1. B. G. N. KAZI, J.-Both these petitions are by members of Bahadur Yar Jang Co-operative Housing Society Ltd. And seek quashment of award dated 30-5-1974 of nominee of Registrar, Co-operative Societies in favour of another member of the Society who is named as respondent in both the petitions ; the order in appeal of Deputy Registrar exercising powers of Registrar dated 14-4-1977 and the order in Revision passed by the Secretary Co-operation, Government of Sind dated 4-8- 1980 in respect of allotment of Plot No. 380 in Block III measuring 576 square yards in the aforementioned Co-operative Housing Society in Karachi. As orders impugned in both the petitions are the same and most of the questions of law raised are common to both the petitions, it is convenient to dispose them of together.
2. The material facts in each of the cases are substantially the same and are being narrated in chronological order. Respondent Mr. Haqqani was enrolled as member of the Bahadur Yar Jang Housing Society (hereinafter referred to as the Society) on 20-3-1949. Mr. Shaikh Haider petitioner in C. P. No. D-1346 and Mr. S. Mahmud Hussain petitioner in C. P. No. D-1360 were enrolled as members of the Society on 30-3-1949 and 25-3-1949 respectively. According to shares held by him, Mr. Haqqani was entitled to allotment of a plot measuring 600 square yards. His claim was consistently overlooked and plots of similar area were allotted to other members who had joined the Society later. In the year 1954 the Society got prepared separate lists of members eligible for allotment of plots in Blocks 111, VII and VIII respectively, and the name of Mr. Haqqani appeared in the list of Block III at S. No. 41, and that of Mr. Mabmud Hussain in the list of Blocks VII and VIII ; whereas the name of Shaikh Haider did not appear in any list. The explanation for this omission has been mentioned in the impugned order of the Deputy Registrar dated 14-4-1977 when dealing with the factual position.
3. The impugned orders are based on facts mentioned therein specially these not denied and at this stage, for obvious reasons, the same can be considered while assessing the legality or otherwise of the impugned orders. It is mentioned that when Mr. Shaikh Haider was Honorary Secretary of the Society a Plot No. 43 in Block III was allotted to him, but he failed to deposit development charges despite notices and as such the allotment of the same plot was cancelled. As he had failed to avail of the opportunity given his name was not included in the eligibility list.
4. Mr. Haqqani raised a dispute A. B. N. 59/1956 before the Registrar, Co-operative Societies, Karachi under section 54 of the Bombay Co-operative Societies Act, 1925 (VII of 1925) (hereinafter referred to as the Act) which was referred by the Registrar for decision to his nominee who gave award .In favour of Mr. Haqqani on December 27, 1956 directing that Plot No. 36 in Block III which had earlier been allotted to one Mr. Mehdi be allotted to Mr, Haqqani. The matter came up in appeal before the Registrar who modified the award directing the Society to allot a plot measuring 600 square yards in Block No. III to Mr. Haqqani without specifying the same as No. 36 in Block No. 111. The aforesaid decision was confirmed in Revision under section 64-A of the Act by the Chief Commissioner on 16- 7-1957.
5. On 29th May, 1961 the Managing Committee of the Society declared that Plot No. 3W in Block No. III had fallen vacant. On the very day Mr. Shaikh Haider applied for allotment of the plot and the Managing Committee completed all formalities the same day and allotted the plot to him, in spite of the fact that earlier Mr. Shaikh Haider was allotted Plot No. 488 in Block No. III and after its cancellation, commercial Plot No. 458. On 26-10-1971, therefore, Syed Mahmud Hussain (petitioner in C. P. D. 1360 of 1980) invoked arbitration under section 54 of the Act which is No. AB-278 of 1961 and was referred to his nominee by the Registrar. An interim order for maintenance of status quo was passed in the course of the proceedings directing Mr. Shaikh Haider not to build upon the disputed plot. Mr. Haqqani had also moved the Registrar complaining that the Society had not implemented the award given in his favour as far back as December 27, 1956. A report was called for from the Society and the Managing Committee of the Society passed the following resolution "If the stay order given in the proceedings initiated by Mahmud Hussain is vacated, the Society proposes to allot Plot No. 380 in Block No. III to Mr. Haqqani."
6. The Registrar approved the Resolution and simultaneously ordered that the reference made by him to his nominee in the dispute raised by Mahmud Hussain be cancelled, as due to the resolution of the Managing Committee it had become obsolete. The Managing Committee, therefore, cancelled the allotment of the plot in favour of Mr. Shaikh Haider on 29-5-1961. Mr. Shaikh Haider (petitioner in C. P. No. D-1346 of 1980) challenged the order in ?Writ Petition No. 398 of 1962 which was allowed by a Bench of the erstwhile High Court of West Pakistan on 8-11-1956 quashing the order of the Registrar dated 29-5-1962. The High Court, while setting aside the order of the Registrar held that he was not competent in law to cancel the arbitration proceedings which he bad earlier entrusted to his nominee under section 54 of the Act.
7. Against the aforesaid decision of the High Court of West Pakistan, Karachi dated 8th November, 1965 the Registrar, Co-operative Societies, Karachi filed appeal before the Supreme Court which was dismissed on the ground that it was pointed out that the Registrar in the counter affidavit filed by him. In the High Court had specifically taken up the position that there was no dispute between Shaikh Haider and Mr. Haqqani nor had any such dispute been referred to arbitration, and that his order was not based on any reference in any fresh arbitration proceedings. It was, however, observed by the Supreme Court as under;-- "On hearing Mr. Usman Ghani, we are inclined to hold that the Registrar was competently seized with the dispute raised before him by Mr. Haqqani under section 54 of the Bombay Co-operative Societies Act and that he could in the course of those proceedings, direct that the allotment of Plot No. 380 from the name of Mr. Shaikh Haider be cancelled and the same plot be allotted to Mr. Haqqani. Mr. Shaikh Haider would have been bound by that order as he had on his own application joined issue with Mr. Haqqani before the Registrar and was heard before the impugned order was made. As the plot was to be allotted to Mr. Haqqani, the reference made by the Registrar to his nominee for adjudicating upon the claim by Mahmud Hussain was rendered abortive. The Registrar could, therefore, cancel those proceedings in exercise of powers ancillary to section 54 of the Bombay Co-operative Societies Act."
