FAISAL ARAB, J.--- On 11-12-1980 the plaintiff filed the present suit against defendant No,1 Society, Karachi for specific performance of contract in relation to a residential plot bearing No,141-H measuring 2000 square yards, which he claimed to have purchased from defendant No,1 Society in 1973.
1. The case of the plaintiff is that defendant No,1 Society allots plots not only to its members but also to non-members. He claims that on 11-8-1973, the then Administrator of defendant No,1 Society Mr. R.H. Rajper offered the said plot to him, which he accepted and paid the entire sale consideration.
He further claims that he was delivered possession of the said plot on 8-10-1973 even a deed of sub-licence was registered in his favour and on 10-10-1973 defendant No,1 Society issued him allotment letter.
2. The case of the defendant No,1 Society is that though Mr. Rajper did offer the said plot to the plaintiff but such offer was unauthorized and collusive as Mr. Rajper could not allot plots to nonmembers, as such the offer made by Mr. Rajper was not binding on defendant No,1 Society.
With regard to the plaintiff's claim that possession of the plot was given to him, defendant No,1 Society states that plaintiff was never handed over physical possession of the plot as at that time it was not even carved out by defendant No,1 Society for allotment. It is also the case of defendant No,1 that the fact that allotment letter 10-10-1973 was issued after the execution of registered sub- licence, it proves collusion between the plaintiff and the Administrator Mr. Rajper in the grant of the said plot. It was further claimed by defendant No,1 Society that Mr. Rajper allotted the plot at a time when the elected managing committee of the Society was under suspension and when it was restored the actions of Mr. Rajper were reviewed and the allotment of the said plot along with 70 other illegal allotments were cancelled after serving show-cause notices.
3. The said plot is claimed by the plaintiff to have been carved out of a piece of land ad-measuring .13000 square yards known as "Altaf Nursery". The defendants Nos,2 to 5 figure in the suit for the reason that they were joined in the proceedings as they too are allottees of various plots in "Altaf Nursery". With regard to allotments in favour of defendants Nos,2 to 5 inter se there exists no dispute, however in case this Court accepts the allotment of the said plot in favour of the plaintiff as lawful then it would affect some of defendants Nos,2 to 5 or their successors as the area of the plots allotted to them would overlap with the area of plot allotted to the plaintiff. Thus, the defence of the defendants Nos,2 to 5 in their written statements is twofold. Firstly they claim to be bona fide purchasers for value without notice of their respective plots in "Altaf Nursery" and, secondly, they question the legality of plaintiff's allotment on the same basis as has been the case of defendant No,1 Society in its written statement.
4. On 26-8-1983 this Court adopted following issues:--
(1) Whether the plaintiff is allottee/licence of Plot No,141-H?
(2) Whether the plaintiff was put in possession of the plot in part performance of the contract?
(3) Whether the rights and liabilities of plaintiff and defendant No,1 are governed by the contract concluded and recorded in the sub-licence?
(4) Whether the defendant No,1 has no jurisdiction to cancel the grant and or revoke the sub- licence on grounds not provided in the sub-licence and or without hearing the plaintiff?
(5) Whether the action of defendant No,1 in dividing the plot and allotting portion thereof to defendant No,2 is illegal?
(6) Whether the plaintiff is entitled to specific performance of contract of sub-licence?
(7) Relief?
5. Issues Nos,1, 4 and 6 are all interconnected and therefore, are taken up together for decision.
Issues Nos,1, 4 and 6
6. In order to examine the legality of allotment of the said plot in favour of the plaintiff, the criteria on the basis of which residential plots could be allotted is to be first examined.
7. Under a registered Licence Agreement dated 6-8-1958 executed between the Government of Pakistan and defendant No,1 Society, a large piece of Government land in Karachi was entrusted to defendant No,1 Society for the purposes of its development and allotment. The ownership of the land entrusted to the Society continued to vest in the Federal Government. The defendant No,1 Society was merely a licensee under the Licence Agreement, dated 6-8-1958, authorized to make allotments of residential, commercial and amenity plots on the entrusted land on behalf of the Federal Government Licensor.
8. In the Licence Agreement dated 6-8-1958, the Federal Government spelt out the criteria on the basis of which the defendant No,1 Society was to make allotments of residential, commercial and amenity plots. However, as the dispute in this suit pertains to allotment of residential plot, I would examine the legality of allotment of residential plots under the Licence Agreement and the byelaws of defendant No,1 Society.
