' IJAZ AHMAD CHAUDHRY,' J.---Through this judgment, I intend to decide-- ' Writ Petition No, 18973 of 2009, Writ Petition No, 20739 of 2009, Writ Petition No, 21851 of 2009, Writ Petition No, 21852 of 2009, Writ Petition No, 21853 of 2009, Writ Petition No, 23348 of 2009, ' wherein similar questions of facts and law involved as these petitions have been preferred by the petitioners calling in question the validity of order, dated 30-3-2006 passed by the Registrar, Cooperative Societies, Punjab, Lahore whereby an Award of Rs,3,80,62,948 was passed against the petitioners and the order, dated 18-8-2009 rendered by the Secretary to Government of the Punjab, Cooperative Department, through which appeals filed by the petitioners against the above order have been dismissed.
2. The brief facts necessary for the disposal of these writ petitioners are that the Punjab Board of Revenue Employees Cooperative Housing Society Limited had been registered on 19-5-1982. Ch. Abdul Qadeer petitioner No,1 was elected as President of the Society while petitioner No,2 Sofi Muhammad Rafique (deceased) was Senior Vice President, who is represented through his legal heirs as he died subsequently, petitioner No,3 Muhammad Sohail was General Secretary and Shahid Mahmood petitioner No,4 was Finance Secretary. On 1-12-2001, the Managing Committee of the Society was dissolved by the Registrar Co-operative and one Ilyas Mufti, (Assistant Registrar Cooperatives) was appointed as Administrator of the Society and as there were certain allegations that the affairs of the society were not being run in accordance with Bye-Laws, Muhammad Naeem, (Assistant Registrar Cooperative) was appointed Inquiry Officer, who conducted the inquiry under sections 43 and 44 of the Co-operative Societies Act of 1925. He submitted the report on 2- 8-2002 and declared that there were some minor discrepancies, but the allegations alleged to have been levelled against the petitioners were false. However, the Registrar Cooperative Societies (respondent NQ. 2) did not agree with the said report and after quashing the said report ordered for holding de -novo Inquiry on 1-10-2002. This request was acceded to and vide order, dated 21-10- 2002, Mian Ahmad Sher, Director Punjab Cooperative Federation was appointed as the Inquiry Officer, who held the Management Committee as guilty, vide his report, dated 6-3-2003.
Subsequently show-cause notice was issued by the Deputy Registrar Co-operative Societies, Lahore on 3rd May, 2003 and reply to the show cause notice was submitted by the petitioners on 20th September, 2003, but the award was passed on 19-8-2004. Appeals were preferred before the Secretary to the Government of the Punjab, Co-operatives Department on 21th August, 2004 whereupon the matter was remanded back to the Registrar Cooperatives, Punjab on 14-4-2005.
Again impugned award was passed by the Registrar Co-operative Societies on 30-3-2006 on the basis of the inquiry, which had already been conducted by Mian Ahmad Sher, Director Punjab Co- operative. Then the appeals were filed before the Secretary Cooperatives Govt. Of the Punjab, Lahore by the petitioners, which have been dismissed on 18-8-2009. Hence these writ petitions.
3. Learned counsel for the petitioners contend that inquiry has been conducted in violation of section 43(1) of the Co-operative Societies Act, 1925 as the inquiry has not been conducted on the motion of the Registrar nor the Registrar had delegated any power to any person in this behalf. He has referred to section 43(2) of the Cooperative Societies Act, 1925, according to which inquiry can be conducted under three conditions and the inquiry could only be conducted on the application of 1/3rd of the members of the society whereas there were 990 members of the Committee of the society, out of which only 10/12 members had made complaint before Ilyas Mufti, who was Administrator of the society at that time; that none of the allegation could be proved under the relevant law and no evidence' was produced in this regard whereas the documents produced by the petitioners along with the stand taken by them were not considered by the Inquiry Officer; that there is no provision for de novo Inquiry provided under the Cooperative Societies Act, 1925 and all the subsequent proceedings being without lawful authority are liable to be vitiated; that the petitioners got registered the sale deed in pursuance of agreement to sell to establish Phase-II of the society and price of the land was shown at the rate of Rs,61,200 per kanal to save the stamp duty in the interest of the Society whereas the actual price of the land was Rs,1,47,000 per kanal; that the allegation for sale of 7 commercial plots on cheaper rates, which resulted into causing loss of Rs,65,99,964 was unfounded as the said sale had been executed after approval by the General House; that the other allegation against the petitioners that they had sold 4 kanal 6 marlas and 56 Sq feet land of Public Park and caused loss to the tune of Rs,1,57,91,964 was also without any foundation and it was wrongly mentioned to be the commercial property; that the Registrar Cooperatives Societies, Punjab, Lahore has mentioned it a Court, but under Article 173 of the Constitution of Islamic Republic of. Pakistan, 1973, the judicial forum cannot be of executive authority and it is violation of law; and that the de novo inquiry had been conducted in violation of the Cooperative Societies Laws, which being of sustainable is liable to be set aside.
