Muhammad Ali Mazhar, J.--The petitioner has filed this petition for seeking following relief(s):-
1. The honourable High Court may be pleased to direct the Respondents 1 to 9 to hand-over physical possession of remaining 10.87 Acres of land allocated to Co-operative society, by dispossessing the encroachers by initiating legal steps and mobilizing available resources, so that poor shelterless employees (Retired) may construct their shelters for hiding their heads, by enjoying their rights.
2. The Revenue Department, collected Rs. 60,00,000/- in the year 1994 from National Highway as a compensation of land utilized for over-Head Bridge, but failed to provide alternate land be asked to provide the land in addition to disclose the profits of amount with him from 1994.
3. Any suitable relief which the honourable High Court deems fit along with costs of this petition.
2. Concisely the facts of this petition are that the petitioner is retired Railway employee and he is bona fide member of Pakistan Railway Employees Co-operative Housing Society, Sukkur, which was formed in the year 1980 and registered under the Co-operative Housing Societies Act. The object of Co-operative Housing Society was to provide shelter to the retired employees. It is further contended that an area of 24.57 acres land was acquired by the Society in Deh Saeedabad Jagir and Deh Arain, Taluka Sukkur for the purpose of providing plots to its members. It is further contended that the Respondent No. 3 is controlling officer of the Railway lands and plans were furnished to him for final approval in the year 1981-82 but the physical possession of the land in question, was kept in abeyance on the plea that ban has been imposed upon grant of railway lands. It is further stated that National Highway authority utilized 13.87 acres of land from Railway Employees Co-operative Housing Society for the construction of overhead bridge and paid Rs.
60,00,000/- as compensation. The Society did not accept the compensation and requested for alternate piece of land but no alternate land was allotted till date. The Railway employees Union submitted large number of representations for finalization the subject matter but Respondents No. 1 to 4 failed to provide any positive response. It is further stated that now the major portion of the land has been encroached by IBA and Respondent Nos. 6 to 8 are supporting the encroachment and no efforts have been made to dispossess the encroachers.
3. The Respondent No. 5 submitted comments for self and on behalf of Respondent Nos. 2 to 4, in which it was stated that the ban was imposed by the Ministry of Railway. It is further stated that Master Plan was not approved by the Town Planning Division Hyderabad. It was further stated that Divisional Superintendent Pakistan Railways has tried his level best for lifting of ban as well as demarcation of remaining land admeasuring 10.67 acres for handing over the possession to the members of Railway Employees Co-operative Housing Society.
4. The Respondent No. 11 filed the comments in which it was stated that instead of filing the petition by the Pakistan Railways Cooperative Housing Society, the petitioner has individually filed this petition which is not maintainable. The allegation of encroachment against the Respondent No. 11 has been made against an unspecified land. It was further stated that Respondent No. 11 is not in occupation of any land allegedly allotted to Pakistan Railways Employees Co-operative Housing Society. It was further contended that alternate remedy was available to the petitioner which he has failed to avail.
5. The Mukhtarkar (Revenue), Respondent No. 8 filed his comments, in which he mentioned various Survey Numbers and according to him Respondent No. 11 has purchased the land from Memon Co- operative Housing Society Limited and other Survey Numbers were purchased from Dehli Co- operative Housing Society, Sukur through land acquisition proceedings. The crux of the comments filed by the Mukhtarkar that IBA has lawfully purchased the land. It is further stated in the comments that Sukkur. Co-operative Housing Society limited, leased out the land to Pakistan Railway Employees Cooperative Housing Society vide Entry No. 228 dated 26.11.1996 but according to Mukhtarkar the aforesaid Entry was cancelled by the Defunct Assistant Commissioner, Sukkur in Appeal filed by Bahadur Khoso vide Order No. AC/536 dated 5.4.1999.
6. The learned counsel for the petitioner argued that the petitioner is bona fide member of Pakistan Railway Employees Co-operative Housing Society and in order to establish his membership, he pointed out page 35 of the petition, which is an undated Provisional Allotment Order in the name of petitioner issued by the Society. He further argued that despite clear allotment letter, the possession of the plot was not handed over to him. He further argued that the Respondent Nos. 1 to 9 be directed to hand over physical possession of 10.8 acres of land allotted to the Railway Employees Co-operative Housing Society. He further argued that Respondent Nos. 11 to 13 have encroached upon the land of Society and it was the responsibility of Respondent Nos. 1 to 9 to remove the encroachment but they have not taken any action.
7. The learned counsel for the Respondent No. 11 argued that no encroachment has been made by the IBA, Sukkur, He further argued that various disputed questions of fact have been raised, which cannot be resolved in the constitutional petition. He further argued that IBA has purchased the land lawfully 'and it has nothing to do with encroachment upon the land of Pakistan Railway Employees Housing Society, Sukkur.
