' ANWAR ZAHEER JAMALI, J.--- The appellant Defence Housing Authority, Karachi has preferred this appeal against the judgment and decree, dated 4-2-2002 and 11-2-2002 respectively, passed, by the learned Single Judge of this Court, in Suit No,805 of 1991, whereby such suit was decreed.
2. In brief, the facts relevant for disposal of this appeal are that in respect of Plot bearing No,70/C, Al-Murtaza Commercial Lane No,3, Phase VIII, Defence Housing Authority, Karachi, admeasuring 200 sq. Yds. (hereinafter referred to as the "suit plot") the predecessor-in-interest of the respondents, had filed the above referred suit for declaration and injunction against the appellant on 24th July, 1991, wherein he had stated that from 1949 to 1952 he was the Joint Financial Advisor to the Army posted at General Headquarters Rawalpindi and in this capacity he became eligible for the membership of the predecessor-in-interest of the appellant, i,e, The Pakistan Defence Officers'
Cooperative Housing Society Ltd., (hereinafter referred to as the "Society"). In the year 1963, he applied for the membership of the Society which was accorded to him and he became a duly registered member of the Society in category "A". The respondents' predecessor was accordingly issued three shares of hundred rupees each bearing share certificate No,1614. On the application of predecessor-in-interest of the respondents, the Secretary of the Society, vide letter dated 23rd August, 1975, informed him that the ballot for the allotment of commercial plots would be held on 31-8-1975 and subsequently, vide letter dated 6th November, 1975, the predecessor-in-interest of the respondents was informed by the Secretary of the Society about the allotment of the suit plot to him and he was required to make payment of Rs,1,445 as its dues. The payment of such dues was made to the Society accordingly and receipt was issued on 7th April, 1976. In addition to it, the predecessor-in-interest of the respondents was also allotted a residential plot of 2000 sq. Yds. On Sunset Boulevard and also a flat in Seaview Apartments as his membership of the Society was never subject to any doubt.
3. Subsequently, by President's Order No,7 of 1980 the Management of the then Pakistan Defence Officers' Cooperative Housing Society Limited was taken over by the Managing/Executive Committee of the statutory body established under the Presidential Order and upon the dissolution of old society, all assets, rights, powers, authorities and privileges and all properties movable and immovable and all other interests and rights in or arising out of such properties and all liabilities and obligations of whatsoever kind of society stood transferred and vested with the appellant. On 24th April, 1990, predecessor-in-interest of the respondents to his utter surprise received a show- cause notice dated 24th April, 1990 from the appellant wherein he was informed by them that he was not eligible to become member of the Society under the Bye-laws and that the allotment of the suit plot to him was, therefore, liable to cancellation by the Executive Board of the appellant, under Article 17 of the President's Order No,7 of 1980.
4. After the submission of reply dated 13-5-1990, on 18th July, 1990, the predecessor-in-interest of the respondents was informed, vide letter, dated 10th March, 1991 that the Executive Board of the appellant had examined his case as regards the suit plot and found him not eligible for allotment of the said commercial plot which was, therefore, cancelled. Thereafter on 10th April, 1991 the appellant addressed another letter to the predecessor-in-interest of the respondents informing him for refund of Rs,10,570 by cheque dated 3rd April, 1991, which was, however, not encashed by him. The above action on the part of the appellant had given cause of grievance to the predecessor-ininterest of the respondents for institution of the suit with the following prayers:-- "(a) Declare that the plaintiff is the lawful and bona fide allottee of Plot bearing No,70/C, measuring 200 square yards, situated on Al-Murtaza Commercial Lane No,3, Phase VIII, Defence Housing Authority, Karachi and that cancellation of the allotment by the defendant is invalid and without lawful authority and of no consequence, and that any subsequent allotment to any other person is also illegal, invalid and of no legal effect.
(b) Prohibit and restrain the defendant from dispossessing the plaintiff and/or his successors-in- interest from the said plot, and from transferring or handing over possession of the said plot to any other person.
(c) Grant such other or further relief or make such other or further order or issue such directions as may be deemed expedient and necessary in the circumstances of the case.
(d) Grant costs."
5. Due to the death of Mr. Wazir Ali, the original plaintiff in the suit, on 18-1-1993 his legal heirs/respondents were brought on record, who thereafter pursued and contested the matter.