4. Mr. Ahmad Waheed Khan, Advocate for the petitioner in Writ Petition No,23348 of 2009 contends that although the Secretary Co. Operative at page 7 of the impugned order held that nothing adverse or detrimental has been placed or pleaded by the petitioners before him to intervene in the impugned order passed by the Registrar CS, Punjab, but has not considered the reply to the show cause notice given by the petitioner or referred anything which was raised by the petitioners in defence and one sided proceedings were conducted by the Secretary Cooperatives.
5. It is contended by Mr. Zahid Saleem, Advocate learned counsel for the petitioners in the other writ petitions that record was to be summoned on, the allegations against the Management Committee of the Society, but the same was never summoned and the provided record was not taken into consideration; that none of the witness was summoned under section 58 of the Cooperative Societies Act, 1925; that there was no evidence on the record to show that the amount of Rs,1,47,000 per Kanal was not paid or any amount was paid to the petitioners as kicks back out of the same whereas the NAB as well as the authorities of the Anti-Corruption Establishment have already absolved the petitioners from the said allegation; that even otherwise the impugned award did not find mention individual responsibilities of members of executive committee and in the three writ petition filed by the petitioners show cause notices were never received by the petitioners, who have been conderruied unheard.
6. On the other hand, learned counsel appearing on behalf of the respondents contends that earlier the suit was filed by the petitioner in Writ Petition No,18973 of 2009 wherein it was prayed that show cause notice, dated 19-8-2004 under section 50A of Cooperative Societies Act issued by the District Officer Co-operative and the impugned orders, dated 30-3-2006 passed by the Registrar Co-operative might be declared. Illegal and unlawful and the said suit is still pending in which all the grounds have been raised and the last date of hearing was 5th December, 2009; that the suit is still pending and has not been withdrawn before filing of this writ petition, which shows that wrong certificate has been appended at the bottom of the writ petition wherein it has been mentioned that this was first writ petition on the subject matter; that the Inquiry Officer had joined the petitioners in the inquiry proceedings, who were admittedly members of the Management Committee at the relevant time and whatever the record had been provided by them to the Inquiry Officer was placed on the file and also submitted before the, Registrar; that DOC has been notified under section 4 of the Cooperative Societies Act, 1925 to do the job as Registrar for the purpose of this society- and DOC himself is the Registrar; that nothing has been argued that the Secretary, Cooperative Societies had no authority to dismiss the appeals filed by the petitioners; that fate/future of the members of the society is at stake; that the petitioners had not moved any application to the Registrar that they wanted to cross-examine the Inquiry Officer on any point; that the Inquiry Officer had fully described about the illegalities committed and the process of open auction had not been adopted for the sale of 7 plots, but the same were sold through tenders and subsequently land reserved for the park was also converted into the plots and sold at the cheaper rates in spite of that the Management Committee .Was not empowered to convert the land of the park into residential plots; that school plots were also disposed of by the Management Committee which was not empowered to change the school plots or to sell the commercial plots in the manner adopted by them; that under section 37(e) of the Co-operatives Societies Act, 1925 if the Society wanted to make some investment, it was mandatory to get permission which was never done in the present case by the petitioners; that it has been even admitted by the petitioners there was a great difference in the price of the land shown in the sale deed for the purchase of the land i.e, Rs,61,200 per Kanals and Rs,1,47,000 alleged to have been paid and agreement is an afterthought version whereas for purchasing the and the transparent procedure was not adopted.
