' SH. ABDUL RASHID, J.---This judgment will dispose of Writ Petition No,6469 of 2005 filed by Dr. Seema Malik petitioner and Writ Petition No,6470 of 2005 filed by Dr. Abdul Saboor Malik petitioner as the common questions of law and fact arise therein.
2. The facts in both the petitions are that respondents No,2 (The Planning & Development Department Employees Cooperative Housing Society) offered plots to be purchased by the interested employees. The petitioners having accepted the offer paid the initial amount of Rs,30,000 each as first instalment and Dr. Seama Malik petitioner was allotted a plot measuring 375 Sq. Yards bearing No,67 in A-I, Block of the respondent-Society vide its letter dated 15-7-1996 whereas Dr. Abdul Saboor Malik petitioner was allotted a plot measuring 750 Sq. Yards bearing No,281, B-II, Block of the respondent-Society vide its letter dated 15-8-1996. The process of the development of the respondent-Society got delayed and transfer of the plots allotted to the petitioners could not take place and the newly elected Management Committee tried to expedite the process of development of the Society and issued letters dated 7-3-2000 to the petitioners requiring them to make payment of the arrears, if any, by 15-4-2000 whereupon the petitioner paid all the dues in time and had never defaulted. Thereafter the petitioners approached the respondent-Society for making payment of final instalment but they were informed that there were some dual allotments of the subject plots, therefore, the respondent-Society refused to accept the payment of final instalment from the petitioners without any notice necessitating the filing of the above referred writ petitions.
3. The respondent-Society vehemently contested the maintainability of these petitions on the plea that in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 a writ petition is maintainable against a person performing functions in connection with the affairs of the Federation or Province; that the respondent-Society is not a person performing such functions; that neither it is a state instrumentality nor an agency or an statutory body; that it is a private association of persons registered under the law which has framed its own charter Bye Laws and is being managed by a committee, office-bearers whereof are elected by the general members of the society; that the respondents'-Society has been registered under the Act of 1925 which is a complete code and the same provides efficacious alternate remedy for resolution of the dispute between the members and the Society under section 4 of the Act of 1925; the office of the Registrar Society has been created under section 54 of the Act of 1925; the Registrar has the authority to hear and decide disputes between the members and the Society and under section 56 read with section 64 of the Act 1925 appeals can be filed against the decision of the Registrar to the Secretary Cooperatives and the petitioners thus can have recourse to the said remedies.
4. During the course of hearing of these petitions in the light of arguments advanced by the parties' counsel the following issues have arisen which require determination:--
(i) Can a writ be issued to the respondent-Cooperative Society?
(ii) Can the respondent-Society be treated as a person performing functions in connection with the affairs of a province or a local authority?
(iii) Has the reference to arbitration of disputes provided by section 54 of the Cooperative Societies Act not an alternative remedy which has not been utilized and for which reason no writ can be issued?
(iv) Are the petitioners not entitled to a writ annulling the refusal to accept the payment of final instalment and directing the respondent-Society to accept the final instalment and complete the sale transaction of plots in favour of the petitioners?
5. The respondent No,3 society by its format, Membership and Management Committee is an instrumentality of the Government of the Punjab to make provisions for Housing for employees in the particular department. Thus the format of the Cooperative Society has been used by the Punjab Government to conduct its affairs i.e, provision of facility for Government employees. In this case the entitlement of a department employees to obtain housing facility is not the relevant issue which on the other hand is as to whether or not the Cooperative Society set up by the department which admittedly is a corporate personality is to be treated as a person performing functions in connection with the affairs of the Province. The plea on the point is that provision of facilities by the concerned department is to be treated as an affair of the Province, in order to achieve the said object the Punjab Government had considered it expedient to utilize the format of the Cooperative Society. In this view of the matter the focus is not on the character of the instrumentality created by the Punjab Government, on the other hand, it is on the decision of the Punjab Government to provide Housing Facilities to the employees of a specific department and thus it cannot be argued that the decision to provide such facility is not the affair of the province. It is to be noted that the Government employees have not come together in their private capacity to set up a Cooperative Society. Had this been so a corporate person so established could not be treated as a person performing the functions in connection with the affairs of the Province. However, the distinguishing feature in this case is that the membership of the Cooperative Society is restricted to employee who are either serving or have served in the Planning and Development Department. As is manifested from Bye-law No,11 it shall be seen that the membership of the respondent-Society is confined to the employees of the P & D Department and its attached departments who are serving or retired as also such employees who had served in this department or its attached department for a period of one year in the past. The Bye-law 8(c) contemplates recruitment of such other members who are assessed to be useful by the Management Committee. The Bye-law 8 is to be read in conjunction with Bye-law No,11, which prescribes the quantities of shares to be held by each employee commensurate with the level in the basic pay scale. It shall be seen that BPS 1 to 5 are entitled to 2 shares as against employees in BPS 19 and above, who are entitled to 10 shares. From the joint reading of the said two Bye-laws it is quite, clear that the Punjab Government had made arrangement for its own employees on the basis of Basic Pay Scale which has been regulated to such an extent that amount of share has been prescribed commensurate with the level of the employees in the Government service pay scale. This being so there is no doubt whatsoever that the Cooperative Society respondent No,3 is not the product of consensus of the employees of P & D Department in their individual or private capacity. On the other hand, it is essentially an instrumentality of the Punjab Government to provide relief to its employees in a manner strictly regulated by it. Furthermore, Bye-law No,40(a) prescribed that Circle Registrar Cooperative Societies Lahore is to be an Ex-Officio Member of the Management Committee, which has been divided into two categories. In one category it is Circle Registrar alone while the other category comprised of elected office-bearers. Obviously Circle Registrar is a functionary of the Punjab Government. The assignment of role to a Government functionary by reference to his office is an indication that the respondent-Society has not been set up to operate as an ordinary Cooperative Society which is the product of consensus among the members. It is this feature which by itself is sufficient to establish that the character of the corporate body is that of an instrument of the Government of Punjab to achieve the object of housing facility for restricted category of its employee i.e, employees of P & D and its attached departments.
