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Writ Petition No. 1095 of 1967, decided on 3rd June 1963.

S. 13 Section 13 takes away jurisdiction of civil Courts in matters which Registrar or Assistant Registrar is empowered to determine under the Ordinance‑Contention that recourse to Ordi nance in regard to commercial dispute is illegal and arbitrary because ordinary law has been by‑passed‑Not accepted‑‑Jurisdic tion of civil Courts in terns of S. 9, Civil Procedure Code, 1903 extends to all suits of civil nature except such whose cognizance is either expressly or impliedly barred‑Civil Procedure Code (V of 1908), S. 9.

S. 10 read with Constitution of Pakistan (1962), Art. 6, Fundamental Right No. 4‑Section 10 provides punishment for violation or disregard of procedure laid down by Ordinance‑Penalty relates to conduct which is subsequent to coming into force of Ordinance‑Ordinance not expost facto legislation contemplated in Fundamental Right No. 4.

By our short order dated the 17th of July 1967, we had dismissed this petition for reasons to be recorded later. We now proceed to record the detailed order.

2. This is a writ petition under Article 98 of the Constitution in which the proceedings before respondent No. 1 have been challenged on the ground that they are without lawful authority and of no legal effect.

3. Briefly, the facts giving rise to this petition are that the petitioners were working a Factory in cotton ginning and pressing at Mian Channu in the district of Multan in the year 1963‑64. Respondent No. 2, which is a limited Co‑operative Agricultural Marketing and Supply Society at Mian Channu, used to deliver their cotton to the petitioners for ginning who, in their turn, used to make payment of the cotton to respondent No. 2 through their authorised agents. The case of the petitioners is that according to their account books, only a sum of Rs. 8,000.00 was due which was debited to the account of respondent No. 2 in respect of a bargain of 2000 maunds of cotton at the rate of Rs. 34.00 and als3 on account of Bora Account which they failed to supply after three months' waiting. They had to cover this transaction through other Arms at a higher rate of Rs. 37.50 In order to fulfil their commitments with Messrs R. C. A. Limited, Khanewal, and that practically nothing was due from them.

4. On the other hand, the case of the respondents, as disclosed in the Notice dated the 13th of July 1966 (Annexure I), under section 5 of the West Pakistan Cooperative Societies and Co‑operative Banks (Repayment of Loans) Ordinance No. XIV of 1966 (hereinafter referred to as the Ordinance) is that the petitioners owed to respondent No. 2, on the 22nd of March 1965, a principal sum of Rs. 43,537.62 and Rs. 5,582. 69 with future interest on the rate approved in the bye‑laws from 31st of May 1966 in respect of transactions that passed between the petitioners and respondent No. 2. In their letter dated the 3‑rd of September 1966 (Annexure II), the petitioners challenged the authority of respondent No. 1 to adjudicate upon their dispute with respondent No. 2 and their grievances not having been redressed, they have filed the present writ petition.

5. In support of the petition, Mr. A. S. Salam, the learned counsel appearing for the petitioners has contended :‑

(1) that the transactions between the petitioners and respondent No. 2 were purely commercial in nature and the dispute could only be settled in accordance with the ordinary law, dealing with business transactions, and that, at any rate, recourse to the Ordinance is illegal, arbitrary and amounts to harassment of the petitioners ;

(2) that the Ordinance under which the proceedings are being taken is unconstitutional, being contrary to the Central Law, like the Code of Civil Procedure, and is, to the extent of the inconsistency, invalid ;

(3) that the Ordinance is also illegal for the reason that it authorizes punishment for an act which was not punishable by law at the time when the act was done ;

(4) that the Ordinance is also unconstitutional, being contrary to Article 2 of the Constitution ; and

(5) that the proceedings before respondent No. 1 are mala fade, as, in spite of the documentary evidence made available to him, respondent No. 1 has been harassing the petitioners and threatening to take punitive action against them.

6. In order to appreciate the contentions of the petitioners, it is necessary to give the background of the Ordinance. The object of this statute is to provide for the securing and repayment of such loans taken from the co‑operative banks and other co‑operative societies as are not secured or are insufficiently secured. The definition of "loan" in section 2 (f ) of the Ordinance is in the following terms :‑

" loan' means a loan (including any transaction which in the opinion of the Registrar is in substance a loan), whether of money or in kind, which is not secured or is insufficiently secured, and taken from a co‑operative society by any person, whether a member of such society or not, or from a co‑operative Bank by any person but not a co‑operative society."

This definition of 'lean" also extends, under sub‑caluse (i) of 914uso (f, of section 2 of the Ordinance, to "any amount which is due from any such person to a co‑operative society or a co‑operative bank, whether taken as a loan or not." It will thus be noticed that all transactions, whether of money or in kind, are covered by the definition of "loan" under the impugned Ordinance.

7. Section 3 of the Ordinance, which provides for repay ment of loans, is to the following effect :‑--

"Notwithstanding anything contained in any other law for the time being in force or in any agreement, award, or decree of any Court, every loan outstanding for more than one year after the date when it was repayable, whether barred by limitation or not, in whole or in part, and every loan any installment whereof was outstanding for more than one year after it became due, shall, unless repaid earlier, be repaid and secured in the manner provided in section 7."

