' MUSHIR ALAM , C.J.
(1) Objections complied with.
(2) to (4)
1. Petitioner seeks declaration to the , effect that no transfer mutation charges are payable by the petitioners' company for the change of name to be entered in the records of City District Government (CDGK) and any such demand by CDGK is illegal and void ab initio and consequential relief to update its records in relation to Plot No,HX-01, Landhi Industrial Area, Karachi to indicate the Petitioner Company's name has changed from Al-Ata Textile Mills Limited to Salfi Textile Mills Limited. Petitioner has also challenged the demand of ground rent at a rate different from that is laid down in the Indenture of lease dated 7-2-1968.
2. It is stated by the learned counsel that as regards 2nd part or the relief against recovery of Ground Rent and Surcharge, large numbers of petitions are pending in this Court. Syed Sultan Ahmed learned counsel for the CDGK informs that the issue of ground rent was decided by a bench of this Court, which was taken up to the apex Court and all such cases have been remanded back to the High Court for decision in terms of directions given by the honourable Supreme Court. It is stated that the petitioner will be dealt with in accordance with the final decision rendered by the Court on the subject issue.
3. It is also contended by the learned counsel' for the petitioner that the issue of Regularization/Completion Plan over the subject plot is also pending and amnesty scheme could only be availed subject to the decision in this matter.
4. We have therefore, by consent heard both the learned counsel on the first mentioned controversy as to whether change of any name of company effected under the Companies Ordinance, 1984 calls for payment or otherwise of transfer and mutation fees in the record of CDGK.
5. Mr. Rashid Anwar Advocate assisted by Mr. Muhammad Amin, Advocate contended that petitioners company was incorporated in 1968 in accordance with the then Companies Act, 1913 under the name and style of Al-Ata Textile Mills Ltd., as 'a Public Limited Company. The Company was leased out a plot of land bearing No,HX-01, Landhi Industrial Area, Karachi, on 7-2-1968 for a period of 99 years. Originally area of the plot measured 19.512 acres or (94,438.88) square yards, which was subsequently reduced to 18.382 acres (88,970) square yards through a registered rectification deed dated 11-11-1969 and a revised layout plan was issued for 18.878 (91370) square yards. It is the case of the petitioner that the name of the Al-Ata Textile Mills Limited was changed to Salfi Textile Mills Limited on 16-8-1983 after complying with the requirement of section 11(5) of the then Companies Act, 1913 and on 3-12-1983 the petitioner company informed KDA the predecessor of CDGK about change of its name and the KDA on 28-12-1988 replied as follows:- "I am directed to inform you that at present the title of ownership in respect of plot No,HX1, LEA, Scheme-4 is Al-Ata Textile Mills and at this stage no case for transfer/ mutation of the title to be processed. However the change of address/name for further correspondence has been noted in our record in terms of the certificate of the Joint Stock Company, produced by you".
6. It is stated that since petitioner was satisfied with the reply and no further step was taken as none was required. However, when petitioner requested for NOC for the creation of a mortgage, there was change of heart and through letter dated 12-6-2002 the (KDA Wing) of CDGK on 18-6- 2002, directed the petitioners that "change of name from Al-Ata Textile Mills to Salfi Textile Mills be executed and registered with the sub-registrar concerned so that change of name and permission to mortgage may be processed and finalized".