8. The Supreme Court, while dismissing the appeal directed as under;-- "The Registrar shall now proceed to dispose of the dispute raised before him by Mr. Haqqani under section 54 of the Bombay Co-operative Societies Act in accordance with law."
9. Mr. Haqqani had already filed an application under section 54 before the Registrar Co-operative Societies which is A. B. No. 143/73 and the Registrar appointed his nominee and disputes in both the matters, namely A. B. No. 278/61 and A. B. No. 143/73 were referred to him for decision. The nominee gave his award in favour of Mr. Haqqani and both the petitioners in C. P. D-1346 and C. P. D-1360 of 1980 preferred appeals which were dismissed by the Deputy Registrar exercising powers of Registrar. Both the aforesaid peti--tioners also filed Revision Applications before the Secretary, Co- operation, Government of Sind who disposed of the same by his order dated 4-9-1980 dismissing both the Revision Applications and upholding the award passed by the nominee of the Registrar and the orders of Deputy Registrar, Co-operative Societies, Karachi dated 14-4-1977: As already stated, these two petitions have now been filed for quashment and declaration that the impugned orders are illegal, ultra vires and of no effect in law.
10. The learned counsel for the petitioners have raised the following con--tentions;
(i) That in view of the earlier reference of dispute in A. B. No. 59 of 1956 which was in respect of. Plot No. 36 in Block III only between Mr. Haqqani and the Society and decision of which had been merged into the appellate order of the Registrar and the order of the Revisional Authority, Mr. Haqqani only had the right to get the aforesaid orders enforced and could not, therefore. File a second arbitration.
(2) That the second arbitration was in the nature of execution of award which being against the Society could not have been executed against the petitioners.
(3) That on allotment of the plot to Mr. Shaikh Haider by the Society, since in the sub-licence issued in his favour, the Government of Pakistan and the Karachi Co-operative Housing Societies' Union were mentioned as parties, section 54 of the Act does not come into play.
(4) That under rule 32 of the Co-operative Housing Societies Rules, 1927 when a dispute has been referred to the Registrar under section 54 the Registrar or his nominee had to issue notice to all parties and each of the parties had the right to nominate an arbitrator. The failure in the instant case of the petitioners to appoint their own arbitrators has seriously prejudiced them.
11. Mr. Shah Yakoob for petitioner in C. P. D-1360 of 1980 has also raised the following additional contention:
(5) That the dispute raised by Mr. Syed Mahmud Hussain in A. B. No. 278 ; which was referred for decision on 8-9-1973 has not been decided in the impugned orders.
12. Before dealing with the above-mentioned contentions it is observed that before the relief prayed for in these petitions can be granted, jurisdictional defects as distinguished from a mere erroneous decision, have to be made out, and further, that the facts, as stated in the impugned orders specially when the same have not been disputed can be considered to assess the legality or otherwise of the impugned orders.
13. Contentions Nos. 1 and 2.-With regard to Contention No. 1, it is obvious, after perusal of the facts that although Mr. Haqqani was eligible for allotment of plot and had acquired the requisite number of shares for grant of plot measuring 600 square yards, the Society had persisted in overlooking his claim and had allotted plots to others and, therefore, it was necessary for him to refer the dispute against the Society under section 54 of the Act. The dispute was referred for decision to nominee of the Registrar as A. B. No. 59 of 1956. The dispute was decided in his favour by directing the Society to allot a plot of 600 square yards in Block No. III to him. However, since the needful had not been done and there was again a case in which Plot No. 380 in Block No. III bad been allotted to a person who was, according to Mr. Haqqani, and also as later adjudged by the authorities concerned not eligible for the allotment, there was fresh cause for yet another dispute which was rightly raised .
14. And referred under section 54 of the Act for decision. Whereas the earlier dispute was with regard to his eligibility for allotment of a plot of requisite area which was being over--looked, the other dispute was with regard to a specified plot over which, according to him, be had a better claim for allotment. There is no limit to the number of dispute which could be referred under section 54 of the Act. Moreover, the fact about the two disputes raised under section 54 having been referred was in the knowledge of the High Court .And the Supreme Court, and the fact that the Supreme Court was pleased to direct that the Registrar should proceed to dispose of the dispute raised by Mr. Haqqani in accordance with the law shows that either the point was not raised or in any case it was not considered to invalidate the reference which the Registrar had been directed to dispose of in accordance with law. For the reasons already given, the contention that the second reference should be considered as a matter of execution of the first award cannot be accepted.
15. Contention No. 3.-The point does not appear to have been taken before the authorities whose orders are being impugned. It is also clear that no such point was taken before the High Court or the Supreme Court. With regard to eligibility of Mr. Shaikh Haider for allotment of the plot and the actual allotment by the Society all the authorities have given finding that the allotment was invalid and improper. While quashing the impugned order of the Registrar the High Court observed as under "In these circumstances we would quash the impugned order and leave the respondents to pursue such legal remedy as may be available to them to get rid of the allotment made to the petitioner of the plot in dispute."
