' This judgment shall dispose of Writ Petitions Nos. 125/1967 and 158/ 1967 as common questions of law and facts arise in them. It shall, however, remain on the file of W. P. No, 125/1967.
2. Writ Petiticn No, 125/1967 has been filed by Mst. Akhtar Mansoor and whereas the other petition was brought by her husband, namely Shafi Mansoor. Both the petitioners alongwith a few others were the members of a Co-operative Society with unlimited liability, by the name of Pakistan Textile Co-operative Industrial Society, Jhang-Maghiana. Shafi Mansoor was the President of the Society, which was proceeded against under section 35 of the Co-operative Societies Act, 1912, an inquiry held into its working and financial condition and the Deputy Registrar, Co-operative Societies acting under section 39, by his order dated 27th May, 1955, inter alia on the ground that the Society was beyond any hope of revival : its members did not take any interest in the affairs thereof and that there was no likelihood of the recovery of Central Bank's loan, cancelled its registration.
Accordingly, in contemplation of section 42, a Liquidator was appointed and as the proceedings prolonged, one after the other, several such other appointments had to be made. At the relevant time respondent No, 3 acted as a Liquidator. Another development which took place during the pendency of the liquidation-proceedings was that the Sind Co-operative Societies (West Pakistan Amendment) Ordinance, 1965 was promulgated whereby the Co-operative Societies Act, 1912 was repealed ; Sind Co-operative Societies Act, 1925 (Act VII of 1925) amended and enforced throughout the erstwhile Province of West Pakistan.
3. At the time of the cancellation of the Society's registration, Jhang Central Co-operative Bank Ltd.
From whom it had been obtaining loan, was its only creditor. As a result of the liquidation- proceedings respondent No, 3 under section 50 of the Act VII of 1925 by his order dated 16th July, 1965 worked out the Society's liability at Rs, 1.39,70613 and provisionally required each of the petitioners to contribute Rs, 60.000 towards the principal debt and Rs, 6,000 as costs of the liquidation. In this behalf he also issued notices to the petitioners. By means of an application addressed to the Assistant Registrar, Shafi Mansoor alone challenged the Liquidator's demand but the former by a detailed order dated 9th August, 1966 approved the determination made by the Liquidator.
4. Both the petitioners then filed two separate appeals before the Provincial Government, under section 64-A of the Act. This provision however, confers revisional jurisdiction on the Provincial Government. The two matters were heard by a Joint-Secretary. Who rejected the same by two separate but identical orders dated 17th January, 1967 ; the operative part whereof is reproduced below ; "1 have heard both the parties and carefully considered arguments advanced by the counsel and the replies given by the Assistant Registrar. I feel convinced that the contribution orders passed by the Liquidator and approved by the Assistant Registrar in his capacity as Registrar, Co-operative Societies, Jhang are valid and legal. The procedure laid down in the Co-operative Societies Act, 1925 and the Co-operative Societies Rules. 1927 was duly followed. The appellant has defended her case before the Assistant Registrar and as such there could be no excuse that she was not informed of the action being taken."
5. During the hearing of the two cases, the respondent produced departmental-record and I have examined the same. The copies of some of the documents have been added to the file and a set thereof also passed on to the learned counsel for the petitioner by the respondent's learned counsel. It may be pointed out, that when the validity of an order passed by a public-authority is challenged through invocation of Constitutional jurisdiction, it becomes obligation of the Court, to explore every explanation for sustenance of the validity of such order, and in this respect to examine the entire record pertaining to the impugned order, Lahore Improvement Trust v The Custodian of Evacuee Property may be cited as an authority for this proposition. Accordingly I, thoroughly examined the record, produced before me by the departmental authorities.
6. Before enlisting the divergent contentions of the parties, it may be observed that under section 39 of the Co-operative Societies Act, 1912, the Deputy Registrar's order dated 27th July, 1955 dissolving the Society was appealable but no such appeal was filed by any of the members of the Society. It would, thus, be legitimate to presume that the petitioners accepted the correctness of the grounds on which the registration was cancelled.
