MUSLIMABAD COOPERATIVE HOUSING SOCIETY LTD. through Secretary. vs Mrs. SIDDIQA FAIZ and others

' ABDUL HAMEED DOGAR J.---Petitioner seeks leave to appeal against the judgment dated 27-10- 2004 of a learned Division Bench of the High Court of Sindh, Karachi, whereby Constitutional Petition No,D-308 of 1991 filed by Faiz Ahmed respondent No,1 (since dead) was allowed in the following manner:-- "The petition is allowed to the extent that the impugned order of Deputy Registrar Cooperative Societies dated 17-1-1991 is set aside on the ground of not falling within the scope of section 54-A or section 56 of the Cooperative Societies Act. However, as far as the claim of the petitioner against Mst. Rabia and Mst. Noorjehan wife and daughter of Abdul Ghani the alleged contenmors in Misc.

No,4566/95 are concerned, it is ordered that all disputes between the petitioner and the aforesaid Mst. Rabia and Mst. Noorjehan wife and daughter of Abdul Ghani be decided in Civil Suit No,794/99.

The petition along with listed application stands disposed of."

2. Briefly, stated the facts giving rise to the filing of instant petition are that Faiz Ahmed deceased (predecessor-in-interest of respondent No,1(a)(b) being a member of petitioner's society was owner of a Bungalow constructed on Plot No,62 situated in the Society. In front of the said Bungalow there was provision of 100 feet wide road. Respondent No,1 Faiz Ahmed had the access of entrance in his house through said road. Through revised plan, the width of the road was reduced to 40 ft and another Plot No,61-A was carved out. Feeling aggrieved respondent No,1 apart from addressing letters to Government officials, also raised his claim with respondent No,2 stating that the carving out of the plot was illegal and the land becoming available owing to above mentioned reduction be transferred to him on account of preferential alignment rights.

3. The claim of respondent No,1 was registered as ABN Suit No,50 of 1989 and notice was issued to petitioner. Shabbir Ahmad Jumani deceased respondent No,3 (predecessor in interest of respondent No,3(a to e) also made an application under section 54 of the Co-operative Societies Act, 1925 (hereinafter referred to as 'the Act') claiming the right of allotment of newly carved out.

Plot No,61-A. This application was registered as ABN Suit No,47 of 1990. Both the matters were referred to a panel of Arbitrators comprising of nominees of Registrar, petitioner and respondent No, 1 . The Arbitrators vide unanimous Award dated 24-6-1990, directed the petitioner to allot the area of the newly carved out plot to respondent No,1 on account of his alignment and easement rights and at the same time directed that another residential plot be allotted to respondent No,3 subject to availability on priority basis. The said award was challenged by respondent No,1 and respondent No,3 before respondent No,2 Deputy Registrar, Co-operative Housing Societies through separate applications under section 54 of the Act. Respondent No,2 Deputy Registrar vide order dated 17-1-1991, disposed of both the applications in the following terms:- "The justice, equity and fair play demand that the available plot be allotted to applicant Shabbir Ahmed Jumani whose right of allotment has been admitted by the Board of Arbitrators in the impugned Award.

' I, therefore, modify the impugned Award to the extent that the newly carved Plot No,61-A be allotted to Mr. Shabbir Ahmed Jumani and Mr. Faiz Ahmed owner of Plot No,62 is also allowed to use his same rear passage of 10 feet wide from the said Plot No,61-A and to redress his grievance."

4. Feeling aggrieved, respondent Faiz Ahmed (since deceased) invoked the jurisdiction of learned High Court of Sindh through Constitutional Petition No,D-308 of 1991 which was disposed of vide impugned judgment as stated above.

5. We have heard Mr. Suleman Habibullah, learned Advocate-onRecord for the petitioner and Mr. Habib-ur-Rehman, learned Advocate Supreme Court for respondents Nos.1 to (a and b) and gone through the record and proceedings of the case in minute particulars.

