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Petitioner: ABDUL HAQ VS Respondent: THAKUMAL and 4 others
Court Name: Sindh High Court Judge(s): Nadeem Akhtar, Aziz-ur-Rehman Title: ABDUL HAQ vs THAKUMAL and 4 others Case No.: C.P. No,D-4374 of 2012 Date of Judgment:2016-06-13 Reported As: 2017 YLR 1816 Result: Petition allowed
JUDGMENT
JUDGMENT ' AZIZ-UR-RAHMAN, J.---By means of this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 filed on 13.12.2012, the Petitioner viz. Abdul Haq son of Abdu Ghani has challenged/ impugned order dated 24.10.2012 [Annexure 'I' to the Mon passed by Minister for Law and Prisons, Government of Sindh, whereby, the Revision Application No,SO (T)6(05)2010-11, filed by Respondent No,1 herein viz. Thakumal son of Chhotumal, was allowed with direction to the Respondent No,3 namely Makli Co-operative Housing Society Ltd. through its' Administrator to execute the LEASE of the 'suit plot' i,e, Plot No,A-94, Unit No,1, measuring 600 sq.yds, Hashimabad Township of Makli Co-operative Housing Society Limited, Thatta, [hereinafter referred to as 'subject plot'] in favour of the Respondent No,1 and further to take necessary action for cancellation of the 'REGISTERED LEASE' dated 18.07.1993 [Annexure 'B' to the MoP], executed in favour of Respondent No,1 through appropriate legal process. The 'Award' dated 12.01.2011 passed by Registrar's Nominee [Annexure 'E' to the MoP] and Order dated 27.09.2011 [Annexure 'F' to the MoP], passed by the Registrar, Co-operative Societies Sindh, camp at Karachi, were accordingly set aside however, with no order as to cost [Annexure 'F/1' to the MoP]. The Petitioner herein thus feeling himself 'dis- satisfied' and 'aggrieved' by the 'impugned order' dated 24.10.2012 [Annexure 'I' to the MoP], passed by Minister for Law and Prisons, Government of Sindh, has assailed the same through the instant Constitutional Petition with the following prayers:-- A).To hold and declare that the impugned decision dated. 24.10.2012 is without jurisdiction and a nullity in the eyes of law. B).Direct the Respondent No,3, its agent, nominee, assigns and any person or persons claiming through or under it to restore the subject plot [A-94, Unit No,1, measuring 600 square yards
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Hashimabad Township of Makli Co-operative Housing Society Limited Thatta] to Petitioner. C).Permanently restrain the Respondents, their agents, employees, and/or any person(s) claiming through or under them or under their [said Respondents] instructions or directions, from alienating, encumbering, mortgag-ing, creating any type of charge, creating any third party interest in respect of the subject plot [A-94, Unit No,1, measuring 600 square yards Hashimabad Township of Makli Co-operative Housing Society Limited Thatta] and interfering in the lawful possession of the Petitioner regarding the same, in any manner whatsoever. D).Direct Respondent No,5 to issue execution Certificate in terms of Award dated 12.01.2011 and initiate prosecution against Respondent No,2 and members of Managing Committee who illegally held office beyond elected tenure and committed this illegality, as reflected from Order of Supersession dated 28.01.2009 and for concealing facts regarding execution of registered lease deed as verifiable from Society Lease Register. E).Any other relief(s) deem fit in the circumstances . F).Cost of the proceedings. 2.Resume of facts of the Petitioner's case is that the Petitioner is a member of Respondent No,3 Society since, 1975, whereas, private Respondent No,1 herein has raised an 'adverse claim' in respect of the 'subject plot' i,e, Plot A-94, Unit No,1, measuring 600 square yards, Hashimabad, Township of Makli Co-operative Housing Society Limited Thatta, Sindh. The Respondent No,2, per assertions made in the Memo of Petition [In short MoP], at the relevant time, was the Chairman of Respondent No,3, when the 'subject plot' in favour of Petitioner was illegally cancelled and purportedly, the same was reallocated in the year, 2008 to Respondent No,1 viz. Thakumal son of Chhotomal. The Respondent No,3, as averred, is a Cooperative Housing Society Limited in terms of the Co-operative Societies Act, 1925 [Act VII of 1925], whereas, the Respondent No,4 i,e, Minister for Law and Prisons, Government of Sindh, has passed the 'IMPUGNED ORDER' dated 24.10.2012, as stated, in violation of the settled principles of law. In view of the statutory Role of Registrar Co- operative Societies as being performed, under the Act, 1925 [Act VII of 1925], and relieves sought by the Petitioner herein, Registrar Co-operative Society, has thus been impleaded in the instant Petition as Respondent No,5. 