1999 PLP 1668 (MLD)

Shaikh Mir Muhammad for Defendant No.3 Iqbal Qadri, Asstt.A.-G This is an application under Order 39, Rules 1 and 2, C.P.C. asking the Court to suspend the operation of Notification dated 16-4-1998 issued by the Government of Sindh, Food and Cooperation Department (hereinafter referred to as "the Notification") and to restrain Defendant Nos.3 and 4 from attending the meeting of the Society on 2nd May, 1998. The brief facts giving rise to the application are that the plaintiff is an elected Director of Fishermen Cooperative Society Limited (hereinafter referred to as "the Society"). According to Bye Law No.32(c) of the' Society seven directors are elected while eight directors are nominated by the Government of Sindh (Defendant No.2). It transpires that in pursuance of Bye-Laws 32(c) and 38 of the Society by Notification dated 1-8-1995 Government of Sindh nominated Mr. Lal Bux Bhutto, M. P. A., as Director of Defendant No. 1 for a period of 3 years w. e. f. 1-7-1995 and similarly by Notification dated 3-8-1995 appointed seven persons as Directors of the Society. Thereafter, before expiry of Mr. Bhutto's term the Government of Sindh by Notification dated 28-1-1997 nominated Mr. Adrian Kehar (Defendant No.6) as Director with immediate effect replacing Mr. Imdad Hussain Kehar for the remaining tenure. It appears that on 14-6-1997 the Registrar, Cooperative Societies exercising powers under Rule 48 of the Cooperative Societies Rules, 1927 superceded the Board of Directors and appointed Mr. Humayun Khan (Defendant No.3) as Administrator of the Society. This supersesssion was challenged by the Plaintiff in C.P. No.D-1522 of 1997 and this Hon'ble High Court by judgment dated 12-2-1998 declared the said Notification to be without any lawful authority (Annexure "A" to the plaint), but in view of special circumstances of the case appointed Mr. Bashir A. Memon, Official Assignee of this Court as Administrator of the Society to hold elections of the elected directors, however, no order was passed in relation to the Government nominated directiors. The judgment of the High Court was challenged before the Supreme Court of Pakistan in C.P.L.A. No.93-K of 1998 but was dismissed by order dated 4-3-1998. The elections were held on 6-3-1998 when the Plaintiff alongwith six other persons were duly elected as Directors of the Society. On about 16-3-1998 certain Members and elected Directors of the Society filed a complaint to the Registrar, Cooperative Society (Defendant No.7) against Humayun Muhammad Khan, Ex-Administrator of the Society. It is alleged that while the complaint was under consideration by Defendant No.7, Government of Sindh issued the impugned Notification dated 16-4-1998 whereby it nominated eight Directors of the Society. On 30-4-1998 the Plaintiff filed the present Suit, inter alia, challenging Government of Sindh's Notification dated 16-4-1998, seeking delcarating that Defendant No.5 (Secretary Labour Department) and Defendant No.6 continue to the Directors and for restraining Defendant No.3 (Mr. Hymayun Khan) and Defendant No.4 (Additional Chief Secretary, Development and Planning Department) from attending any meeting of the Board of Directors. Alongwith the Plaint, the Plaintiff also filed an Application under Order 39, rules 1 and 2, C.P.C. for Interim Relief seeking suspension of the operation of Government of Sindh Notification dated 16-4-1998 (hereinafter referred as "the Notification") nominating eight persons as Directors of the Society which was granted and the operation of the aforesaid Notification was suspended till the next date of hearing. The Ad interim Order was extended from time to time and is still in operation. The Registrar Cooperative Societies (Defendant No.7) filed his counter-affidavit wherein he controverted the allegations of the plaintiff and took various legal pleas regarding the maintainability of the Suit and the Application. The Plaintiff filed a Rejoinder to the same. Mr. M.L. Shahani, learned counsel for the Plaintiff, Mr. Shaikh Mir Muhammad, learned counsel for Defendant No.3 and Mr. lqbal Qadri, learned Assistant Advocate-General submitted their arguments on various aspects of the matter. At the outset Mr. Iqbal Qadri, learned Assistant Advocate-General challenged the maintainability of the Suit to light of sections 70 and 70-A of the Co-operative Societies Act, 1925 ("the Act") Mr. M.L. Shahani submitted that such an objection should not be considered by the Court as the Government of Sindh had not filed any counter-affidavit or