IN THE HIGH COURT OF SINDH, KARACHI

 
Constitutional Petition No.D-1331 of 2008

 

Present

Mr. Justice Mushir Alam.

Mr. Justice Aqeel Ahmed Abbasi.

 

Date of hearing : 04.02.2010

Date of order : 04.02.2010

Petitioner : Sardar Nisar

through Mr. Latif A. Shakoor, Advocate

Versus

 

Respondents Registrar, Cooperative Societies & others.

Respondent No.2: through Mr. Amir Aziz Khan, Advocate.

Respondent No.3. through Mr. Ishrat Alavi, Advocate

Respondent No.4. through Mr. Arif Bilal Sherwani, Advocate.

 

ORDER

 

Aqeel Ahmed Abbasi, J. Through instant petition the petitioner has assailed the impugned order dated 29.05.2008 passed by the learned Registrar, Cooperative Societies Sindh at Karachi, in appeal No.39/2007, ABN Case No.22/2007. Brief facts leading to filing the instant petition as stated appears to be that in pursuance of the order of reference in ABN Case No.22/2007 dated 05.05.2007 made by the Deputy District Officer Cooperative (ABN), CDGK under Section 54 of the Societies Act, 1925, a dispute between the parties was referred to the nominee of Registrar namely S. A. Jahangir, who passed an Award in Arbitration on 30.06.2007 in favour of petitioner and against respondent No.2. Respondent No.2 being aggrieved by such Award filed an Appeal No.39 of 2007 under Section 56 of Cooperative Societies Act, 1925 before the learned Registrar, who after hearing all the parties decided the appeal in favour of respondent No.2 and directed the petitioner to handover the physical possession of the subject plot to the respondent No.2 and further directed to execute lease in favour of respondent No.2 after fulfilling the codal formalities. The petitioner being aggrieved by such order has assailed the same by filing the instant constitutional petition mainly on the ground that the dispute involved in the instant case did not fall within the purview of Section 54 of Cooperative Societies Act, hence the order passed by the Registrar was without jurisdiction. Per learned counsel for the petitioner, the petitioner was leased out a Plot No.21/8, Survey Sheet No.35P/1 on the layout plan measuring 1090 sq. yds, situated at Al-Riaz Cooperative Housing Society Ltd., i.e. respondent No.5, vide registered Sub-license No.2 dated 24th June 2006. According to learned counsel, the possession of such land was also taken over by the petitioner, who also raised some construction thereon. It was further submitted that the respondent No.2 filed an application under Section 54 of Cooperative Society Act, before the Registrar Cooperative Housing Society claiming that Dawoodi Bohra Cooperative Society, respondent No.3 issued Allotment Order dated 28.7.1975, Membership Card and Share Certificate for plot bearing No.32-A/312, measuring 1090 sq. yds in Block 7 & 8 of Dawoodi Bohra Cooperative Housing Society Ltd. Per learned counsel, the respondent No.2 claimed that the respondent No.5 had allotted the subject plot illegally as respondent No.5 has no lawful authority to allot or lease the subject plot to the petitioner. Per learned counsel, respondent No.1 referred the matter to its nominee Mr. S.A. Jehangir, who in Arbitration Case No.22/2007 gave award on 30.6.2007 as Sole Arbitrator and dismissed the application of respondent No.1 on the ground that since the dispute is between two Societies i.e. respondent No.3 and respondent No.5, therefore, the matter does not fall within the purview of Section 54 of Cooperative Societies Act, 1925, and as such not maintainable. It has been argued by the learned counsel that the award made by nominee of the Registrar was in accordance with law and the same was not assailable in appeal before the learned Registrar in terms of Section 56 of the Cooperative Societies Act, 1925. It has been further argued that the Registrar was not justified to reverse the finding of sole Arbitrator, while exercising power under Section 54-A of the Cooperative Societies Act, 1925, as according to learned counsel, the dispute did not touch business of a Society. Learned counsel further submitted that the petitioner has acquired right over the subject land by virtue of Form-A, Sub-License No.2 duly registered with Sub-Registrar, Jamshed Town, Karachi. Learned counsel also referred to the Allotment Certificate dated 3.5.2001, issued in favour of the petitioner, Share Certificate dated 3.5.2001, issued by Al-Riaz Cooperative Housing Society Ltd, i.e. respondent No.5 in favour of the petitioner, as Certificate dated 30.9.2003, issued by Chief Officer of respondent No.4, Layout Plan etc available at page 161 to 183 of the file to establish the title of the petitioner over the subject plot. It was, therefore, finally argued by the learned counsel for the petitioner that the impugned order passed by the learned Registrar under Section 54-A of Cooperative Societies Act, 1925 may be set aside and the Award passed by the nominee of the Registrar may be declared to be a valid legal award.

