1. MUSHIR ALAM, J.---Through this common judgment, we intend to dispose of two petitions bearing Nos. D-1662 of 1999 and D-1480 of 1999. Petitioners have challenged the Memorandum dated 24-8- 1999 whereby the Managing Committee of PECHS resolved to allot Plot No,68- 1-F, Block 6, P.E.C.H.S., Karachi subject-matter of the petition, to one Khalil Ahmed Qureshi, Member of the Society. Briefly stating the facts in Constitutional Petition No,D-1662 of 1999 as may be necessary for the disposal of above petitions are that the petitioner was offered a plot or land by the respondent/P.E.C.H.S. Society at a price of Rs,11.50 per square yard as against prevailing rate of Rs,4 per sq. Yd. Fixed for the member of respondent No, I/Society such offer was accepted/demanded amount was paid, consequently petitioner was allotted subject plot measuring 200 sq. Yds. On 6- 12-1973. Possession was handed over on 8-11-1974. It, however, appears that subject plot without notice and hearing the petitioner was cancelled and allotted to one Rasheed Masood. Petitioner challenged the cancellation of plot through Constitutional Petition No,D-57 of 1989. Subsequent allotment in favour of Rasheed Masood the petitioner in Constitutional Petition No,1480 of 1999 was also cancelled who filed Constitutional Petition No,304 of 1995 assailing the cancellation. The matter came up for hearing before the learned Division Bench. Orders dated 28-11-1989 were passed in Constitutional Petition No,D-57 of 1989 in following terms: "In our view, the present petition may also be disposed of on the same terms and conditions except with the additional condition, namely, that the P.E.C.H. Society will also decide the question, whether the respondent No,4 (i,e, Rashid Masood) is entitled to retain the plot or the plot is to be given to the petitioner in case it is held that the cancellation of the allotment was not covered by MLO 34. The other aforesaid conditions are as follows:
(I) That both the parties shall maintain status quo as obtaining today, and
(ii) That respondent No,1 after hearing the petitioners will decide the question whether the petitioners' cases were covered by the recommendation of the Enquiry Committee and, whether any action is warranted keeping in view the facts of the case and principles of nature justice.
(iii) The petitions stand disposed of with no order as to costs.
2. (Sd.)
3. Ajmal Mian, C.J..
4. (Sd.)
5. Mukhtar Ahmad Junejo J.
6. (Note name of respondent No,4 added for identification purposes)." From the proceedings, it appears that the respondents again without hearing both the petitioners allotted the subject plot to yet another person the respondent No,3 Khalil Ahmed, it was contended by the learned counsel for the petitioner Mr.H.A. Rehmani in Constitutional Petition No,D-1662 of 1999 that under omnibus Martial Law Administrator, Zone 'C' directive contained in MLO 34 dated 13-10- 1977, cancellation of the plot, reserved for amenity purpose and which were converted into a residential purpose, were ordered. According to him on the face of it, the petitioner's allotment is not covered by MLO 34, therefore, the cancellation on the face of it was illegal. It is, however, averred that the subsequent allottee Rasheed Masood is hit by the recommendation of the Enquiry Committee as his allotment was made in the year 1980. It was contended that since the respondent No,1 did not comply with the directions given by learned Division Bench in Constitutional Petition No,D-57 of 1989. The Impugned Memorandum is illegal and cannot be sustained and more particularly the contest in respect of the suit plot was between petitioner in Constitutional Petition No,D-1662 of 1999 and petitioner in Constitutional Petition No,D- 1480 of 1999, therefore, directives were to adjudge the allotment of the plot between said two petitioners in accordance with prevailing law. In any case the allotment in favour of 3rd person i,e, Khalil Ahmed cannot be sustained. It is further contended that said Rasheed Masood, sold the property to the petitioner in Constitutional Petition No,1480 of 1999 under sale agreement dated 2-5-1987 for all intent and purpose who derives title from the Rasheed Masood. Mr. H.A. Rehmani, learned counsel for the petitioner in Constitutional Petition No,D-1662 of 1999 contented that the cancellation of petitioner's plot under MLO 34, cannot be sustained as there was no violation of the conditions laid down therein. He placed reliance on Samit Ali Khan v. Zainab lrshad PLD 1997 Kar. 450 to meet the contention of respondent that petitioner not being a member of the Society is not eligible to be allotted plot in P.E.C.H.S., he relies on the Pakistan Employees Cooperative Housing Society Ltd., Karachi v. Mst. Anwar Sultana and another PLD 1969 Karachi 474. Mr. Mumtaz learned counsel for the petitioner in Constitutional Petition No,D-1480 of 1999 contends that the petition was rightly allotted the plot being member of the Society and impugned memorandum according to him has been issued against the direction given by learned Division Bench cannot be sustained. Mr. Ali Muhammad Memon learned counsel for the respondent No,3 in Constitutional Petition No,D- 1662 of 1999 and respondent No,4 in Constitutional Petition No,D-1480 of 1999 i,e, Khalil Ahmed in whose favour the subject plot was allotted through impugned memorandum contended that subject plot was allotted to Khalil Ahmed who is member of the Society since 1949. According to him subject plot was allotted pursuant to ABN Case No,117 of 1995 and no exception can be taken against such allotment. Mr. All Muhammad Memon also contends that the petitioner in Constitutional Petition No,1480 of 1999 had entered into the transaction with Rasheed Masood on 2- 5-1987 when the allotment was not in field and the matter was in litigation. He therefore, urged that such transaction is hit by doctrine of lis pendens cannot be sustained, reliance was placed on Mukhtar Baig and others v. Sardar Baig and others 2000 SCMR 45. In rebuttal it was contended by Mr.Mumtaz Shaikh for the petitioner in Constitutional Petition No,D- 1480 of 1999 that in any case Mr. Khalil Ahmed could not be granted subject plot pursuant to order in ABN Case No,117 of 1995 as petitioners in both petitions were not party to such ABN case. Messrs Nadeem Azhar Siddiqui learned D.A.