MUHAMMAD SAJID MEHMOOD SETHI, J.: This consolidated judgment shall dispose of instant writ petition along with following connected writ petition as common questions of law and facts are involved in these cases:
1. W. P. No.2986 of 2014. Farzana Chaudhry. v. Canal View Cooperative Housing Society Ltd., Lahore, etc.
2. Brief facts, as stated in the writ petition, are that petitioner became member of Canal View Cooperative Housing Society (hereinafter "Society") / respondent No.4 in the year 1984, against transfer of plot No.929. There was also excess area measuring 13- Marlas along with plot No.929.
Society also handed over vacant possession of excess area falling in said plot. Society moved an application under Section 54 of the Cooperative Societies Act, 1925 (hereinafter "CSA") before the District Officer Cooperatives / Deputy Registrar, Lahore, against petitioner to get possession of above said excess area which was disposed of vide order dated 26.10.2007, the operative part of which reads as under:- "Argument heard, record perused. This fact is crystal clear that the actual land of plot No.929 duly transferred to the Respondent exist 5895 Sqft. And fall under one Kanal category. The extended land occupied by the Respondent is not the real ownership of the Respondent nor the Respondent showed any entitlement or documentary proof in her favour. While the revenue record and the report of the Assistant Registrar supports the ownership of the petitioner Society. It has been proved through the record and the evidence available enough that the Respondent has encroached the land adjacent to her plot illegally and without authority. The Respondent is directed to vacate the possession of the said land in question in addition to the area actually transferred in her favour or she shall pay the cost of extra land according to decision taken in the meeting held on June 2005. Petition is disposed of accordingly." In pursuance of the said order, petitioner claims to have moved applications and kept on visiting the office bearers of the Society, with the request of issuance of Challan for deposit of the cost of excess area, but there was inaction on their part. Petitioner was constrained to move an application before DOC / DR, Lahore, seeking implementation of the order dated 26.10.2007, which was disposed of with the direction to the Society to implement the order in question and issue the Challan to petitioner in terms thereof and report compliance vide order dated 27.06.2013. Petitioner also moved a petition before respondent No.2 under Section 44-D instead of Section 54 of CSA. Respondent No.5 also filed petition before respondent No.2, wherein it was prayed that the District Officer Cooperative, Lahore, has no jurisdiction at all to entertain and proceed with petition under Section 44-D of CSA.
Respondent No.2 decided the matter in favour of respondent No.5 vide order dated 09.12.2013.
Petitioner assailed the said order before this Court in W. P. No.2986 of 2014, wherein status quo was granted vide order dated 06.02.2014. Respondent No.5 moved a petition on 19.08.2013 against order dated 27.06.2013 passed by respondent No.3 before respondent No.2, who on 03.03.2015, set aside the order dated 27.06.2013. Through instant petition, the order dated 03.03.2015 passed by respondent No.2 has been assailed with the following prayer:- illegal, unlawful, void ab initio, based on excess of jurisdiction, misuse of authority, arbitrary, malafide, biased and may very kindly set aside the same.
It is further prayed that the order dated 27.6.2013 passed by the respondent No.3 may kindly be upheld in the interest of justice and fair play.
Any other relief which this Honourable Court deems fit may kindly be granted in favour of the petitioner."
3. In the connected writ petition i.e. W. P. No.2986 of 2014, petitioner has sought the following relief from this Court:- "In view of above, it is most respectfully prayed that the order dated 9.12.2013 passed by respondent No.4 may very kindly be declared as illegal, unlawful, based on excess of jurisdiction and by setting aside the same the respondent No.3 may kindly be directed to decide the petition before him under Section 54 of the Cooperative Societies Act 1925.
Ad interim relief may kindly be also granted.
Any other relief to which the petitioner is found entitled may very kindly be also granted."
4. Learned counsel for petitioner submits that respondent No.2 failed to appreciate that order dated 26.10.2007 constitutes award / decree under the law, and the same has attained finality as it was never challenged before any higher forum. He adds that the Secretary Cooperatives was not empowered to set aside the order passed in execution petition. He further submits that respondent No.2 disregarded the order dated 06.02.2014 passed by this Court in W. P. No.2986 of 2014 and also violated the said status quo order.
