' MUSHIR ALAM, J.---M.I.T. Report dated 10-10-2003 has come up for consideration. Along with the report, decision of the Sub-Committee as approved by the Managing Committee of the PECH Society dated 1-10-2003, has also been filed. Objections have been filed by the petitioner Ageela Begum. Decision of the Managing Committee of the Society and the objections of the petitioners in both the petitions were heard at length.
' The petitioner Mst. Aqila begum in C.P. No,D-1662 of 1999 and Tanveer Afzal through one Rashid Masood in C.P. No,D-1480 of 1999, both the petitioners claimed their rights and titles over Plot No,68/1-F, measuring 200 square yards in Block No,6, PECHS Karachi. They have impugned the Memorandum, dated _14-8-1999 issued by Pakistan Employee. Cooperative Housing Society Ltd., PECHS, Karachi, whereby the allotment of the subject plot was cancelled.
' It seems that earlier also, the parties had impugned the cancellation of plot in C.P.D-57 of 1989, which is the foundation of instant proceedings. The learned Division Bench passed the following order in C.P. No,D-57 of 1989 on 28-11-1989:- "In our view, the present petition may also be disposed of on the same terms and conditions except with the additional condition, namely, that the PECH Society will also decide the question, whether the respondent No,4 (i,e, Rashid Masood) is entitled to retain the plot or the plot is to be given to the petitioner in case it is held that the cancellation of the allotment was not covered by MLO-34. The other aforesaid conditions are as follows:--
(i) That both the parties shall maintain status quo as obtaining today, and
(ii) That respondent No,1 after hearing the petitioners will decide the question, whether the petitioners' cases were covered by the recommendation of the Enquiry Committee and, whether any action is warranted keeping in view the facts of the case and principles of nature justice.
(iii) The petitions stand disposed off with no order as to costs.
(Sd.) Ajmal Mian, Chief Justice (Sd.) Mukhtar Ahmed Junejo, Judge
2. It seems that PECH Society without hearing the affected parties allotted the plot to yet another claimant Khalil Ahmed, which order was impugned in the instant Petitions Nos.D-1662 of 1999 and D-1480 of 1999. This Court in consideration of dicta laid down in Muhammad Mushtaqeem Khan v.
PECHS Limited in CP No,D-902 of 1983 (unreported) and Pakistan Employees Cooperative Housing Society Ltd. Karachi v. Mst. Anwar Sultana and others PLD 1969 Kar. 474; wherein distinction between the person eligible to be a member of PECHS and being eligible to allotment was drawn. It was observed that under the byelaws of the Society there is no restriction that allotment of plot could not be made to a non-member of the society. In view of such dicta, while remanding the controversy back to the society it was observed as under:-- "Therefore, objections filed by the Society that allotment in favour of Mst. Aqila Begum's allotment merely on the ground that she is not a member of the Society cannot be sustained."
3. The Court further observed that through Memorandum 14-8-1999 the. PECH Society did not adhere to the direction contained in the remand order for hearing the parties. The PECH Society was directed to decide the controversy, in respect of subject plot, between both the petitioners after issuing notice to them in terms of remand order, already reproduced- above.
4. As regards Mst. Aqila Begum, it was opined as follows:-- "Mst. Aquila Begum is petitioner through her attorney, Mr. Aijaz-ul-Yaqeen, in C.P. No,1662 of 1999.
She is neither a member of the Society nor she was/is a Federal Government Employee. As such as per Bye-Laws of the PECHS and the Licence Agreement executed by the Federal Government neither she can become a member of the Society nor she is eligible for allotment of the plot in PECHS.
' As per conditions of the judgment in constitutional petitions Nos.57 of 1989 and 3-4 of 1985 though her case is not covered directly as the Martial Law Enquiry Committee had limited scope of enquiry but the spirit of the recommendations was that illegal allotments should not be allowed to continue. Allotment to Mst. Aquila Begum, in view of Bye-Laws and Licence Agreement was illegal.
' The second condition of the judgments is that "Whether any action is warranted keeping in view that facts of the case and the principles df natural justice". The Committee has consensus of the opinion that in view of facts of the case and principles of natural justice, plots in PECHS should be allotted strictly in accordance with the terms of License Agreement to the members of the Society on its roll and no non-member should be allotted plot by depriving the members of the Society. If allotment to non-member is legalized it will amount to opening a gate of irregularities. As such the Plot No,68-1-F, Block-6, PECHS, Karachi, should not be restored to Mst. Aquila Begum."
