Ch. Muhammad Iqbal, J:- Through this single judgment, we intend to decide the titled writ petition [No.14800/2010] and Writ Petition No.14799/2010 as common questions of law and facts are involved in these cases.
2. Through these constitutional petitions, the petitioners have assailed the validity of the order dated 24.05.2010 passed by the Hon'ble Cooperatives Judge of this Court whereby petitions [No.P- 28 and P-29 of 2010] filed by the petitioners were dismissed.
3. Brief facts of the case as stated by learned counsel for the petitioners are that the respondent/Punjab Cooperative Board for Liquidation [hereinafter referred to as "PCBL"] floated an advertisement for sale through auction of shops No.12, 14 & 15 situated on the ground floor at 10-C Commercial Zone, Liberty Market, Gulberg-III, Lahore and invited sealed bids but no bid was received. The petitioners showed interest to purchase a shop through private treaty/negotiation and after settlement of consideration with the Chairman, PCBL, paid 2% of the bid amount of the shops. One Muhammad Rafiq filed petitions [No.1829 & 1830 of 2002] before the Hon'ble Cooperatives Judge of this Court claiming to be purchaser of the said shops against consideration of Rs.3,50,000/- and prayed for issuance of an injunctive order qua auction of said shops. The said petitions were disposed of with the direction to the Chairman, PCBL to decide the matter after hearing all the concerned parties. In the post-remand proceedings, the Chairman PCBL dismissed the application of Muhammad Rafique vide order dated 20.06.2009 Thereafter, the petitioners approached the PCBL authorities through an application dated 27.06.2009 to transfer the said shops in their favour. The Chairman, PCBL dismissed said application on 04.07.2009. The petitioners challenged the order through petition No.149/2009 before the Hon'ble Cooperatives Judge which petition with the concurrence of learned counsel for the parties was disposed of on 01.02.2010 and the matter was remitted to Chairman, PCBL for fresh decision. In post remand proceeding, the Cooperative Board dismissed the applications vide order dated 20.03.2010. The petitioners assailed the said order through petitions [No.P-28 and P-29 of 2010] which were dismissed by the Hon'ble Cooperatives Judge of this Court vide consolidated order dated 24.05.2010. Hence, these petitions.
4. Arguments heard. Record perused.
5. Admittedly, PCBL being lawful owner / custodian of the property advertised auction of ownership rights of shops No.12, 14 & 15 situated on the ground floor at 10-C Commercial Zone, Liberty Market, Gulberg-III, Lahore but the said endeavor could not succeed as no auction purchaser / bidder came forward to participate in the auction process. As per blatant assertion of the petitioners that they negotiated the transaction with Chairman PCBL through a private treaty and purchase the shops where under they had paid 2% of the settled sale price and they are ready to pay the remaining consideration thus shops be transferred to them, suffice it to say in this regard that before marching ahead it is appropriate to ascertain as to whether the Chairman, PCBL has any jurisdiction to unilaterally alienate the property of Board through any private treaty/ negotiation.
Perusal of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 shows that no such provision is available in the said enactment whereby Chairman, PCBL is shown competent to pass order for selling the property of the PCBL through any private negotiation / treaty. Section 5 of the Act ibid empower the Government to constitute a Cooperative Board which shall consist of a Chairman and at least two members. The said Board is bestowed with the jurisdiction under Section 7 of the Act ibid to exercise power as a liquidator under the Cooperative Societies Act, 1925 along with ancillary administrative powers as well. For ready reference, Sections 5 and 7 of the Act ibid are reproduced as under: "5. Cooperatives Boards.- (1) The Government may establish as many Cooperatives Boards as it may deem necessary and assign names to them.
(2) A Cooperatives Board shall be a body corporate, having perpetual secession and a common seal, with powers, subject to the provisions of this Act, to enter into contracts and to acquire, hold and dispose of property, both movable and immovable, and shall, by the said name, sue and be sued.
(3) A Cooperatives Board shall consist of a Chairman and at least two members.
(4) The chairman and other members whose qualifications and terms and conditions of service shall be such as may be prescribed, shall be appointed by the Government. ...
