P L D 2014 Supreme Court 471

Present: Nasir-ul-Mulk, Mian Saqib Nisar and Amir Hani Muslim, JJ

PUNJAB COOPERATIVE BOARD OF LIQUIDATION through Chairman---Appellant

Versus

MUHAMMAD ILYAS---Respondent

Civil Appeal No.257-L of 2013, decided on 21st January, 2014.

(Against the judgment dated 23-10-2012 of the Lahore High Court, Lahore passed in
Writ Petition No.14024 of 2010)

(a) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----S. 11---Application to the Cooperatives Judge---"Aggrieved person"---Scope---Power of

Cooperatives Judge could only be invoked by an "aggrieved person" against an act or decision of
the Cooperatives Board---Cooperatives Board itself had not been reckoned as an "aggrieved
person" so as to avail any right or conferred with a locus standi to approach the Cooperatives
Judge under S.11 of Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993.

(b) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----S. 11---Application to the Cooperatives Judge---Power of Cooperatives Judge to "confirm,

reverse, or modify the act or decision of the Cooperatives Board---Interpretation---Cooperatives
Judge on an application under S.11 of Punjab Undesirable Cooperative Societies (Dissolution)
Act, 1993 could either confirm the act/decision assailed therein, meaning thereby that, the
application would be dismissed; or Judge could reverse the order i.e. accept the application of the
aggrieved person whereby the act/decision of the Board would be set aside; or Judge could
modify the assailed order of the Board i.e. alter and change the act/decision assailed, in the
manner that part of relief was allowed to the aggrieved person whereas part of it might be
refused.

(c) Interpretation of statutes---

----Ejusdem generis, rule of---Meaning---When general word or phrase (in a statute) followed a
list of specifics, the general word or phrase shall be interpreted to include only the words/items
of the same class as those specified.

Blacks Law Dictionary, 9th Edn. ref.

(d) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----S. 11---Application to the Cooperatives Judge---Power of Cooperatives Judge to "make such

order as he may think just in the circumstances of the case"---Interpretation---Words "make such
order as he may think just in the circumstances of the case" appearing at the end of S.11 of
Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 did not confer upon the
Cooperatives Judge an open ended power and jurisdiction to pass any order, as it might fall
within the realm and mischief of arbitrariness, whim and caprice in the exercise of his
jurisdiction---Cooperatives Judge was not permitted to pass any order in the garb of his power to
confirm, reverse or modify the act/decision of the Cooperatives Board/Liquidation Board---
Cooperatives Judge while exercising his jurisdiction under S.11 of Punjab Undesirable
Cooperative Societies (Dissolution) Act, 1993 had no empowerment to totally annihilate and set
aside that part of the order passed by the Liquidation Board by virtue of which an aggrieved
person had earned a right in his favour---However Cooperatives Judge while upholding order of
the Board was authorized to impose a reasonable condition as it would be within his jurisdiction
in terms of the authority to modify the act/decision, which the aggrieved person shall be obliged
to comply with in order to attain the fruits of the Board's order, act or decision.
(e) Administration of justice---

----Where an aggrieved person approached a higher forum complaining against a decision of the
lower forum and sought redressal of his grievance and his opposing side had no grouse against
such order/decision of lower forum, it would be inconceivable for the aggrieved person to be left
bereft of the right which he had acquired.

(f) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----S. 11---Application to the Cooperatives Judge---Power of Cooperatives Judge to "confirm,

reverse, or modify the act or decision" of the Cooperatives Board---Interpretation---Suit property
was put to auction by the Liquidation Board---Respondent's bid of Rs. 5 million for the property
was the highest bid and was accordingly accepted by the Board---Respondent deposited 25% of
the bid amount in terms of the terms and conditions, whereas balance payment was paid
subsequently---Balance payment was returned to respondent as a tenant of suit property procured
an injunctive order from the Cooperatives Judge---Cooperatives Judge ultimately decided the
matter against the tenant, whereupon respondent applied to the Board for transfer of suit property
unto him on the payment of the balance amount (75% of the bid amount)---Board decided that
since prices of properties had increased manifold during pending litigation with tenant and
respondent had wilfully accepted return of the balance amount by the Board, therefore it would
be fair that interest/mark up should be charged on the balance amount---Respondent challenged
said decision of the Board by filing an application before the Cooperatives Judge under S.11 of
Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993---Cooperatives Judge
dismissed said application and set aside the auction altogether and directed that suit property
should be put to re-auction, meaning that the very auction in favour of respondent, which was
affirmed by the Board was annulled and set at naught---Validity---Board had not cancelled the
auction in favour of respondent, rather it simply imposed a condition to pay mark up on the
remaining balance amount payable by the respondent---Cooperatives Judge, in law, could not
have set aside the order of Board, which in clear and unequivocal terms had accepted the auction
as being valid and lawful and was ready to abide by it---Section 11 of Punjab Undesirable
Cooperative Societies (Dissolution) Act, 1993 could not be interpreted to confer an open ended
jurisdiction to the Cooperatives Judge---Cooperatives Judge while exercising his jurisdiction
under S.11 of Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 had no
empowerment to totally annihilate and set aside that part of the order passed by the Liquidation
Board by virtue of which an aggrieved person had earned a right in his favour---Supreme Court
directed the respondent to pay the remaining 75% balance bid amount with markup to the Board,
where after suit property was to be transferred in favour of respondent---Appeal was dismissed
accordingly.
 M. Ilyas Khan, Senior Advocate Supreme Court for Appellant.