16. It is, therefore, quite clear that from the very outset it was apparent to the authorities concerned that the allotment in favour of Mr. Shaikh Haider was improper and invalid, if not illegal. The Registrar in his order dated 29th May, 1962 had observed, after hearing Mr. Shaikh Haider, and the representative for the Society that the allotment of Plot No. 380 in favour of Mr. Shaikh Haider was illegal as it was done in clear violation of the decree and directions issued from his office and that of the Commissioner, Karachi. He had, therefore, approved the proposal of the Committee cancelling the allotment of the plot in favour of Mr. Shaikh Haider.
17. With regard to the contention that since in the sub-licence issued in favour of Mr. Shaikh Haider, the Government of Pakistan and the Karachi Co-operative Housing Society Union are mentioned as parties, section 54 of the Act does not come into play ; Mr. Iqbal Kazi, the learned counsel for petitioner Shaikh Haider has relied upon the decision in Azizuddin Ahmad v. Azfz Ahmed and others PLD 1959 Kar. 497The facts of that case were different as the allotment under the Rules had merged in a lease for 99 years granted by Government of Pakistan, the lease deed having been duly signed on behalf of the Government. In the instant case there was only the sub-licence issued and signed only on behalf of the Society as Sub licence No. 1. The Sub--licence No. I under condition No. 3, if the declaration forming Annexure I to the sub-licence turned out to be false, and the Sub- licence No. 1 had the right to terminate the Agreement. Annexufe I aforesaid inter alia mentions that the Sub-licence No. 2 was not a lessee or allottee of any plot. On the material on record it is apparent that declaration in the Annexure I was wrong. It is apparent that some plots had already been allotted to Mr. Shaikh Haider. Mr. Usman Ghani Rashid, the learned counsel for respondent has drawn our attention to documents which indicate such allotments. There is true copy of application of Mr. Shaikh Haider for which withdrawal of Rs. 900 from the amount deposited on call up of development charges dated 25-7-1952. There is also declaration made by Mr. Shaikh Haider dated 14-1-1959 showing deposit inter alia of Rs 900 paid towards develop--ment charges which amount was withdrawn. Our attention has also been invited to true copy of note of office of Registrar showing that on an applica--tion dated 25-7-1952 for refund of Rs. 900 from the amount deposited by him as development charges the Managing Committee had allowed Rs. 900 to be paid to him on condition that the amount would be re-deposited within two months, but Mr. Shaikh Haider failed to abide by the resolution of the Managing Committee and so his Plot No. 43 of 600 square.
18. Yards was cancelled under Managing Committee's Resolution dated 13-1-1953. There is also a true copy of Letter No. BYJ CH-MPF-LF-564/500 dated 26th July, 1952 which shows that Mr. Shaikh Haider had been allotted a plot measuring 581 square yards in Bahadurabad No. 1 and was requested to remit Rs. 2,100 on or before 10th August. 1959, otherwise the plot would be allotted to another senior member of the Society eligible therefor. It is also contended on behalf of Mr. Haqqani that both the High Court and the Supreme Court had directed that the matter, before the Registrar be decided and, therefore, it is obvious that objection as ,regards maintainability of the reference had not been taken at the initial stage. He further pointed out that preliminary objections were filed on 19-6-1973 to which reply was made on 17-7-1973 and written statement was filed by Mr. Shaikh Haider on 17- 7-1973 and even till the framing of consent issues the point with regard to non-maintainability of the reference was not made ; therefore, it is not now open to the petitioner to take the objection.
19. With regard to the mala fides of the action resulting in the issue of the sub-licence it has been pointed out that the Secretary of the Society addressed letter dated 13th June, 1961 to Mr. Shaikh Haider informing him that it was proposed to allot a plot in Bahadurabad No. 1 of 576 square yards and if he was interested in exercising his rights to take up the plot, he should remit Rs. 712 to the Society on or before the 30th June, 1961. But the sub-licence was executed on 15-6-1961 in respect of Plot No. 380 in Block No. 111, although the formal allotment of the plot was mentioned in the letter dated 21-6-1961 addressed to Mr. Shaikh Haider. It is, therefore, contended that the action in the issue of the sub-licence on 15-6-1961 even before the issue of formal allotment orders on 21-6-1961 was altogether against the rules of the Society and, therefore, the termination of licence by resolution of the Working Committee was legal and proper.
20. With regard to the contention that under the Co-operative Housing Society Rules, 1927 notice had to be issued to all parties and each of the parties had the right to nominate an arbitrator since the dispute was touching the business of the Society, under section 54 it was required to be referred to the Registrar for decision by himself or his nominee or if either of the parties so desired 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. In the instant case, the dispute was referred to the Registrar and by him to his nominee who issued notice under rule 32 of the Co- operative Societies Rules under which if either of the parties desired that the matter be referred to arbitration, the Registrar or his nominee had to call on each party to nominate his arbitrator within 15 days. Notice dated 26th May, 1973 was issued and it is apparent that the desire that the matter be referred to arbitra--tion was not expressed within 15 days time. Most of the proceedings were complete. The point which was earlier raised before the nominee of the Registrar has been referred to in the impugned award under the heading "Appointment of arbitrators of the parties". It has been stated that on receipt of the order of reference the plaintiff (respondent herein) and the Society were called upon to appoint their arbitrators if they so desire under the provisions of rule 32 of the Co-operative Societies Rules, 1927, but both the parties did not indicate a desire to appoint their arbitrators within appointed time. The proceedings were, therefore, started by the nominee as the. Sole arbitrator on 19-6-1.973. . The contention that reference to arbitration was made without notice to parties and without declaration of principal party and that the Registrar's nominee had by himself illegally made the Society as principal party even though the disputed plot was held by defendant 2 (petitioner herein) who ought to have been declared as principal party was also considered, and was heard by the Deputy Registrar who heard all the parties concerned and conveyed his decision, that since the Registrar's nominee was seized of the matter the parties should agitate the point for declaration of principal party before him. But since the further contention that Registrar's nominee was not competent to give decision in the matter as under rule 32 it was the exclusive jurisdiction of the person exercising powers of Registrar to declare as to who is the principal party, the matter was again submitted to the Deputy Registrar for decision.
