' NASIR ASLAM ZAHID, J.--This is a dispute over 12 square yards of land between the petitioner and respondent No,1, both washermen and real brothers. The petitioner had been allotted Plot No,64/8/B measuring 100.50 square yards in Mohammad Ali Co-operative Housing Society, Karachi, in 1974.The ground rent, conversion fee and premium in respect of the said plot had been paid in full by the petitioner to the Society. A regular allotment order had been issued in favour of the petitioner on 18-2-1978.
2. Respondent No,1, real brother of the petitioner, was also allotted an adjacent plot by the Society and this plot also measured 100.50 sq.Yds. Respondent No,1 had approached the Society for revision of the Layout Plan of the Society and allotment of additional area of 12 sq.Yds. Which portion was a part of the plot allotted to the petitioner. The Society, by its letter dated 27-7-1980 addressed to respondent No,1, informed him that since the Layout Plan had been approved by K.D.A (Town Planning Department) and whereas their Plots Nos.7 and 8 had been equally divided in sub- plots of 100.50 sq yds. Each and approved by the K.DA. In the year 1973 and because sub-licences had also been executed several years ago in respect of the said plots, the question of the revision of the Layout Plan could not be considered at that stage. Before issuance of the said letter, the Society had also consulted M/sA.Salam Associates, Town Planners/Architects/Engineers & Surveyors of Karachi. It appears that respondent No,1 had also approached the Martial Law Authorities as by letter dated 10-6-1982 (Annexure `G' to the petition) of the Administrator of the Mohammad All Society addressed to Lt.-Col.Syed Kazim Hayat Headquarters, Martial Law Administrator, zone 'C' Karachi, it was informed that respondent No,1 had been allotted a plot measuring 100.50 sq.Yds. Only and the sub-licence had been registered in his name on 20-9-1979 and the additional area of 12 sq.Yds claimed by him was a part of Plot No, 64/8/B which was entered in the office records of the Society as allotted to the petitioner and that there was obvious encroachment of 12 sq.Yds by respondent No,1 on the plot belonging to the petitioner.
3. The petitioner was away from Pakistan and was working in Kuwait and it has been averred by him that, behind his back, respondent No,1 moved an application in 1983 before the Society for allotment of the additional area of 12 sq.Yds. Out of the plot of the petitioner and the Society, wilthout any notice to the petitioner, passed a resolution dated 7-10-1983 allotting to the respondent No,1 the said additional area of 12 sq.Yds out of the plot of the petitioner. In this way, the area of the petitioner's plot was reduced from 100.50 to 88.50 sq.Yds. And when the petitioner came to know about this he wrote a letter to the Society, who informed the petitioner at his Kuwait address that no adverse action shall be taken against the petitioner till his return to Pakistan. The petitioner having come to know about the aforesaid action, addressed a legal notice dated 16-8- 1984 to respondents Nos.1 and 2. After issuing the aforsaid notice, the petitioner came to know that addendum of sub-licence dated 27-5-1984 issued in favour of respondent No,1 was also got registered by the Society in favour of respondent No,1 whereby his earlier sub-licence was amended to read the total area as 112 square yards.
4. As the grievance of the petitioner was not redressed, he filed an application under section 54 of the Cooperative Societies Act, 1925 before the Deputy Registrar Cooperative Societies Karachi for referring the dispute to his nominee for arbitration.
' The dispute between the petitioner and respondent Society was referred to the nominee of the Deputy Registrar and arbitrators nominated by the petitioner and the Society. By a majority decision, through the award dated 5-121984, it was decided that the resolution dated. 7-10-1983 of Muhammad Ali Society was illegal and it was cancelled with immediate effect and respondents Nos.1 and 2 were ordered to restore the plot of the petitioner and also directed respondent No,1 to remove the encroachment from the plot of the petitioner. Against the said award dated 5-12-1984, respondent No,1 filed an appeal before the Deputy Registrar, Co-operative Societies, Karachi (respondent No,3). The Deputy Registrar accepted the appeal by order dated 28-10-1985 and set aside the award dated 5-12-1984 of the Arbitrators' panel on the ground that respondent No,1 was in de facto possession of the disputed 12 sq.Yds. And that the evidence had shown that the land was in possession of the appellant since the very beginning and he had raised construction in the year 1958. As observed earlier, the appeal was allowed and the award dated 5-12-1984 was set aside.
