BARKAT ALI ISANI Versus GOVERNMENT OF SINDH

AJMAL MIAN, C.J.‑‑This petition is directed against an order dated 1‑9‑1986 passed by respondent No.l.

2. The brief facts leading to the filing of the above petition are that a plot of land measuring 240 Sq. Yards bearing no number was allotted by respondent No.3 Society to one Abdul Ramak son of Hussain on 24‑8‑1980, hereinafter referred to as the Allottee. The petitioner purchased the same from the Allottee as averred in the petition in 1982. Thereafter the petitioner applied to respondent No.3 for membership of the Society. 1n response to the above request, the petitioner was admitted to be a member of the Society on 15‑5‑1982. This followed by the transfer of the plot in favour of the petitioner on 18‑8‑1.982. After that it appears that the petitioner through his advocate's notice dated 1.5‑12‑1984 asked respondent No.3' to identify the plot by giving the number of the plot covered by the aforesaid allotment. The above notice was replied to by respondent No.3 through its advocate's letter dated 23‑12‑1984 in which it was alleged that the transfer of the plot in favour of the petitioner was not proper as he was not a Memon. It seems that after that the petitioner invoked section 54 of the Cooperative Societies Act, 1925, hereinafter referred to as the Act. It appears that the matter was referred to a penal of Arbitrators in terms of first proviso to section 54 of the Act, namely, comprising of two Arbitrators nominated by each of the parties and the Registrar's nominee. The above arbitration case was resisted by respondent No.3 inasmuch as it filed a written statament in which inter alia it was averred that the petitioner being not a Memon, was not entitled to become a member of the Society, which is exclusively for Memon community. However, the learned Arbitrators after recording the evidence and after hearing the parties by a majority award dated 4‑4‑1985 decided the case in favour of the petitioner. Respondent No.3 being aggrieved by the above award filed an application under section 54‑A of, the Act, which was heard by the Deputy Registrar and was dismissed by an order dated 24‑12‑1985. Against the above award and the order, respondent No.3 filed a revision under Section 64‑A of the Act, which was allowed by the impugned order dated 1‑9‑1986 by the Minister of Government of Sind; Transport and Co‑operation Department and the case was remanded to the Deputy Registrar for re‑disposal in terms of the order. The petitioner being aggrieved by the above orders has filed the present petition.

3. In support of the above petition Mr. Muneer A. Malik, learned counsel for the petitioner, has urged as follows:‑

(i) ' That respondent No.3's revision was not competent under section 64‑A of the Act.

(ii) That even otherwise respondent No.l was not justified in allowing the revision as no ground existed on which the revision could have been allowed. '

(iii) That by the impugned order, respondent No.1 had directed the Deputy Registrar to take additional evidence on the points, which were not the subject‑matter of the pleadings between the parties, which is not permissible under the law.

On the other hand Mr. Abdul Latif A. Shakoor, learned counsel for respondent No.3, has submitted as under:‑

(i) That under section 64‑A of the Act revision was competent.

(ii) That in fact respondent No.3 was not given fair opportunity inasmuch as its contention was not discussed in the order.

(iii) That under section 64‑A of the Act, respondent No.1 could issue the direction of the nature contained in the impugned order.

(iv) That factually the petitioner had committed forgery by tampering with the allotment documents etc. '

4. It may be appropriate to take up the first contention of the learned counsel for the parties, namely, whether a revision under section 64‑A of the Act is competent against an order passed under section 54‑A of the Act. In support of his contention, Mr. Muneer A.Malik, learned counsel for the petitioner, has placed reliance on the following cases:‑

(i) Sheikh Haider v. Registrar, Co‑Operative Societies, Karachi and others (P L D 190( (W.P.) Karachi 177), in which the facts were that the petitioner filed a Constitutional Petition against an order of the Registrar, Co‑operative Societies, Karachi, whereby he directed respondent No‑2 to cancel the allotment of a plot in favour of the petitioner and cancel the proceeding instituted by one Mohammad Hussain. A further direction was given that the plot should be allotted to one Haqqani, respondent No.3. In the background of the above facts, it was held that the Act provides the machinery for resolving such a dispute and that Section 64‑A of the Act has limited scope and that it has no application to a case in which the arbitration proceedings were going on and that the Registrar had no power to pass the impugned order under section 64‑A of the Act and the petition therefore was allowed.

