1988 PLP 2201 (CLC)

(i) N.P. No. 1178/82:

2. In case of Writ Petition No. 1178 of 1982, the petitioner, Ghulam Haider, the Ex‑Branch Manager of Kalurkot Branch of the Mianwali Central Co‑operative Banks (since dissolved) was issued a notice under Section 5 of the West Pakistan Co‑operative Societies and Co‑operative Banks (Repayment of Loans) Ordinance, 1966, by the Deputy Registrar, Co‑operative Societies, Sargodha Division, Sargodha, for the Repayment of Loans. Similarly, notices were issued to two other employees, namely, Ghulam Shabbir son of Rabnawaz and Afzal Khan son of Dilawer Khan. The petitioner and others did not make payment of the loans by the date prescribed in the notice. Consequently, the proceedings under the aforementioned Ordinance were resorted to and the Deputy Registrar, Cooperative Societies, Sargodha Division, Sargodha, vide his order dated 26‑7‑1980, held that Ghulam Haider petitioner, in connivance with Khursheed Ahmed and Muhammad Iqbal, secured loan amounting to Rs.9,51,033,71, in fictitious names but misappropriated the loans themselves. The petitioner's liability in respect of such benami' loans was fixed as Rs.2,49,401.44, He was, therefore, ordered to pay this amount of Rs.2,49,401.44 together with interest at the rate of 13‑1/2% per annum with effect from 1‑7‑1972 till the final payment. The other employees, Ghulam Shabbir and Afzal Munir, to whom notices were also issued under section 54 of the Ordinance, were, however, exonerated.

3. The petitioner, Ghulam Haider, challenged the order passed by the Deputy Registrar, Co‑operative Societies, Sargodha Division, Sargodha, by way of Revision before the Registrar, Co‑operative Societies, Punjab, Lahore. His Revision was dismissed by the Registrar on 27‑9‑1981.

4. The aforementioned orders dated 26‑7‑1980, passed by the Deputy Registrar, Co‑operative Societies, Sargodha Division, Sargodha, and dated 27‑9‑1981, passed by the Registrar, Co‑operative Societies, Punjab, Lahore, have been assailed by Ghulam Haider through Writ Petition No. 1178 of 1982.

5. It has been mainly contended on behalf ‑of the petitioner that notice, under section 5 of the West Pakistan Co‑operative Societies and Co‑operative Banks (Repayment of Loans) Ordinance, 1966, dated 3‑6‑1978, culminating into the impugned orders purports to have been issued by the Deputy Registrar, Co‑operative Societies; Sargodha Division, Sargodha, while under the provisions of the Ordinance, in case of loans in excess of Rs.30, 000 such notice can only be issued by the Registrar. It has also been urged that before issuing the notice and passing of the impugned orders, requirements of the Ordinance have not been duly fulfilled. It has also been maintained that Ordinance of 1966 speaks of loans' and not of 'Benami loans; no evidence has been produced to enable the Deputy Registrar to determine as to in the names of which fictitious persons the loans were allegedly obtained by the petitioner; the Deputy Registrar did not specify the date by which the loan was to be repaid and that on the basis of the material available before the Deputy Registrar, no liability could be determined against the petitioner. The plea that the proceedings culminating into the impugned order dated 26‑7‑1970 were resorted to ex parte against the petitioner without affording him an opportunity of hearing of show cause has also been raised. (ii) W.P. No. 2079 of 1982:

6. In case of Writ Petition No. 2079 of 1982, on the basis of an audit report of Chaudhry Abdul Qayyum, ex‑Professor, Co‑operative Training College, Faisalabad, which he submitted as a special auditor, Khursheed Ahmad Khan petitioner was held liable by the Deputy Registrar, Co‑operative Societies, Sargodha Division, Sargodha, for the payment of Rs.2,53,210 together with interest amounting to Rs.1,92.76311 till 31‑12‑1977 and with further interest at the rate of 13‑1/2$ per annum till payment as a beneficiary. This order was made under the provisions of the West Pakistan Co‑operative Societies and Co‑operative Banks (Repayment of Loans) Ordinance, 1966, on 19‑2‑1981. Similarly, Muhammad Iqbal petitioner was burdened by the Deputy Registrar on the basis of the aforementioned Special Auditors report with liability to pay Rs.4,42,422.18 on account of principal and Rs.3,28,907.42 on account of interest till 31‑12‑1977 together with interest at the rate of 13.1/2$ per annum till payment. He too was held as a beneficiary of the aforementioned 'benami' loan.

7. The petitioners called in question the aforementioned order dated 19‑2‑1981 of the Deputy Registrar, Co‑operative Societies, Sargodha Division, Sargodha, by way of revision under section 9‑A of the West Pakistan Co‑operative Societies and Co‑operative Banks (Repayment of Loans) Ordinance 1966, before the Registrar, Co‑operative Societies, Pubja, Lahore.

