ALI NAWAZ BUDHANI, J.- "Syed Brothers", a partnership firm, of the two petitioners carried on business at Khada Fish market since 1959 having one stall, .In the said market. Khada Fish market was run under the control of Karachi Municipal Corporation. .A new fish market was established at West Wharf known as Fish Harbour and was put under the control of Fisher--men's Co-operative Society which, for the sake of brevity, is hereinafter referred to as the "Society". The then Martial Law authorities ordered the shifting of all the fish stalls from Khada fish market to the fish harbour and the petitioners were allotted stall No. 7. Their business consisted of auction--ing the fish and to pay 50 % commission, from the sale proceeds to the Society. They carried on the business in the said stall till the end of 1962 whereafter the petitioners rented out the said stall to respondent No. 3 (Pir Mohd. Who died during the pendency of the petition) on monthly rent of Rs. 250. The terms and conditions were that the respondent No. 3 would pay the commission to the respondent No. 1 and would not do anything which might adversely affect the petitioners' entitlement. Respondent No. 3 was already a partner in stall No. 2 where his business was being carried on in the name and style of "Haji Yousuf Haji Ladha & Sons". Respondent No. 3 pursuaded the petitioners to allow him to take the said stall on rent in the name of his three sons namely respondents 4 to 6 on the grounds that otherwise the income of respondent No. 3 would be heavily assessed by the Income-Tax authorities. The agreement of lease was duly executed and signed between the parties.
Respondent No. 3 was an influential person and was one of the Ex-Directors of the Society.
Respondent No. 3 carried on the business but failed to pay 50 % of the commission to the Society.
The petitioners did not know that the respondent No. 3 defaulted and without a notice to the petitioners the Registrar of the Co-operative Societies, initiated arbitration proceedings, which resulted in awards, against respondent Nos. 3 to 6. In the meantime stall No. 7 rented out by the petitioners to respondent No. 3 was cancelled by the Society. Petitioners came to know about the cancellation only at a very late stage. No notice was served by respondent No. 1 on the petitioners nor the petitioners were informed about the non--payment of the requisite commission by respondents 4 to 6.- Respondent Nos. 3 to 6 failed to pay any monthly rent to the Petitioners and thus leaving no option with the petitioners who filed a Civil Suit No. 1675;1969 for the recovery of rent and damages. Copy of the plaint is filed Annexure B'. During the pendency of civil suit, an arbitrator was appointed and who, on the basis of compromise, between the parties, passed an award of Rs.
15,000 in favour of the petitioner. The award was subsequently confirmed. Annexure `C' is the certified copy of the said award. The respondents Nos. 3 to 6 assured the petitioners that ultimately the stall would be restored to the petitioners. In 1977 respondents Nos. 3 to 6 succeeded in getting back the stall No. 7 which belonged to the petitioners but the said stall was restored in the name of respondent No. 3. This was a mala fide action of respondent No. 3 in collusion with the directors of the Society. The restoration of the stall was circulated by respondent No. 3 and communicated on 26-3-1977, copy there of is Annexure `E'. The Society could allot only one stall or mole, as it is called, to one person at a time but the respondent No. 3 was allotted not only Mole No. 2 but also Mole No. 7 to the detriment of the petitioners, whose right of entitlement was usurped. Petitioners after having known that they were condemned without being heard, moved the Government of Sind for redress of their grievances. The Chief Minister of Sind made an endorse--ment on the representation of the petitioners that the stall No. 7 be restored to the petitioners. Chief Minister was supported by the Minister concerned and the similar endorsement was made by him on the same application and forwarded to the Society: On 20-6-1977 the orders were handed over to the respondent No. 1. The petitioners chose to make representation directly to the Sind Government in view of the fact that the Registrar of Co-operative Societies is one of the Ex Officio Director of respondent No. 1 and that he was present in the meeting of the Society in which the resolution pertaining to the so-called restoration of stall No. 7 was passed and thus he was not competent to hear the appeal against the said restoration. The petitioners awaited the compliance of the said order of the Sind Government by the Society but however, no action was taken by the Society. The petitioners, therefore, gave a legal notice dated 24-10-1977 through their Advocate requesting them to comply with the orders of the Government of Sind but no action was tak9n by the respondent No. 1 and that the orders passed by, the Sind Government were suppressed.
2. Under these circumstances the petitioners filed the Constitutional Petition as there was no other alternate remedy available to them. The petitioners' prayer briefly is that the resolution of Directors of the Society restoring the stall No. 7 to the respondent No. 3 was without lawful authority without jurisdiction illegal, ineffective, void and nullity in the eye of law and that further the petitioners seek the relief by an order from this Court to respon--dent No. 1 to comply with the order of Sind Government dated 14-6-1977 and also direct the Government of Sind for the compliance of the orders passed by the Chief Minister.