8. The learned counsel for the Respondent No. 13 argued that his client Shaharyar Khan Mahar purchased the land from Respondent No. 14 by virtue of registered sale deed. He has also filed a statement along with which, a copy of conveyance deed for the land ad measuring 1.19 acres is attached which is showing the Survey Numbers 40/ 1, 40/2 and 40/3, situated at Deh Arain, Tapo Arain, Taluka New Sukkur. He referred to a letter written by EDO (Revenue), Sukur in which, E.D.O intimated that Mukhtiarkar. (Revenue) sent the report in which, it is stated that the Entry No. 228 by virtue of which the land granted to Pakistan Railway Employees Co-operative Housing Society was cancelled by the Assistant Commissioner, Sukkur vide Order dated 5.4.1999 on the appeal filed by Bahadur Khoso and others. The learned counsel further referred to another letter dated 11.8.2010, which was written by Divisional Superintendent Pakistan Railways, Sukkur to Joint Director Property and Land Pakistan Railways Head Office, Lahore whereby it was intimated that during the year 1993 NHA constructed northern Bypass and NHA occupied 13.86 acres land and later on paid compensation to the Land Collector/Sukkur. However, the Society refused to accept the compensation and insisted that Government of Sindh must allot an equivalent area of land for the development of Housing Society but Sindh Government did not accede to this proposal and cost of land still lying with the Land Collector Sindh.
9. The learned DAG argued that NHA occupied the plots of Railways Employees Cooperative Housing Society for construction of Bypass. He further argued that master plan was not approved by Planning Division, Hyderabad. It was further averred that in view of the representation made by the Railway Employees Union, Pakistan Railways, Sukkur tried its level best for lifting of ban as well as demarcation of 10.6 acres land for handing over its possession to the members. However, he did not controvert the comments of Mukhtiarkar Revenue in which ii. was stated that Entry No. 228 dated 26.11.1996 was cancelled by the defunct Assistant Commissioner in Appeal filed by Respondent No 14, Bahadur Khoso vide Order No AC/536 dated 5.4.1999.
10.Heard the arguments of the learned counsel for the parties. The petitioner has filed the petition in his individual capacity and claimed the right into land as bona fide member and also attached a copy of Provisional Allotment Order, which was issued in his name for the Plot No. 33 admeasuring 240 Sq.Yrds situated in Pakistan Railway Employees Cooperative Housing Society Limited, Sukkur.
11.First of all we would like to examine the legal character and locus standi of the petitioner. If the petition has been moved as bona fide member of the society then being a bona fide member of the society, the petitioner could have easily approached to the Registrar Cooperative Housing Society under Section 54 of the Co-operative Societies Act, 1925, which pertains to the Arbitration proceedings and clearly provides that if any dispute touching the business of a society arises between the member or past member of the society or persons, claiming through a member or past member, it shall be referred to the Registrar for decision by himself or his nominee. In the Proviso attached with Section 54 of the aforesaid Act, it is further provided that if the question at issue between the society and a claimant or between different claimant involving complicated question of law and fact, the Registrar may if he thinks fit suspend the proceedings in the matter until the question has been tried by a regular suit instituted by one of the parties or by a society.
12.Under Section '0 of the Co-operative Societies Act, it is provided that no suit shall be instituted against society in respect of any act touching the business of society until expiration of two months next after notice in writing delivered to the Registrar or left at his Office stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims and the plaint shall contain a statement that such notice has been so delivered or left. If we reconcile both the aforesaid sections, it is clear that for any act touching the business of society a civil suit can be filed on tendering notice to the Registrar whilst if any dispute touching the business of a society between member and society, the dispute may also be referred to the Registrar Co-operative.
13.The petitioner has sought the directions against the Respondent Nos. 1 to 9 to hand over physical possession of 10.6 acres of land allotted to the Co-operative Society but it is strange that Pakistan Railway Employees Co-operative Housing Society, Sukkur has not been arrayed in the petition which was proper and necessary party. From the contents of the petition, the stake of the present petitioner is only confined and related to his own Plot No. 33 admeasuring 240 Sq.yrd.
Nothing has been placed on record or argued that in any case, the petitioner was authorized by the Society to file the petition or the other affected members allowed the petitioner to file the petition in the representative capacity. If the matter relates to the several or large numbers of society's members then it was the responsibility of the said society to take all appropriate remedial measures to get the land restored to the society for allotment amongst its members if the land was under unlawful occupation or possession or under encroachment which is not perceptible or discernible from Mukhtiarkar report who clearly stated that Entry No. 228 dated 26.11.1996 was cancelled by the Assistant Commissioner, Sukkur.
14.In view of the aforesaid facts, the petitioner may avail remedy to safeguard his interest and rights under the Cooperative Housing Societies Act and if the Registrar will feel that issue is one involving complicated question of law and fact, he may ask the parties to get it resolved by a regular suit. So far as rights of Co-operative Housing Society is concerned, we reiterate that the Pakistan Railway Employees Co-operative Housing Society is neither the petitioner nor the respondent in the petition nor Pakistan Railways has filed any petition to espouse the cause of its employees who opted membership in the society for allotment of plot in their favour.
