P L D 2014 Supreme Court 471 (PLP)

MIAN SAQIB NISAR, J.

This appeal with the leave of the court dated 22-2-2013 entails the facts that, the shop in question situated at Liberty Market, Gulberg, Lahore was owned by an Undesirable Cooperative Society [declared as undesirable under the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 (the Act)] and was put to auction by the Liquidation Board (the appellant) constituted under the Act. The respondent offered a sealed bid of rupees five million which turned out to be the highest and was accordingly accepted. He thus in accordance with the terms and conditions of auction deposited 25% of the bid amount, whereas the balance amount was paid by him vide pay order dated 2-1-2003/4-1-2003 (there seems to be some delay in this regard by the respondent but the fact is not relevant for the purposes of the present appeal). It is the case of the respondent that on 5-1-2003 the demand draft was returned to him, as a tenant of the said property had procured some injunctive order from the learned Cooperatives Judge. Be that as it may, the respondent perhaps also became a party in that litigation which was initiated by the tenant and ultimately the matter was decided in favour of the Board and against the tenant, whereupon the respondent applied to the Board for the transfer of the shop unto him on the payment of the balance amount of rupees 3.25 million (75% of the bid). The Board, after consideration of the facts of the case, passed an order dated 20-3-2010, the operative part whereof reads as follows:-- "Now the prices of the property has increased manifold and the petitioner had willfully accepted the return of the refund of the remaining amount by the Board due to the pending litigation. The giving of property on that bid would not be fair. It is, therefore, decided that interest/mark up on the remaining amount be charged on average of six months T.Bills to be indicated by the Finance Department." This order was challenged by the respondent before the Cooperatives Judge in terms of section 11 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 and the learned Cooperatives Judge virtually dismissed the application vide order dated 24-5-2010, by setting aside the above order of the Board, in that, it has been directed that the shop in question be put to re-auction, meaning thereby, that the very auction in favour of the respondent which was affirmed by the appellant-Board and was never done away with by same, has been annulled and set at naught. This order has been successfully challenged by the respondent in a constitution petition bearing No.14024 of 2010, which has been allowed by the learned High Court vide impugned judgment dated 23-10-2012 and a direction has been issued to the Board to execute the sale deed in favour of the respondent on receipt of rupees 3.25 million (the balance of the actual consideration amount i.e. 75% of the bid amount).

2. Heard. Learned counsel for the appellant (the Liquidation Board) has been asked to defend the order of the learned Cooperatives Judge with regard to the re-auction of the property and justify as to under what authority and provision of law, the auction in favour of the respondent could be annulled, when the appellant-Board had not done so, to which learned counsel relied upon section 11 of the Act and submitted (the only submission) that the learned Cooperatives Judge has the power to, make such order as he thinks just in the circumstances of the case. In order to appreciate the above, we feel expedient to reproduce said section ibid, which reads as below:-- "

