GOVERNMENT EMPLOYEES' COOPERATIVE HOUSING SOCIETY LTD. Versus SECRETARY COOPERATIVE SOCIETIES
ATIR MAHMOOD, J.--- Through this single judgment, I intend to dispose of Writ Petitions Nos.4961/2012 and 5088/2009 as common questions of law and fact are involved therein.
2. Brief facts of the case are that respondent No.4 deceased Muhammad Jamil S/o Muhammad Mukhtar, Assistant, Lahore High Court, Bahawalpur Bench, Bahawalpur (petitioners in Writ Petition No. 5088/2009) applied for allotment of 10 marla plot in the year 1989 in Government Employees Cooperative Housing Society Limited, Bahawalpur (petitioner society). In the first draw, respondent No.4 could not succeed. Thereafter, notice for second draw was got published in daily "Nawa-i-Waqt" Multan on 16-11-2006 whereby the members were directed to deposit half price of the plot for all the categories. Since respondent No.4 failed to deposit half price of the plot as given in the notice, his name was not included in the second draw. Third draw was also conducted in the year 2007 but it was for 5 and 7 marla plots only, therefore, respondent No.4 who had applied for 10 marla plots was not entitled to participate in it.
3. Respondent No.4 filed a petition under section 54 of the Co-operative Societies Act, 1925 before the District Officer/Deputy Registrar, Co-operative Societies Bahawalpur (respondent No.2). The petition was transmitted to Assistant Registrar, Cooperatives Societies, Bahawalpur (respondent No.3) for his decision. The Assistant Registrar, Cooperatives Societies, Bahawalpur accepted the petition vide order dated 10-6-2008 with the direction to the petitioner society to allot a 10 marla plot to respondent No.4. The petitioner society filed an appeal before the District Officer Cooperatives/Deputy Registrar, Bahawalpur which was dismissed vide order dated 1-12-2008 on two counts: firstly it was time barred and secondly, appeal under Section 64 of Cooperative Societies Act, 1925 lies with the Provincial Government. The order dated 1-12-2008 was further assailed before the Secretary Cooperatives (respondent No.1) through appeal under Section 64 of the Cooperative Societies Act, 1925 which also met the same fate vide order dated 26-4-2010. All the three orders of Assistant Registrar, Deputy Registrar and Secretary of Cooperative Societies have been challenged in this writ petition. On the other hand, respondent No.4 after obtaining confirmation certificate from the District Officer/Deputy Registrar, Co-operatives, Bahawalpur moved an application for execution/ implementation of order dated 10-6-2008 whereupon a direction was issued to the petitioner society to allot a 10 marla plot to respondent No.4 but to no avail. Hence the petitioner moved Writ Petition No.5088/2009 seeking implementation of order dated 10-6-2008 passed by Assistant Registrar, Cooperative Societies, Bahawalpur. During the pendency of the instant writ petitions in April, 2013, respondent No.4/petitioner in Writ Petition No. 5088/2009 Muhammad Jamil died, therefore, his legal heirs were impleaded in this case.
4. Learned counsel for the petitioner society submit that the orders impugned are illegal, without jurisdiction and without lawful authority; that the orders impugned are neither speaking order nor any cogent reason for allotment of plot to respondent No.4 has been given therein; that the matter under Rule 31 of the Cooperative Societies Rules, 1927 was required to be decided within 60 days of filing of the petition which was not done; that the Deputy Registrar, Cooperative Societies, Bahawalpur was bound to decide the appeal on merit rather than on technicalities; that the matter was also taken up before the Secretary Cooperatives who also failed to apply his judicious mind while deciding appeal of the petitioner society; that there were certain conditions for allotment of plot including minimum age of 35 years and minimum length of service of 12 years; that respondent No.4 did not fulfil the said conditions; that there was a condition for deposit of half price of the plot for participation in the second draw but the same was not done by respondent No.4, as such, he was neither entitled nor included in the second draw; that for the third draw, respondent No.4 was not eligible as he had applied for allotment of 10 marla plot whereas the third draw was for allotment of 5 and 7 marla plots only; that the Deputy Registrar, Cooperative Societies had no jurisdiction to allot the plot to anyone rather it was within the jurisdiction of the Society to allot plots according to the policy framed for the purpose; that the order of the Deputy Registrar Cooperative Societies is not binding on the petitioner society. Learned counsel avers that the order of the Registrar, Cooperative Societies, Bahawalpur was like that of a decree and executable through the civil court only; that respondent No.4 under the law was bound to seek execution of the order dated 10-6-2008 through the civil court which has not been done rather he has sought implementation of the order impugned through Writ Petition No.5088/2009 which is not maintainable. Learned counsel for the petitioners pray that this writ petition be allowed, the orders impugned be set aside and the Writ Petition No.5088/2009 filed by respondent No.4 be dismissed. In support of his assertions, learned counsel for the petitioners have relied upon the dictums laid down in cases report as 1972 SCMR 91 (Messrs Firdous Trading Corporation v. Registrar, Co-operative Societies, Hyderabad Division, Hyderabad and another) and PLD 1966 (W.P.) Karachi 177 (Sheikh Haidar v. Registrar, Co-operative Societies, Karachi and others).
