' AJMAL MIAN, J.-Since these two petitions involve common questions of fact and law, we intend to dispose of the same by this common judgment.
' C. P. No, 1071 of 1980.-The brief facts leading to the filing of the petition are that the petitioner is the niece of one Mst. Ghulam Jannat Bibi (wife of Mr. Laldin, attorney of respondent No, 3 in the above petition) through an affidavit dated 10-8-74 transferred the plot in suit, namely, plot of land, Bearing No, 5/1, situated in Khayaban-e-Mujahid, situated in the Defence Housing Society, Karachi, (i. e. In respondent No, 5 Society), measuring 1,000 sq. Yds. The above affidavit was filed with respondent No, 5 Society. It seems that the formal transfer was made by the Society by an order dated 16-4-77. It also seems that Mst. Jannat wrote a letter dated Nil received by respondent No, 5 Society on 31-1-77 stating therein that she wanted to revoke the transfer. However, respondent No, 5 Society acted upon the above affidavit and issued the above transfer order in favour of the petitioner on the aforesaid date. It also seems that Mst. Jannat Bibi initiated proceedings as the attorney of Wing Commander Ziauddin Ahmed respondent No, 3 in the above petition by an application dated 7-11-77, which was dismissed by the Registrar's nominee by an order dated 15-12-77. It has been averred that Mst. Jannat Bibi did not file any appeal against the above order. However, another application dated 7-11-77 was filed by her for initiating arbitration. Thereupon, the Deputy Registrar by his order dated 17-6-78 held that the second application was not competent and maintainable. Against the above order Mst. Jannat went in revision, which was allowed by an order dated 12-5-79 and the case was remanded to the Deputy Registrar, who again nominated another person. The nominee gave the award dated 23-8-79 holding that the gift given by Mst. Jannat Bibi in favour of the present petitioner was incomplete. It further seems that the present petitioner as well as the petitioner in the connected petition No, 1225/80 and the Defence Society went in appeal, against the above award of the Deputy Registrar's nominee but the same were dismissed by a common order dated 10-3-80. The petitioner in the present petition being aggrieved by the above order has filed the present petition.
' C. P. 1225 of 1980.-The relevant facts leading to the filing of the above petition are that in May. 1978, the petitioner purchased the above plot referred to in the other connected petition from the petitioner in said petition and respondent No, 2 in the present petition. In pursuance of the above sale, an affidavit for transfer was filed with respondent No, 3 Society, which was accepted after the receipt of the transfer fee and a transfer order was issued in favour of the present petitioner on 28- 6-78. It further seems that thereafter respondent No, 3 Society also executed a sub-lease on 8-7-
78. The present petitioner had also filed an appeal against the Deputy Registrar's nominee's, award dated 23-8-79, which was dismissed alongwith two other appeals. The petitioner being aggrieved by the above order has filed the above petition.
2. (a) In support of the above petition Messrs Mazhir. Hyder and A. Shakoor, learned counsel for the petitioners have urged the following points:
(i) That the award was illegal inasmu ch as it was given after the expiry of the two months statutory period provided under rule 32 of the Co-operative Society Rules.
(ii) That the second arbitration application dated 11-3-78 was not competent in view of the Deputy Registrar's dismissal order dated 15-12-77 dismissing Mst. Jannat Bibi's first arbitration application.
(iii) That Mst. Jannat Bibi had no power to invoke the arbitration under the power of attorney of Wing Commander Ziauddin Ahmed.
(iv) That Mst. Jannat Bibi did not have the power to cancel the transfer in favour of the petitioner in the first petition under the afokesaid power of attorney.
(v) That the Deputy Registrar's nominee had not applied his mind to the facts of the case inasmuch as he observed that the matter stood concluded by the Secretary through his aforesaid revisional order dated 12-5-79 remanding the case to the Deputy Registrar.
(vi) That both the Courts below erred in holding that there was a gift in favour of the petitioner in the first petition though the affidavit had not referred to any gift as it was an outright transfer on the prescribed form of the Defence Society.
(b) On the other hand, Mr. Mazharali Chowhan, learned counsel for Mst. Jannat Bibi has urged the following points.
(i) That the petitions are not competent for the reason that the petitioners had alternate remedy in the form of revision to the Provincial Government which they failed to avail :-
(ii) That there is concurrent finding of fact given by the two competent forums to the effect that the gift was not complete and, therefore, this Court cannot interfere with the above concurrent finding of fact.
(iii) That it is not open to the petitioners to urge that Mst. Jannat Bibi had not gifted the plot for the reason that the petitioner in the first petition in paras. 2 and 3 of his memo. Of the aforesaid appeal admitted the factum of gift, though at the same time it was averred that the petitioner had remitted various amount from time to time to Mst. Jannat Bibi for the purchase of the plot.
