' This Constitutional petition, filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act of 1974, calls in question the validity of the order of the Registrar Co-operative Societies dated 1st of November, 1982, whereby the Azad Jammu and Kashmir Transporters Mutual Assistance Co-operative Society Limited, was woundup and a Liquidator to manage the assets of the said society was appointed.
2. It appears that the Society was formed in 1971 by the Azad Jammu and Kashmir Transporters for the purpose of payment of compensation on behalf of the individual Transporters awarded by Claims Tribunals against them in connection with the loss of life etc. occurring due to the road accidents. The said Society was first registered with the Registrar Co-operative Societies of the Azad Jammu and Kashmir Government who approved on 13th May, 1971 the By-laws framed by the said Society. The petitioner Society functioned as such till its management committee was suspended and Mr. Fazal Din the Assistant Registrar Co-operative Societies was appointed as a Liquidator/ Administrator by the Registrar Co-operative Societies to function in its place vide his order, dated 4-4-1982. The above order was followed by another order of the Registrar, dated 1st of November, 1982 whereby the Society was wound uptill further orders.
3. Feeling aggrieved by the above orders, the petitioners have lodged this Writ Petition challenging the legality of the order of the Registrar, dated 1st of November, 1982 for winding up_the petitioners Society.
4. Mr. Basharat Ahmed Sheikh Advocate, has vehemently argued that the order of winding up the said Society is without lawful authority and of no legal effect for the following reasons:-
(a) That the respondent Registrar violated the rules of natural justice and Muslim Jurisprudence by proceeding against the petitioner Society without providing it a reasonable opportunity of defending itself;
(b) That the reference contained in the impugned order (Annexure 'B') to the show-cause notice issued under rule 48 of the Co-operative Societies Rules has no relevance in so far as the impugned action is concerned because the aforesaid notice had been issued in connection with the suspension of the Management Committee and not with regard to the winding up of the petitioner Society;
(c) That under section 47 of the Co-operative Societies Act, under which the impugned action is purported to have been taken by the respondent Registrar, an enquiry under section 43 or an inspection under section 44 or 44-A is a condition precedent for an order for winding-up but no such inquiry or inspection had been conducted before passing of the order. In fact, no person was authorised by the respondent Registrar in writing to hold an inquiry as contemplated by section 43;
(d) That it is contemplated by subsection (4) of section 43 that the result of the enquiry conducted under this section shall be communicated to the Society whose affairs have been investigated but no such result was communicated to the petitioner Society because of the reason that no enquiry had ever been held;
(e) That the inspection contemplated by section 44 presupposes that a creditor of a Society would move an application that the books of the Society may be inspected but no such application was made by any creditor. In fact, no creditor exists who may be having any grievance against the petitioner Society;
(f) That the grounds on which the impugned action has been taken against the petitioner Society are misconceived and are not tenable in fact as well as law and if the petitioner Society had been provided with an opportunity to defend itself, it would have been proved beyond any reasonable doubt that there is no justification whatsoever for proceeding against the petitioner Society;
(g) That even if it is assumed that rule 48 of the Co-operative Societies Rules, has any relevance to The impugned action, then the grounds, mentioned in the impugned order (Annexure 'D') relating to the period after issuance of the show-cause notice under Rule 48, could not be considered for taking action against the petitioner Society through the impugned order;
(h) That one of the reasons given for winding-up order (Annexure 'D') is that the relevant law has been amended and the Society is no longer authorised to issue Certificates to the transporters.
This ground is not recognized by the Co-operative Societies Act. In fact, it appears that the amendment in the relevant law has been made as a consequence of the decision to wind up the petitioner Society and could not thus form the basis for windingup the Society; and
(k) That the respondent Registrar inspected the offices and record of the petitioner Society on 18- 5-1982 and recorded remarks in the registrar of the petitioner Society which are sufficient to belie the allegations contained in the impugned order(Annexure 'B').
