2005 PLP 2423 (YLR)

SAIYED SAEED ASHHAD, C.J.

The grievance of the petitioner is with regard to the order of the then Administrator, respondent No.2, of the petitioner-Society in allotting a public amenity Plot bearing No.SNPA-68-A, Block III, Bahadur Yar Jang Cooperative Housing Society (hereinafter referred to as the plot in dispute) to respondent No.1 which according to the petitioner was illegal, contrary to the by-laws of the petitioner-Society and was collusive solely with a view to deprive the petitioner-Society of a valuable plot of land. The petitioner stated that the entire transaction starting from enrolling respondent No. 1 as a member of petitioner-Society and allotment of the plot in dispute in his favour was conducted in a fraudulent, surreptitious and secretive manner. The petitioner further stated that the plot in dispute was an amenity plot but respondents Nos.2 and 3 acting in collusion with each other illegally changed the nature of the plot in dispute by converting it into a residential/zonal commercial area. The petitioner also strongly disputed the validity of the allotment on the ground that the same was made on a throwaway price of Rs.8 per sq. yd. Whereas at the relevant time the value of the plot in dispute was much higher. Thereafter, elections for electing the office-bearers and members of the Managing Committee of the petitioner-Society were held whereaftrer the elected Managing Committee took control of the petitioner-Society and by resolution dated 8-9-1974 cancelled the ab initio void membership of respondent No.1 as well as the allotment of the plot in dispute in his favour. Petitioner-Society moved an application under section 54 of the Cooperative Societies Act, 1925 before the Deputy Registrar, Cooperative Societies bearing ABN No.206 of 1974 for obtaining confirmation of the cancellation of respondent No.1 allotment as well as for cancellation of the registered sub-lease. The said application was heard by the Registrar's nominee, who dismissed the same. The order of Registrar's nominee was assailed by the petitioner-Society by way of appeal under section 56 of the Cooperative Societies Act which was decided in favour of the petitioner-Society by the Deputy Registrar, Cooperative Societies, Karachi Region vide order dated 24-5-1977. This order was assailed by respondent No.l by way of revision under section 64-A of the Cooperative Societies Act before the Minister, Industries and Cooperative, Sindh who vide order dated 16-10-1995 set aside the order in appeal and restored the order of the Registrar's nominee. Feeling aggrieved and dissatisfied with the impugned order dated 16-10-1995 and having no other remedy available to assail the same, the petitioner approached this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan. We have heard the arguments of Messrs Muhammad Ali Mazhar, Advocate on behalf of the petitioner, Imran Ahmed, Advocate on behalf of respondent No. 1 and Ahmed Pirzada, Additional Advocate-General, Sindh on behalf of Government of Sindh. The allotment order was passed by respondent No.2 in his capacity as Administrator of Messrs Bahadur Yar Jang Cooperative Society when the Management of the petitioner-Society stood superseded. After the elections were held and Managing Committee was elected, it after examining the relevant record observed that the said allotment was collusive, fraudulent and contrary to the provisions of the by-laws, hence the same was cancelled. The Managing Committee also cancelled the sub-lease which respondent No.1 had not executed in his favour. Mr. Imran Ahmed, Advocate for respondent No.1 assailed the order of cancellation of the allotment and the sub-lease executed in favour of respondent No.1 in respect of the plot in dispute on the grounds; firstly, that the Managing Committee had no authority to cancel the sub-lease executed in favour of respondent No.1 in accordance with law and the same could have been recalled or set aside only in accordance with law; and secondly, that no opportunity of hearing was provided to respondent No.1 before cancelling the allotment/sub-lease which was violation of the principle of natural justice rendering the order of cancellation as illegal and void ab initio. The contentions raised by Mr. Imran Ahmed were vehemently controverted by Mr. Muhammad Ali Mazhar, Advocate for the petitioner. Relative to the first objection, he submitted that it was a settled principle of law that any superstructure based on an illegal action or order would be without any legality and void ab initio and submitted that as the allotment order was collusive, fraudulent and contrary to the by-laws, all subsequent actions or orders would have no legality in the eye of law and would be a nullity. Regarding the second objection, he brought it to our notice that after cancellation of the allotment/sub-lease, petitioner-Society had moved an application under section 54 of the Cooperative Societies Act wherein respondent No.1 participated by filing his objections and also participated in the proceedings as well as in the appeal filed by the petitioner-Society against the order of the Registrar's nominee and respondent No.1 himself filed a revision petition before the Minister, Industries and Cooperative, Sindh. He further submitted that in view of the above facts, the failure of the petitioner-Society to provide him an opportunity of hearing before cancelling the allotment order/sub lease stood cured. We have considered the arguments advanced by the learned counsel for the parties. It may be pointed that Mr. Ahmed Pirzada, Additional Advocate-General, Sindh supported the arguments advanced by Mr. Muhammad All Mazhar, Advocate on behalf of the petitioner and submitted that the allotment of the plot in dispute was in complete disregard of the by-laws of the petitioner-Society, collusive and fraudulent on the face of it and the subsequent sub-lease executed in favour of respondent No. I was without any authority and was avoid ab initio. He supported???????? the order of the Deputy Registrar dated 25-5-1977. From the material on record, it is established that respondent No.2 had not acted strictly in accordance with law in allotting the plot in dispute in favour of respondent No.1. It may be pointed out that at the relevant time respondent No.2 was acting as Administrator appointed by the Cooperative Department after supersession of the Managing Committee of the petitioner-Society. Normally, the object of appointment of an Administrator on supersession of the Managing Committee of a Cooperative Society is to enable him to take control of the assets/properties of the Society for safeguarding them and creating a conducive atmosphere for holding elections of the office-bearers/members for handing over the affairs of the Society to the new elected Managing Committee. The law requires that such exercise should be conducted in the minimum possible time and the Administrator appointed to run the affairs of a particular Cooperative Society should refrain from indulging in matters which are to be conducted by the Managing Committee. -In the circumstances, any action of allotment of plots/conversion of the nature of the plots etc. would be seen with suspicion, moreso, when it appeared to have been done in a secretive and collusive manner with haste and in contravention of the by-laws. The price at which the plot in dispute was allotted does not help the cause of respondent No. 1 in claiming that the allotment was transparent and clean. With regard to the order of the petitioner-Society in canceling the sub-lease, it is to be observed that in view of the settled principle that when an order is contrary to the provisions of law and illegal then all subsequent proceedings taken and orders passed would be illegal. It is immaterial whether the subsequent action was taken or order passed by the same authority or by the other authority. The whole series of such proceedings or orders together with superstructure of rights and obligations built upon them would be without any legal sanctity and would fall to the ground as held by the Supreme Court in the cases of (i) Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104; (ii) Home Secretary to the Government of West Pakistan, Lahore and 2 others v. Jan Muhammad and another PLD 1969 SC 333 and (iii) Mansab Ali v. Amir and 3 others PLD 1971 SC

