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Petitioner: MUHAMMAD MUSTAQEEM KHAN VS Respondent: PAKISTAN EMPLOYEES COOPERATIVE JUDGMENT
Court Name: Sindh High Court Judge(s): Ajmal Mian, Syed Haider Ali Pirzada Title:MUHAMMAD MUSTAQEEM KHAN vs PAKISTAN EMPLOYEES COOPERATIVE
JUDGMENT
Reported As: PLD 1985 Karachi 326 Result: Petitions accepted Judgment JUDGMENT JUDGMENT ' AJMAL MIAN, J.-We intend to dispose of the above petitions by this common judgment. The brief facts leading to the filing of the above petitions are as follows :- Constitutional Petition No, D-902 of 1983 (i) The petitioner was an employee of respondent No, 1 Society. He was offered the plot in dispute, measuring 120 Sq. Yards on 19th February, 1970 by a letter dated 19-2-1970. Upon acceptance of the offer and payment of the requisite amount, the plot was allotted to the petitioner by an order dated 21-2-1970. The plot was demarcated and the possession thereof was handed over to the petitioner in 1970. A sub-licence dated 19-2-1975 was executed and registered in favour of the petitioner. Building plan was also approved on 21-2-1975. The petitioner received a show-cause notice, dated 1-9-1983 calling upon him to show-cause as to why the allotment of the plot should not be cancelled, for the reason mentioned therein that he was not a member of the Society and that the allotment was irregular. The petitioner thereupon sent a reply dated 15-9-1983. However, the allotment was cancelled by an order dated 13-11-1983. The petitioner being aggrieved by the above order has filed the present petition. Constitutional Petition No, D-941 of 1983 (ii) The petitioner was an employee of the respondent No, 1 Society. He was offered the plot in dispute, measuring 200 square yards by respondent No, l's letter dated 19-2-1970. Upon
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acceptance of offer and requisite payment, a formal allotment order dated 21-2-1970 was issued in favour of the petitioner. The plot was demarcated and the possession thereof was given to the petitioner. A sub-licence dated 30-12-1970 was also executed and registered in favour of the petitioner. It is the case of petitioner that he raised boundary wall and a pacca room though he has not obtained any approval of the plan for the construction. The petitioner received a show-cause notice dated 1-9-1983, which was replied by him through his letter dated 12-9-1983. However, the allotment was cancelled by an order dated 13-11-1983, for the aforesaid reason referred to in subpara. (i) above. The petitioner being aggrieved by the above order has filed the present petition. Constitutional Petition No, D-958 of 1983 (iii) One Muhammad Rafique Azmi was an employee of respondent No, 1 Society. He was offered the plot in dispute measuring 200 sq. Yards. Upon accepting the offer and making of the requisite payment, a formal allotment order dated 21-3-1970 was issued in favour of said Rafique Azmi. Thereafter, the plot was demarcated and the possession thereof was handed over to the said allottee. The present petitioner who is a member of the Society purchased the said plot from said Muhammad Rafique Azmi on 12th October, 1971. The respondent No, 1 upon receipt of mutation fee amounting to Rs, 1,000 transferred the above plot in favour of the present petitioner by an order dated 6th/7th November 1971. The petitioner received a show-cause notice, dated 1-9-1983 calling upon him to show cause as to why the plot should not be cancelled for the aforesaid ground referred to in sub-para. (1) above, which was replied to by the petitioner on 13-10-1983. However the allotment was cancelled by an order dated 13-11-1983. The petitioner being aggrieved by the above order has filed the present petition. Constitutional Petition No, D-959 of 1983 (iv) The petitioner was an employee of respondent No, 1 Society. He was offered the plot in dispute, measuring 200 sq. Yards by respondent No, l's letter dated 19-2-1970. Upon accepting the offer and payment of the requisite amount, the above plot was allotted to the petitioner by a formal allotment order dated 20-2-1970. A sub-licence in favour of the petitioner was also executed on or about 23-11-1970. The petitioner received a show-cause notice dated 14-9-1983, calling upon him to show cause as to why the above plot should not be cancelled for the aforesaid reason referred to in sub-para. (i) which was replied to by the petitioner on 6-10-1983. However, the allotment was cancelled by an order dated 13-11-1983. The petition being aggrieved by above order has filed the present petition. Constitutional Petition No, D-960 of 1983 (v) The petitioner was an employee of respondent No, 1 Society. He was offered the plot in dispute measuring 200 sq. Yards by respondent No, l's letter dated 19-2-1970. Upon