PLJ 2021 Lahore 876
Co-operative Societies Act, 1925--
----S. 54--Purchase of plot--Submission of revised site-plan for construction of house--Issuance of notice--Dispute between society and petitioner--Mechanism to resolve dispute--Direction to--It would be appropriate for Petitioner to approach Registrar because Section 54 of Co-operative Societies Act, 1925 provides a mechanism to resolve dispute between a Cooperative Society and any of its members or past members--Matter is referred to Respondent No. 2 parties are directed to appear before him who will decide issue in hand after hearing all parties of this writ petition and also taking into consideration all relevant documents--matter should be decided within a reasonable time but not later than three months--Petition disposed of. [Pp. 885 & 886] D & E
Constitution of Pakistan, 1973--
----Art. 199(1)(c)--Duty of Court--It is duty of Court to protect Fundamental Rights provided and guaranteed under Constitution, and Article 199(1)(c) of Constitution empowers this Court to issue any appropriate directions for enforcement of Fundamental Rights.
[P. 881] A
Constitution of Pakistan, 1973--
----Art. 23--Right to property--Instant petition involves right to property of Petitioner, which is a fundamental right guaranteed under Article 23 of Constitution, Court is well within its powers to issue directions to even a private entity in its constitutional jurisdiction which deals with affairs of public. [P. 881] B
Deniel of fundamental rights--
----It is well settled principle of law that fundamental rights cannot be denied, infringed or curtailed on ground of laches--Principle of laches is not one of universal application to be applied in every case without examining dictates of equity, justice, fair play and facts and circumstances of case. [P. 881] C
Mr. Salman Mansoor, Advocate Supreme Court for Petitioner.
Barrister Umair Khan Niazi, Additional Advocate General.
Sahibzada Muzaffar Ali Khan, Sr. Legal Advisor for Respondent No. 3/LDA.
Mr. Sikandar Hayat Khan Sial, Advocate for Respondent No. 5/LESCO.
Mr. Iftikhar Ahmad Mian, ASC for Respondent No. 6/Cooperative Model Town Society for Respondents.
Mr. Javed Iqbal Bhatti, ASC for the Respondent No. 7.
Date of hearing: 20.4.2021.
PLJ 2021 Lahore 876
Present: Jawad Hassan, J.
Syed GHULAM MOIN-UL-HAQ GILLANI--Petitioner
versus
PROVINCE OF PUNJAB through Secretary Co-Operative, Punjab, Lahore and 6 others--Respondents
W.P. No. 4848 of 2019, decided on 20.4.2021.
Judgment
The Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) with the prayer to set-aside the notice dated 3.8.2018 (the “Impugned Notice”) issued by the Respondent No. 6/Cooperative Model Town Society. He has also challenged the building byelaws of the aforesaid Respondent.
I. BACKGROUND OF THE CASE
2. The petitioner purchased plot No. 18, Block A (the “Plot”), in the Cooperative Model Town Society Limited Lahore (the “Society”) in the year 1996. He has been residing therein and is also a member of the Society. He submitted revised site plan for construction of his house to the Respondent No. 6 for its further transmission to the Respondent No. 3/Lahore Development Authority (“LDA”) for approval, but the Society instead of forwarding the same to the LDA, started to evaluate under its own byelaws and issued the Impugned Notice under the Society’s Building Regulations, 2006.
II. PETITIONER’S SUBMISSIONS
3. Mr. Salman Mansoor, ASC, counsel for the Petitioner inter-alia contends that the Respondent No. 2 registered the Respondent No. 6 as Society under the Cooperative Societies Act 1925 (the “Act”) which could only extend the powers to the management committee for the smooth functioning of the Society whereas the Society does not have power to make regulations rather it has only power to make rules under bye-law 2(d); that the Society was registered under the Act and its management is regulated by the Registrar of the Cooperative Department but the Society under the wrong impression started to regulate the land use and building activities in the approved area of their master plan; that powers to regulate land use and building control remained with the Respondent No. 4 through various Local Government enactments and presently, by operation of law, this power has been transferred to and is exercised by LDA under the Lahore Development Authority Act, 1975 (the “LDA Act”); that the. powers cannot be derived by the Society through a resolution of its general body and likewise the Respondent No. 2 has no powers to approve any bye-laws which are contrary to prevalent law; that although bye-law 45(BB) authorizes the management committee to frame regulations with the approval of the Respondent No. 2 but such Building Regulations 2006 have been issued without approval of the Respondent No. 2; that the Society has no authority to amend its layout plan at the strength of resolution of managing committee or the general body.