9. It is clearly stipulated in the Licence Agreement dated 6-8-1958 that the plots reserved for residential purposes shall be allotted by defendant No,1 Society to such members who are on its roll. The qualification to become a member of defendant No,1 Society is stated in bye-law No,7 which clearly provides that only such persons can become members of the Society who are employees of the Federal Government. In byelaw No,12 it is provided that even a person who is member of the Society cannot exercise his rights as a member until he holds one fully paid up share in the defendant No,1 Society.
10. The plaintiff in support of his claim of being a lawful allottee of the said plot produced several documents. Exh.P.1 is letter dated 11-8-1973 written by Administrator Mr. R.H. Rajper to the plaintiff offering the said plot to the plaintiff and seeking his acceptance. Exh.P.2 is undated certificate of the Society showing the incident of demarcation and handing over of the possession of the said plot to the plaintiff. Exh.P.3 is Form "A" Sub-lease registered on 9-10-1973 by the Administrator in favour of the plaintiff. Exh.P.4 is allotment letter dated 10-10-1973 issued under the signatures of the Administrator. Exh.P.9 is a show-cause notice dated 9-12-1978 calling upon the plaintiff to explain why his allotment should not be cancelled as under the rules he was not entitled to the allotment.
Exh.P.10 is reply dated 6-1-1979 of plaintiff's counsel to the show-cause notice. In paragraph No,1 of the said reply filed as Exh.P.10, the plaintiff had stated that he is a shareholder/ member of the defendant Society vide receipt No,NM8166 and in paragraph 6 of Exh.P.10 the plaintiff claims that he is an employee of the Federal Government and registered member of the defendant No,1 Society.
11. Thus, from the contents of the aforesaid exhibits it is evident that in order to demonstrate his qualification for allotment, the plaintiff initially claimed to be a member of the defendant No,1 Society as well as an employee of the Federal Government. However, in Exh.P.11 which is legal notice dated 4-10-1980 served by the plaintiff upon the Registrar of Cooperative Societies under section 70 of the Cooperative Societies Act, 1925, the plaintiff's counsel in paragraph 8 retracted from plaintiffs stated position when he stated as follows:-- "Our client submits that rules and regulations of the Society do not apply to our client. In the facts and circumstances of the case the rights and liabilities of the parties are governed by the contract concluded and recorded in the sub-lease."
12. Exh.P.12 is the order dated 25-2-1981 passed by the nominee of the Registrar Cooperative Societies on plaintiff's application seeking permission for withdrawal of his case from the Registrar Cooperative Societies on ground that the plaintiff is not a member of the defendant Society. Thus, the plaintiff withdrew his case from the Registrar, after changing his initial position that he is member of the Society and employee of the Federal Government to that of a non-member seeking his remedy under an ordinary contract for the purchase of a plot in the present suit, which he had already filed on 11-10-1980 in this Court.
13. In order to justify allotment of plot in defendant No,1 Society to a non-member, the plaintiff in the plaint took the plea that as defendant No,1 Society allots plots to non-members as well, he was offered the said plot by the then Administrator of the defendant No,1 Society on 11-8-1973, which offer he accepted and therefore, a binding contract came into existence.
14. From the documents which the plaintiff produced in evidence it is evident that initially the plaintiff showed his entitlement to the said plot on the basis that he was an employee of the Federal Government as well as member and shareholder of the defendant No,1 Society. Then suddenly while proceedings before the Registrar, Cooperative Societies were pending, the plaintiff changed his stance and shifted the entire basis of his claim to that of a non-member i,e, an outsider entering into a
15. contract of purchase with the Administrator of defendant No,1 Society. Thus, the plaintiff's claim in the present suit diametrically changed from the one he initially set up in Exh.P.10 before the Registrar Cooperative Societies.
16. To seek a lawful allotment of a residential plot in defendant No,1 Society a person must possess two basic qualifications. He must be an employee of Federal Government and must be a member/shareholder of the defendant No,1 Society. These qualifications are clearly spelt out in the Licence Agreement and byelaws of defendant No,1 Society as referred above. Thus, it was the proof of these two qualifications, which alone would have entitled the plaintiff to seek allotment in his name. Not only that the plaintiff admittedly did not possess these qualifications, he himself destroyed his own stand of being a member of the Society to that of a non-member who has simply entered into a contract with the defendant No,1 Society. When one stand is taken at one point of time and a different stand at another, and both stands do not reconcile with each other, then this act by itself lead to the presumption that such person does not have a genuine cause of action. The conflicting stands amount to destroying ones own cause of action and, therefore, the entire foundation of plaintiff's claim is to be treated as false.