2. Conversely, the learned counsel for respondents has vehemently opposed the maintainability of the instant petition on factual as well as legal ground. As per facts stated by the learned counsel for the respondent No.2, the respondent No.3 is a Cooperative Housing Society within the meaning of section 10 of the Cooperative Societies Act, 1925 and a member of respondent No.4 a consortium of 24 Societies for the welfare and interest of their community/members. Per learned counsel, the plot bearing No.32-A/312, measuring 1090 sq. yds was created by respondent No.4 from the land of 1200 acres and after giving opportunity to all the Societies of respondent No.4, the said land was granted to respondent No.3 in the year 1975. Respondent No.2 being a member of respondent No.3 M/s Dawoodi Bohra Cooperative Housing Society Ltd., Karachi, paid the admission fee and purchased a share of the respondent No.3. It is further submitted that the respondent No.2 has made payment in respect of plot on 28.1.1975 vide Society Receipt No.273 an amount of Rs.17,521.00, and on 31.5.1975 vide Society Receipt No.273 an amount of Rs.22,739.00 was also paid. In consideration of membership and payments, per respondent No.2, Allotment Order dated 28.7.1975, Membership Card and Share Certificate in respect of Plot No.32-A/312 (measuring 1090 sq. yds.) in Block 7 & 8, Dawoodi Bohra Cooperative Housing Society Ltd., Karachi were issued to the respondent No.2. Learned counsel for the respondent No.2 referred to annexure A, A-1, B, B-1 and B-2, which are filed alongwith the counter affidavit/reply. Learned counsel further pointed out that respondent No.3 Society after delivering the possession of Plot No.32-A/312 (measuring 1090 sq. yds) to respondent No.2 issued letter of intimation, Site Plan and No Objection Certificate to the respondent No.2. Copies of which are also annexed as C, C-1, C-2 and C-3 respectively. Per learned counsel in addition to hereinabove referred title documents the respondent No.2 was also in continuous possession of subject plot and such plot was never cancelled from his name nor he was deprived of the possession of the subject plot. According to learned counsel, it was only in the month of March 2006 when the respondent No.2 has come to know that the petitioner has occupied the plot illegally without any ownership documents in respect of subject plot. The respondent No.2 approached respondent No.3s office where he was informed by the respondent No.3 that his plot is still in his name. A letter dated 13.3.2006 was also written to the Managing Director of respondent No.4. The respondent No.2 on 21.3.2006 sent two letters to respondent No.3 Society i.e. Dawoodi Bohra Cooperative Society Ltd. as well as respondent No.4 i.e. M/s Karachi Cooperative Housing Societies Union Ltd., and informed them about the illegal and bogus allotment by respondent No.5 i.e. Al-Riaz Cooperative Housing Society Ltd., Karachi to the petitioner. Per learned counsel, in response to this letter the respondent No.4 replied on 18.3.2006 and advised the respondent No.3 Society and respondent No.2 to initiate legal action against the trespasser. Copy of such letters dated 21.3.2006 and 28.3.2006 are filed as annexure D-1, D-2 and D-3 respectively. Learned counsel further pointed out that on 15.4.2006, the Managing Director of respondent No.4 sent another letter wherein the Managing Director asked for related document issued by the respondent No.5 to the petitioner, if any, regarding the allotment of plot in question. On 18.4.2006 the said letter was responded by Secretary but no documentary proof was given by the respondent No.5 either to Managing Director of respondent No.4 or respondent No.3. Per learned counsel on 24.4.2006, the Managing Director of respondent No.4 asked the Honorary Secretary of respondent No.5 to submit their respective documents regarding plot of creation, which record is not available to this day with the respondent No.3. As per learned counsel, on 4.5.2006, respondent No.5 was superseded by the respondent No.1 and Administrator was appointed to act into the affairs of respondent No.5. On 12.6.2006, the Managing Director of respondent No.4 sent a final letter to respondent No.5 but in reply of the letter on 16.6.2006 the respondent No.5 sent a letter to the Managing Director of respondent No.4, that no record was found regarding said plot in the office of respondent No.5. Reference to letters dated 12.6.2006 and 16.6.2006 (available as annexure H and H-1) was made by the learned counsel for respondent No.2 to substantiate his arguments. Learned counsel for respondent No.2 further submitted that in the instant case an Award was made in terms of the Section 54 of Cooperative Societies Act 1925, by the nominee of the Registrar. It was further submitted that, in terms of Section 56 of the Cooperative Societies Act 1925, against an order under Section 54 an appeal lie before the Registrar Cooperative Societies in terms of section 56, which was accordingly filed in the instant case. Memo of such appeal available at page 113 of the instant file was referred by the learned counsel. He further argued that the impugned order passed by the learned Registrar in Appeal No.39/2007 (ABN Case No.22/2007) is an order under Section 56 and not an order under Section 54-A as wrongly presumed by the counsel for the petitioner. The learned counsel also referred to the provision of Section 57 of the Cooperative Societies Act 1925 whereby finality to Award and certain orders has been prescribed. It was finally argued that the impugned order does not suffer from any factual or legal infirmity hence does not require any interference by this Court in its constitutional jurisdiction. Per learned counsel for the respondent No.2, the instant petition is not maintainable as the same involves disputed facts, and further the petitioner has failed to avail alternate remedy available in terms of section 64-A of Cooperative Societies Act, 1925. In support of his contentions, learned counsel placed reliance on the following case laws (1)Shaikh Ghulam Hussain v. P & T Co-operative Housing Society Ltd and another 1989 M.L.D 1838, (2) Muhammad Mehdi v. Government of Sind and others 1982 C.L.C 2374, (3) Muhammad Haneef v. Abdul Hakeem and 2 others 1991 C.L.C 758. Learned counsel for official respondents also opposed the maintainability of the instant petition on the similar grounds.

