' The only question which falls for determination in this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is as to whether it is permissible to pass repeated orders under section 44-E of the Cooperative Societies Act, 1925.
2. The circumstances in which this question has arisen are that the petitioner was a member and Director of Pasban Cooperative Finance Corporation Ltd., a society registered under the Cooperative Societies Act, 1925 which has since been declared as undesirable cooperative society under the provisions of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 (Act I of 1993).
3. On 21st October, 1991, an order under section 44-E (ii) of the Cooperative Societies Act, 1925 was passed by the Registrar attaching all the assets of the petitioner. That order was to remain in field for a period of one year as provided by section 44-E (2) of the Cooperative Societies Act, 1925. On the expiry of that period, respondent No,1 again on 21-10-1992 proceeded to pass a fresh order in exactly the same terms. The third order in the series was passed on 18-10-1993 by respondent No,1, while an order has been passed during the pendency of this petition also.
4. Syed Najaf Hussain Shah, learned counsel for the petitioner has emphasized that according to section 44-E of the Cooperative Societies Act, 1925 itself that an order passed under clause (i) can remain in force only for one year and as such respondent cannot under the guise of passing a fresh order, extend the life of the first order.
5. Mr. Muhammad Ilyas Khan, learned counsel for respondents has, on the other hand, referred to the provisions of General Clauses Act, 1897 to contend that a statutory functionary is entitled to exercise the power vesting in him from time to time. Reliance has been placed upon Mst. Nasim Fatima v. Government of West Pakistan and another PLD 1967 Lah. 103 and the pronouncement of the Indian Supreme Court, in Gour Chandra Rout and another v. The Public Prosecutor Cuttack AIR 1963 SC 1198 in support of this contention.
6. Section 44-E of the Cooperative Societies Act which falls for consideration in the present case reads as under:--- "Special measures.---(1) If it appears to the Registrar that in the interest of the members of a society or its depositors it is necessary that the moneys received and other assets of the society, whether held in the name of that society or any other persons, are protected and preserved, the Registrar or any other person authorised by him, may without prejudice to any other action or proceedings which may be taken against the society under any law for the time being in force---
(i) enter and search any premises and seize books of account or other documents or records;
(ii) take in his custody all moneys, cash securities, title deeds, properties, whether movable or immovable belonging to such society including those being held on behalf of or in the name of any officer, employee or agent of the society, beneficiary or transferee of such society or other person or their dependents;
(iii) direct any bank, financial institution or person to freeze all moneys deposited with it or him on behalf of the society or of any officer, employee, agent, beneficiary or transferee of such society;
(iv) take all necessary steps and measures for identifying assets and property of the society and for realization, protection and preservation thereof;
(v) restrain by society or officer, employee, agent, beneficiary or transferee of such society or any person deriving or claiming title through any of them from alienating, transferring, selling, assigning disposing of or parting with possession of any property movable or immovable or deriving any benefit, rent or income there form;.
(vi) make such order for realization, protection and preservation of deposits of money and other assets and property of the society as he may deem fit.
2. The order passed under subsection (1), may at any time be withdrawn and shall not remain in force for more than one year."
7. In view of the clear mandate contained in subsection (2) of section 44-E it cannot be doubted that an order passed under subsection (1) cannot remain in force beyond one year. However, respondent's learned counsel has contended that though respondent cannot extend life of order passed by him but there was nothing in the Act which takes away the power of the Registrar to pass a fresh order.
8. I am unable to agree with the learned counsel for the respondents. If his contention is accepted, it would clearly defeat the legislative intent which manifestly is that an order passed under section 44-E (2) of the Cooperative Societies Act, 1925 should cease to operate on the expiry of the period of one year. It would be anamolous to hold that though the life of such an order cannot be extended yet the same result can be achieved by passing a fresh order. It is axiomatic that what cannot be done directly should not be ordered to be done directly. It is age-old legal maxim which holds true even today.
'Quindio liquid prohibitory ET omen piqued delineator ad elude (that when anything is prohibited, everything by which it is reached is also prohibited. That which cannot be done directly cannot be done indirectly).
9. Even on consideration of the nature of the provision, it is obvious that stand taken by the respondents is untenable. An order under section 44-E (1) is interim and interlocutory in nature and as is obvious from the bare reading of the provision itself. The object in passing such an order is to protect and preserve the property and assets of the society pending further action under the law.
Such an order cannot by its very nature be perpetual or ever-lasing. On the other hand, the law clearly contemplates that during the period of one year, the respondents must take a final decision.