7. Powers of a Cooperatives Board.- A Cooperatives Board when appointed as a Liquidator under this Act shall have all the powers exercisable by a Liquidator under the Cooperative Societies Act, 1925 and in addition to that shall have the power to-
(a) verify the claims already filed with the Commission; entertain and dispose of objections against the acceptance or rejection thereof and also entertain claims, in case, reasonable cause is shown for not filing the same earlier;
(b) unearth and proceed against any concealed or hidden property of an Undesirable Cooperative Society, whether in the name of any Director, Officer, agent or any of the members of their families or in the name of any other person, body, company or firm acquired or purchased by using or diverting the funds of such a society;
(c) determine the assets and liabilities of an Undesirable Cooperative Society and those of its Promoters, Directors, Officers and agents and of the past members of its committees of management;
(d) fix and pay to any person on whose information to a Cooperatives Board any hidden assets of an Undesirable Cooperative Society are retrieved, a compensation not exceeding fifteen percent of the value of such assets;
(e) cancel all agreements entered into by an Undesirable Cooperative Society or its previous managements or Directors, Officers or agents, which in the opinion of the Cooperatives Board are mala fide and against the interest of such a Society or the members thereof;
(f) decide and settle objections and claims of third parties relating to assets and properties of an Undesirable Cooperative Society; provided that the plea of limitation shall not be a defence against the recovery of any assets and properties of an Undesirable Cooperative Society;
(g) recall and recover loans advanced by an Undesirable Cooperative Society, for which purpose the provisions of all existing laws including the Cooperative Societies and Cooperative Banks (Repayment of Loans) Ordinance, 1966 with necessary adaptations shall apply to the Cooperatives Boards, but nothing contained in this clause shall be a bar for a Cooperatives Board to make reference in respect of any loan, in terms of Section 4 of the said Ordinance to the Assistant Registrar or Registrar as the case may be, who shall thereafter proceed against the borrowers under the provisions of the said Ordinance;
(h) determine the validity of adjustment of deposits, loans, deposit certificates, securities and other such instruments;
(i) call for any information, document, record or evidence from any person, authority, agency or department;
(j) initiate inquiries through police and other agencies for unearthing hidden or concealed properties and assets of an undesirable Cooperative Society and its Directors, Officers, agents, benamidars and the members of their families;
(k) initiate criminal prosecution of Directors, Officers and Agents of an undesirable Cooperative Society and other persons connected with the properties and affairs of such a society;
(l) avail itself of financial assistance from Bait-ul-Maal and other agencies for payment to depositors who are deserving destitutes, widows, orphans or infirm persons;
(m) develop the properties of an undesirable Cooperative Society and for that purpose to formulate and execute development schemes with or without the collaboration of the official development agencies and dispose of assets and properties;
(n) assess the market value of properties and assets of an undesirable Cooperative Society for their disposal;
(o) take loans, financial assistance and do all acts, deeds and things necessary for the implementation of the requirements of this Act and directions, orders and decisions of the Cooperatives Judge;
(p) satisfy wholly or partly the verified claims with the approval of the Cooperatives Judge at any time pending winding up proceedings and final determination of assets and liabilities of an undesirable Cooperative Society;
(q) incur all reasonable expenses for the management of a society to be dealt with by it and for other purposes under this Act;
(r) subject to the rules appoint such officers, advisers and other employees as it considers necessary for the efficient performance of its functions, on such terms and conditions as it may deem fit;
(s) delegate to the Chairman, or any member or committee or officer or adviser, any of its powers under this Act or the rules;
(t) apply to the Cooperatives Judge for guidance, in relation to any particular matter arising in winding up proceedings;
(u) (u) maintain accounts in such manner as may be prescribed; and
(ta) direct the eviction of tenants from any of the properties vested in the Board;
(tb) create a fund for social sector development in the Punjab with surplus assets if any;
(v) refer a case, for the recovery of a loan advanced by an undesirable Cooperative Society or for the execution of any decree, order or award passed in favour of such a Society, at any stage of its proceedings to the Cooperatives Judge who may dispose it of or otherwise deal with it in accordance with such procedure as may be prescribed and until the procedure is prescribed as may be determined by the Cooperatives Judge."