Mahmood A. Sheikh, Senior Advocate Supreme Court for Respondent.

Date of hearing: 21st January, 2014.

JUDGMENT

MIAN SAQIB NISAR, J.---This appeal with the leave of the court dated 22-2-2013
entails the facts that, the shop in question situated at Liberty Market, Gulberg, Lahore was owned
by an Undesirable Cooperative Society [declared as undesirable under the Punjab Undesirable
Cooperative Societies (Dissolution) Act, 1993 (the Act)] and was put to auction by the
Liquidation Board (the appellant) constituted under the Act. The respondent offered a sealed bid
of rupees five million which turned out to be the highest and was accordingly accepted. He thus
in accordance with the terms and conditions of auction deposited 25% of the bid amount,
whereas the balance amount was paid by him vide pay order dated 2-1-2003/4-1-2003 (there
seems to be some delay in this regard by the respondent but the fact is not relevant for the
purposes of the present appeal). It is the case of the respondent that on 5-1-2003 the demand
draft was returned to him, as a tenant of the said property had procured some injunctive order
from the learned Cooperatives Judge. Be that as it may, the respondent perhaps also became a
party in that litigation which was initiated by the tenant and ultimately the matter was decided in
favour of the Board and against the tenant, whereupon the respondent applied to the Board for
the transfer of the shop unto him on the payment of the balance amount of rupees 3.25 million
(75% of the bid). The Board, after consideration of the facts of the case, passed an order dated
20-3-2010, the operative part whereof reads as follows:--

"Now the prices of the property has increased manifold and the petitioner had willfully
accepted the return of the refund of the remaining amount by the Board due to the pending
litigation. The giving of property on that bid would not be fair. It is, therefore, decided that
interest/mark up on the remaining amount be charged on average of six months T.Bills to be
indicated by the Finance Department."

This order was challenged by the respondent before the Cooperatives Judge in terms of section
11 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 and the learned
Cooperatives Judge virtually dismissed the application vide order dated 24-5-2010, by setting
aside the above order of the Board, in that, it has been directed that the shop in question be put to
re-auction, meaning thereby, that the very auction in favour of the respondent which was
affirmed by the appellant-Board and was never done away with by same, has been annulled and
set at naught. This order has been successfully challenged by the respondent in a constitution
petition bearing No.14024 of 2010, which has been allowed by the learned High Court vide
impugned judgment dated 23-10-2012 and a direction has been issued to the Board to execute
the sale deed in favour of the respondent on receipt of rupees 3.25 million (the balance of the
actual consideration amount i.e. 75% of the bid amount).

2. Heard. Learned counsel for the appellant (the Liquidation Board) has been asked to
defend the order of the learned Cooperatives Judge with regard to the re-auction of the property
and justify as to under what authority and provision of law, the auction in favour of the
respondent could be annulled, when the appellant-Board had not done so, to which learned
counsel relied upon section 11 of the Act and submitted (the only submission) that the learned
Cooperatives Judge has the power to, make such order as he thinks just in the circumstances of
the case. In order to appreciate the above, we feel expedient to reproduce said section ibid, which
reads as below:--

"11. Application to the Co-operatives Judge.--A person, if aggrieved by an act or decision

of the Co-operatives Board, may apply to the Co-operatives Judge, who may confirm, reverse, or
modifi, the act or decision complained against, and make such order as he may think just in the
circumstances of the case."