-G. And Mr.Sarwar Khan learned Addl. A.G. Contended that controversy in this petition relates to day-to-day business of the Society, is hit by section 54 of the Cooperative Societies ACt. This Court in exercise of writ jurisdiction cannot assume that jurisdiction. The parties could effectively be directed to seek recourse to the remedy provided under the Cooperative Societies Act, 1925. According to them petitions are misconceived and liable to be dismissed. Mr. H.A. Rehmani learned counsel for the petitioner in Constitutional Petition No,D-1662 of 1999 in rebuttal, contended that the petitioner in C.P. No,1662 of 1999 Mst. Aqila Begum is not a member of Society nor is claiming through any member therefore, the bar if any, in terms of section 54 ibid would not be attracted. He emphasised that the respondent No,1 was bound to remain within the limit prescribed by the remand-order as held in Jameel Ahmed v. Saifuddin PLD 1994 SC 501. He therefore, contends impugned order is liable to be set aside and petition be allowed. We have heard the arguments and perused the record and so also the impugned memorandum. We will first advert to the preliminary objection as to the maintainability of the petition in view of the bar of jurisdiction pleaded by the learned D.A.-G. And A.A.-G., Sindh. It is settled position in law that section 54 read with section 70-A of Cooperative Societies Act, abdicates the jurisdiction of the Court in respect of the matter in which the jurisdiction to decide and dispose of the controversy rests either with Provincial Government, the Registrar or his nominee or any other person empowered under the Act of 1925 or the Rules or By-Laws framed thereunder. All the acts, deeds, orders and actions taken by any functionary under Cooperative Societies Act, which may touch or relate to the business of Society and have direct bearing on any member or a person claiming through a member of the Society, if both the conditions are fulfilled, then effective remedy is provided under Cooperative Societies Act. Such bar of jurisdiction could effectively be invoked in a dispute, which relates or touches the business of the Society, such dispute may be by and between the members, past members or any person claiming through or under such member, or by such person against the past or present officer of the Society or inter se between Society and/or its Committee. In case maintainability of petition is challenged on premise of availability of efficacious and alternate remedy in the cases of a Cooperative Society, party raising such plea has to demonstrate, firstly, that petitioner is member or is claiming through a member, and secondly, that the matter in controversy touches or relates to the business of the Society and lastly, dispute is between member or person claiming through a member and Society or by and between the Committee of the Society or B between any of the said persons inter se. First mandatory and foremost condition to invoke the jurisdiction under the Cooperative Societies Act is that person must fall within the category or class of persons mentioned in section 54 (ibid). In Constitutional Petition No,D-1662 of 1999 the petitioner specifically pleaded in para.3, that she was allotted the subject plot at higher rate not being member of the Society such fact has been admitted in para. 3 of the counter-affidavit filed by the Society though it was pleaded that she not being a member of the Society was not eligible for allotment of plot. Therefore, petitioner Aqeela Begum does not fall within any category or class of person who could qualify to invoke alternate and efficacious remedy as provided for under section 54 of the Act (ibid). Indeed the controversy in the petition relates to the allotment and cancellation of plot claimed by petitioners and Khalil Ahmed. Such matter no doubt or touches the business of a Cooperative Society that deals with rehabilitation/allotment of the plot. Such fact ipso facto alone will not confer the jurisdiction upon the hierarchy provided for under Cooperative Societies Act unless such dispute is by and between the category or class of person enumerated under section 54 of the Act. Therefore, bar of section 54 of the Act, ibid cannot be effectively pleaded at least against Mst. Aqeela Begum the petitioner in Constitutional Petition No,D-1662 of 1999. However, the bar as to availability of alternate and efficacious remedy in relation to the petitioner in Constitutional Petition No,D-1480 of 1999 may be attracted and so also in case of 3rd allottee Khalil Ahmed Qureshi both of them admittedly are the members of the Society. Mr. Tanveer Afzal petitioner in Constitutional Petition No,D-1480 of 1999 having acquired the plot from a member Mr. Rasheed Masood. He could not derive better right and title than what was possessed by his predecessor. It appears that while taking a decision by the Managing Committee of the P.E.C.H.