11. Application to the Co-operatives Judge.--A person, if aggrieved by an act or decision of the Co-operatives Board, may apply to the Co-operatives Judge, who may confirm, reverse, or modifi, the act or decision complained against, and make such order as he may think just in the circumstances of the case." From the contents of the above provision it is clear, and there seems no element of doubt that the power of the Cooperatives Judge can only be invoked by an 'aggrieved person' (as the respondent in this case) against an act or decision of the Cooperative Board. The Board has not been reckoned as an aggrieved person so as to avail any right or conferred with a locus standi to approach the Cooperatives Judge, under the afore-stated provision; because it is vivid from the language of the section that it is only an act/decision of the Cooperative Board that can be assailed in terms of the section ibid; and thus it shall be ludicrous to expect and to conceive that the Board may invoke such power of the learned Cooperatives Judge to challenge its own decisions etc. However the learned Cooperatives Judge, on such an application of an "aggrieved person" (which as stated above cannot be the Board), can: (i) confirm the act/decision assailed therein, meaning thereby that, the application shall be dismissed; or (ii) reverse the order i.e. accept the application of the aggrieved person whereby the act/ decision of the Board shall be set aside; or, (iii) to modify the assailed order of the Board i.e. alter and change the act/decision assailed before it, in the manner that part of a relief is allowed to the aggrieved person whereas part of it may be refused. To the above effect, the noted section does not postulate any other interpretation. Now comes the crucial part of the section "and make such orders as he may think just in the circumstances of the case". The word "and" appearing in the section is of quite an importance which is conjunctive in nature, rather than being disjunctive, and thus the portion of the section quoted has to be read in the syntax of the earlier part thereto and, in this context, for all intents and purposes the later part of the section shall be considered as ejusdem generis to the earlier portion; which (ejusdem generis principle) is a canon of statutory interpretation, holding that when general word or phrase follows (a list of) specifics, the general word or phrase shall be interpreted to include only the words/items of the same class as those specified[1]. This principle (ejusdem generis), in view of the unambiguous language of the section, shall unmistakably be duly attracted to that portion on which reliance has been placed by the appellant. In any case, the second part of the section (quoted above), which is undoubtedly general in nature, does not confer upon the Cooperatives Judge an open ended power and jurisdiction to pass just any order, as this may even fall within the realm and the mischief of arbitrariness, whim and caprice in the exercise of his jurisdiction, which never was nor could be the intention of the legislature. Furthermore, undoubtedly it shall be impermissible for the learned Cooperatives Judge to do so in the garb of the power of confirming, reversing or modifying the act/decision of the Cooperative Board. Thus, in our view the learned Cooperatives Judge while exercising his jurisdiction under section 11 ibid shall have no empowerment to totally annihilate and set aside that part of the order, itself passed by the Liquidation Board, by virtue of which an 'aggrieved person' before the Cooperatives Judge has earned a right in his favour. It may be pertinent to mention here, that in exercising the above mentioned general jurisdiction by the learned Cooperatives Judge, it is inconceivable, as per the salutary principles regarding dispensation of justice, that where an aggrieved person approaches a higher forum complaining against a decision of the lower forum and seeking the redressal of his grievance and his opposing side has no grouse against such order/decision, rather has passed the order itself or where such opposing party cannot approach the higher forum, because of the legal impediment, as in terms of section 11 (the Board is not a person aggrieved to maintain an action), for the aggrieved person to be left bereft of that right which he has acquired; however it should not be construed that while upholding such order of the Board the Cooperatives Judge shall not be authorized to impose a reasonable condition as this would be within his jurisdiction in terms of authority to modify the act/decision, which the aggrieved person shall be obliged to comply with in order to attain the fruits of the Board's order, act/decision (challenged before it). In other words an aggrieved person, before the learned Cooperatives Judge, wrongfully exercising his jurisdiction who is the beneficiary of the Board's order would end up loosing the benefit and being penalized for having approached the learned Judge and in this manner shall be denuded of the right and advantage, which he has attained/achieved on account of the act/decision complained by him. This is exactly what the respondent at the level of learned Cooperatives Judge has faced and suffered in this case. It may also be added here, that as is clear from the record, that the appellant-Board had not cancelled the auction in favour of the respondent, rather it simply imposed a condition to pay markup on the remaining amount of 75% payable by the respondent; and in this context the Board had taken into account the increase in the value of the auctioned property as well as the utilization of 75% of the amount by the respondent, thus the learned Cooperatives Judge, in law, could not have set aside the order of the appellant-Board which in clear and unequivocal terms had accepted the auction of the appellant being valid and lawful and was ready to abide by it (the auction). Therefore, we do not find it permissible for the Board, once having itself passed an order in favour of the respondent qua the affirmation of the auction to him, to now can change its position and defend the order of the learned Cooperatives Judge on the basis of the general power available to the learned Judge under section 11 ibid, which otherwise as has been held cannot be interpreted to confer an open ended jurisdiction to the learned Cooperatives Judge. Therefore, to this extent the appeal has no merit and is liable to be discarded.

3. As regards, the other part of the order of the Liquidation Board dated 20-3-2010 requiring the respondent to pay markup (in terms of the said order), which has been set aside by the learned High Court in its constitutional jurisdiction vide impugned judgment, when confronted, learned counsel for the respondent states that he has no objection to comply with the said order and shall make the payment of the markup accordingly. Therefore, we dismiss the appeal as far as the first part of the dispute between the parties is concerned, vis- -vis the annihilation of the auction by the learned Cooperatives Judge which has been reversed by the learned High Court, in favour of the respondent; but at the same time, we uphold the order of the Board dated 20-3-2010 directing the respondent to pay the markup which should be paid by the respondent within a period of two months and upon the payment of the 75% balance bid amount along with markup as directed by the Board, the property should be transferred in favour of the respondent.

4. In the light of the above, this appeal is dismissed. MWA/P-3/S Appeal dismisse