21. It is apparent that the Society was rightly considered as the principal party as the dispute was by a member against the allotment made by the Society and in the dispute the remedy had been sought against the Society. The contention about declaration as principal party was late and it was rightly pointed out in the award that the belated application was obviously with intention to cause delay in the expeditious decision in the case and therefore the application was rejected. In any case, the matter was within the jurisdiction of the Registrar or person exercising the powers of Registrar, and the decision about the declaration of the principal parties cannot be challenged at this stage before this Court.
22. The contention that the matter with regard to the reference of dispute of Mr. Syed Mahmud Hussain was not decided in the impugned orders would appear to have been misconceived as there is clear indication in the award about the fact that his right to the allotment of Plot No. 380 in Block III was con--sidered vis-a-vis the right of Mr. Haqqani. The matter about Syed Mahmood Hussain having no locus standi was considered and it was observed that he had never applied for plot of 600 square yards, but had only in the first instance applied for plot of 490 square yards. It was the further point made against him that he had not acquired the required number of shares on the date of allotment of Plot No. 380 in Block No. 111. It is also further clear from the award that the contention on behalf of Syed Mahmud Hussain that since the High Court and Supreme Court bad not determined any preferential right, but had left the matter to be determined according to law, and hence there was no question of preferential right, had been considered. The further claim that because he had invoed arbitration proceedings first and obtained stay orders and stopped construction on the plot he was entitled to Plot No. 380 was also considered. It was the contention on his behalf that Mr. Haqqani had invoked arbitration of the dispute four years later than him.
23. The mere fact of invoking arbitration earlier, does not make any difference in preferential eligibility which is governed by the Rules and Bye--laws of the Society. The arbitrator, after hearing the arguments and examin--ing the various documents came to the conclusion that by virtue of orders in A. B. N. Case No. 59/1956 Mr. Haqqani was to be alloted a plot of 600 square yards in Block No. III and the Society was expected to comply with that order of the Chief Commissioner, Karachi within a reasonable time. The Society was, therefore, bound to allot the first available plot to Mr. Haqqani who was given preference over the other non-allottees, including Syed Mahmud Hussain.
24. Discussing the provisions of section 17 of the Co--operative Societies Act it was observed in the award that section prohibits a person from exercising the rights of a member unless he has made such payments in respect of membership as are prescribed by the rules and bye-laws of the Society. It was found that Mr. Haqqani had been complying every time there was call up for purchase of shares by the Society and he was not a defaulter. The award reveals that all the relevant point with regard to preferential right of the three members were considered for adjudging the matter with regard to the right to the allotment of the plot in question. It was further observed that the application for damages -was not made by Mr. Haqqani in lieu of his claim of a plot in Block No. III, and that the Registrar's orders for compensation dated 14-10-1958 were not made under the provisions of any law. It was further observed that the Registrar could not give any fresh orders after the final orders in A. B. No. 59 of 1956 by the Chief Commissioner, Karachi. But however before Mr. Haqqani could submit his appeal against the illegal orders the Registrar himself passed another order dated 5-I1-1958 in a separate A. B. N. Case No. 96 of 1957 pertaining to Plot No. 423 in Block No. III measuring 933 square yards that the said plot be allotted to Mr. Haqqani. The new order therefore amounted to supersession of the previous compensation order. It was further pointed out that the same view was held by the Chief Commissioner in his letter dated 6-12-1961. It was, therefore, held that the compensation order was neither accepted by Mr. Haqqani nor accepted or acted upon by the Society and had lapsed automatically by subsequent developments. Plot No. 423 in Block No. III was also not allotted to him on the plea that it exceeded 600 square yards.
25. The two petitioners have failed to point out any illegalities committed in passing of the impugned orders or that the impugned orders were passed without lawful authority. We find that there is no substance in these petitions which are, therefore, dismissed; but in the circumstances of the case no orders are being passed with regard to costs.
26. AJMAL MIAN, J.-I have had the advantage of having read the judgment proposed by my learned brother B. G. N. Kazi, J. Though I agree with the conclusion arrived at by him ,but I wish to give my own reasons. The facts have been succinctly stated by my learned brother in his judgment and, therefore, it will suffice to observe that here is a concurrent finding of the three tribunals i.e. Registrar's nominee in his award dated 30-5-1974, the Deputy Registrar in his appellate order dated 14-4-1977 and the Secretary, Co-operative Societies, Government of Sind, in his revisional order dated 4-8-1980, to the effect that respondent No. 5 (hereinafter referred to as Mr. Haqqani) in Writ Petition No. D-1346 of 1980 was entitled to the allotment of the plot in question in preference to the two petitioners in the above two petitions (hereinafter referred to as Mr. Shaikh Haider and Syed Mahmood Hussain respectively). Apart from the fact that in writ jurisdiction, this Court cannot interfere with a finding of fact arrived at by the competent tribunals supported by the evidence on record, in my view A the above finding re corded by the three tribunals is in accord with the evidence on record and no exception to it can be taken.
2. (a) Mr. Iqbal Kazi, learned counsel for the petitioner has raised the following legal pleas :- "(i) That dispute between Mr. Haqqani and respondent No. 3, i.e. Bahaduryar Jang Co-operative Housing Society, Limited had merged into the award and into the appellate and revisional orders and, therefore, Mr. Haqqani was not entitled to make a fresh reference to arbitration under section 54 of the Co-operative Societies Act.
