1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.-- In this petition under Article 199 of the Constitution of ,Islamic Republic of Pakistan, following relief is sought:-
(a) Declaration that the arbitration proceedings under section 54 of the Cooperative Societies Act are void ab initio and declare further that the impugned order/judgment dated 12-8-1991 of the respondent No,2 is arbitrary, illegal, without lawful authority and without jurisdiction.
(b) Declaration that the petitioner is the lawful transferee of the 99 years leasehold rights of the plot in question.
(c) Direct the respondents Nos.5 and 6 to effect mutation/transfer of the said plot in their respective records in favour of the petitioner."
2. ' The relevant facts giving rise to the petition, as contained in the memo. Of petition are that the petitioner purchased plot of land through registered sale-deed, dated 4-10-1979 bearing No,36, Block Nos.4 and 5, measuring 1150 sq. Yards situated in K.D.A. Scheme No,VII, from Muhammad Umer son of Haji Ahmed and Abdul Sattar son of Haji Jumma. The plot was already leased out in favour of the sellers for 99 years by respondent No,6, K.D.A., vide registered lease deed, dated 22-6- 1976. The petitioner took over physical possession of the plot and constructed boundary walls and fixed iron gate. Before purchasing the said plot, the petitioner had published a notice in daily Morning News, dated 5-9-1979, inviting objections to the aforesaid transaction of sale but no objection was received till the completion of transaction. In November, 1982, the petitioner came to know that respondent No,4, Abdul Sattar son of Dawood, was claiming some rights in the said plot and had filed an Arbitration case against respondent No,5 Messrs Dawood Cooperative Housing Societies Ltd. And the matter was pending in revision before the Secretary, Labour and Cooperation, Department, Government of Sindh. The petitioner thereafter moved an application praying that she should be joined as party on the ground that she was a bona fide purchase for consideration without notice of the alleged rights and interest as claimed by the respondent No,4 Abdul Sattar son of Dawood. The application was allowed and the petitioner was joined as party in the proceedings. The revision application was allowed and the award announced by the Registrar's Nominee and the order passed by respondent No,3, Deputy Registrar, Cooperative Societies, were set aside and the case was remanded back to respondent No,3, for de novo proceedings. The petitioner has further averred that from the revision application the controversy in respect of said plot transpired as follows:-- "(i) The plot in question stood allotted by Messrs Dawood Cooperative Housing Society to one Mst.
3. Fareeda Muhammad Siddique in the early 50s.
(ii) By means of a joint application allegedly signed by Mst. Fareeda Muhammad Siddique and submitted by the respondent No,4 to Messrs Dawood. Cooperative Housing Societies Ltd. The said .Mst. Fareeda alleged to have surrendered all her rights in respect of the said plot to respondent No,4. The size of the plot was described to be 600 sq. Yards. Acting on this application Messrs Dawood Cooperative Housing Societies Ltd. Effected a transfer/mutation of the said plot in favour of the respondent. No,4.
(iii) Subsequently, Mst. Fareeda Muhammad Siddique addressed a letter to Messrs Dawood Cooperative Housing Societies Ltd. With the request that the said Society may write to the K.D.A. For issuance of the site plan to her in respect of the aforesaid plot. Whereupon she was informed by the said Society that she was not entitled to the issuance of the site plan on the ground that the plot had been transferred/mutated to respondent No,4 by the Managing Committee of the Society allegedly on her own application.
(iv) On receipt of the above reply from Messrs Dawood Cooperative Housing Societies Ltd. Mst.
4. Fareeda Muhammad Siddique immediately addressed a letter to Messrs Dawood Cooperative Housing Societies Ltd. Denying that she have never made any request to the said Society for transfer of the allotment of the said plot in favour of respondent No,4 or anybody else. It was further pointed out by her that she had already paid the entire dues in respect of the said plot and she requested that since the transfer/mutation had been obtained in favour of respondent No,4 by practising fraud the plot should be restored to her name.
(v) On coming to know from Mst. Fareeda Muhammad Siddiqe, the original allottee, that she had never transferred the plot to anyone Messrs Dawood Cooperative Housing Societies Ltd. Issued a show-cause notice dated 9-9-1974 to the respondent No,4 calling upon him to explain as to why the allotment made in his favour should not be cancelled and the rights of the original allottee be restored as the original allottee Mst. Fareeda Muhammad Siddique had denied having signed the joint application for transfer of the allotment in favour of respondent No,4.
(vi) The said show-cause notice dated 9-9-1974 was sent to respondent No,4 under the postal certificate dated 9-9-1974.
(vii) The respondent No,4 after having some sort of correspondence with Messrs Dawood Cooperative Housing Societies Ltd. And K.D.A. Filed an Arbitration Case No,104 of 1976 before the Deputy Registrar, Cooperative Societies, Karachi, the respondent No,3, who referred the matter to his nominee. It appears that the Registrar's nominee gave an Award in favour of respondent No,4 which was challenged by Messrs Dawood Cooperative Housing Societies Ltd. First by an appeal before the Deputy Registrar, Cooperative Societies, Karachi and then in revision before the Government of Sindh, Cooperation Department.
