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1983 C L C 2765
[Lahore]
Before Muhammad Afzal Lone, J
MRS, AKHTAR MANSOOR AND OTHERS‑‑Petitioners
versus
PUNJAB GOVERNMENT AND OTHERS‑Respondents
Writ Petitions Nos. 125 and 158 of 1967 decided on 3rd October, 1082.
‑‑‑‑ Art. 98‑Jurisdiction‑Validity of order passed by public authority challenged in writ jurisdiction‑High Court, held, obliged to explore every explanation for sustenance of validity of such order and examine entire record pertaining to that.
Lahore Improvement Trust v. The Custodian of Evacuee Property
PLD1971SC811 ref.
‑‑ S. 39‑Order of dissolution of Society by Deputy Registrar Appealable‑No such appeal filed by any member of Society Presumption, held, that grounds of order of dissolution of Society acceptable by members as correct.‑[Appeal (civil)].
‑‑‑‑ Art. 98‑Document‑Documents presented in Court not certified as true copy and not even attested by counsel‑Such document, held, cannot be relied.
‑‑ S. 23‑Sind Co‑operative Societies Act (VII of 1925), S. 28 Lianility of past‑member. for debts of Society as existed on date he ceases to be member, would continue for 2 years from such date.
‑‑‑ S. 27‑Notice received back as refused' from Postal Depart ment‑Presumption that notice reached addressee and refused by him.
‑‑ S. 28‑Dissolution of Society‑Burden on member to prove that he was no longer member before date of dissolution of Society.‑‑ [Burden of proof].
‑‑ Art. 98 ‑ Co‑operative Societies Rules, 1927, r. 38‑Person required by law to do something failing to do same, not on account of own negligence pr voluntary act but because of unavoidable cir cumstances or reasons beyond control, held, such person cannot be said to have failed to perform his legal duty.
‑‑ Art. 98‑Sind Co‑operative Societies Act (VII of 1925), S. 28 Dissolution of Society‑Liability raised against Society not verifiable; from its record and such record never made available to liquidator Determination of liability solely founded on bank's record‑ Held, not a case of no evidence to warrant interference in exercise of writ jurisdiction.
‑‑‑ S. 28‑Constitution of Pakistan (1962), Art. 98‑Dissolution of Society‑Liability of society unlimited‑No legal bar on recovery from any of members of such Society‑‑A being all in all and other members merely name lenders ‑Liquidator casting liability on two members of A's family and passing separate order against each Order of liquidator fixing amount of contribution, held, does nor suffer from any illegality.
‑‑‑‑ Art. 98‑Sind Co‑operative Societies Act (VII of 1925)‑ S. 28 Dissolution of Society ‑Determination of liability of members‑ High Court, held, not to reappraise evidence to check up account books of Bank and scrutinize entries of ennexures to petition under writ jurisdiction.
Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139 ref.
‑‑‑‑ Art. 98‑Legislative events occurring upon filing of writ petition‑‑‑High Court not to take notice of such events unless petition amended accordingly.
Muhammad Nawaz Kasuri for Petitioners. Asghar Ali Chaudhry for Respondents. "'
Date of hearing : 13th April; 1982.
This judgment shall dispose of Writ Petitions Nos. 125/1967 and 158/ 1967 as common questions of law and facts arise in them. It shall, however, remain on the file of W. P, No. 125/1967.
