' Though this judgment, I intend to dispose of two connected writ petitions titled (1) the Cooperative Model Town Society (1962) Ltd. Through its Secretary v. The Secretary Cooperative Department Government of the Punjab and others (Writ Petition No.8692 of 2003), (2) Yasir Niaz and others v.
The Cooperative Model Town Society (1962) Ltd and others (Writ Petition No.10524 of 2003).
2. The first writ petition i.e. Writ Petition No.8692 of 2003 had been filed by the Cooperative Model Town Society (1962), Lahore on the plea that one Khawaja Khair-ud-Din i.e father of Mehmood Abbas Khawaja respondent No.3 had been transferred Plot No.138-D and Plot No.139-D (portion) situated in Model Town Lahore by the Settlement Department vide PTD No.3056 dated 30-11-1968.
Khawaja Khairud-Din however, died and his other legal heirs transferred their shares in the aforesaid two plots in favour of Mehmood Abbas Khawaja respondent No.3 and as a result of which respondent No.3 is the present owner of Plot No.138-D and Plot No.139-D (portion). While Plot No.138- D measures 3 Kanals 18 Marlas and 161 Sq.Ft., Plot No.138-D measures 2 Kanals and 65 Sq.Ft. (in accordance with the master plan of the petitioner society). The reason as to why a portion of Plot No.139-D and not the whole of the said plot had been transferred by the Settlement Department to Khawaja Khair-ud-Din was because the owner of Plot No.139-D had sold 5 Marals and 170 Sq.Ft. Of plot in favour of one Miss L.M. Stratford who was then the owner of Plot No.140-D. The above said Miss L.M. Stratford was not an evacuee owner and therefore, the above said area of 5 Marlas and 170 Sq.Ft. Out of Plot No.140-D was not an evacuee property and could not have been transferred by the Settlement Department to Khawaja Khair-ud-Din, the predecessor-ininterest of respondent No.3. Thus, respondent No.3 was the owner of 1 Kanals, 14 Marlas and 120 Sq.Ft, out of Plot No.139-D which was the remaining area after the reduction of 5 Marlas and 170 Sq.Ft. Respondent No.3 submitted an application to the Registrar Cooperative Societies/ respondent No.2 for demarcation.
It was prayed by him that the Cooperative Model Town Society be directed to correct its record relating to Plots Nos.138-D and 139-D as per possession of the applicant and to issue revised share certificate containing the area in occupation of the applicant. The petitioner-society contested the said application of respondent No.3 and submitted its reply before the Registrar Cooperative Societies/respondent No.2, inter alia, on the plea that respondent No.3 had admitted in writing that an area of 5 Marlas and 170 Sq.Ft., out of Plot No.139-D had been sold out by its evacuee owner before the partition, in favour of owner of plot No.140-D and that he was, therefore, owner of 1 (one)
Kanal, 14 Marlas and 170 Sq.Ft. Out of Plot No.139-D. However, Registrar Cooperative Societies/respondent No.2 accepted the said application of respondent No.2/Mehmood Abbas Khawaja vide his order dated 30-11-2002.
3. The petitioner-society challenged the order dated 30-11-2002 passed by the Registrar Cooperative Societies/respondent No.2 by filing an appeal under section 64 of the Cooperative Societies Act, 1925 before respondent No.1/Secretary Cooperative Department, Government of the Punjab. Respondent No.1, however, held that the issue involved in the case was one of rectification of record and not of determination of ownership or title of' immovable property and thus respondent No. 1/Secretary Cooperative Department dismissed the appeal vide its order dated 31- 1-2003. The petitioner society has taken the plea that the order dated 31-1-2003, passed by respondent No.1/Secretary Cooperatives Department, Government of the Punjab is illegal, without jurisdiction, arbitrary and void on the grounds mentioned in Para No.8 of the petition. It was prayed by the petitioner society that the order dated 23-1-2003 passed by the respondent No.1/Secretary Cooperatives Department and the order dated 23-11-2002 passed by the Registrar Cooperative Societies/respondent No.2 be set aside.