3.Per Petitioner's version, the 'subject plot' was allotted by Respondent No,3 Society to the Petitioner in the year, 1979, and thereafter, besides completing all other requisite codal formalities, payment towards' cost of land', 'charges'/ 'Development Charges' was also made in 1979. Moreover, ground rent of Rs,288/- covering the period from 11.01.1984 upto 31.10.1992 was also paid. The Petitioner, as stated, has also paid 3rd installment of 'Development Charges' of Rs,1800/- on 17.7.1985. Apart from the aforesaid payments , Petitioner has also contributed towards' Masjid fund'. Respondent No,3, in view of the above, eventually granted/executed a 99 years' ownership Lease dated 18.7.1993 in favour of Petitioner [Annexure 'B' to the MoP]. The Petitioner, is thus holding a 'registered title document' in his favour viz-a-viz the 'subject plot' and, no doubt, this was also in the knowledge of Respondent No,1 amongst others. 4.Sometime, in the middle of 2009 and, of course, to the shock and dismay of the Petitioner, the Petitioner herein, suddenly came to know that the 'subject plot' has been re-allocated in favour of Respondent No,1 viz. Thakumal son of Chhotumal by Respondent No,3 Society that is to say, by way of 'ALLOTMENT ORDER' dated 5.5.2008. The Petitioner, thereafter, made inquiries regarding the blatant illegality[ies] committed by Respondents Nos,2 and 3. The Petitioner, for and to seek redressal of his grievance thus constrained to file a F.C. Suit No,88 of 2009 [Abdul Haq son of Abdul Ghani v. Makli Co-operative Housing Society Limited and 5 others [i,e, the present Respondents], before the Senior Civil Judge Thatta, Sindh. Nevertheless, after hearing of an Application under Order VII Rule 11, C.P.C., filed by the present Respondents Nos,1 and 6, the 'plaint' in the aforesaid suit was, however, rejected seemingly in view of bar contained in Sections 54, 70 and 70-A of the Co-
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operative Societies Act, 1925 [Act VII of 1925]. The 'operative part' of order dated 21.10.2010, passed by Senior Civil Judge, Thatta, Sindh [Annexure 'C/1' to the MoP], for ease of reference is reproduced as follows:-- "Keeping in view the arguments and the case law relied on by the learned counsel for the defendants, I am of the considered opinion that plaint is barred under sections 70, 70-A and 54 of Co-operative Societies Act, 1925, hence the same stands rejected with no order as to costs." 5.In view of the above position, the Petitioner, filed an 'APPLICATION' under Section 54 of the Co- operative Societies Act, 1925 [Act VII of 1925], which was numbered as ABN Case No,15/2010 [Abdul Haq S/o Abdul Ghani v. Makli Co-operative Housing Society Ltd. and 2 others [Respondents Nos,1 and 2 herein], before the Registrar's Nominee at Karachi. The case was heard and decided after taking into consideration all the relevant facts and appreciating the available record by Registrar's Nominee and consequently, an 'ARBITRATION AWARD' dated 12.01.2011 [Annexure 'E' to the MoP], was given, whereby, the 'APPLICATION' under Section 54 of the Co-Operative Societies Act, 1925, filed by the present Petitioner bearing. No,ABN Case No,15 of 2010 [Abdul Haq son of Abdul Ghani v. Makli Co-operative Housing Society Limited and 2 others], was allowed and resultantly, the 'subject plot' was ordered to be 'RESTORED to the Petitioner herein. Besides, the Registrar's Nominee also directed the Respondent No,3 Society herein, to accommodate the private Respondent No,1 viz. Thakumal son of chotumal by allotting him another 'alternate plot' whenever available with Society. Per the said 'AWARD' the record of the Respondent's No,3 Society was also examined and significantly in the award, it has been observed that the record relating to Minutes of Meeting of Makli Cooperative Housing Societies Ltd/Respondent No,3, has been found tampered/ manipulated. It is pertinent to note, that Respondent No,1 viz. Thakumal son of Chhotumal did not file any APPEAL against the aforesaid 'ARBITRATION AWARD', as such, the same has attained finality. 