2. Writ Petiticn No. 12511967 has been filed by Mst. Akhtar Mansoor and whereas the other petition was brought by her husband, namely Shall Mansoor. Both the petitioners alongwith a few others were the members of a Co‑operative Society with unlimited liability, by the name of Pakistan‑ Textile Co‑operative Industrial Society, Jhang‑Maghiana, Shall Mansoor was the President of the Society, which was proceeded against under section 35 of the Co‑operative Societies Act, 1912, an inquiry held into its working and financial condition and the Deputy Registrar, Co‑operative Societies acting under section 39, by his order dated 27th May, 1955, inter alia on the ground that the Society was beyond any hope of revival : its members did not take any interest in the affairs thereof and that there was no likelihood of the recovery of Central Bank's loan. cancelled its registration. Accordingly, in contemplation' of section 42, a Liquidator was appointed and as the proceedings pro longed, one after the other, several such other appointments had to be made. At the relevant time respondent No. 3 acted as a Liquidator. Another development which took place during the pendency of the liquidation‑proceedings was that the Sind Co‑operative Societies (West Pakistan Amendment) Ordinance, 1965 was promulgated whereby the Co‑operative Societies Act, 1912 was repealed; Sind Co‑operative Societies Act, 1925 (Act VII of 1925) amended and enforced throughout the erstwhile Province of West Pakistan.
3. At the time of the cancellation of the Society's registration, Jhang Central Co‑operative Bank Ltd. from whom it had been obtain ing loan, was its only creditor. As 4 result of the liquidation‑proceedings respondent No. 3 under section 50 of the Act VII of 1925 by his order dated 16th July, 1965 worked out the Society's liability at Rs. 1.39,706‑13 and provisionally require each of the petitioners to contribute Rs. 60.000 towards the principal debt and Rs. 6,000 as costs of the liquidation In this behalf he also issued notices to the petitioners. By means of an application addressed to the Assistant Registrar, Shafi Mansoor alone challenged the Liquidator's demand but the former by a detailed order dated 9th August, 1966 approve(] site determination made by the Liquidator.
4. Both tire petitioners then filed two separate appeals before the Provincial Government. under section 64‑A of the Act. This provision however, confers revisional jurisdiction on the Provincial Government. The two matters were heard by a Joint‑Secretary, who rejected the same by two separate but identical orders dated 17th .January, 1967 ; the operative part whereof is reproduced below ;
"I have heard both the parties and carefully considered arguments advanced by the counsel and the replies given by the Assistant Registrar. I feel convinced that ;the contribution orders passed by the Liquidator and approved by the Assistant Registrar in his capacity as Registrar. Co‑operative Societies, Mang are valid and legal. The procedure laid down in the Co‑operative Societies Act, 1925 and the Co‑operative Societies Rules. 1927 was duly followed, The appellant has defended her case before the Assistant Regis trar and as such there could be no excuse that she was not informed of the action being taken."
5. During the hearing of the two cases, the respondent produced departmental‑record and I have examined the same. The copies of some of the documents have been added to the file and a set thereof also passed on to the learned counsel for the petitioner by the respondent's learned counsel. It may be pointed out, that when the validity of an order passed by a public‑authority is challenged through invocation of Constitutional jurisdiction, it becomes obligation of the Court, to explore it every explanation for sustenance of the validity of such order, and in this respect to examine the entire record pertaining to the impugned order, Lahore Improvement Trust v. The Custodian of Evacuee Property (P Lt D 1971 S C 811) may be cited as an authority for this proposition. Accordingly I, thoroughly examined the record, produced before me by the depart mental authorities.
6. Before enlisting the divergent contentions of the parties it may be observed that under section 39 of the Co‑operative Societies Act, 1912, the Deputy Registrar's order dated 27th July, 1955 dissolving the Society was appealable but no such appeal was filed by any of the member of the Society. It would, thus, be legitimate to presume that the petitioners accepted the correctness of the grounds on which the registration, was cancelled.
7. Taking up first the arguments which were peculiar to the case of Mst, Akhtar Mansoor, her learned counsel contended, that. she ceased to be a member of the Society with effect from 30th June, 1954, that is, much before the dissolution of the Society and thus she could not ‑be posted with any liability. He heavily relied on Annexure A' which is a copy of the register of members of the Society and indicates that she became its member on 10th November, 1950 but withdrew from membership on 30th June, 1954. A reference was also made by him to another document Annexure B'. This is an unattested copy of a certi ficate dated 22nd July, 1954 issued by Industrial Inspector Co‑operative Societies, embodying a list of the names of 23 persons who were the members of the Society. The name of Mst. Akhtar Mansoor is not included in this list, It was also pleaded that neither the Liquidator served her with any notice, nor was she ever heard by the authorities below and was thus condemned unheard.