5. ' After the case was remanded to respondent No,3, Deputy Registrar, Cooperative Societies, he referred the same to his nominee and issued notices to the parties including petitioner. The Registrar's nominee, however, did not record any evidence and gave an award in favour of respondent No,4, by his order, dated 7-2-1984. It is contended by the petitioner that since allotment in favour of Mst. Fareeda the original allottee was restored by respondent No,5, it was incumbent on the Registrar's nominee to implead her as party in the arbitration proceedings and record her evidence which was not done. It is further pleaded that forgery of the signature of Mst. Fareeda, is glaring and can be ascertained by a mere comparison of her signature already available in the records of the said Society with the signature appearing on the alleged Joint Application. The Registrar's Nominee, however, failed to take note of this fact. It is further stated that objection was taken before the Registrar's Nominee by petitioner as well as respondent No,5 to the effect that 99 years' lease had already been executed by the K.D.A. And as such K.D.A. Was a necessary party. It was contended that execution of 99 years registered lease deed, had created an independent title flowing from K.D.A. And thus there was no question of cancelling an allotment. For this reason reference to the Registrar's Nominee under section 54 of the Cooperative Societies Act, was not warranted and the proceedings were coram non judice. The Registrar's Nominee, however, repelled the objections. Being aggrieved by the award of Registrar's Nominee, the respondent No,5 filed an appeal under section 54-A of the Cooperative Societies Act, before the Deputy Registrar, Cooperative Societies, Karachi. The petitioner submitted an application praying that she may be added as co-appellant with respondent No,5, but the request was not accepted and the application was dismissed. The appeal preferred by the respondent No,5, was dismissed and the award given by the Registrar's Nominee was maintained. The petitioner submitted a revision application against the order of Deputy Registrar, Cooperative Societies, before the Government of Sindh Cooperation Department, under section 64-A of the Cooperative Societies Act, 1925. The respondent No,5, also preferred revision application. Both the revision applications were heard together by the advisor to the Chief Minister, Sindh, for Cooperation and dismissed vide order, dated 12-8-1991.
6. The petitioner has submitted that the award given by the Registrar's Nominee under section 54 of the Cooperative Societies Act, 1925 and subsequent order in appeal and revision are illegal, without lawful authority and without jurisdiction.
7. ' It is alleged in the grounds contained in the memo of petition, that the respondent No,2, had no jurisdiction to hear revision application. However, this objection was given up during the course of arguments before us by the learned counsel for the petitioner. The main ground of attack is that after the execution of lease deed by the K.D.A. In favour of Muhammad Umer son of Haji Ahmed and Abdul Sattar son of Haji Juma, from whom the petitioner purchased the land, the dispute was not covered by section 54 of the Cooperative Societies Act, 1925 and the remedy available was, the filing of civil suit. In support of this contention, it has been urged that until and unless all the parties are before the Arbitrator, the arbitration proceedings are not valid and the arbitration proceedings under section 54 of the Sindh Cooperative Societies Act, 1925 are confined to the dispute between members and the Cooperative Societies. The K.D.A. Could not be joined in the arbitration proceedings and as such the recourse to the arbitration proceedings under section 54 of the Cooperative Societies Act, 1925, was not warranted in law.
8. ' We have heard Mr. Afsar Abidi, learned counsel for the petitioner and Mr. Abbas Ali learned A.A.-G.
9. For the respondents Nos.1, 2 and 3, Mr. Shafi Muhammadi, learned counsel for the respondent No,4 and Mr. Nazar Hussain Dhoon, learned counsel for the respondent No,6.
10. ' Mr. Afsar Abidi learned counsel for the petitioner has drawn our attention to the prayer made in the application under section 54 of the Cooperative Societies Act, 1925, made by respondent No,4, Abdul Sattar, which is as follows:-- "It is, therefore, requested that your honour may take cognizance of the matter referred to in this petition and call upon the respondents to show-cause, to produce all the documents in their possession or power, particularly the membership registers from 1971 onwards and all the account books, membership registers, transfer registers and the surrender registers from the year 1971 onwards, and pass appropriate orders for the restitution/ restoration of the said plot to the petitioner with special cost of this petition; declare null and void and cancel the lease deed, dated 23-6-1976 and sale-deed dated 4-10-1979 and the allotment in favour of (1) Umer and (2) Abdul Shakoor in respect of the Plot No,0-36, D.C.H.S. K.D.A. Scheme No,7, Karachi."
11. ' He has submitted that the prayer for cancellation of lease deed dated 23-6-1976 and sale-deed, dated 4-10-1979 is not within the competence of Registrar's Nominee and thus the reference under section 54 of the Cooperative Societies Act, was beyond the ambit of arbitration. He has further pointed out that in the objections filed on behalf of respondent No,5, before the Registrar's Nominee, it was specifically pleaded that the plot in question was transferred to Messrs Muhammad Umer son of Haji Ahmed and Abdul Shakoor son of Juma, who sold the plot to Mst.