8. The learned Registrar, Co‑operative Societies, dismissed the revision on 21‑2‑1982.

9. This Constitutional Petition assails the aforementioned orders dated 19‑2‑1981, passed by the Deputy Registrar, Co‑operative Societies, Sargodha Division, Sargodha, and dated 21‑2‑1982, passed by the Registrar, Co‑operative Societies, Punjab, Lahore.

10. It has been urged that the goods pledged with the bank by the petitioners have not been taken into consideration and their price has not been adjusted; the proceedings against the petitioners were resorted to ex parte, without service of a notice on them. The Deputy Registrar could not lawfully pass an order in respect of a loan exceeding Rs.30,000 under the provisions of the West Pakistan Co‑operative Societies and Co‑operative Banks (Repayment of Loans) Ordinance, 1966, such an order could be passed only by the Registrar; the Registrar summarily dismissed the petitioners' revision without taking into consideration the contentions raised on behalf of them. (iii) W.P. No. 3920 of 1982:

11. In case of Writ Petition No. 3920 of 1982, vide Award dated 1‑1‑1973 (Annexure 'M'), purporting to be under section 54 of the Co‑operative Societies Act (No. VII of 1925), the Assistant Registrar, Co‑operative Societies, Mianwali, burdened Khursheed Ahmed Khan, the deceased petitioner, with a liability of Rs.109,343.30 on account of principal amount together with interest and Rs.13,668 on accounts of legal expenses.

12. These Awards were earlier challenged through Writ Petition No. 3916 of 1977 before this Court on the grounds that the Awards were ex parte and failed to take into consideration the value of the goods which had been pledged with the bank and were in their custody. The writ petition was, however, dismissed by a learned Judge of this Court on 25‑3‑1978. It was held that an Award of Arbitration was assailable in Appeal and similarly, under section 64‑A of the Co‑operative Societies Act, power of revision was available to the Registrar or the Secretary of the Provincial Government.

13. It appears that subsequently an appeal was filed before the Secretary to Government of Punjab, Co‑operative Department, Lahore, but the same was dismissed in default‑ on 25‑11‑1981. Thereafter, an application for re‑admission of the appeal was also filed but the same too was dismissed on 1‑8‑1982.

14. Through the present Constitutional Petition, the order of the Secretary, Co‑operative Societies, dated 1‑8‑1982 as also the aforementioned Awards dated 1‑1‑1973 of the Assistant Registrar, Co‑operative Societies, Mianwali, have been assailed.

15. Regarding the Awards it has again been urged that the petitioners were not afforded with an opportunity of hearing and without any justification ex parte Awards were made. It has also been maintained that agricultural produce, pledged with the bank by the petitioners, has not been taken into consideration and the price of such goods has not been adjusted while making the Awards against them. As for the orders of the Secretary Co‑operative Societies, it has been maintained that on the date of hearing of appeal, the clerk of the petitioner's counsel attended the office of the Secretary, but he (the Secretary) had gone to the Airport to receive the Turkish President. The officials present in the office of the Secretary informed the clerk of the petitioner's counsel that he could enquire about the next date of hearing at 12‑00 noon on the following day. When such an enquiry was made, it transpired that the appeal had been dismissed in default on the very day of which it was fixed. Subsequently, the petitioners filed an application for restoration of the appeal but the same was wrongfully dismissed through the impugned order.

