' MAMOON KAZI, J.---The facts of the case are that members of Ex-Servicemen Cooperative Housing Society Limited, Karachi had made several complaints against the ex-management of the said Society with the result that an enquiry under section 43 of the Cooperative Societies Act, 1925 was ordered to be conducted by Mr. Mumtaz Ahmed Khundavi, Assistant Registrar, Cooperative Societies. The Enquiry Officer after completion of the enquiry reported many irregularities and illegalities committed by the previous management of the Society. He also reported defalcations made by the ex-Managing Committee of the Society. Consequently, the matter was dealt with by Mr. Syed Sirajuddin, Deputy Registrar, Cooperative Societies, respondent No.2 who purporting to act under section 50-A of the Cooperative Societies Act assessed the damages as Rs.1,25,75,443 and he further ordered that the said amount be recovered from the members of the said Managing Committee together with interest at 12 per cent. until the satisfaction of the claim. It may be further pointed out that by the said order four persons were found liable for the said defalcations which did not include the petitioner. However, an order dated 1-3-1988 was issued by the Assistant Registrar, Cooperative Societies (Recoveries) purportedly under section 85 of the Land Revenue Act, 1%7 whereby besides the 'persons found to be liable for the said defalcations the immovable properties of some other persons were also ordered to be attached, including that of the petitioner.
The said order shows that the petitioner had agreed to sell certain properties to the said Society and had received an advance of Rs.69,44,000 from them.
2. Counter-affidavits have been filed on behalf of the Registrar, Cooperative Societies and also by respondent No.2 wherein the petitioner has been shown to have received millions of rupees for the sale of the lands to the Society of which he is now the Honorary Secretary. However, admittedly, the petitioner was not an office-bearer of the Society at the time when the alleged defalcations are said to have been committed.
3. Mr. Muhammad Sharif Khattak, learned counsel for the petitioner has made a two-fold contention before us. Firstly, according to him, the facts of the case did not justify an action under section 50-A of the Cooperative.Societies Act and therefore, the subsequent order dated 1-3-1988 whereby the properties belonging to the petitioner have been ordered to be attached were also equally unjustified besides being without jurisdiction. The second contention of Mr. Khattak has been that the petitioner was neither a party to the proceedings before the Assistant Registrar, Cooperative Societies when he had purported to act under section 50-A of the Cooperative Societies Act nor any show-cause notice was given to the petitioner before taking the impugned action against him therefore, the said action is illegal. Mr. Syed Sarfraz Ahmed, learned Addl. A.-G. and Mr. Akhtar Hussain, learned counsel for respondent No.2 have, on the other hand, fully supported the impugned order.
4. So far as the first contention of Mr. Muhammad Sharif Khattak is concerned, the learned counsel has vehemently argued that admittedly the said Society had only been superseded by the Registrar under section 43 and the Society had not been wound up. Section 50-A of the Cooperative Societies Act provides as follows:-- "50-A. Power of Registrar to assess damage against delinquent promoters. etc.--(1) Where, in the course of the winding up of a society it appears that any person who has taken part in the orgahization or management of the society or any past or present chairman, secretary, member of the Managing Committee or officer of the society has misapplied or retained or become liable or accountable for any money or property of the society or has been guilty of misfeasance or breach of trust in relation to the society, or, where the society is acting under subsection (4) of section 34 as agent of the financing bank, has made any payment contrary to the instructions of the financing bank the Registrar may, on the application of the liquidator or of any creditor or contributory, examine into the conduct of such person and make an order requiring him to repay or restore the money or property or any part thereof respectively with interest or return at such rate as the Registrar thinks just or to contribute such sum to the assets of the society or of the financing bank by way of compensation in regard to the misapplication, retainer, misfeasance or breach of trust as the Registrar thinks just.
(2) This section shall apply notwithstanding that the act is one for which the offender may be criminally responsible."
' Perusal of the above provisions no doubt indicates that action can be taken under section 50-A only in case of winding up of a society, however, Mr. Syed Sarfraz Ahmed has invited our attention to section 44-B of the Coopertive Societies Act which provides as follows:-- "44-B. Power of Registrar to exercise powers under section 50-A in the course of an inquiry or inspection.---Where, in the course of any inquiry under section 43 or an inspection under section 44 or section 44-A it appears to the Registrar that there exists any such ground as is specified in section 50-A, he may, of his own motion or on the application of the person authorised by him under section 43, or section 44, or section 44-A, exercise the powers specified in section 50-A."