4. The second petition (Writ Petition No.10524 of 2003) was filed by Yasir Niaz and Mst. Ulfat Niaz, the son and daughter of Niaz-ud-Din on the plea that after the death of Khawaja Khair-ud-Din, the transferee of the aforesaid property, his other legal heirs had relinquished their shares in the aforesaid property in favour of Mehmood Abbas Khawaja (respondent No.4 in Writ Petition No.10524 of 2003). In this way, he i.e. Mehmood Abbas Khawaja acquired full rights of ownership and possession in the said property and that surrender-deeds executed by the legal heirs of Khawaja Khair-ud-Din deceased in favour of respondent No.4 (Mehmood Abbas Khawaja) have been placed on record in the connected Writ Petition No.8692 of 2003 filed on behalf of respondent No.1 who is petitioner in the said petition. Respondent No.4 filed an application before the Registrar Cooperative Societies/respondent No.2 for issuance of a direction to the Cooperative Model Town Society for correcting/revising and issuance of fresh shares certificate. The request was accepted vide his order dated 12-4-1967. An appeal was preferred which was accepted vide order dated 13- 1-1968 and the above request was allowed vide order dated 18-9-1968 and by which the area on which latrines, garages etc. Had been built was transferred, considering the same to be part and parcel of Plot No.138-D. The Registrar Cooperatives Societies/respondent No.2, decided the application vide his order dated30-11-2002. Respondent No.1 i.e. The Cooperative Model Town Society filed an appeal against the said order dated 30-11-2002. However, respondent No.2 i.e. Secretary Cooperatives Department, Government of the Punjab vide its order dated 23-1-2003 dismissed the appeal. The aforesaid orders passed by respondents Nos.2 and 3 were challenged by respondent No.1 through Writ Petition No.8692 of 2003 which was admitted to regular hearing on 24-6-2003 and operation of orders passed by respondents Nos.2 and 3 was suspended. In their petition, it was averred by Yasir Niaz etc. Petitioners that respondent No.1 had issued a 'No objection certificate' dated 19-3-2003 in respect of transfer by sale of portion of property No.138-D Model Town, Lahore, measuring 1 Kanal and 26 Sq.Ft. By respondent No.4 in favour of petitioner No.1 and a portion of Property No.138-D measuring 1 Kanal and 8 Sq.Ft. E transferred by respondent No.4 in favour of petitioner No.2. The said certificates were valid for a period of six months. On the basis of the aforesaid 'No objection certificates' issued by respondent No.2, the petitioner got executed and completed the sale deeds of the respective portions of the said properties in their favour from respondent No.4. The sale deeds were executed on 27-3-2003 and the same were entrusted to a local commissioner by respondent No.5 on 17-3-2003 and the proceedings under section 59 of the Registration Act were completed on 21-3-2003 (when the execution of the sale-deed was verified and the entire sale consideration of Rs.36,55,000 was paid in the presence of the local commissioner). It was-then that the Secretary, Model Town Society issued the impugned order dated 3-4-2003 and suspended the operation of 'No objection certificates'. The petitioners i.e. Yasir Niaz etc. Have taken the plea that the order dated 3-4-2003 suspending the operation of the 'No objection certificates' was without lawful authority and of no legal effect on the grounds mentioned in para No.7 of the petition. It was prayed by them that by issuance of an appropriate writ/order or direction, the impugned order dated 3-4-2003 passed by the respondent No.1, suspending the operation of no objection certificates, be declared to have been passed without lawful authority and of no legal effect and respondent No.5 be directed to complete the process of registration of sale-deeds in favour of the petitioners in accordance with law. It was also prayed that respondent No.1 may be directed to allow membership of the society to the petitioners, in accordance with their bye-laws and also to allow them to raise construction on the land purchased by them in accordance with law and bye-laws of the society.
5. I have heard the arguments from both sides at length.
6. The learned counsel appearing on behalf of the Cooperative Model Town Society (1962) Ltd. Has argued that Mehmood Abbas Khawaja respondent No.4 claims that he is the owner of Plot No.138- D which according to him measures 4 Kanals, 8 Marlas and 94 Sq.Ft. And that Plot No.139-D (portion) owned by him measures 1 Kanal, 17 Marlas and 72 Sq.Ft. And in this way his total ownership (according to his version) comes to 6 Kanals, 5 Marlas and 166 Sq.Ft. However, according to the Cooperative Model Town Society, the aforesaid claim of Mehmood Abbas Khawaja is incorrect and false and according to the society, plot No.138-Dmeasures 3 Kanals, 18 Marlas and 161 Sq.Ft. And that Mehmood Abbas Khawaja is falsely claiming the ownership of 7 Marlas and 71 Sq.Ft. Out of adjacent Plot No.158-D and of 2 Marlas and 87 Sq.Ft. Whch is the encroachment made by him. The learned counsel for the Model Town Society has argued that the Registrar Cooperative Societies vide his order dated 30-11-2002 and Secretary Cooperative Department dated 23-1-2003 had wrongly upheld the aforesaid claim of ownership of Mehmood Abbas Khawaja.
