1. This is a petition under s6ction 33 of the Arbitration Act. The petitioner is g Co-operative Housing Society, registered under the Co-operative Societies Act, 1925. The respondent No. 1 is member of the petitioner's society and allottee of the house bearing No. A/519. The dispute between them was referred to arbitration under the -provisions of the Co-operative Societies Act, 1925 and a~, award was made on 28th May, 1968. Ace appeal filed against the award was disposed of on 15th W 1969.
2. The respondent filed a miscellaneous application relating to the execution of the award which was disposed of by respondent No. 5 on 4-8-1977. Against this order the petitioner and respondent No. 1 filed revision before Secretary, Labour and Co-operation which was decided on 12th November, 1980. After revisional order was passed the plaintiffs have filed the present petition under section 33 praying that the Court may determine the effect of award dated 16-4-1969 made by respondent No. 4. . '
3. It may be noted that the present proceedings have been filed after the miscellaneous application in respect of execution of the award was decided against which both the parties had gone in revision. The learned counsel for the petitioner pointed out that in the revisional order dated 12th November, 1980 the observation that "the repairs to only those parts shall be carried out which have been pointed out in the certificates of Messrs Razzaque Umerani Architect" is not inconformity with the award itself and, therefore, the peti--tioner seeks determination on the effect of the award.
4. The present petition is a nutshell purports to seek relief against the revisional order passed in a miscel--laneous execution proceedings under the Co-operative Societies Act.
5. The main objection raised by the learned counsel for the respondent is that the application is not maintainable. Mr. J. H. Rahimtoola, the learned counsel for -the petitioner has contended that in view of provision of section 46 of the Arbitration Act section 33 can be invoked in respect of statutory arbitration .Including arbitration under the Co-operative Societies Act, 1925. Section 46 reads as follows :- "The provisions of this Act except subsection (1) of section 6 and sections 7, 12, 36 and 37 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment agreement, except in so far as this Act is inconsistent with that other enactment or with any rules made thereunder."
6. Section 46 excludes-applicability of section 6, subsection (1) and sections 7 12, 36 and 37 to every arbitration under any other enactment or rules mad thereunder. Except the aforestated sections all other provisions of the Arbitration Act are made applicable to statutory arbitrations provided the provisions of the Arbitration Act are not inconsistent with that other enactment or with any rules made thereunder. It, therefore, follows that if any of the provisions of Arbitration Act is inconsistent with such enactment or rule framed thereunder then the provisions of that enactment and rules shall prevail. In cases of conflict or inconsistency between the provisions of the Arbitration Act and the other enactment the provisions of Arbitration Act to that extent will not apply. If the enactment and rules do not provide to meet a certain situation which has been dealt with by the Arbitration Act then in that event there will be no inconsistency between the two enactments and sue provisions of Arbitration Act shall apply, to that extent..
7. The learned counsel for the plaintiff has referred to the Gujranwala Central Co-operative Bank v.
8. Muhammad Feroze and others PLD 1969. S G 252,and reliance bas been placed on the following observations; "In our view the words except in so far as this Act is inconsistent with that other enactment or with any rules made thereunder, clearly exclude from the operation of the Arbitration Act an arbitration to which rule 18 (a) applies. The reference made to sections 34 and 35 of the Arbitration Act by the learned Single Judge was not, therefore, opposite in the present case."
9. In this case provisions of Co-operative Societies Act (I of 1912) and rules made thereunder were under consideration. The learned counsel has contended that likewise section 33 is not opposite or inconsistent with any provision of the Co-operative Societies Act, 1925, or rules made thereunder and, therefore, it is applicable. It has, therefore, to be considered whether the provisions of the Co- operative Societies Act, 1925 are inconsistent with the provisions of the Arbitration Act: The learned counsel for the plaintiff has contended that the Co-operative Societies Act, 1925 and the rules do not provide for determination of the effect of the agreement or the award and, therefore, as in the present proceeding relief is being sought to seek interpretation of the award which cannot be done under the Co-operative Societies Act, there is no inconsistency between section 33 and the provisions of Co-operative Societies Act. The learned counsel has referred to Rajdhari Devi v. Deputy Registrar, Co-operative Societies U. P. Gorakhpur and others (AIR 1963 A11.
