' The brief facts out of which the proent writ petition arises are that respondent No I allotted Commercial Plot No,22 to Saleem,Sadiq on 9-12- i985. Petitioner No,1 purchased the aforesaid plot from original allottee Saleem Sadiq on 16-4-1994. Respondent No,1 issued membership certificate to original allottee on 15-12-1984. Respondent No,1 also issued transfer order of the plot in question in favour of petitioner No,1 on 16-6-1994. Possession slip of the plot in question was also issued in favour of petitioner No,1 by respondent No,1 vide letter, dated 25-6-1994. Respondent No,1 also allotted Commercial Plot 'NO.,20 in favour of Ali Haroon Shah in the year 1985. Original allottee sold the plot in question to Bashir Ahmad who subsequently sold the same , to petitioner No,2 on 18-8- 1994. Respondent No,1 issued a membership slip in favour of original allottee Ali Haroon Shah which is attached with the writ petition as Annexure "B" respondent No,1 also issued transfer letter in favour of petitioner No,2 on 18-8-1994 and possession slip was also issued by respondent No,1 in favour 'of petitioner' No,2 on 24-8-1994. Respondent No,1 got sanctioned master plan from respondent No,2 in the year 1990. Master plan reveals that it contained a space _ open in between this commercial zoiie site plan Which was reserved for the use of public at large as parking place. Management of respondent No,1 malafidely converted the earmarked place into plots and allotted them to their favourites or for their pesonal gains. Respondent No,1 some years back, tried. To convert the open place into plots and construction was commenced Mrs. Fauzia Zia being aggrieved filed Writ Petition No,3897 of 1994 in which restraining order was passed by this Court. Respondent No,1 wanted to convert the open space into the commercial plots and wanted to allot the said plots to their favourites. The . Petitioners approached respondent No,1 but respondent No,1 did not redress the grievance of the petitioners.' Some unknown persons wanted to construct the building over the plot in question which were earmarked for car parking. The petitioners being aggrieved filed this writ petition. Respondent No,4 Dr. Ayaz Ali Khan filed C.M. No,1 of 2001 to be impleaded as respondent. Said application was accepted vide order 21-11-2001.
2. Learned counsel of the petitioner submits that respondent No,1 has no jurisdiction to convert the plots reserved for public utility i,e, for parking. He further submits that respondent No,1 has no authority whatsoever to change the- master plan in violation of law. He further submits that respondent No,2 admitted in report and parawise comments in reply to para.3 that respondent No,1 had converted the plots in question without securing permission from respondent No,2.
3. s Mian Muzaffar Hussain, legal advisor of - respondent No,2 submits that according to the report of field staff shops at site reserved for parking purposes have not been constructed. However, some unknown persons in recent past tried to start unauthorised construction against the sanctioned scheme plan. Notices under sections 40(a) and 40(b) of L.D.A. Act were served and demolition order was passed by the competent Authority. Therefore, no construction work taken place on the said piece of land. He 'further submits that respondent No,1 has no authority to change the master plan without permission of respondent No,2. Respondent No,.1, did not get any permission for conversion from respondent No,2. He further submits that public utility area or public amenity plot under the housing scheme cannot be convertred to any other use in view of section 5 of Disposal of, Laud ,by Development Authorities (Regulation) Act, 1998. Learned counsel of respondent No,1 submits that petitioner has no locus standi to file this petition. In support of his contention he relied upon Salamat Ali v. Abdul Rauf 1982 SCMR 1034. He further submits that conversion of open space into plots by respondent No,1 relates to internal business of respondent No,
1. Therefore, Constitutional petition is not maintainable as the petitioners have alternative remedy to file arbitration proceedings before the competent Authority in view of section 54 of the Cooperative Societies Act, 1925. He further urges that petitioner approached this Court with unclean hands. He further submits that petitioner concealed the material facts in para.4 of the writ petition as Writ Petition No,3897 of 1994 filed by Mst. Fauzia Zia was dismissed as withdrawn. He further submits that petitioner misrperesented facts in the contents of the writ petition to the extent that the open space was meant for parking purposes which is not depicted out from the approved plan of the Society. He further urges that petitioner No,1 was allotted , Plot No,22 commercial measuring 5 Marlas on 16-6-1994 whereas petitioner No,2 was allotted Plot No,20 commercial measuring 5 Marlas on 18-8-1994. Therefore, they accepted the allotment on the basis of factual physical position prevailing at the time of transfer of the plots in question in their favour. The plots in question had already been used by way of commercial plots before the purchase of plot aforementioned by the petitioners. The Managing Committee of respondent No,1 had decided to convert the open place into plots vide its decision dated 11-4-1993 to discharge their liabilities of WASA and for the purpose of maintenance of the road. He further urges that petitioners have themselves committed illegalities as they have constructed their commercial buildings, without getting approval from the L. D . A. Authorities. Therefore, writ petition is liable to be dismissed on the well-known principle of approbate and reproabte. He further submits that petitioners cannot claim better right than the other members as is evident from the master plan that other commercial areas and in front of each commercial plot/building 7 to 8 feet area is left for parking purposes.
