1. ' WAJIHUDDIN AHMED, J.---The petitioner claims to be owner of Plot No,SNPA-17/E-2, admeasuring 1000 sq. Yds., Karachi Cooperative Housing Societies Union Limited (Union). It is stated that the petitioner is in physical possession and boundary wall of the plot has been raised. It is next said that such plot was purchased by the petitioner for a total consideration of Rs,1,025,000 from Minhas Medical Association of which respondent No,2 is said to be the President. The purchase was made through a conveyance deed dated 30-5-1993 and mutation was effected in the records of the Union, respondent No,4. As to the title of Minhas Medical Association itself, it is maintained that the plot in question was leased out to such association on 12-10-1982. The sub-lease of that date executed by the Union, figuring as lessee, stipulates that the plot could be used for an amenity purpose only, which, according to the petitioner, was to be for a hospital/clinic. Since, according to the petitioner's version, in November, 1992, there was an interference in the petitioner's possession by the respondent No,1, the matter was brought to the notice of the concerned S.D.M. The respondent No,1 later filed Suit No,764 of 1993 on the original side of this Court. Meanwhile, the respondent No,1 is stated to have also preferred an Arbitration Case bearing No,117 of 1994 before the respondent No,5 (Deputy Registrar, Cooperative Societies), who, in turn, referred the matter to a nominee for adjudication of the dispute. The nominee, in turn, according to the petitioner's version, returned the reference saying that the same was not maintainable so long as the respondent No,' 1 plaintiff did not withdraw her suit from the High Court. At this juncture, the petitioner avers that he became aware that some title documents were executed by Al-Riaz Cooperative Housing Societies Limited, respondent No,3, in favour of the respondent No,1 and that transpired in the year 1976.
2. However, the petitioner further avers that the allotment in favour of the respondent No,1 was cancelled by the Union under M.L.O. 34 issued by the Martial Law Administrator on 13-10-1977. M.L.O.
3. 34 aforesaid is in these words:-- "No, 34 (13th October, 1977)
4. ' In pursuance of the Proclamation of the fifth day of July, 1977, and in exercise of the powers conferred by Martial Law Order No,3 issued by the Chief Martial Law Administrator, the Martial Law Administrator Zone 'C' is pleased to make the following Martial Law Order: ' All allotments of the plots which were reserved for roads, hospitals, schools, colleges, libraries, playgrounds, gardens, parks, community centres, mosques, graveyards or for such other amenity/community purposes but were subsequently unauthorizedly or by political manoeuvres converted into residential or commercial plots and on which no construction has been made are hereby cancelled and the plots so cancelled shall be resumed by the authority in which the plots initially vested and the amounts, if any, paid by the allottees shall be refunded under the normal rules."
5. ' On the basis of the above M.L.O., it is claimed by the petitioner that a committee was formed to examine individually all cases of cancellation of amenity plots. Such committee, allegedly, issued notices to all allottees of plots whose allotments were cancelled and one such notice is said to have been issued to the Respondent No, 1 . Since, however, no response was made by the respondent No,1, the committee so formed confirmed the cancellation of the disputed plot under M.L.O. 34 above. It is then urged that M.L.O. 34 was reconstituted by M.L.O.89, issued on 18-7-1979.
6. Examining that M.L.O. We find that the only relevant difference introduced by the same was a conferment of a right of appeal to an aggrieved person within 15 days of the promulgation. M.L.O.
7. 89 above was followed by M.L.O. 247 issued on 18-12-1984. For our purposes, the distinction drawn in such M.L.O. As regards previous promulgations was that here also a period of 15 days was provided from the date of promulgation to prefer an appeal to the Government, Government orders on appeal being made final. Another aspect of the matter pertained to the apparent relaxation of the provision regarding the appeal ex facie having reference to the period provided therein.
8. ' The respondents were noticed in this petition. Counter affidavits and comments have been filed. In her counter-affidavit, the respondent No,1 maintains that she never became aware of the cancellation of the plot. No notice was served on her. No hearing was accorded to her. She further maintains that in the suit an objection as to maintainability was taken on the ground that she had already invoked the provisions of section 54 of the Cooperative Societies Act, 1925, and on that basis she was constrained to withdraw the suit. That having been accomplished, according to the version of the Respondent No,1, the petitioner started objecting to the arbitration proceedings also.
9. On the part of the respondent No,5, the Deputy Registrar Cooperative Societies, he has passed the impugned order after the disposal of the above suit (7-12-1994) on 7-8-1995 where he has found the arbitration case to be maintainable, leading to the present petition coming to be filed.
10. ' During the course of hearing, it was noted that the petitioner is a son of a former Director-General of K.D.A., namely Sabahat Ali Khan, and in order to obviate possibilities of mala fides, the petitioner was required, per order dated 9-9-1996, to explain, through an affidavit, the role of the petitioner's father, if any, in the petitioner's acquiring the rights in the disputed plot. Through the same order, the petitioner was asked to clarify as to how an amenity plot could be transferred to him when the amenity purpose had not yet materialised. This was particularly relevant as the very legislation upon which the Respondent No,1 allegedly ceased to have right in the plot in question, operated on the premise that the amenity purpose of the plots, subject-matter of the M.L.O., stood unauthorisedly or by political manoeuvres converted into residential or commercial. Such affidavit was filed on 18-9-1996. It is averred therein that the petitioner's wife is a qualified doctor having done her M.B.,B.S. From the Karachi University, that the petitioner wanted to establish a clinic for his wife and that the respondent No,2, President of the Minhas Medical Association, offered to sell the disputed plot and thereupon, after full scrutiny through counsel, the purchase was effected. The petitioner's father helped him in paying part of the consideration. As to the rights of the respondent No,1, it is maintained that she is the wife of one Raees Ahmed Irshad, a very influential person, who was, at one time, top executive of the Civil Aviation Authority and subsequently forced to resign his office due to fake degrees etc. Such influence is claimed to have weighed in the pursuits of the respondent No,1.