6.That Respondent No,3 Society nevertheless, impugned the aforesaid 'award' arising out of ABN case No,15 of 2011 [Abdul Haq v. Makli Cooperative Housing Societies Ltd. and 2 others], in Appeal No,4 of 2011 [Makli Co-operative Housing Society Ltd. v. Mr. Abdul Haq and 2 others], before the Registrar Cooperative Societies, Sindh Camp at Karachi. The Registrar, Co-operative Societies Sindh camp, at Karachi, after hearing all the concerned parties and perusal of record, however, came to the conclusion, that 'AWARD' passed by the 'Registrar's Nominee' is quite in accordance with law and sustainable, as such, the 'AWARD' dated 12.01.2011, was upheld vide ORDER dated 05.07.2011, passed by Registrar Co-operative Societies Sindh camp at Karachi. 7.Thereafter, since, the official Respondents were reluctant to issue `execution certificate' as such, the Petitioner filed a Constitutional Petition bearing No,2948/2012 Abdul Haq v. Makli Co-operative Housing Societies Ltd. and others] in this Court, which however, later on, particularly in view of passing of the 'IMPUGNED ORDER', has been withdrawn. Needless to say, the 'impugned order' dated 24.10.2012, passed by Minister for Law and Prisons, Government of Sindh, has now been assailed/challenged by the Petitioner herein through the instant Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. 8.Respondent No,1 viz. Thakumal S/o Chhotumal without filing any Appeal under section 56 of the Co-operative Societies Act, 1925 [Act VII of 1925] before the Registrar Co-operative Societies, Sindh camp at Karachi, in his 'own wisdom' filed REVISION APPLICATION No,SO[T]6[05] 2010-11 under section 64-A of the Co-operative Societies Act, 1925 [Makli Co-Operative Housing Societies Ltd. v. Mr. Abdul Haq and others], sometime, in November, 2011 before the Provincial Government, Co- operative Department Government of Sindh against the Order dated 27.09.2011 [Annexure 'F/1' to the MoP], passed by Registrar, Co-operative Societies Sindh camp, at Karachi, with a prayers as follows:-- "It is therefore prayed that this Hon'ble Court may be pleased to call for Record and Proceedings of Arbitration Case No,15/2010 (Appeal No,4/2011), and after hearing the parties be pleased to set
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aside the impugned order dated 27.09.2011, passed by the learned Registrar, Co-operative Societies by declaring the same as without any merit and of no legal effect in the interest of justice. Simultaneously the Award passed by the learned Registrar's Nominee may be set aside in the interest of justice. ' Further this Hon'ble Court may kindly declare that the Appellant is a lawful owner of Plot No,A-94, Unit No,1, Hashimabad Township, Project of Respondent society and the management of the Respondent society pay kindly be directed to execute the Lease of the said plot in favour of the Appellant as all the dues of plots have already been paid by the Appellant." [Underlining is ours] 9. It is significant to note, against the 'AWARD' dated 12.01.2011 [Annexure 'E' to the MoP], given by 'Registrar's Nominee' in favour of the Petitioner herein no APPEAL as required under section 56 of the Co-operative Societies Act, 1925 [Act VII of 1925], was filed by Respondent No,1 viz. Thakumal son of Chhotumal before Registrar Co-operative Societies, Sindh, camp at Karachi. Nevertheless, in response to the above 'REVISION APPLICATION' No, SO[T] [6] 2010- 11 [Thakumal son of Chhotumal v. Abdul Haq and others], the Petitioner herein, filed his reply/objections, wherein, besides, raising 'preliminary objections', the stand taken by the Respondent No,1 herein, was also Seriously controverted/denied. The 'PRELIMINARY OBJECTIONS' raised by the present Petitioner, run as follow:- - "1. That the appeal/Revision is not maintainable as it does not fall within the provisions of the Cooperative Societies Act, 1925. 