' By this petition for leave to appeal the petitioner seeks leave to appeal to assail the judgment passed by a Division Bench of the High Court on 25-3.1981 whereby the High Court, in exercise of writ jurisdiction under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, felt advised to declare the action of the Registrar, Co-operative Societies, Mirpur, in seizing bus No, A J & .K'5722 (the ownership of the bus at that time vested in Muhammad Ishaque) as to be without lawful authority and of no legal effect.
2. The admitted facts are ; that Najmul Hassan was the original owner of the aforementioned vehicle. It stood pledged for loan secured by him from the Co-operative Bank. This bus was, later on, with the permission of the creditor, i,e,, Co-operative Bank, sold to Muhammad Idrees. However, the liability of Najmul Hassan does not appear to have been shouldered by Muhammad Idrees.
Muhammad Idrees then sold this bus to Muhammad Ishaque.
3. On 15-2-1979, the Registrar, Co-operative Societies proceeded to seize this vehicle as, according to him, it stood pledged for the unpaid loan obtained by Najmul Hassan, the original owner, from the Co-operative Bank.
4. The action of the Registrar, Co-operative Societies; however, was called in question by way of a constitutional writ in the High Court, inter alia, on the grounds
(i) that the action of the Registrar, Co-operative Societies is violative of the provisions of section 5 of Co-operative Banks (Repayment and Recovery of Loans) Ordinance, 1980 (hereinafter to be referred as Debt Ordinance) as no notice, prior to taking action for payment of debt, as stipulated, was issued ; and
(ii) that no debt at all was outstanding against any of the three persons, namely : Najmul Hassan, Muhammad Idrees and Muhammad Ishaque."
5. The High Court accepting the writ petition quashed the seizure order of the bus and held that no debt was outstanding against any of the borrowers mentioned above.
6. In support of the petition Raja Muhammad Akrarn. Khan, the learned Advocate-General, contended :- (i)that the High Court, as stipulated under section 13 of the. Debt Ordinance, had no jurisdiction to entertain the writ petition as alternate remedy, under the provisions of the Punjab Land Revenue Act, 1887, was available to respondent Muhammad Ishaque in moving an appeal before the Revenue Commissioner ;
(ii) that as the bus had originally been pledged with the Co-operative Bank (since dissolved) against the debt outstanding against Muhammad Ishaque ; the seizure of the bus was in accordance with law ; and
(iii) that the High Court misdirected itself to hold that the amount of debt, standing in the name of Najmul Hassan, was satisfied by Muhammad Idrees.
7. It is settled that the Supreme Court does not and will not interfere! Where the High Court has exercised its discretion on sound judicial principles but it will certainly intervene where it finds that the discretion; has been exercised in a manner which diverts the law into a wrong channel by the formation of the conclusions which are inconsistent with law. There is a considerable body of case law on this point.
8. Let me deal with the case with this settled law. To appreciate the arguments advanced by the learned counsel it would be profitable to reproduce section 5 of the Debt Ordinance. It reads : "(1) In respect of Co-operative Banks which stand dissolved by the operation of section 42,' subsection (4) of the Establishment of Federal Bank for Co-operatives and Regulation of Co operative Banking Ordinance, 1976, as adapted in Azad Jammu and Kashmir the provincial Co- operative Bank and in respect of the Co-operative Banks which have been converted into non- banking societies under subsection (5) of section 42 of the said Ordinance, such societies, shall, within thirty days of the commencement of Ordinance XXXIV of 1977 or within such extended period as the Registrar may allow, furnish to the Registrar full particulars in respect of all cases of loans required to be repaid under section 3 :
(2) On receipt of information under subsection (1) in respect of any loan the Registrar may cause notice to be issued to borrower requiring him to repay and secure the loan ;
(3) Where any borrower to whom notice under subsection (2) is issued does not admit the loan or any liability arising therefrom, he shall within thirty days of the receipt of notice, or such further period as the Registrar, may, in special circumstances allow, submit either personally-or by registered post (acknowledgment due), a written statement to that effect to the Registrar, who thereupon shall cause notice to be issued to the Bank or society concerned, and shall, after making such inquiry as he considers necessary, and giving the parties reasonable opportunity of being heard, decide about the liability ;
(4) The decision of the Registrar under subsection (3) shall be final and shall not be called in question in any Court."
