1. ' The petitioner through this petition has impugned the order dated 15-5--1974 passed by respondent No.3 reversing the order of the Deputy Registrar dated 20-3-1973 passed upon an appeal filed by the petitioner. The brief facts leading to the filing of the above petition are that the petitioner became member of respondent No.1 Society on 11-3-1956. He was allotted plot No. 608 but in 1964 the above allotment was cancelled. Thereupon, the petitioner initiated arbitration proceed ings, which resulted in giving of an award on 13-12-1966 in which it was held 'that the cancellation was not proper but since the above plot was already allotted to another member, it was ordered that the petitioner may be provided some other plot. Appeal against the above award was dismissed by an order dated 28-8-1968. It seems that respondent No.2 was the allottee of plot No. R-561/17 (hereinafter referred to as the plot) but it was cancelled by an order dated 24th April 1970. Thereupon, respondent No.- 2 preferred a representation on 2-5-1970 to respondent No. 1 Society, which was replied to by a tentative reply dated 13-5-1970, followed by a detailed reply dated 15-5-1970. It is the case of the petitioner that on 16-5-1970 he was allotted the plot by respondent No.1 and was given possession thereof. After that respondent No. 2 filed an application before the Registrar under section 54 of the Co-operative Societies Act, 1925 (hereinafter referred to as the Act). In response whereof, the Assistant Registrar by his order dated 21-8-1970 referred the dispute to his nominee Mr. Jamil Ahmad and ordered that the decision be given within two months of the date of the order. In pursuance of the above order, Registrar's nominee issued a notice dated 29-8-1970 calling upon the parties to submit statement signed by the arbitrators nominated by them in ease they desired to nominate their own arbitrator and fixed date of heaving on 29-8-1970.
2. It may be stated that there is nothing on record to indicate that any of the parties, in writing, intimated the above desire to nominate their arbitrator. It appears that the Registrar's nominee adjourned the case from 29-8-1970 to 15-9-1970 and thereafter to 19-9-1970. On the latter date respondent No.2 nominated his arbitrator. The Registrar's nominee and respondent No. 2's arbitrator recorded the statement of respondent No.
2. After that on 22-9-1970 respondent No. 1 Society nominated its arbitrator. The matter proceeded before the arbitration board and on 13-11-1970 an award was given signed by the Registrar's nominee and respondent No. 2's arbitrator. It may be pertinent to point out that there is a controversy between the parties as to the manner of giving of an award. According to the averment contained in para. 18 of the unamended petition dated 10-7-1974 the Registrar's nominee gave an award in favour of respondent No. 2 with which his nominated arbitrator agreed whereas the arbitrator nominated by respondent No. 1 gave award in favour of the petitioner. This version was not adhered to by the petitioner in his amended memo. of petition filed on or about 27-4-1983 in which it has been averred that Registrar's nominee announced the award before the arrival of the two members of the Arbitration Tribunal and supplied a copy of the award to the petitioner and that when the other members of the Tribunal reached the nominee of respondent No. 2 signed the same without reading it but nominee of respondent No. 1 refused to sign it and observed that it was not the same, which had earlier been drafted. On the other hand the case of respondent No. 2 is that it was a majority award given by Registrar's nominee and by his arbitrator. Be that as it may, the petitioner being aggrieved by the award filed an appeal, which was allowed by the Deputy Registrar by his order dated 20-3-1973 in the following terms:- "I have perused the record of the case maintained by the nominee and heard the arguments of the parties and came to the conclusion that some issues have been left undetermined or otherwise not properly determined as for instance the issue of membership of the respondent. The point raised by the applicant regarding constitution of the Board of Arbitrators, carries force in it. I therefore set. aside the award and order for determination of the case under section 54 of the Co- operative Societies Act, 1925 afresh. Further I appoint Mr. Z.E.Namoori to decide the case within two months of the date of this decision."
2. Respondent No.2 being aggrieved by the above order filed revision, which was allowed by the respondent No, 3 by his order dated 13-11-1970, whereby the above order of the Deputy Registrar was set aside and the award was restored. The petitioner being aggrieved by the above order has filed the present petition.
3. 3.(a) In support of the above petition Mr. Mushtaq Memon, learned counsel for the petitioner has urged as follows:- That the constitution of the Arbitration Tribunal was not proper.
4. That the award having pot been signed by all the members of the Arbitration Tribunal and as there is no dissenting note appended to the award, the same stands vitiated.
5. That the award given beyond time without obtaining any extension from the Registrar is void.
6. That, in any case, the arbitration proceedings were vitiated as on 19-9-1970 the Registrar's nominee and respondent No. 2's arbitrator without having arbitrator of respondent No.1 Society proceeded with the matter and recorded the statement of respondent No. 2 which has been relied upon in the award.
(b) On the other hand Mr. All Ahmad Fazeel has contended as under:- That the constitution of the Arbitration Tribunal was in terms of rule 32 of the Sind Co-operative Societies Rules, 1927 (hereinafter referred to as the Rules).
7. That since the award was majority award, it was duly signed by the Registrar's nominee and respondent No. 2's arbitrator and, therefore, was valid.
8. That the award was given within the statutory period from the date of the nomination of the arbitrator by respondent No..1 Society and from the date when the Arbitration Tribunal started the proceedings.
