NASIR-UL-MULK, CJ. --- Civil Appeal No. 775 of 2002 and Civil Petition No. 2428 of 2010 are disposed of by this common judgment on account of the order passed in Civil Petition No. 2482 of 2010 on 15.12.2010, directing that in view of a common question involved in both the matters, they be heard together. The point in common is the interpretation of Section 70 of the Co-operative Societies Act, 1925 (hereinafter referred to as 'the Act of 1925') as to whether the members of a Society alone are required to issue notice to the Registrar before filing suit against the Society or the requirement is equally applicable to outsider suing the society. There are two other legal questions involved in Civil Appeal No. 775 of 2002; namely, the requirement of notice to the Cantonment Board under Section 273 of the Cantonment Act, 1924 (hereinafter referred to as 'the Act of 1924'), and whether the road constructed by the Society in its housing scheme falling within the limits of the Cantonment Board can be used by the public-at-large under Section 108 of Act of 1924 or the Society can restrict its use to the residents of its housing scheme.
2. The leave granting order has comprehensively narrated the facts of Civil Appeal No. 775 of 2002, including submissions by the counsel and the points for determination. The same has been reported as Lahore Cantt. COOPERATIVE Housing Society Limited v. Messrs Builders and Developers (Pvt.) Ltd. and others (PLD 2002 SC 660). In order to understand the background in which the above question has arisen, following portions of the said order are reproduced:-- "This petition calls in question concurrent findings of learned Lahore High Court, Lahore vide judgment, dated 9th February, 1999 and judgment and decree of Civil Judge First Class, dated 27th November, 1995 respectively.
2. Briefly stating facts giving rise to instant petition are that the respondents instituted a suit against the petitioner for declaration, mandatory and permanent injunction with averments that it is a private limited company engaged in the business of developing sites for housing purposes. It has purchased a piece of land situated adjacent to Phase-III of the land of petitioner but the petitioner by constructing a boundary wall had completely blocked the access of the respondent towards its land. It was also the case of the respondent that under the Cantonments Act, 1924 (hereinafter referred to as the "Act), all the roads and streets in the Cantonment Area belong to and vest in the Cantonment Board; therefore, petitioner has no authority in law to block the access from the respondent/plaintiff's land to the road which vests in and belong to Lahore Cantonment Board, Lahore Cantt. Therefore, the construction of the boundary wall by the petitioner to block the road of Cantonment Board is absolutely illegal and it tantamount to deprive the plaintiff/respondent from the use of the land belonging to it etc. Ultimately a decree was claimed in the following terms:-- "In the circumstances it is respectfully prayed that this suit may kindly be decreed and it may kindly be declared that the plaintiff has a right in law to use the roads from Points A' to X' in the plan annexed and to the user of the other roads shown as Gray in the plan annexed herewith. It is further prayed that the defendants be directed by issuing a mandatory injunction to demolish the boundary wall constructed from points 'A' to 2'. It is also prayed that the defendants be permanently restrained from interfering with the plaintiff's user of the roads shown as gray in the plan attached. The costs of the suit may also be awarded.
7. Learned counsel appearing for the petitioner emphasized as fallows:--- "1. Suit filed by the respondent against petitioner registered Cooperative Society was not maintainable without serving notice upon it within the contemplation of Section 70 of the Cooperative Societies Act, 1925. Reliance was placed on the judgment reported in 1996 SCMR 1196 and PLJ 1996 SC 1855.
2. The conclusion of the High Court that as respondent's counsel has not pressed for the relief of declaration, therefore, non-service of notice upon the Cantonment Board under Section 273 of the Act is not sustainable in law because without getting deleted the relief of declaration from the plaint by means of amendment departure from compliance of mandatory provision of law was legally impossible.
3. Petitioner Cooperative Society being the exclusive owner of the land acquired by it for the construction of the housing scheme and the roads, therefore, learned High Court had not interpreted the provisions of Section 108 of the Cantonment Act, 1924 in its real perspective.
4. Petitioner has constructed the private roads for the use of their Members, therefore, the same cannot be treated as public roads for the use of respondent/plaintiff society as well.
5. The respondent/plaintiff is not entitled legally to use the road because no right of easement is available to it.
6. The concurrent findings recorded by both the Courts are based on misinterpretation of Section 70 of the Cooperative Societies Act, 1925 and Sections 108 and 273 of the Act, therefore, interference is called for by this Court.