5. The order dated 28-10-1985 of the Deputy Registrar Cooperative Societies is challenged in this Constitutional petition. We had heard the arguments of Mr.Khalilur Rehman, learned counsel for the petitioner, Mr.Azad Bin Haider, learned counsel for respondent No,1 and Mr.Syed Sarfaraz Ahmed, learned A.A.-G. For respondent No,3, respondent No,3 Society had remained absent.
6. On conclusion of the arguments yesterday, by a short order, we allowed the petition and remanded the case to respondent No,3 to decide the petition of respondent No,1 as if it was an application under section 54(1) of the Cooperative Societies Act, 1925 after giving notice to the parties and giving them full opportunity of hearing. Reasons for the short order dated 21-11-1990 are given in this judgment.
7. Mr.Khalilur Rehman, learned counsel for the petitioner, has challenged the competency of the appeal filed by the respondent No,1 before the Deputy Registrar, Cooperative Societies, Karachi. It was contended that under the provisions of the Cooperative Societies Act 1925 no appeal lies against the award given by a panel of Arbitrators under section 54 of the Act, and as such the impugned order of the Deputy Registrar, passed in favour of the respondent No,1, is a nullity.
8. Relevant provisions of the Cooperative Societies Act 1925 are sections 54, 54-A, 55, 56, 57, 64, 64- A and 64-AA.
Section 54 provides that if any dispute touching the business of a Society (subject to some exceptions) arises, inter alia, between the Society and any member of the Society, it is 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 shall be the Registrar or his nominee and 2 persons of whom one shall be nominated by each of the parties concerned.
Section 54-A is reproduced here:- "54-A. (1) In the case of any award made by the arbitrators under section 54, theistrar, if he is not one of such arbitrators, many of his own motion or on the application of any of the parties to the award, by an order in writing recording reasons therefor--
(a) modify or correct the award (i) where it appears that a part of the award is upon a matter not referred to arbitration and such part can be separated from the other part and does not affect the decision on the matter referred; or (ii) where the award is imperfect in form or contains any obvious error which can be amended without affecting such decision; or
(iii) where the award contains a clerical' mistake or an error arising from an accidental slip or omission ; or
(b) remit the award or any matter referred to arbitration to the arbitrators for reconsideration--
(i) where the award has left undetermined any of the matters referred to arbitration or where it determines any matter not referred to arbitration and such matter cannot be separated without affecting the determination of the matters referred, or
(ii) where the award is so indefinite as to be incapable of execution, or
(c) set aside the award and order that the dispute shall be referred to arbitration in the manner provided in the said section: Provided that no order referred to in clauses (a) to (c) shall be made-
(a) after the issue of a certificate under section 59 for the execution of the award; or
(b) without giving the parties to the award an opportunity of being heard: Provided further that no order under clause (c) shall be made unless the Registrar is of opinion that-
(i) an objection to the legality of the award is apparent on the fact of it, or
(ii) the award has been vitiated in consequence of corruption or misconduct on the part of the arbitrators, or
(iii) the award is in any way perverse.
(2) In making an order under clause (c) of subsection (i), the Registrar may direct that all or any of the arbitrators who made the award shall not act again as arbitrators for deciding the dispute.
(3) Where a dispute is referred back to arbitration under clause (c) of subsection (1), the arbitrators shall make a fresh award within such time as may be fixed by the Registrar. If the arbitrators fail to make a fresh award within the time so fixed, the Registrar or his nominee shall decide the dispute."
It is, inter alia, provided by section 55 that where a dispute has been rred to the Registrar under section 54, the Registrar or his nominee or the arbitrators can under certain conditions direct the conditional attachment of the property in dispute.
' Under section 56, any party aggrieved by any decision of the Registrar's nominee made under section 54 or subsection (3) of section 54-A or an order passed under section 55 by the Registrar's nominee or Arbitrators may within one month of the date of the award or order appeal to the Registrar and the Registrar shall decide the appeal.
' By section 57, finality attaches to an award of Arbitrators or a decision by Registrar or his nominee under section 54 or section 54-A or an order passed in appeal by the Registrar under section 56 subject to the provisions of sections 64 and 64-A.
' The heading of Chapter X of Sindh Cooperative Societies Act, 1925 is "APPEALS AND REVISION" and it comprises 3 sections namely, sections 64, 64-A and 64-AA, which are reproduced here:- "64. An appeal against an order or decision of or sanctioned by the Registrar under sections 10, 16, 45, 47, 50, 50-A, 54 or subsection (3) of section 54-A may be made by any party aggrieved or affected by the order or decision to the Provincial Government within two months of the date of the communication of the order.