7. I have heard the learned counsel for the parties and also gone through the impugned orders as well as the documents attached with the writ petitions. The first question raised by the learned counsel for the petitioners is that the Registrar CS had initiated the proceedings only on the applications of 10/12 persons whereas subsection (2) of section 43 of Co-operative Societies Act, 1925 provides the procedure in this regard, which reads as under:-- "(2) The Registrar shall hold such an inquiry as contemplated subsection (1) of this section---
(a) on the requisition of society, duly authorized 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 of a majority of the Committee of the society,
(c) on the application of 1/3rd of the members of the society."
' It is claimed that only 10/12 persons had moved applications on the basis of which inquiry has been initiated by the Registrar and it cannot be said that the inquiry has been initiated under subsection (1) of section 43 of the Co-operative Societies Act, 1925, which provides that the Registrar may of his motion by himself or by a person duly authorized by him in writing in this behalf hold an inquiry into the constitution, working and financial condition of a society. The learned counsel for the petitioner has failed to substantiate that the Registrar CS on the receipt of information has not initiated probe and it was only an inquiry under subsection (2) of section 43 of the Co-operative Societies Act which he has found fit for initiation of the proceedings under subsection (1) of the Cooperative Societies Act. Although as a result of the first inquiry the proceedings were recommended to be dropped having been found that no illegality had been committed by the Managing Committee, but on the recommendations of the Deputy Registrar, who did not agree with the Inquiry Report, the Registrar CS ordered for initiation of de novo inquiry.
It was rightly held by the. Secretary Co-operative while disposing of revision petition earlier filed by the petitioners under section 64-a of the Cooperative Societies Act, 1925 that inquiry report, which was earlier submitted by the earlier Inquiry Officer had not A attained finality as it was not approved by the Registrar. Even otherwise, Registrar CS was fully empowered for holding of de novo probe and in the second inquiry it has been proved that huge amount has been misappropriated and illegality has been committed by the Managing Committee. After perusal of the report the Registrar CS had issued show-cause notice under subsection (1) of section 43 of the Cooperative B Societies Act, 1925. In such circumstances, at the time of initiation of proceedings and the issuance of show cause notice or at the time of probe it was not mandatory upon the Registrar CS to afford opportunity of hearing to the petitioners, The learned counsel for the respondents has rightly relied upon PLD 1968 Karachi 422 (Muzaffar Ali Shah and others v. Registrar, Co-operative Societies, Karachi and one another) wherein it has been held that there was no compulsion on the Registrar to collect information in a particular way before issuing show cause notice and personal hearing was not a necessary requirement of rule of natural justice. However, here the case was remanded and the petitioners were heard at the time of issuance of show cause notice. I am of the view that the Registrar CS had adopted the legal procedure to pass suo motu order for holding of inquiry in the matter of serious allegations. Learned counsel for the petitioners have relied upon Karachi Administration Employee Cooperative Housing Society Ltd. v. Government of Sindh and others (2004 YLR 1070 (Karachi)),in support of their contentions which is not applicable to this case as in the said judgment it has been held by the Division Bench of Karachi High Court that the Registrar in terms of subsection (1) of section 43 may of his own motion can hold an inquiry by himself into the constitution, working and financial condition of the Society or through a person duly authorized by him and in terms of subsection (2) he can exercise such powers when he is approached by the persons mentioned in subsection (2) i.e, the society itself in case of any inquiry against the Union of the Societies, .a majority of the Committee of the Society or at least 1/3rd members of the' society whereas action in the present case has been initiated under subsection (1) of section 43 of the Cooperative Societies Act and the argument of the learned counsel for the petitioners is misconceived as the August Supreme Court of Pakistan in Pir Illahi Bukhsh Co-operative Housing Society Ltd. Karachi v. Registrar Co-operative Societies Karachi and others (1968 SCMR 423) has already dealt with the similar question and the relevant portion is reproduced as under:-- "It seems clear enough that none of the conditions specified in subsection (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 subsection. His action, therefore, clearly lay under subsection (1) i.e,, he acted in exercise of the discretion conferred by that subsection and it does not translate his action to the second subsection that he was moved so to act by reason of complaint reaching him of maladministration of the Society's affairs,"
8. As regards the other contention raised by the learned counsel for the petitioners that no provision of C.P.C. Or Qanun-e-Shahadat had been followed while passing the impugned orders suffice it to say that under Rule 35 of the Co-operative Societies Rules, 1927, which is reproduced as under:-- "(35) Procedure in arbitration proceedings:---The Registrar or his ninnies shall record a brief note in English or in vernacular of the evidence of the parties and witnesses who attend, and upon the evidence so recorded, and upon consideration of any documentary evidence produced by either side, a decision or award, as the case may be, shall be given in accordance with justice, equity and good conscience, and shall be reduced to writing. If any party duly summoned to attend fails to appear, the dispute may be decided ex-parte. In cases where three arbitrators are appointed, the opinion of the majority shall prevail. In case of equality of votes, it shall be decided by the Registrar himself.