124. Thus the alleged sub-lease in favour of respondent No.l in respect of the plot in dispute executed in favour of respondent No.l on the basis of an illegal and void allotment order had no legal sanctity and did not confer any right on respondent No.1. From perusal of the three (3) orders passed by the Registrar's nominee, Deputy Registrar and the Minister for Industries and Cooperative, Sindh, it transpires that the Registrar's nominee and the Minister for Industries and Cooperative, Sindh did not at all apply their mind to the facts and circumstances of the case and passed orders without giving due weight to the allegations of fraud, collusion and contravention of the by-laws. Both the orders would appear to he slipshod orders indicating that they had not been made on consideration of the merits and the law applicable. On the other hand, from perusal of the order of the Deputy Registrar, Cooperative Societies, it transpires that he had taken into consideration the material facts namely, conversion of the plot from amenity to residential/commercial; the ridiculously low price charged by respondent No.2 from respondent No.1 ignoring the waiting list of the members of the Society who had been conferred membership earlier and whose applications for allotment of the plots were also filed earlier to the application of respondent No.1; the fact that the allotment order in respect of the plot in dispute was made on 9-11-1973 while the plot in dispute was handed over to the society by respondent No.3 on 10-11-1973; and that no lease/sub?lease could be granted in favour of respondent No.1 unless construction had been raised on the plot in dispute. In view of the above facts the learned Deputy Registrar held that the order of allotment made by respondent No.2 in favour of respondent No. 1 was a mala fide order and relied on the cases of (i) Abdul Rauf and others v. Abdul Hamid Khan and others PLD 1965 SC 671 and (ii) The State v. Zia?ur-Rehman and others PLD 1973 SC 49 that a mala fide order was an order without jurisdiction and would be deemed to be an illegal and void order. For the foregoing reasons and discussion, this Constitutional petition was found to have merit. By a short order dated 20-4-2004, for reasons to be recorded later, this petition was allowed. The impugned order dated 16-10-1995 of the Minister, Industries and Cooperative, Sindh was set aside and the order dated 24-5-1977 of the Deputy Registrar, Cooperative Societies, Karachi was restored. These are the reasons E for the said short order. H.B.T./B-28/K???????????????????????????????????????????????????????????????????????? Petition allowed.