' Through Writ Petition No, 16379 of 1995 (Miss Wasim Khalida Khan v. Lahore Cantt. Cooperative Housing Society and four others), the petitioner has assailed the order of the Secretary Cooperative, Government of the Punjab dated 29-10-1995.
2. The brief facts relevant for the disposal of the petition are that the petitioner purchased plot No, B/42 Lahore Cantt. Cooperative Housing Society (LCCHS).- Lahore Cantt. From late Mr. Justice Lehrasap Khan and the same was transferred in the name of the petitioner. This transfer was duly approved by the LCCHS, respondent No,1 on 16-5-1987 vide letter No, 001839. The petitioner was also made associated member as permissible under the Bye-laws of the Society. On the spot, the physical possession was given to the petitioner in accordance with master plan dated 15-1-1978. At the time of taking possession on the spot, there was about 5/6 Marlas extra land having no access as the same was located on the periphery boundary of the society and the petitioner applied for the said land being the transferee of the aforementioned plot which the society declined.
' It may be mentioned here that in case of spare land available with Plot Nos. 43,44 and 45, the same was given to the respective transferees as per construction bye-laws of the Society.
' Thereafter the petitioner made verbal and written requests to the Society for allotting the spare land to her but of no avail. Subsequently, the location, breadth and the length of plot of the petitioner was changed, unilaterally, illegally and with mala fide intention which has caused loss to the petitioner and this act was against the law and bye-laws of the Society applicable to the present case. The petitioner then was obliged to invoke the jurisdiction for the Registrar, Cooperative Societies under section 54 on 10-5-1994 as a dispute contemplated under section 54 had arisen between the member and the Society. After summoning the respondent and providing opportunity of hearing to the parties, the Registrar, Cooperatives, accepted the prayer of the petitioner vide his order dated 30-8-1994. According to learned counsel for the petitioner, Lt.-Col (Retd.) Ahmed Raza Khan and Mrs. Yasmeen Ashraf, respondents 2 and 3 respectively, did not file any appeal against the order of the Registrar. Anyhow, respondent No,1, the Society filed an appeal against the aforesaid letter dated 30-8-1994. This appeal was accepted by respondent No,5, the Secretary, Cooperative Government of the Punjab vide his order dated 20-10-1995 which has been impugned in this petition.
3. The Lahore Cantt. Cooperative Housing Society (LCCHS) filed Writ Petition No,18005 of 1995 against the order dated 29-10-1995 passed by respondent No,1, Secretary relating to allowing Miss Wasim Khalida Khan, petitioner in Writ Petition No, 16379 of 1995, to keep her boundary wall beyond 6 feet high.
4. As both these Writ Petitions being No,16379 of 1995 Miss Wasim Khalid Khan v. Lahore Cantt.
Cooperative Housing Society and No,18005 of 1995 "Lahore Cantt: Cooperative Housing Society v.
Secretary, Government of the Punjab" arise out of the same order of the Secretary, Cooperative, Government of the Punjab etc." dated 29-101-995, they are being disposed of through this consolidated judgment.