8. In reply to these submissions the respondent's learned counsel vehemently disputed the authenticity of these documents. He argued that Shaft Mansoor purposely withheld. the record of the Society and despite the best efforts of the Liquidaor and the Assistant Registrar. it could not be procured from him. The argument thus, was, that in the absence of the record the possibility of the fabrication of these documents could not be ruled out. On his part, on the strength of certain documents, annexed to the written statement he maintained that she never withdrew from the membership of the Society and even as a past member, she was fastened with the liability to clear the debt of the Society. The allegation that no notice was issued and the opportunity of being heard denied to her, was also refuted.
9. Reverting now to the question of the petitioner's membership f find that the document Annexure 6 A is a copy, which was attested by an Oath‑Commissioner on 13th September, 1966. The departmental record amply demonstrates that long before this date, the record of the Society was not available and it never fell in the hands of the Liquidator or the Assistant Registrar. It is, thus, not known. as to how the petitioner massaged to produce the register of members, before the Oath‑ C Commissioner to enable him, to attest Aunexure 'A' as its true copy. The second document Annexure B is not a certified copy. It is slot even attested by the counsel. It is, therefore, difficult to reply upon these documents. No such evidence was produced by the petitioner, before the Assistant Registrar and in his order dated 9th August, 1966, on the basis of the material before 'him. he specifically held that she did not cease to be member of the Society. The petitioner has failed to make out a case, to call for a review of these findings. Even if these document are acted upon, that would hardly advance the petitioner's cause, in any way. Both sections 23 of Act II of 1912 and section 28 of Act VII of 1925, provide that the liability of a past‑member, for the debts of the Society as they existed on the date he ceased to be the member, would continue for a period of two years front such date. It is to be noticed that the approval accorded by the Assistant Registrar, to the determination of the Su6ety's liability, would relate back to 27th July, 1955 when it was dissolved. This date obviously, falls within two years of the date whets Ust. Akhtar Mansoor claims to have cased to be the member of the Society. Thus, as a past‑member, too, she stood charged with the liability, and its recovery on a subsequent date is not of any significance. . Accordingly, even if the petitioner ceased to 'be the member on 30th June, 1954, she cannot avoid her liability t pay the amount in question and the shadow of the, past‑ membership would continue to follow her,
10. As regards the non‑issue of notice, the learned counsel for the respondents has drawn my attention to a registered post‑card dated 7th July, 1965 (Annexure R 6') which is correctly addressed to Aist. Akhtar Mansoor, intimating her that the amount to be contributed by her was being fixed at Rs. 60,000 and the costs at Rs. 6,000 and that she could file objections against the same, if any. There is a report of the postal official, that this notice was refused by the petitioner. Under section 27 of the General Clauses Act, 1897 a presumption arises that the notice reached the addressee and was refused by her.
11. According to the petitioner's own showing she was at one time the member of the Society. A heavy burden thus lay on her to show that she was no longer member, before the date of dissolution of the F Society. However, she failed to establish her claim by filing any objec tion before the Liquidator within the period allowed under the notice Annexure R/6'. It, therefore, cannot be said that she was not given an opportunity to answer the claim made against her.
12. In her application dated 2nd November, 1965 Annexure R(7' addressed to the Assistant Registrar she stated, that she had come to know, that the proceedings were pending before the Liquidator, regar ding the proposed contribution but she was not served with any notice and thus could not prove, that she had withdrawn from the member ship more than two years before the cancellation of the registration of the Society. The contents of the application however, suggest that she was not unaware of the liquidation proceedings and determina tion of the contribution, particularly when her husband had been all along participating in the proceedings. On 15th October, 1966, she also executed a deed of power of attorney in his favour. The tenor of the Assistant Registrar's order dated 9th August, 1966 shows that. she was represented before him, by her husband. The Revisional Autho rity in its order dated 17th January, 1967 also came to the conclusion that she was informed of the proceedings taken against her. As a petitioner, her conduct is relevant and can be examined by the Court. Technicalities apart, her aliunde awareness of the action commenced by the liquidator, is enough to discredit her this plea, raised in claim ing relief, under the extraordinary jurisdiction of this Court.
