P L D 2006 Lahore 643 (PLP)

SYED ZAHID HUSSAIN, J.

Order dated 19-12-2003 passed by the learned Cooperative Judge, has been assailed through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. The same order is sought to be assailed through W.P. No.6880/2004 and W.P.No.10039/2004. The controversy involved since is almost identical, the petitions were ordered to be heard together and are thus proposed to be disposed of accordingly. The circumstances forming the background are as under:

2. The petitioners herein are successors-in-interest of Mst. Fehmida Begum, Mst.. Rashida Begum and Zafar Hussain (since deceased) who were daughters and son of late Muhammad Hussain. They were co-shares of a plot of land measuring 6-kanals 56-sq. ft. situated at the Junction of Lawrence and Queens Road, Lahore. Mst. Rashida Begum entered into an agreement dated 4-4-1989 in favour of Nadeem Ahmed respondent No. l , for the sale of her share for a consideration of Rs.22,50,

000. A sum of Rs.8,50,000 was admittedly paid as earnest money, a sum of Rs.4,00,000 was received on 08-10-1989 whereas a sum of Rs.12,14,000 is claimed to have been paid on 15-5-1991 (endorsement to this effect on the agreement to sell is however, disputed by the petitioners). It is the case of the petitioners that the balance payment was never paid by respondent No.1. Mst. Fehmida Begum also entered into an agreement to sell dated 6-4-1989 in favour of respondent No.1 for the sale of her share for a consideration of Rs.22,14,000 a sum of Rs.6,00,000 was admittedly received by her as earnest money whereas a further sum of Rs.4,00,000 was received on 28-9-1989. The balance sum of Rs.12,14,000 is claimed to have been paid to her on 11-5-1991. (The receipt of which and the endorsement on the agreement to sell to that effect is disputed by the petitioners). Another daughter of late Muhammad Hussain namely Mst. Hamida Begum also is said to have entered into a similar sale agreement with respondent No.1, for the sale of her share. Since there is no dispute about the same, it needs no more to be mentioned. A common feature worth noting, however, is the execution of a General Power of Attorney by the three sisters in. favour of Nadeem Ahmad respondent No.l. It is dated 7-4-1993 which they purported to have revoked on 12-8-1993 through "Abtaal Nama". The third petition (W.P. No.10039/04) is by Mst. Meraj Begum etc. legal representatives of Zafar Hussain, to be dealt with separately. It so happened. that in the year 1992 a financial debacle and scam of the Cooperative Societies emerged particularly in the Province of Punjab, which ultimately resulted in the promulgation of "Punjab Undesirable Cooperative Societies (Dissolution) Ordinance, 1992" and was ultimately enacted by the Assembly as Punjab Undesirable Co-operative Societies (Dissolution) Act, 1993 (Act of 1993) which had been amended from time to time. It was in year 1999 that the petitioners filed a petition before the learned Cooperative Judge of this court for a direction against the Punjab Cooperative Board for Liquidation (PCBL) to remove "its possession and security guards" from the plot whereas respondent No.2 as Chairman of the defunct cooperative society also made a petition that the property having been purchased by respondent No.1, as its agent, from the funds of the said society be ?confiscated. The petitioners however withdrew their petition in order to approach the Cooperative Board for Liquidation whereas a direction of like nature was given to respondent No.2, to approach the said Board. The matter was thus agitated before the Chairman, Punjab Cooperative Board for liquidation who passed order dated 16-11-2000 dismissing Vie petition of the petitioners whereas that of respondent No.2, was accepted treating the property to have been confiscated under S.18 of Act I of 1993 in favour of Punjab Cooperative Board for Liquidation. The said order was then assailed by the petitioners under section 11 of Act I of 1993, which was dismissed by the learned Cooperative Judge on 19-12-2003. These petitions arise in this context.

3. The learned counsel for the parties have been heard.

4. The contention of the learned counsel for the petitioners is that the Cooperative Board as constituted by the provisions of Act I of 1993 lacked jurisdiction to pass any such order of confiscation of the property as the matter fell within the jurisdiction of the civil court to pass any decree for specific performance of the agreements if at all the suit was maintainable under the law. According to him section 7(e) of the Act empowered the Board only to cancel any agreement but not to enforce the same. It is contended that the General Power of Attorney though had been executed by the predecessor-in-interest of the petitioners yet the same stood revoked vide Abtaal Nama dated 12-8-1993.