10. 113) and reliance has been placed on .The following observations "There appears to be no provision in Chapter XIV of the Co-operative Societies Rules for challenging the existence or validity of the agreement of reference and that there being no provision in the Rules for questioning the validity or existence of the agreement the provisions of the Arbitration Act can be availed of and the dispute that is beingraised in these petitions can be raised under those provisions."
11. There can be no cavil with the aforestated proposition. However in order to find out whether any inconsistency exists between the two enactments a scrutiny will have to be made of the provisions of the Co-operative Societies Act and rules made thereunder.
12. Mr. M. Ilyas Ahmed, the learned counsel for the defendant has referred to the various provisions of the Co-operative Societies Act contended that the fact that the jurisdiction of the Civil Courts has been ousted suggests that any dispute or order relating to or in any manner arising from the Co- operative Societies Act cannot be brought in a Civil Court and, therefore, the question of applicability of the provisions of Arbitration Act does not arise. To support his contention that the award under the Co-operative Societies Act cannot be challenged in a Civil Court the learned counsel has referred to Mercantile Co-operative Bank Ltd. v. Vissumal Chatumal PLD 1962 Kar.
13. 529) where it was held that after an award has been made by the Registrar or his nominee the judgment-debtor can only challenge it under section 56 or 64-A of the said Act and no further challenge is contemplated in a Civil Court by way of a civil suit.
14. A perusal of the provisions of the Co-operative Societies Act, 1925 makes it clear that it provides a machinery for deciding the disputes between the members of the Societies. Against the award it provides for appeal and revision. Section 57 (a) of. The Act provides that the award shall subject to the provision of sections 64 and 64 (a) which provide for appeal and revision shall be final and conclusive and shall not be called in question in any civil or revenue Court. This clearly shows that the awards cannot be challenged except as provided by the said Act. In this regard reference can be made to the following observation in the judgment reported in PLD 1961 SC 215.
15. "The provision of Co-operative Societies Act seek to impose restrictions upon the rights vested under the general law, to have recourse to ordinarily Civil Courts for the adjudication of civil disputes.
16. The learned counsel for the defendants has contended that the cases referred to by the plaintiffs namely PLD 1969 SC 252 and AIR 1963 All. 113, in view of amendment in the Co-operative Societies Act by Ordinance XII of 1966 whereby section 70-A was added, the jurisdiction of the civil Court has been completely barred. Section 70-A (1) (c) provides that notwithstanding in any other law for the time being in force but save as expressly provided in this Act "no other Court or authority whatsoever shall be competent to grant any injunction or pass any other order in relation to any proceedings under this Act or any reliefs for stay made thereunder, before the Provincial Government Registrar, his nominee, arbitrator, or society. This provision came under consideration in the case of P. I. B. Housing Society v. K B. Sana--ullah and others PLD 1968 Kar. 680where it was held that there was no inconsistency between section 11 of Arbitration Act and section 54 (a) of the Co-operative Societies Act but view of the provisions of section 70-A of the said Act the jurisdiction was barred. It may be noticed that in judgment reported in PLD 1969 SC 252 the provisions of Co- operative Societies Act (Act 1 of 1912) and Rules made thereunder were under consideration. In that Act there is no provision equivalent to section 70-A of Co-operative Societies Act, 1925. Therefore, the observations in that judgment will not be applicable here. So is the case with AIR 1963 All 113. .
17. The provisions of the Co-operative Societies Act regulating the arbitration under it are not inconsistent with sections 11, 20 and 33 of the Arbitration Act. But the bar imposed by section 70-A of the said Act ousts the jurisdic--tion of the Civil Courts, therefore, the Courts cannot entertain any proceeding which in any manner relates to or challenges any award, order or proceeding before the Provincial Government, Registrar his nominee or the arbitrator.
18. The learned counsel for the plaintiff has contended that he has not challenged the award but he wants the effects of the award to be determined. The plaintiff by such determination of the effect of the award seeks to set aside the revisional order passed in miscellaneous application during execution proceedings. The effect of such a determination will be that the civil Court will have to look into the award and hold whether the order passed by the revisional authority is in terms of the award. This would entail challenging the proceedings under the Ordinance which is completely barred by section 70-A of the Co-operative Societies Act. ' In the result the petition/suit is dismissed with no order as to costs.