5. On the other hand, learned counsel for respondents submit that respondent No.5 was allotted plot No.452-C measuring 01- Kanal, and subsequently, as a result of litigation, decree dated 14.03.2007 was passed, wherein the Society was directed to compensate respondent No.5 with an alternate plot. The Society sought guidance from DOC / DR, Lahore, in this regard, who directed the Assistant Registrar Cooperative Societies (Housing-II) to visit the site and report. Said Assistant Registrar submitted his report to the effect that plot No.929-A measuring 13-Marlas was available for allotment, and in terms of judgment / decree dated 14.03.2007, decision of the managing committee dated 29.07.2012, and order of DOC / DR, Lahore, dated 24.09.2012, respondent No.5 was allotted plot No.929-A measuring 13-Marlas in lieu of plot No.452-C, along with issuance of possession slip dated 18.12.2012. He further submits that petitioner has failed to point out any illegality or legal infirmity in the impugned order.
6. Arguments heard. Record perused.
7. It would be beneficial to reproduce the relevant part of the order dated 03.03.2015 passed by Secretary to Government of the Punjab, Cooperatives Department / respondent No.2, as under:- "4. Open spaces in any housing society, whether cooperative or, otherwise, cannot be allotted for residential or commercial purposes unless these have been earmarked or declared as plot in the layout plan approved by the relevant development authority, in this case the Lahore Development Authority. Since the society has allotted the open space by declaring it as a plot to the petitioner, it must be regularized through revision in the layout plan.
5. The respondent No.2 has encroached open land of the society. This is an admitted and established fact. As such the wall erected upon the space referred to as plot no.929-A of Canal View Cooperative Housing Society, the boundary wall shall be demolished and penny invest in encroachment shall be charged from respondent no.2 for the entire period of illegal occupant / encroachment. It has also been noticed that there are other similar spaces which are being considered as plot of the society. This is a violation of the layout plan and an aberration. The society shall prepared a revised layout plan, taken into consideration of land aberration and get the same approved from the Lahore Development Authority.
6. The project for computerization record of Cooperative Housing Societies, made with safeguarding the interests of the members, approved layout plan of the society and their conformity with the law, is being implemented by the Cooperative Department. The Joint Registrar (Housing) and the project director are directed to pilot the data entry in the computerization project from the record of Canal View Cooperative Housing Society. The impugned order is set aside."
8. Perusal of the order reveals that respondent No.2 has rightly observed that open spaces in any housing society, whether cooperative or otherwise, cannot be allotted for residential or commercial purposes unless these have been earmarked or declared as plot in the layout plan approved by the relevant development authority i.e. Lahore Development Authority. At the same time, he has also observed in the order that there are other similar places which are being considered as plot of the Society. It was also directed that the Society would prepare a revised layout plan, taking into consideration the land aberration and get the same approved from the Lahore Development Authority. Admittedly, the revision of the approved layout plan has not yet been done.
9. Since the mandatory spaces could not have been converted into residential plots without prior permission from the competent authority i.e. LDA, which admittedly has not yet been obtained till to-date, therefore, basic order was absolutely illegal and without lawful authority. Reference in this regard is made to Province of Punjab through Collector, Sargodha and others v. Muhammad Akhtar (2007 SCM R 953) and Muhammad Raza and others v. Jammu and Kashmir Co-Operative Housing Society, and others (PLD 2013 Islamabad 49).
In the case of Muhammad Raza supra, the Hon'ble Islamabad High Court has observed as under:- "18. The Chairman, CDA is, therefore, directed to initiate legal actions against the Societies for completing / developing the schemes within time. The Chairman would also take actions against the Director, Housing Societies and other concerned staff for not taking action against the defaulter society. Record also reflects that complaints of aggrieved persons are not properly dealt with and after issuance of letters to the Societies; no follow-up is taken by the concerned staff. The Chairman CDA should evolve a policy where the genuine complaints of the people are properly dealt with and be followed till some positive results because the state functionaries are under obligation to listen to the complaints regarding their functions and to resolve them in accordance with law.
