1980 PLP 446 (CLC)

5. Major Zubair Mahmood Khan respondent made various represen tations/appeals and petitions to the Government and the Prime Minister against the said cancellation of the plot and its subsequent sub-division into four plots by the Society and as well as their allotment to four different persons mentioned above. His efforts met no success until this matter was taken up by the Deputy Secretary (Development) respondent No. 3.

6. During the course of the hearing before the Deputy Secretary (Development), Government of Punjab, Housing and Physical Planning Department, Major Zubair Mahmood Khan offered to be satisfied if portions 703, 703-A and 703-ft were restored to them. He offered to forego their claim over portion No. 703-C, which might remain with M/s. Ch. Muhammad Siddiq and Ch. Muhammad Saeed in lieu of Portion 703-B which was allotted to them by Society/ District Housing Committee. M/s. Ch. Muhammad Siddiq and Ch. Muhammad Saeed also agreed to accept this proposal: Mr. Arshad Saeed Alvi agreed to forego allotment of Plot No. 703-C in favour of Major Zubair Mahmood Khan and his brother The Society which was represented by its Administrator also agreed to this compromise. This compromise was duty recorded and signed by Major Zubair Mahmood Khan and Ch. Muhammad Siddiq, Ch. Muhammad Saeed, Administrator, The (District Gurdaspur Muhajreen) Lyallpur Co-operative House Building Society Limited, District Housing Officer for Secretary,' District Housing Committee, Lyallpur and Mr. Arshad Saeed Alvi. It is also attested by Deputy Secretary, Development, Government of Punjab. Housing and Physical Planning Department. This consent document is dated 10th December, 1975. It appears that thereafter the Revision Petition filed by M/s. Major Zubair Mahmood Khan and Dr. Farrakh Mahmood Khan was accepted by respondent No. 3 in terms of the aforementioned compromise vide order dated 2nd February, 1976. This is the impugned order in the pre sent Writ Petition.

7. Earlier to this event, however, the Society vide its order dated 9th February, 1973 allotted this Plot No. 703 to Ch. Atta Muhammad the present petitioner. It was made especially clear to him in the allot ment order that this plot was in dispute and certain litigations were in progress and the allotment was subject to the final outcome of this litiga tion. It is pertinent to note here that the Society at no stage informed the Government that this Plot No. 703 stood allotted in the name of the petitioner. On the other hand the record of the Government reveals that Plot No. 703 stood allotted in the name of M/s. Mian Riaz-ud-Din and Haji Asghar Ali. Mr. Mahmood-ul-Hassan, Administrator of the Society was present at the time of the compromise dated 10th December, 1975. He was also present during the hearing of the case by the Deputy Secre tary, Development, Government of Punjab, Housing and Physical Planning Department and at no stage he informed the said Officer that the plot was allotted by the Society to the petitioner. Furthermore there is nothing on the record to show that the allotment of this plot was ever confirmed by the District Housing Committee of the Housing and Physical Planning Department. Government of Punjab.

8. The petitioner has assailed the impugned order on the ground that the said order had been passed without hearing him ; that being an allottee of the plot he had the right to be heard ; that the dispute is cover ed by the Co-operative Societies Act, 1925 and that respondent No. 3 had no jurisdiction to pass the impugned order.

9. It may also be noted here that in the meanwhile respondents Nos. 1 and 2 had in turn sold Plot No. 703 to Mukhtar Ahmad respondent. Permission to sell this plot was specifically given to Major Zubair Mahmood Khan by the Government on 30th August, 1976. A formal sanction to this effect was conveyed to him on 27th January, 1977 and the plot was transferred in the name of Mukhtar Ahmad respondent by the Government of Punjab vide Registered Conveyance Deed dated 24th February, 1977.