7. The learned counsel for Model Town Society has argued that Mehmood Abbas Khawaja respondent No.3 had secured the alleged sanction of the sub-division on the assumption that the areas of Plots Nos.138-D and 139-D (portion) owned by him were the same as was being claimed by him and according to him his ownership in respect of the said two plots comes to 6 Kanals, 5 Marlas and 166 Sq.Ft. Whereas according to the Model Town Society, his ownership with respect to the aforesaid two plots comes to 5 Kanals, 13 Marlas and 110 Sq.Ft and as such there is a difference of 12 Marlas and 110 Sq.Ft (keeping in view the contentions of both the sides). He has argued that the sub-division plan was sanctioned and NOCs were issued by the persons who were not competent to do so and that the sub-division plan was examined and corrected by a ministerial Official/Draftsman. Similarly, the sub-division plan was examined and found correct by the same Official/Draftsman whereas the competent authority to sanction the sub-division plan was the Managing Committee of the Society and a Draftsman cannot exercise the powers of a Civil Engineer. He has argued that the case was never submitted for approval of the sub-division plan to the Managing Committee or the Enrollment Sub-Committee which had been delegated the powers of the Managing Committee under bye-law No.45(ee) and the NOCs for same had been submitted to the Enrollment sub-committee exercising the powers of Managing Committee and the Enrollment subcommittee consisting of three lawyers had deliberated upon the issues in respect of the sub-division plan and the NOCs. However, before the Enrollment Sub-Committee could give any decision approving or disapproving the sub-division plan or the NOCs, Mehmood Abbas Khawaja respondent No.3 approached Registrar Cooperative Societies and who without hearing the respondent society, ordered the President to issue NOC immediately and by doing so he had bypassed the competent authority i.e. The Enrollment Sub-Committee constituted by the Managing Committee. He has argued that the order of the Registrar Cooperative Societies had been passed without hearing the Enrollment Sub-Committee and in violation of the registered bye-laws of the society. He has argued that the NOCs were issued on 19-3-2003 by the Secretary who was not competent to do so. He has further argued that when the factum of NOCs having been issued came to the knowledge of the Enrollment Sub-Committee constituted by the Managing Committee of the Society, the NOCs were set aside as also the amended share certificates which had been earlier issued illegally in favour of Mehmood Abbas Khawaja and it was pursuant to the order dated 31-3-2003 of the Enrollment Sub-Committee that the above order dated 3-4-2003, had been issued. He has argued that the sub-division plan and the NOCs had been obtained from an official not competent to issue the same and hence not only the sub- division plan but also the NOCs were nullity in the eye of law as the same had been got issued in a clandestine manner. He has argued that it would be in the interest of justice if the dispute regarding the extent of the area of ownership of Mehmood Abbas Khawaja is finally determined before permitting the sub-division plan and issuing the NOCs. He has asserted that the orders dated 31-3-2003 passed by the Enrollment Sub-Committee resulting in Office order dated 3-4- 2003 are legal and valid, till the issue of ownership is finally decided.
8. On the other hand, the learned counsel for -Yasir Niaz etc. And also the learned counsel for Mehmood Abbas Khawaja respondent have argued that the questions raised in Writ Petition No.8692 of 2003 or the questions of fact touching the title in the suit property can be decided only after recording the evidence and hence the petition aforesaid i.e. Writ Petition No.8692 of 2003 is not competent as was held in Shahid Khan v. The Senior Civil Judge/Returning Officer and 9 others (2002 CLC 235 Lahore).
