' MAMOON KAZI, J.---The common grievance of the petitioners in these three petitions arises out of the three Notifications simultaneously issued by the Government of Sindh and the Cooperative Housing Authority respectively dated the 4th August, 1988. The first two notifications were published in the Sindh Government Gazette on the 11th August, 1988.
2. By the said Notifications, the Government of Sindh, the respondent No,1 in these petitions by virtue of powers vesting in it under section 6 of the Sindh Cooperative Housing Authority Ordinance, 1982, was pleased to order an enquiry into the affairs of M/s. Ismailia Garden Cooperative Housing Society Limited (the petitioner in C.P. No,D-841/88) and further to direct that its charge and control be taken over by the Sindh Cooperative Housing Authority, an Authority constituted under the aforesaid Ordinance. The said Authority also appointed Miss Hameeda Akhtar (respondent No,4 in C.P. No,D-841/88) Lady Assistant Registrar, Cooperative Societies to perform duties of the Managing Committee of the said Society, during the period, the charge and control of the affairs of the said Society remained with the said Authority. The said Notifications are reproduced as follows:- "GOVERNMENT OF SINDH LABOUR AND COOPERATION DEPARTMENT NOTIFICATION Karachi, the 4th August, 1988 ' No, SO (C-I) 16 (84)/85.---Whereas the Government of Sindh is satisfied that the M/s. Ismailia Garden Cooperative Housing Society Limited, Karachi have indulged in mismanagement of the affairs thereof and have acted in the manner prejudicial to the interest of the members of the Society; ' And whereas it is expedient to .Do so; ' Now, therefore, in pursuance of the provisions of the subsection (1) of section 6 of the Sindh Cooperative Housing Authority Ordinance, 1982, the Government of Sindh is pleased to direct that an enquiry shall be made into the affairs of the said Society and appoint Miss Hameeda Akhtar, Lady Assistant Registrar, Cooperative Societies, Karachi in addition to her own duties as Enquiry Officer to conduct the enquiry and submit her report to Government within thirty days of this Notification.
R.M. ISHAQUE ' Secretary to Government of Sindh "GOVERNMENT OF SINDH ' LABOUR AND COOPERATION DEPARTMENT NOTIFICATION ' Karachi, the 4th August, 1988 ' No, SO (C-I) 16 (84)/85.---Whereas an order of enquiry has been made into the affairs of M/s. Ismailia Garden Cooperative Housing Society Limited, Karachi under subsection (1) of section 6 of the Sindh Cooperative Housing Authority Ordinance, 1982.
' Now, therefore, in exercise of the powers conferred by subsection (2) of section 6 of the said Ordinance, the Government of Sindh are pleased to direct that the Sindh Cooperative Housing Authority shall take over the charge and control of the said Society.
R.M. ISHAQUE, - Secretary to Government of Sindh "SINDH COOPERATIVE HOUSING AUTHORITY NOTIFICATION Karachi, the 4th August, 1988 ' No,S:C.H.A./88/-:-In exercise of the powers conferred under section 7 of the Sindh Cooperative Housing Authority Ordinance, 1982, the Authority is pleased to appoint Miss Hameeda Akhtar, Lady Assistant Registrar Cooperative Societies, Karachi as Administrator of M/s. Ismailia Garden Cooperative Housing Society Limited, Karachi in addition to her existing duties. She shall perform the duties of the Managing Committee subject to overall supervision of the Authority during the period the charge and control of the affairs of the above said Society remains with the Authority.
(Sd.) R.M. ISHAQUE CHAIRMAN SINDH COOPERATIVE HOUSING AUTHORITY."
3. The action was initiated against the said Society as a complaint had been received by the Registrar, Cooperative Societies, Sindh from members of the said Society whereafter an enquiry was ordered by the Registrar under section 43 of the Cooperative Societies Act. Miss Hamecda Akhtar, Assistant Registrar, Cooperative Societies had been appointed as Enquiry Officer and the reports submitted by her indicated various illegalities and irregularities committed by the then members of the Managing Committee including non-holding of elections of the Society since 1981 and mismanagement of the affairs and funds of the Society. The same was brought to the notice of the then Governor who on being satisfied that the Society had indulged in mismanagement of the affairs thereof and had acted in a manner prejudicial to the interest of its members ordered an enquiry which resulted into the said action against the Society, now being impugned in the; present petitions.