5. As regards petitioner Tanveer Afzal (in C.P. No,1480 of 1999), it was opined that "he is neither member of the PECHS nor is a Federal Government Employee. He claims to have been purchased the Plot No,68-1-F, Block No,6, PECHS, Karachi from Mr. Rashid Masood who was allotted the said plot. The plot of Mr. Rashid Masood was cancelled under the recommendation of Martial Law Enquiry in 1983. Whereas, Mr. Tanveer Afzal claims to have purchased Plot No,68-1-F, Block No,6, PECH Society from Mr. Rashid Masood. It was, concluded that no rights were conveyed to Tanveer Afzal.
6. In nutshell conclusion of the enquiry is that neither the petitioner Mst. Aqila Begum (in C.P. No,D- 1662 of 1999) nor, Tanveer Afzal (in C.P. No,D-1480 of 1999) are entitled for allotment of the subject plot.
7. Mr. H.A. Rehmani learned counsel for petitioner in C.P. No,D-1662 of 1999 filed objection to the compliance report filed by PECH Society on 1-10-2003. It was contended that the Society has travelled beyond the remand order, dated 28-11-1989. According to the learned counsel, the Society could not decide the eligibility or otherwise of the petitioner. It was contended that this Court in C.P.
No,D-1662 of 1999 decided the issue of eligibility. Mr. Rehmani relied on the judgment recorded in Muhammad Mushtaqeem Khan v. PECHS Limited in C.P. No,D-902 of 1983 (unreported) and PECH Society and Pakistan Employees Cooperative Housing Society Ltd. Karachi v. Mst. Anwar Sultana and others PLD 1969 Kar.
474. According to him, issue whether the petitioner Ageela Begum was member or otherwise of the Society cannot be reopened. According to Mr. Rehmani, the compliance report amounts to contempt and the PECH Society cannot from a different opinions than what has been formed by the Court of law; under given circumstances of the case. He has placed reliance on case cited as suo motu Revision No,1 of 2001 wherein Capital Development Authority deferred with interpretation placed by Honourable Supreme Court by using intemperate language. The Honourable Supreme Court deprecated such conduct, however, in view of the unconditional apology no action was taken.
8. Mr. Ali Mumtaz Shaikh learned counsel appearing for Tanveer Afzal the petitioner in C.P. No,D- 1480 of 1999, contended that petitioner Tanveer Afzal is not claiming the said plot directly but through member of Society Rashid Masood. According to him, the cancellation under MLO 34 was revoked on 24-12-1985, therefore, his case is on the better footings and is entitled for the subject plot, he being in possession of title documents. He stated that petitioner Mst. Aqila Begum does not even possess the basic eligibility to qualify for the purpose of allotment of the plot of the PECH Society directly.
9. Mr. Ali Muhammad Memon learned counsel for respondent No,3 Khalil Ahmed in C.P. No,D-1662 of 1999 contended that PECH Society has given its opinion and this Court can do nothing more, best course is to leave the parties to contest the claim in civil proceedings.
10. Mr. Saifuddin learned counsel for PECH Society contends that the allotment made in favour of Mst. Aqila Begum was result of favouritism. She was not an employee of the Federal Government, a condition produced or basic eligibility to become member of the society to be eligible to be allotted a plot in the PECH Society. Mr. Saifuddin learned counsel for the PECH Society, though conceded that her case was not covered under the Martial Law Enquiry Committee, but urge that the very foundation to be eligible for direct allotment of a residential plot was missing. Mr. Saifuddin, laid emphasis on the first remand order passed in C.P. No,D-57 of 1989, as reproduced above, to urge that remand order was wide in its scope. It was directed if case of petitioner is not covered by MLO 34 then other conditions are to be followed namely; (1) the petitioner shall be heard, (2) whether any action is warranted in view of the facts of the case and principles of natural justice.
11. Mr. Saifuddin, therefore, urged that under the Principal "licence agreement" between the Government of Pakistan and PECHS, any person who is not an employee of Federal Government could not be allotted any residential plot. He has drawn our attention to clause 1 of the Licence Agreement, which, inter alia, provides that the plot could be allotted to bona fide member on its roll in the manner approved by its Managing Committee. He has urged that the observation of this Court to the effect that "objection filed by the Society that allotment in favour of Mst. Aqila Begum cannot be refused merely on the ground that she is not a member cannot be sustained" was made on the basis of misreading of two judgments of the learned Division Bench of this Court, one in the case of Muhammad Mushtaqeem Khan v. PECHS Limited in C.P. No,D902 of 1983 (unreported) and PECH Society and Pakistan Employees Cooperative Housing Society Ltd. Karachi v. Mst. Anwar Sultana and others PLI) 1969 Kar.