' If an arbitrator nominated by a party remains absent for two consecutive meeting without the permission of the Registrar or his nominee, the Registrar (where he is an arbitrator) or his nominee, as the case may, be, and the other arbitrator may proceed with the case and give award. In case of difference of opinion between the Registrar (where he is an arbitrator) and the other arbitrator, the decision of the Registrar shall prevail, and in case of difference of opinion between the Registrar's nominee and the second arbitrator, the matter will be decided by the Registrar himself." the Co-operative Societies Act, 1925 is a special law and the Registrar or his nominee under (sic) is not bound to follow C.P.C. And Qanune-eShahadat as Rule 35 ibid does not provide any procedure to follow, but the procedure has to be adopted by the Registrar in order to satisfy himself after consideration of evidence produced by either side and to give decision or award in accordance with justice, equity and good conscience.
10(sic) It is found that the learned counsel for the petitioners have given more stress to the technicalities in order to get the impugned orders set aside and have not said much upon the merits of the case whereas the allegations against the petitioners were levelled that they being members of the Managing Committee which fact is not denied by the learned counsel for the petitioners that---
(i) the Managing Committee had transferred the plots of parks and caused loss to the society to the tune of Rs,15,491,696;
(ii) the commercial plots had been sold by the Managing Committee on cheaper rates without auction of the said plots and caused loss to the society in the sum of Rs,6,599,964;
(iii) the Managing Committee had purchased the land at the rate of Rs,61,200 per kanal but according to the society actual price of the said land was at the rate of Rs,1,47,000 per kanal.
' These allegations against the petitioners were to be proved and the contention raised by the learned counsel for the petitioners is that in the general meeting it was approved by the members that sale of commercial plots and sale of the parks by converting the same into residential plots which fact has been dealt With by the Secretary Cooperative while observing that the agenda of general meeting had not been issued prior to the holding of meeting, but it was put suddenly in the' general meeting and members were unaware of said agenda. Even otherwise, manner in which said matter was put had caused serious doubt. Moreover, the petitioners who were members of the Managing Committee had not followed the original scheme of the Cooperative Society while converting the plots of parks into residential plots and had sold the same on cheaper rates.
12(sic) As regards allegation that the petitioners had sold commercial plots on cheaper rates although the petitioners have not denied the same but took the stand that the same were sold in a proper manner. On the other hand it is found that they had not fulfilled the formalities and sold the same on very cheaper rates, which resulted into causing a huge loss to the society. The third allegation against the petitioners also stood proved as they had executed the sale deed in favour of the society in the sum of Rs,61200 per kanal but the actual price was shown at the rate of D Rs,1,47,000 per kanal. The oral assertion of the petitioners that they had actually purchased the said land for Rs,1,47,000 but in order to save stamp duty they had shown less price of Rs,61,200 cannot be accepted. Both the Forums below have passed the concurrent findings of fact after discussing each and every aspect of the case in a proper manner in Mark Muhammad Hussain v. District Returning Officer and others (2008 SCMR 488) that the concurrent findings recorded by the competent authorities having the jurisdiction, cannot be interfered with by the this Court in exercise of its writ jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan.
Moreover, in Imtiaz Ahmad's case (PLD 1963 SC 382), the august Supreme Court held that the technicalities should not come in the way of substantial justice.
13. For what has been stated above, all these writ petitions having no force are hereby dismissed.