4. The petitioners in C.P. NoD-841/88 have called in question the aforesaid three Notifications dated the 4th August, 1988 whereas the grievance of the petitioners in C.Ps. Nos. D-653/89 and D-763/91 mainly is that they have been deprived of an opportunity to contest the elections of office-bearers of the Society which were held on 7-6-1991.
5. Challenging the said Notifications Mr. J.H. Rahimtoola, learned counsel for the petitioners in C.P.
No,D-841/88 has argued that the action taken by the Government of Sindh holding an enquiry into the affairs of the petitioner Society was mala fide as there was no material available with the Government of Sindh on the basis of which it could be satisfied that the Society had acted in a manner requiring action under section 6 of the Sindh Cooperative Housing Authority Ordinance, 1982 under which the said action was initiated. The second contention of Mr. J.H. Rahimtoola was that in any case even if there was material before the Government of Sindh upon which an enquiry into the affairs of the petitioner-Society could be ordered thereby, no further action by taking over of the control of the affairs of the Society was permissible without affording an opportunity of hearing to the same as required by subsection (2-A) of section 6 of the said Ordinance. Mr. J.H.
Rahimtoola has also questioned the authority of the Provincial Government to simultaneously appoint respondent No,4 as an Enquiry Officer and an Administrator to look after the affairs of the Society.
6. Section 6 of the aforesaid Ordinance under which the action has mainly been taken by the Government provides as follows:- "6.(1) Government may, on being satisfied that a Society has failed to perform its duties in accordance with laws, rules or bye-laws, or constitution, memorandum or articles of association of the society, or has indulged or is indulging in mismanagement of the affairs thereof, or has acted or is acting in any manner prejudicial to the interests of the members of the society, issue such directions to the society as it deems fit or order an enquiry to be made into the affairs of the society in the manner as may be prescribed.
SUPERSESSION
(2) Where the society fails to comply with the directions or the order of enquiry is made under subsection (1), Government may, by notification, direct the Authority to take over the charge and control of the affairs of the society.
(2-A) Government shall, before taking action under subsection (2), afford an opportunity of hearing to the society: Provided that if, as an emergent measure, taking of immediate action is necessary, such opportunity may be dispensed with, but such opportunity shall be afforded to the society as soon, thereafter, as is possible: ' Provided further that in a case where such opportunity to the society is duly afforded before the action is taken, Government may pass such interim orders, for preventing the commission of mischief or abuse by the society, as it may deem fit.
(3) If immediately before the coming into force of this Ordinance, the management of a society stands superseded and the administration of its affairs stands assigned to a person or body of persons under any law for the time being in force, the Authority shall, notwithstanding such supersession, and the provisions of -subsection (1), take over the charge and control of the affairs of the society.
(4) Where a notification under subsection (2) has been issued or the charge and control of the affairs of a society has been taken over by the Authority under subsection (3), the Authority shall exercise the powers and perform the functions of the society.
(5) Where the charge or control of the society has been taken over by the Authority, the management of the society or the person or body of persons administering the affairs of the society shall put the Authority or any member or officer thereof named by the Authority in possession of all assets and records belonging to or in possession of the society or in possession of any person on its behalf.
(6) Where the management of the society or the person or body of persons administering thq affairs of the society has failed to make compliance of subsection (4), the Authority shall take all such steps including reasonable force as may be necessary to ensure compliance thereof.
7. Subsection (1) of section 6, therefore, clearly indicates that the action may be taken thereunder if the Government is satisfied that the Society has failed to perform its duties in accordance with the law, rules, bye-laws etc. Or has indulged in mismanagemnt of the affairs thereof or has acted in a manner A prejudicial to the interest of the members of the Society. Under subsection (1), the Government is empowered either to issue directions to the Society as it deems fit or order an enquiry to be made into the affairs thereof in the prescribed manner. Subsection (2) of section 6 empowers the Government to hand over the charge and control of the affairs of the Society to the Cooperative Housing Authority established under the said Ordinance where the Society fails to comply with the directions issued by the Government or where an order of enquiry has been made by the Government under subsection (1) of section 6. Subsection (2-A) of the said section, however, requires the Government to afford an opportunity of hearing to the Society before any action is taken by it under subsection (2) of the said section. Subsection (2-A) has been further made subject to a proviso which authorizes the Government to dispense with such opportunity of hearing to the Society if taking of immediate action is necessary. However, the proviso makes it imperative for the Government to afford an opportunity of hearing to the Society as soon thereafter as is possible.