5. Conversely, learned counsel for respondent No.4 argue that respondent No.4 applied for allotment of the plot on 20-6-1989 but he was ignored; that respondent No.4 filed a petition before the Registrar, Co-operatives Societies which was ultimately decided in his favour by Assistant Registrar, Co-operative Societies with the direction to the petitioner society to allot plot to respondent No.4; that the petitioner society assailed the said order before the Deputy Registrar Co-operative Societies and the Secretary, Co-operative Department but to no avail and the order passed by the Assistant Registrar, Co-operative Society was upheld vide orders dated 1-12-2008 and 26-4-2010 passed by the Deputy Registrar and Secretary, Co-operative Department respectively; that it is not true that the service length and age of respondent No.4 was less than required as he was inducted in service on 14-7-1975 whereas the application for allotment of plot was filed on 20-6-1989; that there are a number of vacant plots available; that a number of plots have been given to different individuals by the petitioner society out of turn; that respondent No.4 has died a few days before his retirement; that the orders passed by the Assistant Registrar, Cooperative Societies, Bahawalpur is in accordance with law and the appeals preferred by the petitioner society before Deputy Registrar and Secretary Cooperative have also been dismissed. Learned counsel for respondent No.4 pray that the instant writ petition be dismissed and order dated 10-6-2008 passed by Assistant Registrar, Cooperative Societies, Bahawalpur be implemented by allowing Writ Petition No.5088/2009 filed by respondent No.4. In support of their contentions, they have relied upon the law laid down in cased reported as 2003 SCMR 325 (Province of Sindh through Chief Secretary Sindh, Karachi and 4 others v. Gul Muhammad Hajano) and PLJ 1998 Lahore 1606 (Rawalpindi Bench) (Khalid Mehmood Inspector Police No.R-227 Rawalpindi Range, Rawalpindi v. Inspector General of Police Punjab, Lahore and another).
6. I have heard the arguments put forth by learned counsel for the parties and also perused the record.
7. There is no denial to the fact that respondent No.4 applied for allotment of a 10 marla plot and became a member of the petitioner society in the year 1989 but he could not be accommodated by the society. Respondent No.4 aggrieved by the attitude of the petitioner society approached the District Officer/Deputy Registrar, Co-operative Societies (respondent No.2) through a petition under section 54 of the Co-operative Societies Act, 1925 which was referred to Assistant Registrar, Co-operative Societies who being nominee of the Registrar called on both the parties, perused the relevant record and after hearing both sides passed order dated 10-6-2008 in favour of respondent No.4 directing the petitioner society to allot a 10 marla plot to respondent No.4. The petitioner society unsuccessfully assailed order dated 10-6-2008 before the Deputy Registrar Co-operative Societies, Bahawalpur and Secretary Co-operative Department, Government of the Punjab through appeals but the same were dismissed and the order of the Assistant Registrar Co-operative Societies dated 10-6-2008 was maintained.
8. I have gone through order dated 10-6-2008 passed by Assistant Registrar, Co-operative Societies, Bahawalpur. Perusal of the said order shows that the Assistant Registrar, Co-operatives heard both sides and perused the byelaws and relevant record of the society. It was observed by the Assistant Registrar that a number of persons who became member of the society, later than respondent No.4, were allotted plots by the petitioner society without any draw. It was also admitted by representative of the petitioner society that some 10 marla plots were available with the society at that time. Despite the same, respondent No.4 was not given any plot, therefore, the Assistant Registrar directed the petitioner society to allot a 10 marla plot to respondent No.4. Relevant portion therefrom is reproduced below:--
(Underline is mine)
Perusal of above order shows that a number of persons who became members of the society later than the petitioner were given plots without any draw. It also shows categorical admission on part of representative of the petitioner society that some plots measuring 10 marla were available with the petitioner society but respondent No.4 who was a member of the society since 1989 was not given any plot by the society without any plausible reason. This is a clear-cut discrimination with respondent No.4 in violation of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 which unequivocally speaks out that all the citizens of the country are equal before law and are entitled to equal protection of law and that there will be no discrimination in between them. The Assistant Registrar, Co-operative Societies, Bahawalpur while passing order dated 10-6-2008 has rightly held that allotment of plots to new members by the society ignoring the old members is unfair and unjust and respondent No.4 being an old member of the society is entitled to 10 marla plot.
9. All the three orders passed by respondents Nos.1 to 3 have been assailed by the petitioner society raising legal as well as factual controversies. I am afraid that this Court in its constitutional jurisdiction cannot go into factual controversies requiring recording of evidence, particularly when the case has been decided by the three competent forums concurrently against the petitioner keeping in view the facts of the case as well as adverting to the law applicable thereto.