III. RESPONDENTS SUBMISSIONS
Submissions of Respondents No. 1 & 2
4. Barrister Umair Khan Niazi, Additional Advocate General objected to maintainability of the petition on the ground that the Petitioner has an alternate remedy of appeal under Section 64 of the Act. He stated that the Society is functioning under the Act and laws/regulations of the LDA are not applicable within the territory of the Society.
Submissions of Respondent No. 3/LDA
5. Sahibzada Muzaffar Ali Khan, Sr. Legal Advisor for LDA objected to maintainability of the petition. He stated that although the revised layout plan of the Society was approved by the LDA with regard to planning, building and land use control etc. yet the steps taken by the Society, without approval of the LDA, are without lawful authority. He strenuously argued that all housing schemes in Lahore Division fall in the exclusive jurisdiction of the LDA and the property owners in the Society are bound to adhere to the layout plan sanctioned by the LDA and to obey the building regulations framed under the LDA Act therefore, the Society cannot claim any exception to applicable law and rules.
Submissions of Respondent No. 6
6. Mr. Iftikhar Ahmad Mian, ASC counsel for the Respondent No. 6/Society also objected to the maintainability of the petition on the grounds that the Petitioner has remedy of appeal and further that writ is also not maintainable due to the reason that the Society does not fall within the ambit of a person in terms of Article 199(5) of the Constitution. He argued that the regulations were made by the Society under Martial Law Regulation No. 856 to the Administrator which powers were exercised by the Society under bye-law No. 45(bb) and 45(cc). He further argued that under bye-law No. 45(y), the Society is empowered to regulate the construction, use and maintenance of all buildings roads and other properties. While referring to Notification dated 28.02.1979 of the LDA, he added that this Notification does not apply to the Society as it is located at the West side of Ferozepur Road, Lahore while the controlled area issued under Section 18 of the LDA Act relates to Ferozepur Road on the East as such the law of LDA is not applicable within the territory of the Society.
Submissions of Respondent No. 7
7. Mr. Javed Iqbal Bhatti, ASC counsel for the Respondent
No. 7 objected to the maintainability of the petition in the wake of alternate remedy available to the Petitioner, however, he adopted the arguments advanced by learned counsel for the Respondent No. 6.
8. Arguments heard. Record perused.
IV. NUB OF THE MATTER
9. Before discussing the merits of the case, it is essential to determine the following fundamental issues in the his in hand:
1. Whether writ petition is maintainable against the Society/Respondent No. 6 or any directions can be issued to such Respondent under the constitutional jurisdiction of this Court?
2. Whether the Petitioner has any other statutory remedy under the Cooperative Societies Act, 1925?
V. DETERMINATION BY THE COURT ON ISSUE 1
10. First of all, we have to see whether the writ petition is maintainable against the Society/Respondent No. 6 or whether any directions can be issued to the Society/Respondent No. 6 in the instant petition. It is admitted fact that the Society/Respondent No. 6 is a co-operative society duly registered with Registrar Co-operatives under the Act, and consequently, has nothing to do with any kind of affairs of federation, province or authority as required under Article 199 of the Constitution. Since status of the Society/Respondent No. 6 is of a private person, it is a settled law that writ petition is not maintainable against such private person or entity. There is, however, plethora of judgments stating that this Court is empowered to issue any appropriate directions to even a private entity for the enforcement of the fundamental rights provided in the Constitution.
