MUHAMMAD SAYEED AKHTAR, J.---A common question of law and fact is involved in W.P.No,22803 of 1999, W.P.No,22801 of 1999 and W.P. No,22802 of 1999, I propose to dispose of these three by this common judgment.
2. The facts giving rise to these petitions are that Mst. Shehla. TariqRahim/respondent No,3 was allotted/sold plots as under:--
(i) Z-60 Commercial, vide letter dated 31-3-1985 in a ballot held on 18-3-1985.
(ii)U-198 Residential vide letter dated 13-8-1979 in the open ballot held on 11th August, 1979 (iii)Y-386 Residential, sold at the then prevalent market rate vide letter dated 9November, 1983.
The plot No,Z-60, Commercial, was cancelled vide letter dated 29th October, 1994 on the ground of "non-payment of outstanding dues for long time in spite of various notices and reminders."
However, subsequently vide letter dated 5-4-1995 all the three plots were cancelled on the basis that the respondent was "not qualified for membership in terms of bylaw No,8 of the Society and the allotment of the plot was made improperly in your name". The respondent filed three petitions on 9-4-1995 before the Registrar Cooperative Societies, Lahore under section 54 of the Cooperative Societies Act, 1925 challenging the cancellation of the plots and further praying for an award in her favour. The Registrar cooperatives referred the matter to the Circle Registrar for disposal in accordance with law. He issued notices to the parties under Rule 32 of the Cooperative Societies Rules, 1927.th The said petitions were contested by the predecessor-in-interest of the petitioner, however, the parties agreed to referthe matter to the Arbitration and nominated their Arbitrators. The petitioner nominated Ltd. Col. (R) Muhammad Sadiq Khan, as its Arbitrator who accepted the nomination.
Subsequently he was replaced by Maj.(R) Liaqat Saeed Qureshi. The nominated Arbitrators of the parties submitted their joint opinion to the Circle Registrar on 18-14996 and 6-2-1996. Thereafter, the Committee of the Arbitrators announced their Award on 23-1-1996 and 12-2-1996 setting aside the cancellation of the plots in dispute. The petitioner preferred time barred appeals before the Secretary Cooperatives against the Award of the Committee of the Arbitrators. The petitioner also filed an application on 12-7-1999 before the Secretary Cooperatives seeking permission to amend the written reply filed before the Circle Registrar. The learned Secretary Cooperatives/respondent No,1 dismissed the appeals as being barred by time and not maintainable vide orders dated 26-7- 1999.
3. Learned counsel for, the petitioner contended that the Secretary Cooperatives should have treated the appeal as revision petition under section 64-A of the Cooperative Societies Act, 1925 in his suo motu jurisdiction and that the application of the petitioner for amending the written reply before the Circle Registrar should have been accepted. According to the learned counsel the application for amendment of the pleadings can be moved at any stage . See Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345. He argued that the Award was announced after the period of two months specified in Rule 32 of the Cooperative Societies Rules, 1927. He maintained that the petitioner had lost confidence in the Arbitrator nominated by it as such his award was invalid. The husband of the respondent No,3 was the Legal Advisor. His services were terminated. All the case files were withdrawn from him. He issued a notice under section 70 of the Cooperative Societies Act, 1925. He also had managed allotment/sale of the plots in favour of his wife. Reliance was also placed on Messrs Firdous Trading Corporation v. Registrar Cooperative Societies, Hyderabad Division, Hyderabad and another 1972 SCMR 91, Dr. Fozia Amber v.
Government of Punjab and others PLD 2003 Lah. 741 and Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 2005 SCMR 1814.
Conversely the learned counsel for the respondent submitted that no appeal is maintainable, against the Award given by a panel of three Arbitrators. He urged that the remedy of the petitioner lay under section 54-A of the Cooperative Societies Act, 1925 which the petitioner did not avail. He argued that the Award was not barred by time as the Committee of the Arbitrators was headed by the Circle Registrar, a delegate of the Registrar, who was competent to extend the time, which he did in the instant case. He maintained that under the bye-laws the respondent being Member of the then Society was entitled to one residential and one Commercial plot. As far as the third plot (residential) was concerned it was not allotted but purchased at the market rate as the auction of the said plot could not fetch the desired price. The said plot was advertised stating that it would be sold on first come first serve basis. He further argued that the Plot No,Z-60 (Commercial) was first .