7. Mr. Rashid Anwer, learned counsel for the petitioner contends that change of name of a corporate entity is governed under section 39 of the Companies Ordinance, 1984 which lays down method and procedure for bringing such change into effect and consequence of change of name is dealt with in terms of subsection (3) to section 40 of the Companies Ordinance, 1984. It was urged that change of name neither affect any right nor interest nor it varies any obligations of the company and even legal' proceedings could be commenced and or continued by the Company under new name and style. It is stated that impugned demand of CDGK to execute and register any instrument to affect change in name be registered with the sub-registrar concerned so "that change of name and permission to mortgage may be processed and finalized" is absolutely uncalled for and demand of mutation charges is erroneous and cannot be sustained. He has drawn our attention to the contemporary procedure and provisions of section 23 of the Indian Act 1956 and cited good numbers of cases from Indian jurisdiction. In case cited as PIONEER PROTECTIVE GLASS FIBRE. P. LTD. v. FIBRE GLASS PILKINGTON LTD. Vol. 60 1986 Company Cases page 707, the Court held "that change of name does not affect the merit of the claim as the constitution of the old company is not changed. The only thing that is changed is its name and all rights and obligations under the law of the old company pass to the new company and the case is not similar to the reconstitution of a partnership, that in all means the creation of a new legal entity together". In the case of Kalipada SINHA v. Mahalxmi Bank Ltd., (AIR 1966 Calcutta 585), wherein in para-4 it has been held as follows; "4. It will be convenient to dispose of the point, which was already taken in the court below, viz., that no such amendment could be made by the Executing Court. What has been argued is that the Executing Court can only grant the amendment that is provided under Order XXI, rule 16 or rule 17. Obviously, the amendment asked for doesn't come within those provisions. In my opinion, the whole approach is defective. The argument proceeds on the footing that an Application of execution was pending and in course thereof there had been a transfer of the interest of the decree-holder to another new body altogether and that it was a case of substitution in execution proceedings. This is belied by the provisions of sections 21 and 23 of the Companies Act 1956. Section 21 enables a company to change Its name by a given method, viz., by a special resolution and with the approval of the Central Government signified in writing. It does not provide for altering the entity but only the name. This is also made quite clear by the provisions of section 23. Subsection (1) of section 23 states that where a company changes its name in pursuance of section 21 or 22, the Registrar shall enter the new name on the register in the place of the former name, and shall issue a fresh certificate of incorporation with the necessary alterations embodied therein and the change of name shall be complete and effective only on the issue of such a certificate. It would be observed that the emphasis is on the expression, "change of name". Subsection (3) lays down that the change of name shall not affect any rights or obligations of the company or render defective any legal proceedings by or against it; and any legal proceedings which might have been continued or commenced by or against the company by its former name may be continued by or against the company by its new name. This makes it abundantly clear that as the alteration is only in the name and not in the identity and that the statute itself grants the right to continue any existing proceeding by the old company in its new name. That being so, what is the position when an execution proceeding is pending and there has been an alteration of the name? The decree holder has changed its name according to law and under the, provisions of law' has a right to continue the proceeding in the new name. Therefore, all that it has to do is to inform the Executing Court of the fact of its alteration in name and in my opinion the Executing Court is bound to record the alteration. To such an operation, the complications of an application for amendment should not be applied. But in any event, even if it is considered to be an amendment like any other amendment, there is ample power in the Executing Court to grant such an amendment."
8. In another case from the jurisdiction of Bombay High Court Sulphur Dyes Ltd. v. Hickson and Dadajee Ltd., (Vol.83 (1995) Company Cases 533) wherein the petitioner company held certain shares in the respondent company and after change of its name applied for recording the name, which was denied. The issue was agitated and the Court on examining the contention came to a following conclusion:-- The provisions of the statute that the fresh certificate of incorporation is to be treated as conclusive evidence of the change of name affected must be given full effect. The provisions of the statute to the effect that the rights of the existing shareholders are not affected merely by change of its name must also be given full effect".
