized to file appeal on behalf of the company. As the Memorandum and the Articles of Association of the Company show the respondent No. 2 and 3 as Directors and shareholders of the company, the appellant was required to show some document to substantiate his plea that they had ceased to be so, otherwise, as the legal presumption of authenticity is attached to the Memorandum and the Articles of Association of the company, the information provided therein is to be presumed to be correct for all intents and purposes. Resolution of Board of Directors authorization of filing the present appeal is not available on the record.

The appellant in the absence of a resolution by the Directors of the company at the most could claim that he had been authorized by the Articles of Association of the company to file the instant appeal but the perusal of the said articles shows that no such authorization in available in the same. Thus the CEO was required to produce a resolution of Board of Directors authorizing him to do so.

It is settled by now that an appeal, suit or a petition cannot be filed on behalf of a company and would be incompetent and not maintainable without there being a resolution of Board of Directors authorizing the person,

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who has instituted the proceedings, to file the same.

Reliance in this regard is placed on Khan Iftikhar Hussain Khan of Mamdot (represented by 6 heirs) vs.

Messrs Ghulam Nabi Corporation Ltd, Lahore (PLD 1971 S.C. 550), wherein it was held that suit on behalf of the company by a person (Director-In-Charge of the company) is not competent unless he is so authorized by a resolution passed by Company’s Board of Directors.

In the judgment reported as Messrs A.M. Industrial Corporation Limited vs. Aijaz Mehmood and others (2006 SCMR 437), while upholding the decision of the High Court whereby Constitutional petition filed by the petitioner therein had been dismissed for want of availability of resolution of Board of Directors authorizing the person who filed the same on behalf of the company, it has been held as under:

“Be that as it may, since legal position is well- settled and the person who instituted ejectment proceedings on behalf of company was not duly authorized, following the principle of law laid down in Khan Iftikhar Hussain Khan of Mamdot v. Ghulam Nabi Corporation Ltd.(PLD 1971 SC 550) and Habib Bank Ltd. (supra), we find no legal defect or error of jurisdiction in the view taken by the High Court, which is not open to any exception.”

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Same principle has been enunciated in the judgment reported as Habib Bank Limited vs. Zalins Limited (2000 SCMR 472), wherein it was observed as under:

“....... Filing of ejectment proceedings under the rent laws against the tenants of the bank is not a matter covered by the day to day routine business of the branch of a bank. In case any objection is raised about competence of the officer of bank instituting the ejectment proceedings under the rent laws against the tenants of the bank, burden falls upon the bank to establish that the person instituting the ejectment proceedings was authorized by the bank in that behalf. In these cases this burden had not been discharged. The view taken by the High Court in the facts of these cases is not open to exception. ”

8.In the present case, resolution of Board of Directors of the company authorizing the CEO Jabbar Ali to file the appeal on behalf of the company has neither been filed nor it has been claimed that any such resolution is available, rather, the respondents No. 2 and 3 who claim to be the Directors and shareholders of the company to the extent of 33% each claim that they have not authorized the appellant to file the present appeal on behalf of the company, therefore, while relying upon the principles of law laid down in the afore-referred

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judgments it is observed that the instant appeal has not been competently filed by a duly authorized person.

9.For what has been discussed above, in the absence of any such authorization in favour of CEO Jabbar Ali by the Board of Directors of the appellant company to file an appeal for challenging the order dated 05.10.2017 passed by respondent No.1/PEMRA, present appeal would be incompetent and is consequently dismissed.

(MUZAMIL AKHTAR SHABIR)

JUDGE

Approved for reporting

JUDGE

Naveed *