' SABIHUDDIN AHMED, J.---The petitioner is the owner of a Plot No,62 in respondent No,3 society and a member of the aforesaid society. Apparently in front of his house provision for a 100 ft. Wide road existed, from which the petitioner could enter his house. However, the width of the road was reduced to 40 ft. Through a revised plan and another Plot No,61-A was carved out. Apart from addressing letters to Government officials, the petitioner formally raised a dispute with the respondent No,3 society contending that the carving out of the plot was illegal and the land becoming available owing to reduction of the width of the road was liable to be transferred to him on account of preferential alignment rights.
2. Upon receipt of such claim the respondent No,1 registered it as A.B.N., 50 of 1989 and issued notice to the respondent No,3. The written statement on behalf of the aforesaid respondent was filed by the respondent No,2 as its Honorary Secretary and the matter was referred to a panel of Arbitrators comprising of the nominees of the Registrar, respondent No,3 and the petitioner.
3. The respondent No,2 also made an application under section 54 claiming a right to allotment of the newly carved out Plot No,61-A. This application was registered as A.B.N. 47 of 1990 and without formal appointment of Arbitrators was referred to the same panel of Arbitrators deciding the petitioner's application.
4. By a unanimous Award dated 24-6-1990, the Arbitrators directed the respondent No,3 to allot the area of the newly-carved out plot to the petitioner on account of his alignment and easement rights and further directed that another residential plot be allotted to the respondent No,2 whenever it becomes available on a priority basis. The Award of the Arbitrators was questioned before the respondent No,1 by both respondents Nos.2 and 3 through separate applications under section 54-A of the Co-operative Societies Act. The petitioner submitted written replies to the two applications and the respondent No,1 disposed of both the applications by his order dated 17-1- 1991, the operative part whereof reads as follows:-- "The justice, equity and fair play demand that the available plot be allotted to the applicant Shabir Ahmad Jumani whose right of allotment has been admitted by the Board of Arbitrators in the impugned Award.
' I, therefore, modify the impugned Award to the extent that the newly-carved Plot No,61-A be allotted to Mr. Shabir Ahmed Jumani and Mr. Faiz Muhammad owner of Plot No,62 is also allowed to use his same rear passage of 10 feet wide from the said Plot No,61-A and to redress his grievance."
' The aforesaid order has been called in question through this petition.
5. Before considering the validity of the impugned order it may be pertinent to mention that by interim order dated 13-3-1991, which was confirmed on 21-8-1991 this Court had restrained the respondent No,3 from alienating the disputed plot. However, through C.M.A. No,4566 of 1995, the petitioner alleged that on 17-10-1995, he was forcibly dispossessed from the disputed area by one Abdul Ghani. Upon site inspection ordered by the Court, it was reported that some allotment orders had been issued by the respondent No,3 in favour of Mst. Rabia and Noor Jahan daughters of the aforesaid Abdul Ghani, after converting the disputed land into two plots bearing numbers 61-A/1 and 61-A/2 respectively. In November, 1995 the petitioner filed a Suit No,794 of 1995 on the original side of this Court wherein inter alia cancellation of allotment in favour of Mst. Rabia and Mst. Noor Jahan has been sought. We are informed that the suit is being duly contested and a Commissioner has been appointed to record evidence.
6. Mr. Habibur Rehman learned counsel for the petitioner basically argued that the impugned order dated 17-1-1991 was without jurisdiction and beyond the scope of the powers of the Registrar to modify or set aside an Award made by the Arbitrators under section 54 of the Act. To be able to appreciate the contention, it may be proper to reproduce section 54-A(1), which reads as follows:-- "54-A, (I) Registrar's power to set aside the award and order the disputes 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 reasons therefore:---
(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 undetermined any of the matter 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 after the issue of a certificate under section 59 for the execution of the award: ' 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."
7. It is evident that the powers of the Registrar to modify or correct the Award are limited to a very large extent. Under sub-clauses (i) and (ii) he could separate such parts of the Award which dilated upon matters not referred to or correct formal defects provided that the decision of the Arbitrators was not affected. Under sub-clause (iii) only clerical errors could be corrected.
Therefore, Mr. Habibur Rehman appears to be right in asserting that the respondent No,1 transferred the power of modification inasmuch as the decision of the Arbitrators was practically reversed to the extent that the petitioner's claim for allotment, upheld by the Arbitrators, was rejected.
