1986 PLP 1322 (MLD)

ABDUL QADEER CHAUDHRY, J.‑‑The petitioner is a Co‑operative Society. The respondent No.2 applied to the petitioner for a plot of land for the purpose of construction of a Nursing Home. The petitioner allotted a plot of land measuring 1,550 square yards to the respondent No.2 for the purpose of construction of Nursing Home. The respondent No.2 paid the development and other charges and accepted the allotment as such. The respondent No.2 did not start the construction but approached the petitioner for sub‑division of the plot but this request was not acceded to by the petitioner. The respondent No.2 was called upon by the petitioner to submit building plans for dispensary by means of letter, dated 28‑7‑1979 (Annexure 'G' to the petition). The respondent No. 2 thereafter, requested the petitioner to grant N.O.C. for commercialization of the said plot vide his letter, dated 13‑10‑1979 (Annexure 'H' to the petition). The petitioner did not grant such certificate to the respondent. According to the petitioner, the petitioner endorsed the plan for construction of a dispensary in 1979 but the respondent No.2 did not take any action and sent the same to Karachi Co‑operative Housing Societies Union Limited for being forwarded to the L.D.A. The Housing Unit vide its letter, dated 11‑12‑1983 (Annexure 'I' to the petition) informed the respondent No.2 that it did not forward the said plan to the K.D.A. on the ground that the proposed construction has been described and planned as commercial instead of residential. The petitioner executed sub‑licence in the standard form in favour of respondent No.2 (Annexure 'K' to the petition). The respondent No.2 again asked the petitioner to get the said plot commercialized vide his letter, dated 6‑8‑1984 (Annexure 'L' to the petition). The petitioner then executed allotment order in favour of the respondent No.2. The respondent No.2 again asked the petitioner to get the said plot commercialised. In 1979 N.O.C. for commercialization was not granted to respondent No.2. Moreover, under the terms of allotment the respondent No.2 was bound to construct a Nursing Home/Dispensary on this residential plot for the benefit of petitioner's members. The respondent No.2 submitted plans for endorsement vide his letter, dated 4‑1‑1985 but the petitioner requested him to execute the undertaking to the effect that the construction in question would be for dispensary/ Nusring Home for the benefit of the members of the petitioners. The respondent No.2 refused to execute such undertaking. The respondent No.2 approached the respondent No.1 and according to the petitioner an Inspector from the Department of respondent No.1 came anal delivered a libtter, dated 8‑6‑1985 from the respondent No.1 calling upon the petitioners to see him on 15‑6‑1985. The petitioner vide letter, dated 10‑6‑1985 requested the respondent No.1 to supply them a `copy and postpone .the meeting. The petitioners challenged the jurisdiction of respondent No.1 to entertain, hear or adjudicate the complaint. However, the respondent No.1 called a meeting between the parties and insisted upon the petitioner to accede to request of the respondent No.2. On 22‑7‑1985 the petitioner received a letter, dated 21‑7‑1985 from the respondent No.1 directing the petitioner to forward the building plans of the respondent No.2 within 15 days without imposing any condition of giving undertaking. The petitioner being aggrieved against the order of respondent No.1 has filed this petition. In the impugned order Annexure 'S' it has been observed that the allottee prepared a building plan of residential plot afresh keeping in view the instructions of Karachi Co‑operative Housing Societies Union Ltd. and submitted the same before the petitioner but the petitioner instead of forwarding it to the Union has asked the allottee to execute a fresh undertaking. The requirement of such undertaking at this state is not justified: The respondent No.1 therefore, directed the petitioner to forward the proposed building plan of the respondent No.2 within 15 days without imposing any condition.

2. Learned counsel for the petitioner has submitted that the respondent No.2 is a member of the petitioners' Society therefore, any dispute between the petitioner and respondent No.2 can only be decided by recourse to the provisions of section 54 of the Co‑operative Societies Act. This contention of the petitioner has not been disputed by the other side and in fact the proceedings had been taken under the provisions of the Co‑operative Societies Act and the Rules. It is contended by the learned counsel for the petitioner that the respondent No.1 under the Co‑operative Societies Act had no jurisdiction to adjudicate upon the matter as he is not authorised under the law to do so. It is contended that if there is a dispute between a member of the Society it should have been referred to the Registrar under section 54 of the Co‑operative Societies Act.