11. ' Examining this controversy and hearing the learned counsel, we had dismissed this petition through a short order passed on 30-9-1996. Our reason for the dismissal follow: ' At the outset, we must express our concern that a valuable plot, specifically allocated for an amenity purpose, has remained utilised over an inexplicably long period of time. This would cover the period when the same successively remained with the respondent No,1, the respondent No,2 and finally the petitioner. All such appears to be unconscionable because the amenity purpose has patently remained unequited. The impasse may well have occurred because the amenity plot was not allocated to be deserving individual who, in turn, may have entertained ideas other than those commensurate for the purpose. The situation needs to be attended to in the larger perspective and public interest.
12. Coming to the right and title of the Respondent No,1, it is no doubt correct that, pursuant to M.L.O. 34 and its reconstituted versions viz. M.L.Os. 89 and 247, allotments of amenity plots stood cancelled but, obviously, all such plots could not and were not cancelled. The first consideration for such a cancellation was a conversion of the amenity purpose to another in contravention of law and the second, absence of construction on the plot. The two conditions were to subsist together to bring about an automatic cancellation under the successive M.L.Os. Thus, in order that the respondent No,1 stood deprived of her entitlement in the plot, both these factors had to be found as subsisting.
13. It is only then that the plot would revert and the respondent No,1 could be paid back the expense she incurred for obtaining it. As for the respondent No,2, that respondent could acquire the plot only if available. Same would be the position of the one who claims under the respondent No,2.
14. ' Another aspect which may be dealt with her is that the respondent No,2, admittedly, has sold the plot for a huge consideration without having realised the amenity purpose himself. This in itself may be a negation of the object which the plot carried and should be impermissible.
15. ' Larger questions than the above may also have to be encountered if and when the dispute is attended to threadbare. Thus, it will have to be seen whether the respondent No,2 wielded any influence to get the plot in the manner that he did. It may also have to be seen whether the father of the petitioner had anything to do with such allocation as, ultimately, the plot has ended up with the son of a former Director-General of K.D.A., a person who obviously has held a position of influence in the past. The same may apply to the respondent No,1 about whom as well-allegations are that it was on account of the position and status of her husband that she came to have the plot when others, obviously, may have had to be excluded. All such matters patently are posed for examination though only in course of time and elsewhere.
16. In the circumstances, the impugned order of the Deputy Registrar, Cooperative Societies, which merely postulates a reference of the dispute raised by the respondent No,1 under section 54 of the Cooperative Societies Act, seems to be unexceptionable. The Deputy Registrar is right when he says that irrespective of the subsistence of Article 270-A in the Constitution which saves, inter alia, Martial Law Orders and acting emanating therefrom, an act ex facie saved can still open up for scrutiny if mala fides or absence of jurisdiction come to be established in relation to the same. As seen, mala fides appear to have been alleged and jurisdiction may be wanting if the plot in question did not fall within the four corners of M.L.O.34 for being resumed. In fact, the respondent No,1 has urged that she was not even aware of such a resumption and came to know of the deed having been done only when public notice was issued inviting objections previous to the transfer made by the respondent No,2 in favour of the petitioner. That was not earlier than 1992 and the respondent No,2 claims to have acted promptly thereupon. What is more, no material seems to have been placed on the record to indicate follow up measures against the respondent No,1 pursuant to the promulgation of M.L.O. 34 aforesaid.
17. Lastly, there have been equitable considerations also weighing against the petitioner. In the suit instituted by the respondent No,1, as aforesaid, the petitioner specifically pleaded bar of jurisdiction because the respondent No,1, plaintiff in the suit, had already resorted to the remedy under section 54 of the Cooperative Societies Act, spelling a bar against civil proceedings. Acting on that plea, when the Respondent No,1 withdrew her suit, it was hardly open for the petitioner to question the arbitration proceedings under section 54 above before the same had been taken to their logical conclusion. At the stage of mere pendency of such proceedings, therefore, we do not consider this to be a fit case for interference. That can be taken care of it and when final orders are passed.
18. ' Before concluding the reasons for our short order, we must re-emphasise that in the arbitration proceedings as well as at the administrative level, serious thought should be given to find out whether or not any of the contesting parties namely, the respondent No,1, the respondent No,2 and the petitioner, in that order, were or were not qualified to get the amenity plot in the very first place or having got the same havn't they or any one or more of them disqualified themselves to retain the same in the broad context of things. This may not be confined to action under the M.L.Os.
19. Aforesaid but may open up the way for an independent resort to the general powers and jurisdictions under the cooperative law.
20. ' The foregoing were our reasons for the short order of dismissal of the present petition.