2.That the Respondent No,1 has acquired the plot in question through the registered lease deed registered at No,120 dated 15.08.1993. TheManaging Committee cancelled the plot in question on 30.11.2003, which is beyond the limitation and the law. The Managing Committee cannot cancel the registered lease deed without obtaining order of cancellation of lease deed from the Civil Court. 3.That the Managing Committee may not cancel the plot on the basis of non-payment of development charges once the price/cost of land has already been paid by the allottee. 4.The appellant has not filed the instant appeal/revision with clean hands. 10. Likewise, Makli Co-operative Housing Society Ltd./Respondent No,3 herein, also filed its comments' wherein, it was specifically stated that the present 'Managing Committee' and 'Chairman' of Respondent No,3 Society have already been elected on 08.01.2012 and 14.01.2012 respectively. The issuance of 'INDENTURE OF LEASE' bearing No,551 in respect of 'SUBJECT PLOT' No,A- 94 in favour of the Petitioner was also admitted. Paras-5, 6 and 7 from the 'comments' filed by Respondent No,3 viz. Makli Co-operative Society Limited, Thatta, being relevant are reproduced herein-below:-- "5. That neither the Appellant nor the Respondent No,3 has any material evidence to prove that the lease deed was not validly executed by the Ex-Chairman (Mr. Roshan Lakhani S/o Abdul Habib) of the Respondent Society, before sub-registrar, Thatta as claimed by Appellant. 6. 7.That it is also a matter of record that even to this date, many members of the Respondent No,3 have not paid installments number IV and V of Development Charges. The outstanding Charges (if any) against the members are recovered with 1% per month penalty at the time when the allottees wish to transfer their plots, according to Bye Laws No,80. 8.That in view of above, the present Managing Committee in its Extra Ordinary meeting hold on 17th June, 2012 has decided to support the cases of original allottees, whose lease deeds have been executed and not to support the illegal actions on the part of the previous managing Committee on this account. 9.That in view of above fact, the Revision Application filed by the Administrator of the Society (While the Committee, which cancelled the plot in question, stood superseded), is hereby withdrawn. 11.The use of 'Words' APPELLANT instead of the APPLICANT inter alia in the aforesaid paras, it appears,
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was due to some typographical mistake, as Respondent No,1 viz. Thakumal son of Chhotumal was the applicant in 'REVISION APPLICATION' No, SO [T] [6]2010-11 [Thakumal son of Chhotumal v. Abdul Haq and others] and NOT APPELLANT. This position, is also evident from ORDER dated 24.10.2012 itself [Annexure 'I' to the MoP]. In the 'comments', Respondent No,3 Society has also urged that the 'claim'/ 'prayer' of the Applicant/Respondent No,1 viz. Thakumal son of Chhotumal besides, being defective is contrary to law, as such, the same is liable to be rejected. 12.Nevertheless, on 24.11.2012, when the above REVISION APPLICATION No, SO[T]6[05] 2010-11, came- up before the Minister for Law and Prisons Government of Sindh then, the 'IMPUGNED ORDER' dated 24.10.2012 [Annexure 'I' to the MoP], was passed by the Minister for Law and Prisons, Government of Sindh without realizing that as being a Revisional authority and having limited powers as per Section 64-A of the Co-operative Societies Act, 1925 [Act VII of 1925] cannot set aside the 'AWARD' dated 12.011.2011 passed by the Registrar's Nominee [Annexure 'E' to the MoP] and Order dated 27.09.2011 passedby Registrar Cooperative Societies, Sindh, Camp at Karachi [Anneuxre 'F' to the MoP] having been passed in Appeal No,04 of 2011 filed by Makli Co-operative Housing Society Ltd only and not by Thakumal son of Chhotumal /Respondent No,1 herein. The 'operative part' of the 'impugned order' dated 24.10.2012 reads as follows:-- I find force in the contention of the Applicant and hereby allow the present Revision Application with the direction