JAWAD HASSAN, J.--- This writ petition was filed back in 2019 with the prayer that the Federal Gove rnment through the Ministry of Commerce be directed to constitute Copyright Board as required under section 45 of the Copyright Ordinance, 1962 (the " Ordinance ") in IA order to safeguard the fundamental rights of the Petitioner:
2. Mr. Muhammad Saqlain Arshad, Advo cate argued that after effecting divorce between the Petitioner and the Respondent No.4, litigation was started by them regarding intellectual property rights (the "IPR") of the Respondent No.5/American Lycetuf f (Private) Limite d. He explains that the Respondent No.4 moved an application for correction of record on Form-III before the Respondent No.3, who, after hearing the parties, decide the issue regarding correction of entries in the Register of Copyrights as per section 41(1) of the Ordinance by holding that copyright of the American Lycetuf f Junior and Upper School stand vested and belongs to the Respondent No.4/Ms. Zeeshan Zia Raja, which order ought to have been challenged by the Petitioner in appeal as provided under section 76 of the Ordinance before the Copyright Board which is not yet constituted and functional at the moment, hence, this petition.
3. On 21st of December , 2019, reply was filed on behalf of the Respondent No.4 who denied most of the averments made by the Petitioner in the titled writ petition. In the reply , the Respo ndent No.4 categorically stated that as per the provisions of section 76 of the Ordinance the remedy of appeal is provided and only an aggrieved person can file an appeal before the Copyright Board but the Petitioner is not an aggrieved person, therefore, the writ is not maintainable and liable to be dismissed.
4. Arguments heard. Record perused.
5. First of all, it would be advantageous to reproduce hereunder section 45 of the Ordinance for ease of the matter and ready reference:- "45. Copyright Board .---(I) The Central Government shall constitute a Board to be called the Copyright Board consisting of the following members, namely ,--
(i) a Chairman appointed by the Central Government;
(ii) not less than three and not more than five other members appointed by the Central Government after consultation with the representative bodies of authors, publishers, cinematograph industry and any other interest relating to copyright.
Provided that adequate representation on the Board shall, as far as possible, be given to the resident of each Province; and
(iii) the Registrar , ex-officio.
(2) The members, including the Chairman of the Board, other than the ex-of ficio member , shall hold office for such period and on such terms and conditions as may be prescribed.
The Chairman shall be a person who is, or has been a Judge of a High Court, or is qualified for appointment as such Judge."
6. The basic issue, in this case, is arising out of order dated 07th of August, 2018, passed by the Registrar of Copyrights, Lahore/Respondent No.3 amending/altering the Register of Copyrights and indexes by exercising his powers under section 41(1) of the Ordinance. Suffice to observe here that against the aforesaid order of the Respondent No.3 only remedy available to the Petitioner is by way of filing an appeal before the Copyright Board within a period of three months from the date of the said order as provided in section 76 of the Ordinance. The Board is defined in subsection (e) of section 2 of the Ordinance, which means the Copyright Board constituted under section 45 of the Ordinance. The powers and procedure of the Board are specified in section 46 of the Ordinance. It can be safely drawn from the afore-quoted provisions of section 45 of the Ordinance that the Federal Government is under legal obligation to appoint Chairman of the Board but despite lapse of more than two years, the Chairman has not been appointed due to which the Board, a statutory appellate forum against the orders passed by Respondent No. 3, is not yet functional to entertain the appeal of the petitioner and thus petitioner is prevented from seeking his remedy available under the law. The Right of appeal, when provided under the law, is a substantive right and denial of such substantive right is against the dictates of Article 37(d) of the Constitution of Islamic Republic of Pakistan, 1973, which mandates that State shall ensure provision of inexpensive and expeditious justice to the people. However , justice is served and administered through the system of Courts or quasi-judicial forums which are formed under the Constitution and the laws to dispense justice in accordance with law. Accordingly , justice being a relative term in its distributive and retributive aspects can comprehensively be summed up as mode of giving to or declaring for someone, his due as determin ed by the law. The Courts and quasi-judicial bodies are adjudicator under the law to resolve disputes between the parties who are at odds and agree to disagree. Therefore, in this case, the right of the Petitioner is denied because section 76 of the Copyright Ordinance, 1962 provides that any person aggrieved by any final decision or order of the Registrar may, within three months from the date of his decision or order , file appeal to the Board, which is constituted in accordance with Section 45 of the Ordinance. An appeal is not mere a formality but a substantive tool of re-examination by a higher pedestal to either rectify and correct any probable error or application of law in the orders passed by the lower forum or to endorse the same being right and correct and thus further enhance its credibility .