9. Lastly more importantly case from the Pakistan jurisdiction is comparable to the case of the petitioner, reported as Hira Textile Mills Ltd., v. Executive District Officer (Revenue), Kasur and 4 others (2009 CLD 839). In cited case "after the change of name of company under the Companies Ordinance from Sharif Spinning Mills Ltd., to Hira Textile Mills Ltd. The petitioner applied to the Assistant Commissioner, Kasur, requesting to record change of name in the revenue record. Which was denied on the premise that it is a new company and required to get a formal sale-deed registered in its name". Position in cited case is similar to the one in hand, the Court examined relevant provisions of various laws to ascertain whether petitioner require formal sale deed to be executed for incorporation of change in its name in the revenue record or not. In cited case learned Single Judge dealt with the issue in accordance with section 114 of the Land Revenue Act, 1967 and also examined the provisions of sections 17(1) and 17(2) of the Registration Act, and came to a conclusion in following terms; As is clear from the contents of this petition that the petitioner company has not ventured or undertaken any exercise violating the exceptions contained in section 17(2) because no transfer of immovable property has taken place, the identity of the petitioner is same, therefor, it falls within the exception of section 17 of the Registration Act, as such it is not required to get any sale-deed registered. It also is equally clear that the petitioner company acted under sections 39 and 40 of the Companies Ordinance, 1984, which do not contemplate transfer of any property. Therefore, this petition is allowed as prayed for. No orders as to costs."
10. Mr. Rashid Anwer, learned Counsel for the petitioner therefore, heavily relying on the above noted case. It is contended that there is no change and or transfer of ownership of land to any new entity. It is a simple case of change in name of petitioner company in accordance with of Companies Ordinance, 1984 such change in the name does not entail consequence of transfer of property rather in terms of subsection (3) to section 40 of the Companies Ordinance, 1984 change 'of name does not affect any right or interest and or obligations of a company and even legal proceedings could be commenced and or continued by the Company under new name and style.
11. Syed Sultan Ahmed, learned counsel for the CDGK opposed the petition. According to him by changing the name of company in fact property is transferred, which cannot be affected without registered instrument, therefore the petitioner company is liable to pay mutation and or transfer fee. He has denied the letter dated 28-12-1983 available at page 83 of the file, which was relied upon by the petitioner.. It is without prejudice stated that the change of name for the purposes of correspondence was noted by the authority concerned and in no manner exonerated the petitioner from payment of the transfer and mutation fee. In response to case cited by the learned Counsel for the petitioner. It is stated' that the case is distinguishable as case of Kalipada Sinha v.
Mahalxmi Bank Ltd., (AIR 1966 Calcutta 585), relates to the change in the name of company during pendency of the execution and under the law change in name has no effect on the legal proceedings. Sulphur Dyes Ltd. v. Hickson and Dadajee Ltd., (Vol.83 (1995) Company Cases page 533) relates to the change in the name by a company wherein the petitioner company was holding shares and as regard case from Pakistani jurisdiction cited as Hira Textile Mills Ltd., v.
Executive District Officer (Revenue), Kasur and 4 others (2009 CLD 839). It is contended that the matter relates to Revenue Authorities under the Land Revenue Act, 1967, which does not provide for charging fee for recording change in name; whereas, law, rules and regulations in this metropolis of Karachi do authorize regulatory authority to charge fee on mutation and or recording change of name, according to him, in Karachi change of name of company is regular phenomenon and regulators regularly receive such applications and update the Record of Rights. He has brought to our notice the mutation dated 2-4-2011 whereby double mutation first in favour of Pak Water Bottler (Pvt.) Ltd. On its merger with Nestle Milk Pak Ltd. And secondly on change in name in terms of section 39 of the Companies Ordinance, 1984 to Nestle Pakistan Ltd.: was allowed and double fee was charged. Second mutation dated 10-1-2013 recorded on the request made by Messrs Dawood Cotton Mills Limited to change its name to Dawood Lawrencepur Limited; respectively and both the companies had paid respective charges for affecting change of name in the record of CDGK at the rate of Rs,50 per square yards. It is urged that Regulation 14 of the "Disposal of Land and Estate Regulation 1965" gazetted on 27-8-1965 deals with disposal of industrial plots, which provides "allotment of Industrial plots shall be subject to the terms and conditions at Appendix 'F. Which provide charging of mutation fee on industrial plot.