to respondent No,3 to execute the Lease of the suit plot in favour of the Applicant and take necessary action for cancellation of Lease executed in favour of the Respondent No, 1 through appropriate legal process. Accordingly the Award dated 12.01.2011 and order dated 27.09.2011 passed by the Registrar, Co-operative Societies, Sindh are hereby set aside, with no order as to cost." [Underlining is ours] 13. Notwithstanding, theserious opposition on the part of the Petitioner and Respondent No,3 Society, the Minister for Law and Prisons, Government of Sindh, nonetheless, was pleased not only to set-aside order dated 27.09.2011 but also set-aside the 'Award' dated 12.01.2011 passed in favour of the Petitioner and against the Applicant/Respondent No,1 though later had failed and/or avoided to file any Appeal under section 56 of the Co-operative Societies Act, 1925 [Act VII of 1925]. It is needless to say, that 'AWARD' in view of non-filing of the requisite Appeal under section 56 of the Societies Act, 1925 [Act VII of 1925], within one month of the date of 'Award' the same has become 'final' and 'conclusive'. As such, on this score as well the same was not liable to be questioned and/or set-aside. The exercise of power by Respondent No,4 viz. Minister for Law and Prison, Government of Sindh, it appears is coram-non-judice. 14.The Petitioner, in view of the aforesaid scenario, feeling aggrieved and 'dis-satisfied' with 'impugned order' dated 24.10.2012 [Annexure 'I' to the MoP], has filed the instant Constitution Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, 'inter alia' on the plea/ground that the 'impugned order' passed under the 'Revisional Jurisdiction' by Minister for Law and Prisons Government of Sindh, is not only bad in law but also without jurisdiction. Besides, the same has been passed without properly applying judicial mind and/or otherwise, appreciating the material available on record in its true perspective. Hence this petition. 15.Upon filing of the above petition on 13.12.2012, when it came-up before the Court on 21.12.2012, then, besides, issuing notice to the Respondents, the 'IMPUGNED ORDER' [Annexure 'I' to the MoP], passed in 'Revision Application' No,SO[T]6[05] 2010-2011, by Minster For Law and Prison, Government Sindh, was also suspended. For ease of reference, the relevant portions thereof are reproduced herein-below:-- 1)It is inter alia contended that the Respondents Abdul Haq was allotted Plot No,A/94 measuring 600 square yards in Hashimabad Township Project of Makli Cooperative Housing Society Limited Thatta Respondents No,3 at page 23 of the file. It is urged that lease was also executed in favour the Respondents on 18th July 1993. According to learned counsel it transpired that the subject plot
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has been allotted to Thakumal Respondent No, 1 through impugned allotment dated 5.5.2008 at page 45 of the file. On coming to know of such allotment proceedings under Section 54 of the Co- operative Society Act, 1925 was initiated which resulted into Award in favour of the Respondents on 12.1.2011 at page 123 of the file. The Society filed Appeal No,4/2011 before the Registrar Co-operative Societies which was withdrawn however the Respondent No, 1 preferred the Revision wherein the Revisional Authority i,e, Respondent No, 4 reverse the findings through impugned order dated 24.10.2012 available at page 81 of the file and at the same time order for cancellation of lease that exists in favour of the Respondents. It is contended by the learned counsel that the Revisional Authority under the Hierarchy of the Co-operative Societies Act has a very limited jurisdiction to examine and consider tho administrative or a management issue cannot upset the findings recorded in Award proceedings. He has placed reliance on Shaikh Haider v. Registrar (PLD 1966 West Pakistan 183). It is stated that merely on the assumption that a pretty amount was not paid towards Development Charges lease otherwise could not be cancelled, if dues are outstanding after execution of the lease it only become a financial claim which could be recovered through legal process and lease which has been finally executed cannot be undone in the manner it has been ordered by the learned Revisional Authority. Let notice be issued to the Respondents through regular mode, courier and pasting. 