(ii) Muhammad Mehdi v. Government of Sind and others (1982 CLC 2374). In the above case, the facts were that the petitioner was a member of the Jabalpur Muhajir Society, Karachi, and was allotted a plot of land measuring 190, sq. Yards, whereas one Maqbool Hussain, who was also a member, was allotted adjacent plot. The aforesaid Society was merged into Pir Ellahi Bux Cooperative Housing Society Limited and because of the above merger, the above two plots had become part of the area of Pir Ellahi Bux Cooperative Housing Society Limited and the petitioner had become a member of the aforesaid Society. It appears that .before the merger of the Jabalpur Muhajir Society Karachi with Pir Ellahi Bux Cooperative Housing Society Limited, the petitioner had purchased the adjacent plot from Maqbool Hussain in or about 1955. All the dues were paid in respect of both the plots. The petitioner discovered in September, 1975, that respondent No.4 i.e. Pir Ellahi Bux Cooperative Housing Society Limited cancelled the allotment of the above two plots and allotted one of the plot to respondent No.5 and the other plot to one Pir Lal Muhammad. The petitioner filed an application under section 54 of the Act before the Registrar, which was referred by him to the panel of Arbitrators including the Registrar's nominee. The majority award was given in favour of the petitioner whereby the order of cancellation was set aside and. the plots were restored to the petitioner. Against this respondents Nos.4 and 5 preferred appeals under section 56 of the Act but since the same were not competent; the same were converted into applications under section 54‑A of the Act, which were disposed of by ordering that Plot No.89/.1 be restored to the petitioner and the adjacent Plot No.88/J be allotted to respondent No.5 whereupon the petitioner filed . a revision application under section 04‑A of the Act before respondent No.l i.e. Government of Sind, which was dismissed. After that the petitioner filed .a writ petition in this Court, which was allowed by a Division Bench to which one of us (Ajmal Mian, C.J.) was a member and inter alia following observations were made:‑ .

"In the circumstances of the instant case, therefore, the respondent No.2 was not legally empowered under the provisions of this section 54‑A to have modified the award, muchless he had the power to convert the appeal under section 56 of the Act into an application under section 54‑A of the Act. 1n our view, therefore, the impugned order dated 30th July, 1978, passed by respondent No.2 was illegal and without lawful authority. In such a situation there could be no appeal or revision to respondent sNo‑1 under section 64 or 64‑A, as scheme of the arbitration as reflected from the various provisions in the Act provides a cover of finality to the majority award as was held in the Division Bench decision of this Court reported in P L D 1975 Kar. 12, and as such the impugned order, dated 1st June, 1980, is also without lawful authority."

(iii) Firdaus Cooperative Housing Society Ltd. v. Secretary, Labour and Cooperative Department, Government of Sind and 11 others (1987 C L C 1457) by which two petitions were disposed of by a common judgment. In the first petition, namely, C.P. No.D‑144/1980, the unanimous award given by the Arbitrators was maintained by the Deputy Registrar by disposing of an appeal under section 56 of the Act on the ground that no appeal was competent against a unanimous award. Against this an appeal was filed before the Secretary, Labour and Cooperative Department, Government of Sind, under section 64 of the Act, which was also dismissed on the ground that unanimous award was not appealable under the above section 56 of the Act. Against the above order, a writ was filed. As regards the other petition, namely, C.P. No.D 1390/1980, respondents Nos.3 and 4 filed appeal before the Deputy Registrar against the unanimous award, who by his order dated 5‑6‑1979 modified the award, against which a revision was filed by the above respondents Nos.3 and 4, which was allowed and the award as well as the order of the Deputy Registrar upon the aforesaid appeal were set aside. Against the above order, aforesaid writ was filed. A Division Bench of this Court dismissed Petition No.D‑144 of 1980, whereas Petition No.D 1390/1980 was allowed and the impugned orders of respondents Nos.l and 2 i.e. Deputy Registrar and the Secretary were set aside. In the body of the judgment inter alia reference has been made to the scheme under the Act. It has been observed that section 56 of the Act provides for an appeal against the decision of the Registrar or his nominee whether made under section 54 or under subsection (3) of section 54‑A or an order passed under section 55 by the Registrar's nominee or arbitrator. It has further been observed that section 57 further provides that the award of the arbitrators or a decision by the Registrar or his nominee under section 54 or 54‑A or an order passed in appeal by the Registrar under section 56 shall, subject to the appeal provisions A' section 64 of 64‑A, be final and conclusive. that the above section 57 again maintains the distinction between the award of the arbitrators and a decision by the Registrar or his nominee iv) Sh. Rehmatullah v. Secretary to Government of West Pakistan Co- Operative Department, Lahore and 3 others (P L D 1975 Karachi 12), in which the facts were that there was a dispute as it) the allotment of a plot, the matter was referred to arbitration. The award was given by the Registrar's nominee, against which an appeal N:,S filed on the ground that the person affected was not joined , a party to the arbitration. The above appellate order was impugned in a revision under section 64‑A of the Act, which was dismissed and the appellate order was maintained. After that a fresh arbitration proceedings had commenced before a panel of arbitrators, who gave an award in favour of respondent. Against this an appeal was filed by the petitioner, which was dismissed on the ground that it was not competent. Against the above aforesaid award and the appellate order, above Constitutional petition was filed, which was also dismissed. While dismissing the petition, the following observations were made:‑