10. As narrated above, the allotment of Plot No. 701 stood confirm ed in the name of Lt.-Col. F. M. Khan, the predecessor-in-interest of respondents Nos. 1 and

2. This allotment had been confirmed by the District Allotment Committee, Lyallpur. Later on it was exchanged with Plot No. 703 of the same size. Its possession was delivered to Lt.-Col. F. M. Khan on 11th May, 1964. The entire price along with interest was paid to the District Housing Officer, i.e. the Government of Punjab of 11th January, 1972. It is also borne out by the record that a number of extensions for construction of the building on the plot was given to respon dents Nos. 1 and 2 and that the last extension for a further period of on year was given by Government of Punjab, Communication & Works Department, with effect from 9th October, 1971. In other words till 9th October, 1972, this plot could not be cancelled by respondent No. R. The (District Gurdaspur Muhajreen) Lyallpur Co-operative House Building Society Limited or could the same be allotted by the Society to the peti tioner. It has Men asserted by the learned counsel for the respondents Nos, l and 2 as well as by learned counsel-for Mukhtar Ahmad and has not been controverted by the learned counsel for the petitioner or by the Administrator of the Co-operative Societies/ respondent. No. 8 that the land belonged to the Government, that the Society could only make proposals for allotment and that the allotment proposed by the Society was subject to confirmation by District Housing Committee of the Housing & Physical Planning Department, Government of Punjab. The land was never in the possession of the Society. The land is and has always been in the posses sion and administrative control of Provincial Government. The price of the plot was also payable to the Government directly and not to the Co-opera tive Society and that the formal sale deed after the payment of the price is to be executed by the Government. There is no provision in law (and none has been pointed out) authorising the Society to cancel the plot from the name of the respondents.

11. Mr. Mahmood-ul-Hassan, Administrator of the Cu-operative Societies, was asked to mention the specific provisions it: the bye-laws of the Society with regard to the allotment or cancellation as such. He affirmed that the Society could only propose the names of its members for allotment of plots to the District Housing Committee and Zai the allot ment could only be made by the District Housing Committee of Housing and Physical Planning Department, Government of Punjab. He also conced ed that there was no provision in the bye-laws of the Society authorising the Society to cancel a plot which had been allotted by the District Hous ing Committee and regarding which the price had also been paid to the Government through District Housing Committee. According to him, Deputy Commissioner is the Chairman of the District Allotment Commit tee. Learned counsel for the petitioner was also not in a position to point out any provision in the bye-laws of the Society or any law authorising the Society to cancel the plot from the name of respondents Nos. 1 and 2.

12. Learned counsel for the petitioner, however, referred to Memo randum No. 2405/AURD-62,/8090 dated 17th November. 1962 (Annexure R. 7/1) and argued that the District Allotment Committee was required to finalize the cases of allotment proposed by the Society within a period of two months of the receipt and in case the District Allotment Committee failed to do so the approval was to be presumed to have been given by the Committee. This contention has no force. There is nothing on the record to indicate that the Society sent this proposal to the District Allotment Committee. The allotment Annex. A in favour of the petitioner nowhere mentions that this was subject to confirmation by the District Allotment Committee. Attention of the learned counsel for the petitioner as well as of the Administrator of the Co-operative Societies was drawn to the Government letter No. A3-LI (ii) 473 (730-D GM) 3021072, dated 1st, December; 1972 addressed to the Society relating to this very plot. Rele vant portion of this letter is reproduced below :- "Para. 2. -The correct position is that the Society has no title to the land and ownership as also the administration of the scheme vests in Government. Allotment of plots to the members of Society is made on its recommendation by the local District Allotment Committee. The Deputy Commissioner, Lyallpur is its Chairman. Co-operative Societies Act 'does not operate so far as the matter of allotment of plots in a Scheme of this Agency is concerned and individual allotments are governed according to the prescribed agreements for sale which are executed with the allottees on behalf of the Governor of the province by the Secretary' D. A. C. Pro prietary rights vest in Government and after fulfilment of conditions of agreement for sale which is a contract binding Government and the allottee (& not the Society) are to be transferred to allottees by Government." The Government had categorically informed the Society that the land vested in the Government and after fulfilment of conditions of agreement of sale it would be transferred by the Government to the allottee and that individual allotments are governed according to the prescribed agreements for sale and that Society had no title to the land whatever. Copy of this letter was produced in Court by Mr. Muhammad Khan, Under Secretary, Housing and Physical Planning Department, Government of Punjab. It transpired during the hearing of this case that this original letter was in fact available in the record of the Society. The Government has throughout taken the stand that the members /allottees of the Co-operative Society are governed by the sane terms and conditions of the allotment as are applicable to all the allottees of Satellite Town Schemes. The District Housing Officer/Secretary District Allotment Committee Satellite Town, Lyallpur in his letter No. STS-7l-C-VI/3l44 dated 2nd October 1971 while discussing the present case has clearly taken the position that the case of the respondents Nos. 2 and 3 for the grant of one year's extension in the period of construction was genuine