' Admittedly, the Assistant Registrar had proceeded against the society under section 43 of the Cooperative Societies Act. Consequently, if any order was passed by him as contemplated by section 50-A of the said Act, prima facie the learned Assistant Registrar appears to have acted within his power exercised by him by virtue of section 44-B. Consequently, we are not impressed by the first contention of Mr. Sharif Khattak.
5. We, however, find that the second contention of Mr. Khattak is more forceful. The order passed by the Deputy Registrar, Cooperative Societies dated 29-12-1987 shows that neither the petitioner was a party thereto nor any reference was made therein to the petitioner. The said order shows that four persons who were the previous office-bearers of the Managing Committee of the said Society were held to be responsible for the said irregularities and therefore, they were ordered to pay damages to the Society amounting to Rs.1,25,75,443 with 12 per cent. interest thereon. However, vide order dated 1-3-1988 purportedly passed under section 85 of the Land Revenue Act, 1967, the petitioner has been shown as one of the persons whose properties have been ordered to be attached alongwith the ex-members of the Managing Committee. Neither it is the case of the respondents in the counter-affidavit nor it is the contention put forth either by the learned Addl. A.- G. or Mr. Akhtar Hussain that the petitioner had been served with a show-cause notice before issuance of the said order dated 1-3-1988. Contrary to that the petitioner was neither made a party in the proceedings before the learned Deputy Registrar purportedly held by him under section 50-A of the Cooperative Societies Act nor any opportunity of hearing was given to the petitioner prior to the issuance of the said order. The action taken against the petitioner, therefore, in our opinion, is clearly violative of the principles of natural justice embodied in the maxim audi alteram partem.
6. The learned Addl. A.-G. and Mr. Akhtar Hussain have raised two preliminary objections before us.
Firstly, according to them, the petition suffers from laches and secondly, the petitioner has not exhausted all the remedies available to him under the Cooperative Societies Act. So far as the first contention is concerned, no doubt, the order attaching the property of the petitioner was issued on 1-3-1988 and the present petition has been filed in 1991, but be that as it may, this Court can always grant relief in appropriate cases notwithstanding the fact that the petitioner has not approached the Court promptly. The relief which is granted by us under Article 199 is purely a discretionary relief which can always be granted in appropriate cases. In the present case, the order by which the property of the petitioner has been attached provides a continuous cause of action to the petitioner since his property continues to remain under attachment after the order was served upon the petitioner. Consequently, if the order is without lawful authority this Court can always interfere while exercising jurisdiction under Article 199 of the Constitution. We, therefore, find no force in the first contention of the learned counsel.
7. Turning to the second contention of the learned counsel, it can be pointed out that even if we accept the contention that other remedies are available to the petitioner under the Cooperative Societies Act, the basic question would be whether the said remedies are equally adequate and efficacious remedies. In the case of The Murree Brewery Co. Ltd. v. Pakistan PLD 1972 SC 279 it was held as under:-- "The petitioner challenged the very jurisdiction of the Capital Development Authority to make the impugned acquisition under the Ordinance. If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under section 36 would have been an exercise in futility. The rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jursidiction. One of the well recognised exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority. Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party. The appeal under section 36 of the Ordinance is limited to a matter which is within the jurisdiction of the authority concerned and the scope of the Ordinance. A question of jurisdiction is a matter for Review, which is based not on the merits but on the legality of the lower Authority's proceedings."
8. Since we have held that the order passed by the respondent No.1 is without jurisdiction being in violation of the principles of natural justice, in our view, the objection raised by the learned counsel for the respondents, in any case, can be of no avail to them. We, therefore, do not fmd it necessary to advert to the relevant provisions of the Cooperative Societies Act on the basis of which the said objection has been raised by the learned counsel.
9. In the result, we accept this petition by holding that the order issued by respondent No.1 dated 1- 3-1988 is without jurisdiction. However, if the respondents intend to take appropriate action against the petitioner they would be at liberty to proceed against him after giving him a proper show- cause notice in this regard. So far as the rest of the order is concerned, we may clarify that it will continue to operate against the persons named therein since they have not impugned the said order before us. The parties are left to bear their own costs.