' AZIZ-UR-RAHMAN, J.---By means of this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 filed on 13.12.2012, the Petitioner viz. Abdul Haq son of Abdu Ghani has challenged/ impugned order dated 24.10.2012 [Annexure 'I' to the Mon passed by Minister for Law and Prisons, Government of Sindh, whereby, the Revision Application No,SO (T)6(05)2010-11, filed by Respondent No,1 herein viz. Thakumal son of Chhotumal, was allowed with direction to the Respondent No,3 namely Makli Co-operative Housing Society Ltd. through its' Administrator to execute the LEASE of the 'suit plot' i,e, Plot No,A-94, Unit No,1, measuring 600 sq.yds, Hashimabad Township of Makli Co-operative Housing Society Limited, Thatta, [hereinafter referred to as 'subject plot'] in favour of the Respondent No,1 and further to take necessary action for cancellation of the 'REGISTERED LEASE' dated 18.07.1993 [Annexure 'B' to the MoP], executed in favour of Respondent No,1 through appropriate legal process. The 'Award' dated 12.01.2011 passed by Registrar's Nominee [Annexure 'E' to the MoP] and Order dated 27.09.2011 [Annexure 'F' to the MoP], passed by the Registrar, Co-operative Societies Sindh, camp at Karachi, were accordingly set aside however, with no order as to cost [Annexure 'F/1' to the MoP]. The Petitioner herein thus feeling himself 'dis- satisfied' and 'aggrieved' by the 'impugned order' dated 24.10.2012 [Annexure 'I' to the MoP], passed by Minister for Law and Prisons, Government of Sindh, has assailed the same through the instant Constitutional Petition with the following prayers:-- A).To hold and declare that the impugned decision dated.
24.10.2012 is without jurisdiction and a nullity in the eyes of law.
B).Direct the Respondent No,3, its agent, nominee, assigns and any person or persons claiming through or under it to restore the subject plot [A-94, Unit No,1, measuring 600 square yards Hashimabad Township of Makli Co-operative Housing Society Limited Thatta] to Petitioner.
C).Permanently restrain the Respondents, their agents, employees, and/or any person(s) claiming through or under them or under their [said Respondents] instructions or directions, from alienating, encumbering, mortgag-ing, creating any type of charge, creating any third party interest in respect of the subject plot [A-94, Unit No,1, measuring 600 square yards Hashimabad Township of Makli Co-operative Housing Society Limited Thatta] and interfering in the lawful possession of the Petitioner regarding the same, in any manner whatsoever.
D).Direct Respondent No,5 to issue execution Certificate in terms of Award dated 12.01.2011 and initiate prosecution against Respondent No,2 and members of Managing Committee who illegally held office beyond elected tenure and committed this illegality, as reflected from Order of Supersession dated 28.01.2009 and for concealing facts regarding execution of registered lease deed as verifiable from Society Lease Register.
E).Any other relief(s) deem fit in the circumstances .
F).Cost of the proceedings.
2.Resume of facts of the Petitioner's case is that the Petitioner is a member of Respondent No,3 Society since, 1975, whereas, private Respondent No,1 herein has raised an 'adverse claim' in respect of the 'subject plot' i,e, Plot A-94, Unit No,1, measuring 600 square yards, Hashimabad, Township of Makli Co-operative Housing Society Limited Thatta, Sindh. The Respondent No,2, per assertions made in the Memo of Petition [In short MoP], at the relevant time, was the Chairman of Respondent No,3, when the 'subject plot' in favour of Petitioner was illegally cancelled and purportedly, the same was reallocated in the year, 2008 to Respondent No,1 viz. Thakumal son of Chhotomal. The Respondent No,3, as averred, is a Cooperative Housing Society Limited in terms of the Co-operative Societies Act, 1925 [Act VII of 1925], whereas, the Respondent No,4 i,e, Minister for Law and Prisons, Government of Sindh, has passed the 'IMPUGNED ORDER' dated 24.10.2012, as stated, in violation of the settled principles of law. In view of the statutory Role of Registrar Co- operative Societies as being performed, under the Act, 1925 [Act VII of 1925], and relieves sought by the Petitioner herein, Registrar Co-operative Society, has thus been impleaded in the instant Petition as Respondent No,5.
3.Per Petitioner's version, the 'subject plot' was allotted by Respondent No,3 Society to the Petitioner in the year, 1979, and thereafter, besides completing all other requisite codal formalities, payment towards' cost of land', 'charges'/ 'Development Charges' was also made in 1979. Moreover, ground rent of Rs,288/- covering the period from 11.01.1984 upto 31.10.1992 was also paid. The Petitioner, as stated, has also paid 3rd installment of 'Development Charges' of Rs,1800/- on 17.7.1985. Apart from the aforesaid payments , Petitioner has also contributed towards' Masjid fund'. Respondent No,3, in view of the above, eventually granted/executed a 99 years' ownership Lease dated 18.7.1993 in favour of Petitioner [Annexure 'B' to the MoP]. The Petitioner, is thus holding a 'registered title document' in his favour viz-a-viz the 'subject plot' and, no doubt, this was also in the knowledge of Respondent No,1 amongst others.
4.Sometime, in the middle of 2009 and, of course, to the shock and dismay of the Petitioner, the Petitioner herein, suddenly came to know that the 'subject plot' has been re-allocated in favour of Respondent No,1 viz. Thakumal son of Chhotumal by Respondent No,3 Society that is to say, by way of 'ALLOTMENT ORDER' dated 5.5.2008. The Petitioner, thereafter, made inquiries regarding the blatant illegality[ies] committed by Respondents Nos,2 and 3. The Petitioner, for and to seek redressal of his grievance thus constrained to file a F.C. Suit No,88 of 2009 [Abdul Haq son of Abdul Ghani v. Makli Co-operative Housing Society Limited and 5 others [i,e, the present Respondents], before the Senior Civil Judge Thatta, Sindh. Nevertheless, after hearing of an Application under Order VII Rule 11, C.P.C., filed by the present Respondents Nos,1 and 6, the 'plaint' in the aforesaid suit was, however, rejected seemingly in view of bar contained in Sections 54, 70 and 70-A of the Co- operative Societies Act, 1925 [Act VII of 1925]. The 'operative part' of order dated 21.10.2010, passed by Senior Civil Judge, Thatta, Sindh [Annexure 'C/1' to the MoP], for ease of reference is reproduced as follows:-- "Keeping in view the arguments and the case law relied on by the learned counsel for the defendants, I am of the considered opinion that plaint is barred under sections 70, 70-A and 54 of Co-operative Societies Act, 1925, hence the same stands rejected with no order as to costs."
5.In view of the above position, the Petitioner, filed an 'APPLICATION' under Section 54 of the Co- operative Societies Act, 1925 [Act VII of 1925], which was numbered as ABN Case No,15/2010 [Abdul Haq S/o Abdul Ghani v. Makli Co-operative Housing Society Ltd. and 2 others [Respondents Nos,1 and 2 herein], before the Registrar's Nominee at Karachi. The case was heard and decided after taking into consideration all the relevant facts and appreciating the available record by Registrar's Nominee and consequently, an 'ARBITRATION AWARD' dated 12.01.2011 [Annexure 'E' to the MoP], was given, whereby, the 'APPLICATION' under Section 54 of the Co-Operative Societies Act, 1925, filed by the present Petitioner bearing. No,ABN Case No,15 of 2010 [Abdul Haq son of Abdul Ghani v. Makli Co-operative Housing Society Limited and 2 others], was allowed and resultantly, the 'subject plot' was ordered to be 'RESTORED to the Petitioner herein. Besides, the Registrar's Nominee also directed the Respondent No,3 Society herein, to accommodate the private Respondent No,1 viz. Thakumal son of chotumal by allotting him another 'alternate plot' whenever available with Society. Per the said 'AWARD' the record of the Respondent's No,3 Society was also examined and significantly in the award, it has been observed that the record relating to Minutes of Meeting of Makli Cooperative Housing Societies Ltd/Respondent No,3, has been found tampered/ manipulated. It is pertinent to note, that Respondent No,1 viz. Thakumal son of Chhotumal did not file any APPEAL against the aforesaid 'ARBITRATION AWARD', as such, the same has attained finality.
