2009 PLP 2132 (YLR)

IJAZ AHMAD CHAUDHRY, J.

Petition No.13-C of 2007 filed by National Police Foundation Cooperative Society and Writ Petition No. 4857 of 2007 filed by Punjab Cooperative Board for Liquidation are being disposed of through this single order as common question of facts and law are involved.

2. Through this petition under section 11 of the Punjab Undesirable Cooperative Societies Act, 1993 the petitioner has challenged the auction conducted by respondent No.1 in response to the proclamation published in Daily Tang on 22-12-2006 and also the notice dated 11-1-2007 issued by respondent No.1 to the petitioner being illegal and unlawful.

3. Brief facts as narrated in this petition are that petitioner had purchased lands measuring 571 Kanals and 17 Marlas on 10-6-1991 situated in Mauza Sadhoki Tehsil Cantt Distt. Lahore for a consideration of Rs. 6, 80, 50,150 land measuring 248-Kanals & 15 Marlas on 26-5-1991 at the rate of Rs.2,96,01,250 and land measuring 135-Kanals & 16 Marlas on 31-7-1991 for a consideration of Rs.1,61,60,200 from Messrs National Industrial Cooperative Finance Corporation Ltd. The petitioner made payments of the land through cash, cheques and Demand Draft. The land was transferred in the name of petitioner after payment of whole sale consideration vide registered sale deeds. Thereafter the petitioner applied for approval of establishing a Housing Scheme over the said land from the Lahore Development Authority on 13-5-1991 and got published proclamation in Daily Pakistan on 12-11-1992. Then petitioner received a letter issued by Punjab Coopera?tive Board for Liquidation on 3-11-1994 wherein it is mentioned "that in order to settle the affairs, the land which was sold by the Ex-Management of the defunct CFC's to the Housing Society, you are requested to bring all the relevant records to reconcile the accounts etc". The petitioner filed reply of the said letter and approached the PCBL on 14-11-1994 by producing sale deeds. Thereafter the petitioner established a Housing Society over the said land with the permission of Union Council Halloke Cantt., Lahore on 10-11-1994 under Punjab Local Government Ordinance 1979, also sold out and allotted the plots to Members of Society and handed over the physical possession. On 21-3-2006 the PCBL filed an application before Executive District Officer (Revenue) challenging the above said land which was decided in favour of the petitioner vide order dated 1-4-2006. Then on 18-10-2006 petitioner submitted an application to Tehsildar for corrections of sale deeds vide mutation No. 3086 dated 29-7-1992, which was accepted and corrections were made on 5-12-2006. Thereafter the petitioner was astonished to see a proclamation in the Daily Jang dated 22-12-2006 got published by respondent No.1 for auctioning the land measuring 135-Kanals and 16-Marlas comprising Khasra numbers mentioned in para No.11 of the petitioner in favour of respondent No.2 without having any title/ownership of the land in question. The petitioner served a legal notice to respondent No.1 on 23-12-2006 and mentioned the fact that the land in question had already been decided in favour of petitioner by the EDO (R) vide order 1-4-2006 but instead of filing reply of the legal notice, respondent No. 1 issued a notice dated 11-1-2007 through which the petitioner was directed to appear in the office on 20-1-2007 along with evidence to prove claim of the petitioner. It is claim of the petitioner that respondent No.1 has auctioned the land owned by the petitioner in favour of respondent No.2, illegally and unlawfully without having any authority. The PCBL has also filed Writ Petition No.4857 of 2007 and called in question the mutations attested in favour of the National Police Foundation. As similar questions of facts and law are involved, both the matters are being disposed of through this single order.

4. The learned counsel for the petitioner/NPFC contends that the land had been purchased by petitioner from NICFC through registered sale deeds No. 1462 and the said original sale-deed was tampered with by showing sale-deed No. 1449 and word 49 at the last has been tampered with; that due to this reason the respondent has claimed that the said land was owned by NICFC and sale-deed was not executed in favour of the petitioner which is factually incorrect; that actually the petitioner had purchased the land after payment of consideration to NICFC and Liquidation Board has no concern with the said land which is in possession of petitioner that as per section 7(e) no doubt the Board can cancel all agreements entered into by an Undesirable Cooperative Society or its previous management or Directors, Officers, or agents which in the opinion of the Cooperative Board, are mala fide and against the interest of such a society or the members thereof but it is not within the powers of Liquidation Board to call for the petitioner and to pass any order regarding the said land; that presumption of truth is attached to the sale-deed and the said sale deeds are still under possession of the petitioner and mutations are in favour of petitioner, and that the Liquidation Board may be restrained from auctioning the land and create any doubt in the title and ownership of petitioner as the Board has no authority.