12. Syed Sultan. Learned Counsel for CDGK, emphasizing on the above condition, argued that fee claimed is for recording change of name of industry for which petitioner is required to produce income tax certificate, registration certificate in respect of the industry and he further adds that such change of name is permitted in terms of above noted Regulations provided- it does not change the interest. It is further stated that in view of substantial increase in the value of land in Karachi, schedule of charges which was revised after a long time and fee and services charges under various categories and the subject fee was revised from Rs,10 to Rs, 50 per square yards for the Industrial Plots as per Notification No, SOA(LG)4(23)/2010 dated 9-4-2010, as per annexure R-8 to the Counter Affidavit. He has again drawn attention to the change of name carried out in respect Dawood Cotton Mills Ltd. To Dawood Lawrancepur Ltd. Dated 10 January, 2013, whereby Rs, 2,577,300 was charged for a plot measuring 51546 Square Yard I e. (51546 Sq. Yrd. x Rs,50).
13. Mr. Rashid Anwer, learned counsel for the petitioner in rebuttal, contends that the Term and Condition No,17 of Appendix "F" of the KDA Allotment Regulation, 1965 is in violation of the Sections 39 and 40 of the Companies Ordinance, 1984 according to him, said Terms and Conditions would only be attracted where the company changes its purpose or use from one category to another.
According to him petitioner Company is pursuing the same business since inception and there is no change of category, therefore, it is not applicable. As regard revision of tariff through notification dated 9-4-2010 it is argued that revision of rates is not in respect of change in name under the Companies Ordinance, 1984 but on the basis of registered documents including registered gift or mutation/transfer by way of inheritance or decision of the Court and petitioners case does not fall in any of such category, it was contended that charging- provisions and regulations are to be strictly construed and such liability cannot be foisted on the petitioner company.
' Having heard the arguments and perused the record.
14. Incorporation, registration, management, change in the management, shares, amalgamation, merger, change in name, conduct and affairs of companies, certain other association and corporate enterprise and matter incidental thereto are regulated and controlled by the Companies Ordinance 1984, which is a comprehensive code in itself. A company incorporated under the Companies Ordinance, 1984 is permitted to change its name in accordance with the provisions of section 39 ibid; which inter alia require a special resolution with the approval of the Registrar of the Companies in writing bringing the change of its name. The effect of such change in the name of corporate entity is dealt with in section 40 of the Ordinance 1984; whenever a special resolution is passed by the Company with the concurrence of the Registrar of the Companies, such change in name of the Company is to be recorded in the Register of the Company in place of its former name and a fresh certificate of incorporation with new name is issued. On issuance of Certificate of Incorporation with altered or new name, the process of change of name of a corporate entity is complete. Whenever name of a company is changed in accordance with section 39 ibid, the company that has changed its name is mandated to continue use of its former name along with its new name side by side for a period of one year from the date of issuance of such altered certificate of incorporation. Change in the name of a Company does not affect any right or obligation of the company nor render defective or any legal proceeding by or against the company nor rights and interest of creditors and or other persons dealing with the company in any manner are prejudiced, legal proceedings, contract and or transaction as the case may be may be continued or commenced and or executed and enforced against the company by its former name or by its new name and for all practical purposes change of name does not affect or bring about the change of management and/or transfer of management change in name does not bring into being a new legal entity it remains the same entity merely with a new identity. (See section 40 of the Companies Ordinance, 1984) .
15. In the present case industrial land of the petitioner's Company is governed under 'Disposal of Land and Estate Regulation 1965' also known as KDA Allotment Regulations, 1965 framed under Article 15 of the Karachi Development Authority Order 1957; Regulation 14 of the "'Disposal of Land and Estate Regulation 1965" Gazetted on 27-8-1965 deals with disposal of industrial plots, which inter alia provides that the "allotment of Industrial plots shall be subject to the terms and conditions at Appendix to Regulation 1965.
16. Terms and Conditions No,17 in "Appendix F" to Regulation 1965 is relevant for the purposes of controversy in hand, which reads as follows:-- 17.In case an allottee applied for change of name of an Industry, he will have to produce Income Tax Certificate, Registration and 1 C in respect of the Industry. He will then be allowed mutation of the name on payment of Rs, 10 as mutation fee subject to the condition that the change of name does not involve anti change of interest. Underlined to add emphasis.