6. In denial of the claim of the respondents' predecessor, written statement was filed by the appellant wherein Bye-law No,7 of the Society framed in the year 1972, was strongly relied upon and it was contended that in none of the three clauses specified in the Bye-law No,7, Mr. Wazir Ali, the predecessor-in-interest of the respondents, was eligible either for the grant of membership of the Society or allotment of suit plot, thus, on promulgation of the President's Order No,7 of 1980; the Managing Committee of the Society has rightly cancelled the allotment of suit plot in favour of Mr, Wazir Ali, order of which was duly communicated to him, vide letter dated 10-3-1991 and a cheque for the refund of the payment made by him was also sent to him in the month of March, 1991.
7. Upon such pleadings of the parties, following issues were framed in the suit, whereafter evidence of the parties was recorded on commission notified by the Court:- "(1) Whether the plaintiff was eligible for the membership of the then Pakistan Defence Officers Housing Society Ltd.?
(2) Whether the plaintiff was registered as member of Pakistan Defence Officers Housing Society Ltd, in contravention of its bye-laws?
(3) Whether the allotment of suit plot was illegally made in favour of the plaintiff?
(4) Whether the allotment of suit plot to the plaintiff was made by a resolution of the Managing Committee of the then Pakistan Defence Officers Cooperative Housing Society Ltd.?
(5) Whether the payments made by the plaintiff in respect of suit plot were accepted by the defendant?
(6) Whether the Executive Board of the defendant is competent to cancel the allotment of suit plot?
(7) What should be the decree?"
8. Learned Single Judge after hearing the arguments of the parties' counsel, answered Issues Nos.1 to 5 in the affirmative and Issue No,6 in the negative and consequently the suit of the predecessor- in-interest of the respondents was decreed as prayed with costs.
9. Mr. Munawar Malik, learned counsel for the appellant, while arguing this appeal, again made reference to Bye-law No,7 of the Society framed in the year 1972 and Article 17(h) of the President's Order No,7 of 1980.
10. Relying upon the above Bye-law and the Article of the statute, Mr. Munawar Malik vehemently contended that since the predecessor-ininterest of the respondents/plaintiff was not qualified under any of the three categories provided in Bye-law No,7 of the Society, therefore, the grant of membership to him and allotment of suit plot in his favour was entirely illegal and rightly cancelled by the Executive Board of the appellant in accordance with law, after service of show-cause notice and due opportunity of hearing to the predecessor-in-interest of the respondents.
11. As against it, Mr. Javed Mir vehemently contended that even if it is presumed that at the relevant time on the basis of his past service as Joint Financial Advisor to the Army posted at General Headquarters Rawalpindi during the period of 1949 to 1952, plaintiff Wazir Ali was not entitled for grant of membership of the Society or allotment of suit plot in his favour, even then his case was fully covered by Bye-law No,8 which was an independent enabling bye-law for exercise of powers by the Managing Committee for grant of membership as well as allotment of plot to certain individuals, whose cases were otherwise not covered by Bye-law No,7 (ibid). In support of his arguments that in such circumstances grant of membership and allotment of suit plot to Mr. Wazir Ali was fully justified, he placed reliance upon the following eases:-
(1) 2r. Syed Tariq Sohail and another v. Pakistan Defence Officers' Housing Authority 2001 YLR 1193,
(2) Pakistan Defence Officers' Housing Authority, Karachi v Shamim Khan and 5 others PLD 2005 SC 792 and (3) Pakistan Defence Officers' Housing Authority Karachi v. Munir Ahmed Ghulam Mustafa Akhtar 2006 SCM R 178.
12. Mr. Javed Mir further contended that it is an admitted position that till the death of Mr. Wazir All in the year 1993, his membership of the Society/appellant was not revoked/cancelled by the appellant, therefore, the whole exercise of cancellation of allotment of suit plot was illegal. He further contended that admittedly besides allotment of suit plot, the respondents' predecessor was also allotted 2000 sq. Yds. Residential plot on Sunset Boulevard and a flat in Seaview Apartments, but throughout his entitlement in respect of these properties remained intact, which indicates an inconsistent policy of pick and choose adopted by the appellant. In this context, he made specific reference to the observations of the Honourable Supreme Court of Pakistan in the case of Pakistan Defence Officers' Housing Authority Karachi v. Shamim Khan (supra) where such practice was strongly disapproved by the Honourable Supreme Court of Pakistan.