7. The Hon'ble Supreme Court in "Ghulam Qadir and others v. Sh. Abdul Wadood and others" (PLD 2016 Supreme Court 712) has elaborated the scope of appeal and powers of an appell ant forum by observing that "An appeal is the recourse adopted by a person to a superior court vested with the jurisdiction to reconsider a decision of a subordinate court, with the aim of attaining a reversal/modification of such decision. An appeal is not merely a matter of procedure but a substantive right. It is the continuation of a suit and during appellate proceedings the entire matter stands reopened. The jurisd iction of an appellate court can be invoked by a person who believes that the subordinate court has erred in law or in fact whilst passing the judgment/order under appeal."
Similarly the Islamabad High Court in "Ovex Technologies (Private) Limited v. PCM PK (Private) Limited and others" (PLD 2020 Islamabad 52) also reiterated the similar principle by holding that: "It is well settled that an appeal is a continuation of the original suit and the Appellate Court has ample power to scrutinize the documents on the record in the light of the arguments advanced by the contesting parties. An Appellate Court while hearing an appeal against an order/judgment or a decree of a Trial Court exercises the same jurisdiction which is vested in the Trial Court. In an appeal, the lis becomes open and the Appellate Court can do all that the original Court could do."
8. It is noted with great dismay that despite appropriate legislation/mechanism provided under the Ordinance read with. the Copyright Rules, 1967 (the "Rules "), the relevant Governmental Authority/Department is not taking any steps for filling vacant post of the Chairm an lying at the Board, which is not only against the mandate of Article 37(d) of the Constitution, holding in unequivocal terms that it is the utmost duty of the State to ensure inexpensive as well as expeditious justice, but also against the directive of the National Judicial (Policy Making) Committee (the "NJPMC "). In its meeting held on 29th of February , 2020, under the Chairmanship of the Hon'ble Chief Justice of Pakistan, the NJPMC has observed that in order to provide speedy and expeditious justice to the deserving litigants, it is essential that vacancies in all the cadres of Judiciary , Administrative Tribunals, Boards and Special Courts be immediately filled for clearance of the backlog so that speedy justice may be dispensed with so faith of the litigants on judicial system is not let down. Under the rule of law every citizen of this country has a right of access to justice and dispensation of justice in a timely fashion. According to the provisions of Article 4 of the Constitution, it is an inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law (the Ordinance and the Rules) and no action detrimental to the life, liberty , D body , reputation or PROPER TY of any person shall be taken except in accordance with law. In the judgment reported as "Watan Party and another v. Federation of Pakistan, and others" (PLD 2011 SC 997), the Hon'ble Full Bench of the apex Court of the Country has held that "Article 4 thereof remained fully operative, which laid down that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan and in particular no action detrimental to the life, liberty , body , reputation or property of any person would be taken except in accordance with law", Under Article 5(2) of the Constitution obedience to the Constitution and law E (the Ordinance and the Rules) is inviolable and it is the duty of the State to obey the laws.
9. Needless to mention that the Universal Declaration of Rights drafted in the year 1948 also gave universal recognition to the right of 'access to justice' in the following manner: Art. 8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law .
Art. 10: Everyone is entitled in full equalit y to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations, and of any criminal charge against him.
10. In this case, the only issue between the parties is regarding the Intellectual Property Rights. Recently , this Court in the case of "Presson-Descon International (Private) Limited and others v. Joint Registrar of companies" (PLD 2020 Lahore 869) + (2020 CLD 1128) has defined in detail the intellectual property and its valuation. However; in present petition, the absence of the relevant appellate forum i.e. the Board, the Petitioner's rights to file appeal against the order passed by Respondent No.3, are being infringed due to non-functioning of Board.
11. In view of what has been discussed above, this Court, while exercising powers under Article 199 of the Constitution, directs the Secretary , Ministry of Commerce, Islamabad/Respondent No.1 to take F. up the matter regarding appointment of the Chairman of the Board with the high-ups on priority basis as per the mandate of section 45 of the Ordinance, in which the word "shall" has been used for the purpose of constitution of the Board.
However , it is made clear that the whole exercise with regard to appointment of the Chairman will be completed within one month in light of the aforesaid directive of the NJPMC and once the Board is constituted, the Petitioner may immediately file an appeal as provided under section 76 of the Ordinance, which will be decided by the Board within the time frame stipulated under the Ordinance. The intervening period of about two years in filing of appeal by the Petitioner will not be considered as an impediment and will not be consid ered while calculating limitation period for filing the appeal under section 76 of the Copyright Ordinance, 1962 and the matter will be decided by the Board strictly on merits.
12. With the above observations, this writ petition is disposed of .