6.That Respondent No,3 Society nevertheless, impugned the aforesaid 'award' arising out of ABN case No,15 of 2011 [Abdul Haq v. Makli Cooperative Housing Societies Ltd. and 2 others], in Appeal No,4 of 2011 [Makli Co-operative Housing Society Ltd. v. Mr. Abdul Haq and 2 others], before the Registrar Cooperative Societies, Sindh Camp at Karachi. The Registrar, Co-operative Societies Sindh camp, at Karachi, after hearing all the concerned parties and perusal of record, however, came to the conclusion, that 'AWARD' passed by the 'Registrar's Nominee' is quite in accordance with law and sustainable, as such, the 'AWARD' dated 12.01.2011, was upheld vide ORDER dated 05.07.2011, passed by Registrar Co-operative Societies Sindh camp at Karachi.
7.Thereafter, since, the official Respondents were reluctant to issue `execution certificate' as such, the Petitioner filed a Constitutional Petition bearing No,2948/2012 Abdul Haq v. Makli Co-operative Housing Societies Ltd. and others] in this Court, which however, later on, particularly in view of passing of the 'IMPUGNED ORDER', has been withdrawn. Needless to say, the 'impugned order' dated 24.10.2012, passed by Minister for Law and Prisons, Government of Sindh, has now been assailed/challenged by the Petitioner herein through the instant Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
8.Respondent No,1 viz. Thakumal S/o Chhotumal without filing any Appeal under section 56 of the Co-operative Societies Act, 1925 [Act VII of 1925] before the Registrar Co-operative Societies, Sindh camp at Karachi, in his 'own wisdom' filed REVISION APPLICATION No,SO[T]6[05] 2010-11 under section 64-A of the Co-operative Societies Act, 1925 [Makli Co-Operative Housing Societies Ltd. v.
Mr. Abdul Haq and others], sometime, in November, 2011 before the Provincial Government, Co- operative Department Government of Sindh against the Order dated 27.09.2011 [Annexure 'F/1' to the MoP], passed by Registrar, Co-operative Societies Sindh camp, at Karachi, with a prayers as follows:-- "It is therefore prayed that this Hon'ble Court may be pleased to call for Record and Proceedings of Arbitration Case No,15/2010 (Appeal No,4/2011), and after hearing the parties be pleased to set aside the impugned order dated 27.09.2011, passed by the learned Registrar, Co-operative Societies by declaring the same as without any merit and of no legal effect in the interest of justice. Simultaneously the Award passed by the learned Registrar's Nominee may be set aside in the interest of justice.
' Further this Hon'ble Court may kindly declare that the Appellant is a lawful owner of Plot No,A-94, Unit No,1, Hashimabad Township, Project of Respondent society and the management of the Respondent society pay kindly be directed to execute the Lease of the said plot in favour of the Appellant as all the dues of plots have already been paid by the Appellant." [Underlining is ours]
9. It is significant to note, against the 'AWARD' dated 12.01.2011 [Annexure 'E' to the MoP], given by 'Registrar's Nominee' in favour of the Petitioner herein no APPEAL as required under section 56 of the Co-operative Societies Act, 1925 [Act VII of 1925], was filed by Respondent No,1 viz. Thakumal son of Chhotumal before Registrar Co-operative Societies, Sindh, camp at Karachi. Nevertheless, in response to the above 'REVISION APPLICATION' No, SO[T] [6] 2010- 11 [Thakumal son of Chhotumal v.
Abdul Haq and others], the Petitioner herein, filed his reply/objections, wherein, besides, raising 'preliminary objections', the stand taken by the Respondent No,1 herein, was also Seriously controverted/denied. The 'PRELIMINARY OBJECTIONS' raised by the present Petitioner, run as follow:- - "1. That the appeal/Revision is not maintainable as it does not fall within the provisions of the Cooperative Societies Act, 1925.
2.That the Respondent No,1 has acquired the plot in question through the registered lease deed registered at No,120 dated 15.08.1993. TheManaging Committee cancelled the plot in question on 30.11.2003, which is beyond the limitation and the law. The Managing Committee cannot cancel the registered lease deed without obtaining order of cancellation of lease deed from the Civil Court.
3.That the Managing Committee may not cancel the plot on the basis of non-payment of development charges once the price/cost of land has already been paid by the allottee.
4.The appellant has not filed the instant appeal/revision with clean hands.
10. Likewise, Makli Co-operative Housing Society Ltd./Respondent No,3 herein, also filed its comments' wherein, it was specifically stated that the present 'Managing Committee' and 'Chairman' of Respondent No,3 Society have already been elected on 08.01.2012 and 14.01.2012 respectively. The issuance of 'INDENTURE OF LEASE' bearing No,551 in respect of 'SUBJECT PLOT' No,A- 94 in favour of the Petitioner was also admitted. Paras-5, 6 and 7 from the 'comments' filed by Respondent No,3 viz. Makli Co-operative Society Limited, Thatta, being relevant are reproduced herein-below:-- "5. That neither the Appellant nor the Respondent No,3 has any material evidence to prove that the lease deed was not validly executed by the Ex-Chairman (Mr. Roshan Lakhani S/o Abdul Habib) of the Respondent Society, before sub-registrar, Thatta as claimed by Appellant.
6.
7.That it is also a matter of record that even to this date, many members of the Respondent No,3 have not paid installments number IV and V of Development Charges. The outstanding Charges (if any) against the members are recovered with 1% per month penalty at the time when the allottees wish to transfer their plots, according to Bye Laws No,80.
8.That in view of above, the present Managing Committee in its Extra Ordinary meeting hold on 17th June, 2012 has decided to support the cases of original allottees, whose lease deeds have been executed and not to support the illegal actions on the part of the previous managing Committee on this account.
9.That in view of above fact, the Revision Application filed by the Administrator of the Society (While the Committee, which cancelled the plot in question, stood superseded), is hereby withdrawn.
11.The use of 'Words' APPELLANT instead of the APPLICANT inter alia in the aforesaid paras, it appears, was due to some typographical mistake, as Respondent No,1 viz. Thakumal son of Chhotumal was the applicant in 'REVISION APPLICATION' No, SO [T] [6]2010-11 [Thakumal son of Chhotumal v. Abdul Haq and others] and NOT APPELLANT. This position, is also evident from ORDER dated 24.10.2012 itself [Annexure 'I' to the MoP]. In the 'comments', Respondent No,3 Society has also urged that the 'claim'/ 'prayer' of the Applicant/Respondent No,1 viz. Thakumal son of Chhotumal besides, being defective is contrary to law, as such, the same is liable to be rejected.
12.Nevertheless, on 24.11.2012, when the above REVISION APPLICATION No, SO[T]6[05] 2010-11, came- up before the Minister for Law and Prisons Government of Sindh then, the 'IMPUGNED ORDER' dated 24.10.2012 [Annexure 'I' to the MoP], was passed by the Minister for Law and Prisons, Government of Sindh without realizing that as being a Revisional authority and having limited powers as per Section 64-A of the Co-operative Societies Act, 1925 [Act VII of 1925] cannot set aside the 'AWARD' dated 12.011.2011 passed by the Registrar's Nominee [Annexure 'E' to the MoP] and Order dated 27.09.2011 passedby Registrar Cooperative Societies, Sindh, Camp at Karachi [Anneuxre 'F' to the MoP] having been passed in Appeal No,04 of 2011 filed by Makli Co-operative Housing Society Ltd only and not by Thakumal son of Chhotumal /Respondent No,1 herein. The 'operative part' of the 'impugned order' dated 24.10.2012 reads as follows:-- I find force in the contention of the Applicant and hereby allow the present Revision Application with the direction to respondent No,3 to execute the Lease of the suit plot in favour of the Applicant and take necessary action for cancellation of Lease executed in favour of the Respondent No, 1 through appropriate legal process. Accordingly the Award dated 12.01.2011 and order dated 27.09.2011 passed by the Registrar, Co-operative Societies, Sindh are hereby set aside, with no order as to cost." [Underlining is ours]
13. Notwithstanding, theserious opposition on the part of the Petitioner and Respondent No,3 Society, the Minister for Law and Prisons, Government of Sindh, nonetheless, was pleased not only to set-aside order dated 27.09.2011 but also set-aside the 'Award' dated 12.01.2011 passed in favour of the Petitioner and against the Applicant/Respondent No,1 though later had failed and/or avoided to file any Appeal under section 56 of the Co-operative Societies Act, 1925 [Act VII of 1925]. It is needless to say, that 'AWARD' in view of non-filing of the requisite Appeal under section 56 of the Societies Act, 1925 [Act VII of 1925], within one month of the date of 'Award' the same has become 'final' and 'conclusive'. As such, on this score as well the same was not liable to be questioned and/or set-aside. The exercise of power by Respondent No,4 viz. Minister for Law and Prison, Government of Sindh, it appears is coram-non-judice.