5. Mr. Bashrat Ahmed Sheikh, the learned counsel for the petitioner, has impeached the action of the Registrar and the lengthy order of the Registrar for winding up the said Society, dated 1-11-1982 mainly on the following two grounds which were pressed very hard:-
(i) That the action of taking over and winding-up of the said Society was taken without affording an opportunity of being heard; and
(ii) That the mandatory conditions mentioned in section 47 of the Co-operative Societies Act have not been fulfilled. In this connection, Mr. Basharat Ahmed Sheikh, Advocate referred to many sections of the Co-operative Societies Act especially sections 43, 47 and 48 of the Co-operative Societies Act.
6. On the other hand, the learned counsel for the non-petitioner No.1, Agha Ashiq Hussain, Advocate, has replied:-
(a) That this Society was formed somewhere in 1971 no doubt but on 25-11-1972 it was renamed as Azad Jummu and Kashmir Transporter Mutual Assistance Society whose By-laws are on the file.
This Society's aims and objects are mentioned in the By-law No. 30 and its main object is to create a fund from which compensation will be paid to the persons who are affected by road accidents.
The items of expenditure are mentioned in the By-law No.
4. The case of the Registrar is that said Society was not acting according to its By-laws and, therefore, it was taken over by the Registrar;
(b) That it was not necessary to give a hearing before passing the order for winding-up the said Society because the right of hearing was given to it when the appeal lodged by the said Society before the Government was heard. The learned counsel for the respondent No.1, Agha Ashiq Hussain, Advocate referred to the order passed in appeal in which the words" 1.:-&kte' are used. He referred to PLD 1977 SC 296 in this respect;
(c) That no notice was necessary under section 47 of the Co-operative Societies Act. He referred to PLD 1968 Kar. 422 in this connection;
(d) That the Registrar was competent to pass the impugned orders and, therefore, his orders cannot be interfered with by the High Court even if passed wrongly. He referred to PLD 1974 SC 139 and PLD 1981 SC 246;
(e) An order passed by a Public Authority is to be preserved and not to be set aside and, therefore, the High Court shall explore every possible explanation for its retention. He referred to PLD 1971 SC 811 and PLD 1975 108 and
(f) The petitioner society has come up before the High Court with sullied hands and no writ can be issued in the aid of injustice. Therefore, this writ petition deserves dismissal. In this respect, he has referred to PLD 1974 SC 106 and PLD 1976 Kar.
437.
7. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.
8. The points that fall for determination in this Writ Petition are:-
(I) Whether a show-cause notice was issued by the Registrar to the petitioner Society before passing the order of winding-up of the Society;
(ii) If the answer to question No.1 is in negative, whether no show cause notice is necessary in the light of PLD 1977 SC (180;
(iii) Whether such a notice is necessary and is provided by law? and
(iv) Whether the impugned orders passed by. the Registrar especially the order for winding-up. the said Society, dated 1-11-1982 was passed without jurisdiction?
9. Let me take up the first question as to whether a show-cause notice was necessary before passing the order for winding-up the said Society.
' The relevant law in this respect is:-
(i) The Co-operative Societies Act of 1925;
(ii) The Co-operative Societies Rules of 1927; and
(iii) Rulings of superior Courts.
10. The impugned order was passed under section 47 of the Co-operative Societies Act of 1925 which reads as follows:- "47. Winding-up,-- If the Registrar, after an inquiry has been held under section 43 or after an inspection has been made under section 44 or section 44-A or on receipt of an application made by three-fourths of the members of a society present at a special general meeting, called for the purpose or of his own motion, in the case of a society that has not commenced working, or has ceased working or possesses shares or members deposits not exceeding Rs.500., is of opinion that the Society ought to be wound up, he may issue an order directing it to be wound up and when necessary, may appoint a liquidator for the purpose and fix his remuneration."
11. Section 47 refers to an enquiry held under section 43. Therefore, I would also like to reproduce section 43:- "43. Inquiry by Registrar.--(1) The Registrar may of his own motion by himself or by a person duly authorised by him in writing in this behalf hold an inquiry into the constitution, working and financial condition of a society.
