Dr. FOZIA AMBER vs GOVERNMENT OF PUNJAB and others

An order passed by the Registrar, Cooperative Societies on 30-12-1998 concerning a controversy inter se the petitioner and respondent No,5 about Plot No,BB-14 situated in defunct LCCHS was assailed by the petitioner through a revision petition before Secretary Cooperatives, Government of Punjab, which petition was dismissed by him on 11-6-2001 that the Court lacked jurisdiction in the matter. This order has been assailed through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which was admitted to hearing. Civil Miscellaneous No,64 of 2003 has been moved on behalf of the petitioner with the prayer that in view of the enforcement of Chief Executive's Order No,26 of 2002, the revision petition, which was dismissed by the Secretary, Cooperatives for lack of jurisdiction may be deemed to be pending before the Executive Board.

2. Except the learned counsel for respondent No,5 who contends that since no proceedings were "pending" when Order No,26 of 2002 came into force clause (0 of Article 25 thereof is not applicable, all others are of the view that the matter stands transferred to the Executive Board for decision thereof.

3. It may be observed that LCCHS was a Society established and was governed by Cooperative Societies Laws. It was in this context_ that the revision petition had been filed by the petitioner against the order of Registrar, Cooperative Societies before the Secretary to the Government of the Punjab. By Punjab Ordinance No,LI of 1999 Defence Housing Authority, Lahore was constituted in place of the said Society, which stood dissolved by virtue of section 18 thereof. Since there was no saving provision in the Ordinance of 1999 regarding pending proceedings a confusion and obscurity prevailed about the powers of the Secretary Cooperatives to hear revision petitions. The matter remained pending with him for fairly long time. His order speaks for itself but eventually proceeded to dispose of the revision petition alongwith other matters for "lack of jurisdiction".

Paragraphs Nos.2 and 3 of the order read as follows:-- "2. Having not received the advice from the Law Department, a meeting was convened by me as Secretary, Cooperatives Department, Punjab on 25-5-2000 in which Mr. Shaukat Ali Zaidi, Additional Secretary (L&PA), Law Department, Lt.-Colonel Muhammad Yaqub, Director Legal, DHA, Lahore, Mr.Jawad Haider, Law Officer, DHA, Lahore and others participated. After deliberations, it was resolved as under:

(a) The proposed amendments in the Ordinance, on receipt in the L&PA Department, will be considered on their own merits.

(b) In order to avoid complications in respect of the litigation which originated before 29th September, 1999 and is now pending, no proceedings in any of the Courts under the Cooperative Laws will be taken. All such cases will be kept pending till the deficiencies in the Ordinance get removed.

(c) In order to avoid inconvenience to the litigant parties in the pending cases, notices with regard to the decision at 'b' above will be given for their advance information.

3. The cases were accordingly kept pending. As no progress was reported, another meeting was held on 27-1-2001. The same participants attended. The representative of Defence Housing Authority again stated that necessary additional provisions would be made in the existing Ordinance so as to provide for adjudication and finalization of the pending litigation. According to him, the amended draft legislation in this regard was nearing preparation and it would shortly be sent to the Law & PA Department for vetting and putting at the track of its approval/promulgation in the form ofnew Ordinance. He, therefore, proposed that in the meanwhile, the cases pending in the Courts of Cooperatives Department and others might be kept pending till the amending legislation was put into operation."

4. Strangely enough instead of keeping the matter pending as per decision (b) above the revision petition was rejected. It was not warranted in the circumstances. However, the Punjab Ordinance No,LI of 1999, was repealed on promulgation of Chief Executive's Order No,26 of 2002 with effect from 19-9-2002. Since a forum has been provided vide Article 25 of the Chief Executive's Order No,26 of 2002 a question arises whether a party can be left remediless qua the order passed by a functionary of the Cooperative Department, which had its own hierarchy under that law. In the instant case the order passed by the Registrar, Cooperative Societies dated 30-12-1998 had been assailed in revisional jurisdiction before the Secretary, which revision petition could not be decided on merits because of the change of law. The object of clause (f) of Article 25 of the Order is to provide remedy to the aggrieved persons before the Executive Board. It reads like this:-- "(1) all appeals and revisions pending either before the Registrar of the Provincial Government under the provisions of the aforesaid Act shall stand transferred to the Executive Board whose decision thereon shall be final;" It is curative in sense and remedial in nature providing a forum. It would not be just and fair if the petitioner is deprived of the remedy. The object, purpose and usefulness of such remedial legislation has quite extensively been dealt with by S.M. Zafar in "Understanding Statutes", Cannons of Construction, Second Edition, 2002 at pages 234 and 235, which reads as follows:-- "In construing a remedial* statute, the principle to be followed is that; the words of a remedial statute must be construed so far as they reasonably admit so as to ensure that the relief contemplated by the statute shall not be denied to the persons intended to be relieved. It should be construed in a manner so as to advance a remedy and suppress the mischief or else it would frustrate the legislative intendment." At page 235 a passage reads like this:-- "In the interpretation of remedial statutes, however, a special effort is made to avoid a technical construction of the language used, and to give it a fair construction to promote justice in the interest of public good. The purpose of the Act should be taken in consideration. The construction should be one, which would be consistent with, and promote, preserve, and effect, the object of the statute, so as effectually to meet the beneficial end in view, and not one, which would defeat the manifest purpose or design of the statute. It is a well-accepted rule that remedial statutes, seeking the recognized errors and abuses in introducing some regulation for the advancement of the public welfare, should be construed with regard to the defects or evils in the former law, sought to be cured by the new law, and the remedy provided. It is not unusual to extend the enacting words of a remedial statute beyond their literal import. However, remedial statute should be so interpreted as to make the remedy useful and effective one. The intention of a remedial statute will always prevail over the literal sense of its terms. Words are often omitted or supplied by implication, and sentences transformed, to render the statute a consistent whole and effectuate the legislative will. Where necessary to effectuate the legislative intent, remedial statutes will be construed to include cases within spirit or reason although outside the letter of the statute, and to exclude cases within the letter but outside the reason. Full effect has to be given by extending the scope, if possible, once the defect sought to be corrected is identified." (Underlined by me for its significance to the controversy). When a situation like this is faced by the Court, useful comments made by Crawford in his work "Statutory Construction", page 550 can be invoked: "In order to maintain a practical and humane system of statutory law, occasions will arise where the meeting of the prohibitory or mandatory requirements of the law may be excused or overlooked." It thus implies that irrationality, unreasonableness or disproportionality resulting in injustice may be a ground for judicial review.

5. Thus even though the case may not be strictly falling within the ambit of clause (1) of Article 25 of the Order, the Court has ample power and jurisdiction to relieve a party from oppression and to rectify a manifest injustice by adopting purposive approach. It can even remit/remand the matter to an Authority/Functionary competent to hear and redresss the grievance of a party. Reference in this context may be made to Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991SC 691, wherein despite the repeal of the Evacuee Laws a remand order made by the High Court to the Member, Board of Revenue was upheld.

In view of the above, order dated 11-6-2001 passed by respondent No,1 is declared as of no legal effect as a consequence whereof the revision petition filed by the petitioner shall be deemed pending, which shall stand transferred to Executive Board and shall be heard and decided in accordance with law. The petition is accepted to the extent indicated above. No order as to costs.