17. Revised Schedule per notification No, SOA(LG)4(23)/ D 2010 dated October 16, 2010 Annexure R-8 to Counter Affidavit provides as follows;
6. Mutation on the basis of Registered Document, including Registered Gift or Mutation/Transfer by way of inheritance or Decision of Court.
Categoru Approved Fee Proposed New Rates
(a) Residential Rs,40 PSY Rs, 100 PSY Plot/Flat/House Basement (i)
(b)
(c) Industrial Plots Rs,10 PSY Rs 50 PSY all schemes/ Townships except Surjani scheme
18. Regulation 14 read with Term and Condition No, 17 to the Appendix 'F', as reproduced above, clearly postulate that where a allottee applied for change of name of an industry, is required to produce, income tax certificate or registration certificate in respect of the industry and mutation of name is to be accepted on payment of Rs,10 as mutation fee such recording of change of name of an industry is with a rider that "the change of name does not involve any change of interest" such stipulation specifically caters to the situation in hand. It means that where the change in name of allottee is without transfer of right and interest in the industrial plot, it will be effected on payment of Rs,10 per square yards as mutation fee. Contention of Syed Sultan, that the mutation fee has been revised through Notification referred to above, from Rs,10, to Rs,50 per square yard is not tenable for .The simple reason that the subject revision as reproduced above is in respect of "Mutation on the basis of Registered Document, including Registered Gift or Mutation/Transfer by way of inheritance or Decision of Court", Admittedly, in instant matter petitioner Company is neither claiming change in its name on the basis of any registered documents, including Registered Gift, nor by way of inheritance nor on the basis of decision of the Court, it is on the basis of change in name effected through Resolution with the concurrence of Registrar of Companies in accordance with section 39 of the Companies Ordinance, 1984 and such change in name does not affect in any manner transfer of title in the land. The situation in hand as discussed above, is covered by the Terms and Conditions No,17 to the Appendix F to the KDA Allotment Regulations, 1965 as already reproduced above, which prescribe a fee of Rs,10 per square yard, which has not been revised through revised Schedule, as relied upon by Syed Sultan, learned Counsel for the CDGK (KMC). There is no cavil to the proposition that charging provisions may it be prescribing fee or tax are to be strictly construed and in case of any ambiguity it is to be resolved in favour of the subject/assessee. A person cannot be compelled to pay more than what is prescribed and fixed by or under the authority of law.
19. In the present case change of name of the petitioner's Company no doubt was carried out in accordance with sections 39 and 40 of the Companies Ordinance, 1984 however, such exercise did not involve any change of right and or interest in the land. Petitioner's company for all practical purposes remains the same entity or company, with a new name and identity, therefore, the demand of the respondent CDGK, in terms of letter dated 18-6-2012 that the change of petitioner's name from Al-Ata Textile Mills Limited to Salfi Textile Mills Limited be executed and registered with the sub-Registrar concerned so that change of name and permission to mortgage may be processed and finalized is misconceived and uncalled for and is accordingly declared so.
Accordingly let the CDGK (KDA Wing) issue Challan of fee at the rate of Rs,10 per square yard, on payment thereof, within time allowed record the change in name of Al-Ata Textile Mills Limited as Salfi Textile Mills Limited in the record of Rights maintained by the CDGK (KDA Wing), where after request for the permission to mortgage may be processed strictly in accordance with prevailing law, rules and or regulations and requisite NOC be issued within 30 days from payment of such fees thereof, Petition as regard prayer clauses (i) and (iii) in terms above and C.M.A. 2223/13 and 2224/13 stand disposed off.
20. As regard prayer clauses (ii) and (iv) relating to controversy as to payment of Ground Rent and consequential injunctive order, since the controversy as stated by both the learned counsel is sub judice in number of petitions, therefore *e are not touching such aspect of the matter and leave the parties to agitate the controversy along with said partitions. Both the learned counsel shall provide the number of such petitions to the office and instant petition to the extent of prayer clauses Nos. (ii) and (iv) may be decided along with said petitions.