10. Regarding contention of learned counsel for the petitioner that appeal preferred by the society against order dated 10-6-2008 before respondent 2 was required to be decided on merits rather than on technicalities, suffice it to say that any person aggrieved by any order of a competent authority must approach the appellate authority/court within the time stipulated by the statute. In the present case, the order of Assistant Registrar dated 10-6-2008 was assailable under section 56 of the Co-operative Societies Act within a period of one month but the petitioner society filed the appeal on 21-11-2008 which was barred by time by more than five months. The contention of learned counsel for the petitioner that the appellate authority should have decided the case on merit ignoring the technicalities has no force as the question of limitation is not a mere technicality but a mixed question of law and fact and by afflux of time, a vested right is created in favour of the person holding order of any competent authority. Under the law each and every day of delay in filing the appeal was required to be explained by the petitioner society but it could not offer any plausible reason for a delay of more than five months. When the appeal of the petitioner society was barred by time and the petitioner society has not been able to show any plausible ground for delay in filing the appeal, the appeal was liable to be dismissed on this score alone and there was no need to discuss other merits of the case.
11. There is another aspect of the case that after order dated 26-4-2010 passed by Secretary, Co-operative Department, the petitioner did not agitate the matter before any competent forum till filing of the instant writ petition on 5-9-2012 meaning thereby the petitioner society kept mum for a period of more than two years and four months and could not raise any grievance before any competent court of law within a reasonable time which shows lethargic conduct of the petitioner. It is now well-settled that law favours the vigilant and not the indolent. This writ petition even on the score of laches merits dismissal.
12. Apropos argument of learned counsel for the petitioner qua maintainability of Writ Petition No.5088/2009 filed by respondent No.4 for implementation of order dated 10-6-2008 stating that the petitioner should have approached the civil court for execution of the said order, I have perused the case-law cited by learned counsel for the petitioner and also gone through the relevant law. There is no denial to the fact that the order passed by the Registrar or his nominee or the arbitrator on disputes referred to them is a decree of such court. Section 59(1)(a) of the Co-operative Societies Act, 1925 is relevant in this regard which is reproduced below:--
"59. Money how recovered.---(1) Every order passed by liquidator under section 50, or by the Registrar under section 50-A or by or under clause (g) of section 50 or under section 54 or under subsection (3) of section 54-A, every order passed in appeal, under section 56, every order passed by the Provincial Government in appeal against orders under sections 50, 50-A, 54 or subsection (3) of section 54-A and every order passed under section 64-A shall, if not carried out, --
(a) on a certificate signed by the Registrar or a liquidator, be deemed to be a decree of a Civil Court and shall be executed in the same manner as a decree of such Court"
Bare reading of above provisions of law reveals that the order passed by the Registrar or a liquidator is like that of a decree of a civil court and is required to be executed in the same manner as a decree of the court but it nowhere suggests that the decree will necessarily be executed by the civil court and not by the court or the authority who has passed the order nor it curtails the jurisdiction of this Court in any manner. Clause (c) of sub-Article (1) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 empowers this Court subject to its satisfaction to issue any direction on an application by an aggrieved person to any person or authority including any Government exercising any power of performing any function in, or in relation to, any territory within the jurisdiction of this Court for the enforcement of any of the Fundamental Rights conferred by the Constitution to the citizens of this country. Therefore, I am not convinced with the argument of learned counsel for the petitioner society that this Court has no jurisdiction to issue direction to the petitioner society to implement order dated 10-6-2008. Even otherwise, under subsection (5) of section 59 of the Co-operative Societies Act, 1925 (amended in the year 2006), the Registrar of the Co-operative Societies or any other officer subordinate to him, duly authorized, is deemed to be a civil court who has powers vested in the executing court to implement his orders in case of non-compliance of his order/award. It has also come to the notice of the Court that the petitioner society was directed by the Deputy Registrar, Co-operative Societies, Bahawalpur to implement the order dated 10-6-2008 but it did not pay heed to the order of the Deputy Registrar compelling respondent No.4 to invoke jurisdiction of this Court. In this view of the matter, it is quite clear that the Registrar, Co-operative Societies has ample powers to implement his orders and may also take penal action against the delinquents. So, I am of the considered opinion that the decree of the Registrar Co-operative or his nominee or arbitrator will be executed by such court itself and there is no need to approach a civil court for execution of such decree. Further that in case of failure in execution or implementation of such decree/order, the High Court has ample powers to issue direction to the judgment debtor for compliance/implementation of such order/decree.
13. Learned counsel for the petitioner society has not been able to point out any illegality, irregularity or jurisdictional defect in the orders impugned, particularly the order dated 10-6-2008 passed by Assistant Registrar, Co-operative Societies which is not only based on sound reasons but also loudly speaks about conduct of the petitioner society.
14. In view of the aforementioned reasons, Writ Petition No.4961/2012 filed by the petitioner society is dismissed whereas Writ Petition No.5088/2009 filed by respondent No.4-Muhammad Jamil/legal heirs of deceased Muhammad Jamil is allowed and the petitioner society is directed to implement the order dated 10-6-2008 passed by Assistant Registrar, Co-operative Societies, Bahawalpur in letter and spirit within a period of two months positively.
AG/G-6/L Order accordingly.