"The scheme of arbitraton as reflected from the various provisions reproduced above is that a dispute is to be referred to the Registrar for decision by himself or his nominee. Primarily, it is statutory duty of the Registrar to decide the disputes referred to him under section 54; he is, however, empowered to appoint nominees for the purpose of deciding such disputes, for, it would be otherwise impossible for him to attend to and deal with all the disputes referred to him personally. Another mode of arbitration provided by section 57 is by way of reference to a panel of three Arbitrators, if either of the parties so desires. Of these three arbitrators, one is to be appointed by each party, and the third is to be the Registrar himself, or he may nominate any one else on his behalf. If the provisions of section 64 are now examined in this light, it would be seen that an appeal lies against an order or decision sanctioned by the Registrar under section 54. In the present case, the Registrar was only a member of the panel, and the decision was made by the majority. It cannot, therefore, be said that the decision that was challenged before the Secretary (Cooperation) by the petitioner in the appeal under section 64 was an order passed by the Registrar, or a decision given by the Registrar, or that it was an appeal against an order or decision sanctioned by him. The view taken by the learned Secretary (Co operation) that appeal in such circumstances is not provided for under section 64 is unassailable. The contention that section 57 provides for an appeal against an award of an arbitrator or decision by the Registrar or his nominee under section 64 or 64‑A, is totally misconceived, for the language of section 57 does not make a provision for an appeal, as such, but it provides for a cover of finality to the awards or decisions given under section 54 or 54‑A so as to save them from being called in .question in any Civil or Revenue Court."

On the other hand, Mr. Abdul Latif A. Shakoor, learned counsel for respondent No.3, has placed reliance on the following cases:‑

(i) Yaqoob Suleman Mayet v. Deputy Registrar, Co‑Operative Societies and 2 others (1985 C L C 311) in which the petition was filed against the majority award, and the appellate order whereby the award was maintained, and the revisional order under section 64‑A of the .pct whereby the award and the appellate order were maintained A Division Bench of this Court dismissed the above petition on the ground that it had no merits.

(ii) Syed Ali Suleman Jafri v. Secretary to the Government of Sindh and 3 others (1986 S C M R 1302).

1n the above case, petition for leave to appeal was allowed against a judgment of the High Court. The facts of the case were that there was a dispute as to the entitlement to a plot inter se between two allottees, the matter was referred to arbitration which resulted into giving an award. Against the award, an appeal was filed, which was allowed. Against the above appellate order, a revision was filed whereby the award was restored. Against this a writ petition was filed, which was dismissed. Against the aforesaid orders/judgments, petition for leave to appeal was allowed but the appeal was ultimately dismissed after hearing the case on merits.

(iii) The Kathiawar Cooperative Housing Society Ltd. v. Assistant Registrar, Cooperative Societies, Karachi and another (1986 M L D 1322). In the above case, a writ petition was filed against the award given by the Registrar's nominee, which was dismissed and while dismissing the above petition, a Division Bench of this Court had observed that since no appeal/revision was filed, Constitutional jurisdiction could not be invoked because the alternate remedy of appeal/revision, which was available to the petitioner had not been, in the first instance, resorted to.

5. In the cases cited by Mr. Muneer A.Malik, learned counsel for the petitioner, there is a general reference as to the scheme of the Act in relation to resolving of disputes inter sc between the members of a Society and between the members or non‑members etc. 1n the above‑cited case of 1966, there is an observation to the effect that section fi4‑A covers administrative or departmental enquiry or proceeding but there is no reference to section 57 or the other provisions of the Act. In the above‑cited judgment there was no clear and unambiguous finding that a revision would not be competent against an order made under section 54‑A of the Act.

