BROTHERS SUGAR MILLS LIMITED and others vs PUNJAB COOPERATIVE BOARD

ORDER

' This order shall decide the question, about the maintainability of the writ petition involved in the following cases': ' (1) W.P. No.24049 of 1998, (2) W.P. No.8567 of 2000, (3) W.P. No.3725 of 2007, (4) W.P. No.12434 of 2009, (5) W.P. No.13672 of 2009, (6) W.P. No.16847 of 2009, (7) W.P. No.16873 of 2009, (8) W.P. No.16875 of 2009, (9) W.P. No.16874 of 2009, (10) W.P. No.15371 of 2009, (11) W.P. No.18075 of 2009, (12) W.P.

No.18811 of 2009, (13) W.P.No.18785 of 2009, (14) Misc. Petition No.15-C of 96, (15) W.P. No.17678 of 2009, (16) W.P. No.18101 of 2009, (17) W.P. No.18102 of 2009, (18) W.P. No.19792 of 2009.

' By means of an order dated 17-6-2009 passed in the noted writ petition, a Division Bench of this Court while dealing/considering the question of maintainability of the constitution petition filed against the order of a Cooperative Judge concluded that the Honourable Supreme Court in judgment reported as The Province of Punjab and another v. National Industrial Cooperative Credit Corporation and another (2000 SC 567) has observed that the remedy under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is available against such order, but the judgments of two Division Benches of this Court are not in consonance thereof, therefore, for an authoritative pronouncement on the subject, it was held vide order dated 17-6-2009 as under::--- "---- Two judgments of the Division Bench of this Court, supra, prima facie, cannot be reconciled with the observations of the honourable Supreme Court, reproduced hereinabove. In this view of the matter, the question of maintainability of the Constitutional Petitions arising from the order

(s) of the learned Cooperative Judge needs to be revisited.

' For the resolution of the conflicting view, this petition is referred to the honourable Chief Justice of this Court to pass the appropriate orders for the constitution of the Larger Bench to proceed further in the matter for authoritative pronouncement of judgment."

2. The learned counsel for all the petitioners, Including Mr. Muhammad Ilyas Khan, the learned counsel for the Punjab Cooperative Board for Liquidation, have unequivocally stated that the constitution petition against the order of the Cooperative Judge is maintainable; in support of their submission, they have relied upon dictum of the honourable Supreme Court in 2000 SCM R 567 which reads as below:--- "If the order under section 13 (read with section 26) is passed in favour of a Cooperative Society, the Department can file an appeal before Supreme Court under section 22 and on the other hand in case no relief is granted to the cooperative societies and winding up order is passed, the aggrieved management of the cooperative society can file an appeal to the Supreme Court. In case we reach the conclusion that Provincial Legislature is not competent to enlarge the jurisdiction of the Supreme Court by providing an appeal, therefore, section 22 of the impugned legislation is ultra vires the Constitution, writ or Constitutional jurisdiction remains available against the orders of the Cooperative Judge."

' And have also argued that as the honourable Judge of this Court, while exercising his jurisdiction under the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 ("the Act"), acts as a persona designata, thus a constitution petition under Article 199 against his order can competently be filed. In order to substantiate that a writ is competent against the orders of a persona designata, when passed by the Judge of the High Court acting in that capacity, reference has been made to the judgments reported as Asghar Ali and another v. The State (1999 SCM R 654) and Muhammad Ikram Chaudhry and others v. Federation of Pakistan and others (PLD 1998 SC 103). Kh.

Saeed-uz-Zafar, Advocate appearing in some of the connected writ petitions has also supported the same view.

4. We have heard the learned counsel for the parties and find that in the judgment of the honourable Supreme Court (2000 SCM R 567) read with PLD 98 SC 103, it has been clearly, unequivocally and in a lucid manner held that the Cooperative Judge while exercising, his power under the Act is a persona designata and against his orders, a constitution petition can be maintained. The judgments of the Division Benches of this Court dated 14-10-2008 in W.P.No.22768 of 2000 and dated 14-9-2005 passed in W.P.No.20237 of 2002 do not conform to the ratio of the judgment of the honourable Supreme Court supra. Therefore, we are of the firm view that where a decision, has been rendered by a persona designata under the special law, even by a Judge of the High Court, such court comes within the purview of the connotation of the "person" defined under Article 199(4) of the Constitution of Islamic Republic, of Pakistan, 1973 and an appropriate writ shall be available to an aggrieved party. Thus, holding these petitions as maintainable, the cases are directed to be fixed before a Division Bench this Court.