P L D 1930 Karachi 251 (PLP)

FAKHRUDDIN G. EBRAH1M, J.-This judgment will dispose of Constitutional Petitions Nos. D-932, 933, 934 and 935 and 936 of 1978.

2. A dispute between the respondent No. 2 and the petitioners, all members of a Co-operative Society were referred under section 54 of the Co-operative Societies Act, 1925, -o the arbitration of three 'arbitrators a Board of Arbitrators, who were, respectively, the nominees of the Registrar, the petitioners and the respondent No.

2. A majority decision was given by the arbitrators on 11-3-1974. The respondent No. 2 being aggrieved by this majority award filed, on 7-4-1975, an appeal under section 56 of the Act before the Deputy Registrar, exercising powers of the Registrar, which appeal was dismissed on 27-10-1975 as not maintainable. In arriving at this decision the Deputy Registrar relied on a Division Bench decision of this Court reedited in P L D 1975 Kar. 12 that appeal did not lie under section 56 of the Act against a majority award made by a Board of Arbitrators. Following the above the respondent No. 2, in January, 1976, filed an application under section 54-A of the Act before the Deputy Registrar to set aside the majority award referred to above which was dismissed by the Deputy Registrar on 20-8-1976. The Deputy Registrar held the application to be not maintainable as the respondent No. 2 had earlier chosen to file an appeal under section 56 of the Act which had been dismissed. He further observed that the remedy of the respondent No. 2 was to prefer an appeal or revision to the higher authorities against his earlier order rejecting appeal under section 56 of the Act instead of re-agitating the matter on the same grounds by an application under section 54 ,

4. The respondent No. 2 then approached the Registrar under section 64-A of the Act which was allowed by order dated 7-8-1977, the operative part of which reads as follows: "It appears that the petitioner had preferred an appeal under section 56 of the Co-operative Societies Act before the Deputy Registrar against the award passed by the Board of Arbitrators which was heard by him and rejected. Therefore, the petitioner filed an application under section 54-A before the Deputy Registrar, Karachi which was also dismissed by him vide his order dated 20-6-1976 on the around that the application filed under section 54-A contained the same facts brought in an appeal filed under section 56 of the Co-operative Societies Act and already dismissed. Perusal of the order passed by the Deputy Registrar reveals that he has neither discussed the legal issues not touched the facts of the case. He has simply passes order on the basis of his decision taken on the application filed under section 56 of the Co-operative Societies Act, thus the Deputy Registrar has not applied his mind while deciding the matter. In view of the above position I set aside the order of the Deputy Registrar, Karachi dated 20-6-1976 and remand the case to him with the direction to hear the application afresh and dispose of the same keeping in view the legal aspects and merits of the case."

2. Mr. Khalid M. Ishaque, assisted by Raja Haq Nawaz, the learned counsel for the petitioners, challenged the aforesaid order under section 64-AI made by the Registrar on the ground that the Registrar had no jurisdiction under this section to call for and examine the record of any enquiry to proceedings held by a Deputy Registrar. The argument was that the Deputy Registrar acts as nominee or delegatee of the Registrar while disposing of and application under section 54-A and, therefore, the Registrar cannot, what would in effect amount to revise his own order under section 64-A of the Act. There is substance in this argument. However, the larger question that arises for our consideration in this case is whether in the circumstances of the present case we will be justified in interfering with the impugned order though apparently made without jurisdiction. Mr. S. H. Rizvi rightly pointed out that in so far as the appeal of respondent No. 2 was concerned it was not maintainable under section 56 of the Act, under which appeal lies against decision of Registrar's nominee under section 54 and not against an award by a Board of Arbitrators made under section 54 of the Act. The learned counsel further pointed out that an award by a Board of Arbitrators, could be challenged by an application under section 54-A of the Act the net effect of the impugned order is that the Deputy Registrar will hear on merits the application filed by respondent No. 2 under section 54-A against the majority award dated 11-3-1975. It was further argued that the Deputy Registrar instead of dismissing the appeal filed by respondent No. 2 under section 56 against majority award ought to have treated the appeal as an application under section 54-A and dispose it of on merits. Now, it is clear that the Deputy Registrar instead of hearing and deciding on merits the application made by respondent No. 2 in January, 1976, under section 54-A of the Act, to set aside the majority award dated 11-3-1975 dismissed it on the short ground that earlier an appeal had been preferred against this award under section 56 which had been dismissed by him as not maintainable. As the application under section 54-A against the majority award was clearly maintainable the Deputy Registrar ought- to have heard it on merits and disposed it of as such. The effect of the impugned order is that the Deputy Registrar will be enabled to exercise his jurisdiction under section 54-A of the Act and since this will serve both the ends of justice as well as the law, we will be justified in not exercising our discretionary jurisdiction under Article 199 of the Constitution.

3. These petitions are, therefore, dismissed but in the circumstances there will be no order as to costs. M. Y. M.????????? Appeal dismissed.