6. In our view, in order to appreciate the respective contentions of the learned counsel for the parties, such may refer to Sections 54, 54‑A, 56, 57 and 64‑A. It may be observed that section 54 provides the mode of arbitration when any dispute touching the business of a Society is raised between the parties mentioned in clauses (a) to (c). A party to the dispute may invoke arbitration by requesting the Registrar, who has the option either to decide the matter himself or to nominate any other person. However, the proviso to Section 54 gives the option to the parties to ask the Registrar to refer the dispute to arbitration ofl three arbitrators i.e. two arbitrators are to be appointed by the parties (i.e. one arbitrator by each of the parties) and the third will be the Registrar's nominee. It may further be observed that Section 54‑A provides that in case of any award made by the arbitrators under section 54, the Registrar, if he is not one of such arbitrators, may of his own motion or on the application of any of the parties to the award, by an order in writing after recording reasons therefor, pass any of the. orders mentioned in clauses (a) to (c) subject to the proviso containing clauses (a) and (b) which include power to modify or correct the award, remit the award or any matter referred to arbitration or to separate the matter which was not referred to the arbitration but was included in the award etc. It also empowers the Registrar while making an order under clause (c) to subsection (1) to direct that all or any of the arbitrators who made the award shall not act again as arbitrators for deciding the dispute. It may also be pointed out that section 56 provides right of an appeal to a 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 relating to attachment before award. It may further be pointed out that section 57 provides the finality of awards or a decision by the Registrar by providing that the award of arbitrators or a decision by the Registrar or his nominee under section 54 or section 54‑A or an order passed in appeal by the Registrar under section 56 shall, subject to the provisions of sections 64 and 64‑A, be final and conclusive and shall not be liable to be called in question in any civil or revenue Court, whereas section 64‑A lays down that the Provincial Government and the Registrar may call for and examine the record of any inquiry or the proceedings of any officer subordinate to them for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed and as to the regularity of the proceedings of such officer and that if in any case, it shall appear to the Provincial Government or the Registrar that any decision or order or proceedings so‑called for should be modified, annulled or reversed the Provincial Government or the Registrar, as the case may be, may pass such order thereon as it or he may deem fit.

7. The main question which requires consideration is, as to whether an order passed under section 54‑A by the Registrar or Deputy Registrar upon an application against the majority award is amenable to revisional jurisdiction under section 64‑A of the Act. We are inclined to hold that if the above sections referred to hereinabove are to be read together particularly section 57, it makes it clear that an order passed under section 54‑A is subject to revisional jurisdiction under section 64‑A of the Act. The cases cited by Mr. Abdul Latif A. Shakoor referred to hereinabove, including those of Supreme Court, proceeded on the assumption that a revision was competent though this was not the controversy in the cases.

8. Having held this, the question arises, whether the impugned order has been passed in accordance with law as admittedly in the instant case the majority award was in favour of the petitioner which was maintained by the Deputy Registrar in his order passed under section 54‑A of the Act. Though at the stage of arguments, the plea that the documents relied upon by the petitioner were aforged, was raised but in the pleadings we find that there was no such plea in this behalf. Reference may be made to paras 1 to 8 of the applicati,n filed by the petitioner before the arbitrators and the written statement riled by respondent No.3. However, Mr. Abdul Latif A. Shakoor has referred to para 1 of the written statement in support of his contention that the genuineness of the documents or the bona fide of the transaction was contested.

9. In our view, the sole question, which was agitated in the pleadings, was whether a non‑Memon can be.a member of respondent No.3 Society, on which there was a finding of the majority arbitrators that there was no such restriction in the Bye‑Laws of the Society, which finding was maintained by the Deputy Registrar in his order under section 54‑A of the Act. In our view, respondent No.l was not justified to interfere under section 64‑A as the concurrent finding on the point, which was agitated, was not found to be wrong by respondent No.l in the impugned order. The issue as to the forged documents as referred to in the g impugned order, in our view, was not a plea covered by the pleadings of the parties. On the contrary in the above paras 1 to 8, the petitioner had made averment as to the allotment of the plot in favour of Abdul Razzak, the transfer: of the plot by him to the petitioner and then by the Society. These facts were` admitted.

10. In this view of the matter, the order cannot be sustained and the petition is allowed and the impugned order is declared as being without lawful authority and of no legal effect. However, there will be no order as to costs.

A.A./B‑143/K Petition allowed.