14.The Petitioner, in view of the aforesaid scenario, feeling aggrieved and 'dis-satisfied' with 'impugned order' dated 24.10.2012 [Annexure 'I' to the MoP], has filed the instant Constitution Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, 'inter alia' on the plea/ground that the 'impugned order' passed under the 'Revisional Jurisdiction' by Minister for Law and Prisons Government of Sindh, is not only bad in law but also without jurisdiction. Besides, the same has been passed without properly applying judicial mind and/or otherwise, appreciating the material available on record in its true perspective. Hence this petition.
15.Upon filing of the above petition on 13.12.2012, when it came-up before the Court on 21.12.2012, then, besides, issuing notice to the Respondents, the 'IMPUGNED ORDER' [Annexure 'I' to the MoP], passed in 'Revision Application' No,SO[T]6[05] 2010-2011, by Minster For Law and Prison, Government Sindh, was also suspended. For ease of reference, the relevant portions thereof are reproduced herein-below:-- 1)It is inter alia contended that the Respondents Abdul Haq was allotted Plot No,A/94 measuring 600 square yards in Hashimabad Township Project of Makli Cooperative Housing Society Limited Thatta Respondents No,3 at page 23 of the file. It is urged that lease was also executed in favour the Respondents on 18th July 1993. According to learned counsel it transpired that the subject plot has been allotted to Thakumal Respondent No, 1 through impugned allotment dated 5.5.2008 at page 45 of the file. On coming to know of such allotment proceedings under Section 54 of the Co- operative Society Act, 1925 was initiated which resulted into Award in favour of the Respondents on 12.1.2011 at page 123 of the file. The Society filed Appeal No,4/2011 before the Registrar Co-operative Societies which was withdrawn however the Respondent No, 1 preferred the Revision wherein the Revisional Authority i,e, Respondent No, 4 reverse the findings through impugned order dated 24.10.2012 available at page 81 of the file and at the same time order for cancellation of lease that exists in favour of the Respondents. It is contended by the learned counsel that the Revisional Authority under the Hierarchy of the Co-operative Societies Act has a very limited jurisdiction to examine and consider tho administrative or a management issue cannot upset the findings recorded in Award proceedings. He has placed reliance on Shaikh Haider v. Registrar (PLD 1966 West Pakistan 183). It is stated that merely on the assumption that a pretty amount was not paid towards Development Charges lease otherwise could not be cancelled, if dues are outstanding after execution of the lease it only become a financial claim which could be recovered through legal process and lease which has been finally executed cannot be undone in the manner it has been ordered by the learned Revisional Authority. Let notice be issued to the Respondents through regular mode, courier and pasting.
4) Notice as above. For the foregoing as recorded, impugned revisional order is suspended."
16.The Respondent No,1, in response to the Main petition filed his 'Counter-Affidavit' wherein, the 'averments'/' assertions' made in the Memo of Petition [In short MoP] by the Petitioner were denied.
The Petitioners, in answer to the 'Counter Affidavit', also filed a detailed 'Affidavit-in-Rejoinder' wherein, the stand taken and averments/assertions made by Respondent No,1 herein, was/were seriously denied/controverted. Respondents Nos,3 and 5, herein have also filed their 'Counter- Affidavits'/'Para wise Comments' but the stand taken by the Petitioner viz-aviz allotment and lease of the 'subject plot' in favour of the Petitioner was not controverted/denied by Respondent No,3, in its `Counter-Affidavit'/ Parawise Comments'.
17.On 14.04.2016, 26.04.2016 and 18.05.2016 when the above petition came-up before us then, we heard Mr. Arshad Hussain Khan, learned counsel for the petitioner, Mr. Hifzur Rahman, learned counsel for the Respondent No, 1, Mr. Arshad Nawab, learned counsel for the Respondent No,3 and Mr. Miran Muhammad Shah, learned Addl. AG Sindh and also gone through the available record before us minutely. Lastly, on 25.05.2016 arguments were finally heard/concluded and thereafter, the case, was reserved for Judgment.
18. Mr. Arshad Hussain Khan, learned counsel for the petitioner forcefully contended that the Respondent No,1 viz. Thakumal son of Chhotumal though had failed and/or avoided to file any appeal against the 'AWARD' of 'ARBITRATOR', as required under Section 56 of the Cooperative Societies Act, 1925 [Act VII of 1925], after lapse of time limit for filing of appeal, however erroneously filed 'REVISION APPLICATION' No, SO(T)6 (05)/2010-11, under Section 64-A of the Co-operative Societies Act, 1925 [Act VII of 1925], before the Respondent No,4, viz. Minister for Law and Prison, Government of Sindh. Per Mr. Arshad Hussain, the 'REVISION APPLICATION' as 'framed' and 'filed', was untenable in law. The revisional jurisdiction, under section 64-A of the Act, 1925, is not applicable and/or exercisable under the facts and circumstances of the case in hand. According to Mr. Arshad .Hussain Khan, learned counsel for the Petitioner, where an 'ARBITRATION AWARD', has been passed then, such 'Award' cannot be upset under the exercise of a 'Revisional Jurisdiction' by Respondent No,4, as has been done illegally/wrongly in the present case. Mr. Arshad Hussain Khan next urged, that Respondent No,4, in fact, has wrongly assumed the jurisdiction, as the 'Award' passed long ago in favour of the Petitioner and having gone un-challenged in an Appeal now, cannot be looked into in the Revision Application, as it does not fall within the ambit of Revisional Jurisdiction of Respondent No,4 viz. Minister for Law and Prisons. Manifestly, Respondent No,1, who filed the aforesaid 'Revision Application' No,SO(T)6(05)/2010-11 did not question/challenge the 'ARBITRATION AWARD' in an appeal as per terms of Section 56 of the Co-operative Societies Act, 1925 [Act VII of 1925]. Being so, the 'Revision Application' thus filed subsequently by Respondent No,1 besides, in- competent in law was also not maintainable. This legal position, is also vindicated from the factum that though Respondent No,3 Society, had initially filed a 'Revision Application' but later, perhaps, upon realizing its mistake, the same was withdrawn by the Respondent No,3 Society on 23.10.2012.
The Minister for Law and Prison, besides, ignoring the 'withdrawal of the said Revision', filed by the Respondent No,3 Society, in own 'wisdom' passed the 'IMPUGNED ORDER', on the incompetent REVISION APPLICATION No,SO[T]6 [05]/2010-11, [Thakumal son of Chhotumal v. Abdul Haq son of Abdul Ghani and 2 others], filed by Respondent No,1 viz. Thakumal son of Chhotumal and as such illegally set aside the 'AWARD' [Annexure 'E' to the MoP], passed by Registrar's Nominee as well order dated 27.09.2011 [Annexure 'F' to the MoP], passed by Registrar Co-operative Societies, Sindh, at Karachi.
19. Mr. Arshad Hussain Khan, learned counsel for the Petitioner, next urged that during the period of re-allotment of 'subject plot' in the year, 2008 to the Respondent No,1 viz. Thakumal son of Chhotumal, the then 'Managing Committee' was illegally performing/continuing its function, that is to say, without conducting the requisite elections after completion of its tenure in the year, 2005.