acceptance of offer and upon payment of requisite amount, a formal allotment order dated 23-2-1 70 was issued in favour of the petitioner. The plot was demarcated and the possession thereof was given to the petitioner in 1970. It is the case of the petitioner that he has raised boundary wall and has built one pacca room but he has not obtained the approval of any construction plan. He received a show-cause notice dated 1-9-1983 calling upon him to show cause as to why the allotment should not be cancelled for the aforesaid reason referred to in sub-para. (i) above, which was replied to by the petitioner on 15-9-1983. The allotment was cancelled by an order dated 13-11-1983. The petitioner being aggrieved by the above order has filed the present petition. Constitutional Petition No, D-33 of 1984 (vi) One Aijaz Ahmed was an employee of respondent No, 1 Society. He was offered the plot in dispute measuring 200 sq. Yards by respondent No, l's letter dated 19-2-1970. Upon acceptance of the above offer and payment of the requisite amount said Aijaz Ahmed, a formal allotment order dated 21-2-1970 was issued in his favour. The plot was demarcated and the possession thereof was
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also given to him in 1970. After that a sub-licence was executed and registered in favour of said Aijaz Ahmed on or about 18-11-1970. The petitioner who at the relevant time was a Central Government servant and was entitled to be a member of respondent No, 1 Society purchased the above plot for a consideration of Rs, 8,500 in or about August 1972. Respondent No, 1 Society after realising a sum of Rs, 1,000 as mutation fee transferred the plot in favour of the petitioner by a letter dated 20-8-1972. After that a sub-licence in favour of the petitioner was executed and registered on or about 17-9-1974. The petitioner also obtained the approval of the plan on 9-11-1976. It seems that the petitioner received a show-cause notice dated 1-9-1983 calling upon him to show cause as to why the allotment of plot in question should not be cancelled for the aforesaid reason referred to in sub-para. (i) above, which was replied to by the petitioner on 15-10-1983 but the allotment of the plot was cancelled by an order dated 12-11-1983. The petitioner being aggrieved by the above order has filed the present petition. Constitutional Petition No, D-34 of 1984 (vii) The petitioner was an employee of respondent No, 1 Society at the relevant time. He was offered the plot in dispute, measuring 200 sq. Yards by respondent No, l's letter dated 21-2-1970. Upon acceptance of the above offer and the payment of the requisite amount, a formal allotment order dated 24-21970 was issued in favour of the petitioner. The plot was demarcated and the possession thereof was given to the petitioner in 1970. A sub-licence was also executed and registered in favour of the petitioner on or about 28-2-1970. It is the case of the petitioner that without issuing any show-cause notice by order dated 12-11-1983 the allotment of the plot in question was cancelled. The petitioner being aggrieved by the above order has filed the present petition. Constitutional Petition No, D-44 of 1984 (viii) The petitioner's father Altaful Karim at the relevant time was an employee of respondent No, 1 Society. He was offered the plot in dispute, measuring 200 sq. Yards by respondent No, l's letter dated 19-2-1970. Upon acceptance of the above offer and payment of the requisite amount, a formal allotment order dated 20-2-1970 was issued in his favour. The plot was demarcated and possession thereof was given to him in 1970. After that a sub-licence was also executed and registered in his favour on or about 18-11-1970. Upon the death of said Aitaful Karim the allotment was transferred in favour of the petitioner being the nominee and the son. Respondent No, 1 Society issued a show-cause notice dated 1-9-1983 addressed to late Altaful Karim which was replied to by the present petitioner on 12-7-1983. However, the allotment was cancelled by order dated 13.11-1983 for the aforesaid reason referred to in subpara. (i). The petitioner being aggrieved by the above order has filed the present petition. Constitutional Petition No, D-45 of 1984 (ix) The petitioner's husband Intizar Ahmed was an employee of respondent No, 1 'Society at the relevant time. He was offered the plot in dispute, measuring 200 sq. Yards by respondent No, l's letter dated 2i-2-1970. Upon the acceptance of the above offer and payment of the requisite amount, a formal allotment order dated 24-2-1970 was issued in his favour. The petitioner's husband subsequently transferred the above plot to the petitioner which was accepted by respondent No, 1 through its letter dated 16-3-1970. After that a sub-licence was executed and registered in favour of the petitioner on or about 12-4-1972. It seems that petitioner under an agreement of sale dated 14-11-1973 on the basis of general power of attorney executed in favour of Shahzad Ahmed son of Khan Muhammad Khan husband of the purchaser namely Mst. Sarwari Begum agreed to sell the plot in dispute for a consideration of Rs, 8,300. The aforesaid attorney obtained the approval of the plan on or about 26-2-1976. It has been averred in the petition that the purchaser had raised construction in the form of three rooms, bath room, kitchen, toilet, boundary wall etc. As per approved plan. The respondent No, 1 Society issued a show-cause notice