5. On the other hand learned counsel for respondents have opposed the petitioner on the ground that the petitioner had been summoned by the Liquidation Board in order to verify whether the sale deeds were genuine and were executed after the payment of consideration amount but instead of producing the documentary evidence in their support, they have filed this petition; that on the other hand cooperative Board is fully authorized to summon the petitioner and to cancel the agreement and the sale-deeds, if it is not proved that sale was actually for consideration of amount; that to ascertain that whether consideration amount had been paid or not the respondent is fully powered to call for record from the petitioner as the said property still exists in the name of NICFC and payment made by petitioner has not been proved in the record of NICFC.

6. I have heard the arguments of learned counsel for the parties and perused the documents attached with this petition.

7. The petitioner is in possession of the sale-deed which had been executed on different times between NICFC defunct and petitioner. However, the dispute which has been surfaced is that the Liquidation Board has found that though the sale-deed had been executed but the record of NICFC does not show that the sale consideration had been actually paid by the petitioner. It is also claimed that if the payments were made through cheques, the petitioner has not mentioned the number of cheques in the original sale deeds. The Liquidation Board is that it can go into the genuineness of the title deed under section 7(e) of the Act which clearly provides that "Cancel all agreement entered into by an Undesirable Cooperative Society or its previous managements or Directors, Officers, or agents which in the opinion of the Cooperatives Board are mala fide and against the interest of such.a society or the members thereof". A perusal of the said section reveals that a cooperative Board when appointed as a Liquidator under this Act shall have all the powers exercisable by a Liquidator under the Cooperative Societies Act, 1925 and additional powers have been given to the Liquidation Board to unearth and proceed against any concealed or hidden property of an Undesirable Cooperative Society, whether in the name of any Director Officer, Agent or any of the members of their families or in the name of any other person body company or firm acquired or purchased by using or diverting the funds of defunct Society. Under 7(e) of the Act the Liquidation Board can call for the title holders and can investigate to ascertain that the sale-deed was genuine and the amount of sale consideration had been actually paid to the Defunct Cooperative Society or not.

8. The petitioner can rebut this objection of the Liquidation Board while placing record about the mode of payment made at the time of execution of sale deeds and at the time of entering into the agreement with the NICFC. If the petitioner has documentary evidence in this regard. It is strange that why they are avoiding to appear before PCBL and hesitating to produce their documentary evidence before the Liquidation Board. In case the Board does not accede to the claim of the petitioner, the Board has to pass an order, which can be challenged before this Court. All the objections can be raised before Board. In the notice dated 11-1-2007 the PCBL has not passed any order against the petitioner but has only asked that the claim of the petitioner has to be scrutinized in the light of evidence he possesses. I do not find any illegality in the issuance of impugned notice to the petitioner, who shall appear before the Chairman PCBL on 30-5-2009 and produce his documentary evidence. However, respondent No.1 is directed to decide the matter after considering the documentary evidence of the petitioner. The order if any passed by the Punjab Liquidation Board of course is challengeable before the Cooperative Judge but without recourse before the Chairman of PCBL approaching directly the Cooperative Judge is not approved. This petition is disposed of accordingly.

9. Similarly Writ Petition No. 4857 of 2007 is also disposed of in the above terms as the matter is yet to he scrutinized by PCBL after having seen the record of National Police Foundation Cooperative Society and if PCBL decides that NPFC has not sufficient evidence in support of their title, the PCBL can approach this Court H afresh. As the matter has been, referred while disposing of petition No. 13-C of 2007, let the Board decide the said issue first. M.Y./N-59/L?????????????????????????????????????????????????????????????????????????????????????? Order accordingly.