13. It may not be out of place to mention that Additional Deputy Commissioner (G) Secretary, District Allotment Committee, Satellite Town, Lyallpur, had also directed that status quo should be maintained in respect of this plot. This order was passed on 13th November 1972 by the said. Officer and the Co-operative Society was duly informed of the Stay Order- This letter is Annexure R/7 of the Writ Petition. It is strange that the Society sought to defy this order and allotted the plot in dispute to the petitioner on 19th February 1973. According to the instructions contained in Letter No. 3088-URD-57/4399 dated 20th May, 1958 it was Specifically laid down :

"As regards the cancellation of allotments for non-implementation of the terms and conditions of allotment, this power has to be exercised exclusively by the Deputy Rehab. Commissioner. All such cases need not be put up before the District Allotment Committee because allotment is only to be cancelled if the terms and conditions of the agreement are infringed, It is not necessary to bother the District Allotment Committee in such executive matters." The entire exercise by the Society was without any authority and contrary to the express instructions/orders of the 'Government in this regard. It was also in violation of the status quo order passed by the Additional Deputy Commissioner (G)/Secretary, District Allotment Committee.

14. The allotment (if at all it could be called so) made in favour of the petitioner by the Society was subject to the outcome of litigation which was in progress. This was made specifically clear in the allotment order. In other words this plot was allotted to the petitioner subject to the doctrine of lis pendens and the petitioner was accordingly bound by the ultimate outcome of the decision which might be given in the case. `Lis pendens' literally means a pending suit or cause and the doctrine of 'Lis Pendens' has been defined as jurisdiction, power or control which a Court acquires over property involved in a stilt, pending the continuance of the action and until final judgment therein. It denotes those principles of rules and laws which define and limit the operation of the Common Law Maxim to the effect that nothing relating to the subject matter of a suit can be changed while it is pending. One, who with actual or constructive notice of the pending action acquires 'from a party thereto an interest in the property, involved in litigation in a Court and of the person of the one from whom the interest is acquired, takes subject to the rights of the parties to the litigation as finally determined by the judgment or order or decree. It has been observed that the effect of 'lis pendens' is in its nature, the same as that of registration since it is only a different example of the operation of the rule of constructive notice. It charges subsequent purchaser or other person acquiring an interest in the subject of litigation during the pendency thereof with notice of the pendency of the action. It merely serves as warning to others that rights which they may acquire would be subject to any judgment entered. Its net effect would be to maintain 'status quo'. In the instant case the allotment (if it could at all be called an allotment) was made by the Co-operative Society with the express condition that it was subject to the ultimate outcome of litigation which was in progress. Thus the doctrine of 'lis pendens' can be invoked in this case with full force. Reliance in this regard is placed upon Pir Abdullah Shah v. Humayoon (P L D 1957 Lah. 1054) and Raider Ali v. Akbar Ali (P L D 1973 Lah. 546). In my view, therefore, it was not necessary for Deputy Secretary (Development) Housing & Physical Planning Department, Government o1 Punjab, to grant hearing to the petitioner at the time the impugned order was passed. If the petitioner had himself made an application before the said authorities for being impleaded as a party, the same could have been considered and disposed of on merits by them. The impugned order passed by the Deputy Secretary (Development), Housing and Physical Planning Department, Government of Punjab, cannot be set aside on this ground.

