1. JUDGMENT SALMAN HAMID, J.---The petitioners, Citizen Co-operative Housing Society Limited, Hyderabad, (hereinafter referred to as, "the Society") has impugned the order dated 15-1-2005, (hereinafter referred to as, "the Impugned Order") passed by the Senior Minister Finance and Co-operative i.e. Respondent No.2 (hereinafter referred to as, "the Senior Minister") in favour of the respondent No.1, Agha Taj Muhammad Academy, (hereinafter referred to as "the Academy") on the ground that it is illegal and unwarranted under the law as the Senior Minister under section 64-A of the Cooperative Societies Act, 1925, (hereinafter referred to as, "the Act, 1925") did not have the jurisdiction to pass it when it comes to resolving the dispute between the Society and the Academy as the Academy was not the member of the Society and the provisions of the Act, 1925 were not applicable.
2. In order to hand down this judgment in perspective of the above legal situation as canvassed by the learned counsel for the Society the facts of the case in a condensed form have been encapsulated as under.
3. That the Society in terms of public advertisement of daily Sindhi "Ibrat" dated 6-4-1989, offered to sell an amenity Plot measuring 35,000 square feet hereinafter referred to as (the Plot") for raising a school building thereon for the benefit of its members/inhabitants. The Academy having offered the highest bid of Rs.15 per square feet of the Plot was declared successful and an amount of Rs.490.000 in lump sum towards the Plot was received by the Society from the Academy: Execution of the lease of the Plot and handing over of its possession was to be followed. However, subsequently it transpired that the Plot which was offered by the Society did not measure 35.000 square feet as was represented: instead it was found to be measuring 21,600 square feet only. Thus dispute in respect of the area of the Plot cropped up between the Society and the Academy with the result that the execution of the lease and handing, over of its possession was delayed. Dispute was attempted to be resolved amicably but failed. Resultantly, the Academy filed Suit No.467 of 1992 before IInd Senior Civil Judge. Hyderabad, against the Society, with prayers therein that the Society be directed to demarcate the Plot as 35,000 square feet and that after such demarcation it (the Plot) be handed over to the Academy and lease in respect thereof be executed. The however in terms of decree dated 2-3-1993 was rejected for want of cause of action. Further proceedings by way of appeal or otherwise was not taken forward by the Academy after rejection of the plaint.
4. However in their anxiety, the Academy preferred a Criminal Complaint under section 145, Cr.P.C.
5. Before the City Magistrate Hyderabad on or about 30-5-1993 for attachment of the Plot.
6. Since the Academy had already paid the entire sale consideration of the Plot to the Society and since the Society was registered under the Act, 1925 it (the academy) also applied under section 54 of the Act, 1925 and in that respect in the first instance, approached the Deputy Registrar Cooperative Societies Sindh Hyderabad for appointment of an arbitrator for deciding the issue of the Plot. The Academy having approached the Deputy Registrar Cooperative Societies, (he the Registrar) vide his letter dated 15-12-1992 requested the Society not to take further action in respect of the Plot and not to cancel its allotment. Nominee of the Registrar Cooperative Societies, Hyderabad was nominated by the Assistant Registrar to decide the matter in issue within two months from 25-2-1993. However, the Society raised objection before the Nominee of the Registrar that the Academy is not a member of the Society, and therefore proceedings under section 54 of the Act, 1925 before him were not maintainable. Confronted with such a situation the Registrar's Nominee in terms of his Order dated 26-3-1996 returned back the matter of arbitration to the Assistant Registrar. Cooperative Societies Hyderabad with an observation that "if there would have been no legal bar, my legal opinion in the matter is that the fault remain with the Society, however, in case approved plan of the Society proves the size of the Plot as 21,600 sq. Ft., the academy may accept the same with refund of the balance amount with profit at the bank rate."
