P L D 1966 (W (PLP)

WAHIDUDDIN, J.‑

This writ petition in directed against the order of the Registrar, Co‑operative Societies, Karachi, passed on 29th May 1962. By this order the learned officer directed the respondent No. 2 Society to cancel the allotment of plot No. 380 in favour of the petitioner and, cancelled the proceedings instituted by one Mr. Muhammad Hussain. He further directed the Society to allot the plot in question to Mr. Haqqani respondent No.

3. It has arisen in the following circumstances.

2. Mr. Haqqani, respondent No. 3 is a member of Bahadur Yar Jung Co‑operative Housing Society Limited, respondent No.

2. On an application under section 54 of the Bombay Co‑operative Societies Act in November 1956, the Registrar's nominee to whom the case was referred gave an award that plot No. 36 in Block No. 3 be allotted to him. Mr. Haqqani's revision was dismissed by the Chief Commissioner on 16th July 1957, on the following observations: "The order given by the Registrar is quite clear and lays down that Mr. Haqqani must be given a plot of land in Block No.

3. The Society is expected to comply with that order within a reasonable period of time. He would have, however, the right to go to the Registrar and ask for specific performance of the directive if the Society fail to comply with it. I do not think that there is anything wrong with the order of the learned Registrar, and I see no reason, to interfere with it. The petition is rejected." Since then respondent No. 3 has been making frantic efforts for compliance of this order. In this connection he approached respondent No. 1 who directed the said Society to comply with the award but they failed to do so. On 14th November 1958, on the application of respondent No. 3 the Registrar allowed compensation to him at the rate of Rs. 20 per sq. yard for a plot of 600 sq. yards on the failure of the Society to allot any plot to him. Even thereafter, respondent No. 3 claimed allotment of certain plots of land in Block No. 3, but as those plots were of, bigger size, he was unable to obtain them. The Society, however, promised that if a plot of 600 sq. yards is available in Block No. 3 his case will be considered favourably.

3. It appears that on 29th May 1961, plot No. 380 Block No. 3 measuring 576 sq. yards became available but it was allotted to Mr. Shaikh Haider, the petitioner. Thereupon respondent No. 3 approached the Registrar for the allotment of this plot in implementation of the award of 1957. But it was discovered that one Muhammad Hussain, a member of the Society was also its claimant and the Registrar had already referred his claim for decision to his nominee and who had in turn directed the petitioner and the Society to maintain status quo till his decision. In spite of this on the application of respondent No. 3, respon dent No. 1 pressed respondent No. 2 to allot the plot in dispute to him. The Society at its meeting held on 26th February 1962, decided that the question of the allotment of the plot in dispute could only be considered after the stay order issued by the nominee is vacated. At this stage the petitioner intervened and moved the Registrar to hear him before passing any final order on the proposal of the Committee. The learned Registrar, after hearing the petitioner and respondent No. 3 and the representative of the Society, by order dated the 29th May 1962, issued the above‑mentioned directions on the following observa tion:‑-- "This is a very clear and simple case: The final orders passed in Mr. Haqqani's case still remain un complied. In view of the decree in his‑favour Mr. Haqqani enjoys better claim over all other claimants. The allotment of plot No. 380 in favour of Mr. Shaikh Haider it itself illegal, as it was done in clear violation of the` decree and directions issued from this office and the Commissioner, Karachi. The claim of Mr. Mahmood Hussain has cropped up subsequently. He has no better claim than, the applicant Mr. Haqqani, who holds a decree in his favour. I, therefore, approve the proposal of the Committee canceling the allotment of plot No. 380 in favour of Mr. Shaikh Haider and cancel the 'proceedings instituted by Mr. Mahmood Husain under Reference No. ABN 276/61 and direct the society, to allot plot No. 380, Block No. 111, to, Mr. Haqqani. The plot at present in the name of Mr. Haqqani in Block No. VI3 and VIII will be available for allotment in‑the Society."