10. The decided cases also lend support to this conclusion. In Federation of Pakistan v. United Sugar Mills Ltd. PLD 1977 SC 397 it was contended before the Supreme Court of Pakistan that even though the period of six months for operation of stay order under Article 199 of the Constitution had expired, the Court could issue a fresh order as there was no bar in the Constitution for doing so. This argument was repelled by the Supreme Court of Pakistan by observing that the course suggested would defeat intention of the. Legislature. Relevant observations appearing at page 407 may be reproduced with advantage: "Once we reach that conclusion and were to hold at the same time that the High Court will also have the power to repeat the order for interim relief after the expiry of the previous order, it will reduce the Constitutional provision of clause (4-A) otherwise competently made to a complete farce."
11. In Noor Silk Mills Ltd. v. Investment Corporation of Pakistan and another 1984 CLC 2048, it was ruled that after the expiry of the abovementioned period, under Order 39, rule 4-A of C.P.C. No temporary injunction can be issued afresh as it would amount to negating the legislative intent.
12. This question came up for hearing before the Supreme Court in another form in the case of The Collector of Customs, Karachi v. M/s. New Electronics (Pvt.) Limited PLD 1994 SC 363. Under Article 89 of the Constitution of Islamic Republic of Pakistan, 1973, an Ordinance issued by the President can remain in force for a period of four months at the maximum. It was contended before the Supreme Court that as there was no bar in the Constitution for reissuing an Ordinance, a fresh Ordinance can be promulgated after the expiry of period of four months from the date of the issuance of first Ordinance. This contention was repelled by the Supreme Court of Pakistan and it was held that under the Constitution while exercising power under Article 89 President cannot re- enact the same Ordinance. It was observed that though there may not be any specific bar in the Constitution but the issuance of fresh Ordinance on the expiry of the first Ordinance would clearly defeat the Constitution intent. This ratio dearly applies to the present case also. Reference may also be made to the judgment of the Indian Supreme Court in Lachmi Narain etc. v. Union of India and others AIR 1976 SC 714 where on consideration of various provisions of the Act, it was held by the Supreme Court of India that the power given section 2 of Bengal Finance (Sales Tax) Act, 1941 exhausts once it is exercised and it cannot be repeatedly or subsequently availed of.
13. Reliance of the learned counsel for the respondents on section 13 of the West Pakistan General Clauses Act is, of no avail as the General Clauses Act embodies in itself the rules of interpretation which apply only when there is nothing to the contrary in the enactment itself. In United Sugar Mills' case (supra), the Supreme Court of Pakistan while considering this aspect observed that the provisions of section 13 of the West Pakistan General Clauses Act were subject to the intention of the law-maker to the contrary and could not be made use of whether contrary intent is manifestly from the law. It is also to be noted that in some laws it is specifically provided that the power may be exercised by the authorities from time to time and even beyond the period originally fixed. One of such laws is section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 which contemplates the passing of successive orders of detention on the expiry of the period prescribed in the first order.
14. This aspect of the matter was taken notice of by the Supreme Court in United Sugar Mills' case supra at page 407: "It is also important to point out that whenever the intention is to enable an authority or for that matter a Court to repeat an order after the expiry of an earlier like order that is generally done by express terms so as to put matter beyond doubt. For instance the proviso to Article 200 of the Constitution providing for the transfer of a High Court Judge read as follows: "Provided that---such consent or consulation---shall not be necessary if such transfer is for a period not exceeding one year at a time "
' Similarly section 122 of the Civil Procedure Code, 1908 (Act V of 1908) concerning the rule-making power of the High Court provides:--- "The High Courts may, from time to time, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence----"
' Likewise, section 69 of the Registration Act, 1908 (Act VI of 1908) inter alia empowers the Inspector- General to frame rules, which for the material purpose reads:- "The Inspector-General have the power from time to time to make rules consistent with this Act---- ".
' Reference could also be made to the rule-making power of the Provincial Governments in section 50 of the Punjab Laws Act (Act IV of 1872) which is in these terms:- "The Provincial Government may from time to time make rules as to matters mentioned in sections 43 to 48 inclusive."
' In the absence of any provision in the Cooperative Societies Act, 1925, it is difficult to sustain the contention raised by the learned counsel for respondents. For these reasons, his reliance on the case of Mst, Nasim Fatima v. Government of West Pakistan PLD 1967 Lah. 103 is not apt. The other case relied upon by him namely Gour Chandra Rout and another v. The Public Prosecutor Cuttack AIR 1963 SC 1198 has no applicability.
15. From the above discussion, it follows that even though there may not be specific bar in the Cooperative Societies Act, 1925 for passing a fresh order under section 44-E (i) of the Act but yet as the Legislature in subsection (2) section 44-E had specifically provided that no such order can remain in force beyond the period of one year, passing of a fresh order in same bargain would clearly be an negation of the legislative intent and, cannot, therefore, be allowed.
' In view of what has been stated above, this petition is allowed and the impugned order dated 21- 10-1994 is declared to be without lawful authority and of no legal effect with no order as to costs.