12. Tabbasum, the petitioner and Mst. Tabbsum is not a member of a Society, therefore, no arbitration proceedings were warranted against non-member and the respondent No,4, Abdul Sattar cannot invoke the provisions under section 54 of the Cooperative Societies Act, and the remedy lies with the Civil Courts. Mr. Abidi has submitted that the Registrar's Nominee gave no findings on the objections raised on the point of jurisdiction. In support of his contention he has placed reliance on Division Bench judgment of this Court in the case of Azizuddin Ahmed v. Aziz Ahmed PLD 1959 Kar.
497. The learned A.A.-G. And learned counsel for K.D.A. Have adopted the arguments convassed by Mr. Afsar Abidi, learned counsel for the petitioner.
13. ' On the other hand Mr. Shafi Muhammadi, learned counsel for respondent No,4, has mainly addressed the arguments on facts. On the point of jurisdiction he has submitted that the petitioner appeared before the Registrar's Nominee and the appellate as well as revisional authorities, which conferred jurisdiction on them. He has further submitted that under section 54-A of the Cooperative Societies Act, 1925, it is provided that on application of any of the parties to award, the Registrar may exercise the jurisdiction to modify or, correct the award, amend the decision, set aside the same and can exercise other jurisdiction vested under section 54-A. According to learned counsel the expression any party to award, includes any person and consequently the appellate and revision authorities can exercise jurisdiction in respect of any person other than members of the Society. He has also placed reliance on the judgment of this Court reported as PLD 1959 Kar. 497 (supra).
14. ' Since both the parties have placed reliance on the above judgment of this Court, therefore, it would be appropriate to consider the facts in the cited case and the ratio of the judgment therein.
15. A perusal of the cited judgment shows that the facts of this case and the cited case are pari materia to each other and, therefore, the ratio of the said judgment is fully applicable to the present case.
16. ' In the above case a question was raised for decision in the similar circumstances, whether section 54 of the Cooperative Societies Act, was applicable. In the cited case the land was leased out by the Government of Pakistan, in favour of the petitioner for 99 years as it has been leased out in the present case by K.D.A. In favour of the persons from whom the petitioner purchased the land. After an elaborate discussion it was held that the dispute between the parties was not confined to the question of allotment and really affected the lease deed. The Government of Pakistan was, therefore, necessary party to the dispute and as such the dispute was not covered by section 54 of the Cooperative Societies Act. It was further held that under section 54 of the Bombay Cooperative Societies Act, two essential conditions must be fulfilled before its provisions can be invoked. The first is that it should relate to a dispute which touches the business of the society and the second that such a dispute must be between the society or its members or between the members or past members or those who claim through them. His Lordship Mr. Justice Wajihuddin, J. Held as follows:- "After careful consideration of the matter we are satisfied that no power is given to the Registrar to settle dispute between members of a society and person not members of it. The dispute in the present case is really between the petitioner, respondents Nos.1 and 2 and the Government of Pakistan and in our opinion could not be referred to arbitration under section 54 of Bombay Cooperative Societies Act. There is no doubt in our mind that the Registrar had no jurisdiction at all in the matter. On this view of the matter the conclusion of the learned Chief Commissioner that the dispute between the parties relates to the allotment of the plot of land and its area is not correct.
17. The allotment order having merged in the lease deed, the right of the petitioner can only be decided on its basis. As long as the lease deed stands the question of allotment has no importance at all and cannot be separated to give jurisdiction to the Registrar to refer the matter to arbitration."
18. ' For the foregoing reason, the order of the 'Chief Commissioner passed in revision was quashed.
19. The facts and the ratio of the cited judgment are on all fours to the facts and issues in the present petition, and therefore, respectfully following the principle laid down in the cited judgment, it is held that the respondent No,3, had no jurisdiction to refer the matter to Nominee for arbitration under section 54 of the Cooperative Societies Act, for the reason that petitioner Mst. Tabbsum, was not a member of the respondent No,5, Messrs Dawood Cooperative Housing Society and the K.D.A. Which had leased out the plot for 99 years to Messrs Muhammad Umer and Abdul Sattar, could not be a party to the arbitration proceedings and the Arbitrator had no jurisdiction to cancel the lease deed executed by K. D. A .
20. ' The petitioner is, therefore, allowed and writ of certiorari is issued. The arbitration proceedings under section 54 award announced by the Registrar's Nominee and the judgments by the Appellate and revision authorities are hereby quashed. The relief sought in paras. (b) and (c) of the prayer clause, cannot be granted by us in this petition for issuance of writ of certiorari and consequently the relief allowed is confined to para. (a) of the prayer clause. The parties are left to bear their own costs.