13. In his reply arguments, Mr. Munawar Malik placed on record a photostat copy of judgment of the Honourable Supreme Court of Pakistan in the case of Mustafa Lakhani v. Pakistan Defence Officers'
Housing Authority, Karachi (Civil Petition No,631/K of 2004), dated 1-11-2004 to show that the action of the Managing Board of the appellant, regarding cancellation of fraudulent allotment of the plot in favour of the petitioner in that case by the then Society, by invoking its powers under proviso (i) of Article 17(h) of the President's Order No,7 of 1980, was upheld by the Honourable Supreme Court of Pakistan.
14. We have carefully considered the arguments advanced by the learned counsel and perused the material placed on record as well as R&Ps of the suit file.
15. In order to properly evaluate the submissions of the learned counsel for the parties, it will be advantageous to reproduce hereunder the relevant Bye-laws of the Society framed in the year 1972, viz. Bye-laws Nos.7 and 8 and also Article 17(h) of the President's Order No,7 of 1980 which read thus:-- "Bye-Law No,7: The membership of the Society will be confined to the following.--- (i) Officers of the Pakistan Armed Forces and Civilian Officers paid from the Defence Services Estimates.
(ii) Officers of the Armed Forces who have been released either in Pakistan or pre-partitioned India and who have subsequently acquired Pakistan Nationality.
(iii) Certain Officers working in the Military of Defence/Military Finance, at the discretion of the Managing Committee. This does not include organizations working under Ministry of Defence, e.g. P.I.A., Shipyard etc.,
(iv) The staff not covered by sub-paragraphs (i) and (ii) above employed by the Society whose minimum salary is 750 p.m. And have worked with the Society for a minimum period of 10 years.
(v) The allotment of plots shall always be through open ballot and the procedure of balloting shall be the most equitable based on principles of first come first served except those placed at the disposal of Commanders-in-Chief of three services. The discretion for out of turn and special allotment will be with the President of the Society.
' All persons who have signed the application for registration and are qualified to be members under this bye-law are the original members. All such members, however, must comply with Bye- law No,10 before becoming eligible for allotment of land in the Society. Preference will be given to those who have not been allotted land anywhere in Pakistan and do not possess a house."
' Bye-Law No,8. Notwithstanding anything contained in Bye-Law No,7 associate membership of the Society without right of vote or the privilege of full membership may be granted at the discretion of the Managing Committee to the following categories of persons:---
(1) Persons not otherwise eligible under Bye-Law No,7 in whose favour due to special circumstances and for special reasons allotment has been made by the Managing Committee, or otherwise.
(2) Non-Members who through the normal operation of the Transfer of Property Act and law of succession etc. Have acquired ownership of the properties in the Society area through sale, mortgage, assignment and gift etc."
17(h) of President's Order: "all allotments and transfers of plots, whether residential, commercial or otherwise, made by the Society before such dissolution shall be deemed to be allotments and transfers made by the Authority: Provided that the Executive Board may--
(i) cancel such allotments which were made or issued in contravention of the Bye-Laws of the Society or the resolution of the Managing Committee of the Society;
(ii) alter the area of any plot involving duplicate allotments and reallot the same in such manner as it may consider appropriate; and
(iii) pass such orders in respect of transfer of plots involving duplicate allotments as it may deem fit."
16. A plain reading of Bye-law No,7 of the Society goes to show that the grant of membership of the Society was confined to three categories specified in the said bye-law. As against it, Bye-law No,8 which starts with non-obstinate clause, viz. Notwithstanding anything .Contained in Bye-law No,7, provides that associate membership of the Society may be granted at the discretion of the Managing Committee to the categories of persons as categorized in sub-Bye-law Nos.(i) and (ii) of Bye-law No,8. It further postulates that the, persons not otherwise eligible under Bye-law No,7 for membership were entitled for membership where in special circumstances and for special reasons allotment was made in their favour by the Managing Committee or otherwise. Thus, a combined reading of the two bye-laws reproduced above, goes to show that even the persons, whose cases for grant of membership of the Society, were not covered by By-law No,7 could have been granted such membership under special circumstances and for special reasons by the Managing Committee of the Society. In other words, the powers of the Managing Committee of the Society for grant of associate membership and allotment of plot, were not restricted/ confined to Bye-law No,7 but under special circumstances and for A special reasons. Irrespective of the limitations provided under Byelaw No,7 such powers Could have been exercised by the Society in individual cases.