15. Even otherwise there is no statute which governs the Satellite Town Schemes. These schemes are administrative in nature and have been framed for the efficient and smooth working of the establishment of housing colonies. It cannot be said, therefore, that it is a question of the legal right of the petitioner on the basis of which he can invoke the provisions of Article 199 of the Constitution for compelling the respondent Government or its functionaries to perform their legal obligations. These Satellite Town Schemes have been spun within the administrative framework and provisions have been made for appeals etc., with a view to the efficient and better working of the schemes so that the District Allotment Committees do not function in an arbitrary manner. The relationship between the parties are at the most contractual. Where a policy is laid down or direction given for the guidance of the officer: connected with the department without any statutory backing, no claim of vested right can arise on account of such directions err rules. Reliance it this regard is placed upon State Officer v. Tahir Hussain (P L D 1962 S C 75) and Muhammad Ajmal v. Government of West Pakistan (P L J 1973 Lah. 38). The petitioner has no legal right which can be enforced through the Writ jurisdiction.

16. Moreover to grant relief to the petitioner would result is perpetuating the injustice which has been done to the respondents Nos. 1 and 2 by a manifestly illegal order. Even where a Court has a power to issue a Writ of mandamus or Certiorari the Court will not do so, if, to grant these Writs would work injustice in a broad sense. On this ground writs of mandamus have been refused, for instance- (a) where it would defeat a lawful claim of State's revenue even though the notices were defective and protective recovery was no admissible ; (b) where it would have the effect of throwing out a Government servant who was in the occupation of the premises as an allottee and justice require the result to be produced ; (c) where it would place an intolerable burden of inconvenience on large number of citizens and set it naught the usages of more than a century. Similarly a Writ of Certiorari was refused in cases where to grant it would have had the effect of allowing the technicality of law to cause unjust enrichment by one party at the cost of another; for instance :

(a) where it would have resulted in the confirmation of a certificate obtained by the petitioner wrongfully by suppressing material facts ; (b) 'where it would have sustained an order of allotment which had been obtained by suppressing material facts within his knowledge. (c) where it would have resulted in perpetuating the injustice which has been done to the respondents by an incorrect ex parte order passed against them. (d) where it would result in perpetuating a manifestly illegal order; (e) where it would have debarred the income tax authorities from initiating proceedings because the requisite time for such initiation had expired. One could go on multiplying these instances. A reference may also be made to Constitutional Law of India" by H. M. Seervi (2nd Edition), page

847. In Labh Singh v. Chief Settlement Commissioner (1) the Court observed :

"On the merits, however, I find that in spite of these technical defects in the impugned order, there is no sufficient ground for interference under Article 226 of the Constitution which is after all discretionary. The petitioner at the time of securing allotment from the Rehabilita tion Department did not disclose the existence of the order of the Collector in Pakistan of which he was undoubtedly aware (it having been passed in June 1947) by which the mutation in his favour was cancelled. Had he disclosed this cancellation the allotment of the land in dispute in all probability, would not have bean made ......... On the facts of the present case, in my view, the impugned order is eminently just and no impelling reason has been shown justifying interference by the discretionary power of issuing high prerogative writs." Similarly in an other case of Indian jurisprudence Abdul Majid v. State Transport Authority (A I R 1960 Pat. 333) a Division Bench made the following pertinent observation :