Cancelled vide letter dated 29th October, 1994 on the ground of nonpayment of outstanding, finding that it had no legs to stand on the same was cancelled vide letter dated 5-4-1995 on the ground that the respondent was not qualified for membership. It was further argued that the cancellation of the plots is mala fide and is the result of the termination of the services of the husband of the respondent as Legal Advisor. No new ground could be urged at this stage. Reliance was placed on Sh. Rehmatullah v. Secretary to Government of West Pakistan Cooperative Department, Lahore and 3 others PLD 1975 Kar. 12, Muhammad Mehdi v. Government of Sindh and others 1982 CLC 2374, and Firdaus Cooperative Housing Society Ltd. v. Secretary, Labour and Cooperative Housing Society Ltd. v. Secretary, Labour and Cooperative Department, Government of Sindh and 11 others 1987 CLC 1457.
4. I have gone through the impugned order, perused the record and considered the arguments of the learned counsel for the parties. An appeal lies to the Provincial Government against an order or decision of the Registrar made under sections 10, 16, 45, 46, 50, 50-A, 54 or subsection (3) of the section 54-A of the said Act. In the instant case it was neither an order nor decision of the Registrar, it was a unanimous Award of the Committee of the Arbitrators. In my view against the award of the Committee of the Arbitrators no appeal is maintainable. In the case of Sh. Rehmatullah v. Secretary to Government of West Pakistan Cooperation Department, Lahore and 3 others (supra) it was held that:-- "Another mode of arbitration provided by section 57 is by way of reference to a panel of three Arbitrators, if either of the parties so desires. Of these three arbitrators, one is to be appointed by each party, and the third is to be the Registrar himself, or he may nominate anyone else on his behalf. If the provisions of section 64 are now examined in this light, it would be seen that an appeal lies against an order or decision of or sanctioned by the Registrar under section 54. In the present case, the Registrar was only a member of the panel and the decision was made by the majority. It cannot, therefore, be said that the decision that was challenged before the Secretary (Cooperatives) by the petitioner in the appeal under section 64 was an order passed by the Registrar, or a decision given by the Registrar, or that it was an appeal against an order or decision sanctioned by him."
The above view has been upheld in Muhammad Mehdi v. Government of Sindh and others (supra), Firdaus Cooperative Housing Society Ltd. v. Secretary, Labour and Cooperative Department, Government of Sindh and 11 others (supra) and Muhammad Haneef v. Abdul Hakeem and 2 others 1991 CLC 758. I respectively concur with the above view.
Even otherwise the appeal before the Secretary Cooperatives was barred by time. No explanation for the delay has been given. As far as the application of the petitioner filed before the learned Secretary Cooperatives seeking amendment in the reply filed before the Circle Registrar is concerned suffice to say that since the appeal was dismissed as being not maintainable, the question of acceptance of application would not arise.
The contention of the learned counsel that the Secretary Cooperatives should have treated the appeal as revision under section 64-A of the Cooperative Societies Act, 1925 is also devoid of force.
No such prayer was made before the Secretary Cooperatives it cannot be allowed to be raised first time in this constitutional petition. It was observed in the case of Ismail through Legal Heirs and others v. Registrar, Cooperative Societies and others 1990 SCMR 1107 as under:-- "The learned counsel for the appellants is correct in saying that it cannot be laid down as a proposition of law of universal application that a statutory authority is bound to convert a proceeding incompetently filed before him so as to bring it within his competence by having recourse to all the powers that may be a power in the statutory authority....".
Even otherwise under section 64-A of the said Act of 1925 the Provincial Government may call for and examine the record if any inquiry or the proceedings of an officer subordinate to it for the purpose of satisfying itself as to the legality or proprietary of any decision or order passed. The Arbitrators giving Award under section 54 are not officers subordinate to the Provincial Government or the Registrar.
5. The next contention of the learned counsel for the petitioner that the award was announced after the period of two months specified in Rule 32 of the Cooperative Societies Rules, 1927 and is without jurisdiction does not hold water. The petition under section 54 of the said. Act was received by Circle Registrar on 13-4-1995 who admitted the petition and issued notices to the parties under Rule 32 of the Cooperative Societies Rules, 1927 stating that unless the parties desire to nominate their Arbitrator within fifteen days, he will proceed further. The petitioner nominated Lt.-Col. (R)
Muhammad Sadiq Khan as its Arbitrator on 3-5-1995. The petitioner substituted him by Major (R)
Liaqat Saeed Qureshi. Noting of the Circle Registrar on the letter of appointment shows that the substitution was filed before the Circle Registrar on 16-10-1995. Nothing has been brought on the record to show that on what date the Committee of the Arbitrators entered on the reference. In the absence of the same it cannot be said that the Award was barred by time.