17. In the present case, the facts stated by the predecessor-in-interest of the respondents in the plaint have not been disputed by the appellant in their written statement filed in the suit on 22-1- 1992 but the only justification offered for the cancellation of allotment of the suit plot by the Executive Board formed under President's Order No,7 of 1980 is the violation of Bye-law No,7 of the Society in according membership to Wazir Ali and allotment of suit plot. Admittedly, the suit plot was allotted to the predecessor-in-interest of the respondents in the secret balloting held by the Society on 31st August, 1975 and he was accordingly informed by the Secretary of the Society on 6th November, 1975; which enabled him to make the payment of dues of the plot allotted to him.
Thus, due to the allotment of plot to Wazir All in a secret ballot and payment of its dues by him as far back as in the year 1976, no underhand practice, collusion or mala fide intention can be attributed to him. Moreover, Bye-law No,8 of the Society had conferred full authority upon the Managing Committee of the Society to accord membership to any individual in special circumstances and for special reasons, notwithstanding the limitations imposed by Bye-law No,7 in this regard. The question, whether there were special circumstances and special reasons for according membership to Mr. Wazir Ali and allotment of suit plot to him, were the matter of opinion/discretion with the Managing Committee of the Society, thus, on this account, such issue could not have been reopened/re-examined/scrutinized by the Managing Board of the appellant formed under President's Order No,7 of 1980 after lapse of over fourteen years.
18. The facts discussed above, therefore, clearly indicate that the whole action of the appellant challenged in the suit by the predecessor-in-interest of the respondents was illegal and rightly undone by the learned Single Judge by way of passing of impugned judgment and decree in favour of the respondent.
19. The review of case-law cited at the bar would show that the learned Single Judge of this Court in the case of Dr. Syed Tariq Sohail (supra), while dealing with the issue of grant or otherwise of application under Order XXXIX rules 1 and 2, C.P.C. Read with sections 94 and 151, C.P.C., had taken pains to review plethora of case-law relating to same controversy and has discussed the powers of the Managing Board of the appellant under President's Order No,7 of 1980 in the matter of cancellation of allotments of the plot earlier allotted by the Society.
20. In the case of Pakistan Defence Officers' Housing Authority Karachi v. Shamim Khan (supra) the learned Bench of the Honourable Supreme Court of Pakistan thoroughly discussed the impact of Bye-laws Nos.7 and 8 of the Society framed in the year 1972 vis-a-vis powers of the Managing Board of the appellant formed under President's Order No,7 of 1980, particularly with reference to Article 17(h), and concluded as under:- "(5). The respondent certainly not falling in any of the category of the persons mentioned in Bye- Law No,7, would not be entitled to become member of the Society but we find that Managing Committee of the Society under Bye-Law No,8 was empowered to grant associate membership of Society to a person who was allotted a plot in the Housing Scheme by the Competent Authority, despite the fact that he was not eligible under Byelaw No,7 to become member of the Society.
(6) It may be seen that unless it is specifically proved that allotment was unauthorized, the presumption would be that the respondent, who was not eligible to become member of Society under Byelaw No,7, was made associate member under Bye-law No,8 of the Bye-Laws of Society and was validly allotted the plot in its Housing Scheme. Be that as it may, the real question for determination would be as to whether DHA in exercise of its powers under Article 17(i) of P.O. No,7 of 1980 could competently cancel the allotment of the plot made by the dissolved Society. Under clause (h) of Article 17 supra, all allotments made by the Society were deemed to be made validly and only in a case in which allotment was made in contravention of the Bye-laws, the appellant in exercise of power under sub-Article (i) of Article 17 was authorized to cancel the allotment.
' The Defence Housing Authority in exercise of its powers under Article 7(i) ibid, could certainly cancel an allotment made in contravention of the Bye-laws of dissolved Society but the Authority would have no inherent power to re-open a case and cancel the allotment in its discretion. The Authority, without ascertaining the correct factual position regarding the exercise of power by the Managing Committee of the dissolved Society and the circumstances under which allotment was made in the name of respondent, proceeded to cancel the same treating it a case under Bye-law No,7 of the Bye-laws of Society. Learned counsel for the appellant when confronted that in similar circumstances, in the case of Muhammad Rafiq, the Authority having taken a different view, regularized his allotment, he conceded that respondent stood at par to regularized for the consideration that he had already constructed the house. We are afraid, the learned counsel has not been able to satisfy us that the above consideration, would not lead to an inference of discrimination so far as the question of eligibility under the Bye-laws of the Society was concerned and we having considered the matter, have not been able to find, out any distinction in the case of respondent to be public functionary while discharging its affairs concerning with the valuable rights of the people, is not supposed to proceed in its entire discretion or in a discriminatory manner on the basis of policy of pick and choose which has no recognition in- law. We agree with the learned counsel for the appellant that in case of controversial questions of facts requiring adjudication on the basis of evidence, the High Court should not interfere in its Constitutional jurisdiction but in the present case, we find that material facts were admitted by the appellant and the High Court, after satisfying the requirement of law, interfered in the matter.