(iv) That since both the tribunals below had the jurisdiction to decide the dispute in question, this Court cannot interfere with the above award/ order under writ jurisdiction even if the decisions of the two Courts may be erroneous.
(v) That rule 32 of the Co-operative Societies Rules is directory in nature and the delay of few days in giving the award will not make the award illegal.
(c) Mr. Sharaf Faridi, learned counsel for the Defence Housing Society has made the following submissions:-
(i) That once an affidavit of transfer on the prescribed form is filed with the Society by the transfer is complete for all intents and purposes.
(ii) That the Deputy Registrar's nominee had no power to order cancellation of the registered sub- lease in favour of the petitioner in the second petition.
3. (a) In our view, the above petitions can be disposed of on two points, namely, whether the petitions are not competent in view of the facts that the revision was competent under section 64- A of the Co-operative Societies Act and whether the above rule 32 was mandatory or directory in nature.
(b) With reference to the above first point, it may be observed that Mr. Chowhan has referred to the case of Messrs Khudabux Khadim Hussain v. Syed Anwarul Hassan M. I. C. Mansur and another (1), in which a learned Single Judge of the Lahore High Court inter alia observed that:- "W. P. 2608/75 is also liable to be dismissed on the further ground that (1) PLD 1976 Lah. 919 the petitioner therein has filed a revision petition before the Government against the impugned order and succeeded in getting the stay order from the Government. He has thus successfully invoked another remedy as a petition under Article 199 of the Constitution is competent only if no other adequate remedy is available for the redress of the this writ petition is not maintainable."
' On the other hand Mr. Shakoor, learned counsel for the petitioner in Petition No, 1071/80 has referred to the case of Pakistan Express Co-operative Co. Ltd. v. Registrar Co-operative Societies, Lahore Region, Lahore, in which a Division Bench of the Lahore High Court held that the remedy by way of revision under the Co-operative Societies Act is not a bar to the writ jurisdiction. We are inclined to hold that since the remedy by way of an revision cannot be claimed as matter of right, the same cannot be treated an alternate adequate remedy. The mere fact that a revision was competent would not prevent this Court from exercising writ jurisdiction, if the impugned orders are without jurisdiction or are in violation of some law. The Lahore case of 1976 relied upon by Mr. Chowhan is distinguishable inasmuch as in the aforesaid case the petitioner after filing of a revision obtained an interlocutory order in his favour and, therefore, it was held by a learned Single Judge that the petitioner had adequate alternate remedy, which he availed of and hence, the petition was not competent. Whereas in the Lahore case of 1967 a Division Bench comprising of Anwarul Haq and Cheema, JJ. Directly referred to section 64-A of the Co-operative Societies Act, 1925, and held that revision is not an adequate alternate remedy in order to deprive the petitioner to invoke the writ jurisdiction of the High Court. In our view the above Lahore case is on all fours applicable to the instant case and we are in respectful agreement with the view found favour by the learned Judges of the Division Bench in the above case.
(c) Reverting to the second point as to whether rule 32 of the Cooperative Society Rules, is mandatory or directory in nature, it may be pertinent to quote herein below the above rule, which reads as follows :- "32. Arbitration.-When a dispute has been referred to the Registrar under section 54, the Registrar or his nominee shall issue a notice to all parties, and, unless either of the parties desires within 15 days of the issue of such a notice that the matter be referred to arbitration, shall proceed to decide the dispute himself.
' When either of the parties desires that the matter be referred to arbitration, the Registrar (or his nominee) shall call on each party to nominate his arbitrator within 15 days, and to send a statement signed by the proposed arbitrator about his willingness to serve as an arbitrator. When there are more persons than one on each side, the principal party on each side will have the right to nominate the arbitrator. In such cases the Registrar will decide who is the principal party and his decision shall be final.
' When either of the parties fails to make a nomination which the period aforesaid, the Registrar may nominate an arbitrator on behalf of such party.1 ' The Registrar or his nominee will act as Chairman of the Committee of three Arbitrators. He will fix the date of place of hearing the dispute and carry on the necessary correspondence in connection with the disposal of the case.
' When any dispute is referred to the Registrar's nominee or to three arbitrators for decision and is not decided by them within two months or such further period as the Registrar may allow the Registrar may decide the dispute himself or refer it again to his nominee for decision."
It may be observed that the above rule inter alia provides that when any dispute is referred to the Registrar's nominee or to three arbitrators, who fail to decide the matter within 2 months or within such period as the Registrar's may allow, the Registrar may decided the dispute himself of refer it again to his nominee for decision Mr. Chowhan in support of hi above contention has referred to the case of Mazdoor Ittehad Union T Jute Mills Ltd. v. Registrar Trade Unionsand also the case of Firdous Trading Corporation v. Registrar Co-operative Societies Hyderabad Division, Hyderabad and another.