7. Society neither the petitioner in Constitutional Petition No,D-1662 of 1999 nor Tanveer Afzal Khan the petitioner in Constitutional Petition No,D-1480 of 1999 were afforded any opportunity of hearing. Mr. H.A. Rehmani has also placed reliance on judgment rendered in the case of Muhammad Mushtaq Khan v. Pakistan Employees Cooperative Housing Society and others, in C.P. No,D-902 of 1983 learned Division Bench examining the Bye-laws the P.E.C.H. Society and relying on large number of cases including the Pakistan Employees Cooperative Housing Society Ltd., Karachi v. Mst. Anwar Sultana and another PLD 1969 Karachi 474 held that: We are also inclined to hold that there is a distinction between a person being eligible to be a member of respondent No,1/Society and being eligible to an allotment of a plot. A person cannot become a member of respondent No,1 /Society unless he is an employee of the Government of Pakistan in view of the above quoted Bye-Law 7 but there is no parallel Bye-Law providing that an allotment of a plot can only be made to a member of the Society. Therefore, objections filed by the Society that allotment in favour of Mst. Aqila Begum's allotment merely on the ground that she is not a member of the Society cannot be sustained. Since the controversy in relation to the plot in dispute on the one hand has been raised by Ageela Begum who is non-member and cannot avail of the remedy as provided under Cooperative Societies Act, on the other hand similar grievance has been urged by Tanveer Afzal Khan who admittedly is claiming through a member Rashid Masood, it will be anomalous to decide the controversy of the petitioner Mst. Aqila Begum in relation to the same plot in exercise of writ jurisdiction which may involve some factual inquiry and may prejudice rights of the petitioner in Constitutional Petition No,D-1480 of 1999. Examining the impugned memorandum dated 24-8-1999 it appears that the Committee of the P.E.C.H. Society did not adhere to the remand order passed in Constitutional Petition No,D-57 of 1989 already reproduced above. Remand order specifically required the Society to decide, whether the cancellation of the allotment was not covered by M.L.O. 34 in addition to other conditions including right of hearing to the petitioner. From the impugned memorandum it appears that the Society did not advert to the directions of the learned Division Bench as reproduced in narrative above. In Jameel Ahmed v. Saifuddin PLD 1994 SC 501 the apex Court at page 505 held that "it is well-settled principle that on remand the Court trying the suit has to regulate the proceedings and proceed with the case in terms of the order of remand passed by the higher Court" such dicta is fully attracted in cases where matter in controversy is sent by higher Court to domestic forum, any attempt to side track the issue and decide the matter in a manner not directed by higher D Court is nothing short of sheer defiance of the remand order, such conduct cannot be approved of. In the instant case it appears even the petitioners were not heard which was specifically directed under the remand order beside not in conformity with the remand order. For the foregoing reasons the impugned memorandum dated 24-4-1999 recording decision of Managing Committees allotting subject plot to respondent Khalil Ahmed is struck down.
8. Mst. Aqila Begum and petitioner Tanveer Afzal Khan claiming through allottee/member Rashid Masood in Constitutional Petition No,D-1480 of 1999 were vying for the subject plot and pursuant to a remand order already reproduced above, the respondent No,1 is directed to decide controversy in respect of subject plot between both the petitioners after issuing proper notices to both the parties in terms of remand order reproduced above. Preferably within a period of three months from the date of receipt of this order. It may, however, be observed that right, if any of Khalil Ahmed Qureshi under ABN Case No,117 of 1995 will not be effected. The Society subject to availability of plots may decide his case and redress his grievance independently. The compliance to be reported to this Court through MIT.
9. Petition disposed of in terms of the above.