474. It was urged that in both the cases Licence Agreement was not considered and in the case reported in PLD 1969 Kar. 474 it was not a case of residential plot. Mr. Saifuddin, relied upon recent pronouncement dated 8-12-2005 of learned Single Judge in Suit No,1228 of 1989 Dr. Aftab Shah v.
PECHS and others, in the referred case plaintiff claimed to have acquired allotment of residential plot on payment of valuable consideration. PECHS claimed that allotment was procured through collusion between the plaintiff and the then Administrator Mr. Rajper, evidence, was recorded. In paragraph 15 of the referred case 1L was held as follows:-- "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 plaintiffs claim is to be treated as false."
12. We have heard the learned counsel for the respective parties, perused the record and case-law cited at bar.
13. We have examined case reported in PLD 1969 Kar. 474, it was noted that indeed the case pertains to amenity Plot No,2 Block 2, PECH Society. We have also called for the file of C.P. No,D-902 of 1983 to examine the contention of Mr. Saifuddin. It was noted that the Employees of PECH Society, who were allotted plot on the site, now well-known locality Mehmoodabad; filed large number of petitions. Licences were executed in their favour, plans were approved. However, subsequently, show-cause notices were issued for cancellation as the allotments were found.To be irregular on the ground that allottee though employees of the Society were not its members. Learned Division Bench considered large number of cases and in view of the facts that the plots were allotted bona fide and in good faith, by the then Administrator in 1970 in consideration of fact that area abutting Mehmoodabad was not favoured and the members were not interested to take the plots in said locality. Secondly the licence agreements were executed, plans were approved, and after 10 years of lease the society could not have cancelled the plots and such right alone could be exercised by the Ministry of Works for the Federal Government for breach of subject licence.
14. In the instant petitions, facts are distinguishable; the Court merely remanded the matter to the PECHS to decide the same in accordance with remand order as reproduced above. It is not disputed that the PECH Society decided the matter after hearing both the petitioners.
15. There is nothing on record to show that the petitioner or her husband was a Federal Government Employee, the very foundation to be eligible for membership of the PECH Society is lacking. No licence has been executed, in her favour. Mr. Saifuddin is right in urging that allotments of 75 persons were cancelled including that of petitioner through impugned notice dated 8-11-1977. If the petitioner is given any premium for the wrong then there will be no room left for the society to check nepotism and favouritism by the Management of the PECH Society and the Administrator appointed. We are inclined to favour such view. Maximum efforts are to be made to maintain and preserve corpus of the society established to rehabilitate specified class or category of person.
Allotment of plots to person must have nexus with the avowed object of the Society to provide shelter to their eligible members who may be entitled for allotment subject to fulfilment of basic qualifying and eligibility criteria.
16. Under the circumstances, the opinion recorded by the PECH Society is taken on record.
Admittedly the petitioner is not member of the Society, do not fall under 54-A of the Cooperative Society Act, 1925, no avenue remains open under the Cooperative Society Act to refer the matter to the Society to decide her claim for wrongful act of the then Administrator. In all fairness, since the amount has been paid against the plot, petitioner if so chooses may file suit to claim enforcement of her claim or for damages as the case may be. However, in case the petitioner does not opt for any other remedy, the society in equity is directed to refund the amount received from the petitioner, immediately with mark-up at the rate of 10% from the date of receipt by the Society till the date amount is refunded.
17. As regard the case of petitioner, Tanveer Afzal is concerned; his claim is also shrouded in dispute. He claims that Martial Law Regulation was recalled. Society disputes such claim according to Mr. Saifuddin such documents are not available on the record of the Society and appears to be fabricated. The controversy as to whether the Martial Law Order was recalled or otherwise, in the wake of allegations and counter allegations cannot be decided in exercise of discretionary jurisdiction. We have both the petitioners if they so choose to agitate and establish their respective entitlement and claim in Civil Court.
18. Under facts and circumstances, both the parties are left to avail of the remedy in Civil Court as may be permissible under the law. However, looking at the peculiar circumstances of the case, we would direct the Society not to create any third party interest over the subject plot for three month.
In case none of the party is interested to enforce its right over the subject plot and no restraining orders are received by the Society from any Courts, Society would be at liberty to dispose of the plot strictly in accordance with the list of eligible members on merit and seniority. In event there is tie or further dispute as to priority then advisable course of auction amongst such members may be explored.
19. The reference is accordingly taken on record.