64-A. The Provincial Government and the Registrar may call for and examine the record of any inquiry or the proceedings of any officer subordinate to them for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed and as to the regularity of the proceedings of such officer. If in any case, it shall appear to the Provincial Government or the Registrar that any decision or order or proceedings so called for should be modified, annulled or reversed, the Provincial Government or the Registrar, as the case may be, may pass such order thereon as to it or him may seem fit.
64-AA. An order passed in appeal under section 64 or in revision under section 64-A by the Provincial Government shall be final and conclusive and shall not be liable to be called in question in any Civil or Revenue Court."
9. A perusal of the aforesaid relevant provisions of the Sindh Cooperative Societies Act, 1925 shows that decisions of the panel of Arbitrators passed under section 54 of the Act are not appealable.
As noted earlier, under section 56 of the Act, an appeal is provided the Registrar but such right of appeal is only available against a decision of 1 Registrar's nominee made under section 54 or subsection (3) of section 54-A against an order passed under section 55 by the Registrar's nominee Arbitrators. An award given by the Arbitrators under section 54 of the Act therefore, not appealable under section 56. The other provision relating appeals is section 64 but this section also does not provide for an appeal against the award of Arbitrators under section 54. Under section 64, an appeal is provided against an order or decision of or sanctioned by the Registrar under actions 10, 16, 45, 47, 50, 50-A, 54, or subsection (3) of section 54-A to the provincial Government.
' Section 64-A gives powers to the Provincial Government and the Registrar to call for and examine the record of any enquiry or the proceedings of any officer subordinate to them for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed and as to the regularity of the proceedings of such officer. The Arbitrators giving award under section 54 are )t officers subordiate to the Provincial Government or Registrar.
10. The only provision under the Cooperative Societies Act, under which the yard given by the Arbitrators can be called into question, is section 54-A. Under subsection (1) of section 54-A, in the case of an award made by the Arbitrators under section 54, the Registrar of his own motion or on the application of any of e parties to the award can:-
(a) modify or correct award in certain situation;
(b) remit the award or any matter referred to arbitration to the Arbitrators for reconsideration where the award has left undetermined any matter or where it determines any matter not referred to arbitration or where the award is indefinite or,
(c) set aside the award and order that the dispute shall be referred to arbitration in the manner provided in the said section. Under clause (c) no order can be passed by the Registrar unless he is of the opinion that-
(i) An objection to the legality of the award is apparent on the face of it or; (ii) the award has been vitiated in consequence of corruption or misconduct on the part of the Arbitrators; or (iii) the award is in any way perverse.
' Subsection (3) of section 54-A provides that where a dispute is referred ck to arbitration under clause (c) of subsection (1), the Arbitrators shall make fresh award within such time as may be fixed by the Registrar and if the Arbitrators fail to make a fresh award within the time so fixed, the Registrar or nominee shall decide the dispute.
11. Against the decision of the Arbitrators under section 54 of the Sindh )operative Societies Act, 1925 no appeal lies under the Act, as observed earlier, t to the aggrieved party some remedy is provided against such decision by section 54-A. However, on his own motion or on the application of any of the parties, the Registrar can only modify or correct the award or remit the award for consideration but if it sets aside the award for any of the reasons mentioned in the proviso of clause (c) of subsection (1) of section 54-A, the dispute has again to be referred to arbitration in the manner provided in section 54. The Registrar cannot give a final decision by only setting aside the award.
He has then to refer the dispute again to arbitration.
12. In the present case, the Deputy Registrar under delegated powers entertained the appeal of respondent No, 1 as if an appeal against the Arbitrator's award was competent. At best, the appeal filed by the respondent No,1 against the Arbitrators award can be treated as an application by the respondent No,1 under section 54-A of the Act. But then the Deputy Registrar did not have the powers under section 54-A to pass a final order by setting aside the award. At best, he could have set aside the Arbitratorss award for any of the reasons specified in the second proviso to subsection (1) of section 54-A but then he was required to refer the matter to arbitration again under section 54 of the Act.
13. In the circumstances, the impugned order dated 28-10-1985 passed by the Deputy Registrar, Cooperative Secieties, Karachi, is declared to have been passed without lawful authority and to be of no legal effect. The appeal filed by respondent No,1 shall be considered to be an application under subsection (1) of section 54-A of the Sindh Cooperative Societies Act 1925 and it will be deemed to be pending before the Deputy Registrar, Cooperative Societies, Karachi, who shall decide the same in accordance with the provisions contained in section 54-A of the Act after notice to the petitioner and respondent No,1 This matter has been pending for considerable time.
The Deputy Registrar is further directed to decide this application by 29-2-1991.
There shall be no order as to costs.