9. The plain reading of section 5 of the Debt Ordinance conveys a clear impression that it stipulates recovery and not repayment of loans which are distinctively covered under section 3 of the Debt Ordinance. The Registrar, after getting the requisite information of the outstanding debt, shall cause a notice to the borrower for recovery of the debt and if the borrower does not admit the loan then an inquiry, as stipulated under subsection (3) of the Debt Ordinance, is to be carried out and the finding of the Registrar under subsection (4) of the Debt Ordinance shall be final and may not be called in question in any Court. Under section 5 of the Debt Ordinance issuance of notice is a condition precedent and a person cannot be said to have contravened this provision of the Ordinance without such notice. Under this section the banking societies shall, for recovery, furnish information to the Registrar about the debt outstanding against a person including the amount of debt secured under section 3 of the Ordinance and thereafter notice is to be issued by the Registrar. In this case it appears that no notice, as required under section 5 of the Debt Ordinance, prior to seizing of the vehicle, was at all issued. This omission, being violative of the mandatory provisions of the Debt Ordinance, makes the action of the Registrar bad in law. The action of the Registrar is, therefore, ab initio void and the High Court has very rightly quashed the seizure of the bus.
10. It may be observed here that the jurisdiction of the High Court is only barred when an action is taken in strict conformity with the provisions of an Act which gives powers to an authority and not otherwise. If an action is taken in violation of law, naturally the civil Courts have authority to intervene and undo the wrong done to a subject. The objection of the learned Advocate-General : that the High Court had no jurisdiction to entertain the writ petition, therefore, stands repelled.
11. The next objection that the High Court was incompetent to entertain the writ petition as alternative remedy was available to Muhammad Ishaque, respondent, is also not tenable. In the first instance I entertain serious doubt about the availability of the alternative remedy in the present case. But even in presence of an alternative remedy the remedy by way of writ cannot, in every case, be denied unless such C alternative remedy is equally unexpensive, expeditious and beneficial. In the instant case I feel that the alternative remedy was less beneficial and more expensive as compared with remedy available by way of a writ petition.
12. So far as the question as to whether Najmul Hassan has satisfied the debt outstanding against him, the High Court says :- "The Supervisor of the affairs of the Co-operative Bank (dissolved) has furnished details of accounts in respect of the matter in issue wherein it is clearly given without any ambiguity that the loan liable, the payment of which was to be made by Najam-ul-Hassan, was made to the liability of Muhammad Idrees the first transferee who has since satisfied the entire loan, sometimes, standing in his name including the part of loan obtained by Najam-ul-Hassan."
13. Ch. Lal Din Arif, Registrar, Co-operative Societies has submitted an affidavit that an amount of Rs, 1,01,385 still stands outstanding against Najmul Hassan and the High Court fell in error to say that Muhammad Idrees, the first transferee, has satisfied the debt standing in the name of Najmul Hassan. I have, with the help of learned Advocate-General and Additional Advocate-General, gone through the file of the High Court. We could not trace out any such document which may tend to show that the part of the loan secured by Najmul Hassan had been paid by Muhammad Idrees.
Leave to appeal is, therefore, granted only to consider a limited question, i,e, whether the evidence establishes that the amount of debt, outstanding against Najmul Hassan, had been paid by Muhammad Idrees or this finding of the High Court is without evidence and liable to be quashed.
So far Muhammad Ishaque is concerned, he in no way is affected by this order and the judgment of the High Court, so far his liability is concerned, remains intact. Security Rs, 1,000. The file, after completion in the Registry, shall be placed before the Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.