1. ' SHABBIR AHMED, J.---The questions involved in the above petitions are almost common, it is, therefore, considered proper to deal with and to dispose them of by this judgment.
2. ' The petitioners in above petitions have invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan for the following reliefs:--
(1) To declare that the respondent has no lawful authority, jurisdiction or power to pass and implement the impugned orders and may be struck off as without lawful authority and of no legal effect;
(2) To prohibit and restrain the respondents, their officers, subordinates and staff from acting, putting into effect, proceeded and implement the impugned orders, directions, call for and examine the record of the Society and in any manner, directly or indirectly interfere in the working and affairs of the Society.
3. ' In order to facilitate consideration of questions involved in these petitions, it would be proper to deal with Petition No,1353 of 1998 and the conclusion arrived on the basis of contentions raised on either side will be applied to both petitions and it might suffice explaining factual background to refer the facts, which are admitted and not disputed.
4. ' The petitioners are Cooperative Housing Society registered under the Cooperative Societies Act, 1925. The respondents are Government functionaries, who exercised powers conferred on them by law in relation to a Cooperative Institutions, subject, however, to the limitations and restrictions provided in law and the principles of natural justice, equity and good conscious which is the foundation of Cooperative spirit. Prior to the year 1982, respondent No,3 was the authority to deal with all the matters in relation to all Cooperative Societies, under the provisions of the Cooperative Societies Act, 1925 and the Rules framed thereunder, inter alia, inquiries, suppression and appointment of Administrators. In the year 1982, Sindh Cooperative Housing Authority Ordinance was promulgated whereby an Authority known as Sindh Housing Authority was created and the Government was delegated with the power to issue direction for inquiry in the affairs of the society in the manner provided in subsection (1) of section 6 thereof. Prior to the Ordinance of 1982, such powers were being exercised by the respondent No,3 in terms of section 43. The provisions of section 6(1) is as follows:-- "6. Assignment of function to the Authority.---(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."
5. ' It is the case of the petitioners that respondent No,3 without any lawful authority, power and justification issued impugned orders, whereby one Abdul Kazi, the respondent No,4 was appointed as Inquiry Officer in purported exercise of power under section 43(1) of the Cooperative Societies Act. It is the case of the petitioners that the mandatory requirements as contemplated under section 43 have neither been fulfilled nor are available and the impugned orders have been issued without any basis and foundation. The impugned orders do not indicate the reasons and justification and/or satisfaction to hold an enquiry against the petitioners-Society. The impugned orders have been assailed, inter alia, on the grounds that the impugned orders are bad in law, unlawful and without lawful authority. The respondent No,3 has no powers and lawful authority to issue any order and/or enquiry in relations to the Housing Societies which powers are vested by Legislative delegation, in the respondent No,2.
6. ' The impugned orders are similar in nature and to the same effect except bearing different dates and different signatories. In Petition No,1535 of 1998, the impugned order is dated 19-8-1989 passed by Mrs. Hameeda Akhtar, the Deputy Registrar, Cooperative. Societies, Karachi, whereas, in Petition No,177 of 2002, the impugned order is dated 9-1-2002 passed by Mr Shahbuddin Registrar, Cooperative Societies, Sindh. In former order, Abdul Latif Qazi, Government Cooperative Inspector, South was appointed as Inquiry Officer to hold inquiry into the constitution, working and financial conditions of the petitioners-Society, whereas, in later, one Mr. Hafeezullah Sheikh, Deputy Registrar, Cooperative Societies Audit, Karachi was appointed Inquiry Officer to hold inquiry into the constitution. Working and financial conditions of the petitioner-Society. One of the orders reads as follows:-- "In exercise of the powers conferred under section 43(1) of the Cooperative Societies Act, 1925, I, Shahabuddin, Registrar, Cooperative Societies, Sindh do hereby order to hold enquiry into the Constitution, working and financial conditions of K.M.C. United Workers Cooperative Housing Society Limited, Karachi under section 43 (1) of the cooperative Societies Act, 1925 and appoint Mr. Hafeezullah Shaikh, Deputy Registrar Cooperative Societies Audit, Karachi as Enquiry Officer with the directions to furnish his report within 30 days of the date of issue of this order."
