CH. SHAHID SAEED, J.--- This single judgment shall simultaneously dispose of Writ Petitions No, 258/2007, 92/2009, 1161/2009, 1660/2004, 1322/2012, 1324/2012, 1325/2012, 1326/2012, 1344/2012, 1230/2012 and 1100/2012 as common questions of law and fact are involved therein.
2. Brief facts of the case are that the employees of Revenue Department or Rawalpindi District for meeting their housing requirements launched housing scheme namely Revenue Employees Co- operative Housing Society Limited (RECHS), Rawalpindi under the provisions of Cooperative Societies Act, 1925 in the year 1989. The Society was duly registered with the concerned authorities.
After preparation of master plan the plots we the petitioners, as such, they became members of RECHS. The elections of the society were held, but the elected persons were not notified. On 12.06.2004, Col. (R) Abdullah Siddique was appointed as Administrator of RECHS to look after day to day affairs of the Society initially for a period of 90 days with only one time extension of 60 days ending on 12.11.2004. As per record, his services were never extended any further. Petitioner No, 1 etc. instituted writ petition No, 1660/2004 wherein respondent No, 3-Distrcit Co-operative Officer Punjab appeared before the Court on 17.06.2004 and undertook that the Administrator would not take any major decision including the allotment of plots, purchase of land and exchange of plots allotted to the members but to meet day to day expenditure and affairs of the Society.
However, notification dated 14.02.2005 shows that a meeting of General Body of the Society took place on 21.11.2004 and in the light of the recommendations of the meeting, the Government of the Punjab through its Secretary, Cooperative Department granted exemption under Section 67 of the Co-operative Societies Act. 1925 from provisions of the Act. Thereafter, Col. Abdullah Siddique who was no more Administrator of the Society as his tenure had already ended on 12.11.2004, entered into an agreement with the Bahria Town whereby the RECHS was merged into the Bahria Town with transfer of all its assets and liabilities to the latter. Thereafter, Bahria Town also addressed letters to the members of the Society regarding allotment of plots.
3. Consequently, a Notification No, DRA/327/LAC/DOR, dated 12.05.2006 was issued and published by Land Acquisition Collector in Punjab Gazette whereby notice for acquisition of land measuring 351 kanals and 8.5 marlas in Mauza Morgan and 81 kanals, 2 marlas in Mauza Jarahi for Bahria Town was made. The present petitioners have challenged the amalgamation/merger of RECHS into Bahria, Town asserting that it is illegal and unlawful having no effect upon the rights of the petitioners.
4. Learned counsel for the petitioners inter alia contends that after alleged issuance of notice dated 12.05.2006 under Section 4 of Land Acquisition Act, 1894, no further proceedings took place.
He avers that neither any award in this context was made nor any compensation or alternate land was given to the land owners and the land illegally and unlawfully was handed over to respondent No, 7-Bahria Town who further sold it out to Defence Housing Authority. He further contends that respondent No, 7 is a private, limited company which is earning lot through sale/purchase of land, therefore, acquisition of land of the petitioners on political influence in favour of a commercial body is neither a general public interest nor permitted under the law. He further contends that Administrator of the Society was initially appointed on 12.06.2004 for 90 days and then his services were extended for further 60 days which ended on 12.11.2004 whereafter he had no authority to deal with the affairs of the Society, so the merger dated 17.02.2005 had no validity in the eye of law.
Learned counsel asserts that the said merger as well as notice dated 12.05.2006 are nothing but just an attempt under political influence to defraud with the petitioners to usurp their valuable properties for the benefit of Bahria Town without any lawful justification. He prays that the instant writ petitions be allowed and the merger/amalgamation dated 17.02.2005, notification dated 12.05.2006 as well as all subsequent transactions be declared null and void.
5. Learned Law Officers have supported the contentions of learned counsel for the petitioners stating that the petitioners are private owners of the land and after notification under Section 4 of Land Acqt further proceedings were taken place, therefore, nether any award under Section 11 could be made nor petitioners could be awarded with any compensation nor possession of the land as required under Section 16 of the Act ibid was taken over. They further argue that Col. Abdullah Siddique was appointed as Administrator, RECHS on 12.06.2004 for 90 days with extension of 60 days ending on 12.11.2004 whereafter he had no authority to deal with the affairs of the Society, as such, calling general body meeting for 21.11.2004 and signing merger agreement dated 17.02.2005 by was illegal and without unlawful authority.