21. In the case of Pakistan Defence Officers' Housing Authority, Karachi v. Munir Ahmed Ghulam Mustafa Akhtar (supra) the Honourable Supreme Court of Pakistan again examined in detail the powers of the Managing Board of the appellant conferred by Article 17 of the President's Order No,7 of 1980 and observed as under:-
6. Adverting to the proviso to Article 17 of the President's Order No,7 of 1980, it may he pertinent to note that the proviso no doubt authorises Executive Board of the Authority to cancel allotment of a plot, which was made or issued in contravention of the Bye-laws of the Society or resolution of the Managing Committee of the Society. Evidently, the petitioner failed to point out such contravention in the matter of allotment of commercial plot in favour of the respondent as admittedly commercial plot was allotted to him in consonance with the Regulations of the Authority and as a member duly enrolled with the Authority on account of his old membership with the erstwhile Society irrespective of the fact that at the time of actual allotment he was no longer working in Military Accounts Service and was posted by the Federal Government as Chairman, P.I.D.C. Since the membership of the respondent stood intact, there was hardly any question of cancellation of his allotment. A valuable right and interest had already accrued in his favour and he did not cease to be the member of the Authority, as wrongly erroneously misunderstood by the officials of the Authority. Indeed the allotment of commercial plot in his favour, after full payment had attained finality. It being a past and closed transaction could not be reopened on imaginary and elusive consideration that at the time of allotment, he was not physically serving in Military Accounts Service and not receiving his emoluments from Defence budget/estimates. In law, right accrued in favour of a person cannot be disturbed and destroyed by subsequent developments and once a person continues to be a lawful member of a Society or the Authority, he does not lose his right and interest in the property already accrued to him. Indeed there was no contravention of the bye-laws of the Society or the resolution of the Managing Committee because the allotment in favour of the respondent took place long after the creation of the petitioner-Authority in normal course of business in a fair and transparent manner. Such allotment had the blessings of Executive Committee and doctrine of Promissory estoppel would be pressed into service against the petitioner-Authority.
' Colourable exercise of power on the part of the Executive Board, therefore, suffers from patent illegality, and was rightly declared as such by the High Court in the exercise of its constitutional jurisdiction. In our considered opinion, the jurisdiction exercised by the High. Court within the contemplation of Article 199 of the Constitution does not suffer from any legal or factual infirmity so as to warrant an interference by this Court in the exercise of extraordinary constitutional jurisdiction. In any event, no question of law of public importance is spelt out in the circumstances.
Resultantly, we are constrained to dismiss this petition with no order as to costs. Leave to appeal is, therefore, declined."
22. In the case of Mustafa Lakhani (supra) referred by Mr. Munawar Malik, it was noticed by the Bench of the Honourable Supreme Court of Pakistan that upon factual enquiry ordered by the High Court by way of remand order dated 3-7-1994 it was found that "A" lease claimed by the petitioner was fraudulent, bogus, illegal and it was done with mala fide intention by the then Secretary of the Society, who was found to be involved in a large number of cases of fraudulent, bogus and illegal allotments in favour of several persons including the petitioner. It was in such factual background of the case that the order of the Managing Board of the appellant passed in exercise of powers under Article 17(h) of the President's Order No,7 of 1980, which was earlier sustained by the High Court, was maintained by the Honourable Supreme Court and consequently the petition for leave to appeal was dismissed.
23. From the above discussion, it is evident that the conclusion recorded by the learned Single Judge on various issues framed in the suit is correct and in line with the ratio of two judgments of the Honourable Supreme Court referred by Mr. Javed Mir Advocate. C Therefore, the impugned judgment and decree call for no interference in this appeal. Foregoing are the reasons for our short order passed today in this appeal, whereby it was dismissed with costs.