IN THE HIGH COURT OF SINDH AT KARACHI

 

 

Constitutional Petition No.D-2516 of 2012

 

 

                                                Before:

                                                Mr. Justice Irfan Saadat Khan &

                                                Mr. Justice Zafar Ahmed Rajput

 

 

 

O R D E R

 

 

Date of hearing                        :           01.09.2015.

Petitioner                                 :           Momin   Co-operative   Credit    Society   Ltd.

through  Mr.  Aayatullah Khuwaja,  Advocate.

 

Respondents                            :           Province    of   Sindh,   Registrar   Cooperative

Societies Sindh & District Officer Cooperative Societies through Mr. Miran Muhammad Shah, Additional Advocate General Sindh.

 

 

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IRFAN SAADAT KHAN, J:- The instant Constitutional Petition has been filed with the following prayers:

a.         Declare that the impugned order issued by respondent No.2 vide letter No.RCVS/KYC/250/2012, Hyderabad, dated: 02/07/2012 is patently illegal, unlawful, null and void and beyond the jurisdiction and authority and not binding on the petitioner society.

b.         Declare the act of respondents No.2 of issuing impugned vide impugned vide No.RCS/KYC/250/2012, Hyderabad, Dated: 03/07/2012 as illegal, unlawful void and malafide.

c.         Restrain the respondents from causing any harassment to the petitioner.

d.         Suspend the operation of impugned order vide No.RCS/KYC/250/2012, Hyderabad, Dated: 03/07/2012 issued by the respondent No.2.

e.         Award any other relief, deemed fit and proper.

 

2.         Briefly stated, the facts of the case are that the petitioner is a Cooperative Society, established in the year 1953 and was registered under Section 10 of the Cooperative Societies Act 1925 by the Assistant Registrar Cooperative Societies Hyderabad, vide Registration No.S-646 of 1953, dated August 1953. The said Society belongs to Aga Khani /Ismaili Community and at present is having more than 170 members and its working capital is Rs.3,52,56,348/-. It is averred that the Society is working in an excellent manner and enjoys a good reputation as is evident from its audit report. It is also averred that there has never been any complaint against the Society in the past, however, on 05.07.2012 the petitioner received a letter No.RCS/KYC/250/2012, dated 03.07.2012 from the respondent No.2 mentioning therein that under the powers vested in the Registrar under Rule 48 of the Cooperative Societies Rules 1927 (the Rules), on account of failure of the management to run the affairs of the society properly as per the Bye-laws, Mr. Imran Ali Khan Balouch was appointed as Administrator for a period of one year till further orders. It is against the said impugned order that the instant petition has been filed.

3.         Mr. Aayatullah Khuwaja Advocate has appeared on behalf of the petitioner and submitted that the said action taken by the respondent No.2 by appointing Mr. Imran Ali Khan Balouch as Administrator under Rule 48 of the Rules is not in accordance with law. He has further submitted that as per the said Rule it was incumbent upon the said Registrar to issue a show cause notice and to give an opportunity of hearing to the petitioner which was not done hence, according to him, the order passed by the Registrar is non-est in the eyes of law and is liable to be whittle down. Learned counsel has read out the Rule 48(6) of the Rules and submitted that since an opportunity of hearing was not provided by the respondent No.2, the legal term “audi alteram partem” has been violated, hence this petition may be allowed by vacating the order passed by the Registrar. In support of his contentions, the learned counsel has placed reliance upon the decision given in the case of Haji Khuda Bukhsh and 9 others Vs. Deputy Registrar, Cooperative Societies, Punjab, Lahore and 2 others (PLD 2007 Lahore 341).

4.         Mr. Miran Muhammad Shah, Additional Advocate General has appeared on behalf of the respondents and submitted that detailed and comprehensive comments have already been filed by the respondents and prayed that this petition being not maintainable may be dismissed as, according to him, serious irregularities were noted by the respondent No.2 and thereafter the matter was handed over to an Administrator to run the affairs of the society in a smooth manner. He states that whatever action was taken by the respondent No.2 was in accordance with law.

5.         We have heard both the learned counsel at considerable length and have also perused the record and the decision relied upon.

6.         Before proceeding any further Rule 48(6) of the Rules, upon which reliance has been placed by the learned counsel for the petitioner, is reproduced as under:

48.       (1)        Notwithstanding  anything  contained   in  the  bye-laws  of   a

society the Registrar may, by order published with reasons therefor in the Official Gazette, supersede the committee or a society for a period to be specified in such order.

                        (2)        ..          ..          ..          ..          ..          ..          ..          ..        ..

                        (3)        ..          ..          ..          ..          ..          ..          ..          ..        ..

                        (4)        ..          ..          ..          ..          ..          ..          ..          ..        ..

                        (5)        ..          ..          ..          ..          ..          ..          ..          ..        ..

(6)        Before making an order under sub-rule (1) or sub-rule (2) the Registrar shall:--

(a)        give the society an opportunity to show cause why such an order should not be made ;

(b)        if the society is affiliated to a financing bank, consult such bank regarding such action and the provision to be made for management of the affairs of the society.

c)         if the society is the Provincial Co-operative Bank Ltd., obtain the previous approval of the Provincial Government.

A perusal of the parawise comments filed by the respondent No.2 reveals that in para-14 of the said comments it has been mentioned that the petitioner has miserably failed to give the reply of show cause notice and had the petitioner replied to the show cause notice then its explanation could have been considered, which was not done. However, para-12 of the said comments reveals somewhat different situation as in the said para it has been mentioned that the Registrar being competent authority, as an emergent measure, took immediate action of supersession of the Society, by dispensing with an opportunity of show cause notice. In the said para of the comments it has also been mentioned that this opportunity shall be afforded to the Society as soon as possible. From these two above paras it is evident that the respondent No.2 has given divergent statements as at one place of the parawise comments he has mentioned that due to urgency opportunity of hearing was not provided to the petitioner, whereas in para-14 he has mentioned that the petitioner has failed to furnish the reply. We have noted that no notice or copy of any show cause notice has been appended with the comments by the respondent No.2 to prove his averments. If the respondent No.2 has issued any show cause notice and the petitioner has not furnished any reply thereto, to strengthen his view, as mentioned in para-14, which is totally contrary to para-12 of his own comments, the respondent No.2 should have at least appended copy of the show cause notice issued to the petitioner, which admittedly has not been done. Here a question would arise, can the Registrar dispense with the legal requirements of Rule 48 with regard to issuance of show cause notice and getting reply of the petitioner? We are sanguine that the reply of this question should be in negative. Nobody could be allowed to dispense with or to ignore or to bypass any provision of law which clearly specifies that before passing any order the said authority has to give an opportunity of hearing to the other side under the garb of emergency or whatever may be the reason. In the decision relied upon by the learned counsel for the petitioner, in our view, it has in unequivocal terms been observed that “it is the duty of the Registrar to give an opportunity to the Society as to why an action should not be taken against it and that opportunity should not be illusionary or an eyewash or to just fulfill the requirements of law, rather same mush be purposeful and satisfy criteria on touchstone of principles of natural justice”.

7.         We, therefore, in view of the circumstances, allow this petition by vacating the order of the Registrar dated 03.07.2012 on the ground that the requirements as mentioned in Rule 48(6) of the Rules have not been complied with. However, the respondent No.2 will be at liberty to initiate any action against the petitioner in accordance with law, if circumstances so warrant. Petition along with the listed application stand allowed.

Above are the reasons of our short order of even date.

 

JUDGE

 

JUDGE

Karachi.

Dated : ____________.2015.

Tahseen/PA