1994 PLP 36 (CLC)

(c) The Managing Committee of the Society was elected on the 12th of January, 1979, and could only function for nineteen months up to the 12th of August, 1980, as per clause 21 of the Bye‑laws.

3. The Society and respondent No.4 were asked to offer comments. The Society admitted allotment and delivery of possession to the petitioner as also the fact that the allottees were asked not to raise constructions on the allotted plots for some time. The allottees, however, were signaled on the 9th of May, 1980, to start constructions after getting the building plans sanctioned. A notice in this respect was also despatched to the petitioner but it was admitted that copies of the notice were not available on the record, nor was there any proof showing that the letter or notice had been sent to the petitioner by post or by hand or had been received by the petitioner. The Society further admitted that the petitioner was not present when the allotment was cancelled and the plot allotted to respondent No.4, nor was there any proof that the notice was sent to the petitioner for hearing him or order passed in relation thereto.

4. The Society, however, highlighted the fact that the petitioner had moved it under section 54 of the Cooperative Societies Act (hereinafter referred to as the Act) for restoration of the dispute through arbitration wherein all the aforementioned objections were taken. That application is still Pending with the Assistant Registrar, Cooperative Societies, Bahawalpur. As regards vires of the allotment in favour of respondent No.4, the Society admitted that the latter had applied to it for withdrawal of his membership. The matter was put to General Meeting on the 15th of October, 1971. The application, however, was not available on the record. The proceedings showed that the request was approved by the House on the said date. However, the record did not reveal that the name of respondent No.4 was struck off from the register of membership. Thus the respondent (No‑1) has for all intents and Purposes conceded the case of the petitioner.

5. Ch. Nazar Muhammad, respondent No.4, however, stoutly resisted the Constitutional petition raising legal objections that parallel remedy of writ could not be invoked in presence of the proceedings under section 54 of the Act; that this Court had no jurisdiction under section 70A of the Act; and that in view of the amended clause 41 of the Bye‑laws of the Society, the petitioner being owner of the land measuring more‑ than two Kanals which was hypothecated with the Society, was ineligible to apply and get the plot. The respondent defended the impugned order of cancellation of allotment as the petitioner had failed to build the house within stipulated time and the Society was fully competent to cancel the allotment of the plot which was rightly allotted to him.

6. It is common ground that the petitioner was allotted plot No.15‑A/1 and he had obtained physical possession thereof after depositing all the dues. As regards the objection of respondent No.4 that the petitioner, having already a plot measuring two Kanals was ineligible for allotment, it has to be ignored in view of the explanation of the petitioner in the application supported by mutation (Annex. `B') that he had inherited his share is the ancestral house and the transfer was registered in his name on the 30th of August, 1979, and he had hypothecated the same for taking loan from the Society and that he had no other plot. Moreover, the Society (the allotting Authority) has not questioned vires of the allotment in favour of‑ the petitioner. _ The allotment was cancelled on the 5th of September, 1980, because the petitioner had not built the house in pursuance of the notice dated 26th of May, 1980. In the first instance I am surprised that the petitioner was given only a little over three months time to build the house which was only possible dough magic wand. What is more important is the admission of the Society that after the allotment, the petitioner could not start construction immediately as some dispute was existing, And respondent No.4 has admitted in para. 5 his comments that the dispute was resolved in a meeting prescribed over by the Deputy Martial Law Administrator (date not given) and thereafter there was no hurdle in sanctioning the site plan for the construction. The factor also to be taken into consideration is that the petitioner was never forewarned to complete the construction within prescribed time of 2 years otherwise the allotment shall stand cancelled. This was obviously so because there was no mention of penalty for not raising the building within the prescribed time in the old bye‑laws of the Society dated the 10th of February, 1949. The respondent had thought of providing penalty in the new bye‑laws on the 11th of October, 1985. Clause 41(v) thereof reads:‑‑ "In the case of old and new allotments, in which no construction has been made, the defaulter shall be served with a notice to complete the construction within a period of two years. In the event of ‑non compliance no further extension will be allowed and the Committee shall confiscate the plot." Admittedly, no notice was sent or served upon the petitioner to complete the construction within the prescribed time after promulgation of the new bye laws. Even previous thereto, the Society has admitted in its comments 'that there was no proof that any notice was sent or served upon the petitioner. It is also admitted that the petitioner was not present or heard when the allotment was cancelled from his name. Thus, the cancellation order offended the principles of natural justice.‑‑ ‑

8. Learned counsel for the petitioner has placed reliance upon a couple of authorities on the subject. In Haji Noor Muhammad and others v. Karachi Development Authority and 2 others (PLD 1975 Kar. 373), the allottee of plot was not given fair opportunity to show cause against cancellation of allotment of plot by the Karachi Development Authority because the petitioner had not raised the construction. The order was set aside in the Constitutional petition. Similar situation arose in Qaiser Khan v. Government of Sindh (1987 MLD 743) where allotment of plot in P.E.C.H.S., Karachi, was cancelled. The grievance of the petitioner was that he was not served with show‑cause notice, nor was any opportunity to defend the charges mentioned in the order extended to him. It was held that the order was violative of the principles of natural justice and, therefore, was without lawful authority and of no legal effect.