15. Under Section 23 of the Co-operative Societies Act, 1925, it is provided that registration of society shall render it a body corporate by the name under which it is registered with perpetual succession and a common seal with power to institute and defend suit and other legal proceedings and to do all things necessary for the purposes of its constitution. If the land was allotted to the society for its members, which was subsequently cancelled then the society could have availed a remedy of filing appeal under the Land Revenue Act or file a civil suit or other proceedings in accordance with law for removal of encroachment and possession or even for allowing alternate land to the society if the land was unlawfully cancelled but no efforts are seen to have been made by the society. It is also noteworthy that neither the Society has come forward to lodge any claim of any alternate land as alleged in the petition nor claimed any amount of compensation which is allegedly paid by NHA or deposited with Mukhtiarkar. If the petitioner being a bona fide member has any right of plot, he has this right or claim against the Pakistan Railways Co-operative Housing Society and not against the other respondents. May be he was the president of society as claimed by him but nothing is placed on record to show that the Society being a juristic person ever authorized the petitioner to agitate this issue before this Court on their behalf so legal character and or locus standi of the present petitioner is also doubtful for maintaining this petition being president of society.
16. We further like to hold that the present constitutional petition is full of disputed and complicated questions of fact, which cannot be resolved under the constitutional jurisdiction. There is serious controversial facts between the parties for which this Court cannot enter into a factual realm.
Under the constitutional jurisdiction, this Court has no jurisdiction to embark upon an exercise to determine intricate, contested and complicated question of facts. Resolution of such like controverted issue is ordinarily left to proper forum, indulgence in such exercise would have affect of preempting and enforcing upon jurisdiction vested in competent Court, such controversy could not be decided in writ jurisdiction where equally efficacious, adequate and alternate remedies are straight forwardly accessible to the petitioner. Reference can be made to our own judgment authored by one of us (Muhammad Ali Mazhar-J) reported in PLJ 2012 Karachi 69 Mumtaz Ali Jehangir v. Province of Sindh.
17.At this juncture we would further like to refer to PLD 1983 SCMR 280 "State Life Insurance Corporation v. Pakistan Tobacco Company", in which it was held that controverted question of facts adjudication of which possible only after obtaining all types of evidence in power and possession of the parties can be determined only by Courts having plenary jurisdiction in matter and on such ground constitutional petition was incompetent. In another judgment reported in 2001 SCMR 1493 'Mst. Kaniz Fatima v. Muhammad Salim", it was held by the honourable apex Court that where a particular statute provides self contained machinery for determination of question arising under the statute and law provides a remedy by Appeal or revision to another tribunal fully competent to give any relief, any indulgence to the contrary by the High Court is bound to produce a sense of distrust in statutory tribunal. Constitutional petition without exhausting remedy provided by statute did not lie in circumstances. In another judgment reported in 2011 SCMR 279 Anjuman Fruit Arhtian v. Deputy Commissioner Faislabad, again the honourable apex Court held that disputed question of fact could not be decided in constitutional jurisdiction. High Court rightly declined to exercise its constitutional jurisdiction in view of various controversial question of fact which could only be resolved on the basis of evidence which could not be recorded in exercise of constitutional jurisdiction.
18. The right which is the foundation of an application, under Article 199 of the Constitution is a personal and individual right. The legal right may be a statutory right or a right recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence, to give jurisdiction to the High Court in the matter. Unless whatever right personal or otherwise, on which the application is based is established, no order can be issued under Art.
199. It is incumbent upon party seeking constitutional remedy to show that such party had a clear legal -right and that such right is so clear as not to admit of a reasonable doubt or controversy.
Constitutional jurisdiction of High Court cannot converted into that of an Appellate Court. Disputed questions of fact cannot be entertained or allowed to be re-agitated in writ jurisdiction, when the relevant law provides other forums for the purpose. In constitutional jurisdiction, Court does not go into a question involving minute, details nor can it decide facts of which no foundation is laid, unless it is shown that such controversy is devoid of supporting record or perverse. This extraordinary jurisdiction is intended primarily for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. The words "adequate remedy' connotes an efficacious, convenient, beneficial, effective and speedy remedy. It should be equally inexpensive and expeditious. To effectively bar the jurisdiction of the High Court under Article 199 of the Constitution the remedy available under the law must be able to accomplish the same purpose which is sought to be achieved through a petition under Article 199. The other remedy in order to be adequate must be equally convenient, beneficial and effective. The relief afforded by the ordinary law must not be less efficacious, more expensive and cumbersome to achieve as compared to that provided under the Article. Reference can be made to 2011 SCMR 848 & 2011 SCMR 1813.
19.As we said earlier, effective remedies are accessible to the petitioner or even to Pakistan Railway Employees Co-operative Housing Society, Sukkur including those provided under the Co- operative Societies Act, Land Revenue Act or a civil suit against the alleged wrong doers. In view of the fact that the adequate remedies provided under the law are profusely convenient, beneficial and cumbersome-to achieve the purpose, this petition is not maintainable.
20.As a result of our above discussion, the petition is dismissed along with pending applications.
However, it is clarified that in order to redress the grievances the petitioner may avail appropriate remedy in accordance with the law. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.