5. Learned counsel for the petitioner Miss Khalida Waseem Khan, contended that according to law, respondent No, 1 Society, was not competent to change the location, length and breadth of the plot of the petitioner as shown in the Master Plan dated 15-1-1978 and thus the order of respondent No,1 is without jurisdiction and not sustainable in the eyes of law. He next contended that the petitioner after purchasing the plot from the original allottee stepped into his shoes and without affording any opportunity to the petitioner, this subsequent change made in the Master Plan is not warranted by law as the petitioner has been condemned unheard which is the violation of the principle of natural justice. The law requires that nobody should be condemned unheard and the impugned order is tainted with malice on this score alone, the order is liable to be set aside. Further contended that admittedly the petitioner purchased the disputed plot from the previous owner on the basis of final Master Plan dated 15-1-1978 verified from the office of the Society and at the relevant time she was assured that there would be no changes in the Master Plan on the basis of which the petitioner purchased the plot. Even under the Cantonment Act, 1924 read with Cooperative Societies Act, 1925 coupled with the bye-laws framed by the LCCHS, the Society had no power to afterward make alteration, and change in the Master Plan when the plot is purchased by the petitioner on the basis of the Master Plan; hence this action of the Society is unwarranted in law and the Secretary, Cooperative has exceeded his jurisdiction by upsetting the lawful order of the Registrar, Cooperative Society. The Managing Committee of the Society had duly approved the sale of Plot No, 42/B Phase-I to the petitioner and thereafter the Managing Committee had no legal power or right to revoke its order once the petitioner has purchased the plot on the basis of the aforementioned Master Plan. In view of the principle of locus poenitentiae there was no power with the Society as well as the Secretary, Cooperatives, Government of the Punjab to recall the order when decisive step had been taken by approving sale in favour of the petitioner. Due to the change made in the Master Plan, Plot No,42/B was divided as 41/1/1 and 41/1/2 having frontage of only 29 feet which has never happened in history of town planning. The right which the petitioner has acquired was taken away without giving opportunity of hearing and there is no law which permits the Society to change the Master Plan already approved, that is, on 15-1-1978. The Registrar of the Cooperative Society was obliged to accept the petition of the petitioner under section 54 of the Cooperative Societies Act and this legal and valid order was illegally and without jurisdiction upset by the Secretary, Cooperative. The finding of the Secretary, respondent No,5 is contrary to the record and he committed legal error by passing the order which is based on no evidence, misreading of evidence or ignoring of material evidence or taking into consideration inadmissible evidence being without lawful authority and is liable to be set aside on this ground alone apart from the other legal grounds, already mentioned. The direction of the Secretary, Cooperative that the petitioner should approach the Cantonment Board for the redress of her grievance is against the provisions of the Cantonments Act, 1924 as the Board has no authority to interfere into the matters of Cooperative Societies which are governed by the law laid down in Cooperative Societies Act, 1925.
6. In the presence of these legal infirmities, the writ petition may be accepted with costs and the order of Secretary, Cooperatives may be declared to be without lawful authority and of no legal effect. In addition to oral arguments, learned counsel for the petitioner has placed on record the written arguments. The learned counsel for the petitioner in support of his submissions placed reliance on (1) (PLD 1964 SC 503, (2)) PLD 1960 SC 310, (3) PLD 1973 Quetta 14, (4) PLD 1979 Quetta 131,
(5) PLD 1956 FC 46, (6) PLD 1964 SC 438, (7) PLD 1963 Lah. 53, (8) PLD 1965 Pesh. 31, (9) PLD 1992 SC 207, (10) PLD 1995 Lah. 339, (11) 1994 MLD 603, (12) PLD 1991 SC 973 and PLD 1969 SC 407.
7. Col. Iqbal Janjua, Advocate, learned counsel for the LCCHS, petitioner in Writ Petition No, 18005 of 1995, vehemently contended that Miss Wasim Khalida, petitioner in Writ Petition No, 16379 of 1995, purchased the property through property dealer on 16-5-1987 and the formal transfer was issued by the Society on 31-5-1987. While becoming associated member of the society in accordance with the bye-laws, Miss Khalida gave an undertaking that she will abide by all the bye-laws regulations and resolutions passed by the Managing Committee from time to time and in the presence of this legal embargo, she had no legal justification to challenge the order of the Society passed with respect to the plot, subject-matter of the writ petitions. Miss Khalida applied for taking over the possession and demarcation of her plot on 1-7-1987 under the bye-laws and the possession was legally handed over to her on- 3-8-1987. At the time of taking of the possession, the petitioner Miss Khalida was well aware of this position as is apparent from Annexure B to the written arguments filed by the Society according to which along with Plot No, 42-P there is Plot No,42/1 on its right side and on the application Plot No,42/1 on longer side 114 feet also exists. Both these documents were signed by the petitioner herself along with the Project Engineer of LCCHS as a token of its correctness and acceptance and by her conduct she is estopped from raising any objection to this document and change of the plot in pursuance of the subsequent Master Plan as it is pertinent to mention here that the plan is made on the paper but the Master Plan has to be carried out on the actual field. Sometimes there occurs certain hurdles which can be removed by making alterations and additions in the Master Plan. In the present case, no doubt, Plot No,42 on the map exists but when actual implementation of the said plot was executed then it appeared that the area of the plot has to be changed to cater for the ground position as existed at the relevant time. The petitioner from her very conduct is not entitled to discretionary relief from this Court as she has committed various violations and illegalities of the bye-laws as detailed below:
(a) Included space of 70 sq. Ft. In addition to her plot;
(b) at the back of her house; she left 3-1/2 feet open space instead of 5-1/4 feet;
(c) all constructions material including bricks was stored on the road side which proved a traffic hazard and constructed about 9 feet high boundary-wall instead of 6 feet.