16. The contentions raised on behalf of the petitioners in the three under consideration Writ Petitions have ‑ been thoroughly considered and fully analysed. Regarding the main contention that under the provisions of the West Pakistan Co‑operative Societies and Co‑operative Banks (Re‑payment of Loans) Ordinance, 1966, the Deputy Registrar, Co‑operative Societies, Sargodha Division, Sargodha, had no jurisdiction to issue notice under section 5 ibid in case of loans in excess of Rs.30,000, it may be observed that vide Notification No. S.O. (J$B) 4‑14/66 dated 4‑10‑1977, the Governor of the Punjab conferred upon the Deputy Registrars of the Co‑operative Societies, working in Rawalpindi, Sargodha, Lahore Multan and Bahawalpur Division, all the powers of the Registrar, Co‑operative Societes. It thus becomes evident that at the relevant time, the Deputy Registrar, Sargodha Division, Sargodha, was fully possessed of the jurisdiction to issue notice under section 5 of the West Pakistan Co‑operative Societies and Co‑operative Banks (Re‑payment of Loans) Ordinance, 1966, to the petitioners. There is thus no merit in the plea regarding lack of jurisdiction. The next important plea raised in these cases is that proper opportunity of hearing has not been afforded to the petitioners and they have been condemned unheard. It has been noticed that the petitioners were duly notified about all the dates of hearing before the Deputy Registrar, but on one pretext or the other, they have failed to appear. Instead of defending themselves before the Deputy Registrar, the petitioners resorted to unsuccessful litigation before the Civil Courts and the High Court. As a matter of fact, the petitioners had admitted in writing their liability to pay the loans in question and asked for some time to be allowed to them for repayment of loans. In regard to such admissions, the learned counsel for the petitioners has placed reliance on: (i) Dr. Qaseem Arsal Jaiari v. Matloob Hussain etc. (NLR 1980 AC 383), (11) Mian Muhammad Nazir etc. v. Land Acquisition Collector, Lahore etc. (N L R 1980 Revenue Lah. 18) and (iii) Mst. Amina Begum v. Deputy Settlement Commissioner Circle I, Lahore and 3 others (P L D 1980 Lahore 571), to say that it is the duty of the Court to apply correct law and that the void order is always to be struck down without keeping in view the conduct of the petitioner. The impugned Awards were alleged to be void for the reason that the Deputy Registrar, who conducted the proceedings, lacked jurisdiction and that the Awards were made without affording opportunity of hearing to the petitioners. It has already been held that the Deputy Registrar did possess the jurisdiction by virtue of the Notification of 1977 and that on all occasions the, dates of hearing) were duly notified to the petitioners, but they themselves failed to appear before the Deputy Registrar and had recourse to litigation before different forums. In these circumstances, the principles enunciated in the aforementioned precedents have no application to the facts of the present case. In Writ Petitions Nos. 2079 of 1982 and 2920 of 1982, it has also been maintained on behalf of the petitioners that the goods pledged with the bank have not been taken into consideration while passing the impugned orders and that the cost of these goods has not been adjusted in favour of the petitioners. This plea has no merit for the purposes of under consideration Constitutional Petitions inasmuch as the High. Court in exercise of writ jurisdiction cannot enter into realm of facts and thus during the course of hearing of writ petitions, it was none of the functions of the High Court to find that if any goods were actually pledged by the petitioners with the bank or that the cost of such goods has or has not been adjusted in favour of the petitioners. It has also been urged that while deciding the revisions, the Registrar Co‑operative Societies, failed to consider the petitioners' contentions and that he summarily dismissed the revisions. Admittedly, the Registrar was possessed of the jurisdiction to accept or to dismiss the petitioners' revisions. His order, whereby the petitioners revisions have been dismissed, is well‑reasoned on the face of it. An order passed by a Tribunal of competent jurisdiction cannot be allowed to be called in question before the High Court in its writ jurisdiction, merely because that a difference conclusion could also possibly be arrived at. In the absence of lack of jurisdiction, perversity on the face of the record and the order being unjust and unfair, an order passed by a Tribunal of competent jurisdiction, is unassailable because a Court or tribunal of competent jurisdiction is competent to pass a right or wrong order. No such shortcoming, however, is noticed in case of the order passed by the Registrar, whereby the petitioners revisions were disposed of. As regards the order passed by the Secretary, Co‑operative Societies the same has been challenged on the ground that the petitioners' appeal was dismissed in default without any fault on their part because the Secretary himself had gone to receive the Turkish President at the Airport and the clerk of the petitioners' counsel was told that he could enquire about the date of hearing on the following day but on that very day the appeal was dismissed in default and the petitioners' application for restoration was also wrongfully dismissed It may be stated that when analysed, there does not appear to be any substance in the petitioners, contention. Evidently, the petitioners or their counsel did not put in appearance on the day when the appeal was fixed. It has been alleged that on the following day, petitioners' counsel's clerk learnt about the dismissal in default of the appeal. Obviously, the Secretary, Co‑operative Department of the Provincial Government was available when he dismissed the appeal in default. His non‑availability on account of the arrival of the Turkish President may be for a short duration while for the remaining working hours, he was available in his office. Moreover, if the petitioners learnt through the clerk of their counsel only one day after the dismissal in default of their appeal, restoration application could have been filed on the day when they learnt about the dismissal or a day or so later on. But in the present case, restoration application was received by the Secretary through post after the expiry of period of limitation. It has been urged that the petitioners posted their application for restoration within the prescribed period of limitation and that might have reached subsequently. In F.N. Roy v. Collector of Customs, Calcutta and others (A I R 1957 SC 648), it has been held that date of receipt by the appellate authority of memorandum of appeal is the date of filing of appeal and not the date of posting the memorandum. In this view of the matter, the petitioners cannot claim that when they posted the restoration application, it' was within time. It was obviously time‑barred when it was received by the Secretary, Co‑operative and, therefore, he was justified to dismiss the same as being time‑barred. The plea that 'benami' loan is not a loan' within the meaning of the West Pakistan Co‑operative Societies and Co‑operative Banks (Repayment of Loans) Ordinance, 1$66, is totally devoid of merit. Legally as also morally, a beneficiary is obliged to repay the loan which he obtains in the name of some other person. The beneficiary cannot be permitted to turn round and say that 'benami' loan is not a 'loan' according to Ordinance of 1966. 'Benami' loan is a loan for all intents and purposes, as has already been held by this Court while dismissing the earlier writ petition of the petitioners on 10‑12‑1980 (W.P. No. 4049 of 1978).

17. In the light of the foregoing discussion, it is concluded that there is no merit whatsoever in the under consideration writ petitions, which are, therefore, dismissed with costs. H . B . T . / G‑154 / L Petitions dismissed.