Learned counsel for respondent No,4 submits that Plot No,36 was allotted by respondent No,1 to Raja Nasir Ali on 6-5-1993 who sold the same to respondent No,4 on 11-4-1994. He further submits that respondent No,4 has constructed two shops over the Plot No,36 being the bona fide purchaser.
He further urges that respondent No,4 had already filed a suit for declaration with permanent injunction against respondent No,1 and against Qabza group before the learned Civil Judge, Lahore in which interim stay order was granted in favour of respondent No,4 by the learned Judge, Lahore vide order, dated 7-6-2000. The present writ petition has been, filed after the said order. Therefore, the petitioners approached this Court with unclean hands.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. I would like to dedide preliminary objection whether writ petition is maintainable in view of arbitration section 54 of the Cooperative Societies Act, 1925 or not. Section 54 regarding arbitration prima facie obstructs the present Constitutional petition regarding construction of commercial building over the plots in question which were earmarked for parking purposes or creation of nuisance to the locality as the aforesaid section relates to the dispute touching the business of the Society. The present controversy does not fall in the parameters/ingredients mentioned in section 54 of the aforesaid Act. In view of the legal position this Constitutional petition is maintainable. In arriving to this conclusion I am fortified by the following judgments:-- ' Mst. Sardar Begum and others v. Delhi Mercantile Cooperative Housing Society Limited and others 1997 CLC 962 and Siraj Farooqi v. Pir Ellahi Bux Cooperative Housing Society PLD 1956 Sindh 95.
' Similarly other preliminary objection that petitioners have no locus standi has also no force. In arriving to this conclusion I am fortified by the law laid down by the Honourable Supreme Court. In the following judgments:- ' Ardeshir Cowsji's case 1999 SCMR 2883 and Fazal Din's case PLD 1969 SC 223.
5. It is admitted fact that plots in question were reserved for specific purposes i,e, for parking place as is evident from the master plan as well as report and parawise comments of L.D.A. Respondent No,2. It is also admitted fact that Plot No,36 was allotted to respondent No,4. It is settled principle of law that once the scheme was acted upon then respondent No,1 has only authority to change the same in terms of the provisions of Lahore Development Authority Act, 1975 and scheme prepared thereunder which prescribed to invite the objections as the vested rights had accrued to the residents. The provisions of the scheme of L.D.A. Were interpreted by the superior Courts and laid down certian principles and guidelines for the authority. In Muhammad Sharif's case 1989 MLD 95 this proposition was considered and the relevant observation is as under:-- "The scheme aforesaid was acted upon by the petitioners and some of them also raised constructions at the site. The reduction of the width of the streets is a radical change in the scheme. Such alteration which is detrimental to the interest of the petitioners could not have been made without giving them an opportunity of being heard, but they were not associated with such alteration. The alteration of the Housing Scheme is thus illegal. Further, by virtue of section 18(3)(1) of the Lahore Development Authority Act, a Scheme made before its enforcement continues in force in so for as it is not inconsistent with the provisions of Act. No such inconsistency was pointed out to me on behalf of the respondent. On this ground as well as the impugned Scheme and its implementation suffers from a patent illegality."
' In this behalf following judgments may also be referred:--
(i) Ahmad Javaid Shah's case 1996 CLC 748, (ii) Masih Ullah Khan's case 1994 MLD 603, (iii) Mian Fazal Din's case PLD 1969 SC 223, (iv) Abdul Razzaq's case PLD 1994 SC 512 and Sh. Ahmad Din's case 1984 CLC 3304.
' Ingredients of section 41 of Transfer of Property Act'are also not attracted in view of aforesaid circumstances. The judgment cited by the learned counsel of respondent No,1 is distinguished on facts and law and has no relevancy to resolve the present controversy coupled with the fact that respondent No,1 has no authority to convert the public uitility earmarked place into any other use in view of section 5 of the Disposal of Land by Development Authorities (Regulation) Act, 1998.
In view of what has been discussed above this writ petition is accepted.