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dated 1-9-1983 as to why allotment should not be cancelled for the aforesaid reason referred to in sub-para. (i) above, which was replied to by the attorney Shahzad Ahmed Khan on 12-9-19/43. However, the allotment was cancelled by an order dated 13-11-1983. The petitioner being aggrieved by the above order has filed the present petition. Constitutional Petition No, D-147 of 1984 (x) The petitioner's husband late M. Haider Aziz at the relevant time was an employee of respondent No, 1 Society. He was offered an allotment of the plot in dispute, measuring 200 sq. Yards by a letter dated 19-2-1970 of respondent No, 1 Society. Upon acceptance of the above offer and payment of the requisite amount, a formal allotment order dated 15-3-1970 was issued in his favour. The petitioner's husband by way of gift transferred the above plot to the petitioner on 25-3- 1970. Respondent No, 1 Society transferred the above plot in favour of the petitioner on 26-3-1970. The petitioner for a consideration transferred the plot in question to one Muhammad lqbal son of loam Khan and handed over possession thereof and executed a general power-of-attorney in favour of one Muhammad Ikram Khan. It is the case of the petitioner that without issuing any show- cause notice respondent No, 1 Society by an order dated 26-11-1983 cancelled the allotment of the disputed plot. The petitioner being aggrieved by the above order has filed the present petition through her attorney Muhammad Ikram Khan. Constitutional Petition No, D-536 of 1984 (xi) The petitioner was an employee of respondent No, 1 Society at the relevant time. He was offered the plot in dispute, natasuring 200 sq. Yards by a letter dated 19-2-1970. Upon acceptance of the above offer and payment of requisite amount, a formal allotment order dated 20-2-1970 was issued in his favour. The plot was demarcated and handed over to the petitioner on 21-2-1970. Thereafter a sub-licence was executed and registered in his favour on or about 24-2-1970. Respondent No, 1 served a show-cause notice dated 1-9-1983 on the petitioner to show cause as to why allotment should not be cancelled for the reason referred to in sub-para. (i), which was replied to by him on 1-10-1983 but the allotment was cancelled by an order dated 13-11-1983. It may also be stated that the petitioner also got his plan for the building approved by the K. D. A. On 13-10-1971. The petitioner being aggrieved by the above order has filed the present petition. Constitutional Petition No, D-537 of 1984 (xii) The petitioner was married to one Raisuddin, who was an employee of respondent No, 1 Society at the relevant time. He was allotted the plot in dispute measuring 112 sq. Yards by respondent No, 1 Society. The plot was demarcated and the possession thereof was given to the late Raisuddin in 1970. The petitioner was nominated by her husband on or about 20-1-1971. Upon his death the plot was transferred in favour of the petitioner on 24th May, 1971. A sub-licence was executed and registered in favour of the petitioner on or about 7-6-1972. It is the case of the petitioner that she has raised boundary wall and two rooms without getting any plan approved. The petitioner was served with a show- cause notice dated 1-9-1983 as to why allotment should not be cancelled for the reason referred to in sub-para (i) above, which was replied to by her. However, the allotment of the plot was cancelled by an order dated 13-11-1983. The petitioner being aggrieved by the above order has filed the present petition. 2. In support of the above petition Mr. Shakil Z. Lari, learned counsel for the petitioners (except in petitions Nos. D-536 of 1984 and D-537 of 1984, in which Mr. Niaz Hussain Advocate has represented the petitioners) has urged as follows :- (1) That at the relevant time the Administrator was exercising the powers of the Managing Committee of the Society and since there is no express prohibition for the allotment of plots in the bye-laws of the Society to non-members, the allotments should not have been cancelled on the ground that the same were allotted to non-members.
