P L D 1968 Karachi 680 (PLP)

QADEERUDDIN AHMED, J.‑The facts, which form the background of these applications briefly stated are that the Managing Committee of the Pir Ellahi Bakhsh Co‑operative Housing Society Limited issued a notice for holding elections of three members of the Managing Committee who arc retiring by rotation. K. B. Sanaullah and others objected to it on the ground that the Managing Committee was not validly constituted and could not hold the elections. This dispute was referred to Arbitration by the Registrar of Cc‑operative Societies who appointed Mr. Israrun Nabi as his nominee to act. The parties appointed their respective Arbitrators and proceedings commenced. The applicant‑Society was not satisfied with them and applied to the Registrar of Co‑operative Societies for the transfer of the case to some other nominee to be appointed by him. The application was dismissed on the 20th of June 1964. The Society, therefore, went in revision against it which was also dismissed on the 4th of July 1964. The Society, therefore, applied to Court under Section 11 of the Arbitration Act, 1940, for the removal of the nominee of the Registrar. That application was dismissed by the Court on the 15th of September 1964, on the ground that Civil Courts had no jurisdiction in view of the decision of the High Court given in Second Appeals Nos. 85 and e6 of 1960. The Society has now come in revision to this Court. The revision application is numbered as 217 of 1964.

3. Simultaneously, with the above events, some other events also took place. The Society cancelled a temporary licence which it had issued to Muhammad Azizullah Quroshi, respondent No. 1 in Revision Application No. 238 of 1964. Muhammad Azizullah Qureshi applied to the Registrar of Co‑operative Societies who appointed Mr. Israrun Nabi as his nominee and the parties appointed their respective Arbitrators. The Society was not satisfied with the proceedings and applied for the transfer of the case to some other nominee, to the Registrar. That application was dismissed on the 20th of June 1964. The Society, therefore, went in revision which was also dismissed on the 4th of July.1964. In the meantime, on the 1st of July 1964, the Society made an application to Court under section 11 of the Arbitration Act, 1940 for the removal of Mr. Israrun Nabi. That application was dismissed on the 15th of September 1964, fn view of the judgment of the High Court given in Second Appeals Nos. 85 and 86 of 1960. The Society has, therefore, come in Revision .to this Court. The Revision Application is numbered as 238 of 1964.

4. Mr. Israrun Nabi and Mr. K. A. Ghani have addressed us on behalf of the parties in both cases. Mr. Israrun Nabi has advanced two arguments in support of the view that applications under Section 11 of the Arbitration Act, 1940 are not maintainable for the removal of the nominee of the Registrar.

5. The first argument advanced by him was that the Arbitration Act, 1940, applies to those proceedings only which ate contemplated by section 46 of that Act. That section is as follows: "The provisions of this Act, except subsection (1) of section 6 and sections 7, 12, 36 and 37 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except in so far as this Act is inconsistent with that other enactment or with any rules made thereunder." It follows from the above provisions that the Arbitration Act, 1940 applies to those arbitration proceedings which take place under an enactment which is not inconsistent with the Arbitration Act, 1940. This view has been expressed by a Division Bench of this Court in Second Appeals Nos. 85 and 86 of 1960 as follows: "The reading of the above section, no doubt, shows that this section applies with certain exceptions to statutory arbitration. It, however, seems to us that the provisions of section 34 of the Arbitration Act are not applicable to cases arising out of arbitration proceedings under section 54 of the Bombay Co‑operative Societies Act, 1925. The machinery and the procedure of arbitration laid down in section 54 are totally inconsistent with the provisions of Arbitration Act. A reference to section 54 of the Bombay Co‑operative Societies Act, 1925, makes it perfectly clear that the question whether the matter should be decided by arbitration or otherwise, entirely rests within the discretion of the Registrar of Co. operative Societies: In the face of these clear provisions it is difficult for us to appreciate in what manner the provisions of section 34 of the Arbitration Act can be applied to such cases. We, therefore, find no force in this contention."

