ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
C.P. No.D-2367of 2015
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Date Order With Signature Of Judge
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Present:-
Mr. Justice Irfan Saadat Khan, J.
Mr. Zafar Ahmed Rajput, J.
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Petitioner: Dr. Rafiq Akhtar Kazi, through Mr. Usman Tufail Shaikh, Advocate.
Respondents: Through Mr. Abdul Jabbar Qureshi, AAG.
No.1 to 4.
Respondent No.5: Nemo.
Date of hearing 29.9.2015.
O R D E R.
ZAFAR AHMED RAJPUT, J. The instant petition has been filed with the following prayers:-
1. Declare that the Notification (Annexure A) for supersession of the Citizens Cooperative Housing Society, Hyderabad is unlawful and of no legal effect;
2. Quash/ cancel/ suspend the Notification (Annexure A) for supersession of the Citizens Cooperative Housing Society, Hyderabad being unlawful and of no legal effect;
3. Pass an order for holding elections of Managing Committee of the Citizens Cooperative Housing Society, Hyderabad to be held by judicial officer;
4. Pass an order to holding enquiry /investigation by the NAB Authorities in respect of Administrators that have been appointed by the respondent No. 1 from time to time and criminal action be taken against them.
5. Restrain the respondent No. 5 and present administration from working, managing and controlling the affairs from operating bank accounts of the Citizens Cooperative Housing Society, Hyderabad till such time election of the Managing Committee is not conducted.
6. Grant the compensatory cost to the petitioner.
7. Grant any other relief deem fit and appropriate in the circumstances of the case.
2. Briefly stated, the facts of the case are that the petitioner is a member and Ex. Chairman of Managing Committee of Citizens Cooperative Housing Society, Hyderabad, (the Society) which was superseded by the order of respondent No. 1 on 14.12.2010 and since then the Administrators are being appointed by the respondent No. 1 for the management and control of the said Society. It is the case of the petitioner that the supersession of a Cooperative Society cannot continue for a period of more than two years, as such, the supersession of the Society and appointment of respondent No.5 as Administrator deserves to be suspended, followed by election of the Managing Committee.
3. Learned counsel for the petitioner has contended that the Administrators appointed by the respondent No. 1 for the management and control of the Society have caused substantial losses to the Society due to their corrupt practices. He has further contended that presently the respondent No. 5 is appointed as Administrator of the Society by the respondent No. 1 vide order dated 26.11.2014, who is also involved in selling the amenity plots worth billions of rupees for his personal gains with the connivance of the officials of the Cooperation Department and in this regard the respondent No. 5 issued advertisement dated 8th December, 2014 in daily Express Newspaper for sale of plots by auction including amenity plots for that he has no authority under the law. He has further contended that the respondent No. 5 and other Administrators appointed from time to time have un-authorizedly withdrawn huge amounts from the bank accounts of the Society. He has further contended that the Society is under the supersession for the last four years and nine months without holding any enquiry as required under Section 6 of the Sindh Co-operative Housing Authority Ordinance, 1982, (the Ordinance of 1982) and under section 7 and 14 of the Ordinance of 1982 the Administrator is bound to hold elections of office bearers of the Society and hand over the charge of the Society to the Officer bearers, so elected within a period of one year from taking over the charge and control of the affairs of the Society and under no circumstances the period of holding such election should exceed two years, therefore, it will be in the interest of the Society that the election of its Managing Committee be held by a judicial officer and whereafter its affairs be run through its elected Managing Committee.
4. The learned AAG while conceding to the contention of the learned counsel for the petitioner made with reference to Ordinance of 1982 has maintained that a Cooperative Society cannot be remained under supersession for more than two years.
5. None is present for the respondent No. 5, though Mr. Ghulam Akbar Khan Jatoi, advocate has filed his vakalatnama on his behalf, who has also filed counter affidavit to the petition, wherein it has been stated that the respondent No. 5 was appointed as Administrator on 26.11.2014 by the respondent No. 1 with powers to perform duties of the Managing Committee, which has not been challenged by the petitioner in this petition as he has only impugned the notification dated 4.12.2010. It has further been stated that the then Administrator of the Society got advertisement published in a newspaper for selling of plots including amenity plots by auction, however, he has no concern with the same and all the documents annexed with the petition including the bank statement, cheques pertain prior to his taking over the charge as an Administrator.