7. ' In parawise comment, the respondents pleas were that the affairs of the societies are not being run and managed in accordance with the provisions of bye-laws, Cooperative Societies Act, 1925 and Cooperative Societies Rules, 1927 and various irregularities and violation of law have been pointed out in Government Audit Reports. As a consequence thereof, the order for holding inquiry under section 43(1) of the Cooperative Societies Act was issued by the 'respondent No,3 appointing respondent No,4 as Inquiry Officer and who has furnished his report on 24-2-1999. The order for inquiry was issued strictly in accordance with the section 43(1) of the Cooperative Societies Act, if the Society is aggrieved with the order, the matter should have been challenged before producing the record of the Society before Inquiry Officer who has completed the inquiry and furnished report as the petitions have become infructuous and liable to be dismissed in limine.
8. ' In later petition, the similar plea was taken that the holding of inquiry under section 43(1) of the Act is within the power of respondent No,1 who had exercised the same in the larger interest of the Society. The petition merits no consideration and deserves to be dismissed in limine.
9. ' We have heard Mr. S. Irteza Hussain Zaidi, learned counsel for the petitioners and Mr. Muhammad Sarwar Khan, Additional Advocate-General on behalf of the respondents.
10. ' The issue involved in the petitions is based on the interpretation of section 43 of the Cooperative Societies Act, contained in Chapter VII with regard to the inspection of affairs which reads as follows:-- "43. Inquiry by Registrar.---(1) The Registrar may of his own motion by himself or by a person duly authorized by him in writing in this behalf hold an inquiry into the constitution, working and financial condition of a society.
(2) The Registrar shall hold such an inquiry as is contemplated in subsection (1) of this section:--
(a) on the requisition of Society, duly authorized by rules made in this behalf to make such requisition, in respect of one of its members, such member being itself a Society,
(b) on the application of a majority of the Committee of the Society,
(c) on the application of 1/3rd of the members of the Society.
(3) All officers and members of the Society whose affairs are investigated shall furnish such information in their possession in regard to the affairs of the Society as the Registrar or the person authorized by the Registrar may require.
(4) The result of any inquiry under this section shall be communicated to the Society whose affairs have been investigated.
11. ' It is manifest from the perusal of subsections (1) and (2) thereof that Registrar may, of his own motion by himself or by a person duly authorized by him in writing in this behalf, hold an inquiry into the constitution, working and financial condition of a society, whereas under subsection (2), the Registrar shall hold such an inquiry as is contemplated in subsection (1) on approach through
(a) the requisition of society, duly authorised by rules made in this behalf to make such requisition, in respect of one of its members, such member being itself a Society; (b) on the application of a majority of the Committee of the Society; (c) on the application of 1/3rd of the members of the Society.
12. ' Learned counsel for the petitioner's contention was that exercise of jurisdiction by the Registrar in terms of subsection (1) of section 43 is conditioned with the requirement of subsection (2) that such an inquiry should be on the basis of the requisition of society, on the application of a majority of the Committee of the Society and on the application of 1/3rd of the members of the Society. The Registrar has no power to initiate inquiry on his own motion and to support such contention, he referred the view taken by one of us (Mr. Justice Shabbir Ahmed) in Suit No,1646 of 1997 (KMC Officers Cooperative Housing Society v. Government of Sindh and others) by order dated 18-12- 1998, wherein the inquiry initiated on the behest of Secretary to the Chief Minister was struck down for the reason that the inquiry initiated was neither 'on his own motion' by Registrar nor on the behest of society or by majority of Committee of society or by 1/3rd members of the society.
13. ' Learned counsel for the petitioners has also referred the view taken by the Division Bench of this Court in Civil Petition No,D-323 of 2000 (KAD Officers Cooperative Housing Society Ltd., v. The Deputy Registrar, Cooperative Housing Societies and another) by order dated 1-12-2000, wherein, inter alia, the contention raised was that the inquiry into the constitution, working and financial conditions can be held upon a request to the Registrar made in terms of clauses (a) and (c) of subsection (2) of section 43. The view taken by the Bench was that power available to the Registrar under section 43(1) of the Cooperative Housing Societies Act is exercisable only when he is approached by the persons mentioned in subsection (2) i.e. The Society itself, (in case of an inquiry against a Union of Cooperative Societies) a majority of the committee of the Society or at least 1/3rd members of the Society and the impugned order with regard to the initiation of the inquiry was struck down.