8. Indeed the clause (c) also enables the Registrar to set aside the Award but such power is also hedged by certain preconditions. In the first place the proviso to the aforesaid clause stipulates that the power to set aside can only be exercised in case of an objection to its legality being apparent on the face of the Award or the same being perverse or having been procured on account of misconduct with the Arbitrators. No such objection appears to have been raised on behalf of the respondents who only urged that the power of modification of the Award was exercised in passing the impugned order. Moreover upon setting aside an Award the Registrar is required to refer the case for fresh arbitration, which was not done in the instant case.
9. Mr. Zahid Margoob learned counsel for respondent No,2 however, argued that section 56 of the Act also conferred certain appellate powers upon the Registrar and even if the impugned order is found to be outside the scope of section 54-A, the Court could always ignore the reference to section 54-A in the respondent's application and the order be treated as having been passed under section 56 which is reproduced as follows:-- "56. Appeal against award of arbitrator. Any party aggrieved by any decision of the Registrar's nominee made under section 54 or subsection (3) of section 54-A or an order passed under section 55 by the Registrar's nominee or arbitrators may within one month of the date of the award or order appeal to the Registrar and the Registrar shall decide the appeal."
10. We agree with learned counsel to the extent that the impugned order could always be upheld if it could be shown that it fell within the parameters of the appellate powers of the Registrar under section 56. Nevertheless a bare reading of the aforesaid section shows that an appeal could lie against an Award of the Registrar's nominee under section 54 or section 54-A(3) but only an order by the Arbitrators under section 55 attaching a particular property could be questioned in appeal.
In the instant case there is no order of attachment and obviously an Award by the Arbitrators and not merely Registrar's nominee could not be questioned under section 56 either.
11. However, it was pointed out that whereas a panel of Arbitration was nominated in ABN Case No,50 of 1989 filed by the petitioner no such panel was formally constituted in A.B.N. Case No,47 of 1990 and the Award ought to be treated as one having been made by the Registrar's nominee alone. We are afraid in the circumstances of the case no weight could be attached to this technical objection either. As is evident from the record the respondent No,2 himself was representing the respondent No,3 society and had the occasion to nominate an Arbitrator on the latter's behalf. Upon subsequently filing A.B.N. Case 47 of 1990 he himself consented to the trial of the two cases together and participated in the proceedings before the panel of Arbitrators.
Therefore, we are of the view that the Arbitrators were lawfully empowered to decide both the cases and the subsequent objection that the matter was referred to arbitration without his consent is of no consequence.
12. Mr. Zahid Margoob then argued that the petition was not maintainable in view of the fact that an alternate remedy of appeal to the Provincial Government within two months of the passing of the order was available to the petitioner. Mr. Habibur Rehman responded by contending that the alternate remedy ought to be equally efficacious and this Court is not divested of jurisdiction merely because such remedy exists. Indeed we are aware cases where it has been held that when the order impugned is claimed to be without jurisdiction the remedy by way of Constitutional petition rather than an appeal in the same hierarchy is more efficacious. One may refer to the famous case of Murree Brewery v. Pakistan PLD 1972 SC 279 decided by the Honourable Supreme Court.
13. Moreover, in cases where the alternate remedy has not been availed within the time stipulated by the statute, the Courts have generally declined to grant relief to negligent litigants. In the instant case however, the order dated 17-1-1991 was questioned in this petition presented on 24-2-1991 and admitted on 13-3-1991 well within the period of limitation provided for an appeal. It would therefore, be extremely unjust to require the petitioner to seek redress in an appeal after the expiry of more than 13 years. This objection therefore, must also fail. For the foregoing reasons we must hold the impugned order dated 17-1-1991 to be without jurisdiction and of no legal effect.
14. With respect to C.M.A. No,4566 of 1995, one Abdul Ghani appeared and was represented by Hafiz Abdul Baqi Advocate. He raised a plea that the disputed area had been converted into two plots which was allotted to his daughters Rabia and Noor Jahan before the controversy arose.
Surprisingly enough our on this was not stated by the respondent No,2 who was the General Secretary of the respondent No,3 Society in his written statement in A.B.N. Case No,50 of 1989 and in fact he proceeded to make his own claim over the area though A.B.N. Case No,47 of 1990. However, learned counsel for the petitioner instead of arraying the said claimants as parties to this petition filed an independent suit questioning the alleged allotment which is still pending and which he was not prepared to withdraw. In the circumstances, when the petitioner has availed of an alternate remedy by way of a civil suit it is not possible for us to usurp the jurisdiction of a competent Civil Court already seized of the matter. In the circumstances, we cannot grant any relief to the petitioner against Abdul Ghani or his two daughters and would therefore, hold that their respective disputes may be resolved in the civil suit. These are reasons for the short order passed 27-10-2004.