7(sic) Learned counsel for respondent No. 1 contended as under:--
1. That the suit filed by respondent No. 1 without service of notice under Section 70 of Cooperative Societies Act, 1925 was competent in view of the fact that there was no dispute between the members of the society and relief sought for does not relate to the business of the society.
2. No notice was required to be issued by the respondent to the Cantonment Board according to the provisions of Section 273 of the Act because the relief of declaration was not pressed before the Trial Court. As such a suit seeking injunction can proceed without issuing such notice.
3. Admittedly roads/streets constructed by the petitioners are maintained/managed and 'looked after by the Cantonment Board out of the local furs, therefore, the Cantonment Board by virtue of provision of Section 108 of the Cantonments Act has acquired proprietary rights over the land on which the roads/streets etc. have been constructed as such general public including the respondent can use the same as a matter of right.
4. Petitioner being registered cooperative society is legally bound to extend the benefit of the roads which have been constructed for the members of the society in view of the provision of Section 13 of the Easements Act.
5. Learned High Court has correctly interpreted the provision of Section 108 of the Act.
6. The concurrent findings of fact recorded by the Trial Court and confirmed by the Appellate Court admit no interference by this Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan as petitioner has failed to make out a case involving substantial question of public importance.
8. Learned counsel appearing for Cantonment Board subscribed to the version of counsel for respondent No. 1 and prayed for dismissal of the petition being devoid of force.
9. We have examined the respective contentions put forward by both the sides. In instant case interpretation of Section 70 of the Cooperative Societies Act, 1925 seems to be one of the most important questions. There are divergent views in this behalf depending upon the pleadings of the parties but we think that essentially the decision of this point is relatable to the business of the society because a suit against a society or its officers in respect of any act touching the business of the society will not be competent, without issuing notice two months prior to its institution.
Prima facie we are of the opinion that the expression "business" has to be interpreted comparatively in a broader sense because ordinarily this word includes all those activities, which are carried out by a particular party to achieve its object for which it has been incorporated.
Similarly significance of the interpretation of Section 108 of the Act can also not be denied. It may be noted that petitioner's case throughout had been that proprietorship of the land underneath the roads vests in the society and roads have been constructed over there by it by spending funds from its own resources with a view to provide better facilities of communication to its members to whom it has persuaded for making investment by constructing houses for one of the reason that it provides better services including construction of roads etc. to its inhabitants.
Whereas according to the petitioner's case all streets and the pavements etc. vest in the Cantonment Board. Although one of the witnesses appeared on behalf of the Cantonment Board and stated that roads etc. vested in it but he failed to explain whether the construction of the road was carried out by it of the local funds or investment was made by the petitioner. Likewise the provisions of Section 273 of Cantonments Board Act, 1924 has its own importance because whenever a declaration is sought against it a notice is required to be issued. Therefore, the question for examination would be as to whether without seeking amendment in the relief clause respondent No. 1 could have been allowed to delete the prayer clause of declaration, if so, what would be its effect?
10. We may also observe that as far as respondent No. 1 is concerned it has got its own entity, as such there was heavy burden on it to establish its legal right either under the Easements Act or under any other provision of law. to contend that the roads constructed by the petitioner situate beyond the boundary wall which exist between both the societies can be used by it as a matter of right and the Court without giving declaration can direct the petitioner to demolish the wall.
11. To examine inter alia above aspects of the case we grant leave to appeal and direct that pending decision of appeal arising out of this petition operation of impugned judgment shall remain suspended. However, keeping in view the importance of the matter we would observe that let the office fix the appeal within three months subject to soliciting necessary approval from Hon'ble Chief Justice."