13. On behalf of Shafi Mansoor as well, it was argued, that while determining liability of Rs. 66,000 he too was not heard. This conten tion, however, is negatived by the material on the record. It is quite clear from Annexure I to the writ petition that before approving the determination of the liability by the Liquidator, the Assistant Registrar issued a notice to the petitioner to file objections against such determi nation, if he chose to do so. The latter raised objections, vide Annexure 'J'. The Assistant Registrar rejected these objections and as observed above, by his order dated 9th August: 1966 approved the determination made by the Liquidator. This order clearly shows that the petitioner, the Liquidator and the Accountant of the Bank were heard. Bank's record and the file of the Society examined, by the Assistant Registrar, It is, thus, not possible to give any weight to the petitioners' contention that he was not heard.
14. It was next argued that in respect of both the cases rule 38 of the Co‑operative Societies Rules, 1927, was not complied with. Elabo rating his submissions, the learned counsel ‑went on to urge that under section 38(2) it was obligatory for the Liquidator to have taken charge for the Account‑books of the Society immediately after his appointment. He failed to do so and consequently, in the absence of the Account‑books determination of the liability was not founded on any material. He further submitted that the Liquidator neither adopted any scale on the basis whereof the petitioners were called upon to make contribution, nor he passed any separate orders against them. The learned referred to the Account‑statement Annexure Rj9' to state that the value of the goods pledged with the Banlc was not taken into consideration while fixing the liability.
15. The allegation that the Liquidater failed to take possession of the Account‑books, is not well‑founded. The record produced before me is suggestive of the inference that the Society or for that matter, Muhammad Shah Mansoor, petitioner purposely did not produce the record before the Liquidator and the departmental‑authorities. Even during the inquiry under section 35 of Act 11 of 1912 despite their best efforts, the record was not produced before the authorities concerned and for one reason or the other, the scrutiny of the accounts was avoided. In his letter dated 14th January, 1955 sent to the Industrial‑Inspector, which was presumably the date fixed for the production of the Account‑books, the petitioner, express ed his inability to produce the account as according to him, both the Secretary and the President of the Society, were out of headquarters. He however, undertook to produce the books on 5th February, 1955. This undertaking also went unheeded. In the order dated 2nd June, 1955 passed by Mr. Nafisuddin Ahmad,. Assistant Registrar, whereby he recommended the dissolution of the Society, it has been stated that the Society was merely a farce: Muhammad Shah Mansoor was all‑in‑all and its members were either his employees or the members of his family, to whom he utilized according to his wishes. The Assistant Registrar, further observed that the said petitioner intentionally avoided to produce the record before the Inquiry Officer. It is correct that this non‑production of the Books per tained to the pre‑dissolution period, but this position remained unaltered even after cancellation of the Society's registration. In his statement dated 30th June, 1966, the petitioner deposed that the Account‑books were in the custody of Abdul Latif, Secretary of the Society and that he did not possess any personal Account‑books and was prepared to have the matter settled on the basis of the Account‑Books of the Bank, provided his satisfaction was caused by showing him the stock‑registers, promissory notes and vouchers, etc. The statement of the Accountant of the Bank, recorded by the Assistant Registrar on the same date, disclosed that the copy of the Khata of the Society's debt and stock‑register was handed over to Muhammad Shafi Mansoor and the case adjourned for further proceedings as to the settlement of the Account between the parties. It appears, that on 3rd August, 1966, when the matter again came up for hearing before the Assistant Registrar, differences still subsisted between the Bank and Muhammad Shafi Mansoor in respect of inspection of the record of the Bank by the latter ; but the Assistant Registrar on the same date took tip the decision that the Liquidator would make the recovery after satisfy ing himself regarding the stock, and 9th August, 1966 was fixed as the next date of hearing and a direction given to the Liquidator as well as the President of the Society i.e. the petitioner, to examine the Bank's record and report to him as to the result of their inspection. The proceedings, in this behalf further reveal, that Muhammad Shah Mansoor did not turn up and the Liquidator reported to the Assistant Registrar that the former had gone away saying that he intended to copy the entire record of the Bank; he was feeling tired and could not work and that it was also getting late. It was thereafter that the Assistant Registrar made the order dated 9th August, 1966 in which he maintained that he conducted an impartial enquiry for about one year, examined the record, and heard the parties. He found that from the very beginning under the president ship of the petitioner
16
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kept in mind that when a person is required by law to do something ands fails to do the same, not on account of his own negligence or voluntary act, but because of unavoidable circumstances or reasons beyond his control, then such a person cannot be said to have failed to perform that: what he was ordained by law to do. There is thus, no substance in the allegation that the Liquidator failed to comply with the requirements of rule 38 (2).