7. After return of the arbitration proceedings by the Registrar's Nominee, the Society in an attempt to cancel the allotment of the Plot caused Notice dated 14-2-1996, requiring the Academy to show cause within seven days from the date of receipt of such Notice as to why decision made by their managing committee to cancel the Plot should not be made absolute. It seems that the Academy came up with the answer to the above Notice dated 14-2-1996 in terms of its Letter dated 13-3-1996 and thereafter in or about November 1996 application was made by it to the Senior Minister narrating therein its grievances and the highhandedness of the Society. The Senior Minister on his turn treated the application as Revision Petition under section 64-A of the Act, 1925 and after hearing both the parties i.e. The Society and the Academy, passed impugned Order in favour of the Academy inasmuch as, that the payment of Rs.490 000 was treated as full and final payment of the Plot (measuring 21,600 square feet) and no refund was allowed to the Academy by the Society and that the Plot was to be used exclusively for school/college purpose and that school/college building was to completed within 18 months from the date of handing over of its possession by the Society to the Academy and that the Plot was not to be transferred to any other society or any individual and the tuition fees was to be regulated by The District Officer. Education and the Society jointly.
8. The Academy after the Impugned Order also obtained Certificate under section 69(1)-A of the Societies Act, 1925. Execution Application No.3 of 2005 was preferred by the Academy against the Society to get the Impugned Order enforced which resulted in filing of the present Constitutional Petition.
9. In this background of the case, the learned counsel appearing for the Society embarked upon to argue that the provisions of the Act, 1925 at no stage of time were available to the Academy which could be invoked by it to its advantage and that the Senior Minister also had no jurisdiction under section 64-A of the Act, 1925 in passing the Impugned Order as such provisions are only extended to the Senior Minister for administrative and departmental proceedings and that the dispute between the Society and the Academy was purely of civil nature. Learned counsel, in support of his arguments relied upon 1998 M LD 1850 Lahore Cantt. Co-operative Society v. Muhammad Asif PLD 1955 (W.P) Karachi 497 Azizuddin Ahmed v. Aziz Ahmed and others and PLD 1956 Sindh 1995 Siraj Muhammad v. Pir Illahi Bu Cooperative Society and others.
10. To combat the above arguments of the learned counsel of the Society the learned counsel appearing for the Academy argued that the Academy having been allotted the Plot by the Society in pursuance of receiving of entire sale consideration thereof became member of the Society in terms of section 3(c) of the Act 1925 and that the provisions of section 17-B of Act, 1925 also became applicable in favor of the Academy. It was further argued that section 64-A of the Act, 1925 relates to the powers of the provincial government and the Registrar. Therefore the Senior Member was fully competent to pass the Impugned Order under section 64-A of the Act, 1925. It was lastly urged by the learned counsel for the Academy that the extraordinary constitutional fiction of this court cannot be used by the Society in order to perpetuate injustice and that this court would not come, to its rescue while exercising discretionary powers under the constitutional jurisdiction and extend remedy to a person in the present case the Society who has come to the court with unclean hands to get perpetuated injustice.
11. On the basis of these arguments the learned counsel for the Academy prayed for the dismissal of the petition with exemplary Lost.
12. Learned counsel appearing on behalf of the respondents, No.2 and 3 supported the Impugned Order and adopted the arguments of the learned counsel appearing for the Academy.
13. Heard arguments, perused the record and examined the case-law cited.
14. It would be clear from the record that it was the Society who had invited bids through publication for the Plot for raising a school building thereon for the benefit of its members/inhabitants and that the Academy having been found the highest bidders was declared successful and that the entire sale consideration of the Plot was received by the Society from the Academy in lump sum despite their request that such may be received in three equal instalments which was refused by the Society on the ground that such was not its policy and that if the payment in full would not be made within the stipulated time. Academy's highest offer would be cancelled. Only after receipt of entire payment of the Plot (35,000 square feet) it was disclosed and or transpired that the area of the Plot was only 21,600 square feet and not 35,000 square feet as represented by the Society in its advertisement and subsequent correspondence that was exchanged between it and the Academy. Thus the Academy ended up in payment of an amount of Rs.490,000 for an area which was actually not available or that the Academy paid even in excess to Rs.15 per square feet.
