Find a Lawyer

Constitutional Petition No. 1018 of 1975, decided on 31st October, 1983.

----Ss.56 & 54-- Provisional Constitution Order (1 of 1981), Art.9----Competency of appeal against majority award of Arbitrators given under S.54, Act, 1925--Mutation of plot allegedly based on forged documents-Penal of Arbitrators, after considering different aspects of case deciding against petitioner--Stand taken by petitioner found against his own conduct--Allowing construction of building by petitioner on disputed plot militating against him--Arbitrators not impleaded party in proceedings challenging award--Contention that decision having been written by nominee of Registrar Co-operative Societies with which other nominees had concurred, was not a-majority decision, repelled--Order holding appeal incompetent, affirmed--High Court declined to deal with facts already considered and interfere in its writ jurisdiction with a well-reasoned award given by panel of arbitrators having exclusive jurisdiction to decide dispute.

P L D 1975 Kar. 12 ref.

Shahanshah Hussain for Petitioner.

Abdul Naseer Khan for Respondent No.5.

Remaining Respondents (absent).

Date of hearing: 31st October, 1983.

--1n this petition the petitioner has challenged the orders passed by Deputy Registrar Co-operative Housing Societies, Karachi dated 15-1-1974 whereby the, appeal filed by the petitioner against the majority award of the Arbitrators was found incompetent, as well as the order passed by the Secretary, Government of Sind, Co-operation Department dated 16--11-1974 whereby the revision filed by the petitioner was also dismissed.

The facts are that Plot No.84-L/2, P.E.C.H.S., Karachi measuring 400 sq. yds. was allotted by respondent No.3 to the petitioner on 25-1-1953 and registered sub-license was executed in his favour and registered on 22-11-1955. The petitioner was given the pu5sessiun of the Plot. In 1967 the original documents of the petitioner appear to have been lost and he, therefore, applied to Society for issuance of duplicate allotment order on 21-1-1967 and the same were granted to him.

On 27-8-69 the petitioner found that some construction work was in progress over his plot. He came to know that respondent No.5 had purchased the said plot from respondent No.4 Jalil Ahmed on 19-3-1969 and that before this the name of respondent No.4 had been mutated in respect of this plot on 6-2-1969. The petitioner alleges that the mutation in favour of respondent No.4 had been made on the basis of documents which had been forged.

The petitioner lodged a complaint with the Police in respect of the same and also filed an application under section 54 of the Co-operative Societies Act, 1925 before the Registrar of Co-operative Societies. The same was referred by the Registrar to his nominee and the parties also appointed their nominees. After recording evidence of the defendant persons the panel of Arbitrators gave it majority award on 17-8-1970. The nominees of respondents Nos. 4 and 5 agreed with the Registrar kind dismissed the application of the petitioner 'whereas the nominee of tile petitioner dissented.

The petitioner challenged the said award before respondent No.2. The respondent No.2 by order dated 15-1-1974 in Appeal No.34 of 1970 passed the following order:--

"The appeal is for setting aside a majority award, given by the Arbitrators under section 54 of the Co-operative Societies Act VII of 1925. It becomes incompetent under section 56 of the said Act. Besides, there are no cogent reasons to alter the decision of the Arbitrators".

The petitioner thereafter filed Revision Application under section 64-A of the Co-operative Societies Act, 1925 before lire Secretary of respondent No.1. The same wits however, dismissed on 16-11-1974.The Secretary of respondent No.1 held that appeal under section 56 does not lie if the award is made under section 54 by a panel of' Arbitration but the appeal is competent under section 56 if the award is made only by the nominee. The Secretary of the Co-operation Department made observations against the petitioner on the factual side of the case and observed as under:--

"On the factual side of the case, I have found that the stand taken by the applicant in the present case is against his own conduct and the same seems to be an afterthought. There is sufficient substance on record to show that respondent was a bona fide transferee of the share and the Plot No.84-L, allotted to the applicant by the respondent, Society. Not only this respondent 3 was made by the applicant, as his nominee the original membership application he filled in, in the year 1952, and also his general attorney some time later on. This plot afterwards transferred to respondent 3 by respondent 2 who has now completed the building thereon".

Mr. Shahanshah Hussain, the learned counsel for the petitioner has submitted that the View of the respondents Nos. 1 and 2 that appeal against the decision of tile Panel of Arbitrators under section 56 is not competent is not in accordance with law. The learned counsel submitted that in this case it was only the decision of the nominee with whom the nominees of the respondents 4 and 5 had agreed whereas the nominees of the respondents 4 and 5 had agreed whereas the nominee of the petitioner had dissented. Consequently the decision was merely the decision of the nominee and not of .the Arbitrators as such. We do not agree with this submission of the learned counsel. Section 56 of the Co-operative Societies Act, 1925 is as under:

"56. Appeal against award of arbitrator. Any party aggrieved by any decisions the Registrar's nominee made under section 54 (or subsection (3) of section 54-A) of all order passed under section 55 by the Registrar's nominee or arbitrators may within one month of the date of the award or order appeal to the Registrar and the Registrar shall decide the appeal."