5. The respective contentions have been considered in the light of the material brought on record. It is undeniable fact that soon after the promulgation of Ordinance in the Province of Punjab, the vires of legislation became subject of litigation. Several constitutional petitions were filed and were dealt with by a learned Full Bench of this court, the leading judgment is reported as National Industrial Cooperative Credit Corporation and another v. The Province of Punjab/Government of Punjab through Secretary, Cooperative Department and another (PLD 1992 Lahore 462). The same was assailed before the Hon'ble Supreme Court of Pakistan and the judgment of Hon'ble Supreme Court of Pakistan is reported as The Province of Punjab and another v. National Industrial Cooperative Credit Corporation and another (2000 SCMR 567). By upholding the provisions of Act I of 1993, (except S.22 thereof) the appeals were accepted and legislation was upheld observing that it was a "special legislation of the type in question". Reference may also be made to Tanveer Ahmad v. Muhammad Sharif and 2 others (1997 MLD 1913). Act I of 1993 is thus a special law enacted to meet the peculiar position and circumstances. We find that the predecessor-in-interest of the petitioners had indeed entered into agreements for the sale of their share in the property. The dispute was sought to be raised by the petitioners long after the death of their predecessor-in-interest (as per the learned counsel for the petitioners Mst. Rashida Begum died in December, 1995, whereas Mst. Fehmida Begum died in May, 1996). They in their lifetime never disputed the execution of the agreements or the endorsements as to payments recorded thereon. It was in the year 1999 that the petitioners rose up to agitate the matter. As mentioned above, the execution of General Power of Attorney dated 7-4-1993 speaks a lot about the transactions. Had they not received the total price, the General Power of Attorney, (execution whereof is not denied) would not have conferred such extensive rights, interests and powers in favour of respondent No.l. Relevant recitals thereof are:-- The dispute sought to be raised about non-payment of the balance consideration clearly is a figment of afterthought and imagination by the petitioners. We are absolutely clear and satisfied that the entire payment of the property in dispute had been made by Nadeem Ahmad respondent No.1, who ultimately was acting for respondent No.2 and made payment to the predecessors-in-interest of the petitioners out of funds and sources of the defunct Cooperative Society. The findings recorded by the Chairman, Punjab Cooperative Board were based on consideration of the record of the defunct society who came to the conclusion that the price was paid out of the funds of the defunct society and payment vouchers were also available on the record coupled by the fact of transfer of possession. The learned Cooperative Judge has made reference to Thal Development Authority through Administrator, Thal Bhakkar v. Khushi Muhammad and another PLD 1994 Lah. 108, in reaching his conclusion and dismissing the petition of the petitioners. It may be observed that instances are not lacking where the sale remained inchoate due to non-registration etc. but factum of sale was recognized. Reference may be made to Mst. Ghulam Sakina v. Umar Bakhsh and another PLD 1964 SC

456. In Abdul Karith v. Fazal Muhammad Shah PLD 1967 SC 411, it was held that "This definition of sale is obviously wider than the one under section 54 of the Transfer of Property Act, for, it is not governed by the restrictions as to the mode of transfer contained in the latter section. It cannot, therefore, in view of this definition, be said that if a sale of a property exceeding the value of Rs.100 is made by a mutation entered in the revenue records such a sale is altogether void???.The intention of the parties is further manifested in the present case by the fact that even now the parties to the transaction not only do not repudiate the sale but actually admit its validity. There can after this be no doubt as to the intention of the parties. The mere failure of the parties to comply with the requirements of section 54 of the Transfer of Property Act as to the manner in which the transfer should be made cannot alter the nature of the transaction intended to be entered into between the vendor and the vendee or affect the pre-emptor's right in respect of it. If the transaction amounts to a sale in fact then notwithstanding that it is not in the form prescribed by section 54 of the Transfer of Property Act the right of pre-emption will come into operation. Such a transaction even under section 54 is not altogether void, for, the defect is curable by getting a document drawn up and registered to perfect the inchoate title of the vendee. This perfection can be insisted upon, for, there is at any rate an enforcible contract of sale even under the Transfer of Property Act, and even such an imperfect transaction will give rise. to equities in favour of the buyer. If he has paid the price he will have a charge of the property for the amount paid.

6. So far as the revocation of the General Power of Attorney is concerned the same could not possibly be done unilaterally by them in view of the provisions of section 202 of the Contract Act, 1872 as the price had been received. In Muhammad Tufail v. Muhammad Younas and others 2006 CLC 779 one of us Jawwad S. Khawaja, J has taken the view that the mere fact that Abtaal Nama was registered is of no consequence because there was nothing on record to show that the donee (respondent No.1) was given any intimation about the cancellation of the Power of Attorney. The facts on the record, the factum of the transfer of possession, delivery of original T.O. (Transfer Order), use and occupation by the defunct society, substantiate and justify the . view formed by the Chairman, Punjab Cooperative Board, which has been upheld by the learned Cooperative Judge for cogent reasons. On no justifiable basis we have been persuaded to differ with the view taken by the learned Cooperative Judge. The petitions being without merit is dismissed accordingly. S.M.B./A-109/L ???????????????????????????????????????????????????????????????????????????????? Petitions dismissed.