8. Turning now to the contentions of Mr. J.H. Rahimtoola, the first contention has been that there was no material available with the Government upon which it could be satisfied in regard to the existence of circumstances requiring action under section 6 of the said Ordinance. No doubt, the expression "on being satisfied" used in subsection (1) of section 6 of the said Ordinance means that the satisfaction of the Government must be grounded upon some cogent evidence and in this regard a number of cases has been cited before us at the Bar. In Dr. Ejaz Hassan Qureshi v.
Government of Punjab (PLD 1978 Lahore 1419) it was held that when it is said that a person has been satisfied, it implies that he has been convinced and has become contented. In Syed Saeed Hassan v. Pyar Ali and 7 others (PLD 1976 SC 6) while referring to the import of the word "satisfied" occurring in section 67 of Ordinance XIII of 1970 it was observed by Muhammad Afzal Cheema, J.
Who delivered the judgment of the Supreme Court that. 'satisfaction' is by no means a term of art and appears to have been used in its ordinary dictionary sense. 'Satisfaction' is the existence of a state of mental persuasion much higher than a mere opinion and when used in the context of judicial proceedings has to be arrived at in compliance with the prescribed statutory provisions and other legal requirements. Far from being a subjectively or capriciously arrived at conclusion, it presumes observance of certain well-settled judicial principles and is a firm state of mind admitting of no doubt or indecision or oscillation. To be 'satisfied' with a state of things is to be honestly convinced in one's own mind." In Ghulam Jilani v. Government of West Pakistan (PLD 1967 SC 373) while referring to rule 32 of the Defence of Pakistan Rules, it was observed by y. The Supreme Court that: "This rule requires a stronger ground for action than mere suspicion, however reasonable. For the making of an order of detention of any person, it is necessary that the detaining authority should be satisfied in relation to such person that it is necessary to make an order for the purpose of preventing him from acting in a prejudicial manner "
9. We have no doubt that satisfaction required by section 6 of the said Ordinance must be based on tangible material capable of convincing the Government of the existence of circumstances requiring action under the said section.
10. We would, however, like to point out that in case there was no substantial evidence before the Government calling for action under the said section of the said Ordinance, the contention put forth by Mr. Rahimtoola would certainly have merited consideration, but in the present case, as has been pointed out earlier, an enquiry had already been held by Miss Hameeda Akhtar in the affairs of the petitioner-Society under the provisions of section 43 of the Cooperative Societies Act. A copy of a detailed report submitted by the said respondent to the Registrar, Cooperative Societies, Sindh, by her letter dated 13-6-1988 has been filed alongwith her counter-affidavit as Annexure B from which a case of mismanagement of the affairs of the Society by its Managing Committee can ostensibly be spelled out. Although it is not for us in the present proceedings to enter into the factual controversies raised by the parties but neverthless the contention, that the action initiated by the Government is not based on cogent evidence on the basis of which the Government could form an honest opinion, therefore, has in any case lost its force. The first contention of Mr. J.H.
Rahimtoola, therefore, cannot be accepted.
11. It was next contended by Mr. Rahimtoola that the entire action taken by the Government was vitiated by the fact that no opportunity of hearing was afforded to the petitioner Society as provided by subsection (2-A) of section 6 of the said Ordinance. The contention of Mr. Khalid M.
Ishaque, learned counsel for Siraj Tajuddin Chatur (respondent No,6 in C.P. No,D-841/88), however, was that since immediate action was necessary hence opportunity of personal hearing was not afforded to the Society at the time of its take-over by the Sindh Cooperative Housing Authority under subsection (2) of section 6. However, as required by the first proviso occurring after subsection (2-A), .An opportunity of hearing was afforded to the Society after taking of such action.