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(2) That the act of the Administrator in allotting the above plots to its employees was an act in good faith in context with the fact that the land is situated close to Mahmoodabad where there is Katchi Abadi and the land in dispute could have been encroached upon by the squatters. (3) That the allotment/sub-licence could have been cancelled only on the ground mentioned in sub-clause (1) of clause 1 and clause 3 of the sub-licence. (4) That the petitioners are protected by section 41 of the Transfer of Property Act. ' Mr. Niaz Hussain learned counsel appearing for the petitioner in the above two constitutional petitions namely C. P. Nos. D-536 of 1984 and 537 of 1984 has adopted the arguments of Mr. Shakil Lari. ' Mr. Abdul Sattar learned counsel for the respondent No, 1 has vehemently urged that under bye- law 7, only an employee of the Central Government could have been a member of the respondent No, 1 Society and, therefore, no allotment could have been made in favour of nonmember. ' Mr. Sami Khawaja, Accounts Officer of the Ministry of Works, Government of Pakistan, Karachi is present and states that respondent No, 2 adopts the arguments of the learned counsel of respondent No, 1. ' Mr. Liaquat Merchant, learned Deputy Attorney-General, who is present on Court notice has not addressed any argument. 3. (a) At the outset, it may be observed that no counter-affidavit has been filed either by respondent No, 1 or by respondent No, 2. In paras. 5 and 6 the petition No, D-902 of 1983, which have been reiterated in the other petitions (except in petitions Nos. D-536 and D-537 of 1984 in which the averments are worded differently) the following averments have been made :- "(5) That the area where the said Plot No, 98-G.B., Block 6 is located is known as Green Belt Area and during late sixties was under severe threat of encroachment from Mahmoodabad side and in order to save the said area from encroachment, the then Administrator first desired to allot plots to non-allottee members who, however, were unwilling to accept the allotments in that area for the reason that the said area was not developed/low line and not suitable. ' The then Administrator allotted these plots to the employees of the Respondent's Society including the petitioner. As would be evident from site plan, Annexure 'D' the area was called the P.E.C.H.S., Staff Colony and over hundred fifty plots were allotted to the employees of the respondent Society. The detail of some of the allotment to employees who were and are non-members is as follows :-- (1) Mr. Hameed Khan, Plot 1/G-B, Jamadar Road Gang. (2) Ghani Gul, Plot 2/0-B, Baildar Road Gang. (3) Khan Badshah, Driver, Plot 3/G-B. (4) Umar Badshah, Baildar, Plot 4/G-B. (5) Tahir Ali, Peon, Plot 5/G-B. (6) Jaffar Khan, Waltman, Plot 7/0-B. (7) Ramzan, Pump Driver, Plot 8/0-B. (8) Yaqub Ali, Waltman Plot 10/0-B. (9) Muhmmad Jamil Khan, Incharge Water Section, Plot 103/0-B. (10) Rais .Ahtned, Clerk, Plot 108/0-B. (11) Abdul Sattar, Clerk, Plot 109/G-B. (12) Muhammad Yousuf, Sanitary Inspector, Plot 110/G-B. (13) Muhammad Afzal, Overseer, Plot 137/G-B. (14) Sadiq Baig, Assistant Sanitary Inspector, Plot 130/G-B. "(6) That these allottees of Green Belt Area i,e, the employees of the Respondent's Society were admittedly non-members and this fact was well in knowledge of the then administrator but even then plots were allotted in order to save the said area from encroachment. Further, allotment of the plots to employees as well as non-members was/is not unprecedented. Prior to this allotment the