From the contents of the above provision it is clear, and there seems no element of doubt that the
power of the Cooperatives Judge can only be invoked by an 'aggrieved person' (as the respondent
in this case) against an act or decision of the Cooperative Board. The Board has not been
reckoned as an aggrieved person so as to avail any right or conferred with a locus standi to
approach the Cooperatives Judge, under the afore-stated provision; because it is vivid from the
language of the section that it is only an act/decision of the Cooperative Board that can be
assailed in terms of the section ibid; and thus it shall be ludicrous to expect and to conceive that
the Board may invoke such power of the learned Cooperatives Judge to challenge its own
decisions etc. However the learned Cooperatives Judge, on such an application of an "aggrieved
person" (which as stated above cannot be the Board), can: (i) confirm the act/decision assailed
therein, meaning thereby that, the application shall be dismissed; or (ii) reverse the order i.e.
accept the application of the aggrieved person whereby the act/ decision of the Board shall be set
aside; or, (iii) to modify the assailed order of the Board i.e. alter and change the act/decision
assailed before it, in the manner that part of a relief is allowed to the aggrieved person whereas
part of it may be refused. To the above effect, the noted section does not postulate any other
interpretation. Now comes the crucial part of the section "and make such orders as he may think
just in the circumstances of the case". The word "and" appearing in the section is of quite an
importance which is conjunctive in nature, rather than being disjunctive, and thus the portion of
the section quoted has to be read in the syntax of the earlier part thereto and, in this context, for
all intents and purposes the later part of the section shall be considered as ejusdem generis to the
earlier portion; which (ejusdem generis principle) is a canon of statutory interpretation, holding
that when general word or phrase follows (a list of) specifics, the general word or phrase shall be
interpreted to include only the words/items of the same class as those specified[1]. This principle
(ejusdem generis), in view of the unambiguous language of the section, shall unmistakably be
duly attracted to that portion on which reliance has been placed by the appellant. In any case, the
second part of the section (quoted above), which is undoubtedly general in nature, does not
confer upon the Cooperatives Judge an open ended power and jurisdiction to pass just any order,
as this may even fall within the realm and the mischief of arbitrariness, whim and caprice in the
exercise of his jurisdiction, which never was nor could be the intention of the legislature.
Furthermore, undoubtedly it shall be impermissible for the learned Cooperatives Judge to do so
in the garb of the power of confirming, reversing or modifying the act/decision of the
Cooperative Board. Thus, in our view the learned Cooperatives Judge while exercising his
jurisdiction under section 11 ibid shall have no empowerment to totally annihilate and set aside
that part of the order, itself passed by the Liquidation Board, by virtue of which an 'aggrieved
person' before the Cooperatives Judge has earned a right in his favour. It may be pertinent to
mention here, that in exercising the above mentioned general jurisdiction by the learned
Cooperatives Judge, it is inconceivable, as per the salutary principles regarding dispensation of
justice, that where an aggrieved person approaches a higher forum complaining against a
decision of the lower forum and seeking the redressal of his grievance and his opposing side has
no grouse against such order/decision, rather has passed the order itself or where such opposing
party cannot approach the higher forum, because of the legal impediment, as in terms of section
11 (the Board is not a person aggrieved to maintain an action), for the aggrieved person to be left
bereft of that right which he has acquired; however it should not be construed that while
upholding such order of the Board the Cooperatives Judge shall not be authorized to impose a
reasonable condition as this would be within his jurisdiction in terms of authority to modify the
act/decision, which the aggrieved person shall be obliged to comply with in order to attain the
fruits of the Board's order, act/decision (challenged before it). In other words an aggrieved
person, before the learned Cooperatives Judge, wrongfully exercising his jurisdiction who is the
beneficiary of the Board's order would end up loosing the benefit and being penalized for having
approached the learned Judge and in this manner shall be denuded of the right and advantage,
which he has attained/achieved on account of the act/decision complained by him. This is exactly
what the respondent at the level of learned Cooperatives Judge has faced and suffered in this
case.

It may also be added here, that as is clear from the record, that the appellant-Board had not
cancelled the auction in favour of the respondent, rather it simply imposed a condition to pay
markup on the remaining amount of 75% payable by the respondent; and in this context the
Board had taken into account the increase in the value of the auctioned property as well as the
utilization of 75% of the amount by the respondent, thus the learned Cooperatives Judge, in law,
could not have set aside the order of the appellant-Board which in clear and unequivocal terms
had accepted the auction of the appellant being valid and lawful and was ready to abide by it (the
auction). Therefore, we do not find it permissible for the Board, once having itself passed an
order in favour of the respondent qua the affirmation of the auction to him, to now can change its
position and defend the order of the learned Cooperatives Judge on the basis of the general
power available to the learned Judge under section 11 ibid, which otherwise as has been held
cannot be interpreted to confer an open ended jurisdiction to the learned Cooperatives Judge.
Therefore, to this extent the appeal has no merit and is liable to be discarded.

3. As regards, the other part of the order of the Liquidation Board dated 20-3-2010 requiring
the respondent to pay markup (in terms of the said order), which has been set aside by the
learned High Court in its constitutional jurisdiction vide impugned judgment, when confronted,
learned counsel for the respondent states that he has no objection to comply with the said order
and shall make the payment of the markup accordingly. Therefore, we dismiss the appeal as far
as the first part of the dispute between the parties is concerned, vis-à-vis the annihilation of the
auction by the learned Cooperatives Judge which has been reversed by the learned High Court, in
favour of the respondent; but at the same time, we uphold the order of the Board dated 20-3-2010
directing the respondent to pay the markup which should be paid by the respondent within a
period of two months and upon the payment of the 75% balance bid amount along with markup
as directed by the Board, the property should be transferred in favour of the respondent.

4. In the light of the above, this appeal is dismissed.

MWA/P-3/S Appeal dismisse