15. It is clear from the above that the Society received the price of the Plot in full from the Academy and the Plot stood allotted to it. Despite this it seems that principle "who seek equity must also do equity" was completely violated by the Society when it failed to execute the lease of the plot and hand over its possession to the Academy. Section 54 of the Transfer of Property Act defines sale as a transfer of ownership in exchange for a price paid or promised or part paid and part promised. In the present case for the transfer of the ownership of the Plot and its allotment the Society received from the Academy full price. Thus, the Academy passed the test of section 54 of the Transfer of Property Act and became entitled to be admitted as a member of the Society in terms of the provisions of section 17-B of Act, 1925 inasmuch as it essentially stipulates that when an interest in the immoveable property in the society is transferred in favour of any other person then that person, subject to rules be admitted as a member Interest of the Academy having been created by sale of the Plot, which sale was within the meaning of the Transfer of Property Act, the Academy by operation of section 17-B admitted as a member of the Society and therefore we are clear that all the rights and liabilities as stipulated under the Act, 1925 became applicable on the member of the Society. Clause (c) of section 3 defines and includes a member to be a person joining in the application for the registration of the Society or a person admitted to membership after registration in accordance with the rules and bye-laws applicable to the Society. Looking from this angle, again it becomes clear that by virtue of section 17-B, the Society was admitted as a member after the Plot was sold and allotted by the Society to the Academy or at the very least the Academy joined the process of becoming a member of the Society as stipulated under Clause (c) of section 3 of the Act, 1925. Therefore again by way of this enunciation the Academy is deemed to be a member of the Society and rights and liabilities as stipulated in the Act, 1925 are available to it and we hold as such.
16. Irrespective of the above, even if it is assumed that the Academy was not the member of the Society, as was attempted to be argued by the learned counsel for the Society, it would be noted from section 64-A of the Act, 1925 that if in any case it appears to the Provincial Government or the Registrar that any decision or order or proceedings so called for should be modified, annulled or reversed the Provincial Government or the Registrar as the case may be may pass such order A thereon as it may deem fit.
17. It would be seen from the scheme of section 64-A of the Act, 1925 that the Provincial Government has the power to call for and examine the record of any inquiry or the proceedings of any Officer subordinate to them for the purpose of satisfying as to the legality or proprietary of any decision or order passed and as to the regularity of the proceedings and if in any case it shall appear to the Provincial Government that any decision or order or proceedings so-called should be modified, annulled or reversed, the Provincial Government may pass such order thereon as it may deem fit.
18. The Senior Minister while passing the Impugned Order found it fit to decide in favour of the Academy inasmuch as that it was appreciated that it was the high handedness of the Society in not handing over the possession of the Plot or executing the lease thereof despite receipt of the entire sale consideration of it and the fact that the sale consideration which was received by the Society was in respect of an area of 35,000 square feet as represented earlier through advertisement and the correspondence that was exchanged between the parties and subsequently it was found that the area of the Plot was only 21,600 saquare feet. It would be note worthy to observe that under section 64-A, of Act, 1925 the Provincial Government has vast powers to keep vigil over the acts of the Society and put at right any wrong committed by that society and the bar of membership is not attracted in order to make an application before it, as the provisions of section 64-A of Act, 1925 are general in nature for the benefit of all as the section starts with "If in any case" covers all sorts of cases, including the case of the nature in hand.