3. Respondent No. 1 i.e. Society submitted parawise comments along with the counter-affidavit in this Court while there is no counter-affidavit of respondents 3 to 6. None appeared for respondent No. 2. The respondent No. 1 in the comments averred that initially the Marine Fisheries Depart-- ment was controlling the fish market at Khada and that subsequently in 1959 fish market was shifted to fish harbour and that the stall-holders of Khada fish market were allowed to shift their fish auctioning at the fish market at fish harbour. In the year 1962 fish market at fish harbour was transferred to Fishermen's Co-operative Society the respondent No. 1 and the Society recovered its share of commission from the petitioners (Syed Brs.). The respondent No. 1 had nothing on its records that the petitioners . Had suffered losses etc. The mole No. 7, to the knowledge of respondent No. 1 was managed by respondent No. 3 and his sons who were paying the requisite share commission to the Society. The Society was unaware of the lease agreement between the petitioners and the respondent No. 3. In comments it is further admitted that mole No. 2 was under the name and Syed Haji Yousuf Haji Ladho and sons. The dispute between the petitioners and the respondent No. 3 did not concern respondent No. 1. It is averred in the comments further that the notice for cancellation was duly served on the mole and on person carrying on the fish auction. The Mole/fish auction is an agency to auction fish on behalf of the Society. The non-payment of the share of commission by the Society makes the agency liable to cancellation. Respondent No. 1 admitted that it had obtained award for its dues and certain immovable properties were attached during execution of the award passed by the Arbitrator namely Registrar/Secretary of the Cooperative Societies. The respondent No. 1 asked for the details of the constitution of all the mole- holders in the year 1964 am, the information given by it, the name of petitioners or the partnership deed h: respect of the mole No. 7 was not available to the Society and since the award by the Arbitrator was to be enforced by them, moles Nos. 2 and 7 were cancel--led. Finally the Board of Directors of the Society decided to allot the motes Nos. 2 and 7 to the defaulter subject to the condition that he pays the arrears and execute an agreement for fresh allotment. The moles Nos. 2 and 7 were allotted to the respondent No. 3. It is admitted that the petitioners were not served any notice as they were not entitled to such a notice on the ground that they were not conducting business on mole No. 7. The Government of Sind has nothing to do with the matter of cancellation of agency/mole by the Principal i.e. The Society. Respondent No. I further has admitted that the Society was in receipt of representation made by the petitioners to the Chief Minister and the Minister for Agriculture and Co-operative Societies with their remarks but no action was required and the same was filed. The Society transacted this business within the framework of bye-laws and Rules and that it has the jurisdiction and power to cancel, restore or appoint any agent to auction fish on their behalf.
4. We have heard at length the arguments of the counsel of the petitioners and advocates of respondents 1 and 3 to 6. Before we deal with the submissions made by the advocates, we would like to summarise the case of the petitioners and that of the Society as disclosed in the comments.
The petitioners carried on fish auction at stall No. 7 in the fish market situated at Khada and the market was controlled by the Karachi Municipal Corporation. Subsequently when the fish market was shifted to fish harbour at West Wharf, these very mole or stall-holders for the auction of the fish were permitted and allotted to have similar moles and stalls at the new site and there was no fresh allotment of the moles while shifting to the fish harbour and during those days up to 1962 the fish harbour was controlled by Marine Fisheries Department. It was after 1962 that respondent No. 1 i. e.
Society took control of the fish harbour. While taking the control of the fish harbour there was no fresh allotment in respect of moles or stalls already held by the mole-holders including the petitioners. It is clear from the comments of the Society that "Syed Brothers" were mole-holders in the fish harbour. The lease of the mole on a monthly rent by Syed Brothers to respondent No. 3 though not- admitted by respondent No. 1 yet the subsequent litigation between respondent No. 3 and the petitioners make it clear that the petitioners had rented out. The mole to respondent No. 3 to carry on auction on behalf of Syed Brothers fulfilling the obligations and terms agreed between them for payment of commission and other dues as it is clear from the agreement brought on record. The right of Syed Brothers on 'the leased out mole, had subsisted even after the lease contract between respondent No. 3 and the petitioners. The Society is a .Registered person with the Registrar of Co-operative Societies. The function of the Registrar of the Co-operative Societies is however, of quasi-supervisory function and in case of disputes between members of the Society, the cognizance of the disputes is taken and he appoints arbitrator to resolve the disputes. Reading the petition and the comments together in junta-position it is clear that respondent No. 3 who transacted the business of the mole No. 7 became a defaulter to the payment of commission to the Society who subsequ--entry moved the Registrar of Co-operative Societies and award was obtained. It is clear that during the proceedings of this award no notice was given to the petitioners i. e. To Syed Brothers who according to law were yet having rights over the mole No. 7. Due to the non-payment of the commission and other dues, the stalls Nos. 2 and 7 were unilaterally cancelled.