(ii) That Mr. Haqqani in fact purported to execute an award through the arbitration proceedings against a person, who was not a party to the previous arbitration proceedings.
(iii) That in pursuance of allotment in favour of Mr, Shaikh Haider a sub-licence had been executed between him and respondent No. 3 Society and the Co-operative Societies' Union and that since neither the Government of Pakistan nor the Union was a party to the arbitration proceedings, the award is without jurisdiction.
(iv) That under rule 32 of the Co-operative Societies Rules the principal parties were entitled to appoint their own arbitrator within 15 days and that Mr. Shaikh Haider being one of the principal parties was deprived of his right to appoint his own arbitrator."
(b) On the other hand Mr. Usman Ghani Rashid, learned counsel for Mr. Haqqani, has made the following submissions "(i) That Mr. Haqqani had a fresh cause of action when the plot in question was allotted to Mr. Shaikh Haider in preference to him and, therefore, the fresh arbitration proceedings were competent.
(ii) That in the previous petition filed by Mr. Shaikh Haider in the High Court (the decision of which is reported in PLD 1966 Kar. 177), or before the Supreme Court in the petition for special leave, it was not contended by him that arbitration proceedings could not have been resorted to because of the execution and registration or a sub-licence, but in fact the above proceedings proceeded with on the assumption that fresh arbitration proceedings were competent and hence Mr. Shaikh Haider is estopped from urging that the arbitration proceedings were not competent.
(iii) That the licence executed by respondent No. 3 Society and the Societies' Union was revocable, which did not confer any right/interest upon the said petitioner and therefore, it could have been revoked at any time and in fact it was revoked by respondent No. 3 Society.
(iv) That Mr. Shaikh Haider not being a principal party h as not entitled to nominate his arbitrator.
(v) That in any case under section 54 read with rule 32 of the Co--operative. Societies Rules. Mr. Shaikh Haider was to intimate to the Registrar his option to nominate an arbitrator within 15 days, which he failed to do.
3. (a) Reverting to the first contention of Mr. Iqbal Kazi that since the dispute between Mr. Haqqani and, respondent No. 3 Society for an allotment of a plot had merged into the award dated 27-12- 1956, given in A. B. N. 59 of 1956 and into the appellate and revisional orders dated 16-3-1957 and 16 7-1957 respectively passed in Appeal A. B. No. 59 of 1956 and Revision No. 21/22/57 respectively, there could not have been any a fresh reference, it may be pertinent to observe that in the previous arbitration proceedings, the dispute between Mr. Haqqani and respondent No. 3 Society was as to the right of Mr. Haqqani to get a plot allotted in the aforesaid Society. The above dispute was resolved in the form of the above award and the appellate and revisional orders, whereby it was held that Mr. Haqqani was entitled to a plot in Block No. III of the Society. It was not held that he was entitled to any specific plot. The Plot No. 380, measuring 476 sq. Yards situated in Block No. III (hereinafter referred to as the plot) had become available for allotment on 29-5-1961. The respondent Society instead of allotting the plot to Mr. Haqqani, on the very day revolved to offer the allotment to Mr. Shaikh Haider and in fact allotted the same. In my view, Mr. Haqqani was entitled to raise a dispute that he was entitled to the allotment of the plot in preference to Mr. Shaikh Haider.
27. Since it was 4dispute between two members of the Society and the Society, the same was referable to arbitration under section 54.
28. It may be observed that section 54 provides that if any dispute touching the business of the Society other than the dispute regarding disciplinary action taken by the Society or its Committee against a paid servant of the Society arises between members or past members of the Society or person claiming through a member or past members or servant of the Society, between the Society or its Committee, and any past or present member of the Society etc., the same shall be referred to the Registrar for decision by himself or his nominee or if either of the party so desires to arbitration of three arbitrators, who shall be the Registrar or his nominee and two persons whom one shall be nominated by each of the parties concerned. The above section squarely covers the dispute of the nature involved in the instant case. The subject-matter of the previous arbitration proceedings was not as to whether Mr. Haqqani or Mr. Shaikh Haider was entitled to the plot (i.e. Plot No. 380, Block No. III). This dispute had arisen because the respondent Society instead of allotting the plot in question to Mr. Haqqani had allotted the same to Mr. Shaikh Haider.
(b) Mr. Iqbal Kazi has referred to the case of Nalini Mohan Chowdhry v. Malda Co-operative Urban Bank Ltd. (AIR 1957 Cal. 23and the case of Anjuman Dehl v. Keharsing (AIR 1936 Lah. 901).
(i) In the above first case of the Calcutta High Court, it was held that a valid award made by an arbitrator on a reference under section 86 of the Bengal Co-operative Societies Act, 1940 operates to extinguish a claim and dispute referred to arbitration and that the same dispute cannot be the subject --matter of a second arbitration.
(ii) Whereas in the second case of the Lahore High Court the facts were that the cause of action of an award settling the dispute between the Society and its member was held by the executing Court as time-barred. Thereafter, the Society -referred the same dispute to the second arbitration and obtained a fresh award. In these circumstances, it was held that the dispute between the Society and its member was determined by the first award and the subsequent dispute referred by the Society to arbitration was one which under rule 43 of the Co-operative Societies Rules could only be decided by the executing Court and not through a second arbitration.
(c) There cannot be any cavil to the proposition of law propounded in the above two cited cases. It is a well settled principle of law that if a party obtains a award through the arbitration proceedings, the proper course open to him to enforce the award and not to invoke fresh arbitration for the same dispute. But in the instant case this is not so, as pointed out hereinabove. A fresh cause of action accrued to Mr. Haqqani when the respondent society instead of allotting the plot to him allotted the same to Mr. Shaikh Haider.