There is another aspect that the Circle Registrar was not a nominee of the Registrar for under Rule 33 of the Cooperative Societies Rules, 1927 the Registrar, by special order to be notified in the Gazette of West Pakistan may appoint any person to perform the duties of his nominee. No notification appointing the Circle Registrar as his nominee has been produced. The Circle Registrar was seized of the matter in his capacity as Registrar. The expression Registrar has been defined in section 2(f) of the Cooperative Societies Act, 1925 as a person appointed to perform the duties of a Registrar of Cooperative Societies under the Act. Under section 4 of the Act, the power to appoint Registrar vests in the Provincial Government. Since the Committee of the Arbitrators was presided over by .The Circle Registrar as its Chairman, time has been impliedly extended by him as Registrar.
Under section 54-A of the Act, the Registrar, if he is not one of Arbitrators, may modify or correct the Award. The petitioner has not F availed that remedy. In my view even that remedy is not available to the petitioner as the Committee of the Arbitrators was presided over by the Circle Registrar as Registrar.
The nominated Arbitrators of the parties submitted their joint opinion on 18-1-1996 in respect of plot No,Z-60 and on 6-2-1996 regarding the other two plots. Similarly the unanimous Awards signed by all the Arbitrators were announced on 23-1-1996 and 12-2-1996 respectively. The application for replacing Major (R) Liaqat Saeed Qureshi, Arbitrator, is dated 8th February, 1996 but was signed by the Secretary of the Society on 10-2-1996. It was never filed before the Circle Registrar. The joint opinion by the nominated Arbitrators was filed on 18-1-1996 and 6-2-1996 and unanimous Awards were announced on 23-1-1996 and 12-2-1996. In view of the above the contention of the learned counsel that the petitioner should have been allowed to replace the Arbitrator goes by the board.
Learned counsel for the petitioner also maintained that the Lahore Cant. Cooperative Housing Society Ltd. Ceased to exist on 2nd July, 1999 on the promulgation of Defence Housing Authority Lahore Ordinance XXXI of 1999. The Secretary Cooperatives had no jurisdiction in the matter. The matter should be referred to the Executive Board constituted under Defence Housing Authority Lahore Order; 2002 which came into force on September 19, 2002. I am not impressed by the argument of the learned counsel for the petitioner. The aforementioned Ordinance XXXI of 1999 is silent about the pending proceedings, bye-laws of the Society were saved by it. The jurisdiction of the Authority regarding the pending proceedings was not taken away. Defence Housing Authority Lahore Order, 2002 came into force on 19th September, 2002. Under section 25(e) of the said Order all pending disputes in respect of Authority under section 54 or any other provision of the Cooperative Societies Act, 1925 shall stand transferred and be decided by the G Administrator and any party aggrieved by his decision shall have the right of appeal to the Executive Board. Under Clause (f) of the same section all appeals and revisions either pending before the Registrar or the Provincial Government under the provisions of the aforesaid Act of 1925 shall stand transferred to the Executive Board. It is thus clear that upto the promulgation of the D.H.A. Lahore Order 2002 validity of the decisions made by the Registrar or the Provincial Government was admitted and only the 'pending disputes, appeals and revisions were to be transferred. There was no such provision in the D.H.A. Lahore Ordinance XXXI of 1999.
6. It is not denied by the learned counsel for the petitioner that the respondent is entitled to the allotment of one residential and one commercial plot. The commercial plot Z-60 was first cancelled on 29-10-1994 on the ground of non-payment of the outstanding dues. Finding that it had no legs to stand on another letter dated 5th April, 1995 was issued cancelling the plot on the ground that the respondent is not qualified for membership. The finding of the Arbitrators is that the plots were rightly allotted to the respondent by the competent Authority and it calls for no interference. It transpires from the record that the aforementioned plots have been cancelled after 10, 16 and 12 years respectively even without hearing the respondent. It was urged by the learned counsel for the respondent that the third plot was sold to the respondent on the first come first serve basis at the then prevalent market rate as the same had failed to fetch the desired price in the open auction. Learned counsel for the petitioner has not been able to controvert the same.
7. For what has been stated above these petitions have no merit and are dismissed leaving the parties to bear their own costs.