6. The inclusion of Circle Registrar as Ex-Officio Member of the respondent-Cooperative Society is to exclude the application of section 54 of the Cooperative Society Act 1925 by virtue of which disputes touching the business of the society between the members and the society are to be referred to the Registrar. It shall be seen that in a situation where an officer who under the normal law is to be the Arbitrator in terms of an ordinary society, has been deliberately planted in the Management Committee, the possibility of a fair arbitration stands excluded. This feature of the Society is pressed into service to reinforce the plea that the object of utilizing the format of respondent-Society was not to create the type of society contemplated by the relevant statute. On the other hand, the very arbitrator created by the special statute has been implanted as a member of the Management Committee. The intention in doing so is to exclude the operation of section 54 of the Cooperative Societies Act to the disputes arising in relation to it and this feature of the Registrar Cooperative Society being a member of Management Committee of the respondent No,3 has ipso facto, destroyed the alternate remedy which even otherwise would have been available to a Cooperative Society which did not partake of the character of instrumentality of respondent No,3. Thus where Registrar is an Ex-Officio Member of the Management Committee of the respondent No,3 society, there is no point in seeking relief from the hierarchy of the Cooperative Societies Act. Thus for all practical purposes no alternate remedy was available to the petitioners and the present writ petitions are maintainable.
7. The petitioners are lawful allottees and bona fide purchasers of the abovementioned two plots.
They were duly allotted the said plots and in consideration thereof all requisite instalments were also deposited with the respondent-Society. The dispute only arose as the deposit of final installments was declined by the respondents on a pretext and self claimed account of dual allotment of the said plots.
8. It is to be noticed that should there have been any previous allotment of the plots in question the same stood cancelled by the respondent-Society itself as reflected from the inspection of the relevant record maintained by the respondents. The allotments made in favour of the petitioners were only subsequent to any earlier allotment since cancelled and, hence, can be construed to be a valid one, for all practical purposes, at all material times. In this backdrop the refusal on the part of the respondents in accepting deposit of final installment offered by the petitioners is an example of arbitrary administration of the societ's affairs not warranted under the law.
9. It is pertinent to note that the respondents never bothered to notify any such controversy to the petitioners which also resulted in negation of their legitimate claim in lieu of securing title and possession of the plots in question. The course of allotment followed by transaction of purchase of the subject plots remained inconsonance with the Bye-laws of the respondent-Society and, therefore, is not liable to be declined having already given rise to lawful rights of the petitioners, which are now enforceable by issuance of writ. The respondents after having accepted partial payments are obliged to complete the transaction rather than inflicting legal inquiry to the accrued rights of the petitioners who cannot be penalized for any fault committed by the Society itself. It is a apparent from the record that the earlier allotments of the subject plots were duly cancelled in accordance with the Bye-laws and the same were subsequently allotted to the petitioners who deposited all the installments which the Society accepted and now only final instalments is to be received which the Society cannot decline to accept. Therefore, by accepting these petitions the respondent-Society is directed to accept the final installments in respect of Plot No,67 in A-I Block allotted to Dr. Seema Malik and Plot No,281 in B-II, Block allotted to Dr. Abdul Saboor Malik petitioner situate in Planning and Development Department Employees Cooperative Housing Society Lahore and to confirm the sale of the said plots and execute sale-deeds in favour of the petitioners in accordance with its Bye-laws and the Society is further restrained from taking any step or passing any order adverse to the interest of the petitioners.