"If the decision of the tribunal of 26th September is wholly void, and I have no doubt about that, it is not necessary to pronounce any concluded opinion, on the contention raised by the learned counsel for the petitioners. I would assume that the order of the Appellate Authority, as contended for by them was illegal. What is the consequence of the order of the Appellate Authority ? It is manifest that the order of the Appellate Authority, although illegal, set aside another illegal decision. If we give effect to the contention of learned counsel and set aside the order of the Appellate Authority dated 12th December, 1959, it will amount to countenancing and perpetuating an illegal act. This, in my opinion, is not permissible for a Court exercising extraordinary jurisdiction vested in it under Article 226 of the Constitution, The writ of certiorari is not a writ of course. It is discretionary remedy, The very object of this writ is to foster justice and right a wrong arising from the subordi nate tribunals or bodies or officers acting wholly without jurisdiction or to excess or denial of it, or in violation of the principles of natural justice, and, therefore, where such wrong occurs, the Court intervenes and issues such prerogative writs, orders or directions, where the subordinate tribunals or bodies or officers act wholly without jurisdic tion or in excess of it, or in violation of the principles of natural justice, or refuses to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record and such act or omission or error, or excess, has resulted in manifest injustice. Therefore, before a person, can be entitled to invoke the prerogative power of the Court under Art. 226 of the Constitution, it must be shown that the order to be set aside must have occasioned injustice to the parties." In Rex v. Stafford Justice ((1940) 2 K B 33), Sir Wilfrid Greene M. R. observed; "Now, in my opinion the order for the issue of the writ of certiorari is, except in cases where it goes as of course, strictly in all cases a matter of discretion. It is perfectly true to say that if no special circumstances exist, and if all that appears is a clear excess of juris diction, then a person aggrieved by that is entitled ex debito justiae to his order 'that merely means this, in my judgment, that the Court in such circumstances will exercise its discretion by granting the relief. In all discretionary remedies it is well known and settled that in certain circumstances, I will not say in all of them, but in a great many of them--the Court, although nomi nally it has a discretion, if it is to act according to the ordinary principles upon which judicial discretion is exercised, must exercise that discretion in a particular way, ,and if a Judge at a trial refuses to do so, then the Court of Appeal will set the matter right. But when once it is established that in deciding whether or not a particular remedy shall be granted the Court is entitled to inquire into the conduct of the applicant, and the circumstances of the case, in order to ascertain whether it is proper or not proper to grant the remedy sought, the case must in my judgment be one of discretion.; In this case a building company who Were the owners of land in the borough of Stafford sought to divert the footpath in a manner so as to make it more commodious to the public. A notice in writing was given to the Mayor and other officials of the borough on 20th March, 1937. On 3rd January, 1938 two Justices of the borough gave their certificate that the footpath might be diverted. This was enrolled on 5th April, 1938 and all this was done at the instance of the council themselves, who were conduct ing the proceedings at the request of the builders. Houses were built at the site of the old footpath and they were built with the knowledge and consent of the council. The certificate of the Justices was challenged by the Stafford Corporation in November, 1938. The Divisional Court refused the motion holding that the court ought not in the exercise of its discretion to grant an order of certiorari. The Court of Appeal upheld the order of the Divisional Court and dismissed the appeal. It was observed :

"It seems to me that this state of affair's having been brought about with the full knowledge of the council, and indeed with their actual consent, so far as regards the building of the houses, it is quite impossible for the Court to grant relief which will have the effect of quashing that certificate. The result, therefore, in my opinion, is, that the Court having regard to all the circumstances of this case and in particular the knowledge and conduct of the council and the time which has elapsed, ought not in it discretion to grant the relief asked for." Similarly Supreme Court of Pakistan in Raunaq Ali v. Chief Settlement Commissioner (PLD 1973SC236) held that High Court could refuse to issue a writ if to grant it would work injustice in a broad sense. It was observed :

"In the same manner, in the instant case, if the High Court, in its extraordinary jurisdiction under Article 98 of the Constitution of 1962, came to the conclusion, as it has in fact done, that the orders of the Deputy Claims Commissioner verifying the claims of the appellants were illegal and without jurisdiction, it could legitimately refuse to set aside the order of the Officer on Special Duty, even though the latter was clearly without jurisdiction."

17. It may also be noted that the impugned order in this case was passed on 2nd February, 1976. Respondents No. 1 and 2 had sold their plot to Mukhtar Ahmad respondent. Permission to sell this plot was specifically given by the Government of Punjab on 30th August, 1976. A formal sanction to this effect was also conveyed to the respondent on 27th January, 1977 and the plot was in fact transferred in the name of Mukhtar Ahmad, respondent, by the Government of Punjab vide Registered Convey ance Deed on 24th February, 1977. The present writ petition has been filed on 31st October, 1977 when valuable right for consideration had already accrued to the respondent. It suffers from laches.

18. I have already held the ownership of land in the scheme vested in the Government. Possession was also with the Government. Administration of the scheme also vested in the Government. Provisions of the Co-operative Societies Act, 1925 are not attracted to matters of allotment or cancellation of plots in the Satellite Town Scheme. Allot ment could only be cancelled by the Government if the terms and condi tions of the agreement were infringed; which was essentially a matter of contract.

19. The result, therefore, is that the petitioner is not entitled to the discretionary relief under Article 199 of the Constitution. This Writ Petition has no merit and is dismissed. There would be no order as to costs. M. A. K. Petition dismissed.