6. Mr. Israrun Nabi explained the above point of view for purposes of these proceedings by saying that there is specific inconsistency between section 54‑A of the Co‑operative Societies Act, 1925 and section 11 of the Arbitration Act, 1940. These sections are as follows: "Section 54‑A.‑Registrar's power to set aside the award and order the dispute to be referred back to arbitration :‑ (1) 'In the case of any award made by the arbitrators under section 54, the Registrar, if he is not one of such arbitrators, tray of his own motion or on the application of any of the parties to the award, by an order in writing recording reasons therefore; (a) modify or correct the award (i) where it appears that a part of the award is upon a matter not referred to arbitration and such part can be separated from the other part and does not affect th, decision on the matter referred; or (ii) where the award is imperfect in form or contains any obvious error which can be amended without affecting such decision; or (iii) where the award contains a clerical mistake or an error arising from an accidental slip or omission; or (b) remit the award or any matter referred to arbitration to the arbitrators for reconsideration‑ (i) Where the award has left undetermined any of the matter referred‑ to arbitration or where it determines any matter not referred to arbitration and such matter cannot be separated without affecting the determination of the matters referred, or (ii) where the award is so indefinite as to be incapable of execution, or (c) set aside the award and order that the dispute shall be referred to arbitration in the manner provided in the said section Provided that no order referred to in clauses (a) to (c) shall be made after the Issue of a certificate under section 59 for the execution of the award: Provided further that no order under clause (c) shall be made unless the Registrar 1s of opinion that‑ (i) an objection to the legality of the award is apparent on the face of it, or (ii) the award has been vitiated in consequence of corruption or misconduct on the part of the arbitrators, or (iii) the award is in any way perverse. (2) In making an order under clause (c) of subsection (1), the Registrar may direct that all or any of the arbitrators who made the award shall not act again as arbitrators for deciding the dispute. (3) Where a dispute is referred back to arbitration under clause (c) of subsection (1) the arbitrators shall make a fresh award within such time as may be fixed by the Registrar. If the Arbitrators fail to make a fresh award within the time so fixed, the Registrar or his nominee shall decide the dispute." "Section 11‑(I) The Court may, on the application of any party to a reference, remove an arbitrator or umpire who fails to use all reasonable dispatch in entering on a proceeding with the reference and making an award.. (2) The Court may remove an arbitrator or umpire who has mis-conducted himself or the proceedings. (3) Where an arbitrator or umpire is removed under this section, he shall not be entitled to receive any remuneration in respect of his services. (4) For the purposes of this section the expression `proceedings with the reference' includes in a case where reference to the umipre becomes necessary, giving notice of that fact to the parties and to the umpire." Under section 54‑A of the (:o‑operative Societies Act, 1925, an Arbitrator can be debarred by the Registrar of Co‑operative Societies from acting as such after an award is set aside and not earlier than that. In contrast to it an Arbitrator can be removed under section 11 of the Arbitration Act, 1940 before an award is given This difference according to him is an inconsistency and, therefore, in terms of section 46 section 11 cannot apply to arbitration proceedings held under the Co‑operative Societies Act for purposes of getting an Arbitrator or the nominee of the Registrar removed.

7. Secondly, he contended that the Society has taken advantage of the provisions of the Co‑operative Societies Act by applying to the Registrar of the Co‑operative Societies for the transfer of the arbitration proceedings from the present nominee of the Registrar to some other nominee. Feeling dissatisfied with the result he also appealed to the Provincial Government. Having thus invoked and used the jurisdiction conferred by the Co‑operative Societies Act, 1925, it is not now open to the Society to leave that jurisdiction aside and invoke the jurisdiction of Civil Courts under section 11 of the Arbitration Act, 1940.

8. In so far as the second argument is concerned, it does not strike us as having any sound basis for it. If there are two jurisdictions available to a party which are alternative, then ordinarily it is open to such a party to invoke one or both of them. We overrule the second contention.

9. The first argument of Mr. Israrun Nabi has been clearly met by Mr. K. A. Ghani who has referred to Tabernacle Permanent Building Society v. Knight (67 L T R 483) and E. I. Film Studios v. P. K. Mukherjee (A I R 1954 Cal. 41). The main contention of Mr. Ghani was that two different provisions made to fulfil the requirements of two different situations, cannot be said to be inconsistent merely because they are different. As they are intended to serve different purposes, they must be different. Inconsistency can arise if two different provisions contradict or caused each other and cannot exist together. He referred to the following observations of the Lord Chancellor in the above‑mentioned English case: "If the two provisions may stand together I am unable to follow the argument that the one Act is inconsistent with the other; and the whole argument depends upon the word `inconsis tent' in the later statute. It is obvious to enquire, where is the inconsistency if both may stand together and both operate without either interfering with the other? The policy, object and application of the two sections are entirely different. I think in the Building Societies Act the object was to enable the arbitrators, on the solicitation of the parties, to state a question of law, which might enable them to decide the case in its final result. I think the object of section 19 of the Arbitration Act, 1889, though in one sense it may be said to have for its object the same result, was rather to hold a control over the arbitration while ft was proceeding, by the Courts, and not to allow the parties to be concluded by the award, when, as it is said, parties may be precluded by the arbitrator's bad law if once the award is made, although they might have had a right to repudiate the arbitrator if they had done so before the completion of the award. I am, therefore, of opinion that the first objection here fails, and that the Acts not being inconsistent with each other may be read together, and the Court or a Judge would have jurisdiction to interfere."