3. The background facts of Civil Petition No. 2428 of 2010 are that the Respondent, Punjab Co- operative Housing Society brought a suit, against the Lahore Cantt. Cooperative Society, predecessor-in-interest of the petitioner, the Defence Housing Authority on 26.08.1987, for grant of perpetual injunction to restrain the defendants from interfering in the construction of 60 feet passage approach road to a housing scheme proposed to be established by the Respondent/plaintiff. It was averred in the plaint that the Respondent had purchased land measuring 1300 Kanals, situated in Mauza Kamahan, Lahore in the year 1982 for a housing scheme called the Punjab Co-operative Housing Scheme-I. That in order to construct the approach road from Ghazi road to the Scheme, the Respondent had obtained sanction and 'No Objection Certificate' from the Cantonment Board as well as the GHQ to convert a passage into a complete metalled road. That the Respondent had spent a huge amount on the completion of the road. That thereafter the petitioner purchased land in its Phase-IV and got the plan approved showing the road in question as being owned by the petitioner. Subsequently, a dispute arose between the defendants and the plaintiff over the use of the said passage for the housing society of the Respondent/plaintiff, resulting in filing of the suit. One of the objections taken by the petitioners/defendants was the maintainability of the suit on the ground that the Respondent/plain tiff had not served upon the Registrar a notice, a legal requirement under Section 70 of the Act of 1925. After recording evidence the suit of the Respondent/plaintiff was decreed by the Trial Court.
The petitioners' first appeal before the Additional District Judge, Lahore failed whereafter they filed revision petition before the Lahore High Court. Before the Courts two legal challenges were made to the very maintainability of the suit, namely the failure of the Respondent/plaintiff to comply with the mandatory requirement of Section 70 of the Act of 1925 and that the suit was barred by the principle of res judicata as the earlier suit filed by the Respondent/plaintiff for permanent injunction against the petitioner had been dismissed for non-prosecution. Both the points were decided against the petitioner and on the factual plane the High Court found no ground to reverse the findings of the two Courts below.
4. We first take up the question of under Section 70 of the Act of 1925 as it is common to both the matters. The said provision reads:--- "70. Notice necessary in suits.---No suit shall be instituted against a society or any of its officers in respect of any act touching the business of the society until the expiration of two months next after notice in writing has been delivered to the Registrar, or left at his office, stating the case of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left."
5. Before referring to the submissions made on behalf of the parties, it may be noted that the Respondent/plaintiff in C.A. No. 775 of 2002 had served notice on the Registrar. However, according to the appellants, the suit was filed before expiry of two months of service of notice in that it was filed on 26.02.1990 whereas the notice under Section 70 was served on the Registrar on 17.02.1990.
The service was otherwise proved through Muhammad Rafiq Khan, Assistant (Technical) in the office of the Registrar Cooperative Societies Lahore (PW-7) and exhibited as Ex.7/1. Upon receipt of the notice the Registrar, on 04.03.1990, sought reply of the appellant, which was given on 11.02.1990.
Considering that the matter could be properly adjudiCated upon only by the Civil Court the Registrar filed the case on 02.05.1990. Mr. Shahid Hamid, learned counsel representing Respondent Nos. 1 and 2 Civil Appeal No. 775 of 2002, submitted that the appellant had filed written statement on 19.05.1990 where-after on 11.04.1991 the appellant had moved an application for rejection of the plaint on the sole ground that proper Court-fee had not been paid, which was eventually affixed.
The learned counsel pointed out that no objection was raised to the maintainability of the suit under Section 70 of the Act of 1925.
6. On the legal plane, the learned counsel appearing for the appellant submitted that the phrase 'touching business of the society' in Section 70 of the Act of 1925 should be construed in a broader sense as the term 'business' ordinarily includes all activities carried out by a party for the purpose of achieving its business objectives. That the provision does not either impliedly or expressly restrict the legal requirement of notice to only members filing suit against their Society. The learned counsel pointed out that in the very first opportunity the appellant had, in the written statement, objected to the maintainability of the suit on the ground of non-fulfilment of the legal requirement of Section 70 of the Act of 1925.
7. Responding to the above contentions, the learned counsel representing the Respondents submitted that the appellant did not deny that notice was served. That the purpose of the notice was to give the Registrar two months' time to resolve the matter which was duly served when the Registrar had sought reply of the appellant. It was further pointed out that the issue has now lost its importance as during the pendency of the proceedings before the Trial Court the Lahore Cantonment Cooperative Housing Society Limited was duly dissolved and was taken over by the Defence Housing Authority (the appellant) in terms of the Defence Housing Authority Lahore Ordinance, 1999 and thus the procedural requirement of Section 70 of the Act of 1925 had ceased to apply. It was next argued that seen in the light of other provisions of the Act of 1925 dealing exclusively with the working and business of the Society registered under it, the legal requirement of Section 70 of the Act 1925 can only apply to its members aggrieved of the running of the business of the Society.