Stall No. 2 was cancelled because it was initially in the name of respondent No. 3, who ran the business in partnership, in the name of Haji Yousuf Haji Ladha. It is to be noted that even mole No. 7 was cancelled which was not in the name of respondent No. 3 but which was in the name of Syed Brothers. Subsequently by a decision of the Directors of the Board the same moles Nos. 7 and 2 were re-allotted to the respondent No. 3 without a notice to the petitioners either while cancelling it or while re-allotting it. Petitioners were not heard. No notice served on them and the right of whatever nature it was, appears to have been .Ignored and trampled under. This is sq also at the time when the Registrar was holding arbitration proceedings to recover dues from respondent No. 3 who owed his existence to transact the mole only on the basis of the lease agreement and not on the basis of the allotment by the Society in respect of mole No. 7. The dues which were of enormous amount were in respect of both the moles Nos. 2 and 7.
5. It appears that the petitioners had contacted Registrar of the Co-operative Societies but due to cold shoulder, they ultimately moved the Sind Government to redress their grievances. The Chief Minister on the representation made an order that mole/stall No. 7 be restored to them. This order was endorsed by the Minister of Agriculture, Co-operative Societies and the local Government. This representation was served and handed over to the respondent No. 1 who simply filed it and ignoring it considering that it does not constitute an order but a mere recommendation and the recommendation was not to be honoured having so summarised the case of both the parties we now proceed to advert to the arguments advanced by the respective advocates.
6. It is to be noted that the Bye-laws of the Society were submitted in this Court but it appears that the rules further were not framed under these bye-laws. Section/Bye-law 64- provides the penalties that a member of the Society would be made incur if he becomes a defaulter. Following is text of the same bye-law :- "Every member of the Society shall be bound to sell his catches in the sale and disposal centres established by the Society through persons authorised by the Society and shall pay commission such sales as may be fixed by the Board from time to time. Non-observance of this Bye-law shall make the defaulting member liable for such action as may be decided by the Board including stoppage of all facilities of that member by the Society, penalties etc."
The above section does not pertain to those persons authorised by the Society to carry on auction of the "catches" of fish.
7. The main point raised by the learned advocates for respondents is that the Society is a private person and that it is not either Local Authority or deals with the affairs of the Province and as such the Writ jurisdiction of t this Court is not competent: The remedy of the petitioners lies with the civil Court and the writ jurisdiction of this Court cannot be invoked. It is further submitted that Article 9 of the Provisional Constitution Order does not contemplate the interference of this Court in the affairs which are not connected-with the Province or Local Authority. We are referred to PLD 1963 SC 179. This authority is not applicable. Competence of Writ of mandamus or quo warranto or even certiorari is not available to a person (Commercial Manager) who did not hold a statutory office within the Co-- operative Societies Act. A number of other authorities were cited. It is needless to discuss those authorities because all these authorities hardly give any writ jurisdiction to this Court in respect of Co-operative Society which is a private person. While we concede to the arguments and the legal points put forward and urged before us that the writ jurisdiction of this Court would hardly be invoked and that the petition on the whole would not be competent in view of Article 9 of the P. C. O., 1981 yet while disallowing it, we cannot refrain from making following observations in respect of this Constitutional petition :
(a) -The principles of natural justice do support the petitioners inas--much as they were condemned unheard both by the Registrar while making the award and by the Society (respondent No. 1) by cancelling and re-allotting mole No. 7 to the defaulter respondent No. 3. The right of whatever the nature it would be, subsisted ever since the petitioners entered into lease deed with the respondent No. 3 and that the right continues during all the subsequent stages when they were not served with the notice to get their rights vindicated. It would be just and fair if, the Society even at present and now, consider the case of Syed Brothers (petitioners), for allotting even a new mole in place of the old one according to such terms and conditions the Society deems fit.
(b) We also observe that the recommendations of the Chief Minister and the Minister of Local Government and Co-operative Societies ought not to have been so lightly treated and ignored and some due weight should have been attached and even at present if nothing else could be done re-allotment of new mole may be considered by the respondent No. 1. In the circum--stances no order as to costs is made.