Housing Society

2022 SCMR 1124 SUPREME-COURT Judicial Precedent

S. 498National Accountability Ordinance (XVIII of 1999), S. 9(a)Constitution of Pakistan, Art. 185(3)Ad-interim pre-arrest bail, confirmation ofHousing SocietyFraudulent transfer of plots of original allottees to fake persons and illegal sale of plots to builders

Record revealed that the accused was neither an original member of the Housing Society nor a subsequent fake member of the Society as no plot was transferred by the Society to him

Accused had no active role to play in the Managing Committee of the Society

Name of the accused appeared as a nominee of a co-accused, who was the actual transferee of the plots from the Society, and the accused held 25 plots as a sub-lessee of the co-accused

However, on finding out about the illegalities in the transfer of these plots, the accused surrendered the said 25 plots to the Society through a duly registered deed of surrender

Said plots were not transferred to the building project, hence the allegation in the Reference that the plots were illegally procured by the accused and sold for gain to the project was not supported by the record

No material was available on the record, at present stage, to connect the accused with the violations allegedly committed by the Society or with the alleged illegally elected Managing Committee

Petition for leave to appeal was converted into appeal and allowed, and ad-interim pre-arrest bail granted to the accused was confirmed.

2022 SCMR 171 SUPREME-COURT Judicial Precedent

Housing societyOriginal master plan/layout planAmenity plots

Once layout plan was prepared, in which amenities were provided, such amenities could not be removed or altered/converted into private buildings or used for commercial purposes

Members of the society acquired vested rights in the amenities provided in the society and those could not be taken away or allotted for any purposes other than those shown in the original master plan

Land meant for amenities and for parks and play grounds could not be legally and justifiably allotted to private persons for their exploitation as a commercial venture or for residential purposes.

2022 CLC 395 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 56, 59, 64 & 64ACooperative Societies Rules, 1927, R.32Housing SocietyAllotmentAwardRevisional jurisdiction

Plot allotted to petitioner by Housing Society was cancelled on account of non-payment of dues, which was further allotted to subsequent allottee

Subsequent allottee preferred appeal which was decided by Registrar Cooperative Societies (Registrar) directing respondent society to compensate the present petitioner by allotting an alternate plot, which was not implemented

Petitioner filed application for execution certificate during pendency whereof respondent society preferred appeal/revision for suspension of earlier orders, which was decided by Minister for Law and Parliamentary Affairs, Government of Sindh (Government) setting aside order of Registrar and Award of the nominee of the Registrar

Government of Sindh directed the Registrar to appoint other suitable nominee for giving Award

Petitioner impugned said order of Government of Sindh

Held, that appeal was already preferred by subsequent allottee before Registrar, therefore, proceedings filed by respondent society before Government could not be treated as an appeal and revision both for the reasons firstly, that S.64 of Cooperative Societies Act, 1925, did not provide a second appeal from appellate order passed under S.56 of Act, 1925; secondly, that Government while passing impugned order treated the proceeding as revision

Such proceeding was filed and order in appeal was passed after 6 months from passing said appeal

If original order/award passed in Arbitration Proceeding was not challenged by respondent society, the same could not be questioned by filing a revision under S.64A of Act, 1925

Lease could not have been cancelled in arbitration proceeding but the lease was overturned in decision of "Registrar" in appeal by keeping intact the leasehold rights of subsequent allottee and directing respondent society to give alternate plot to the petitioner; finding given in arbitration was maintained which attainted finality hence, could not have been interfered with in the purported revisional jurisdiction exercised by "Government"

Invoking revisional jurisdiction under S.64A was void ab-initio

Impugned order passed by "Government" was coram non judice and nullity in the eyes of law, hence, quashed

Plea of laches had also become meaningless

Constitutional petition was accepted accordingly.

2018 MLD 1806 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Art. 199Constitutional petitionHousing SocietyDemarcation of landLayout plan, withdrawal of by the Cantonment BoardPetitioner was a Housing Society and its layout plan comprised of three blocks

Grievance of petitioner Society was that Cantonment Board had issued a letter restricting approval of the Society only to the extent of Block-I on the ground that in demarcation of land Block-II and Block-III of the Society had fallen on defence land under the occupation of Pakistan Air Force

Validity

Claim of Pakistan Air Force was only in respect to 2.6 acres forming part of Block-III, no legal justification for suspension of layout plan in respect of Block-II existed

Letter in question issued by Cantonment Board on the ground that both chunks of Society's land designated as Block-II and Block-III were under occupation of Pakistan Air Force was devoid of any merit, as claim of Pakistan Air Force was only in respect of 2.6 acres, which was complete chunk of land comprising of Block-III of the Society

High Court directed to withdraw letter in question issued by Cantonment Board where layout plans in respect of both Block-II and III were withdrawn / cancelled could only apply to the chunk of land admeasuring 2.6 acres in Block-IIII of the Society, therefore, there was no legal justification for withdrawal or cancellation of layout plan in respect of Block-II

Constitutional petition was allowed of accordingly.