(2) The Registrar shall hold such an inquiry as is contemplated in subsection (1) of this section--
(a) On the requisition of society, duly authorised by rules made in this behalf to make such requisition, in respect of one of its members, such member being itself a society.
(b) On the application of a majority of the committee of the society.
(c) On the application of 1/3rd of the members of the society.
(3) All officers and members of the society whose affairs are investigated shall furnish such information in their possession in regard to the affairs of the society as the Registrar or the person authorised by the Registrar may require.
(4) The result of any inquiry under this section shall be communicated to the society whose affairs have been investigated."
(Underlining is mine).
12. A perusal of these two sections shows that under section 43, subsection (4), the result of the enquiry made under section 43 shall be communicated to the society whose affairs have been investigated. -Alter the enquiry, the Registrar has to communicate to the Society that he is going to wind up the said society. To wind-up a Society is a major action and, therefore, before passing of such an order, the Society concerned should be asked to explain or show cause as to why the said Society should not be wound up and a Liquidator competent to manage its affairs appointed. I have carefully gone through the notice issued by the Registrar purported to have been issued under section 48 (Annexure 'A') on 23-12-1979. This notice concludes with the following words: - [URDU TEXT].
13. This notice does not show that it was issued under section 43 of the Co-operative Societies Act.
The proposed action mentioned in the concluding part of this notice mentions only the suspension of working of the Executive Committee and the appointment of an Administrator. There is no mention of winding-up of the said Society. On the basis of this notice, the said Society was wound up on the Ist of November, 1982 and it appears that during the period of December 1979 to November, 1982, no show-cause notice was issued to the said Society for the winding-up or liquidation of the said society although it was condemned unheard for the Society's actions taken or done after December 1979.
14. It is strange that the show-cause notice was issued on 22-12-1977 and the impugned order Annexure 'D' was passed on 1-11-1982 and in the impugned order, the matters subsequent to 22-12- 1979 were considered. Under law the matters or violation of By-laws committed after 22-12-1979 cannot be considered. If the Registrar based his opinion on the matters or violations committed by the said Society after 22-12-1979, he should have issued a fresh notice to the said Society and asked it to explain about the illegalities or irregularities committed after 22-12-1979 and before 1-11- 1982.
15. One of the allegations against this Society was that the petitioner society distributed profits against law and rules. In this connection, para. No. 6 of the show-cause notice is referred to. Mr. Basharat Ahmed Sheikh Advocate, produced a photostat copy of the order issued by the Registrar Co-operative Societies, Ch.Lal Din Arif, wherein on the basis of the report of the Assistant Registrar, dated 31-12-1981 it was ordered that under the order of the Advisor to the Azad Jammu and Kashmir Government, the profits should be distributed to the extent of 65 per cent. It is very strange again that the Registrar, on 'the one hand, has charged the Society for distributing the profits up to 50% against the By-laws and on the other hand, has allowed the Society himself to distribute the profits to the extent of 50% under the orders or pressure of the Advisor of the Azad Jammu and Kashmir Government. The learned Registrar is estopped to level this charge against the petitioner Society.
16. It is the settled law that no proposed action can be taken against a person or a Society unless the concerned person or Society is asked to show cause against that proposed action. It has been held by all the superior Courts and if any authority is needed in this respect, I would quote PLD 1977 SC (A J& K) 5.
17. The case of Muzaffar Ali Shah and others v. Registrar Co-operative Societies Karachi and others PLD 1968 Kar. 422 is distingishable as in that case a preliminary enquiry was not put to the concerned person while in the instant case no question of a preliminary enquiry is involved. In the instant case, as a result of a full enquiry (which appears to be defective), the Society was wound up. The grievance of the petitioner Society in the instant case is the non-supply of the report of the full enquiry and the argument is that the said Society (petitioner) was not given an opportunity of being heard before the said Society was wound-up by the Registrar. Moreover, this authority also clashes with the authority of our own Supreme Court reported in PLD 1977 Azad J & K 1. Under law and constitution, we are bound by the authority of our own Supreme Court.