7. Taking up first the arguments which were peculiar to the case of Mst. Akhtar Mansoor, her learned counsel contended, that she ceased to be a member of the Society with effect from 30th June, 1954, that is, much before the dissolution of the Society and thus she could not be posted with any liability. He heavily relied on Annexure 'A' which is a copy of the register of members of the Society and indicates that she became its member on 10th November, 1950 but withdrew from membership on 30th June, 1954. A reference was also made by him to another document Annexute 'B'. This is an unattested copy of a certificate dated 22nd July, 1954 issued by Industrial Inspector Co-operative Societies, embodying a list of the names of 23 persons who were the members of the Society. The name of Mst. Akhtar Mansoor is not included in this list. It was also pleaded that neither the Liquidator served her with any notice, nor was she ever heard by the authorities below and was thus condemned unheard.
8. In reply to these submissions the respondent's learned counsel vehemently disputed the authenticity of these documents. He argued that Shafi Mansoor purposely withheld the record of the Society and despite the best efforts of the Liquidator and the Assistant Registrar, it could not be procured from him. The argument thus, was, that in the absence of the record the possibility of the fabrication of these documents could not be ruled out. On his part, on the strength of certain1 documents, annexed to the written statement he maintained that she never withdrew from the membership of the Society and even as a past member, she was fastened with the liability to clear the debt of the Society. The allegation that no notice was issued and the opportunity of being heard denied to her, was also refuted.
9. Reverting now to the question of the petitioner's membership I find that the document Annexure 'A' is a copy, which was attested by an Oath-Commissioner on 13th September, 1966. The departmental-record amply demonstrates that long before this date, the record of the Society was not available and it never fell in the hands of the Liquidator or the Assistant Registrar. It is, thus, not known as to how the petitioner managed to produce the register of members, before the Oath- c Commissioner to enable him, to attest Annexure 'A' as its true copy. Th second document Annexure 'B' is not a certified copy. It is not even attested by the counsel. It is, therefore, difficult to reply upon these documents. No such evidence was produced by the petitioner, before the Assistant Registrar and in his order dated 9th August, 1966, on the basis of the material before him, he specifically held that she did not cease to be member of the Society. The petitioner has failed to make out a case, to call for a review of these findings. Even if these document are acted upon, that would hardly advance the petitioner's cause, I any way. Both sections 23 of Act II of 1912 and section 28 of Act VII of 1925, provide that the liability of a past-member, for the debts of the Society as they existed on the date he ceased to be the member, would continue for a period of two years from such date. It is to be noticed that the appro"al accorded by the Assistant Registrar, to the determination of the Society's liability, would relate back to 27th July, 1955 when it was dissolved. This. Date obviously, falls within two years of the date when Mst. Akhtar Mansoor claims to have ceased to be the member of the Society. Thus, as a past-member, too, she stood charged with the liability, and its recovery on a subsequent date is not of any significance, Accordingly, even if the petitioner ceased to be the member on 30th June, 1954, she cannot avoid here liability t pay the amount in question and the shadow of the past-membership would continue to follow her.
10. As regards the non-issue of notice, the learned counsel for the respondents has drawn my attention to a registered post-card dated 7th July, 1965 (Annexure `R!6') which is correctly addressed to Mst. Akhtar Mansoor, intimating her that the amount to be contributed by her was being fixed at Rs, 60,000 and the costs at Rs, 6,000 and that she could file objections against the same, if any. There is a report of the postal official, that this notice was refused by the petitioner.
Under section 27 of the General Clauses Act, 1897 a presumption arises that the notice reached the addressee and was refused by her.
11. According to the petitioner's own showing she was at one time the member of the Society. A heavy burden thus lay on her to show that she was no longer member, before the date of dissolution of the Society. However, she failed to establish her claim by filing any objection before the Liquidator within the period allowed under the notice Annexure `R/6'. It, therefore, cannot be said that she was not given an opportunity to answer the claim made against her.