4. The petitioner has challenged this order in this writ petition. In support of the petition Mr. Iqbal Kazi, learned counsel for the petitioner, has urged a number of points. It is unnecessary to discuss all the points because the matter can be, disposed of on a short question whether respondent No. 1 was competent and had jurisdiction to pass the impugned order The learned counsel appearing for the petitioner contended that respondent No. 1 had no power to cancel the proceedings pending before his nominee and directing the Society to allot the plot in dispute to respondent No:

3. The impugned order is further attacked on the ground that it was passed without notice or show‑cause notice to all the interested parties. In reply Mr. Valiani and Mr. Nusrat, counsel appearing for respondents 1 and 3, contended that the Registrar, Co‑operative Societies had ample jurisdiction in the matter. The case before him merely arose out of an irregular allotment by the Society and was open to scrutiny before him. They contended that there was no ques tion of referring the dispute to arbitration and the order of the Registrar being of an administrative nature suffers from no illegality. Learned counsel appearing for the said respondents further contended that respondent ‑ No. 3, under the final order passed by the Chief Commissioner, Karachi, referred to earlier, was entitled to a plot of 600 sq. yards in Block 3 of the Society and, therefore, the allotment of the petitioner made in May 1961, was in utter disregard of the said order and solemn promises made by the Society; and, therefore, the Registrar, Co‑operative Societies was fully justified in issuing the above directions to respondent No.

2. Mr. Azharali Siddiqi, learned counsel appearing for respondent No. 2, however, at the hearing conceded that the impugned order is without jurisdiction and the Registrar was not competent and had no jurisdiction to pass it.

5. The short question, therefore, for consideration is whether the Registrar had jurisdiction to pass the impugned order. In this connection it will be noticed that respondent No. 3 obtained an award against respondent No. 2 on 27th December 1956, directing the Society to allot plot No. 36 in Block 3 to him. The award was amended in appeal by the Registrar, Co operative Societies by his order dated the 16th March 1957 on the following observations:‑ "The Society's representative agreed that injustice has been done to Mr. Haqqani and that the administration will accom modate him in Block No.

3. Mr. Haqqani is an old member of the Society and plots to several persons admitted much later have been allotted m Block No. 3." It was upheld by the Chief Commissioner on 16th July 1957. Thus the respondent No. 3 had an award against the Society directing them to allot him a suitable plot in Block 3 in lieu of his claim. Under section 59 of the Bombay Co‑operative Societies Act, as amended, every order passed by a Registrar or his nominee or arbitrators on disputes referred to him or them under section 54 of the said enactment, if not carried out on al' certificate signed by the Registrar, shall be deemed to be a decree of a Civil Court and is executable in the same manner as a decree of such Court. It is, therefore, quite clear that it was open to respondent No. 3 to execute the award as a decree of a Civil Court against the respondent No. 2, Society.

6. Unfortunately, respondent No. 3 did not pursue his remedy in the said manner. On the other hand, later on he moved the Registrar on a complaint that respondent No. 2 had failed to implement the order finally upheld by the Chief Commissioner and claimed compensation. Thereupon, the Registrar on 14th October 1958, passed the following order: "I, therefore, order that Mr. Muhammad Abdul Qayyum Haqqani should be paid compensation at the rate of Rs. 20 per sq. yard, i.e., Rs. 12,

000. Future interest at 6 % p.m. which will accrue from 1‑11‑1958, if the amount is not paid during this period. This rate is allowed because lands are not avail able in this area at less than this price. He is not entitled to his plat which was allotted to him in Block No.

7. If he is allotted a plot in Block No. 7 'measuring less than 600 sq. yards, he will be entitled to get compensation at the ‑rate of Rs. 20 per sq. yard on the balance of the area not given." Respondent No. 3's case is that the Society was not prepared to pay compensation, nor was he, under the circumstances, prepared to accept any. According to him, the claim of one Nisar Ahmed over plot No. 423 measuring 935 sq. yards was dismissed in appeal by the Registrar, Co‑operative Societies and it was to be allotted to him, but he could not succeeded. Later on, he abandoned the claim about it as the Society had agreed to allot him on availability a suitable plot in Block 3.

7. It is, therefore, for consideration whether respon dent No. 1 is competent to set aside any irregular allotment made by any Co‑operative Society under the provisions of the Bombay Co‑operative Societies Act, as amended, applicable to Karachi. The learned counsel appearing for the contesting respondents was unable to refer to any provision of law except sections 54 and 64‑A of the said enactment. Section 54 of the said enactment provides that if any dispute touching the business of a. Society arises between members or past members of the Society, etc., it shall be referred to the Registrar for decision by himself or his nominee, or if either of the parties so desires, to arbitra tion of three arbitrators who shall be the Registrar or his nominee and two persons of whom one shall be nominated by each of the parties concerned. It was conceded by the learned counsel that no dispute was referred by the Society or by any of the parties for adjudication by the Registrar under the above mentioned provision of law. It is, therefore, quite plain that the Registrar did not pass the impugned order under the above provision of law.