10. In this case section 54‑A of the Co‑operative Societies Act makes a provision for debarring an Arbitrator from again acting as such after an award, to which he was a party, is set aside. The intention is to avoid prejudice. This is a different situation from that which is dealt with by section 11 of the Arbitration Act, 1940, inasmuch as the latter section meets those situation in which it becomes proper to remove an Arbitrator before an award is given.

11. We conclude 'from the above that there is no inconsistency between section 50‑A of the Cooperative Societies Act, 1925 and section 11 of the Arbitration Act, 1940, and accordingly overrule the first contention of Mr. Israrun Nabi also.

12. If the situation was governed by the above‑mentioned sections, we would have accepted these revision applications, but an amendment was introduced in the Co‑operative Societies Act by the enactment of section 70‑A by Co‑operative Societies (Amendment) Ordinance, 1966. That section is as follows: "Bar of Jurisdiction.‑(1) Notwithstanding anything provided in any other law for the time being in force, but save as expressly provided in this Act‑‑ (a) no Court or other authority whatsoever shall have jurisdiction to entertain, or to adjudicate upon, any matter which the Provincial Government, the Registrar or his nominee, any arbitrator or liquidator, a Society, a financing bank, a Co‑operative Bank or any other person is empowered by or under this Act, or the rules or bye‑laws framed thereunder, to dispose of or to determine; (b) the validity of anything done or an order passed by the Provincial Government; a Society, a , financing bank, a Co operative Bank, the Registrar or any other person referred to in clause (a) under this Act or the rules and bye‑laws framed thereunder, shall not be called in question in any manner whatever before or by any Court or other authority whatsoever; and (c) no Court or other authority whatsoever shall be competent to grant any injunction or pass any other order in relation to any proceedings under this Act or any rules or bye‑laws framed thereunder before the Provincial Government, a Society, a financing bank, a Co‑operative bank, the Registrar or any other person referred to in clause (a). (2) The provisions of subsection (I) shall be applicable to proceedings, appeals and revisions pending adjudication or disposal before or in any Court or other authority whatsoever on the date that the Co‑operative Societies (Amendment) Ordinance, 1966, comes into force and any other order passed in such proceedings, whether before or after the coming into force of the said Ordinance in regard to matters,‑ referred to in subsection (1), shall stand vacated and be without any force." The above section which debars the jurisdiction of, the Civil Courts in terms of clause (c) of subsection (1) seems to be in point at present. According to it no Court is competent to pass any order whatsoever in relation to any proceedings held under Co‑operative Societies Act, 1925 or the' rules or bye‑laws framed thereunder. The words "in relation to" are of special significance and make the scope of the provisions very wide. Mr. Ghani argued that in these proceedings his client is not objecting to anything that has happened in the proceedings because it is not alleging that the nominee of the Registrar has misconducted the proceedings. The stand of the Society merely is that the nominee has misconducted himself. In this view of the matter according to counsel, the Court is not required to make any order in relation to the arbitration proceedings. We are not inclined to accept this view because the conduct of the nominee of the Registrar has come under criticism in relation to the arbitration proceedings; therefore, an order, holding that he has misconducted himself will certainly have relation to that view. If that relation was taken away, then his conduct will become irrelevant for purposes of even section 11 of the Arbitration Act, 1940. We, therefore, think that in view of section 70‑A of the Co‑operative Societies Act, jurisdiction of the Civil Courts has become barred in respect of these proceedings.

13. Our conclusion, therefore, is that these revision applica tions cannot succeed. They are dismissed with no order as to costs., A. G./K. B. A Applications dismissed.