Section 4 of the Statute enjoins on every co‑operative society to supply information about their dealings to the Registrar of the Co‑operative Societies. Under section 5 of the Ordinance, on receipt of information referred to above, the Registrar or the Assistant Registrar, as the case may be, shall issue or cause to be issued a notice to the borrower and his surety, requiring them to repay and secure the loan in accordance with the provisions of section 8. Section 6 provides that where any borrower or his surety, to whom the above notice is issued, does not admit the loan or the liability arising therefrom, such borrower or surety shall, within thirty days of the receipt of the notice, submit, either personally or by registered post, a written statement to the authority issuing the notice, and such authority shall cause notice to be issued to the co‑operative society, and shall, after making such inquiry as it may consider necessary and giving the parties reasonable opportunity of being heard, decide the matter. Section 7 provides that within sixty days of the service of the notice in a cage where the borrower does not deny the loan or the liability and in other cases within sixty days of the decision of the Registrar under section 6, the borrower and his surety shall secure the loan or liability by mortgage, pledge etc as, in the case of a loan not exceeding Rs. 30,000.00, the Assistant Registrar, and in the case of loan exceeding Rs. 30,000.00, in such manner as the Registrar, may think adequate. It further provides under clause (b) of section 7 that such borrower and his surety shall repay fifteen per cent. of the loan within six months of the service of notice under section 5 when he does not deny the loan or liability arising therefrom and in any other case within six months of the decision of the Registrar or the Assistant Registrar, as the case may be. Section 8 provides that if the amount of any loan is not paid in accordance with section 7 within the period specified in it, the same, without any prejudice to the provisions of section 10, will be recovered according to the law and under the rules for the time being in force for the recovery of the arrears of land revenue. Under section 10 it is provided that whoever contravenes any of the provisions of the Ordinance or the rules made thereunder shall be punished with imprisonment which may‑extend to seven years or with fine or with both. Section 13 bars the jurisdiction of the civil Courts to adjudicate upon any matter which the Registrar or the Assistant Registrar is empowered by the Ordinance to determine. It is with this background of the relevant law that the petitioners case is to be considered.

8. The first contention of the petitioners that recourse to the Ordinance is illegal, arbitrary and amounts to harassment because the ordinary law has been by‑passed has not impressed us in the least. If the Legislature has provided a certain mode of trial or conferred jurisdiction on a particular tribunal for the adjudication of the dispute of the nature involved in the present case, this Court cannot interfere unless it offends against any statutory bar. In this connection, the learned counsel for the petitioners has contended that the impugned legislation is unconstitutional as it is contrary to the Central law, like the Civil Procedure Coda, and is, to the extent of its inconsistency, invalid. In our opinion, this contention has no force because section 9 of the Civil 1'roc:dure Code itself provides that the, civil Courts shall lave jurisdiction to try all suits of a civil, nature excepting suits whose cognizance is either expressly or impliedly barred. In the present case, section 13 of the Ordinance bas clearly taken away the jurisdiction of the civil Courts and, therefore, this ground is not available to the petitioners.

9. Coming to the next ground taken up by the petitioners that the Ordinance is also illegal because it authorizes punishment for an act which was not punishable by the law at the time when it was done, it will be noticed that no such legislation has been contemplated in the Ordinance. It only lays down an elaborate procedure of adjudicating a dispute between a private party on the one hand and a co‑operative society or a co‑operative bank on the other. It is only the violation or disregard to follow that procedure that has been made punishable under section 10 of the impugned legislation. This legislation, therefor;, cannot be said to fall in the class of ex post facto legislation, contemplated in Fundamental Right No. 4 of the 1962 Constitution. There is B not the slightest doubt in our mind that in the present case tie petitioners can be penalized only for conduct which is subsequent to the coming into operation of the Ordinance. There is complete absence of any indication in the impugned legislation that an act or omission which was not punishable before the act was com mitted has been made punishable under it.

10. Mr. A. S. Salam, the learned counsel, has further contended that the dispute in question is also the subject‑matter of a Central Legislation, known as Co‑operative Societies (Repay ment of Loans) Ordinance (No. XXXIV of 1960). He contended that under section 7 of the said Ordinance the contravention of any of its provisions is punishable with imprisonment for a term which may axtend to two years or with fine or with both, whereas under section 10 of the impugned Ordinance the punish ment has been extended to seven year. The learned counsel contended that this is in violation of Fundamental Righ No. 4 (b) of the 1962 Constitution which is in the following terms :‑‑

"4. Protection against retrospective punishment.‑No law shall authorize the punishment of a person :‑

(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed."

In our opinion, this contention also has no force because the offence contemplated in the Central Legislation is for the con travention of its provisions, whereas the punishment provided in the impugned legislation is for the contravention of its own provisions. Though the two enactments do overlap so far as the field of legislation is concerned but the authorities under them are different and the mode of adjudicating upon the disputes is also not exactly the same. Moreover, the offences under the two legislations are quite different and, therefore, it is not possible to hold that there is any contravention of the above constitutional provision in the present case.

11. We have also found no substance in the contention of the learned counsel that the impugned legislation is unconstitu tional, being contrary to Article 2 of the Constitution. The action which is being taken against the petitioners is in accordance with law and, therefore, it cannot be said that there is any violation of his Article in the present case.

12. The petitioners have not been able to satisfy us that the proceedings against them taken by respondent No. 1 are mala fide. Under the impugned legislation they have already denied their liability and the matter is now to be adjudicated by the Registrar or the Assistant Registrar, as the case may be, in accordance with the procedure laid down in section 6 of the impugned legislation. It is open to the petitioners to produce their account books and other evidence in support of their case that they do not owe any amount to respondent No. 2. This evidence will receive judicial investigation by the authority concern. ed and we have not the slightest doubt that the matter will be decided by it in accordance with law.

13. In that view of the matter, we do not find any force in this petition which is summarily dismissed.

Petition summarily dismissed.

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