3. In order to resolve the controversy relating to proceedings required to be undertaken under the facts and circumstances of this case in terms of the provisions of Cooperative Societies, Act, 1925, it will be advantageous to reproduce and examine the relevant provisions as follows:

Section 54

Arbitration.----[If any dispute touching the business of a society (other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society) arises:---

(a)                between members or past members of the society or persons claiming through a member or past member, or

(b)               between members or past members or persons so claiming and any past or present officer, agent or servant of the society, or

(c)                between the society or its committee, and any past or present member of the society, or

(d)               between the society or its committee, and any past or present officer, agent or servant of the society, or a surety of such officer, agent or servant, whether such surety is or is not a member of the society, or

(e)                between a financing bank authorized under sub-section (1) of section 34 and a person who is not a member of a society,]

it shall be referred to the Registrar for decision by himself or his nominee, or if either of the parties so desires, to arbitration of three arbitrators who shall be the Registrar or his nominee and two persons of whom one shall be nominated by each of the parties concerned.]

A dispute shall include [the question whether a person is or was a member of a society and also] claims by a society for debts or demands due to it from [a member, past member or non-member] or the heirs or assets of a past member [or non-member] whether such debts or demands be admitted or not:

Provided that if the question at issue between a society and a claimant, or between different claimants, is one involving complicated questions of law and fact, the Registrar may, if he thinks fit, suspend proceedings in the matter until the question has been tried by a regular suits instituted by one of the parties or by the society. If no such suit is instituted within six months of the Registrar's order suspending proceedings the Registrar shall take action as laid down in paragraph 1 of this section.

Section 54-A, Registrar's power to set aside the award and order the dispute to be referred back to arbitration.---[(1) In the case of any award made by the arbitrators under section 54, the Registrar if he is not one of such arbitrators, may of his own motion or on the application of any of the parties to the award, by an order in writing recording reason therefor,---

(a)                modify or correct the award (i) where it appears that a part of the award is upon a matter not referred to arbitration and such part can be separated from the other part and does not affect the decision on the matter referred; or (ii) where the award is imperfect in form or contains any obvious error which can be amended without affecting such decision; or (iii) where the award contains a clerical mistake or an error arising from an accidental slip or omission; or

(b)               remit the award or any matter referred to arbitration to the arbitrators for reconsideration---

(i)                  where the award has left undermined any of the matters referred to arbitration or where it determines any matter not referred to arbitration and such matter cannot be separated without affecting the determination of the matters referred, or

(ii)                where the award is so indefinite as to be incapable of execution, or

(c)                set aside the award and order that the dispute shall be referred to arbitration in the manner provided in the said section:

[Provided that no order referred to in clauses (a) to (c) shall be made---

(a)                after the issue of a certificate under section 59 for the execution of the award; or

(b)               without giving the parties to the award an opportunity of being heard]:

Provided further that no order under clause (c) shall be made unless the Registrar is of opinion that---

(i)                  an objection to the legality of the award is apparent on the face of it, or

(ii)                the award has been vitiated in consequence of corruption or misconduct on the part of the arbitrators, or

(iii)               the award is in any way perverse]

(2)               In making an order under [clause (c) of ] sub-section (1), the Registrar may direct that all or any of the arbitrators who made the award shall not act again as arbitrators for deciding the dispute.

(3)               Where a dispute is referred back to arbitration under [clause (c) of] sub-section (1), the arbitrators shall make a fresh award within such time as may be fixed by the Registrar. If the arbitrators fail to make a fresh award within the time so fixed, the Registrar or his nominee shall decide the dispute]

Section 56. Appeal against award of arbitrator.--- Any party aggrieved by any decision of the Registrar's nominee made under section 54 [or sub-section (3) of section 54-A] or an order passed under section 55 by the Registrar's nominee or arbitrator may within one month of the date of the award of order [xxx] appeal to the Registrar and the Registrar shall decide the appeal.