2017 YLRN 426 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Regln. 25-2Constitution of Pakistan, Arts. 4 & 23Temporary injunction, grant ofHousing societyConstruction against the bye-laws of the Housing SocietyScopePlaintiffs challenged the construction by the defendants against the bye-laws of SocietyValidityDefendants had purchased the suit property on the basis of sale deedEvery person had right to his property as guaranteed under Arts. 4 & 23 of the Constitution

No one could be asked or compelled to abide by the bye-laws of society to raise construction according to directions if same were in conflict with statute or law on the subject

Defendants had agreed to abide by the terms and conditions notified by the Society therefore they could not enjoy their property independently

Society could not frame its bye-laws which were directly in conflict with parent statute or law on the subject

Owners of plots/ properties were obtaining permission and requisite approvals and NOCs from concerned department without any recommendation and or approval of the Society

Such practice was unjust and against the law as well as concept of forming a Housing Society

Society was custodian of its member's rights and obligations

Proceedings with regard to every property in the Society should be routed through it insofar as obtaining approvals/NOCs/permission from the relevant department

Society was required to forward such requests of allottees/owners of the properties to the said department immediately with its comments

Society could not approve and or reject such request on its own as the same were to be dealt with and decided by the respective departments

Society could not and must not frame its rules and regulations which were either in conflict and or were contrary to the statute on the subject

Law/statute and or rules/regulations would prevail

Plaintiffs could raise objections on the construction being raised on the suit property

Permission, approval and NOC granted to the defendants was contrary to Regulation 25-2 of Karachi Building and Town Planning Regulations, 2002

Plaintiffs had made out a prima facie case and balance of convenience was in their favour

Plaintiffs would suffer irreparable loss if injunctive relief was refused

Defendants had obtained permission for impugned construction by misapplication of law/rules and they would not suffer irreparable loss if injunction was granted

Application for grant of temporary injunction was accepted

Defendants were directed not to make any construction nor any third party interest should be created in the suit property.

2017 YLR 1224 ISLAMABAD Judicial Precedent

S. 2(k)Notification No. S.R.O. 83 (KE)/2002 dated 01-08-2002Housing SocietyTerritorial jurisdictionDeterminationProcedure

High Court directed Surveyor General of Pakistan to provide the details with map reference (Eastings and Northings) and marked the boundary pillar on the map

Notified map was issued

Housing Society in question did not fall within the territorial jurisdiction in terms of Islamabad Rent Restriction Ordinance, 2001

Copies of map were sent to the District and Sessions Judges for their reference to resolve the territorial issues in all cases under Islamabad Rent Restriction Ordinance, 2011

Rent Controllers were directed to verify their pending cases accordingly

Constitutional petition was allowed in circumstances.

2016 YLRN 116 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.42Suit for declaration and compensationHousing SocietyAgreement for street electrificationScopeRight of cross-examination on the witnesses of plaintiff and right to produce evidence of the defendants were closed

Trial Court did not rely upon one-sided story of the matter and discussed each of the monetory claims of the plaintiff-society

Trial Court had rightly held that plaintiff society was required to prove that society had borne costs of non-fulfilment of agreement executed between the parties

Plaintiff society had failed to submit any calculation and figures which might show that it had borne the expenses of rupees one crore to complete electrification of society

Court could not award such a heavy amount merely on the statement of plaintiff society without any supporting evidence to such effect

Society could not justify claim with regard to damages/ compensation on account of committing actionable wrong

Trial Court had rightly awarded claim partly to the plaintiff

Appeal was dismissed in circumstances.

2014 CLC 962 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Art. 199Constitutional petitionHousing SocietyElection for post of General Secretary of Housing SocietyDisqualification for election of office-bearer on ground of conflict of interest (property business of the candidate)Scope

Petitioner impugned order of Housing Society whereby he was disqualified from contesting election on ground that he was engaged in property business, which created a conflict of interest

Contention of petitioner was that petitioner had previously been elected to this post and no complaint was filed against him and that he had also subsequently sold his property business, evidenced through documents brought on record

Validity

Impugned order failed to take into account petitioner's unobjected and unblemished three years of service as General Secretary of the respondent-Society; which established the fact that the petitioner did not promote his personal business in a way that conflicted with his authority as office-bearer of the Society

Court, although was inclined to interpret the rule of conflict on interest and duties very strictly, however, lack of any objection whatsoever against petitioner in his three years tenure was a persuasive ground to believe his statement that he had sold his share in the property business

High Court observed that if any connection of the petitioner with the alleged property business was established, then any member of the Society may approach for action against petitioner in accordance with law

Impugned order was set aside, and Constitutional petition was allowed, accordingly.

2014 CLC 868 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Art. 199Constitutional petitionHousing SocietyDouble/ multiple allotment of plotsPetitioner had been provisionally allotted a plot in the Housing Society, and had paid requisite dues to the SocietyRespondent (allotee) had also been provisionally allotted the same plot

Housing Society vide an order decided to allot the said plot to the respondent allottee on the ground that petitioner did not have seniority over the respondent allottee in terms of the allotment formula adopted by the Society in its Annual General Meeting

Held, that controversy arose due to arbitrary and non-transparent actions of the Society, and the provisional allotment of plot in favour of the petitioner was prior in time and she had made full payment of dues to the Society, which was upheld in an arbitration award

Respondent allottee was a defaulter and the impugned orders had deprived the petitioner of her lawful right to be allotted a plot

Housing Society acted complicitly to accommodate the respondent allottee by issuing him the final allotment letter whilst Society's appeal was still pending against the petitioner regarding the same plot

High Court observed that after considering the matter fairly and candidly, the petitioner deserved relief in the present case since the respondent was given undue favour by the Society in derogation of the rights of petitioner and without hearing the petitioner

Constitutional petition was allowed, in circumstances.

2013 MLD 255 ISLAMABAD Judicial Precedent

Ss. 9, 10 & 11Housing SocietyPermission for plantation and beautification of land owned by the AuthorityEnforcement

Directions given to Capital Development Authority stated.