(i) In the above Lahore case a learned Single Judge while construing section 22(2, of the I. R. O.
1969, took the view that the election of the Trade Unions held after the prescribed period of 15 days provided under the above section was not invalid for the reason that the time provided for in section 22(2) of the I. R. O. Was of directory in nature. It was further held by the learned Single Judge that if it was to be held that the above provision was mandatory, it would amount to depriving the workmen the right of franchise in respect of holding election of trade unions. In the above Lahore case the learned Single Judge relied upon the case of Malik Muhammad Akhtar v. Salahuddin and 9 others, in which it was held that :- ' It is well-settled that as a general rule the statutory provisions are to be regarded as directly, unless the legislature itself has prescribed a penal consequence for their violation or non- compliance by the election officials."
' In the above case the question before the Division Bench was, whether the nomination papers of a candidate filed one day prior to the prescribed day which was accepted by the Returning Officer was invalid or was it a mere irregularity not materially affecting the result of the election. In that context it was held that the provision as to the time of the filing of the nomination papers was not to be construed as mandatory.
(ii) As regards the S. C. Case it may be advantageous to reproduce hereinbelow the relevant portion of the judgment, which reads as follows: "It was stated in the Registrar's order that no extension of time was asked for by the arbitrators, nor was any extension given by him. Thus, the award was made much long after the expiry of the months without having obtained any extension of time. The making of the award long after the expiry of the statutory period without obtaining any extension of time is an illegality which is apparent on the face of the award. Mr. Pesh Imam contends that by appearing in the arbitration proceedings and taking part therein, the Bank waived the condition as to time for making an award. The question is mainly a question of fact. No material was placed by the appellant with regard to the alleged waiver, nor was it agitated before the High Court. However, it appears from paragraph 20 of the award that the hearing of the arbitration proceeding took place in the 3rd week of February, 1962 (19-2-1962), but the award was made on the 17th November, 1962. Even if the Bank had participated in the arbitration proceeding, the delay of about 9 months between the hearing of the arbitration proceeding and the date of the award remained unexplained altogether.
The arbitrators themselves must have been responsible for this inordinate delay that occurred after the conclusion of the hearing of the arbitration proceeding. Thus, the award suffered from an illegality on account of the not having been made within the prescribed time-limit."
' It may be noticed that in the above case, it was held that an award given under the Co-operative Societies Act after the expiry of the prescribed time suffered from illegality. However, it has been2 3 4 urged by Mr. Chowhan that in the above Supreme Court case there was long delay in giving the award and whereas in the instant case the delay if any, was for a few days. It may be observed that in the instant case the Deputy Registrar has made reference to his nominee by his letter dated 11-6-69 (Annexure ".I." to C. P. 1225/80) in the following terms:- "Case No, ABN-18/78.-Consequent upon the orders of the Provincial Government passed on 12-5- 1979 under section 64 of the Co-operative Societies Act, 1925. I, hereby refer the Arbitration Case No, 18 of 1978, for determination afresh to Mr. Kaimuddin A. Kazi Registrar's Nominee with the direction to decide the case within two months of the date of this order."
' In terms of the above quoted letter the award was to be given within two months from the date of the above order, whereas the award in question was given on 23-8-79 i. e. After the expiry of about 11 days from the date of the expiry of the statutory period of two months. In our view Mr. Chowhan' above contention that the above Supreme Court case is not applicable to the instant case, as the delay in the above case was for a long period in giving the award, whereas in the instant case the delay is for a few days cannot be sustained.
We are inclined to held that after the expiry of the statutory period, it was not incumbent upon the Deputy Registrar to extend the time under the above quoted rule 32 as he could have proceeded with the matter himself. In this view of the matter, the delay of few days or of few months or of few years would not make any difference as to the illegality of the award. If the award is given after the expiry of the statutory period, it will be illegal as observed by the Supreme Court irrespective of the period of delay.
4. For the aforesaid reasons, we are inclined to hold that the impugned award given by the Deputy Registrar's nominee was not legal and that !Appellate authority, namely, the Deputy Registrar erred and acted illegally in not upsetting the award on the ground of the limitation. We, therefore, allow the above petitions and declare that the award and the appellate order in respect thereof are without lawful authority and of no legal effect.
' In the circumstances of the case, there will be no order as to costs. PLD 1967 Lah. 991 PLD 1977 Lab. 588 1972 SCMR 91 PLD 1971 Lah. 737