3. In order to consider the arguments of the learned counsel it is necessary to refer to relevant provisions of the Co‑operative Societies Act (hereinafter referred to as the Act). Under section 54 of the Act if arty dispute touching the business of a Society other than dispute regarding disciplinary action taken by the Society or its committee against a paid servant of the society arises: (a) between members or past members of the society or persons claiming through a member or past member, or (b) between members or, past members or persons so claiming and any past or present officer, agent or servant of the society, or (c) between the society or its committee and past or present member of the society, or (d) between the society or its committee and any past or present officer, agent or servant of the Society, or a surety of such officer, agent or servant, whether such surety is or is not a member of the society, or (e) between a financing bank authorised under subsection (1) of section 34 and a person who is not a member of a society. It shall be referred to the Registrar for decision by himself or his nominee, or if either of the parties so desires to arbitration 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. According to the learned counsel only the Registrar was competent to settle the dispute and respondent No. 1, who was Assistant Registrar was not competent to decide the dispute. Learned counsel for the respondent has placed on record an order, dated 24‑6‑1983 whereby the Registrar has nominated the Assistant Registrar to perform all the functions of the Registrar. Learned counsel for the petitioner has not been able to show that the respondent No.1 was not a nominee of the Registrar. As the respondent No.1 has been nominated by the Registrar therefore, all actions taken by him under section 54 are deemed t OA have been taken by the Registrar. In the counter‑affidavit filed by respondent No.2 it has been specifically stated that respondent No.11as passed the decision in exercise of the powers conferred upon him as the nominee of the Registrar. Learned counsel next contended that the matter should have been referred to arbitration but this has not been done. This contention has also no force because according to section 54 if either of the parties so desires the matter may be referred to the arbitration but the petitioner at no stage requested the Registrar or his nominee to refer the matter to arbitration. According to rule 32 of the Co‑operative Societies Rules, 1927, when a dispute has been referred to the Registrar, the Registrar or his nominee shall issue a notice to all parties, and unless, either of the parties desires within 15 days of the issue of such a notice that the matter be referred to arbitration, shall proceed to decide the dispute. The petitioner at no stage had requested the respondent No. l to refer the matter to arbitration. As there was no request on the part of the petitioner for making a reference to arbitration, the respondent No.1 under the law was authorised to proceed with the matter and decide the dispute. The petitioner has admitted that it had received the notices, dated 6‑6‑1985 and 8‑6‑1985 from the respondent No.1. The petitioner also addressed letter to the respondent No.1 after, receipt of notice and a reply to the complaint filed by the respondent No.2 was also given but the petitioner did not request that the matter be referred to arbitration. It was incumbent upon the petitioner to request the respondent No.1 for referring the matter to arbitration within 15 days. The petitioners submitted to the jurisdiction of the respondent No.1 and when a decision has been made against the petitioner they cannot challenge the jurisdiction merely on the technical ground. Next objection taken by the learned counsel is that the notic issued to the respondent was not in accordance with section 54 read with rule 32 of the Act. The notice was not sent in the prescribe manner. This contention is also without any substance. Appendix No. mentioned the summons to be issued to the parties but as stated above the petitioner had received the intimation. It filed the reply but did not raise any objection that notice was not sent in the prescribe form. They submitted to the jurisdiction of the respondent No.1 an now they cannot challenge the jurisdiction of the respondent No.1 only on the ground that notice was not sent on the prescribed form. Learned counsel has referred to P L D 1966 (W.P.) Kar. 177 but the observation made in this authority do not apply to the facts of the present case. On the other hand, learned counsel for the respondent has referred to P L D 1982 Kar. 336 wherein it has been observed that the fact that no notice was served in Form given in Appendix II would not vitiate the proceedings. Therefore, the observation in the above‑cited case would apply. In that case also no plea was raised in the arbitration proceedings and the same was not allowed to be raised in the petition. The matter had not been decided ex parte. The petitioner participated in the proceedings.

4. Even on merits the decision of the respondent No.1 is based on the letter of allotment, sub‑lease and the action of the petitioner. The sub‑licence was issued in favour of respondent No.2 and the plot was allotted for a residential purpose. Then allotment order has also been made and it has been specifically stated that it shall be exclusively for residential purpose. The respondent No.1 has considered the merits of the case and given a decision. The decision in the circumstances of the case is fair and just and it cannot be set aside in constitutional jurisdiction merely on technical ground as the order passed by the respondent No.1 advances the cause of justice. The allotment order and the sub‑lease show that the plot was allotted for residential purpose. Learned counsel for the respondent No.2 has stated that the respondent No. 2 was requesting the petitioner to give permission for commercialization because Nursing Home cannot be constructed without its conversion into commercial category. Payment of all charges have been made by the respondent No.2. The petitioner has not filed any appeal and revision as provided under sections 64 and 64‑A of the Act. The petitioner had the alternate remedy under the law which he failed to avail. The petition is no competent on this technical ground too.

5. Keeping in view the facts and circumstances of the case; we d not see any force in this petition and the same is dismissed with no order as to costs. The petition was dismissed by a short order, dated 17‑4‑1986 and the above are the reasons in support of the same. A.A. Petition dismissed.