The said autocratic and illegal nature of the 'Managing Committee' is also epitomized in the 'Audit Report'. The then 'Managing Committee', was later on superseded on 28.01.2009 and consequently, an 'Administrator' was appointed for running the affairs of Society smoothly. Per Mr. Arshad Hussain Khan, the then 'Managing Committee' even otherwise, was not empowered under Bye-laws in taking of a harsh, un-reasonable action regarding cancellation of the 'subject. Plot' which had been duly leased out to the Petitioner under a 'Registered Indenture of Lease' dated 18th July, 1993 [Annexure 'B' to the Mon Such arbitrary action was not only illegal but also unwarranted in the eyes of law. The 'Managing Committee', thus, grossly transgressing its limits and powers, did cancel the 'subject plot', indeed, unlawfully. Needless to say, the 'subject plot' was properly leased to the Petitioner under a 'Registered Indenture of Lease'. The mis-conceived and un-tenable ground of 'non-payment' of the so-called 4th installment of 'Development Charges' taken by the superseded 'Managing Committee' was seemingly aimed only to give benefit to Respondent No,1 herein.
Moreover, in the aforesaid Registered Lease of 99 years, there is no any 'specific clause' on the basis/strength whereof, the 'subject plot' could be cancelled from the name of the Petitioner. The Respondent No,5, however, failed to initiate any inquiry, action or investigation against the superseded 'Managing Committee' in respect of its mis-deeds and chaos having been committed/caused by the superseded Managing Committee to its members including the Petitioner herein.
20. Mr. Arshad Hussain Khan, learned counsel for the Petitioner next contended that the 'subject plot' of Petitioner was illegally cancelled by the 'THEN MANAGING COMMITTEE' of Respondent No,3 Society, merely on the pretext of non-payment of only the 4th installment towards' 'Development Charges'. Per Mr. Arshad Hussain Khan, Respondent No,2 herein i,e, Ex-Chairman Khan. Ali Uqaili of Makli Co-operative Housing Society Ltd, in his 'own wisdom' and, of course, in a 'calculated manner' invented/created a 'mis-conceived' and 'false ground' of so-called 'alleged default' of 'Development Charges' ex-facie, to give benefit to Respondent No,1 viz. Thakumal son of Chhotumal for extraneous considerations. The Petitioner, per Mr. Arshad Hussain Khan, has never defaulted in payment of any kind of dues. The grant of 99 years 'ownership lease' of the 'subject plot' in favour of the Petitioner apart from being an irrefutable evidence also belies the Respondents Nos, 2 and 3 viz-a-viz the alleged default. The said 'Registered Lease' dated 18.07.1993 is still subsisting in favour of the Petitioner though direction under the 'impugned order' has been issued to Respondent No,3 Society for its cancellation. The Ex-Management of Respondent No,3 Society, it appears from the record had sent the alleged demand letter for 4th installment of 'Development Charges' to the Petitioner on his wrong address though 'correct address' as per NIC [now CNIC] of Petitioner was available with Respondent No,3 Society. The Official Respondents Nos,3 and 4 thus with ulterior motives kept the Petitioner in dark about the cancellation of ALLOTMENT of the 'subject plot' from the name of the Petitioner and/or re-allotting the same to Respondent No,1 viz. Thakumal son of Chhotumal. Mr. Arshad Hussain Khan, learned counsel for the Petitioner, also urged that Respondent No,4, neither looked into the record of the Society nor otherwise, has appreciated the legal issue involved in the case in hand. Respondent No,4, per Mr. Arshad, in a slip shod manner, passed the `impugned Order' dated 24.10.2012 [Annexure 'I' to the MoP] whereby, the concurrent findings/decisions [existed in favour of Petitioner] of both the forums below were set-aside. Mr. Arshad, next contended that on 18.10.2012, only arguments of Petitioner and Respondent No,3 were heard by Respondent No,4 and then the case was adjourned to 23.10.2012 for arguments of Respondent No,
1. On 23.10.2012, Respondent No,4, was not available in his office on account of some deat Anniversary. Nevertheless Respondent No,4-Minister for Law and Prison, on 23.10.2012, did pass the 'impugned order' [Annexure 'I' to the MoP], as having being reserved on 18.10.2012. From the above, it is manifestly clear that the 'impugned order' dated 24.10.2012 [Annexure 'I' to the MoP] has been passed not only in haste but also without applying mind by Minister for Law and Prisons, Government of Sindh.
21.According to Mr. Arshad Hussian Khan, the Management of Respondent No,3 Society was superseded on 28.01.2009 and consequently, an Administrator was appointed by Government of Sindh. Later-on, ELECTIONS on 16.01.2012, of the Respondent No,3 Society were held under the supervision of NAZIR of this Court. Pursuant to and as a result of ELECTION, on 16.01.2012, the present 'Managing Committee', taken over the charge of the Society. Upon taking over the charge of the Society on 17.06.2012, a meeting of Managing Committee was held in which it was decided to support the cases of 'ORIGINAL ALLOTTEES' including the PETITIONER herein in whose favour Leases were executed by the Respondent No,3 Society. In view of this position as well, the 'impugned order' dated 24.10.2012 [Annexure 'I' to the MoP], passed by Minister for Law and Prison/Respondent No,4 herein, is liable to be set aside as the same is not only illegal but also 'coram-non-judice'.
22.Lastly, with regardto applicability/non-applicability of Rule 33 of Order XLI, C.P.C., Mr. Arshad Hussain Khan, learned counsel for the petitioner vehemently contended that the provision of Order XLI Rule 33, C.P.C., under the facts and circumstances of the instant case, is not applicable, as it pertains to the Co-operative Societies Act, 1925 [VII of 1925], which, indeed, is a special law and has its own procedure viz-a-viz the matters pertaining to the affairs of Societies etc. According to Mr. Arshad, the provisions of Civil Procedure Code 1908 are meant to deal with the procedure of Courts of Civil Judicature. Moreover, mere perusal of Order XLI Rule 33, C.P.C., would show that it is only applicable to the Appellate Courts and not otherwise. The power of Minister for Law and Prisons under section 64-A of the Co-operative Societies Act, 1925 [Act VII of 1925], is of limited range and ex-facie extends only to the 'administrative affairs' of the Societies. The Provincial Government/Minister for Law and Prisons, in any event, under the garb of Section 64-A of the Co- operative Societies Act, 1925 [Act VII of 1925], does not exercise and/or extend its power in the manner as enshrined in the Appellate Courts under Order XLI Rule 33, C.P.C. Moreover, the 'award' passed under Section 54 of the Co-operative Societies Act, 1925 has gone un-challenged as Respondent No,1 viz. Thakumal son of Chhotumal did not file any Appeal as required, under Section 56 of the Cooperative Societies Act, 1925 [Act VII of 1925]. As such, on this score as well, the same was wrongly set-aside by the Minister for Law and Prisons, Government of Sindh under the exercise of Revisional Jurisdiction under section 64-A of the Act, 1925.
24. Mr. Arshad Hussain Khan, learned counsel for the Petitioner in support of his contentions placed reliance on the cases of [i]. Shaikh Haider v. Registrar Cooperative Societies, Karachi and others [PLD 1966 (W.P) Karachi 177], [ii]. Defence Housing Authority, Lahore v. Secretary to the Government of Punjab and others [PLD 2006 Lahore 443] [iii]. Ch. Muhammad Latif v. Province of Punjab [1997 CLC 262], [iv]. Haq Dad v. Mst. Sawani and 2 others [1994 CLC 32], [v]. Mussarat Nazir v. Malir Dvelopment Authority through Director General, Memon Goth, Malir and 4 others [2009 MLD 167] and [vi]. Province of Punjab through Collector Bahawalpur, District, Bahawalpur and others v. Col. Abdul Majeed and others [1997 SCMR 1692]. The relevant portions/observations relied upon by Mr. Arshad Hussain Khan, learned counsel for the Petitioner therefrom respectively reads as follows:--
[i] . PLD 1966 (W.P.) KARACHI 177 "9. In support of his case Mr.Valiani referred us to 64-A of the Bombay Co-operative Societies Act which reads as under:-- "64-A. (The Provincial Government) and the Registrar may call for and examine the record of any inquiry or the proceedings of any officer subordinate to them for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed and as to the regularity of the proceedings of such officer. If in any case, it shall appear to (the Provincial Government) or the Registrar that any decision or order or "proceeding so-called for should be modified, annulled or reversed, (the Provincial Government) or the Registrar, as the case may be, may pass such order thereon as to it or him may seem fit."