6. On the other hand, learned counsel for respondent No, 7-Bahria Town has emphasized more on the point that there are factual controversies involved in the matter which cannot be resolved without recording of evidence which does not come under Constitutional jurisdiction of this Court, therefore, the instant writ petitions are not maintainable. He avers that the amalgamation of RECHS with Bahria Town was in accordance with law which took place after adopting all procedures and fulfilling requirements of law. He next argues that since the RECHS has merged with Bahria Town, a private limited company, and as a result of merger, the new entity out of merger was a company, therefore, no permission from the Registrar as required under Section 15 of the Co-operative Societies Act, 1925 was required. He submits that after issuance of letters regarding allotment of plots to the petitioners and acceptance thereof by petitioners, the petitioners have become contractual allottees of Bahria Town, therefore, the dispute, whatsoever, between the parties can be resolved through arbitration as provided under Section 54 of the Cooperative Societies Act. He prays that the writ petitions having no force merit dismissal.
7. Learned counsel for respondents No, 4 & 5 have adopted the arguments advanced by learned counsel for respondent No, 7.
8. Learned counsel for respondent No, 8 has submitted that the merger had taken place in accordance with law after adopting all formalities and fulfilling requirements of law. He, however, avers that the dispute between the parties has emerged due to violation of terms and conditions of the merger agreement dated 17.2.2005.
9. I have heard the arguments advanced from all corners and also perused the record made available before me.
10.Scanning of record reveals that notice under Section 4 of Land Acquisition Act was issued on 12.09.1990, however, no further proceedings regarding acquisition of land took place. On 12.06.2004, Col. (R) Abdullah Siddique was appointed as Administrator of RECHS for an initial period of 90 days and then his services were extended for further 60 days which ultimately expired on 12.11.2004. On 21.11.2004, a resolution was passed by general body of the RECHS for amalgamation of RECHS with Bahria Town Ltd. The Government of the Punjab through its Secretary, Cooperative Department issued Notification No, US(J&B)4- 1/2005, dated 14.02.2005 for allowing exemption under Section 67 of the Co-operative Societies Act, 1925. The Administrator, after about three months of expiry of tenure, entered into an agreement with Malik Riaz Hussain, Chief Executive, Bahria Town on 17.02.2005 for merging the RECHS into Bahria Town resulting transferring of assets and liabilities of RECHS to Bahria Town. Since Col. (R) Abdullah Siddique was no more Administrator of RECHS, therefore, he had no authority, to make agreement/amalgamation of RECHS into Bahria Town. If the amalgamation, just for sake of arguments, is considered to be true, even then, the Bahria Town who took over the possession of lands/assets of the RECHS was obliged to meet with the liabilities of the RECHS as well but it failed to do so and whole of land in possession of RECHS was sold out to Defence Housing Authority without paying a single penny or allotting the plots/alternate land to the petitioners.
11.It is well-settled now that while acquiring land under Land Acquisition Act, either alternate land or compensation should be paid to the land owners without which the acquisition of land will not be legal. In this case, the land owners have been deprived altogether. Neither they have been given alternate land nor compensation in any manner, therefore, usurping of land of the private owners in the garb of acquisition of land or merger cannot be allowed under the law.
12.Under Section 15 of the Co-operative Societies Act, 1925, only two or more societies can merge themselves subject to approval of the Registrar. It mentions nowhere the amalgamation of a housing society into a company or vice versa. Undeniably, the RECHS was a housing society whereas the Bahria Town was a private limited company, therefore, RECHS could not be merged into Bahria Town under Section 15 of the Co-operative Society Act, 1925. Furthermore, approval for amalgamation of RECHS with Bahria Town Limited was never obtained from the Registrar which was necessary and 'mandatory provision of law, as such, merging of RECHS with and into the Bahria Town has no sanctity in the eye of law.
13.The disputed amalgamation took place through agreement signed by Malik Riaz Hussain, Chief Executive Bahria Town and Col. Abdullah Siddique on 17.02.2005 when the latter was no more incumbent of the office of Administrator, as his tenure had already expired on 12.11.2004, whereas Section 15-A of Co-operative Societies Act was introduced on 01.07.2006 which provides that a society may merge into a company subject to approval of the Registrar and written consent of its creditors. Careful perusal of this amendment reveals that it does not speak about its retrospective effect, so it is not applicable to the case in hand in any manner which event had already taken place on 17.02.2005 prior to introduction of this amendment on 01.07.2006. Learned counsel for respondent No, 7 has also admitted during the course of arguments that the amendment in question has no nexus with the case in hand.