The above provision makes it quite clear that the Registrar can hear only appeal against the decision of the nominee of the Registrar made under section 54 but the decision of the Panel of Arbitrators is not made so appealable. The mere fact that the decision has been written by the nominee of the Registrar with which the other nominees have concurred or dissented does not make the same as decision of the nominee only and it is the decision of the majority of the Panel of Arbitrators. It was held in P L D 1975 Kar. 12(17) that where a majority decision of Panel of Arbitrators is givers where the Registrar is a member of the Panel then it is not the decision of the Registrar only but it is a decision of the Panel of Arbitrators. We respectfully agree with that view and find that the view of respondents Nos.1 and 2 that the appeal against tile decision of Parcel of Arbitrators was not competent tinder section 56 of the Co-operative Societies Act was correct.

The counsel for the petitioner then contended that tile petitioner had challenged the decision of the Arbitrators on different points and, therefore, the respondent No.2 should have exercised the: jurisdiction under section 54-A of the Co-operative Societies Act and should have set aside the award as the same was perverse. The petitioner however, has not filed copy of the petition/application/appeal, whatever it may be called by the petitioner, which he had filed before the respondent No.2 in order to enable us to know whether the petitioner had sought art order under section 56 of the Co-operative Societies Act or tie had sought all order under section 54 of the Co-operative Societies Act. Mr. Abdul Naseer Khan, counsel for the respondent No.5 has drawn our attention to tire title of the order passed by respondent No.2 which shows that it was Appeal No.34 of 1970. Even the substantive portion of the said order shows that the appeal was being considered by the respondent No.2. Moreover, the petitioner has nowhere stated in the petition lilac he had specifically moved all application under section 54-A of the Co-operative Societies Act, before respondent No.2 and, therefore, it is possible for us to hold that the petitioner had sought an order under section 54-A of the Co-operative Societies Act. The counsel for the petitioner had argued that the' petitioner had sought setting aside of the award anti setting aside could be both under section 56 as well as under section 54-A of the Co-operative Societies Act. We cannot agree with this submission that by merely asking the setting aide the award the provision of section 54-A had been invoked. In this respect another fact of importance is that in the order of respondent No.1 which is a detailed order nowhere there is mention that the petitioner had contended before the respondent No.2 that tie should take action under section 54-A of the Co-operative Societies Act. Even the Revision Application filed by the petitioner before tile respondent No.1 has not been filed before us from which we can peruse that the point now raised before us is the same point which had been raised by the petitioner before respondents Nos.1 and 2 whose orders he seeks to challenge in this petition. And it, therefore, appeared to us that the petitioner now wants to advance an argument which tie had not raised before the respondents Nos.1 and 2 and lie cannot be allowed to do the same.

On the merits of the case no arguments had been advanced by the petitioner as he stated that his case had not been considered by the respondent No.2. We, however, find that respondent No.2 had observed that there were no cogent reasons to alter the decision of the Arbitrators. This observation may not be considered to be conscious application of the mind by the respondent No.2 but it does show that the respondent No.2 was satisfied, with the decision of the Arbitrators.

However, more important are tile observations made by respondent No.1 in his order dated 16-11-1974 which had been reproduced by us earlier. The respondent No.1 found that the submissions of the petitioner were against his own conduct and were an afterthought. He also found that respondent No.4 was bona fide transferee of the share of the petitioner. He also found that the respondent No.4 had been made his nominee by the petitioner in his application of membership made in 1952 and he was also his attorney general some time later on. Most important observation of the respondent No. l was that the respondent No.5 had been transferred this plot by respondent No.4 and respondent No.5 and completed the building thereon.

We Have perused the petition and we do not find anywhere stated in the petition that whatever has been observed by respondent No. 1 was factually incorrect. We do fired in the petition that there is a good deal of challenge against the decision of tile Arbitrators but the same appears to be based on Technicalities rather than oil substance. We find that the award made lay the Panel of Arbitrators is quite a considered one and the Arbitrators have considered the stand of petitioner as well as of the defendants in a 20 pages judgment and their findings are quite detailed. We find that respondent No.4 Jalil Ahmed had appeared before the Arbitrators and had made a statement that he has purchased the plot from the petitioner. He had also stated that the petitioner Nafees Baig Mirza was his nephew. Jalil Ahmed had also produced the original receipts and the Panel of Arbitrators has considered the different aspects of the case in a 20 pages judgment and gave findings against the petitioner.

The petitioner had sought it declaration that the award was illegal but he had not impleaded the arbitrators as respondents slid hence the award could not he declared' to be illegal. In any case it 'appears to be well-reasoned award and this High Court would not, in its constitutional jurisdiction deal with disputed facts which have received consideration from a panel of arbitrators, who had the exclusive jurisdiction to decide this dispute. Another important factor, militating against the petitioner is that he had allowed the raising of a building on the disputed plot by respondent No.5.

We have, therefore, come to the conclusion that this petition is not sustainable and it is, therefore, hereby dismissed.

M.I. Petition dismissed

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.