8. The judgments of the various High Courts are at variance on the question as to whether Section 70 is attracted only when the plaintiff is a member of the society. In Shamsur Rehman v. Nadir Khan (2005 CLC 215), Lahore Cantt. Cooperative Society Limited v. Muhammad Asif (1998 MLD 1850), Muhammad Azim v. P.E.C.H.S. Ltd. (PLD 1985 Karachi 481) it was held that the requirement of notice under Section 70 was only applicable to the suits filed by the members of the society, whereas, in Metro Cooperative Housing Society Limited v. Bonanza Garments Industries (Pvt.) Limited (1996 MLD 593), Muhammad Ali Memorial Cooperative Housing Society v. Syed Sibtey Hasan Kazmi (PLD 1975 Karachi 428) an extended meaning was given to the phrase touching the business of a society in Section 70 that its application was not limited to members of the society.
9. Section 70 of the Act cannot be read in isolation. The delivery of notice to the Registrar by a person intending to file a suit against a Society and waiting for two months before he does so cannot be taken as a mere formality. To say so would render the provision meaningless. To find out its purpose one has to refer to Section 54 of the Act of 1925, which contains the same phrase 'touching the business of a society'. The said provision provides for arbitration and reads:--- "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 hims,ff or his nominee, or if either of the parties so desires, to arbitration of 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- members 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 claimant, 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 suit 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."
10. The above provision provides for resolution of dispute 'touching business of a society' by the Registrar by himself or through arbitration if the parties so desire. The nature of disputes covered by Section 54 of the Act of 1925 has been specified in Clauses (a) to (e). They all relate to disputes regarding internal affairs of a Society in-between its members or of members with the society or its committees. Both Sections 54 and 70 of the Act of 1925 are limited to disputes regarding 'business of the society'. As the phrase appears in different provisions of the same statute as a rule it is to be assigned the same meaning. Though Section 70 does not make reference to Section 54 of the Act of 1925 but without relating it to the latter the issuance of notice would be meaningless. The two months wait period provided under Section 70 is to enable the Registrar to resolve the dispute. The only provision in the Act of 1925 empowering the Registrar to resolve disputes is Section 54. The proviso to the Section provides for suspension of the proceedings if the Registrar is of the opinion that the dispute involves complicated question of law and facts, which can be decided only through a regular suit. That is precisely what the Registrar did in the present case. After the notice was delivered by the Respondent to the Registrar, the latter sought reply of the appellant and filed the same when he found that the matter was one which could only be decided through a civil suit.
Restricting the provision of Section 70 to only those disputes covered by Section 54 is consistent with the scheme of the Act of 1925, providing for regulating registration, working and business of the cooperative societies. The Registrar has been conferred a pivotal role in implementing the obligations cast upon the Society and its members including hearing complaints and implementing his decisions. Section 70 of the Act of 1925 does not apply to all suits instituted against the Society or any of its officers. It is restricted to suits in respect of any act 'touching the business of the society'. If, as held in some of the judgments of the High Court and canvassed by the learned counsel for the appellant, the 'business of the society' should be given an expanded meaning so as to include any business dealing by an outsider with the Society is accepted, then perhaps barely any suit field against the society would be excluded from the application of Section 70 of the' Act of 1925. The only reasonable construction consistent with the scheme and purpose of the Cooperative Societies Act would be to limit the application of Section 70 to matters falling under Section 54 of the Act.
11. There is another aspect in C.A.No. 775 of 2002 in that notice under Section 70 was given by the plaintiff/respondent but the suit was filed before the expiry of two months. However, the Registrar had sought reply of the Society and had filed the case after it found from the reply that the dispute was one which should be resolved through a civil suit. There was however substantial compliance with the provision of Section 70 of the Act. Additionally, the grievance of the plaintiff was that the defendant society illegally obstructed the plaintiff of his right of way and use of public road, though located inside the defendant's housing scheme. The defendant/society was engaged in the business of developing housing schemes. Dispute over use of public road between the plaintiff and the defendant can hardly be said to be a matter related to the business of the society. The same goes for the dispute between plaintiff and the defendant, both the housing societies in C.P. No. 2428 of 2010 where also the dispute related to the use of a particular road. Both the parties were engaged in the business of developing housing schemes.