4. (a) With reference to the second contention of Mr. Iqbal Kazi that Mr. Haqqani in fact through the above arbitration proceedings purported to execute the award against the Society, which could not have been executed against Mr. Shaikh Haider not being a party to the previous arbitration proceedings, it may be observed that I am unable to subscribe to the above contention canvassed by Mr. Iqbal Kazi inasmuch as the second arbitration proceedings were not initiated with the object to execute the award of the previous arbitration proceedings against the Society. As pointed out hereinabove, a' fresh dispute arose. It is an admitted position that Mr. Haqqani could not have executed his award against Mr. Shaikh Haider, as he was not a party to the previous arbitration proceedings. The fresh dispute involved adjudication on the question, as to whether Mr. Shaikh Haider was entitled to the allotment of the plot in preference to Mr. Haqqani, which point could not have agitated by Mr. Haqqani in an execution proceedings in respect of the previous award. It may be observed that sections 59 and 59-A of the Co-operative Societies Act, 1925 provide the mode of execution inter alia of an award. It is an admitted position that Mr. Haqqani had not invoked the above provisions, on the contrary fresh arbitration proceedings were initiated.
(b) Mr. Iqbal Kazi in support of his above contention has referred to the case of Azizuddin Ahmed v.
29. Aziz Ahmed and others (PLD 1959 Kar. 497the case of "South Kanara Central Co-operative Bank Ltd. v. ChRumumur Co-operative Sqciety Limited (AIR 1934 Mad. 181) and the case of Harihar Parsad v. Bansi Missir and others (AIR 1931 Pat. 311
(i) Reverting to PLD 1959 Kar., it may be observed that the facts of the above case were that the petitioner was allotted a plot of land, measuring 2000 sq. Yds. Area of which, was first increased on 14-12-1954 to 2700 sq. Yds. And it was further increased on 10-1-1957 to 3105 sq. Yds. Respondent No. 2 Society i. e. PECHS had executed and registered a sub-licence in favour of the petitioner in respect of the above-mentioned area. On 22-2-1957 respondent No. 2 executed a deed of rectification and got it registered, whereby 550 sq. Yds. Was further added to the above plot of land. The total area of which became 3705 sq. Yds. The petitioner paid total payment of Rs. 20,137, towards the development charges. On 9-4-1957 the Government of Pakistan in the name of the President of Pakistan executed and registered a 99 year lease in favour of the petitioner. On 6-3- 1957 the Managing Committee of respondent No. 2 Society allotted 1705 sq. Yds. Out of the above- mentioned plot of land to respondent No. 1 Mr. Aziz Ahmed the then Secretary, Ministry of Commerce. On 25-6-1957, the Secretary of respondent No. 2 Society addressed a letter to the petitioner informing him that he was allotted an area of 2000 sq. Yds. Only, and that the staff. Of the Society without any authority increased the area and that out of the above area 1705 sq. Yds. Was actually a wholesome plot of land, which had been allotted to respondent No. 1. The petitioner repudiated the above claim, whereupon respondent No. 1 approached the Registrar, Co-operative Societies, respondent No. 4 under section 54 of the Co-operative Societies Act, which was objected to by the petitioner on the ground that since the lease was executed by the Government of Pakistan, the matter could not be referred to arbitration under the above section. The above objection was up--held by the Registrar by his order dated 23-9-57, but the above order was reversed by the Commissioner of Karachi, which was impugned through a writ petition, which was allowed by the above judgment, reported in the aforesaid PLD 1959 Kar. 457. It was held that the dispute between two members inter se and the Government of Pakistan cannot be referred to arbitration.
(ii) With reference to AIR 1934 Mad. It may be stated that in the above case a decree obtained against a co-operative society -was sought to be executed against the shareholder. It was held that since the decree was against a corporate body, it could not be executed against its share-- holder or member by arrest or attachment of the movable and immovable property.
(iii) Referring to AIR 1931 Pat. 321, it will suffice to observe that in the above case, it was-held that the effect of incorporating persons into a body corporate is to make that body corporate a separate legal entity or persons called corporation, which is a legal person and as such has an individuality. It was further held that an award obtained against the Society could not be executed against its members.
(c) In my view the above cases cited by the learned counsel for Mr. Shaikh Haider, Mr. Iqbal Kazi has no application to the instant case inasmuch as in the present case the execution of an award against a person not a party to the arbitration proceeding is not involved. There cannot be any cavil to the proposition that a cause of action merges into an award or into the orders passed upon such an award and that there cannot be second arbitration proceeding in respect of such a cause of action. Nor there can be any dispute to the proposition that an award obtained against Society, cannot be executed against its members, for the reason that a society is a corporate body having' its independent legal entity as a jurisdic person, and, therefore, is different from its members. The liability of a Society is not the liability of its members. The members are liable to contribute as per rules/bye-law of the Society according to the numbers of shares held by them.