12. In her application dated 2nd November, 1965 Annexure `R/7' addressed to the Assistant Registrar she stated, that she had come to know, that the proceedings were pending before the Liquidator, regarding the proposed contribution but she was not served with any notice and thus could not prove, that she had withdrawn from the membership more than two years before the cancellation of the registration of the Society. The contents of the application however, suggest that she was not unaware of the liquidation proceedings and determination of the contribution, particularly when her husband had been all along participating in the proceedings. On 15th October, 1966, she also executed a deed of power of attorney in his favour. The tenor of the Assistant Registrar's order dated 9th August, 1966 shows that she was represented before him, by her husband. The Revisional Authority in its order dated 17th January, 1967 also came to the conclusion that she was informed of the proceedings taken against her. As a petitioner, her conduct is relevant and can be examined by the Court. Technicalities apart, her aliunde awareness of the action commenced by the liquidator, is enough to discredit her this plea, raised in claiming relief, under the extraordinary jurisdiction of this Court.
13. On behalf of Shafi Mansoor as well, it was argued, that while determining liability of Rs, 66,000 he too was not heard. This contention, however, is negatived by the material on the record. It is quite clear from Annexure to the writ petition that before approving the determination of the liability by the Liquidator, the Assistant Registrar issued a notice to the petitioner to file objections against such determination, if he chose to do so. The latter raised objections, vide Annexure `P. The Assistant Registrar rejected these objections and as observed above, by his order dated 9th August, 1966 approved the determination made by the Liquidator. This order clearly shows that the petitioner, the Liquidator and the Accountant of the Bank were heard. Bank's record and the file of the Society examined, by the Assistant Registrar, It is, thus, not possible to give any weight to the petitioners' contention that he was not heard.
14. It was next argued that in respect of both the cases rule 38 of the Co-operative Societies Rules, 1927, was not complied with. Elaborating his submissions, the learned counsel went on to urge that under section 38(2) it was obligatory for the Liquidator to have taken charge fo the Account-books of the Society immediately after his appointment. He failed to do so and consequently, in the absence of the Account-books determination of the liability was not founded on any material. He further submitted that the Liquidator neither adopted any scale on the basis whereof the petitioners were called upon to make contribution, nor he passed any separate orders against them. The learned counsel then referred to the Account-statement Annexure `R/9' to state that the value of the goods pledged with the Bank was not taken into consideration while fixing the liability.
15. The allegation that the Liquidater failed to take possession of the Account-books, is not well- founded. The record produced before me is suggestive of the inference that the Society or for that matter, Muhammad Shafi Mansoor, petitioner purposely did not produce the record before the Liquidator and the departmental-authorities. Even during the inquiry under section 35 of Act II of 1912 despite their best efforts, the record was not produced before the authorities concerned and for one reason or the other, the scrutiny of the accounts was avoided. In his letter dated 14th January, 1955 sent to the Industrial-Inspector, which was presumably the date fixed for the production of the Account-books, the petitioner, expressed his inability to produce the account as according to him, both the Secretary and the President of the Society, were out of headquarters. He however, undertook to produce the books on 5th February, 1955. This undertaking also went unheeded. In the order dated 2nd June, 1955 passed by Mr. Nafisuddin Ahmad, Assistant Registrar, whereby he recommended the dissolution of the Society, it has been stated that the Society was merely a farce : Muhammad Shafi Mansoor was all-in-all and its members were either his employees or the members of his family, to whom he utilized according to his wishes. The Assistant Registrar, further observed that the said petitioner intentionally avoided to produce the record before the Inquiry Officer. It is correct that this non-production of the Books pertained to the pre- dissolution period, but this position remained unaltered even after cancellation of the Society's registration. In his statement dated 30th June, 1966, the petitioner deposed that the Account-books .Were in the custody of Abdul Latif, Secretary of the Society and that he did not possess any personal Account-books and was prepared to have the matter settled on the basis of the Account-Books of the Bank, provided his satisfaction was caused by showing him the stock- registers, promissory-notes and vouchers, etc. The statement of the Accountant of the Bank, recorded by the Assistant Registrar on the same date, disclosed that the copy of the Khata of the Society's debt and stock-register was handed over to Muhammad Shafi Mansoor and the case adjourned for further proceedings as to the settlement of the Account between the parties. It appears, that on 3rd August, 1966, when the matter again came up for hearing before the Assistant Registrar, differences still subsisted between the Bank and Muhammad Shafi Mansoor in respect of inspection of the record of the Bank by the latter ; but the Assistant Registrar on the same date took up the decision that the Liquidator would make the recovery after satisfying himself regarding the stock, and 9th August, 1966 was fixed as the next date of hearing and a direction given to the Liquidator as well as the President of the Society i. e. The petitioner, to examine the Bank's record and report to him as to the result of their inspection. The proceedings, in this behalf further reveal, that Muhammad Shafi Mansoor did not turn up and the Liquidator reported to the Assistant Registrar that the former had gone away saying that he intended to copy the entire record of the Bank ; he was feeling tired and could not work and that it was also getting late. It was thereafter that the Assistant Registrar made the order dated 9th August, 1966 in which he maintained, that he conducted an impartial enquiry for about one year, examined the record, and heard the parties. He found that from the very beginning under the president ship of the petitioner............