9. The leaned counsel for Yasir Niaz etc has also argued that the evacuee property built on Plots Nos.138-D and 139-D had been transferred to Khawaja Khair-ud-Din vide PTD No.3056 dated 23-11- 1968 by the Settlement Department. The transferee however died in July, 1991, leaving behind his four sons and three daughters as his legal heirs. All of them surrendered their rights in favour of the elder son of the deceased namely Mehmood Abbas Khawaja and who was now the sole owner of the said property. He obtained demarcation of the said property from Model Town Society on 28-3- 1999 and according to which area of Plot No.138-D was 4 Kanals, 8 Marlas and 94 Sq.Ft. While area of Plot No.139-D was 1 Kanal, 17 Marlas and 72 Sq.Ft at the spot, while in the master plan of the society, the area of Plot No.138-D was 3 Kanals, 18 Marlas and 161 Sq.Ft and area of Plot No.139-D was 2 Kanals and 65 Sq.Ft. He has submitted that Mehmood Abbas Khawaja applied to the Model Town Society for rectification of its record so as to show the area of the property according to the demarcation. As the application was rejected, Mehmood Abbas Khawaja filed an application before the Registrar Cooperative Societies, on 27-11-2002. The said application was accepted on 30-11-2002 by the Registrar Cooperative Societies and a direction was issued to the Model Town Society for the rectification of its record and for issuing share certificates in accordance with the area demarcated at site. The Model Town Society, aggrieved of the said order filed an appeal before the Secretary Cooperatives, Government of the Punjab and which was dismissed on 23-1- 2003. It was thereafter that amended share certificates were issued and Mehmood Abbas Khawaja then applied for sub-division of the plots and NOCs for the transfer of the said sub-divided plots on 19-3-2003. The Model Town Society also received an amount of Rs.52,684 as fees for sub-division of the property into six plots and Rs.26,000 as fees for issuance of NOCs. He has argued that the site plans of the sub-divided six plots were approved and NOCs were issued and it was thereafter that Mehmood Abbas Khawaja sold Plots Nos.138-D-I and 138-D-II, to Yasir Niaz, Mst. Ulfat Niaz and Mr. Muhammad Nawaz and issued power of attorney to Ch. Muhammad Waqas Daud, Ch. Muhammad Farooq Daud etc. A local commissioner was also appointed who recorded necessary proceedings admitting execution of the documents and payment of the consideration amount on 21-3-2003 and submitted the same to the Sub-Registrar on 27-3-2003. However, before he could incorporate necessary entries of the registered documents in his record, the Model Town Society withdrew the NOCs on 3-4-2003, due to which registration of the documents could not take place.
The learned counsel has argued that the competent Officers/Officials of the society had sanctioned the subdivision of the property and had issued NOCs in compliance with the orders of the Registrar and Secretary Cooperatives and which action had been malafidely challenged by a junior officer, without lawful authority and which had caused irreparable loss to the transferees. It was also argued by the learned counsel for Yasir Niaz, etc. That his clients were bona fide purchasers and before the suspension of NOCs, no show-cause notice had been issued to them, nor they had been provided any opportunity of being heard. He has further argued that it is an admitted fact that the building constructed on Plots Nos.138-D and 139-D was evacuee property and had been entirely transferred to Khawaja Khair-ud-Din and Miss Stratford or anybody else had never raised any objection to its transfer and so it became final and binding and the Model Town Society never moved the Custodian of Evacuee Property or any Settlement Authority that some area of the society had been illegally occupied by the evacuee owner and the same be deleted from his name and even the society had never taken any steps against the evacuee owner for demolition of the property raised on the area claimed by the society. The building as such had been acquired by the Custodian of evacuee property and was then vested in the Settlement Department, which in its turn transferred the same to Khawaja Khair-ud-Din.
10. The learned counsel for Mehmood Abbas Khawaja has argued that the stage for raising objections before the Custodian and Settlement Department was over long ago and the transferee was entitled to the entire evacuee property, as constructed and occupied by the Hindu owner and the question of his trespass on an area cannot be raised after such a long time and the area under the building as measured by the society during the demarcation, is the property of the transferee, irrespective of the fact as to what was the area of the plots under the building according to the master plan and thus the society was debarred from raising any objection at this stage, after it had approved the sub-division and had issued NOCs for transfer of the subdivided plots and bona fide purchasers had paid the price to the owner.
11. The learned counsel Mehmood Abbas Khawaja respondent and the learned counsel for Yasir Niaz, etc. Have both argued that there is no force in the writ petition filed by the Cooperative Model Town Society and hence the same be dismissed while, the writ petition filed by Yasir Niaz etc. Be accepted.
12. I have carefully considered the arguments advanced from both sides and have also perused the documents appended with both the writ petitions.