14.Section 68 of the Co-operative Societies Act states that the provisions of Companies Ordinance will not apply to the housing societies registered under the Cooperative Societies Act.
On the other hand, Section 4(ii) of the Companies Ordinance, 1984 unambiguously affirms that it will not apply to a co-operative society. From the very fact, the intention of the legislature is clear that a housing society and a company are two different equities which should function under their respective supervisory control of Registrar and Security and Exchange Commission of Pakistani, therefore, the provisions of one Act/Ordinance were declared not applicable to each other.
15.Apropos exemption under Section 67 of Co-operative Societies Act. 1925 awarded by Government of the Punjab through notification dated 14.02.2005, this Court observes that when the housing society and a company could not merge under the law and the intention of the legislature to run both entities separately under separate supervisory control of Registrar and Security and Exchange Commission of Pakistan, as stated above, was clear, the exemption for merger could not be allowed. Furthermore, under Section 67 of the Act ibid, exemption can be granted from any of the provisions of the Act, but the notification dated 14.02.2005 does not speak about which provision, the exemption has been awarded, as such, the exemption awarded is not in accordance with the law.
16.Another aspect of the matter is that after amalgamation of RECHS into Bahria Town, a notification dated 12.05.2006 under Section 4 of Land Acquisition Act, 1894 was issued by Land Acquisition Collector which stated that the land was likely to be acquired for Bahria Town to meet the housing requirements of general public. It is an admitted fact that Bahria Town is a private limited company which earns profits from purchase/sale of land, as such, the land owned by private owners could not be handed over to such a commercial institution nor it was a general public interesting any manner. However, after notice dated 12.05.2006 under Section 4 of Land Acquisition Act, no further proceedings in this context took place. Learned Law Officers categorically state that after notice under Section 4 of the Act, no further proceedings had taken place, therefore, the land in fact was not acquired by the government. This fact has also not been denied by learned counsel for Bahria Town. Since the notice under Section 4 of the Act ibid was just an intimation to the land owners and no further proceedings for making award under Section 11, payment of compensation to the land owners or taking over possession of the land as required under Section 16 of the Act ibid took place, therefore, it cannot be said that the land in dispute was acquired by the Land Acquisition Collector.
17.Learned counsel for Bahria Town has frankly admitted that the land in dispute was handed over to Bahria Town in result of alleged merger agreement dated 17.02.2005 which land afterwards was sold out by Bahria Town to Defence Housing Authority without accommodating the petitioners who were members of the RECHS as well as a number of land owners except those who were given some compensation throughout of Court settlement. In the circumstances of the case, I am of the considered view that neither the land was acquired under the Land Acquisition Act,. 1894 nor the merger took place in accordance with law. Since Bahria Town has stepped into shoe of RECHS in result of disputed amalgamation and ultimately benefitted from the land of private owners/plots of the members of, the RECHS, therefore, the responsibility of accommodating the land owners as well as members of RECHS also lies with Bahria Town because when it had taken over possession of assets of REGHS in result of disputed amalgamation, then it cannot get rid of liabilities of the RECHS.
18.The contention of learned counsel for Bahria Town regarding maintainability or the Writ Petition is misconceived as when all the facts available on record themselves loudly speak about the fraud committed with the petitioners by Bahria Town in the garb of amalgamation of RECHS with Bahria Town depriving the petitioners from their lawful rights, then there is no need to record the evidence.
As such, the matter can be decided by this Court in its Constitutional writ jurisdiction. Regarding contention of learned counsel for Bahria Town that the writ petitions are hit by laches suffice it to say that when whole proceedings are illegal and based on fraud, the limitation will not come in the way of justice.
19.For what has been discussed above., all the writ petitions in hand are allowed, the notification dated 12.05.2006 as discussed above has no consequence, the merger/amalgamation dated 17.02.2005 being illegal is set aside and Chief Executive, Bahria Town is directed either to return the plots of the petitioners to them or pay the present market value of the same to the petitioners within a period of two months positively.
20.Let copy of this judgment be sent to Director- General, Anti-Corruption, Punjab, Lahore who is directed to probe into the matter and then proceed further against the delinquents strictly in accordance with law.