16. ...
17. ' ... kept in mind that when a person is required by law to do something and fails to do the same, not on account of his own negligence or voluntary act, but because of unavoidable circumstances or reasons beyond his control, then such a person cannot be said to have failed to perform that what he was ordained by law to do. There is thus, no substance in the allegation that the Liquidator failed to comply with the requirements of rule 38 (2).
18. As the Account-books were not produced, whatever the other evidence was available, had to be made use of, for determination of debts outstanding against the Society. Thus, the Liquidator and the Assistant Registrar justifiably relied on the record of the Bank. It is discernible from the proceedings dated 3rd August, 1966 and the order dated 9th August, 1966 recorded by the Assistant Registrar, that he inspected the Bank's record. It is true, that the liability raised against the Society could not be verified from its record, but as observed above, this record was never made available to the Liquidator. Thus, inevitably the determination of the liability, had to be solely founded on the Bank's record. It is, therefore, not a case of no evidence, to warrant interference in exercise of writ jurisdiction.
19. The liability of the Society was unlimited ; there was no legal bar on the recovery of its debt from any of its members. It is on the record, that Muhammad Shafi Mansoor was all-in-all and the other members were merely name-lenders. The Liquidator has cast the liability on the two petitioners and another namely, Wali Muhammad, who is also a member of Shafi Mansoor's family. The order of the Liquidator in fixing the amount of contribution, thus, does not suffer from any illegality. It is also proved on the record that the Liquidator in the first instance, provisionally determined the liability of both the petitioners separately and, therefore, it is wrong to allege that he failed to pass separate orders against each of the petitioners.
20. The objection that the goods, pledged with the Bank by the Society, were not accounted for, by the Liquidator, in fixing the liability of the petitioners, is also without any substance. It has already been observed that the determination by him rested on the record of the Bank, and such determination was also scrutinised by the Assistant Registrar. In exercise of its Constitutional jurisdiction, it is not possible for this Court, to reappraise the evidence, to check up the Account- books of the Bank and to scrutinize the entries of Annexure `R/9'. The fact remains that against the orders of the departmental-Authorities, the petitioners sought remedy under section 64-A of the Act, but they could not succeed. In Muhammad Hussain Munir and others v. Sikandar and others it has been laid down that : .....It is well-settled that where a Court or a tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law.."2 ' The impugned orders and the action taken against the petitioners do not suffer from any jurisdictional defect.
21. It appears that during the pendency of the writ petitions, M. L. R. 18 was promulgated which was reconstituted by M. L. O. 241 and to enforce the recovery against them the petitioners' property was disposed of by the authorities under the latter provision. During his submissions, the petitioners' learned counsel addressed arguments requesting the Court, to take notice of the events, occurring after the institution of the writ petitions and urged that the auction of the properties was altogether without jurisdiction.
22. I am unable to entertain this submission for two reasons :firstly the petitioners could have incorporated this ground in the writ petition by way of amendment, but this was not done, and secondly, they have Sled two other writ petitions, challenging the action taken against them under M. L.
0. 241. I-am, therefore, not inclined to consider the petitioners' objection as to the disposal of their properties.
23. As all the contentions raised by the petitioners have failed, both the writ petitions are dismissed with no order as to costs. PLD 1971 SC 811 PLD 1974 SC 139