5. (a) Referring to Mr. Iqbal Kazi's contention that in pursuance of the allotment a sub-licence having been executed between Mr. Shaikh Haider and respondent No. 3 Society and the Societies Union, there could not have been any reference to arbitration under section 54 or that there could not have been any award in respect thereof, it may be observed that Mr. Iqbal Kazi has relied upon the case of Azizuddin v. Aziz Ahmed and other referred to and discussed hereinabove in para. 4(b)
30. (i). There is no doubt that in the above case the view found favour with a Division Bench of the erstwhile High Court of West Pakistan, Karachi Bench, was that after the execution of a lease deed in respect of a plot, the dispute relating to the plot could not have been referred to arbitration under section 54 of the Co--operative Societies Act. Apart from the fact that in the instant case no lease deed had been executed by the Government of Pakistan for the plot in question in favour of M_. Shaikh Haider, the facts of the instant case are different, which do not warrant the application of the principle propounded in the above case. It may be pertinent to observe that Messrs Shaikh Haider and Haqqani had a previous round of litigation in the form of a petition filed by Shaikh Haider decided through the judgment reported in PLD 1966 Kar. 177 culminating in the judgment dated 9-2-1973 passed by the Supreme Court in Civil .Petition No. K-24 of 1968, dismissing the petition for leave to appeal. It may be pertinent to observe that when respondent No. 3 Society in spite of an award in favour of Mr. Haqqani resolved to allot the plot to Mr. Shaikh Haider on 29-5- 1961 i. e. On the very day, when it became available, Mr. Haqqani had approached the Registrar, who by his executive order dated 29-5-1962, directed respondent No. 3 Society to cancel the allotment of the plot in favour of Mr. Shaikh Haider. He also cancelled the arbitration proceedings initiated by Mr. Syed Mahmood Hussain (the petitioner in C. P. D-1360/80) against Mr. Sheikh Haider.
31. The above order was challenged in the above writ petition by Mr. Shaikh Haider, which was allowed.
32. It was held that since the Registrar had not passed the impugned order in arbitration proceedings under section 54 or acting as the supervisory authority under section 64-A, the same could not have been passed.
(b) The Registrar, Co-operative Societies filed the aforesaid petition for leave to appeal against the above judgment of High Court. The Supreme Court while dismissing the above petition had made the following observa--tions:- "Mr. Haqqani had also moved the Registrar complaining that the Society was continuously refusing to implement the award given in his favour as far back as December 27, 1956. The Registrar called for report from the Society as to why Mr. Haqqani had not been allotted a plot in terms of the modified award so far and the orders passed by the Chief Commissioner. Thereupon, the Managing Committee of the Society passed the following Resolution that "if the stay order given in the arbitration proceedings initiated by Mahmood Hussain is vacated, the Society propose to allot Plot No. 380 in Block No. III to Mr. Haqqani."
33. The Registrar approved the resolution and simultaneously directed that the reference made by him to his nominee in the dispute raised by Mahmood Hussain which had, in view of the resolution of the Managing Committee of the respondent Society, became obsolete be cancelled.
34. As mentioned earlier the High Court has set aside the order of the Registrar holding that he was not competent, in law, to cancel the arbitration proceedings which he had already entrusted to his nominee under section 54 of the Bombay Co-operative Societies Act.
35. On hearing Mr. Usman Ghani we were inclined to hold that the Registrar was competently seized with the dispute raised before him by Mr. Haqqani under section 54 of the Bombay Co-operative Societies Act and that he could in the course of these proceedings, direct that the allotment of Plot No. 380 from the name of Mr. Shaikh Haider, be cancelled and the said plot be allotted to Mr. Haqqani. Mr. Shaikh Haider wou!d have been bound by that order as he had, on his own application, joined issue with. Mr. Haqqani before the Registrar and was heard before the impugned order was made. As the plot was to be allotted to Mr. Haqqani, the reference made by the Registrar to his nominee for adjudicating upon the claim by Mahmood Hussain was rendered abortive. The Registrar could, therefore, cancel those proceedings in exercise of powers ancillary to section 54 of the Bombay Co-operative Societies Act.
36. We are informed that after the decision. Of the High Court, Mr. Haqqani has raised a dispute before the Registrar under section 54 of the. Bombay Co-operative Societies Act that in preference to respondent No. 1 lie is entitled to allotment of Plot No. 380 in Block No. III but arbitration proceedings have been postponed to await the decision of this appeal.
37. In view of the admissions made in the High Court to which reference has been made earlier, it is not open to the Registrar to maintain that be was competently seized with a dispute under section 54 of the Bombay Co-operative Societies Act and that the order cancelling the reference pending before his nominee in the dispute raised by Mahmood Hussain was passed in the course of these proceedings. The appeal must, accordingly, fail and is dismissed without making any order as to costs. The Registrar shall now proceed to dispose of the dispute raised before him by Mr. Haqqani under section 54 of the Bombay Co-operative Societies Act in accordance with law."
(c) It is evident from the above-quoted observation that the Supreme Court was of the view that the question, as to whether Mr. Shaikh Haider was entitled to allotment of Mr. Haqqani, could have been the subject-matter of an arbitration under section 54. It is also clear from the above-quoted observations that it was brought to the notice of the Supreme Court that in fact Mr. Haqqani had raised a dispute before the Registrar under section 54 of the Co-operative Societies Act.
38. Thereupon, the Supreme Court directed the Registrar to proceed to dispose of the dispute raised before him by Mr. Haqqani under section 54 of the Act in accordance with law. In furtherance of the above direction, the arbitration proceedings were culminated into the impugned award and, the impugned appellate and revisional orders.
39. It may be pertinent to observe that it was not urged by Mr. Shaikh Haider before the Supreme Court that since a sub-licence had already been executed in his favour on 15-6-! 961, there could not be any valid reference to arbitration. Furthermore, Mr. Shaikh Haider filed some preliminary objec-- tion on 19-6-1973 before the Registrar's nominee, which did not include the above objection.
40. However, in para. 8 of the written statement filed on 17-7--1973, it was averred that a sub-licence having been executed by the Societies Union, the same could not be cancelled by the Registrar. But no issue was struck on the above point.
41. In my view even if it is to be held that the award is not binding on the Societies' Union as it was not a party to arbitration, the above finding would not nullify the award or the appellate and revisional orders against Mr. Shaikh Haider, as he is estopped from raising the above plea in view of the aforesaid reasons.