' In view of the violations referred above, the Society imposed fine on the petitioner, and she paid Rs,1,167 as price of the additional land and Rs,2,700 as a fine imposed on the construction violation as reflected by Annexures C and C/1 to the written arguments. Further contended that the petitioner applied for the sub-division of her plot on 24-4-1988 which was sub divided on 30-8- 1988 and the Plot No,42/B was renumbered as B/42/2 and B/42/3. As the petitioner has accepted this modification and alteration she under the law of evidence is debarred from taking objection to the bifurcation for the plot due to her own conduct . The petitioner Miss Khalida at the end requested for the allotment of piece of land at the back of her Plot No, B/42/2 and B/42/3. In fact it was full-fledged plot numbering 42/1 which exists in Annexures B and D, so the request of the petitioner Miss Khalida was declined after due examination by the Managing Committee in accordance with the bye-laws. Further submitted that the order of the Secretary may be modified to the extent to keep the boundary wall beyond 6 feet high of petitioner's house.
8. Learned counsel for respondents No, 2 and 3 in Writ Petition No,16379 of 1996 vigorously urged that the order of the Registrar is illegal, as the petitioner herself asked for the arbitration and placed reliance on PLD 1994 Lahore 353 and 50, the Registrar has no power to take away a plot from the owner to allot it any other person. Section 42 persists on legal rights and Article 199 of the Constitution shows that a prerequisite to be brought in this case, the petitioner has not shown any legal rights or any legal action violative to her legal rights which the petitioner failed to show. The Master Plan for the year 1985 is a valid document and it was only passed by the Lahore Cantonment Cooperative Housing Society, according to the rules, all citizens have equal protection of law. The proper material not placed before the Court to support the contention and the petitioner cannot avail the Constitutional remedy in the absence of that. The Tribunal set up under the law has jurisdiction to decide rightly or wrongly, the petition suffers from laches. The document was not produced in accordance with Articles 86, 88 of Qanun-e-Shahadat. The order is void, as it was passed in the presence of stay order and placed reliance on PLD 1978 Lahore 113, PLD 1985 Quetta 252 (sic), PLD 1964 Kar.588, PLD 1967 Lah. 762, PLD 1981 SC 522, PLD 1980 Pesh. 177, PLD 1973 SC 49, PLD 1961 Lahore 786, PLD 1954 FC 123, PLD 1991 SC 376, 1992 CLC 986 and 1986. SCMR 622, in addition to the oral arguments, learned counsel has placed on record the written arguments. In the end, learned counsel for respondents Nos.2 and 3 strenuously urged that it is correct that these two respondents did not file any appeal against the order of the Registrar, Co-operative Societies, but in view of the provisions of Order XLI, rule 4 of C.P.C. This defect is not fatal to the case of the respondents as according to rule 4 where there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be, thus, the contention of the learned counsel for the petitioner is untenable in law. He also contended that Miss Wasim Khalida, petitioner, was not a member of the Society, she was associated member due to the purchase of the plot in question; hence she could not invoke the jurisdiction under section 54 of the Cooperative Societies Act and the Registrar had no jurisdiction to pass the order dated 30-8-1994 and respondent No,1, Secretary rightly set aside the same. In the end, he also adopted the arguments addressed by the learned counsel for the Cooperative Society.
9. Vide my order dated 19-12-1996, I summoned the record from respondents 4 and 5, Registrar and the Secretary Cooperative Societies, respectively, whicli has been received and perused by me with the able assistance of learned counsel for the parties.
10. During the hearing, learned counsel for the parties placed certain miscellaneous app] citations on the record. All the matters are being disposed of together.
11. I have carefully gone through the record with the able assistance of learned counsel for the parties and have minutely examined their respective submissions.