' It will be noticed that this provision of law has a limited range and is revisional in character. The power is vested in the Registrar to call for and examine the record of any inquiry or the proceedings pending before any officer subordinate to him. Obviously it contemplates the scrutiny of any administrative or departmental enquiry or proceeding pending before the subordinate officers. </u> It seems to us that it has no application to cases in which arbitration proceedings are going, on. Under the enactment for challenging such proceedings quite different procedure is provided. In this view we are further. strengthened by the fact that members of the Society or the society cannot be considered to be subordinate officers to the Registrar within the meaning of the section relied upon. In the present case the Registrar considered the propriety of the allotment of the petitioner by the Society and it is quite plain that its legality or Illegality could not be decided under section 64-A. <u>It was urged that the Registrar was competent to consider the validity of the arbitration proceedings pending before his nominee. This argument has not impressed us because the nominee acting in the ,capacity of an arbitrator cannot be considered to be a subordinate official of the Registrar. [Underlining is ours]
[ii] PLD 2006 Lahore 443 "4.... Even otherwise the appeal before the Secretary Co-operatives 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 Co-operatives 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 Co-operative 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....". [Underlining is ours] ' Even otherwise under section 64-A of the said Act of 1925 the Provincial Government may call for and examine the record of 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."
[iii] 1997 CLC 262
15. ...that there are concurrent findings of fact recorded by the Courts below which ought not to be interfered in exercise of revisional jurisdiction under section 115, C.P.C. He relied on Shah Gul v.
Shamim Akhtar (1990 SCMR 110). In this very judgment, the Hon'ble Supreme Court has observed as follows:-- "It is no doubt true that in exercise of revisional jurisdiction it is not open to the High Court to interfere with a finding of fact unless it is based on misreading of evidence or has been arrived at by overlooking some material evidence." [Underlining is ours] [iv]. 1994 CLC 32 "5. ...The decree of dismissal of the suit regarding prayer for grant of a declaratory decree on the basis of title was not challenged by the petitioner in appeal or by filing of cross-objections.
Consequently the same having become final, cannot be allowed to be challenged in this civil revision"... [Underlining is ours] [v]2009 MLD 167 "The defendant No,3 through his review application is seeking review of the orders, dated 7-4- 2005, which was never challenged by the defendant No,3 in appeal and has attained finality. The order, dated 7-4-2005 passed by me is an order to implement order, dated 7-4-2008, which has also not been challenged in appeal and has attained finality".... [Underlining is ours] [vi]1997 SCMR 1962 "7. The Code of Civil Procedure, 1908 (hereinafter to be referred as 'the Code' only) was enacted to regulate the proceedings before the civil Courts. The provisions contained in the Code are mainly rules of procedure. It is well-established that all procedural laws are subservient to the cause of justice and therefore, such laws neither limit nor control the power of the Court to pass an order or decree which is necessary to do full justice in the facts and circumstances of the case.
Interpretation of procedural law in a manner, it tends to obstruct the course of justice has to be avoided as far as possible. The framers of the Code were also alive to the abovestated underlying object of procedural law and perhaps for this reason and to remove and dispel all doubts in this regard unequivocally provided in section 151 of the Code that 'Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.' Section 107 of the Code relied by the learned counsel for the appellants reads as follows:-- "107. Powers of Appellate Court.--
(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power- (a)to determine a case finally; (b)to remand a case; (c)to frame issues and refer them for trial; (d)to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."
' Section 107, (ibid), however, is not to be read in isolation. It is to be read with other provisions of the Code. We have already referred earlier to section 151 of the Code which provides that the provisions of the Code do not limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. The power as is referred in section 151 of the Code is inherent in every Court and for its exercise no support from any enacted law is necessary. Section 2(18) of the Code defines "rules" as the rules and forms contained in the First Schedule or made under section 122 or 125 of the Code. Section 121 of the Code states that the rules in First Schedule shall have effect as if enacted in the E body of the Code until annulled or altered in accordance with the provisions contained in part X of the Code.
Rule 33 of Order XLI which is part of First Schedule reads as follows:- "33. Power of Court of appeal.--The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: ' Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order."
' Section 122 of the Code confers powers on the High Court to frame rules regulating their own procedure and the procedure of the Civil Courts subordinate to it. It is not disputed before us that provision contained in Rule 33 of Order XLI, of the Code has not been, amended so far in its application to Province of Punjab. The combined effect of sections 121 and 122 of the Code is that section 107 is to be read along with the provisions contained in Order XLI, Rules I to 37 of the Code.
The provisions contained in section 107 and Order XLI of the Code are, however, not exhaustive in so far the powers of Appellate Court arc concerned. The Appellate Court, therefore, in appropriate cases where these provisions do not provide for a remedy, and the justice of the case so demands, may have recourse to its inherent power to pass an order which is necessary to meet the ends of justice.
8. From the preceding discussion, it follows that the power conferred on the Appellate Court under Order XLI, Rule 33, C.P.C. is of the widest amplitude and in exercise of this power the Appellate Court is competent to grant relief to a party notwithstanding the fact that such party failed to prefer an appeal or submit any cross objection. However, in granting relief in such cases the appellate Court will be guided by principles of equity, justice and good conscience and the fact that withholding of relief would result in a contradictory, unworkable or impossible order/ decree.
Therefore, when the Appellate Court reaches a conclusion in a case that by withholding the relief to a non-appealing respondent or to a respondent who omitted to file cross-objection grave hardship or injustice is likely to result to it or that the judgment or orders will be rendered contradictory, it will be a good ground for exercise of power under Order XLI, Rule 33, C.P.C. to grant appropriate relief to a non-appealing respondent or to a respondent who omitted to file cross- objection in the appeal".... [Underlining is ours]
25. In contra, Qazi Hifzur Rahman, learned counsel for Respondent No,1 forcefully contended that as per record of the Respondent No,3, the Petitioner herein was a defaulter in payment of dues regarding plot A-94, Unit No,1 measuring 600 sq.yds Hashimabad Township of Makli Cooperative Housing Society Ltd, Thatta, as such, the Respondent No,3 Society had cancelled the allotment of plot in favour of the Petitioner. Respondent No,1 viz. Thakumal son of Chhotumal when had applied for allotment of the 'subject plot' then, per version of Respondent No,1, it was not standing in the name of Petitioner. In view of this position, per Qazi Hifzur Rehman, the 'subject plot' was allotted to the Respondent No,1, however, despite the fact that the REGISTERED LEASE in favour of the Petitioner was/is still in existence.
26.Per Qazi Hifzur Rahman, Respondent No,1 had not only applied for allotment of the 'subject plot' as per rule of the Society but the Respondent Society as well did allot the 'subject plot' to Respondent No,1 upon payment of all the dues. The Petitioner, no doubt, had later on filed ABN Case No,15/2010 [Abdul Haq v. Makli Co-operative Housing Society Ltd. and others], before the Registrar's Nominee at Karachi which case in favour Petitioner was allowed. In the 'AWARD' dated 12.01.2011, the Registrar's Nominee has held that the 'subject plot' is the right of the Petitioner. Besides, per said 'AWARD' dated 12.01.2011 [Annexure 'E' to MoP] Respondent No,3 Society i,e, Makli Cooperative Housing Society Ltd, was also directed to accommodate Respondent No,1 i,e, Thakumal son of Chhotumal with 'another alternate plot' whenever available with the Society. Per Mr. Qazi, till time no ' alternate plot' has been allotted to the Respondent No,1 as was directed by the Registrar's Nominee through 'AWARD' dated 12.01.2011. According to Qazi Hifzur Rahman, learned counsel for the Respondent No,1 herein, Respondent No,3 Society though in the proceedings before the Registrar has taken the plea against the Petitioner's stand but now the Respondent No,3 Society is supporting the Petitioner in its stand. Per learned counsel, under law one cannot 'approbate' and 'reprobate' at the same time. Nevertheless, learned counsel admits that the then 'Managing Committee' has now been superseded by a new Managing Committee.