Even by applying microscopic scanning to the above provision of law the Chairman, PCBL is not vested with any exclusive power to alienate the properties, assets of the Board through any private treaty or understanding. Even otherwise, as no bidder participated in auction and above attempt of selling through auction remained unsuccessful and present petitioners had not participated in auction process rather they chosen a novel avenue to acquire the shops through under the table settlement which always remain vulnerable to collusivety, nepotism, favourtism and corrupt practices and such practice dwindles the legality and veracity of said mode of transaction and thus any arbitrary alienation of public assets at a miserably throw away price remain always open for interference by the competent fora.
6. The record shows that there was pending litigation regarding the shops in question between the PCBL and one Muhammad Javed etc. / some private persons. Even there is nothing on the record to show that any offer was given by the Chairman, PCBL to the petitioners regarding selling of the suit shops to them or any such approval was obtained from the Cooperative Board of the PCBL, thus any making of unwarranted deposit of some small amount does not create any right to bound down the owner Board to acknowledge the private treaty and even no document is placed on the record to show that the Chairman was authorized by the Board through any resolution/ consensus of the Board to alienate the shops in question in favour of the petitioners, as such any collusive private treaty for sale of the shops had arrived at, that too is devoid of any force to create any right or obligation be considered as agreement/ contract enforceable by the law and even any decision of an authority against the public policies is always void in nature and same are not enforceable through constitutional jurisdiction of this Court. Even otherwise, in contractual matter the writ petition is ordinarily not maintainable. Further when law requires an act to be done in a particular way that should have to be done accordingly otherwise that act garners no validity.
7. Moreover, when the auction proceedings of the aforesaid shops were conducted, the petitioners neither participated in the said proceedings nor made any offer in respect of the shops in question and subsequent ventures to purchase the said shops through private understanding demonstrate existence of mischief of an apparent fraud. Thus, no legal right can be built thereupon rather any foundation raised upon fraud and colusivety that stand automatically dismantled, thus the Cooperative Board unanimously dismissed the application of the petitioners for purchasing the shops in question vide order dated 22.03.2010 which order was rightly upheld by the Hon'ble Cooperatives Judge of this Court while dismissing the petitions of the petitioners and in Para No.4 stated as under:- "4. I have heard the learned counsel for the petitioner and also perused the available record. There is nothing on record which could suggest that the petitioners participated in the auction of the shops in question. The shops in question are the public property and if the Ex-Chaman of the PCBL, as per assertion of the petitioners, had offered the petitioners to purchase the shops at the rate of Rs.1900000/- per shop that was an illegal act of the Ex-Chairman as he could not have sold the property of the PCBL without adopting due procedure and observing formalities. The petitioners have not been able to show any document by which the offer of the petitioners for the purchase of the aforesaid shops had been accepted by the PCBL and if the petitioners had of their own deposited some amount with the PCBL under the garb of sale of shops in question, PCBL is not responsible for the same, as such, there is no vested right in the petitioners that they had purchased the shops. Even otherwise, the property in question is of the value of much more than offered by the petitioners and this Court cannot pass such a direction to the respondent to hand over the property in question to the petitioners in the year 2010 on the same price which the petitioners had offered in the year 2002. The property of the PCBL is the assert of the public at large and by selling the same the PCBL has to satisfy the claims of general public and this Court cannot be party to such a transaction which has no proof at all. In such circumstances, I do not find any force in this petition."
8. Learned counsel for the petitioners has not pointed out any illegality or material irregularity in the impugned order and has also not identified any jurisdictional defect calling for interference by this Court.
9. Resultantly, these writ petitions are dismissed being devoid of any merits. However, it is observed that the petitioner has dragged the State institution in futile and frivolous litigation since 2002 without having any sort of valid right. Thus by relying on the dicta of the Hon'ble Apex Court rendered in Capital Development Authority, CDA through Chairman, CDA, Islamabad Vs. Ahmed Murtaza and another (2023 SCMR 61), Province of Punjab through the Deputy Commissioner, Collector District Gujranwala and others Vs. Zulfiqar Ali and another (2024 SCMR 22) and Javed Hameed and others Vs. Aman Ullah and others (2024 SCMR 89) petitioners are burdened with special cost of Rs.10,00,000/- which should be recovered as arrears of land revenue in favour of the respondent.