6_ Learned counsel for the petitioner vehemently contended that learned Division Bench of High Court has failed to appreciate the fact that constitution petition is not maintainable against order passed under section 54-A when alternate remedy under section 56 of the Act is available. He further contended that Registrar Co-operative Societies has powers under section 54-A of the Act to modify, set aside, amend and vary an award made by the Arbitrators under section 54 of the Act.

7. On the other hand learned counsel for respondent No,1 controverted the above contentions and contended that alternate remedy ought to be equally efficacious and the High Court is not divested of jurisdiction merely because such remedy exists. He further contended that when the impugned order is claimed to be without jurisdiction the remedy by way of constitutional petition rather than an appeal in the same hierarchy would be more efficacious. According to him it is on record that respondent No,3 being the Honorary Secretary of the society was representing the petitioner society and had the occasion to nominate an Arbitrator on its behalf, rather he consented to the trial of the cases together and participated in the proceedings before the panel of Arbitrators. Afterthought and belated objection that the matter was referred to arbitration without his consent is thus without any force.

8. The controversy involved in ABN Suits Nos.50/1989 and 47/1990 was similar as such the matters were referred to panel of Arbitrators consisting of nominees of Registrar, respondent No,1 and the petitioner. Both the claims were considered by the Arbitrators and vide unanimous award dated 24-6-1990 directed the petitioner to allot the area of newly carved out plot to the respondent No,1 on account of his alignment and easement right and also directed that a residential plot be allotted to respondent No,3 whenever it becomes available on priority basis. This award was challenged by the petitioner and respondent No,3 before respondent No,2 through separate applications and both the application were disposed of on 17-1-1991 whereby it was held that as no Arbitrator was appointed by the applicant in case No,47/1990 the other two Arbitrators were that of petitioner and respondent No,1, therefore, they had no authority to decide ABN Suit No,47/1990 as such this case is presumed to be decided by sole Arbitrator i,e, Registrar's Nominee. On perusal of record it is evident that respondent No,3 himself was representing the petitioner and had the occasion to nominate an Arbitrator but he failed to do so. The Arbitrators were lawfully empowered to decide both cases and the subsequent objection that the matter was referred to arbitration without his consent is of no consequence. Admittedly under section 56 of the Act an appeal against the award of arbitrator lay before the Registrar. It would be appropriate to reproduce section 56 as under:- "56. Appeal against award of arbitrator. Any party aggrieved by any decision of the Registrar's nominee made under section 54 or subsection (3) of section 54-A or an order passed under section 55 by the Registrar's nominee or arbitrators may within one month of the date of the award or order appeal to the Registrar and the Registrar shall decide the appeal."

' The above provision of law very candidly stipulates that the Award of the Registrar's nominee under section 54 or section 54-A(iii) or an passed order by the Arbitrators under section 55 attaching a particular property can be questioned in appeal before Registrar. It is provided in section 54-A of the Act that no order shall be made unless the Registrar is of the opinion that:- "(i) an objection to the legality of the award is apparent on the face of it, or

(ii) the award has been vitiated in consequence of corruption or misconduct on the part of the arbitrators or

(iii) the award is in any way perverse."

Learned counsel for the petitioner has failed to point out that the award in question is hit by any of the above conditions. Even otherwise in our view the order dated 17-1-1991 passed by Deputy Registrar clearly falls beyond the scope of section 54-A of the Act, as such was rightly set aside by the learned High Court in exercise of writ jurisdiction vide impugned judgment. On the aspect whether writ lies before the High Court when alternate and efficacious remedy is available, it would be appropriate to refer to the case of The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan and others (PLD 1972 SC 279). It has been held therein 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 jurisdiction. When 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. Moreover, learned counsel for the petitioner could not point out any misreading or non-reading in the impugned judgment, which is accordingly maintained. The petition being devoid of force is dismissed and leave to appeal refused.