raised such objection in writing. It may be so, but it is an established law that the question of Jurisdiction can be raised by any time in Appeal before the Supreme Court. It is also well -established that the Court has inherent power to examine on its own initiative a Plaint, return it under Order 7, Rule 10 or reject it under Order 7, Rule 11, C.P.C., if the circumstances so require, whether or not a party requests a Court to do so. As the question of jurisdiction and maintainability under sections 70 and 70-A of the Act is crucial to the fate of the Suit and the Application, it is proper to decide this issue before proceeding with the Suit on merits and other legal objections raised by the Defendants. Section 70 of the Act clearly states that no suit shall be instituted against the society or any of its officer in respect of any act touching the business of the society unless two months notice in writing has been served on the Registrar Cooperative Society or left at his office stating the cause of action the name description and place of residence of the Plaintiff and the relief which he claims: and the plaintiff shall contain a statement that such notice has been so served. Further section 70-A provides, inter alia, that no Court shall have jurisdiction to entertain or adjudicate upon any matter which the Provincial Government the Registrar or his Nominee etc. is empowered by or under the Act or Rules or by-laws framed thereunder to decide or determine. It further provides that, no Court shall by competent to grant any injunction or pass any other order in relation to any proceedings under the Act or any by-laws framed thereunder. Learned counsel for the Plaintiff contends that the bar of sections 70 and 70-A of the Act would be applicable only if the act complained of touches the business of the Society If the act does not do so, the provisions of these two sections would not be attracted. According to him the Notification does not relate to or touches the business of the: Society. The Plaintiff has sought, among others, a declaration that the Notification is invalid and also an Injunction to restrain certain persons nominated in the Notification to act as Directors of the Society and attend any meeting. The Society has been established, inter alia, to improve the condition of Fishermen who are its members, grant advances and loans to its members, disseminate the knowledge of latest improvement in fishing industries etc. The object can only be achieved if the Society functions in accordance with its By-Laws. Under By-Law 32 of the Society the management of the business and affairs of the Society are entrusted to a Board of Directors which shall consist of not less than 15 Directors, out of whom seven shall be elected Directors and eight Directors shall be nominated by the Government of Sindh. The Notification issued under By-Law No.32(e) of the Society relates to the nomination of eight Directors by the Government of Sindh. The plaintiff has in the Suit among others, challenged the legality and validity of this Notification. An interference in the work of the Directors nominated by the Government of Sindh would naturally interfere with the business and affairs of the Society and the Society, would not be able to work for the achievement of its objects. Further, the Notification, in my opinion, relates to and touches the business of the Society as the Society cannot work without the eight Government nominated Directors. It is a matter which must be decided in accordance with the provisions of the Act. Section 70-A clearly bars the jurisdiction of a Civil Court to entertain or adjudicate upon any matter which is covered by the provisions of the Act. The Civil Court is also barred from granting any Injunctions or passing any Order in relation to any proceedings under the By-Laws of the Society and 0hviously attending of Board Meetings and running the affairs of the Society by the nominated Directors is done pursuant to an Order issued by the Government of Sindh under the By-Laws of the Society. It is also an admitted position that the Plaintiff did not give two months notice to the Registrar, as required under -coon 70 of the Act. In view of the above discussion, I have no alternative but to hold that the Suit is barred under sections 70 and 70-A of the Act. Consequently, the Plaint is hereby rejected under Order 7, Rule 11 and the ad interim Injunction granted earlier is vacated. The Plaintiff shall pay costs of Rs.5,000 each to the contesting Defendants. A.A./S-174/K Plaint rejected.