19. As far as objection regarding the pendency of civil suit is concerned, the same loses force in the present situation because where there is a clear violation of rules and where authority acts in a manner altogether unwarranted by law, the remedies provided under the law need not be exhausted before having recourse to the constitutional jurisdiction of this Court. It is also obvious that housing schemes are announced and people are attracted in the name of facilities and utility areas i.e. Parks, open spaces and topography etc. And, therefore, the residents cannot be deprived of these facilities by the societies due to greed for money."
10. It is settled principle of law that if on the basis of void order, subsequently, orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizes it as legal, fall to the ground because such orders have a little foundation as the void order on which they are based. It is also well-established that pure question of law can be raised at any stage of proceedings. In this regard, reference can be made to Mustafa Lakhani v. Pakistan Defense Officers Housing Authority, Karachi (2006 SCJ 702), Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another (2006 SCM R 783), Muhammad Iqbal v. Muhammad Ahmed Ramzani and 2 others (2014 CLC 1392), Secretary Communication and Works Department Government of Balochistan and others v. Dad Baksh and other (2013 CLC 343), Yousaf Ali v. Muhammad Aslam Zia and others (PLD 1958 Supreme Court 104), Moulana Atta-ur-Rehman v. Al-hajj Sardar Umar Farooq (PLD 2008 Supreme Court 663), Faisal Jameel v. The State (2007 M LD 355), Talib Hussain v. Member, Board of Revenue (2003 SCM R 549), Muhammad Siddiq v. Ashraf Ali (2000 M LD 781), and Abdul Hameed v.
Deputy Commissioner / Administrator, Zila Council Mandi Baha-ud-Din (1997 CLC 540).
11. In the case of Faisal Jameel supra, the Hon'ble Division Bench of Sindh High Court, while discussing the jurisdiction of superior Courts against void orders observed as follows:- "17. It is pointed out that Acts or transactions of private and public can be found to be void.
Secondly an order passed by executive, quasi-judicial or judicial functionary can be found to be void in appropriate judicial proceedings. Thirdly an order or judgment passed by a Court of law can be found to be void by superior Court in, any judicial proceedings or under supervisory jurisdiction after the same is brought to the notice of such Court through any source. Normally the superior Courts have been extremely slow in determining purely judicial orders or judgments passed by subordinate Courts to be void ab initio. Nevertheless, it does not mean that the superior Courts have no jurisdiction or powers to remedy the situation after it has encountered with it. The superior Courts have various powers such as Revisional, inherent and Constitutional powers. These powers can be exercised in appropriate proceedings, either on the application of any party or under its Suo Motu jurisdiction."
12. Needless to observe here that if the relief prayed, for any reason, cannot be granted and from the facts and circumstances of the case, it appears that petitioner is entitled to some other relief, High Court, to advance cause of justice and to avoid multiplicity of proceedings, grant such relief as justice may demand. Reliance in this regard can be placed upon S. M. Saleem v. Province of Sindh and others (2007 YLR 2001).
13. In the light of above made discussion, the impugned order dated 03.03.2015 is declared to be illegal and without lawful authority. Accordingly, this petition is disposed of with the observation that the very allotment of the plot in favour of respondent No.5 was absolutely illegal and without lawful authority. However, respondent No.4 / Society is under a legal obligation to compensate the respondent No.5 in terms of the decree passed in his favour, therefore, respondents No.1 to 3 are directed to ensure that respondent No.5 is duly compensated either by allotting a vacant plot of same market value, or by paying him the current market price of the plot, within a period of 02- months, in accordance with law, under intimation to the Deputy Registrar (Judl.) of this Court.
Petitioner had also violated the building regulations by illegally occupying the plot embarked as open space in the original layout plan. Hence, he is directed to vacate the plot forthwith in favour of respondent-society for the purpose of its utilization as open plot, as was originally designed in the layout plan of the Society. Respondent-society will not change the nature of the open space / plot without revision of the layout plan from the competent authority, strictly in accordance with law.