18. In Pakistan, recently the "Objectives Resolution" has been made as an integral part of the Constitution of 1973 and now it is justiceable. I need not repeat the "Objectives Resolution" here as it is not the part of the Interim Constitution Act of 1974 but we have to keep it in our minds that we are Muslims and as such governed by the Holy Qur'an and Sunnah which is the supreme lex for us. The Holy Quran has given the right of audi alteram partem and, therefore, this rule of natural justice stems from the Muslim Jrusprudence as Mr. Justice Raja Muhammad Khurshid Khan has observed.
This rule in our legal system has not been copied from the Roman Law. Hence there is no escape from this rule of the Muslim Jurisprudence.
19. Now I would like to discuss the case of Sind Employees Social Security Institution and others v.
Dawood Cotton Mills Ltd. PLD 1977 SC 177 (180)A. In this authority, it was observed that where the giving of a notice is provided for by the statute itself, then the failure to give such a notice is fatal and cannot be cured. But where there is no specific statutory provision for it and reliance is only placed on the principles of natural justice and 'audi alterm partem', if at some stage the person aggrieved has been given a fair opportunity of representing his point of view, then the defect, if any, in the initial order, may be deemed to have been cured.
This case is also distinguishable for four reasons:-
(a) that the facts and circumstances of each case are different from the facts and circumstances of the other case. At page 297 of that authority, it has been mentioned that:- "....Each case will have to be determined on its own facts:-- If the statutory provision for notice be of a mandatory nature, then an order without any notice would be wholly void; but if there is no such provision or if the provision be merely of a directory nature, then wherever a violation of this principle of natural justice is alleged, the Court may call upon the party alleging the same to prove prejudice before it sets aside the order. Such prejudice would obviously not be there if it is found that the party had been actually given a full hearing by the appellate or revisional authority and afforded every opportunity of showing cause against the allegations made."
(b) I have already referred to section 43 of subsection (4) which provides that the result of the enquiry shall be communicated to the Society. Moreover, when a proposed action is taken and that action is major, a show-cause notice must be given and the explanation of the concerned society which is to be dissolved, wood-up or liquidated, should be obtained, before that major action is taken;
(c) The words used are "fair opportunity". The order on appeal passed by the Government does not show that such a fair opportunity of representing its point of view was given to the Society;
(d) In PLD 1977 SC 177 reliance was. placed on the rule of natural justice while in this case the argument is that the rule of 'audi alteram partem' is not only the rule of natural justice but it is a rule of Islamic jurisprudence. This aspect was not argued before the Supreme Court of Pakistan.
20. The notice before winding-up is provided for even by the law. The winding up is provided for in section 44 and this section throws us back to section 43. I have also referred to section 43 of the Co operative Societies Act which is a mandatory provision of law and which requires that the result of the enquiry should be communicated to the Society. Even otherwise, the rule of "audi alteram partem" stem from the Muslim Jurisprudence and the Almighty Allah did not condemn Satan before obtaining his explanation and did not throw Hazrat Adam into this world before obtaining his explanation. A careful reading of the Holy Qur'an shows that even the bird hoopoe was not penalized by Hazrat Sulaiman without obtaining his explanation. Here in this case, a Society was penalized without obtaining its explanation. Therefore, notice before taking the impugned action was a must.
21. I agree with the learned counsel for the respondent No. 1,IG Agha Ashiq Hussain Advocate, that writs are issued to foster justice., Here, in this case, justice requires that before liquidation or winding-up, the Society should be heard.
There is no dispute with the proposition that under its extra ordinary constitutional jurisdiction, the High Court shall issue a writ to advance the cause of justice (to foster justice). The Courts of law are primarily meant to administer justice and not to perpetuate an inequity. There is a plethora of authorities in this respect i.e.:- PLD 1974 SC 106 PLD 1976 Kar. 437 1980 CLC 446 1980 CLC 99 PLD 1981 Kar. 469 1984 PLC (C.S.) 325 PLD 1984 S C3 My own decision in Writ Petition No.13 of 1984 in the case of Lt.-Col. Rtd. Muhammad Aslam Khan v.