14. ' Conversely, Mr. Muhammad Sarwar Khan, learned Additional Advocate General, representing the respondents maintained that the Registrar in terms of subsection (1), can order for inquiry on his own motion as well as under subsection (2) on approach by one of persons classified therein i.e.
(a) on requisition of a Society, (b) on application of a majority of the Committee of the Society, (c) on the application of 1/3rd of the members of the Society. His further contention was that power to hold inquiry by himself or by a person duly authorized by him in writing to hold inquiry into the constitution, working and financial condition of a Society of his own motion is an independent power, whereas, power to hold inquiry on the approach of the persons mentioned in subsection (2) are two independent provisions and it is wrong to contend that power exercisable under section 43(1) is conditioned with the exigencies of subsection (2) and to support his contention, he referred the pronouncement by the Supreme Court in Pir Illahi Bukhsh Co-operative Societies Ltd., Karachi and others 1968 SCM R 423. The facts of the case are short. The Registrar had passed an order purporting to be under subsection (1) of section 43 of the Cooperative Societies Act for an inquiry into the financial position, constitution and working of the Society for the reasons stated in the order that as this office has received various complaints and representations from the members of the Society against the Managing Committee. The order was challenged by a writ petition before this Court on the ground that because of the mention of complaints, the order fell to be made under subsection (2) aforesaid, or not at all, was repelled by the High Court, holding that it was a suo motu order and the High Court found no mala fides in the order_. The leave to appeal was refused by the apex Court with the following observations:-- "It seems clear enough that none of the conditions specified In subsection (2) of section 43 was in existence when the order in question was made, so that the Registrar did not act under any obligation such as that created by this subsection. His action, therefore, clearly lay under subsection (1) i.e. He acted in exercise of the discretion conferred by that subsection, and it does not translate his action to the second subsection that he was moved so to act by reason of complaints reaching him of maladministration of the Society's affairs."
15. ' We are of the view that Registrar in terms of subsection (1) of section 43 may on his own motion can hold an inquiry by himself into the constitution, working and financial condition of the Society or through a person duly authorized by him and in ternis of subsection (2) he can B exercise such powers when he is approached by the persons mentioned in subsection (2) i.e. The society itself in case of an inquiry against the Union of the Societies, a majority of the Committee of the Society or at least 1/3rd members of the society.
16. ' Apparently, in the instant case, the power for holding the inquiry into the constitution, working and financial conditions of the petitioners societies is not in terms of subsection (2) as none of the persons classified therein had approached the Registrar for holding of the inquiry into the constitution, working and financial conditions.
17. ' We have reproduced the impugned orders, except variance in date, the delegatee for the' inquiry and signatory, rest of the contents of the order are common in both orders. It appears that cyclostyle forms have been filled.
18. 'No doubt, the Registrar of his own is empowered to hold inquiry under the provisions of subsection
(1) of section 43 ibid but such power is exercisable on the basis of complaint alleging the mismanagement or running of the Society against its constitution or utilization of its finances other than the purpose of the Society on subjective assessment of such allegations. An order for holding an enquiry under suo motu power by Registrar bereft of reasons or material warranting the exercise of such powers in terms of section 43(1) would be a colourable exercise of the power against the mandate and in excess of jurisdiction. The case of P.I.B. Cooperative Society is distinguishable with the present case. In the said case, the inquiry was initiated by Registrar on his own motion on the basis of various complaints and representations from the members of the Society against the Managing Committee, whereas, in the present case, the impugned orders for holding the inquiries in the affairs of the petitioners societies are lacking with such ground.
19. Therefore, we are of the view that the exercise of powers in terms of section 43 in absence of any material would be an action in excess of authority and liable to be struck down.
20. ' As a consequence thereof, we struck down the orders and the subsequent action. However, the respondents would be at liberty to initiate inquiry provided sufficient material is available for initiation of suo motu powers.
21. ' With the above observations, the petitions are disposed of with no order as to costs.