12. Before we deal with the rival contentions raised by the learned Counsel, we would like to refer to the various cases which have been cited at the Bar in support of Mr. Rahimtoola's argument. In Mansab Ali v. Amir and 3 others (PLD 1971 S.C. 124) when an accused under West Pakistan Criminal 'Law (Amendment) Act (VII of 1963) was entitled to be heard before a reference could be made under the said section to a Tribunal appointed under section 3 of the said Act, it was held by the Supreme Court that in case of such failure the entire proceedings would become illegal and suffer from want of jurisdiction. In Collector, Sahiwal and 2 others v. Mohammad Akhtar (1971 SCMR 681) it was held that when a Government servant s dismissed without a show-cause notice as required by Article 177(1) (b) of the then Constitution of 1962, a failure to give such notice would be fatal and would render the entire impugned action void ab initio. It was further held that the defect at the initial stage would remain incurable even if opportunity of hearing was afforded at a subsequent stage. Similar observations can be found in Atta Muhammad Qureshi v. The Settlement Commissioner (PLD 1971 S.C. 61) where it was held that if requirement of a notice is mandatory in character it places a limitation on the jurisdiction of the Authority not to make any adverse order against the person without giving him opportunity to show cause against it, and if an order is made without fulfilment of such prerequisite, it would certainly lack jurisdiction. In Rashid Ahmad v. The State (PLD 1972 S.0 271) it was held that "If a mandatory condition for the exercise of jurisdiction before a Court, Tribunal or Authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction.' It was further observed that Any orders gassed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction." Similar view was expressed by the Supreme Court in Mst. Maryam Yunus v.
Director of Education, Cantonment, G.H.Q., Rawalpindi (PLD 1990 S.C. 666) where it was held hat when giving of notice, is provided by the statute itself then the failure to give such notice would be fatal and cannot be cubed.
13. In the present case, it is pertinent to point out that no doubt subsection (2-A) of section 6 requires providing of an opportunity of hearing to the society before taking of action under subsection (2) of section 6, but the said subsection is further subject to the first proviso immediately occurring thereafter which provides that "If, as an emergent measure, taking of immediate action is necessary, such opportunity may be dispensed with. However, the said proviso further provides that such opportunity shall be afforded the society as soon thereafter as is possible. The reading together of the aforesaid provisions makes it abundantly clear that although an obligation has been imposed upon the Government to afford an opportunity of hearing to the Society before taking of action in respect thereof under subsection (2) of section 6 but the said proviso at the same time authorises the Government to dispense with such opportunity and afford such an opportunity subsequently if, as an emergent measure, taking of immediate action is necessary. It is, therefore, clearly left to the Government to itself determine whether the opportunity of hearing postulated by subsection (2-A) has to precede or follow the action referred to in subsection (2) of section 6. Nothing can be spelled out from subsection (2-A) to require the Government to specify the circumstances leading to an inference of emergency or to refer to the same in any form while making an order under section 6(2) of the said Ordinance in case it decides to dispense with the said opportunity of hearing to the Society. Consequently, in such a case the only obligation which is imposed by subsection (2-A) upon the Government is to provide an opportunity of hearing soon after taking of action in respect of the Society under subsection (2) of section 6. In this regard, reference has been made to a show-cause notice dated 17-9-1988 said to have been sent by the Government to the petitioner-Society informing it in regard to the main charges and calling upon it to explain as to why action as provided under the said Ordinance should not be taken against it. Although Mr. J. H. Rahimtoola has half-heartedly contended that such a notice had not been received by the petitioners but it is pertinent to note that such a plea has not been specifically taken in petition No,D-841/88. It is also pertinent to point out that when a copy of such notice was filed alongwith the counter-affidavits on behalf of respondent No,1 or respondent No,4, the claim of the said respondents was not refuted by the petitioners through any rejoinder filed on their behalf. We are, therefore, unable to accept this belated stand taken on behalf of the petitioners that a copy of the show-cause notice had not been received by them. In any case, the petitioners had been given full opportunity to participate in the enquiry which was earlier held by respondent No,4 under the provisions of section 43 of the Cooperative Societies Act as would appear from a letter written by petitioners J.N. Notta and Sadaruddin Notta, Chairman and. Honorary Secretary respectively of the said Society dated 10-5-1988. Reference in this regard may also be made to the report of respondent No,4 which clearly shows that the petitioners had participated in the enquiry thereafter held by her under section 6 (1) of the said Ordinance in pursuance of the Notification dated the 4th August, 1988. It is also an admitted position that a full- fledged enquiry has been held by respondent No,4 into the affairs of the Society after a charge- sheet in this regard was served upon the petitioners. There is therefore, ample evidence to indicate that the petitioners had been afforded opportunity of hearing as required by subsection (2A) of section 6 of the said Ordinance.