27.Qazi Hifzur Rahman, learned counsel for the Respondent No.1, next submitted that though Respondent No.3 Society had filed an Appeal No.4 of 2011 [Makli Co-operative Housing Society Ltd. v. Abdul Haq and others] against the 'AWARD' dated 12.01.2011 but the same was dismissed vide Order dated 27.09.2011 by the Registrar Co-operative Societies Sindh Camp at Karachi [Annexure "F/1' to the MoP]. Thereafter, the Respondent No.3 Society filed a 'REVISION APPLICATION' but later on it was withdrawn by the Respondent No.3 Society. The Respondent No.1 viz. Thakumal son of Chhotumal, it is admitted position, did not file any APPEAL as provided under Section 56 of the Co- operative Societies Act, 1925 [Act VII of 19251 before the Registrar Co-operative Societies Sindh.
Nevertheless, Per Qazi Hifzur Rahman ORDER dated 24.10.2012, passed by Minister for Law and Prisons on the REVISION APPLICATION No.SO[T] 6[05]/201-11 under the exercise of its power conferred upon him under Section 64-A of the Societies Act, 1925 besides legal, is a speaking order. Moreover, since, the society admits the LEASE as being intact which by itself is a sufficient ground that the Petitioner besides being not an aggrieved person has no 'cause of action' for filing of the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, as such, the same is liable to be dismissed.
28. Per Qazi Hifzur Rahman since, in the 'AWARD' of 12.01.2011 [Annexure 'E' to the MoP], Registrar's Nominee has also given direction to Respondent No.3 Society to 'accommodate'/'allot' an another alternate plot to the Respondent No.1 herein whenever it is available with Society. In view of this position, if, the instant Constitutional Petition is allowed by this Court then, at least, the direction given by the Registrar's Nominee under the 'AWARD' dated 12.01.2011 [Annexure 'E' to the MoP] to the extent of allotting AN ANOTHER ALTERNATE PLOT to the Respondent No.1, be maintained so that the right of Respondent No.1 to that extent is protected. According to Mr. Qazi, the scope and applicability of Order XLI Rule 33, C.P.C. though is different but it can also be extended to the Revision Application under Section 64 of the Act VII of 1925, however, only for 'advancement of justice' and not otherwise. Per Qazi Hifzur Rahman, any person aggrieved/ interested, in terms of Section 64-A of Societies Act, 1925 [Act VII of 1925], can file a revision or even otherwise a Court of Revisional Jurisdiction can take a suo motu action as and when it comes to the knowledge of a Revisional Court that some sort of illegalities have been committed by lower courts/forums. The Minister for Law and Prisons in the case in hand, per Qazi Hifzur Rahman has rightly set-aside the 'AWARD dated 12.01.2011 [Annexure 'F' to the MoP] passed by Registrar's Nominee as well as ORDER dated 05.07.2011 [Annexure "F/1' to the MoP], passed by the Appellate Forum i.e. Registrar Co- operative Societies Sindh, Camp at Karachi.
29. In support of his contention, Qazi Hifzur Rahman, learned counsel for the Respondent No.1, has placed reliance on the case-laws [i]. Badaruddin v. Mehr Ahmad Roza, Additional Sessions Judge Jhang and 6 others [PLD 1993 SC 399] and [ii]. Abdul Qadir v. Abdul Maiid [PLD 1984 (AJ&K) 166]. The relevant observations/portions therefrom respectively read as follows:--
[i] PLD 1993 SC 399 "7. ...There is no dispute about the fact that powers of the High Court for exercise of revisional jurisdiction under section 439, Cr.P.C. are wider in scope than powers in the writ jurisdiction. </u> By amendment in the law now Sessions Court and High Court have concurrent revisional jurisdiction which is allowed in the normal course to be exercised first by lower forum but that does not decrease the scope of jurisdiction as mentioned above. <u>In such circumstances it is said that if there is finding by the Court of competent jurisdiction on the revisional side then it has attained finality. On the same question writ petition would be non-maintainable because otherwise it would amount to allowing question finally decided in one set of forums to be agitated afresh in another set of forums and that way there will be no end to the finality. In support of the proposition reference can be made to the cases of Abdul Rahman Bajwa v. Sultan and others (PLD 1981 Supreme Court 522) and Javaid Iqbal v. Muhammad Din and another (1990 SCMR 1309)."
[Underlining is ours].
[ii] PLD 1984 (AJ&K) 166 "24. ...as a general rule no one can appeal or file a revision petition from an order unless he was a party to the action or was treated as such or was a legal representative of a party or his right in the estate or interest are apparent on the face of the record. For that reason the Respondent a pro bono publico may not have any interest whatsoever in the cause but that hardly makes any difference. Because we are of the considered view that for the exercise of the revisional powers vested in the High Court, there is no bar for any one to move the High Court to quash the proceedings which were null and void and the High Court on such move is duty bound to take action in proper cases."
30. Mr. Arshad Nawab, learned counsel for the Respondent No.3 Society while, arguing his case submitted that the 'ERSTWHILE MANAGEMENT' of the Respondent No.3 Society was superseded on 28.01.2009 and thereafter an 'Administrator' was appointed by the Government of Sindh.
Subsequently, per learned counsel, Elections were held and resultantly, a new 'MANAGING COMMITTEE' was formed which thereafter, taken over the charge of the Society on 16.01.2012. After taking over the charge of Society, it came to the knowledge of the 'NEW MANAGEMENT' that the 'FORMER MANAGING COMMITTEE' had cancelled valid allotment of plots to the members of the Respondent No.3 Society even in those cases where 99 years leases had also been granted to the members including the Petitioner herein. Keeping in view the illegalities/wrongdoings of the 'FORMER MANAGING COMMITTEE' the PRESENT COMMITTEE thus held its meeting on 17.06.2012 wherein it was decided to support the cases of 'ORIGINAL ALLOTTEES' in whose favour leases had also been executed. Besides, it was also decided not to support the illegal actions of the 'SUPERSEDED COMMITTEE' [erstwhile Managing Committee] of the Respondent No.3 Society. Besides, Respondent No.3 not only admitted the Petitioner's membership but also allotment of the 'subject plot' in favour of the Petitioner in the year, 1993. According to Respondent No.5's version as well the former 'MANAGING COMMITTEE of the Society [Respondent No.3], was superseded on 18.01.2009 and resultantly, an 'Administrator' was appointed by the Government of Sindh for looking after, the affairs of the Society. Besides, audit of the Society was also conducted by the Department for a period ranging 01.07.2007 to 30.6.2010. The Government of Sindh, as being unsatisfied with the performanceof FORMER MANAGEMENT OF THE SOCIETY because the Society was not working in accordance with its registered by-laws/Cooperative Societies Act, 1925 [Act VII of 1925], thus superseded the 'MANAGEMENT OF SOCIETY' with sole object to safeguard the interest of the society and even of its members.