4) Notice as above. For the foregoing as recorded, impugned revisional order is suspended." 16.The Respondent No,1, in response to the Main petition filed his 'Counter-Affidavit' wherein, the 'averments'/' assertions' made in the Memo of Petition [In short MoP] by the Petitioner were denied. The Petitioners, in answer to the 'Counter Affidavit', also filed a detailed 'Affidavit-in-Rejoinder' wherein, the stand taken and averments/assertions made by Respondent No,1 herein, was/were seriously denied/controverted. Respondents Nos,3 and 5, herein have also filed their 'Counter- Affidavits'/'Para wise Comments' but the stand taken by the Petitioner viz-aviz allotment and lease of the 'subject plot' in favour of the Petitioner was not controverted/denied by Respondent No,3, in its `Counter-Affidavit'/ Parawise Comments'. 17.On 14.04.2016, 26.04.2016 and 18.05.2016 when the above petition came-up before us then, we heard Mr. Arshad Hussain Khan, learned counsel for the petitioner, Mr. Hifzur Rahman, learned counsel for the Respondent No, 1, Mr. Arshad Nawab, learned counsel for the Respondent No,3 and Mr. Miran Muhammad Shah, learned Addl. AG Sindh and also gone through the available record before us minutely. Lastly, on 25.05.2016 arguments were finally heard/concluded and thereafter, the case, was reserved for Judgment. 18. Mr. Arshad Hussain Khan, learned counsel for the petitioner forcefully contended that the Respondent No,1 viz. Thakumal son of Chhotumal though had failed and/or avoided to file any appeal against the 'AWARD' of 'ARBITRATOR', as required under Section 56 of the Cooperative Societies Act, 1925 [Act VII of 1925], after lapse of time limit for filing of appeal, however erroneously filed 'REVISION APPLICATION' No, SO(T)6 (05)/2010-11, under Section 64-A of the Co-operative Societies Act, 1925 [Act VII of 1925], before the Respondent No,4, viz. Minister for Law and Prison, Government of Sindh. Per Mr. Arshad Hussain, the 'REVISION APPLICATION' as 'framed' and 'filed', was untenable in law. The revisional jurisdiction, under section 64-A of the Act, 1925, is not applicable and/or exercisable under the facts and circumstances of the case in hand. According to Mr. Arshad .Hussain Khan, learned counsel for the Petitioner, where an 'ARBITRATION AWARD', has been passed then, such 'Award' cannot be upset under the exercise of a 'Revisional Jurisdiction' by Respondent No,4, as has been done illegally/wrongly in the present case. Mr. Arshad Hussain Khan next urged, that Respondent No,4, in fact, has wrongly assumed the jurisdiction, as the 'Award' passed long ago in favour of the Petitioner and having gone un-challenged in an Appeal now, cannot be looked into in the Revision Application, as it does not fall within the ambit of Revisional Jurisdiction of Respondent No,4 viz. Minister for Law and Prisons. Manifestly, Respondent No,1, who filed the
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aforesaid 'Revision Application' No,SO(T)6(05)/2010-11 did not question/challenge the 'ARBITRATION AWARD' in an appeal as per terms of Section 56 of the Co-operative Societies Act, 1925 [Act VII of 1925]. Being so, the 'Revision Application' thus filed subsequently by Respondent No,1 besides, in- competent in law was also not maintainable. This legal position, is also vindicated from the factum that though Respondent No,3 Society, had initially filed a 'Revision Application' but later, perhaps, upon realizing its mistake, the same was withdrawn by the Respondent No,3 Society on 23.10.2012. The Minister for Law and Prison, besides, ignoring the 'withdrawal of the said Revision', filed by the Respondent No,3 Society, in own 'wisdom' passed the 'IMPUGNED ORDER', on the incompetent REVISION APPLICATION No,SO[T]6 [05]/2010-11, [Thakumal son of Chhotumal v. Abdul Haq son of Abdul Ghani and 2 others], filed by Respondent No,1 viz. Thakumal son of Chhotumal and as such illegally set aside the 'AWARD'…
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