19. Since, in the present case, we have already held that the Senior Member under section 64-A of the Act, 1925 had the jurisdiction to decide the case then even if it was a wrong decision by which a wrong was put at right cannot be interfered with. In holding so we are fortified by the observations of the honourable Supreme Court of Pakistan made in the case of Khilil Khan v. Haji Nazir and 4 others reported as PLD 1997 SC 304 cited by the learned counsel for the Academy, wherein it was observed by the honourable Supreme Court that "Another principle in the realm of writ jurisdiction well entrenched in our system as elsewhere is that a void order is not always to be struck down regardless of the consequences of such a decision, but that a void order shall be struck down provided there is no statute or principle or law which would make it unjust or inequitable to strike it down. In S. Sharif Ahmed Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCM R 367, this clarification was termed as very important and that is why, for example, a writ may be refused against a void order if this would enable the petitioner to circumvent the provisions of a statute."
20. Again in the case of Province of the Punjab v. S. Muhammad Zafar Bukhari PLD 1997 SC 351 cited by the learned counsel for the Academy, it was observed by the honourable Supreme Court that "A study of various cases decided by this Court would show that before a person can be permitted to invoke the discretionary powers of a Court, it must be shown that the order sought to be set aside had occasional some injustice to the parties. If it does not work any injustice to any party rather it cures a manifest illegality then the extraordinary jurisdiction ought not be allowed to be invoked PLD 1973 SC 236 (258) likewise in the case of Begum Shamsun Nisa v. Said, Akbar Abbasi and another PLD 1982 SC 413, it was held that the High Court in exercise of its discretionary jurisdiction is not bound to interfere in all circumstances and it would have been proper exercise of its discretion, if it had not interfered with the order of the Chief Settlement Commissioner in that case even if it felt that the order of the Chief Settlement Commissioner whereby the rendered the order of the Settlement Commissioner as null and void, was not strictly legal. Again this Court refused to intervene where the grant of relief would amount to retention of ill-gotten gains or would lead to injustice or aiding the injustice."
21. Similarly in the case of Abdul Haque Indhar v. Province of Sindh reported in 2000 SCM R 907 cited by the learned counsel for the Academy, it was held by the honourable Supreme Court of Pakistan that "We are also inclined to observe that in view at the circumstances of the case learned Division Bench of High Court Sindh of Sukkur had rightly declined to grant discretionary relief under Article 199 of the Constitution of Islamic Republic of Pakistan because jurisdiction conferred upon the Court under this article of the Constitution cannot be exercised to perpetuate ill-gotten gains.
22. The ratio of the above cited authorities is that before a person is permitted to seek relief under the discretionary powers of a court, that person must show that injustice has not been caused by him.
23. The argument of the learned counsel appearing for the Academy that the Society must not be allowed to be benefited from the present proceedings, which would amount to perpetuating injustice, under the circumstances of the case has much substance. Through out, the Society instead I of accommodating the Academy, after receipt of entire sale consideration of the Plot remained on the offensive to cover up their on wrong doings. Therefore, we are clear in our mind that since the Society remained unreasonable and unjust can not claim any benefit by way of filing the present proceedings. The courts are to protect the interest of the parties rather than to destroy it.
24. We having hold that the Academy became member of the Society, the three citations i.e. 1998 M LD 1850 Lahore Cantt Co-operative Society v. Muhammad Asif Azizuddin Ahmed v. Aziz Aimed and others PLD 1955 W.P. Karachi 497 and Siraj Muhammad v. Pir Illahi Bux Cooperative Society and others PLD 1956 Sindh 1995 relied upon by the learned counsel for the Society are of no 'assistance as all three of them basically held that the provisions of section 54 of the Act of 1925 were not available to a non-member of a society.
25. The upshot of the above discussion is that the Impugned Order, passed by the Senior Minister under section 64-A of the Act, 1925 require no interference of this court and it can not be declared illegal or unwarranted in law, as prayed for by the Society.
26. As a matter of fact such order having put to right, a wrong, must sustain and it is so ordered. The petition of the Society under the above circumstances is found meritless and is dismissed with cost of Rs.35,000 only for keeping the Academy entangled in unnecessary hardships with no fault on its part and also keeping it deprived from the fruits of the Plot.