P L D 1988 Supreme Court 138 (PLP)

NASIM HASAN SHAH, J.‑‑ The facts which form the background to this appeal, are that the Federal Shariat Court undertook the examination suo motu of inter alia the Sind Co‑operative Housing Authority Ordinance, 1982 (Ordinance V of 1982) with a view to determining whether the provisions of the said statute were repugnant to the injunctions of Islam as contained in the Holy Quran and/or the Sunnah of the Holy Prophet. This Ordinance provides for the establishment of a Sind co‑operative Housing Authority and Section 6 thereof is couched in the following terms:‑ "

6. Assignment of function to the Authority‑ (1) Government may, on being satisfied that a society has failed to perform its duties in accordance with laws, rules or bye‑laws, or constitution, memorandum or articles of association of the society, or has indulged or is indulging in mismanagement of the affairs thereof, or has acted or is acting in any manner prejudicial to the interests of the members of the society, issue such directions to the society as it deems fit or order an enquiry to be made into the affairs of the society in the manner as may be prescribed. (2) Where the society fails to comply with the directions or the order of enquiry is made under subsection (1), Government may, by notification direct the Authority to take over the charge and control of the affairs of the society. (3) (4) (5) (6) The learned Federal Shariat Court in its judgment passed on 21‑6‑1984 found subsection (2) of the above 6 Section to be repugnant to the injunctions of Islam, observing as follows:‑ "Section 6 (2) provides for virtual supersessWn of co‑operative housing societies. The Section provides that the Government of Sind may direct the Sind Co‑operative Housing Authority to take over the charge and control of the affairs of the society. It shall be provided in that subsection that the Government may issue such direction only after giving an opportunity to the Society of being heard." And directed that the above amendment be carried out by the Government of Sind by 30th November, 1984. The Government of Sind has appealed against the above order and in support of this appeal it has submitted that no reasons have been given, in the impugned judgment, to indicate as to how and in what manner the provisions of subsection (2) of Section 6 were repugnant to the injunctions of the Holy Quran or of those of the Sunnah. It .is further submitted that subsection (2) of section 6 was enacted to suppress the mischief committed by unscrupulous members/ officers of the Co‑operative Societies and their committees; and to protect the funds and movable and immovable properties of the Co‑operative Societies from being mismanaged/ embezzled/misr appropriated and/or fraudulently diposed of and to set right things whereafter the management of a taken over Society was to be handed over to the elected representatives by holding elections in accordance with the Bye‑laws of such Societies. Explaining the necessity for the impugned provision it is submitted that the provisions of Rule 48 of the Co‑operative Societies Rules, 1927 did not prove effective inasmuch as the delinquent members of the Committee and officers of the Co‑operative Societies, on whom show cause notices were issued before superseding the Committee, used to cause further or total damage to the funds or properties of the Society and by the time the order of supersession was passed, it was very difficult, if not impossible, to take effective action for the protection of the interest of the Society. This situation necessitated the enactment of the impugned subsection which permits the taking over as soon as an enquiry officer is appointed to enquire into the affairs of the Society. Even now the personss from whom the management is taken over get full opportunity and a right of hearing to present their case before the enquiry officer. The only purpose of the provision is to deal effectively with situations where public money is being misappropriated, and the committees, elected to serve the members honestly in practice cause wrongful loss to the Society and wrongful gain for themselves by their acts and omissions. We appreciate the background in which the impugned provision has been enacted but would observe that this Court has now made it quite clear that any provision of law whereunder some one can be harmed or condemned without affording such person an opportunity of defence against the said action, is against the Quranic Commands as supplemented and interpreted by the Sunnah of the Holy Prophet. This Court has held that when a public authority exercises a power to resolve a controversy involving rights and liabilities of some one, such a decision must not be given without affording the person affected an opportunity of hearing (Pakistan vs Public at Large: P L D 1987 S.C. 304 at 330/331/). Hence, we cannot agree with the learnedl counsel for the appellant that the absence of a provision requiring issuance ‑of a notice before taking action, in the impugned subsection (2) of section 6, is not repugnant to the injunctions of Islam. However, we agree that provisions for preventing mischief' which may be committed by unscrupulous members/officers of the Co‑operative Societies are indeed necessary. This need, in our opinion, can be achieved not by setting aside the direction issued by the Federal Shariat Court but by modifying it in a manner whereby the injunctions of Islam are not violated and at the same time the object of the impugned legislation achieved. In this connection, if Subsection (2) of Section 6 is amended as follows, the twin purposes mentioned above can be satisfied. Accordingly the following provisions be added to subsection (2) of section 6:‑ "The Government before taking action under the above: subsection (2) shall afford an opportunity of hearing to the Society: Provided that if, as an emergent measure, immediate taking of action is necessary such opportunity may be dispensed with, but such opportunity shall be afforded to the Society as soon, thereafter, as is possible. Provided further that in a case where such opportunity to the Society is duly afforded before the action is taken, the Government may pass such interim orders, for preventing the commission of mischief or abuse by the Society, as it may deem fit." The amendments on the lines indicated above should be carried out by 30th June, 1988. The upshot is that this appeal succeeds in part and is allowed in the above terms. No costs. M.B. A. /P. /26‑SC Appeal partly accepted