13. Admittedly, the evacuee property built on Plot No.138-D and portion of Plot No.139-D Model Town Lahore was transferred to Khawaja Khair-ud-Din vide PTD No.3056 dated 23-11-1968 by the Settlement Department. It is also an admitted fact that all other legal heirs of the transferee Khawaja Khair-ud-Din had surrendered their rights in the said property in favour of his elder son Mehmood Abbas Khawaja and who had obtained demarcation of the said property from Model.
Town Society on 28-3-1999 and had then applied to the Model Town Society for rectification of its record. As his application was rejected, he filed an application before the Registrar Cooperative Societies and who accepted his application vide his order dated 30-11-2002. Admittedly, the appeal filed by the Cooperative Model Town Society before the Secretary Cooperative Department was also dismissed on 23-1-2003 and it was thereafter that Mehmood Abbas Khawaja had applied for sub-division of the plots and issuance of NOCs for the transfer of the said subdivided plots and the Model Town Society had also received the requisite fee for sub-division of the property and also for issuance of NOCs. Even a local commissioner had been appointed for recording the proceedings. But before the sale-deeds could be formally registered, the Model Town Society withdrew the NOCs on 3-4-2003, without issuing notices to Yasir Niaz, etc. Who were the buyers and had paid the consideration amount. There is nothing on record to indicate that Model Town Society itself had ever moved the Custodian of evacuee property or the Settlement Department complaining that some of its area had been illegally occupied by the evacuee owner. Admittedly, the stage for raising objections before the Custodian and the Settlement Department had ended long ago and hence the transferee was entitled to the entire evacuee property as occupied and constructed by the Hindu owner and at this stage the question of trespass on any area could not be raised by the Model Town Society. It is not understandable as to how the Model Town Society, after having approved the sub-division and after having issued NOCs for transfer of the subdivided plots is now dragging its feet and taking a different plea. It may be advantageous to reproduce Paras. Nos.7 and 8 of the order dated 23-1-2003 passed by the Secretary Cooperatives Department, Government of the Punjab as below which are also reproduced in Para. No.2 of the Writ Petition No.10524 of 2003 as well:-- "7. The relevant record of Settlement Department (copy provided with the appeal) shows that 138-D and part of 139-D Model Town, Lahore, stood transferred in the name of Khawaja Khair-ud-Din, predecessor-in-interest of respondent No.1 since 14-11-1950, vide their order dated 18-9-1968, Plot No.139-D Model Town, Lahore, on which latrine, garages etc., were built, was considered as part and parcel of 138-D. The legal heirs of Khawaja Khair-ud-Din had surrendered their respective shares in Plot No.138-D in favour of the said respondent. Thus the issue at hand does not pertain to title/ownership of property but to rectification in the record of the society on which the Registrar Cooperative Societies, is competent to adjudicate.
8. In view of the above, I have come to the conclusion that the record of the society itself clearly indicates that the matter regarding the area in question had long been settled and the said area was accepted as part of Plots Nos.138 and 139-D. Order of the Registrar Cooperative Societies, dated 30-11-2002, is, therefore, upheld. The instant Appeal is accordingly dismissed."
14. The question raised by the Cooperative Model Town Society in its writ petition needs enquiry and recording of evidence and which exercise cannot be undertaken in this wit petition. If so advised, the Cooperative Model Town Society can agitate the matter before an appropriate forum and in appropriate proceedings, but the relief prayed for by it cannot be granted to it in the writ petition filed by it. On the other hand, the writ petition filed by Yasir Niaz, etc., is based on sound footing as the Cooperative Mode Town Society after sanctioning the sub- division plan, charging the sub- division fee and issuance of NOCs has no right to drag its feet. The order dated 3-4-2003 passed by the Secretary Cooperative Model Town Society, suspending the operation of the NOCs is clearly without lawful authority and of no legal effect and Yasir Niaz, etc. Petitioners are entitled to the completion of the process of registration of sale-deeds in their favour and also to the membership of the society in accordance with the bye-laws of the society.
15. In view of what has been discussed above, the petition field by the Cooperative Model Town Society (1962) Ltd. (Writ Petition No.8692 of 2003) is dismissed while the (Writ Petition No.10524 of 2003) filed by Yasir Niaz, etc. Is accepted and the relief prayed by them is accordingly allowed.