12. The other legal point raised in the Leave Granting Order relates to a similar provision, namely, Section 273 of the Act of 1924 which also requires service of notice on the Cantonment Board regarding "any act done" by the Board or its officers. It bars the filing of suit on the allegation so made in the notice before expiration of two months of notice. Sub-section (4) however excludes the requirement of notice where the plaintiff only seeks relief of injunction. The issuance of notice under Section 273 was not an issue in C.P. No. 2428 of 2010 where the plaintiff had only prayed for grant of injunction against the defendant society to restrain it from closing of a passage which had access from the housing scheme of the Plaintiff. The suit, out of which C.A. No. 775 of 2002 arises, was for declaration as well as injunction. No notice was served on the Cantonment Board in terms of Section 273 of the Act. The plaintiff however decided not to press the relief for declaration during the trial. It may be noted that the plaintiff in the said case had claimed relief against the Housing Society and had neither made any allegation nor sought any kind of relief against the Cantonment Board. The Board was imp leaded as a defendant as it was case of the plaintiff that the roads constructed in the Housing Scheme of the defendant society were being maintained by the Board and had thus become the Board's property and available for use by the public. The service of notice under Section 273 is required only when the suit is to be instituted for "any act done or purported to have been done in pursuance of the Act or Rule or Bye-law made there under". Sub- section (2) of Section 273 of the Act states the purpose of the notice, that is, to provide opportunity to the Board to tender "sufficient amends to the plaintiff." In case the plaintiff does not accept the amount tendered it cannot recover any excess and also be liable to pay the costs incurred by the Board after such tender. The whole idea of Section 273 is to make amends to the aggrieved plaintiff of the act done by the Cantonment Board before the plaintiff files the suit. The plaintiff in C.A. No. 775 of 2002 had neither any grievance nor had made any claim against the Cantonment Board. In this view of the matter notice under Section 273 of the Act was not required to be given by the plaintiff. Even otherwise the suit was rendered maintainable under Section 273(4) of the Act by the plaintiff dropping the relief for declaration and limiting his claim to the grant of injunction.
13. Turning to the facts of C.A. No. 775 of 2002, the dispute relates to the construction to be placed on Section 108 of the Act which enumerates the properties belonging to the Cantonment Board. Of relevance is clause (g) of Section 106 which provides that "all streets and the pavements, stones and other materials thereof and also all trees, erections, materials, implements, and things existing on or appertaining to streets shall vest, acquired or provided or is maintained by the Board" shall vest in and belong to the Board and shall be under its direction, management and control. It is the case of the appellant that the road which the plaintiff/respondent seeks to use was constructed by the defendant and lays within its housing scheme; that it was meant for the exclusive use of the residents of the houses located inside the scheme. However DWI, Muhammad Ejaz, Assistant Land Superintendent Lahore Cantonment Board, produced by the defendant stated that all the roads and the footpaths constructed inside the defendant's housing scheme were being maintained by the Board. There is no evidence on the record to contradict this statement of an official of the Cantonment Board who appeared as witness of the defendant. In view of this piece of evidence that both the Courts have rightly found that the road in question vested in the Lahore Cantonment Board by virtue of Section 108 of the Act and thus being a public road defendants were not entitled to prevent the plaintiff from its use.
14. The dispute between the parties in C.P. No. 2428 of 2010 also related to the use of land where the defendant/petitioner claimed that the same belonged to it whereas the plaintiff/respondent society alleged that the same being a public road it cannot be prevented from its use. The High Court had on the basis of the concurrent findings of the Trial and the Appellate Court upheld the claim of the plaintiff. The Appellate Court had comprehensively examined the evidence produced by the parties. From the evidence of Patwari and other witnesses as well as the documentary evidende produced, it was found that before the housing schemes of the plaintiff and the defendants were launched there was a public path from the Ghazi Road to the land now included in the plaintiff's housing scheme. That the road was constructed thereon Which was used by both the societies; that during the construction work carried out by the defendant the road was damaged. the defendant had reassured the plaintiff that the road will be reconstructed but after its reconstruction the defendant blocked the same by installation of barbed wires. This infuriated the public at large who protested and thus litigation ensued. It does appear that a public path existed which was used by the inhabitants of the area before the two societies started building their housing projects. In the light of the overwhelming evidence three Courts have rightly maintained the claim of the plaintiff/ respondent. No interference is called for by this Court in the factual determination.
15. For the foregoing reasons both, Civil Appeal No. 775 of 2002 and Civil Petition No. 2428 of 2010, are dismissed with no order as to costs.