31. Mr. Miran Muhammad Shah, Learned Addl. AG Sindh while, arguing the case on behalf of the official Respondents Nos.4 and 5 submitted that the subject matter of the instant Constitutional Petition pertains to a dispute between the Petitioner and Respondent No. 1. The involved pertains to an 'AWARD' dated 12.01.2011 [Annexure 'E' to the MoP] which has also been upheld by Registrar Co- operative Societies Sindh, Camp at Karachi vide its order dated 05.07.2011 [Annexure 'E/2' to the MoP], passed in Appeal No.04 of 2011 of Respondent No.3 Society. Per learned Addl. AG Sindh, the point involved is "Whether the Respondent No.1, was competent to file a 'REVISION APPLICATION' under Section 64-A of the Co-operative Societies Act, 1925 [Act VII of 1925] or not in view of the admitted position that Respondent No.1, had failed to file any appeal before the Registrar Cooperative Societies under section 56 of the Co-operative Societies Act, 1925 [Act VII of 1925]. Per Addl. AG Sindh, Section 64-A of the Act, 1925 allows the Provincial Government i.e. Minister of Provincial Government to modify, annul or reverse any order or proceedings of its subordinate officer. In support of hiscontention, learned Addl. AG Sindh while placing, reliance referred to Section 64-A of Cooperative Societies Act, 1925 [Act VII of 1925], which reads as follows:-- "64-A. Power of Provincial Government and the Registrar to call for proceedings of subordinate officers and to pass orders thereon - The Provincial Government and the Registrar may call for an examination the record of any inquiry or the proceedings of any officer subordinate to them for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed and as to the regularity of the proceedings of such officer. If in any case, it shall appear to the Provincial Government or the Registrar that any decision or order or proceedings so called for should be modified, annulled or reversed, the Provincial Government or the Registrar, as the case may be , may pass such order thereon as to it or him may seem fit. Since the Provincial Government means the Provincial Minister for Cooperation, the subordinate officer includes all the officers of the department. The definition of officer under section 3(d) of the Act is reproduced as under:-- 3(d) - "Officer" includes a Chairman, Secretary, Treasurer, Member of the Committee or other person empowered under the rules or under the bye laws of a society to give directions in regard to the business of such society;" [Underlining is ours] 32.Mr. Miran M. Shah, learned Addl. AG Sindh argued that the provision of Section 64-A has rightly been applied by the Minister for Law and Prisons as he had/has 'exhaustive powers' under the Cooperative Societies Act, 1925 [Act VII of 1925], to 'review' and 'examine' the record of the any proceedings or decision or order passed by any sub-ordinate officers to him [which in this case as stated by learned Addl. AG Sindh is Registrar of Cooperative Societies] and he may modify, annul or reverse any such orders as he may seem fit. Per learned Addl. AG Sindh, Respondent No.1 since, had filed 'REVISION APPLICATION' No.SO[T] 6[0S]2010-11 before the Minister for Law and Prisons, as such, the Minister, was competent to review any of the orders passed by the subordinate officers.
The scope of 'Revision', per learned Addl. AG Sindh, is entirely different from the scope of the Appeal.
Lastly, learned Addl. AG Sindh, prayed for dismissal of the instant Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
33.Heard.
34.From perusal of record and arguments of the learned counsel for the parties and Addl. AG Sindh, it has become quite clear that the Petitioner herein was allotted Plot No.A/94, admeasuring 600 sq.yds vide allotment certificate/allotment order Registration No.134 dated 3rdJanuary, 1979 which plot was subsequently, also leased out to the Petitioner viz. Abdul Haq son of Abdul Ghani vide registered Lease Deeddated 15.08.1993 [Annexure 'B' to the MoP] which Lease Deed is admittedly in existence till date.
35.The Petitioner, nevertheless, was informed by the then sitting Administrator/Respondent No.2 that the 'SUBJECT PLOT' from the name of Petitioner herein has been cancelled allegedly on account of 'non-payment' of Development Charges. From record, however, it appears, that the 'challan' and 'notices' for payment of 'Development Charges', were issued to the Petitioner through one Waziruddin the then P.A. of Deputy Commissioner Thatta. The address of the Petitioner in its capacity as a member of the Society since, 08.04.1975 is available with Respondent No.3 Society but no any notice or letter was sent to the Petitioner viz-a-viz the alleged dues. The 'subject plot', in view of this position, was E got cancelled, but without affording any opportunity of being heard which, of course, is against the principle of natural justice.
36.In the above scenario, the Petitioner inter alia filed F.C. Suit No.88 of 2009 [Abdul Haq v. Makli Co-operative Housing Society Ltd. and 5 others], before the Senior Civil Judge, Thatta Sindh but, nevertheless, thereafter, the plaint was rejected on the application under Order VII Rule 11, C.P.C. filed by Respondents Nos.1 and 6 herein obviously for and on account of bar contained in Sections 54, 70 and 70-A of the Co-operative Societies Act, 1925 [Act VII of 1925]. Consequently, the present Petitioner filed ABN Case No.15 of 2010 [Abdul Haq v. Makli Co-operative Societies and 2 others], under section 54 of the Co-pperative Societies Act, 1925 [Act VII of 1925] which was allowed and consequently, 'AWARD' dated 12.01.2011 [Annexure 'E' to the MoP] in favour of the Petitioner was passed. The 'operative part`/' observation' from the 'REASONS FOR AWARD', passed by Registrar's Nominee on 12.01.2011 reads as follows:-- "During the Course of proceeding all the opportunity were provided to the parties concerned and the matter was proceeded accordingly the case of applicant is about the cancellation of the lease plot on account of non-payment of development charges to the society. The Respondent society was also directed to produce the copy of minutes book which was duly produced. The minutes of the meeting of managing committee held on 30.11.2003 was perused minutely in presence of all the parties and it was observe that in the minutes book with the difference of writing it is mentioned that plots may be cancelled on account of non-payment of society dues and the managing committee unanimously approved the same. After the thorough and detail scrutiny it was observed that there was no agenda for the cancellation of plot due to non-payment of society dues and the entry made in the minutes book is also differ in writing and it appears that it has been manipulated by the present management of the society. It has also been observed that the dues letter and final notice were never sent to the applicant but it was sent to some person namely Waziruddin the then PA to DC Thatta and when it was enquired from the respresentative of the respondent society that whether the applicant authorize to do so the representative society failed to give proper reply in this respect. In the light of judgment produced by the applicant and order passed by the worthy Minister Cooperation I have left no option but to allow the application under Section 54 of the Co-operative Societies Act, 1925 filed by the applicant as prayed and the Respondent society is hereby directed to restored the allotment of the applicant and handed him the peaceful possession. The Respondent society is at liberty to receive any dues if any for the plot in dispute. It is also directed to the Respondent society to accommodate Respondent No.3 with another alternate plot whenever available with the society. With these observations and modifications the present ABN Case has been disposed of accordingly. "
[Underlining is ours]
37. Mr. Thakumal son of Chhotumal [Respondent No.1 herein] who claimed to be 'second allottee' of the 'subject plot' though was party in ABN Case No.15 of 2010 [Abdul Haq v. Makli Co-operative Housing Society Ltd. and 2 others], however, failed and/or avoided to file any appeal in terms of Section 56 of the Cooperative Societies Act, 1925 [Act VII of 1925] within the stipulated period of one month. For ready reference Section 56 of the Co-operative Societies Act, 1925 [Act VII of 1925], is reproduced herein below:-- "56. Appeal against award of arbitrator.---Any party aggrieved by any decision of the Registrar's nominee made under section 54 [or subection (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." [Underlining is ours]
38. Admittedly the 'AWARD' dated 12.01.2011 given by the Registrar's Nominee in ABN Case No.15 of 2010 [Abdul Haq v. Makli Co-operative Societies and 2 others], was not assailed/challenged by the Thakumal son of Chhotumal [Respondent No.1], in terms of Section 56 of the Co-operative Societies Act, 1925 [Act VII of 1925], as such, the same attained finality. At this juncture, it is worth to mention that it was only Makli Cooperative Housing Society Ltd., who had challenged the 'AWARD' dated 12.01.2011 given by Registrar's Nominee in favour of the present Petitioner through an Appeal No.04 of 2011 filed under Section 56 of the Co-operative Societies Act, 1925 [Act VII of 1925], arising out of Arbitration Case No.15 of 2011, [Abdul Haq v. Makli Co- operative Housing Society Ltd.and 2 others], but later on, the same was dismissed by Registrar Co-operative Societies Sindh Camp at Karachi vide order dated 27.09.2011 [Annexure 'F/1' to the MoP]. For convenience and ready reference the 'operative part' of 'order' dated 05.07.2011 [Annexure 'F/1' to the MoP], passed by Registrar Co-operative Societies, Sindh Camp, at Karachi, is reproduced as under:-- "The parties were called and heard. The record of the case also examined and it was found that from evidence on record, it is an admitted position that the plot was allotted to Respondent No.1 in the year 1975 which was also leased out in the year 1993. The Appellant society has cancelled the allotment of plot on default in payment of 4th installment of development charges only without considering the position of lease of plot in favour of the Respondent No.1. No show cause notice before cancellation of plot was ever issued to the Respondent No.1 as such the cancellation of plot of Respondent No.1 by the Appellant society has no credibility, validity and legality in the eyes of law. Under the above facts, grounds and evidence on record have found no reason to disturb the Award dated 12.01.2011 and upheld the Award. Accordingly the Appeal filed by the Appellant society is hereby dismissed with no order as to cost." [Underlining is ours]
39. The Respondent No. 1 viz. Thakumal son of Chhotumal, who was not only party to ABN Case No.15 of 2010 [Abdul Haq v. Makli Co-operative Societies and 2 others], but also to the Appeal No. 04 of 2011 filed by Makli Co-operative Housing Society Ltd, only against the 'AWARD' dated 12.01.2011 given by the Registrar's Nominee in favour of the present Petitioner, however, in his own wisdom filed a 'REVISION APPLICATION No.SO[T]6[05] 2010-11 under section 64-A of the Co-Operative Societies Act, 1925 [Makli Co-operative Housing Societies Ltd. v. Mr. Abdul Haq and others], before the Provincial Government Co-operative Department on or about 17th November, 2011. Being relevant we would like to reproduce herein Section 64-A of the Co-operative Societies Act, 1925 [Act VII of 1925], herein-below:-- "64.A. Power of Provincial Government and the Registrar to call for proceedings of subordinate officers and to pass orders thereon.--- [The Provincial Government] and the Registrar may call for and examine the record of any inquiry or the proceedings of any officer subordinate to them for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed and as to the regularity of the proceedings of such officer. If in any case, it shall appear to [the Provincial Government] or the Registrar that any decision or order or proceedings so-called for should be modified, annulled or reversed, [the Provincial Government] or the Registrar, as the case may be, may pass such order thereon as to it or him may seem fit."