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respondent Society had allotted forty eight plots to non-members as well as employees of the Society who were not members. Details of some of such allotments is given herein below and as would be observed plots were allotted to non-members: (1) S. M. Irfanullah, Chief Engineer K.M.C. Plot 6/3-1-B, area 2000 sq. Yards on 13-9-1952. (2) Muhammad Shafi, Inspector K.M.C., Plot 6/1/3/D, 200 sq. Yards on 4-11-1952. (3) Muhammad Mustafa Khan, ex-employee P.E.C.H.S., Plot 2/2415/B, 2000 sq. Yards on 31-3-1953. (4) Shamsuddin Ahmed, Accountant P.E.C.H.S., Plot 2/241-4-A, 624 sq. Yards on 9-2-1953. (5) Abbas Hussain, Assistant P.E.C.H.S., Plot 2/241-1-A, 275 sq. Yards on 9-2-1953. (6) Asad Hussain, ex-employee P.E.C.H.S., Plot 2/241-2-A, 532 sq. Yards on 9-2-1953. (7) Jaffar Hussain, Draftsman P.E.C.H.S., Plot 2/10-11, 202 sq. Yards on 9-2-1953. (8) Abdul Hameed Khan, S.D.O., P.E.C.H.S., Plot 2/241-4-B, 644 sq. Yards on 9-2-1953. (9)Iqbal Ahmad, Employee P.E.C.H.S., Plot 6/52-U 100 sq. Yards on 12-4-1955. (10) Muhammad Afzal, ex-employee P.E.C.H.S., Plot 6/137-G.B., 240 sq. Yards on 20-5-1972. (11) Ihsanullah, Plot 6/1-1-GB, 120 sq. Yards on 8-1-1973. (12) Faiz Nabi, Chief Engineer, K.D.A. Plot 6/32-1-G, 2,125 sq. Yards on 13-9-1952. (13) Sayeeduddin Haider, Plot 6/43-5-B, 2000 sq. Yards on 4-11-1952. (14) Saeed Ahmad, ex-employee K.M.C., Plot 6/37-K, 3,000 sq. Yards on 21.3-1953. (15) Faral Ali Khan, Chief Assessor K.M.C., Plot 2/152-C, 1,000 sq. Yards on 21-3-1953." (b) It may also be pertinent to reproduce the show-cause notice and the cancellation order which read as follows :- "Pakistan Employees Co-operative Housing Society TD Karachi No, PECHS/12/GB/83, dated 1-9-1983. Registered A/D. ' Mr. Muhammad Mustaqeem Khan, 2/72-M, P.E.C.H.S., Karachi. ' Subject :- Cancellation of allotment of residential plots to the employees of the P.E.C.H. Society/Non-members in the Green Belt Area, Block No, 6, Across the Railway Line, P.E.C.H. Society, Karachi. ' Dear Sir, ' Whereas the Plot No, 98-GB Block No, 6 measuring 120 sq. Yards was allotted to you by the then Administrator/Managing Committee, of P.E.C.H: Society on examination by the M/o Works it has been found that the same has been allotted to you illegally, 'rata fidely and in contravention of bye-laws of the Society as you were not entitled for allotment of a plot being non-member. ' You are, therefore, called upon to show cause within 7 days after the receipt of this notice as to why the allotment of the said plot may not be cancelled/withdrawn. Yours faithfully (Sd.) (Mursaleen Y. Burney) 31-8-1983 Administrator, PECHS. ' Copy to:- (1) The Section Officer, Mb() Housing and Works, Works Division Government of Pakistan, Islamabad. 2. The Assistant Accounts Officer, M/o Housing and Works, Government of Pakistan, Block No, 72, Pakistan Secretariat Karachi." ' Pakistan Employees Co-operative Housing Society Ltd., Karachi No: P.E.C.H.S. 259/83/98 GB, dated 13-11-1983. ' To ' Mr. Muhammad Mustaqim Registered A/D ' D-3/51, Malir Colony, ' Karachi-37. ' Subject.- Cancellation of Allotment of Residential Plots to the Employees of the P.E.C.H. Society/non-members in the Green Belt Area, Block No, 6 across the Railway Line, P.E.C.H. Society,