11. It is pertinent to mention that while framing Article 199(l)(b)(c) of the Constitution, the legislature has not confined the powers and jurisdiction of this Court to a limited extent or for a specific purpose, but has equipped this Court with an authority to issue appropriate directions to any person or authority if there is a denial of any of the fundamental rights. The deliberate use of the phrase ‘any person’ in addition to the words ‘authority, including any Government’, itself shows that exercise in such like matters can well be exercised regardless of the character and status of any person, which may be ‘private’ or ‘governmental’. Reliance is placed upon the decision of Lahore High Court in “The State and others versus Director-General FIA and others” (PLD 2010 Lahore 23), where the Court has held that:
“6. At the very outset we want to take up the objection raised by the learned counsel for Zarco Company as regards to jurisdiction of this Court. No doubt Article 199(i) (a) of the Constitution provides that the High Court has jurisdiction to declare an action, inconsistent with fundamental rights, by a person performing functions in connection with the affairs of the Federation, Province or local Authority to be declared illegal and without lawful authority, but at the same time clause (c) of Article 199(i) widens the scope of jurisdiction of the High Court in issuing a direction to meet the ends of justice. Clause (c) of Article 199(i) is reproduced here below:
“(c) on an application of any aggrieved person make an order giving such direction to any person or authority, including any government exercising any power or performing any function, in or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II”.
This clause does not restrict the jurisdiction to the extent of Government functionaries but extends it to any person or authority...”
12. Likewise, in “Captain Salim Bilal versus Pakistan International Airline Corporation (PIAC) through Managing Director PIACC” (2013 PLC (C.S.) 1212), the Court has also reiterated the same view by holding that:
“9....Two points may be noted. Firstly, the jurisdiction of the High Court to enforce fundamental rights has been expressly conferred by Article 199(l)(c). The jurisprudence with regard to the substantive application of this provision is, in our respectful view, essentially the same as that developed by the Supreme Court in relation to its original jurisdiction under Article 184(3). This is because of the express linkage between the two constitutional provisions. We note that in recent years in particular, the Supreme Court has taken an expansive and broad view of the jurisdiction to enforce fundamental rights. In our view, the law has developed to the extent that it is not now of any material importance that fundamental rights are engaged as a result of contractual obligations or provisions. What is of primary concern is that fundamental rights should not be curtailed, abridged, infringed or violated. Furthermore, it is clear that directions under Article 199(1)(c) can be made to any person, which could in appropriate circumstances include even a private person...”
VI. DETERMINATION BY THE COURT ON ISSUE 2
15. It has evidently been established that the instant petition is directed about the dispute which is between the Society (Respondent No. 6) and its member (the Petitioner), and both these parties are governed by and under the Act. A careful glance to find out the remedies available under the Act leads to the mechanisms provided under Sections 44-F and 54 of the Act, which are relevant to note. Under Section 44-F of the Act, a member or society can approach the Registrar of Co-operative Societies for redressal of grievance, which are not covered under Section 54 of the Act. On the other hand, under Section 54 of the Act, if any dispute touching the business of a society (other than a dispute regarding disciplinary action) arises between the society and any present member of the society, it has to be referred to the Registrar for decision by himself or by his nominee, or if either of the parties so desires, to the arbitration of three arbitrators. For the sake of clear understanding, both these provisions are reproduced hereunder:
44-F. Grievance redressal.--(1) A member or a society can approach the Registrar for redressal of grievances, not covered under Section 54, by filing an application.
(2) The Registrar may issue notice to the parties, and after providing an opportunity of hearing, redress the grievance through a written order.
(3) Any party aggrieved by an order of the Registrar may file an appeal in the manner as provided under Section 64 of this Act, before the Secretary Cooperatives within two months of the date of communication of the order.
54. Arbitration.--If any dispute touching the business of a society (other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society) arises--
(a) between members or past members of the society or persons claiming through a member or past member, or
(b) between members or past members or persons so claiming and any past or present officer, agent or servant of the society, or
(c) between the society or its committee, and any past or present member of the society, or
(d) between the society or its committee, and any past or present officer, agent or servant of the society, or a surety of such officer, agent or servant, whether such surety is or is not a member of the society, [or]
[(e) between a financing bank authorised under sub-section (1) of Section 34 and a person who is not a member of a society], [or]
[(f) between two societies,]
it shall be referred to the Registrar for decision by himself or his nominee, or if either of the parties so desires, to arbitration of three arbitrators who shall be the Registrar or his nominee and two persons of whom one shall be nominated by each of the parties concerned.]