6. (a) Referring to thelast contention of Mr. Iqbal Kazi that under section 54 read with rule 32 of the Co-operative Societies Rules Mr. Shaikh Haider being a principal party was entitled to appoint his own arbitrator and that the Registrar by not giving him an opportunity in fact had deprived him, his vested right, it may be pertinent to observe that the first meeting before the Registrar's nominee took place on 19-6-1973, when none of the parties pointed out or requested for appointment of their arbitrator. 1n the second meeting on 2-7-1973 Mr. Shaikh Haider, filed some preliminary objections to the arbitration proceedings, which did not include the above objection. After that arbitration meetings took place on 17-7-73, 4-9-73, 15-9-73, 3-10=73, 26-11-73 and 4-12-73. During the above period written statement, the documents, and issues were filed by the parties, but no such objections was raised. However in the arbitration proceedings, which took place on 15-12-73 inter alia an application for raising the above objection was filed by Mr. Shaikh Haider, which was rejected. In my view under section 54 read with rule 32, Registrar or his nominee is required to serve notice to all the parties and the parties are required to intimate their desire, within 15 days of the receipt of such notice to refer the matter to arbitration in terms of section 54(e). In the instant case the notice was received by the parties prior to 19-6-1973 i. e. Before the first meeting. It is an admitted position that none of the parties made a request in terms of section 54(e) and rule 32, and, therefore, it was not necessary for the Registrar or his nominee to get the arbitrators appointed by the principal parties.
(b) The parties are at issue on the question, as to who were the principal parties. It was contended by Mr. Iqbal Kazi that Mr. Shaikh Haider was one of the principal parties as allotment in his favour was to be cancelled, whereas it was urged by Mr. Usman Ghani Rashid that the principal parties were the Society and Mr. Haqqani. In my view the above controversy is redundant, as none of the parties exercised the option within 15 days under rule 32 for getting the matter referred to arbitration tribunal in terms of section 54(e) of the Act. If any of the parties would have exercised the option, in that event question would have arisen as to who were the principal parties and Registrar was to decide the above question in terms of rule 32. However, I am unable to agree with the contention of Mr. Usman Ghani Rashid that Mr. Shaikh Haider was not one of the principal parties. Admittedly the plot was allotted in favour of Mr. Shaikh Haider, and in pursuance thereof a sub-licence was executed in his favour, and, therefore, he was to be affected adversely if the award was to be given for the cancella--tion of the allotment. In my view in terms of rule 32 the principal parties are those, who are to gain or to lose as a result of proceedings under sec--tion 54 of the Act. In the instant case respondent No. 3 Society was not to lose anything as a result of the above proceeding, as it did not matter for it, whether the plot was to go to Mr. Shaikh Haider or to Mr. Haqqani. Respondent No. 3, Society even did not contest the arbitration proceedings or even the above petition. To say that the Society was a principal party as compared to Mr. Shaikh Haider is not warranted by law.
(c) It was next contended by Mr. Iqbal Kazi that the notice provided for in Appendix II to the Guide was not served upon Mr. Shaikh Haider, which contemplates service of 15 days' notice and calling upon the principal parties to communicate their desire to nominate within 15 days of the receipt of the said notice to nominate their own arbitrator. However, Mr. Iqbal Kazi was unable to point out that the above form was prescribed under the statutory rules. The above form is given in the Chapter under the Caption "Arbitration Guide" in the Book under the Caption, `The Co--operative Societies Act, 1925, by Nisar Ahmed Panoun Advocate 1st. Ed.' Since no form of notice has been prescribed under the statutory rules, the fact that no notice was served in form given in Appendix Il in the Chapter of Arbitration Guide would not vitiate the arbitration proceeding. Furthermore, from the record of the arbitration proceedings, it seems that no such plea was raised, and, therefore, the same cannot be allowed to be raised in the above petition.
42. 7: Reverting to Mr. Usman Ghani Rashid's contention that the licence was revocable by the Society at any time, it may be observed that in my view if a sub-licence is acted upon by a sub-licensee, in the absence of any breach, it cannot be revoked. In the case of Kalimuddin Ansari v, Director, Excise & Taxation PLD1971SC114it was contended by some of the allottees of the P. E. C. H. Society, Karachi that since no lease was executed in their favour, no property tax could be levied in respect of the plots and the constructions the.-con as the properties were deemed to have been vested in the Central Government. While repelling the above contention, the Supreme Court observed that on considering the various provisions of the agreement (sub---licence) coupled with the fact that the Government bad not only allowed the appellants and other sub-licensees to construct masonry buildings on the land, but also expressly provided in the agreement that on the completion of the buildings, the sub-licensees shall be entitled to obtain a registered lease from the Government, the sub-licensees for all practical purpose had become the holders of a permanent lease upon putting up constructions in terms (1) of the sub-licences. In the instant case it is the case of Mr. Shaikh Haider that a boundary wall was constructed on the plot, but no building has been constructed. In view of the raising of the above construction in the form of a boundary wall, it is doubtful that it would have been open to the Society or the Societies Union to cancel the sub-licences in the absence of any breach on the part of Mr. Shaikh Haider or in the absence of a dispute as to the entitlement of Mr. Shaikh Haider to the allotment of the plot in preference to Mr. Haqqani. It may again be observed that the above dispute was seized of competently by the Registrar under section 54 of the Co--operative Societies Act. He was directed by the Hon'ble Supreme Court in the aforesaid judgment to dispose of the same.
8. I do not wish to add any other reason to the reasons already given by my learned brother B. G. N.
43. Kazi, J. On the point that the Registrar's nominee as well as the appellate and the revisional authorities have dealt with the claim of Syed Mahmood Hussain, the petitioner in C. P. No. D-1360 of 1980 and the decision arrived at is in accord with law.
9. For the aforesaid reasons I also held that both the above petitions do not have merit and the same are dismissed, but with no order as to costs.