14. Turning to the last contention of Mr. J. H. Rahimtoola, the grievance is that the same person who was directed to hold enquiry into the affairs of the Society had been appointed as Administrator to look after the affairs of the Society. In this regard, we would like to point out that now since the elections of the Managing Committee have been held and the affairs of the Society are now being looked after by the newly-elected Managing Committee the grievance raised by Mr. J. H.
Rahimtoola has now ceased to exist. Under the circumstances, this argument has also lost its force.
15. Consequently, nothing can be spelled out from the circumstances just enumerated by us to indicate that the action taken by the Government suffers from any infirmity as contended by Mr. J.
H. Rahimtoola.
16. So far as the case of the petitioners in C.P. No,D-653/89 is concerned, as has been pointed out earlier the petitioners are aggrieved by the fact that they have been disqualified to contest elections to the Managing Committee of the Society for three years, effective from 2nd April, 1989.
The only contention of Mr. S. M. Sadiq before us has been that since the order passed by the respondents under section 6 of the said Ordinance is without lawful authority any action which has followed thereafter equally suffers from want of jurisdiction and is of no legal effect. In this regard, we have already held that the action taken by the Government by issuance of the said Notifications dated 4-8-1988 does not suffer from any infirmity. The argument of the petitioners in this regard in C.P. No,D-841/88, therefore, stands repelled. Consequently, we find no force in this petition as well.
17. So far as the remaining petition i,e. C.P. No,D-763/91 is concerned, Mr. Mohammad Ali Saeed, learned counsel for the petitioners in the said petition has invited our attention to different orders passed by the respondents, the first being dated 2-10-1990. By this order, which was passed by the Director, Sindh Cooperative Housing Authority, Karachi, the petitioners were allowed to contest elections to the Managing Committee of the Society which were due to be held on 5-10-1990.
However, by another order dated 21-4-1991 passed by the Secretary, Government of Sindh, Food and Cooperation Department, requisite permission granted to the petitioners by the previous order was withdrawn. Thereafter vide another order dated 29-4-1991 permission was once again granted to the petitioners to contest elections which were then scheduled to be held on 7-6-1991 but again by the impugned order dated 6-6-1991 passed by the said Secretary permission to contest the said elections was withdrawn. Section 14-A of the said Ordinance provides that "Except with the permission of Government, no person who was an office-bearer in a Society immediately before its taking over under section 6 shall be eligible to contest election under subsection (1) of section 14".
The contention of Mr. Mohammad Ali Saeed before us has been that once permission was granted to contest elections to the Managing Committee of the Society, the same cannot be withdrawn without notice to the petitioners. Although Mr. Khalid Ishaque has argued that what section 14-A of the said Ordinance envisages is a mere concession and not a right to contest the elections to the Managing Committee but even if the learned counsel is right we agree with the proposition advanced by Mr. Mohammad Ali Saeed that once permission is granted the same ripens into a right which cannot be taken away without service of a show-cause notice upon the petitioners and giving to them an opportunity of hearing. Such an action, no doubt, would be in violation of the principles of natural justice. However, we cannot be oblivious of the fact that serious allegations in respect of misappropriation of funds of the Society have been made against the petitioners and according to the report of the Chartered Accountants, M/s. R. G. Dossa Associates, Rs,5,702,171 remained unaccounted for by the office-bearers of the Society before its take-over. In Syed Mohiuddin v. M. N. Mangrio and 3 others (1983 CLC 491) a Division Bench of this out declined to exercise jurisdiction in favour of the petitioner when certain serious allegations of irregularities existed against him which still required investigation. In the present case also there being serious allegations D of mismanagement against the petitioners of which the petitioners are yet to be cleared, in our opinion, it would not be appropriate to exercise any discretion in favour of the petitioners in the present case.
18. In the result, we find no force in all the three petitions and the same are, therefore, dismissed.
The parties are left to bear their own costs.