A dispute shall include [the question whether a person is or was a member of a society and also] claims by a society for debts or demands due to it from [a member, past member or non-member] or the heirs or assets of a past member [or non-member] whether such debts or demands be admitted or not:
Provided that if the question at issue between a society and a claimant, or between different claimants, is one involving complicated questions of law and fact, the Registrar may, if he thinks fit, suspend proceeding, in the matter until the question has been tried by a regular suit instituted by one of the parties or by the society. If no such suit is instituted within six months of the Registrar’s order suspending proceedings, the Registrar shall take action as laid down in paragraph 1 of this section.
16. Section 54 of the Act provides for resolution of dispute ‘touching business of a society’ by the Registrar himself or his nominee, or through arbitration if the parties so desire. The nature of disputes covered by Section 54 of the Act has been specified in Clauses (a) to (f). They all relate to disputes regarding internal affairs of a Society in between its members or of members with the society or its committees. The only provision in the Act of 1925 empowering the Registrar to resolve disputes is Section 54; and the Registrar has been conferred a pivotal role in implementing the obligations cast upon the Society and its members including hearing complaints and implementing his decisions. Reliance in this regard has been placed upon “Defence Housing Authority Lahore versus Builders and Developers (Pvt.) Ltd” (2015 SCMR 1799) wherein it was held as follows:
10. The above provision provides for resolution of dispute ‘touching business of a society’ by the Registrar by himself or through arbitration if the parties so desire. The nature of disputes covered by Section 54 of the Act of 1925 has been specified in Clauses (a) to (e). They all relate to disputes regarding internal affairs of a Society in between its members or of members with the society or its committees. Both sections 54 and 70 of the Act of 1925 are limited to disputes regarding ‘business of the society’. As the phrase appears in different provisions of the same statute as a rule it is to be assigned the same meaning. Though Section 70 does not make reference to Section 54 of the Act of 1925 but without relating it to the latter the issuance of notice would be meaningless. The two months wait period provided under Section 70 is to enable the Registrar to resolve the dispute. The only provision in the Act of 1925 empowering the Registrar to resolve disputes is Section 54. The proviso to the Section provides for suspension of the proceedings if the Registrar is of the opinion that the dispute involves complicated question of law and facts, which can be decided only through a regular suit. That is precisely what the Registrar did in the present case. After the notice was delivered by the respondent to the Registrar, the latter sought reply of the appellant and filed the same when he found that the matter was one which could only be decided through a civil suit. Restricting the provision of Section 70 to only those disputes covered by Section 54 is consistent with the scheme of the Act of 1925, providing for regulating registration, working and business of the cooperative societies. The Registrar has been conferred a pivotal role in implementing the obligations cast upon the Society and its members including hearing complaints and implementing his decisions. Section 70 of the Act of 1925 does not apply to all suits instituted against the Society or any of its officers. It is restricted to suits in respect of any act ‘touching the business of the society’. If, as held in some of the judgments of the High Court and canvassed by the learned counsel for the appellant, the ‘business of the society’ should be given an expanded meaning so as to include any business dealing by an outsider with the Society is accepted, then perhaps barely any suit filed against the society would be excluded from the application of Section 70 of the Act of 1925. The only reasonable construction consistent with the scheme and purpose of the Cooperative Societies Act would be to limit the application of Section 70 to matters falling under Section 54 of the Act.
17. It was also held in “Syed Sultan Ali versus Sahibzada Frogh Najam Najmi” (2009 CLC 477) that Section 54 of the Act is very clear which provides, inter alia, that where any dispute touching the business of a society arises between a member or past member of the Society or any person claiming through a member or past member, it has to be referred to the Registrar Cooperative Societies for its decision by himself or his nominee or if either of the parties so desire/ to three arbitrators which would be the Registrar or his nominee and two person, one of whom shall be nominated by each of the parties concerned. It was further held that when a dispute arises between the parties which touches the business of the society, the matter would have to be referred to the Registrar under Section 54 of the Act.
(Y.A.) Petition disposed of
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