12. The contention of learned counsel for Miss Wasim Khalida that respondents 2 and 3, Ahmad Raza Khan and Mrs. Yasmeen Ashraf, did not file any appeal against the order of the Registrar, Cooperatives before the Secretary, is not tenable in view of the provisions of Order XLI, Rule 4, C.P.C.
Which reads as under:- "4. Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of the plaintiffs or defendants as the case may be."
13. A perusal of the bye-laws of the Society as well as the Cantonments Act shows that the Society or its Managing Committee had no power to alter or make alterations in the basic document, that is, Master Plan dated 15-1-1978. Even on the principle of locus poenitentiae, the Society was debarred from recalling or taking different position after the petitioner got the possession of the plot in accordance with the Master Plan. Respectfully following the law laid down in PLD 1969 SC 407, I find that the respondent No,1 had no jurisdiction to set aside the order of the Registrar, Cooperatives. Learned counsel for the Society has failed to point out any provision of bye-laws under which the Managing Committee had the powers to amend or alter unilaterally the Master Plan without giving any right of hearing to the petitioner Miss Wasim Khalida who is going to be affected by this alteration in the Master Plan. This action of the Society is against the principle of natural justice as the law requires that nobody should be condemned unheard. On this score also, the order of the Secretary, Cooperatives is not sustainable in the eyes of law. Respondent-Registrar, Cooperatives rightly observed in his judgment as under:- "By doing this the respondent Society ignoring the spirit of cooperative principles and practice, decisions of its own Executive Committee grossly violated the Town Planning tenets and rights accrued to owners of Plots Nos.41, 42 and 43 by changing the sizes and dimensions of these plots, thus causing damage, particularly to the petitioner and owner of Plot No,43. Similarly, the respondent society allowed sub-division of the newly created odd Plot No,41/1/1 measuring about 2 Kanals and having frontage of only about 29 feet and no other access; whatsoever, could be sub- divided into two equal plots of about 1 Kanal each causing congestion, pollution, traffic hazards because of eliminating the traffic island provided in the finally approved Master Plan. If the respondent Society had not acted in such illegal, illogical and unlawful manner, there would have been Plots Nos.42 and 43 of standard sizes according to the bye-laws of the Society and the spare land could be utilised for widening the road by 3 to 5 feet leaving spare space about 8/9 Marlas behind Plot NO.42 which according to the own decisions of the Executive Committee of respondent Society, its own bye-laws about such spare spaces should have been allotted to the petitioner at the price in similar cases."
14. The contention of the learned counsel for the Society as well as respondents Nos.2 and 3 in Writ Petition No,16379 of 1995 that Miss Khalida, petitioner is debarred from her conduct to assail the order of the Society being member of the Society and in view of the provision of Bye-law No,99 has no force as according to Bye-law No,90 of the Lahore Cantt. Cooperative Housing Society, a member of the Society can take legal action against the Society if the Society had no jurisdiction to do an act. As in the present case according to the bye-laws, the Society was debarred from altering or change the Master Plan. The conduct of Miss Khalida Wasim, petitioner would not make the void order as legal order. The next contention of the learned counsel for the Society that the petitioner violated certain construction bye-laws of the Society and from her conduct she is disentitled to have discretionary relief from this Court is also without merit. Miss Khalida Wasim, petitioner, had been properly penalised and punished for illegal construction and if the basic order is void then that order can be ignored what to say to invoke the jurisdiction of the Registrar who was competent under section 54 of the Cooperative Societies Act to adjudicate upon the dispute between the members of the Society.
15. The upshot of the above discussion is that Writ Petition No,16379 of 1995 (Miss Wasim Khalida Khan v. LCCHS and 4 others) is accepted. The impugned order dated 29-10-1995 passed by the Secretary to Government of Punjab, Cooperative Department, Lahore, respondent No,5 is declared without lawful authority and of no legal effect, order of respondent No,4 dated 30-8-1994 is maintained.
16. Writ Petition No,18005 of 1995 (LCCHS v. Secretary to Government of Punjab, etc.) is dismissed.
As complicated question of law and facts were involved in these cases; hence the parties are left to bear their own costs. The record be sent back.