17. One can hardly imagine that plaintiff led the Administrator, Mr. Rajper to believe that the plaintiff is a member and employee of the Federal Government and the Administrator was so nave that he believed him without caring to confirm the same from the records of defendant No,1 Society. Nor one can believe that the Administrator considered himself to be empowered enough to allot residential plots even to nonmembers. The Administrator, who heads the Society is not expected to be ignorant of the fact that the plaintiff was not a member of the Society nor he was ignorant of the scope of his authority to make allotments of residential plots. He however, abused his power as if he was made a manager of a Utility Store by the Federal Goverm-nent where he was selling groceries to whomsoever stepped into the store. None of the two documents i,e, Licence Agreement and the bye-laws permit the defendants No,1 Society to make allotment of a residential plot to a person who is not an employee of the Federal Government and who is not a member/shareholder of the Society. When powers of a public functionary are circumscribed by a written document then such powers are to be exercised strictly within the four corners of the prescribed limits. No public functionary who is entrusted with the duty of dealing with Government property should consider himself-to be possessed with unfettered or unregulated powers to be used or abused in disregard of the prescribed limits. In the present case Mr. Rajper clearly travelled beyond the scope of his authority and misconducted himself while allotting the said plot to the plaintiff. It was a clear case of dishonesty and abuse of power on his part.
17. There is no denying the fact that a non-member, who is not an employee of a Federal Government may purchase a plot from an allottee but a non-member cannot seek allotment in his favour on the basis that he has entered into a simple contract of purchase of a plot with the defendant No,1 Society. The right to seek allotment is restricted and is available only to such person who is an employee of the Federal Government and has become member/shareholder of the defendant No,1 Society. I, therefore, answer issues Nos,1, 4 and 6 in the negative.
Issue No,2: Whether the plaintiff was put in possession of the plot in part performance of the contract?
18. The plaintiff claims that first sub-licence was executed in his favour, then possession of the plot was given to him and then allotment letter was issued to him. Normally, the first step is of allotment, then it is followed by possession and then by execution of sub-licence. In the present case, the plaintiff has claimed all these three steps in reverse order. Furthermore, the claim of the plaintiff that he was given physical possession of the plot is belied by the fact that no proof of demarcation of the plot or any site plan of the plot was produced. In fact no demarcation of plot was carried out as has been claimed through Exh.P.2. In fact the plaintiff Advocate while cross- examining the defendant No,1 has himself suggested a question that layout plan of 13000 square yards of "Altaf Nursery" from which the said plot was carved out, was prepared as late as 1979 or 1981 and was answered by defendant No, l's witness as follows, "It is correct that the layout plan of the area of 13000 square yards of land was prepared in the year 1979/1981." Thus, where layout plan itself was prepared in 1979 or 1981 the question of demarcation of the said plot and its handing over to the plaintiff in 1973 did not arise. No doubt there can be a situation where plots could be allotted prior to the preparation of layout plan but one cannot think of a situation where prior to the preparation of layout plan of the area of which a plot is part of, the physical possession of such plot is handed over to an allottee. When admittedly the layout plan was prepared in 1981, one can hardly imagine that the physical possession of the said plot was handed over to the plaintiff as attempted through the production of Exh.P.2. This clearly proves dishonesty even in the matter of handing over possession of the said plot. Thus, entire process of allotment of the said plot in favour of the plaintiff was based upon falsity and deceit completed with undue haste. The plaintiff has, therefore, also failed to prove that the physical possession of the said plot was in fact handed over to him in 1973. The issue No,2 is also answered in the negative.
Issue No,6: Whether the plaintiff is entitled to specific performance of contract of sub-licence?
19. Upon determination of the above issues it has become evident that Administrator of defendant No,1 Society was not authorized to execute sub-licence in favour of the plaintiff and the same is declared to be invalid. Therefore, this issue is also answered in the negative.
20. In view of the findings on above discussed issues no other issue needs to be decided for resolving the controversy involved in the present suit.
21. From the above discussion it is evident that plaintiff was not qualified to seek allotment of a plot of land in the defendant No,1 Society. The entire process of allotment and execution of sub-licence in his favour was invalid being violative of Licence Agreement dated 6-8-1958 and bye-laws of the defendant No,1 Society. This suit is therefore, dismissed with costs.