Section 57. Finality of award in certain orders.---The award of arbitrators or a decision by the Registrar or his nominee under section 54 or section 54-A or an order passed in appeal by the Registrar under section 56 shall, subject to the provisions of sections 64 and 64-A, be final and conclusive and shall not be liable to be called in question in any civil or revenue Court].

Section 64. Appeals.--- An appeal against an order or decision of or sanctioned by the Registrar under sections 10, 16, 45, 46, 50, 50A 54 or sub-section (3) of section 54A may be made by any party aggrieved or affected by the order or decision to the Provincial Government within two months of the date of the communication of the order.

Section 64A. Power of Provincial Government and the Registrar to call for proceedings of Subordinate Officers and to pass orders thereon.--- The Provincial Government and the Registrar may call for and examine the record of any inquiry or the proceedings of any officer subordinate to them for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed and as to the regularity of the proceedings of such officer. If in any case, it shall appear to the Provincial Government or the Registrar that any decision or order or proceedings so called for should be modified, annulled or reversed the Provincial Government or the Registrar, as the case may be, may pass such order thereon as to it or him may seem fit.

4. On perusal of provisions of section 54 it appears that any dispute touching the business of a society between the members and the persons mentioned in clause (a) to (e) is required to be referred to the Registrar of Co-operative Society for decision by himself or his nominee or if either of the parties so desire, to arbitration of three arbitrators who shall be the Registrar or his nominee and two persons of whom one shall be nominated by each of the parties concerned. Similarly, on perusal of provision of section 56 of the Co-operative Societies Act, 1925, it appears that an appeal against an award of arbitrator has been provided whereby any party aggrieved by any decision of the Registrars nominee made under section 54 or sub-section (3) of section 54-A or an order passed under section 55 by the Registrars nominee or arbitrator may within one month of the date of the award appeal to the Registrar and the Registrar shall decide the appeal. Under the section 64 of the Co-operative Societies Act, 1925, by an appeal against an order or decision of or sanctioned by the Registrar under sections 10, 16, 45, 46, 50,50-A, 54 or sub-section (3) of section 54-A may be made by any party aggrieved or affected by the order or decision to the Provincial Government within two months of the date of the communication of such order. In the instant case an arbitration award was made by nominee of the Registrar in terms of section 54 of the Co-operative Societies Act, 1925 against which an appeal has been filed in terms of section 56 of the Co-operative Societies Act, 1925 before the Registrar, who has decided the appeal after hearing the concerned parties. Perusal of the impugned order reflects that the award passed by the nominee of the Registrar has been set-aside and the matter has been resolved in favour of respondent No.2 on the basis of the registered documents i.e. Sub-licence No.1, Form-Z duly registered with Sub-Registrar T Div-I bearing No.2399 with the seal of District Registrar, Karachi It appears that said documents remained unchallenged for more than about 33 years by any contesting parties before any forum as provided in terms of Registration Act, 1908. It further appears that the petitioner has failed to produce any substantial title document in respect of subject property to establish his claim before the learned Registrar, Cooperative Societies, who has non-suited the claim of the petitioner and has given findings in favour of the respondent No.2 in view of the registered title documents.

 

5. Without prejudice to hereinabove, we are of the view that the serious disputed facts are involved in the instant petition, hence the claim and counter claim of the parties on the basis of disputed facts cannot be examined and established without recording the evidence particularly through constitutional petition. Moreover, the petitioner has also failed to avail the efficacious remedy provided by the statute in terms of section 64-A of the Cooperative Societies Act, 1925, and no explanation has been submitted by the learned counsel for the petitioner in this regard. It is also pertinent to refer to provision of Section 70-A of the Cooperative Societies Act, whereby jurisdiction of the Court to entertain the matters pertaining to the affairs of the Cooperative Societies including the orders passed by the Provincial Government, the Registrar or his nominee, any Arbitrator or Liquidator etc. under the Cooperative Societies Act has been ousted. We are of the view that unless some jurisdictional error, malafide, or gross violation of principle of natural justice has been alleged by the petitioner, the award or the proceedings undertaken under the Cooperative Societies Act cannot be challenged before a Court in its constitutional jurisdiction. In the instant case the petitioner has not been able to point out any jurisdictional error or gross violation of law and principle of natural justice in the impugned order. The petitioner has also not been able to give any cogent reasons for not availing the efficacious statutory remedy provided in terms of Section 64-A of the Cooperative Societies Act under the facts and circumstances of this case.

In view of hereinabove facts, and the case law relied upon by the learned counsel for the respondents, we could not find any merit in the instant petition, which was accordingly dismissed by our short order dated 04.02.2010. These are the reasons for such short order.

 

 

JUDGE

 

JUDGE

Karachi

Dated: -7-2010