18. As the Account‑books were not produced, whatever the other evidence was available, had to be made use of, for determination of debts outstanding against the Society. Thus, the Liquidator and the Assistant Registrar justifiably relied on the record of the Bank. It is discernible from the proceedings dated 3rd August, 1966 and the order dated 9th August; 1966 recorded by the Assistant Registrar, that‑he inspected the Bank's record. It is true, that the liability raised against the Society could not verified from its record, but as observed above, this record was never made available to the Liquidator. Thus, inevitably the determination of the liability, bad to be solely founded on the Bank's record. It is, therefore, not a case of no evidence, to warrant interference in exercise of writ jurisdiction.
19. The liability of the Society was unlimited; there was no legal bar on the recovery of its debt from any of its members. It is on the, record that Muhammad Shafi Mansoor was all‑in‑all and the other members were merely name‑lenders. The Liquidator has cast the liability on the two peti tioners and another namely, Wali Muhammad, who is also a member of t Shaft Mansoor's family. The order of the Liquidator in fixing the amount of contribution, thus, does not suffer from any illegality. It is also proved on the record that the Liquidator in the first instance, provisionally determined the liability of both the petitioners separately and, therefore, it is wrong to allege that he failed to pass separate orders against each of the petitioners.
20. The objection that the goods, pledged with the Bank by the Society, were not accounted for, by the Liquidator, in fixing the liability of the petitioners, is also without any substance. It has already been obser ved that the determination by him rested on the record of the Bank, and such determination was also scrutinised by the Assistant Registrar. In exercise of its Constitutional jurisdiction, it is not possible for this Court: to reappraise the evidence, to check up the Account‑books of the Bank and to scrutinize the entries of Annexure 'R/9'. The fact remains that against the orders of the departmental‑Authorities, the petitioners sought remedy under section 64‑A of the Act, but they could not succeed. In Muhammad Hussain Monir and others v, Sikandar and others (PLD1974SC139) it bas been laid down that
.It is well‑settled that where a Court or a tribunal has jurisdic tion and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it carne to an erroneous decision on a question of fact or even of law..._"
The impugned orders and the action taken against the petitioners do not suffer from any jurisdictional defect:
21. It appears that during the pendency of the writ petitions, M. L. R. 18 was promulgated which was reconstituted by M. L. O. 241 and t enforce the recovery against them the petitioners' property was disposed of by the authorities under the latter provision. During his submissions, the petitioners' learned counsel addressed arguments requesting the Court to take notice of the events, occurring after the institution of the writ peti tions and urged that the auction of the properties was altogether without jurisdiction.
22. I am unable to entertain this submission for two reasons firstly the petitioners could have incorporated this ground in the writ petition by way of amendment, but this was not done, and secondly, they have filed two other writ petitions, challenging the action taken against them under M. L. O. 241. I‑am, therefore, not inclined to consider the petitioners' objection as to the disposal of their properties,
23. As all the contentions raised by the petitioners have failed, both the writ petitions are dismissed with no order as to costs.
M.Z.M. Petitions dismissed.
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