1. MUNIB AHMED KHAN, J. --- By this order, we intend to dispose of all these three petitiOns, referred to above, in which similar question of facts and law are involved.
2. Contention of the petitioner is that Section 43 of the Co-operative Societies. Act, 1925 (hereinafter referred to as the "said Act" have sub-clauses (1) to (4) and enquiry as envisaged by Section 43(1) of the said Act is to be conducted when the conditions mentioned in sub-clause (2) are to be complied with. Mr. I.H. Zaidi, learned Counsel appearing for the petitioner submits that there was no compliance of sub-section (2), therefore, notices for enquiry issued by the Registrar have no validity and same may be .Declared as such. In and of his contention, he has relied upon the case- law reported as Karachi Administration Employees Cooperative Housing Ltd. v. Government of Sindh and another, SBLR 2004 Sindh 175. He further added that there must be some show-cause notice or at least allegations to be intimated to the Society so the Society may be in a position to rebut it.
3. On the other hand, Mr. Abdul Fateh Malik, learned Additional Advocate-General Sindh submits that sub.:, sections (1) and (2) of Section 43 are independent. He submits that sub-clause (1) contains the provision of law in respect of suo motu power which may be held by the Registrar on his on motion. He has requested for dismissal of petitions. In support of his contention, he has relied upon the case laws reported as (i) Pir Illahi Bukhsh Co-operative Housing Society Ltd., Karachi v. Registrar Co-operative Societies, Karachi and others, 1968 SCMR 423; (ii) Muzaffar Ali Shah and others v. Registrar, Co-operative Societies, Karachi and another, PLD 1968 Karachi 422; and (i.e) Muhammad Naseem Khan and another v. Government of N.W.F.P.
4. Through Secretary, Department of Cooperative, Peshawar and 24 others, 1990 CLC 1693.
5. Mr. I.H. Zaidi, learned Counsel has countered by stating that the afore-mentioned authorities referred by learned A.A.G. Have been differentiated by the case of Karachi Administration Employees Cooperative Housing Ltd. .(supra).
6. We have heard the arguments advanced by learned counsel for the parties, perused the material available on record and thoroughly examined the case-laws cited at bar.
7. "43. Inquiry by Registrar.-- (1) The Registrar may of his on motion by himself or by a person duly authorised by him in writing in this behalf hold an inquiry into the Constitution and financial condition of a society.
(2) The Registrar shall hold such an inquiry as is contemplated in sub-section (1) of this section:
(a) on the requisition of society, duly authorised by rules made in this behalf to make such requisition, in respect of one of its members, such member being itself a society;
(b) on the application Committee of the society;
(c) ' on the application of 1/3rd of the members of the society.
(3) All officers and members of the society whose affairs are investigated shall furnish such information in their possession in regard to the affairs of the society as the Registrar or the person authorised by the Registrar may require.
(4) The result of any inquiry under this section shall be communicated to the society whose affairs have been investigated."
8. We have noted that Section 43 of the said Act can be divided in two types of inquiries; one is to be held by the Registrars of their on motion for which no criteria or condition has been provided while in respect of the inquiry not on suo motu basis but otherwise for which some criteria has been provided in sub-clauses (a), (b) and (c) of subsection (2). It appears that in all these three petitions, notices have been issued specifically under,Section 43(1) of the said Act. According to us that sub-section gives the power to the Registrar to hold an inquiry at his on motion for which no procedure has been provided nor the same suo motu inquiry require fulfilment of the conditions mentioned in sub-section (2). In such a situation, the same are not attracted. Our view is being supported by Pir Illahi Bukhsh, Co-operative Housing Society's case (supra) and the relevant portion of this case is reproduced as under:- "It seems clear enough that none of the conditions specified, in sub-section (2) .Of Section 43 was in existence when the order in question was made, so that the Registrar did not act under any obligation such as that created by this sub-section. His action, therefore, clearly lay under sub-section (1) he acted in exercise of the discretion conferred by that sub -section, and it does not translate his action to the second sub-section that he was moved so to act by reason of complaints reaching him of maladministration of the Society's affairs."
9. Another authority in support of the above findings is Muzaffar Ali Shah and others v. Registrar Co- operative Societies, Karachi and another, PLD 1968 Karachi 422, the Court observed as follows:--- "S. 43. Co-operative Societies Rules, 1927, R. 48 Preliminary investigation under S. 43 is in respect of affairs of a Society as distinguished .From Managing Committee. Registrar may just issue, show- cause notice on basis of information with him without holding preliminary enquiry. Requirements of natural justice are met by R. 48 which enjoins issuing of show-cause notice. No compulsion on Registrar to collect information in a particular way, before issuing show-cause notice."
10. With the above observations, these petitions stand disposed of together with the pending applications. .