6. We have heard the learned counsel at length and perused the record. To appreciate the contention of the learned counsel for the petitioner, we deem it appropriate to reproduce the relevant provisions of sections 6, 7 and 14 of the Ordinance of 1982, as follows:-
6. (1) Government may, on being satisfied that a society has failed to perform its duties in accordance with law, rules or bye-laws, or constitution, memorandum or articles of association of the society, or has indulged or is indulging in mismanagement of the affaires thereof, or has acted or is acting in any manner prejudicial to the interest of the members of the society, issue such direction to the society as it deems fit or order an enquiry to be made into the affairs of the society in the manner as may be prescribed.
(2) .
(2-A) .
(3) .
(4) .
(5) .
(6) .
7. The Authority may appoint a Managing Committee consisting of such number of persons as it may determine form amongst the members of the society, or an Administrator for performance of such duties and functions of the society as may be assigned by the Authority.
14.(1) The Authority shall, within a period of one year taking over the charge and control of the affairs of a society, hold elections of the officer bearers of the society and hand over the charge and control of the society to the office bearers, so elected.
Provided that if on receipt of the report of inquiry under Section 6, government is satisfied that the charges against the society referred to in that section are not correct, it may restore the management of the society to the office bearers holding office immediately before the inquiry.
(2) Government may, by Notification in the official gazette, extend the period under sub-section (1) but such extension shall not extend 2 years.
7. It appears from the perusal of the case that the first notification of supersession of the Society was issued by the respondent No. 1 on 14.12.2010 without assigning any reason and one Dr. Waliullah Dul was appointed as Administrator of the Society, then one Abdul Rahim Lakho and Noor Murtaza Thebo were appointed as Administrators of the Society and thereafter Amjad Hussain Soomro, respondent No. 5, was appointed as Administrator of the Society vide Notification dated 26.11.2014 by the respondent No. 1.
8. The appointment of Administrators of the Society after two years of its supersession is in violation of section 14 of the Ordinance, 1982. It may be observed that the laws of cooperative societies require that the affairs of a registered cooperative housing society should be run and managed by the duly elected representative of the society after holding of elections in accordance with Law. In the instant case, it appears that the subject Society is being run by the Administrators appointed by the respondent No. 1 since the last four years and nine months. Though the petitioner in the instant petition has not impugned the notification of appointment of present Administrator of the Society dated 26.11.2014 and has impugned the first notification of supersession of the Society dated 14.12.2010, but considering the last notification of November, 2014 in continuation and perpetuation of first notification of December, 2010 its issuance is illegal being in violation of Sections 7 and 14 of the Ordinance of 1982. We; therefore, allow this petition in the following manners:-
(i)
The Administrator, appointed by
the Government, of the Society shall not sell any plot of the Society and shall
carry on day-to-day affairs of the Society only, without making any substantial
expenditure out of the funds of the society during period of three months from
the date of this order, whereafter the elections of the Society will be
conducted.
(ii) The Additional Registrar of High Court of Sindh, Circuit Bench, Hyderabad is appointed as Commissioner to associate with the Administrator of the Society and conduct the election process of the Society within three months, whereafter the management of the Society shall be handed over to the newly elected representative. Compliance report may be submitted to this Court within fifteen days after the aforesaid election process is completed, whereas, the Administrator shall submit detailed accounts of the Society for the aforesaid period for perusal.
(iii) All the members of the Society are directed to cooperate with the Commissioner duly appointed by this Court for the process of such elections, whereas, the Administrator shall also cooperate with the Commissioner and make all the record of the Society including the accounts available for the inspection by the Commissioner during this period.
9. The fee of the Commissioner is fixed at Rs.50,000/-, which shall be paid in advance from the accounts of the society. In case sufficient amount is not available in the accounts of the Society, the Commissioner fee shall be paid from the revenue, which may be generated by calling the nomination papers from the members, however, before holding the elections.
10. The instant petition stands disposed of along with C.M.A. No.10335/2015 in above terms. While C.M.A. No. 18206 of 2015 is dismissed having become infructuous.
11. Above are the reasons of our short order dated 29th September, 2015, whereby the instant petition was allowed.
JUDGE
JUDGE
hanif