9. That, in any case, since the petitioner had participated in the arbitration proceedings without raising any objection, there is the waiver on the part of the petitioner and the petitioner is estopped from raising the above plea.
10. That recording of the statement on 19-9-1970 by the Registrar's nominee and by respondent No. 2's arbitrator in the absence of respondent No. l's Society's nominee does not vitiate the arbitra tion proceedings and that, in any case, no objection was raised by the petitioner before the Arbitration Tribunal.
(c) Mr.- Muhammad Ali Jan, learned counsel for respondent No. 1 Society supported the above petition and has submitted that the order of the Deputy Registrar remanding the case should be maintained.
4. In our view, it is not necessary to go into the other contentions of the learned counsel for the parties except the last referred to hereinabove. It is an admitted position that respondent No. 1 Society had nominated its arbitrator on 22-9-.1970 and, therefore, on 19-9-1970 the Arbitration committee in terms of section 54 and rule 32 of the Rules was not constituted. It may be pertinent to observe that section 54 provides that if any dispute touching the business of a society other than a dispute regarding the disciplinary action taken by the society or its committee against a paid officer of the society arises-- - between members or past members of the society or persons claiming through a member.or past member, or between members ur past members or persons so claiming and any past ur present officer, agent or servant of the society, or between the society or its committee, and past or present member of the society, or between the society or its committee and any past or present officer, agent or .servant of the society, or a surety of such officer, agent or servant, whether such surety is or is not a member of the society, or between a financing bank authorised under subsection (1) of section 34 of the Act and a person who is not a member of the society, it shall he referred to the Registrar for decision, by himself or his nominee or if either of the parties so desires, to arbitration of three arbitrators who ball be the Registrar or his nominee and two persons of whom one shall be nominated by each of the parties concerned.
(b) It be pertinent to reproduce Rule 32 of the rules which reads as follows:- "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 desire within 15 days of the issue of . such a notice that the matter be referred to : arbitration-, shall proceed to decide that dispute himself.
11. 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 principal party and his decision shall be final ' When either of the parties fails to make a nomination within the period aforesaid, the Registrar may nominate an arbitrator on behalf of such party.
12. ' The Registrar or his nominee will act as Chairman of the Committee of three arbitrators. He will fix the date and place of hearing the dispute and carry on the necessary correspondence in connection with the disposal of the case.
13. ' 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."
(c) It may be noticed that the above quoted rule inter alia provides that the Registrar or his nominee will act as Chairman of the Committee of three arbitrators and that he will fix the date and place of hearing the dispute and carry on the necessary correspondence in connection with the disposal of the case. From the above referred section 54 and above quoted rule 32, it is evident that the arbitration proceedings are to commence after the constitution of the Arbitration Committee comprising of three members.
5. Since in the present case the arbitration proceedings had taken place on 19-9-1970 when factually respondent No. 1 Society had not nominated its arbitrator, the entire arbitration proceeding stands vitiated as admittedly the statement recorded by the Registrar's nominee and the respondent No. 2's nominee on 19-9-1970 was not recorded in the presence of third arbitrator and before the completion of the constitution of Arbitration Committee in terms of section 54 and rule 32 of the Rules nor respondent No. 2 was re-examined after the completion of the constitution of the arbitration committee. It was contended by Mr. Ali Ahmed Fazeel that since no objection was raised by the petitioner, there is waiver on his part and he cannot be allowed to raise this objection.
14. We find that in the memo. of appeal against the award filed by the petitioner before the Deputy Registrar and also in the present petition this point has been expressly taken, namely, that the Registrar's nominee and respondent No. 2's nominee on 19-9-1970 proceeded with the case even before nomination of the arbitrator by respondent No. 1 Society. We are inclined to hold that no question of waiver is involved in the present case as the point in issue is, whether on 19-9-1970 an Arbitration Committee which would have been competent to hear the case had come into existence. Two arbitrators in place of three arbitrators cannot conduct the proceedings and if they do so, the proceedings shall stand vitiated. We are further inclined to hold that on 19-9-1970 since the constitution of the Arbitration Committee was not completed, the proceedings before the Registrar's nominee and respondent No.2's nominee were coram non judice. In this regard, reference may be made to the case of Chittaranjan Cotton Mills Ltd. v. Staff Union PLD 1971 SC 197, in which Hon'ble Supreme Court held that the proceedings before the Labour Court not properly constituted in terms of the East Pakistan Labour Disputes Act, 1965 read with Industrial Disputes Ordinance (LVI of 1959) were coram non judice and that question relating to jurisdiction being purely the question of law could be raised at any stage and observed inter alia as follows:- "Where the Court is not properly constituted at all the proceedings must be held to be coram non judice and, therefore, non-existent in the eye of law. There can also be no doubt that in such circumstances "it could never be too late to admit and give effect to the plea that the order was a nullity", as was observed by the Privy Council in the case of Chief Kwame Asante, Tredahone v.
15. Chief Kwame Tawia."
16. We are of the view that the remand order passed by the Deputy Registrar on 20-3-1973 was a proper and just order and could not have been interfered with by respondent No. 3 in exercise of revisional jurisdiction in the background of the above factual position.
17. We, therefore, allow the petition and declare the impugned order as being without lawful authority and of no legal effect. The order of the Deputy Registrar dated 20-3-1973 is maintained. However, there will be no order as to costs.