9. The learned counsel has gone further to the extent that even if the petitioner had been heard before cancellation of the allotment, still the order was void ab initio in view of clause 21 of the old bye‑laws where under the Managing Committee could function for one year from the date of election of its members and if for unavoidable reasons General Meeting could not be held within a year the existing committee could continue to hold office till election of the new Committee but such election in no case could go beyond nineteen months after election of the first Committee. In the instant case the election of the Managing Committee of the Society took place on the 12th of January, 1979. The maximum period for which it could function was nineteen months ending on the 12th of August, 1980. Thereafter the Managing Committee could not function and, therefore, had no authority in law to pass the order of cancellation of the plot on the 3rd of September, 1980. Clause 21 of the new bye‑laws has not changed the situation and, in fact, made the point more clear by mentioning that on the expiry of nineteen months from previous election the Committee shall cease to function and the Registrar, Cooperative Societies, shall appoint a caretaker Committee enjoying all or such of the powers of the Managing Committee as the Registrar may deem necessary. In this case the caretaker Committee had taken over the affairs but after the impugned order had been passed. I agree with the learned counsel for the petitioner that the previous Managing Committee of the Society could not pass the order of cancellation during the interregnum.

10. Learned counsel for the respondent (No.4), thinking himself to be more firm on legal propositions than on merits, confidently questioned the maintainability of the petition on the grounds that a writ against a private person would not lie, that the Housing Society was not a local authority; and that no relief could be sought against it. Reliance of the learned counsel on the Deputy Managing Director, National Bank of Pakistan v. Ataul Haq (PLD 1965 SC 201) is entirely misplaced as it proceeded on different facts. In this case the Housing Society was registered under section 9 of the Act. The petitioner as‑member of the Society could challenge its legal constitution under the bye‑laws framed by it and the order passed by it in contravention of rules or principles of natural justice, equity and fair play. Besides the aforementioned rules, the learned counsel for the petitioner also cited PLD 1990 SC 612 (Mrs. M.N. Arshad and others v. Miss Naeema Khan and others) holding that violation of provisions ‑of law or of any statutory rule was susceptible to Constitutional jurisdiction.

11. The next objection raised by learned counsel for respondent No.4 is that the petitioner, after having filed a petition before the Assistant Registrar, Cooperative Societies, under section 54 of the Act and the matter pending there, could not seek parallel remedy by invoking writ jurisdiction. To support his contention the learned counsel called in aid the two Supreme Court decisions reported as Messrs Steel Brothers & Company Ltd. v. Central Board of Revenue, Islamabad and others (1968 SCMR 374) and Abdul Rehman Mayat and another v. Wealth Tax Officer and others (1988 SCMR 1722). It was held in the first case that parallel proceedings in Constitutional petition cannot be allowed to circumvent the proceedings already pending under statutory provisions. The Sapreme Court had upheld the order of the High Court who had dismissed the petition on the ground that a Reference to the High Court covering the same law points had been made by the Income Tax Appellate Tribunal at the instance of Income Tax Authorities and the decision was still pending there. The second case also related to income‑tax and in view of peculiar circumstances of that case it was held that extraordinary jurisdiction of the High Court could ordinarily be invoked where there was no other remedy provided by law. The facts of the said cases have no similarity with the facts of this case where the petitioner has questioned the very jurisdiction of the Society to cancel his allotment and that too in violation of the principle of audi alteram partem. The learned counsel for the petitioner has quite aptly placed reliance upon the following authorities of this Court and the Supreme Court:‑‑ (1) The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 SC 279). (2) Mrs. M.N. Arshad and others v. Miss Naeema Khan and others (PLD 1990 SC 612). (3) Pakistan Engineering Council and 2 others v. Engineer IA Osmani and 3 others (1991. SCMR 654). (4) Hassan Din v. Hafiz Abdus Salam and others (PLD 1991 SC 65). (5) Aman Ullah Khan and another v. The Federal Government of Pakistan, through Secretary, Ministry of Finance, Islamabad and 2 others (PLD 1990 SC 1092). (6) Pakistan National Shipping Corporation v. Rent Controller, Lahore and 2 others (PLD 1992 Lah. 305). The ratio of the cited authorities is that the orders which are wholly without jurisdiction and find no support from the statute under which they are passed can be challenged by recourse to writ jurisdiction without availing of or exhausting departmental or alternate remedies.

12. Learned counsel for the respondent, relying upon Syed Saghir Ali v. Mehar Din and others (1968 SCMR 145), lastly contended that the questions involving investigation into facts should be properly raised in civil suit for decision on the basis of evidence and cannot be decided by a short‑handed method of writ. The authority is unhelpful to him for the reasons that the questions of fact are not disputed, inasmuch as allotment, possession and full payment of the price of the plot by the petitioner are not disputed. The Society has admitted that it had no proof that the impugned notice was sent or served upon the petitioner or he was heard before the order of cancellation was passed against him.

13. The questions of law are essentially involved in this case. The petitioner has questioned the very jurisdiction of the Society to cancel the plot and that too in violation of principles of natural justice and the order emanated from the Managing Committee which as per bye‑laws could not function and, therefore, pass the order. And in case of transgression of powers, abuse of powers or colourful exercise of powers by the functionaries of the State, statutory bodies, corporations who were required to act strictly within the defined spheres of their authority under the law, were exposed to correction in Constitutional jurisdiction of superior judiciary, namely, judicial review. So was recently ruled by this Court in Islamia University, Bahawalpur through Vice Chancellor v. Dr. Muhammad Khan Malik (PLD 1993 Lah.141).

14. In view of what has been stated above, the writ petition is accepted, the impugned order of the Society canceling the allotment of plot No.15‑A/1 of the petitioner is declared illegal, ultra vires, without lawful authority and of 'no legal effect and as such hereby set aside. Parties are left to bear their own AA/S‑365/L Petition accepted.