8. Before the matter is considered further it will be conveni ent to mention here that the petitioner was allotted plot No. 380 in Block No. 3, Bahadur Yar Jung Co‑operative Housing Society Ltd., Karachi on 29th May 1962. On 15th June 1961, a sub licence was granted to him which was duly registered. On 30th June 1961, he paid all the charges due for the said plot. The plot was demarcated and possession was delivered on 29th June 1961. The petitioner got approval for the construction of a boundary wall from the K. D. A. on 11th November 1961. It is alleged by him that he raised a boundary wall over the plot in dispute before 12th December 1961. It is further in evidence that on 13th December 1961, one S. Mahmood Hussain, a member of the Society, had challenged the petitioner's allotment and the dispute was referred by the Registrar to his nominee on the above mentioned date for adjudication; and on 19th January 1962, the nominee had issued a Stay Order maintaining status quo about the plot in question. In these circumstances, it cannot be denied that the petitioner had acquired vested right in the property in dispute and before he could be deprived of it, it was incumbent on the Society and other persons aggrieved by leis allotment to get the entire dispute settled in .a forum of competent jurisdic tion. As stated earlier it was conceded that the Registrar, respondent No. 1, did not pass the impugned order in ‑the capa city of an arbitrator. The concession was rightly made because for acting in. that capacity certain procedure is to be followed and all the interested parties should have been before him. In fact, Muhammad Husain at whose instance the dispute between him and the petitioner was referred on 13th December 1961, to the nominee of the Registrar was not a party to the proceedings in which the impugned order was passed. Besides, under this provision of law the only power vested in the Registrar is to suspend arbitration proceeding under certain circumstances and the impugned order is not of that nature even.

9. In support of his case Mr. Valiani referred us to 64‑A of the Bombay Co‑operative Societies Act which reads as under:‑ "64‑A. (The Provincial Government) and the Registrar may call for and examine the record of any inquiry or the proceedings of any officer subordinate to them for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed and as to the regularity of the proceed ings of such officer. If in any case, it shall appear to (the Provincial Government) or the Registrar that any decision or order or "proceeding so called for should be modified, annulled or reversed, (the Provincial Government) or the Registrar, as the case may be, may pass such order thereon as to it or him may seem fit." It will be noticed that this provision of law has a limited range and is revisional in character. The power is vested in the Registrar to call for and examine the record of any inquiry or the proceedings pending before any officer subordinate to him. Obviously it contemplates the scrutiny of any administrative or departmental enquiry or proceeding pending before the subordi nate officers. It seems to us that it has no application to cases in which arbitration proceedings are going, on. Under the enactment for challenging such proceedings quite different procedure is provided. In this view we are further strengthened by the fact that members of the Society or the Society cannot be considered to be subordinate officers to the Registrar within the meaning of the section relied upon. In the present case the Registrar considered the propriety of the allotment of the petitioner by the Society and it is quite plain that its legality or illegality could not be decided under section 64‑A. It was urged that the Registrar was competent to consider the validity of the arbitra tion proceedings pending before his nominee. This argument has not impressed us because the nominee acting in the capacity of an arbitrator cannot be considered to be a subordinate official of the Registrar.

10. Besides, there is nothing on the record to show that the learned Registrar called for the record of the proceedings pending before the nominee in the dispute between Mr. Mahmood Hussain and the petitioner. It is difficult to appreciate how the learned officer could set aside the stay order passed by the nominee without notice to Mahmood Hussain or the nominee itself. Similarly, it is difficult to appreciate under what provision of law the learned Registrar was competent to direct the Society to cancel the allotment of the petitioner and to allot it to respon dent No.

3. In our view, the learned Registrar in passing the impugned order had acted without jurisdiction and it is a nullity in the eye of law. In these circumstances, we would quash the impugned order and‑ leave the respondents to pursue such legal remedy as may be available to them to get rid of the allotment made to the petitioner of the plot in dispute.

11. In the result, subject to the above remarks, the petition is allowed with no order as to costs. K. B. A. Petition accepted.