40. The above provision of law, it appears, besides revisional in character has a limited range of applicability i.e. to the extent of scrutiny of Administrative or Departmental enquiry and/or proceedings before the subordinate officers. The said provision of law, in our view, however, could not be extended or made applicable to the cases of arbitration proceedings in which the 'AWARD' has already given and also upheld in Appeal. In the case in hand, it is significant to note, the 'AWARD' dated 12.01.2011 given by the Registrar's Nominee in favour of the Petitioner has also been upheld by the Registrar Cooperative Societies, Sindh, Camp at Karachi which in under the terms of Section 57 of the Co-operative Societies Act, 1925 [Act VII of 1925], has not only become 'final' but also 'conclusive' as Thakumal son of Chhotumal/Respondent No.1 herein, has failed and/or avoided to question the same in appeal as provided under Section 56 of the Co-operative Societies Act, 1925 [Act VII of 1925]. In view of this position, we are of the opinion that the Minister for Law and Prisons, Government of Sindh in the exercise of its limited 'Revisional Jurisdiction' under section 64- A of the Co-operative Societies Act, 1925 [Act VII of 1925] was not competent to set aside the 'AWARD' dated 12.01.2011 [Annexure 'E' to the MoP] passed in favour of the Petitioner and upheld in Appeal No.04 of 2011 filed by Makli Co-operative Housing Society Ltd. The setting aside of 'AWARD' dated 12.01.2011 [Annexure 'E' to the MoP] and Appellate Order by the Minister for Law and Prisons under circumstances of the case, is not only illegal but coram-nonjudice. The Minister for Law and Prisons, in our view, has badly failed to apply his mind under the facts and circumstances of the case.
41. Moreover, it is important to note, that a Registered Lease Deed in favour of the Petitioner is still in existence but the C Minister for Law and Prisons despite knowing such factum of existence of Registered Lease Deed dated 18.07.1993, has passed the 'impugned order' dated 24.10.2012 which, nevertheless, is liable to be set aside. Manifestly, once a document is registered then it can only be cancelled by another registered document or through declaration of a civil Court of competent jurisdiction. In the event of any grievance otherwise, writ jurisdiction can be invoked by the aggrieved person. In this regard reliance is placed can be placed on the cases of [i]. The Majlis-I- Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur v. The Secretary to Government of West Pakistan, Communication and Works Department, Lahore [PLD 1975 SC 355] and [ii]. Mrs. Zaibun Nisa through Attorney v. Karachi Development Authority and 5 others [PLD 1998 Kar. 348]. The relevant observations/portions therefrom respectively read as follows:--
[i] PLD 1975 SC 355 "Nothing turns on the fact that the grant in the precedent case was under the Colonization of Lands (Punjab) Act and in the instant case it is made pursuant to the administrative instructions. In either case, the grant is in exercise of the executive authority of the State, though in the precedent case, it is regulated by the 1912 Act, and in the instant case the matter rests entirely in the executive discretion. The validity of the grant not being in question, it cannot be cancelled save as provided in the lease deed itself. Therefore, the appellant in this case properly invoked the writ jurisdiction of the High Courts complaining that after the execution of lease in its favour, the Secretary, Communication Department acted without lawful authority and that he cancelled the lease otherwise than as provided in the terms of the grant which under the provisions of the Government Grants Act, 1895 (Act XV of 1895) is not permissible. According to section 3 ibid, all grants made by or on behalf of the Government: "shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislative to the contrary notwithstanding."
It is important to point out that revisional order was subsequent to the lease in favour of the appellant. Accordingly, the revisional order by the Secretary, Communication on 30-7-1973 is plainly nugatory to the above provision and, is, therefore, without lawful authority. On that view of the master, the remedy by way of appeal or revision against the order of allotment under the departmental instructions will avail only as long as the grant remains inchoate. But once the grant became a fait accompli by execution of deed of conveyance as in the instant case, the matter is taken beyond the reach of the appellant or as the case may be the revisional authority which is a creature of mere administrative instruction".... [Underlining is ours].
[ii]. PLD 1998 Kar. 348 "In the circumstances of the case before us and keeping in view the provisions of section 39 of the Specific Relief Act (I of 1877), the instrument of deed in favour of the petitioner in the first instance ought to have been cancelled-through a declaration of the Court before the allotment of the petitioner was cancelled and restored in favour of the respondent No.4. Such declaration could have only been granted by a Court after exercise of jurisdiction to cancel an instrument. Such exercise of jurisdiction could have taken place if requisites of C section 39 of the Specific Relief Act had been fulfilled i.e. (a) The instrument is void or voidable against the plaintiff, (b) plaintiff may reasonably apprehended serious injury by the instrument being left outstanding (c) in the circumstances of the case, the Court considers it proper to grant the preventive relief." [Underlining is ours]
42. The Minister for Law and Prisons, Government of Sindh while, passing the 'impugned order' whereby, besides setting aside the 'AWARD' dated 12.01.2011 [Annexure 'E' to the Moll has also set aside the Order dated 05.07.2011 [Annexure 'F/1' to the MOP] passed by Registrar Cooperative Societies Sindh Camp at Karachi in Appeal No.04 of 2011 whereby the 'AWARD' was upheld in favour of the Petitioner, has assumed jurisdiction not vested in him under the law. The 'impugned order' dated 24.10.2012 [Annexure 'I' to the Moll passed by Minister for Law and Prisons, Government of Sindh under the given circumstances is null and void.
43.The case-laws cited by Mr. Arshad Hussain Khan, learned counsel for the Petitioner besides being very much relevant also support the case of the Petitioner, whereas, the case-laws cited by Qazi Hifzur Rehman, learned counsel for the Respondent No.!, are not only distinguishable but also of no help to Respondent No.1 under the facts and circumstances of the present case in hand.
44. For and in view of all above, this Constitutional Petition is found to have merits, as such, the same is allowed and consequently, the 'impugned order dated 24.10.2012, passed by Minister for Law and Prisons, Government of Sindh, is set-aside and resultantly the 'AWARD' dated 12.01.2011, passed by Registrar's Nominee and Order dated 05.07.2011, passed by the Registrar Co-operative Societies, Sindh, Camp at Karachi stand restored. Parties to bear their own cost. In view of the above, C.M.A. No.43184 of 2012 also stands disposed of.