M.D.A. decided on 25-9-1984.
But in the instant case, the learned Registrar has violated the basic rule of the natural justice and Muslim Jurisprudence and has condemned the Society unheared. It is our duty to protect the Society from the injustice done to it. The main purpose according to the By-laws of the said Society is to pay up the compensations awarded by the competent Tribunals to the victims or the legal heirs of the persons who are affected during the road accidents when travelling on the buses of the members of the Society. No such clear charge was made and no explanation whatsoever obtained from the Society. Mr. Basharat Ahmed Sheikh Advocate has vehemently argued that not a single person ever complained about the non-payment of compensation.
22. I have also considered the point as to whether the petitioner Society has come up before the High Court with sullied hands. I think that it is premature to say so because mostly the facts after the issuance of the show-cause notice were considered by the Registrar and he has wound-up ties the said Society on the alleged illegali committed flirter the issuance of show-cause notice and an opportunity of being heard was not given to the dissolved Society. The Society might have explained the charges levelled against it by the Registrar. The learned counsel for the petitioner, Mr. Basharat Ahmed Shaik Advocate, has placed a document before me which shows that under the order/pressure of the Advisor to the Azad Jammu and Kashmir Government, the Registrar allowed the Society to distribute profits upto 50 per cent. The learned counsel for the petitioner also wanted to produce more documents before this Court but. I did not allow him to produce those documents before me because under the Writ Jurisdiction we are not expected to probe into facts and hold an enquiry.
23. I have also considered the point of Agha Ashiq Hussain the learned counsel for the respondent No.1, that this Court cannot interfere into the orders of the Registrar even if they are passed wrongly.
I have seen the authorities referred to by him i.e.- PLD 1974 SC 139, PLD 1977 Azad J K 14 and PLD 1981 SC 246.
24. Broadly speaking, it is correct that the High Court shall not interefere into the final orders of a Court or Tribunal if it had the jurisdiction to decide the case. The Courts or Tribunals having jurisdic - tion to pass an order are competent to pass an order rightly or even wrongly but it must be remembered that whenever a- lower Tribunal or Court travels beyond the sphere allotted to it by the law, the High Court shall not hesitate to come in the aid of an aggrieved person and redress the wrong done to him in its constitutional jurisdiction.
25. Mr. Justice Raja Muhammad Khurshid Khan,. C.J. of our Supreme Court has rightly observed in PLD 1983 A J K 197:- "Writs are extraordinary remedies and only available where there is apparent illegality in an order passed by an authority subject to the writ jurisdiction of the High Court."
' But where a Court or Tribunal, having jurisdiction to decide the matter rightly or wrongly, excludes a valid piece of evidence which goes to the root of the mattter and in consequence comes to a wholly erroneous conclusion or considers inadmissible evidence or its finding is based on misreading or non-reading of evidence or where it violates a rule of natural justice or an important rule of Muslim Jurisprudence, or where there is illegal exercise of jurisdiction or an order is passed by a subordinate Court, Tribunal, body or officer acting without jurisdiction or in excess or refuses to exercise jurisdiction vested in it, or where an error or excess has resulted in manifest injustice or where a lower Court or Tribunal has violated some rule of procedure or has travelled beyond the sphere allotted to it by law or, to use the words of Rubinstein, takes an action "beyond the sphere allotted to Tribunal by law and therefore outside the area within which the law recognizes a privilege to err", then such action amounts to a "usurpation of power unwarranted by law".
26. I have minutely and fully considered the order of the Registrar for winding-up the petitioner Society and have come to the conclusion that the results of the enquiry were not communicated to the Society as provided under section 43, subsection (4) and, therefore, the action of the Registrar taken under the impugned order (under section 44 of the Co-operative Societies Act), was illegal, void, ineffective and passed without jurisdiction.
' Under these circumstances, I accept this writ petition and set aside the impugned. order.