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Karachi. ' Dear Sir, ' In pursuance of the direction of the Ministry of Works regarding cancellation of the allotments made in contravention of the Act, Rules and Bye-laws of P.E.C.H. Society, Karachi, the allotment of Plot No, 98-G.B. Admeasuring 120 sq. Yds. Allotted to Mr. Muhammad Mustaqim son of Abdul Alim Khan by the then Administrator/ Managing Committee of the P.E.C.H. Society, is hereby cancelled with immediate effect, being illegal, mala fide and against the provision of the bye-laws of the Society. ' The development charges and premium of Rs, 690 (Rupees six hundred ninety only) contributed by Mr. Muhammad Mustaqim as a nonmember may now be collected from the office of the Society on any working day by producing the original allotment order, Site plan and receipt. Yours faithfully, (Sd.) (Mursaleen Y. Burney) 12-11-1983 Administrator, P.E.C.H.S. ' Copy to:- (1) The Section Officer, M/o Housing and Works, Government of Pakistan, Islamabad. (2) The Assistant Accounts Officer, M/o Housing and Works, Block No, 72, Pakistan Secretariat Government of Pakistan, Karachi." (c) A perusal of the above-quoted paras. Of the petition indicates that the Administrator of the Society had allotted the plots in dispute with the object to save the same inter alia being encroached by the squatters and that on account of bad location non-allottees members were not interested in the plots in dispute. Furthermore, from the above-quoted show-cause notice and the cancellation order, it is evident that the cancellation order has been passed on the ground that the allottees were not entitled to the allotment and the same were made illegally, mala fidely and in contravention of the bye-laws of the Society. It may be pointed out that no material has been placed before us from which the allegation of mala fide, contained in the show-cause notices can be inferred. Therefore, the sole question before us is as to whether the allotments were illegal because they were in contravention of the bye-laws. 4. Mr. Shakil Lari has referred to by-laws 12-A and 54(q) whereas Mr. Sattar has referred to bye-law 7 in furtherance of their respective contentions. It may be advantageous to reproduce herein below the above bye-laws which read as follows:- "7. All persons who have signed the application for registration are original members. Other members shall be elected by the Committee provided that all members shall be employees of PaKistan Government. Two advance votes are sufficient to exclude an applicant. Every person shall pay Rs, 5 on applying for admission. In cases where the application is refused the entrance fee shall be returned." "12-A. Any person who has succeeded to or obtained any property in the area of the Society from a member of the Society by sale, mortgage or otherwise or who has purchased Commercial plots from the Society; shall even though he may not be a member of the Society bind himself to be amenable to the bye-laws of the Society and the rules made thereunder." "54(q). To cancel any allotment of land or suspend any facilities or services provided by the society, if the allottee/member fails to pay development charges or any other dues of the Society after due notice." ' A perusal of the above-quoted bye-law 7 indicates that in order to become a member of respondent No, 1 Society, it is prerequisite that the person desiring to become a member should be an employee of Pakistan Government. Whereas the above-quoted by-law 12-A shows that any person who succeeds or obtains any property in the area of the Society from a member of the
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Society by sale, mortgage or otherwise or who purchases commercial plot from the Society shall even though he may not be a member of the Society bind himself to be amenable to the bye-laws of the Society and the Rules thereunder. It may also be pointed out that under above-quoted clause (q) of bye-law…
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