Ch. Muhammad Siddique vs Secretary Cooperatives etc.

Stereo HCJ DA 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT,

RAWALPINDI BENCH, RAWALPINDI

JUDICIAL DEPARTMENT

Writ Petition No.552 of 2015

Ch. Muhammad Saddique V/S The Secretary Cooperative etc

JUDGMENT

Date of hearing 10.02.2022 Petitioner(s) by Malik Ghulam Mustafa Kandwal, ASC Respondent(s) by Malik Ahtesham Saleem, Assistant Attorney General.

Mr. Muhammad Yasir Ibrahim, Advocate.

JAWAD HASSAN, J. Through this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”), the Petitioner impugns the order dated 27.05.2014, passed by the Secretary Cooperatives, Government of the Punjab, Lahore/Respondent No.1, whereby order dated 03.07.2013, passed by the District Officer Cooperatives/Deputy Registrar, Rawalpindi (Respondent No.2) was set aside being meritless

I. BACKGROUND

2.Briefly stated facts of the case are that the Petitioner being a bona fide member of Respondent No.3/Society was provisionally allotted a plot measuring 1200-yards vide file No.65/1 against which all the dues were deposited by him. Thereafter, the Petitioner purchased another plot under allotment No.3/car-I/G-S measuring 1200-yards from one Muhammad Siddique son of Shadi Khan who deposited the cost of land. Admittedly, the Petitioner could not deposit the dues of the Respondent-Society, therefore, he requested for sub-division of latter purchased plot into three plots measuring 600, 300 and 300 yards respectively allotting numbers of sub-divided

category enabling him to pay the outstanding dues of the Respondent- Society by selling amongst one of the said three plots but this request of the Petitioner was not acceded to and thus he failed to deposit development charges against the said latter purchased plot. The Petitioner’s applications qua division of purchased plot and non- allotment of plot bearing file No.65/1 dated 30.08.2012 and 26.09.2012 respectively were concurrently heard by Respondent No.2 who wrote Respondent No.3 for nomination of an Arbitrator under Rule 32 of the Cooperative Societies Rules, 1927. But on account of default in payment of outstanding dues by the Petitioner regarding cost of land and development charges, the Respondent-Society cancelled the plots by refunding the deposited amount in the shape of three cheques to the Petitioner, which he did not get encashed

II. PETITIONER’S SUBMISSIONS

3.It is contended by Malik Ghulam Mustafa Kandwal, ASC learned counsel for the Petitioner that the Petitioner purchased two plots measuring 1200 yards in Health Employees Cooperative Housing Society Limited, Rawalpindi and on his request, one of the said plots was further subdivided into three parts by Respondent No.3 Society but despite repeated requests of the Petitioner no allotment numbers were allotted to these subdivided plots bearing file numbers 298/111, 379/111 and 380/111. Being aggrieved, the Petitioner filed an Application under Section 54 of the Cooperative Societies Act, 1925 on the ground that he had been allotted a plot under allotment No.3/cat-I/G-S, there-against he had cleared all dues. Adds that as the Petitioner could not afford the price of such a big plot, therefore, he requested the Respondent-Society to allow him for selling one plot amongst three of the subdivided plots, so that he might be able to pay his outstanding dues and this very request of the Petitioner was prior verbally accepted by the then management with the assurance that the said subdivided plots will be allocated allotment numbers for subdivided category but this very commitment was not fulfilled by the Respondent-Society which resulted into default in payment of dues by the Petitioner and ultimately the Respondent-Society cancelled the

plots in 2009 without any intimation or issuance of any notice to him. Further adds that the Petitioner has been residing for 20-years in the same house but he had not received any cheque or cancellation notice from the Respondent-Society. Maintains that any member of the Respondent-Society who has cleared the cost of land cannot be deprived of his allotment merely on default of development or service charges. Besides the above all, neither the Petitioner has ever been served with a show cause notice nor has ever been heard by the Respondent-Society before cancelling the said plots, which is against the proviso to Section 17-B of the Cooperative Societies Act, 1925. Alleges that there is no record with Respondent-Society regarding refund of amount to the Petitioner. Learned counsel for the Petitioner states that District Officer Cooperatives/Deputy Registrar, Rawalpindi (Respondent No.2) accepted Application of the Petitioner, vide order dated 03.07.2013 with direction to Respondent No.3 to allot the numbers to the aforementioned files by affording an opportunity to the Petitioner to deposit his outstanding dues. In addition to this, it was further directed that the Petitioner be also allowed to deposit development charges of Plot No.F65/I, as per prevailing schedule but this well-reasoned order was set aside by Respondent No.1, vide order dated 27.05.2014.

III. RESPONDENTS SUBMISSIONS

4.Conversely, Mr. Muhammad Yasir Ibrahim, learned counsel for the Respondent argues that there is no denial that the Petitioner had purchased a Plot measuring 1200 yards in Health Employees Cooperative Housing Society Limited Rawalpindi and thereafter he applied for subdivision of said plot; that though the Petitioner purchased the said plot but he did not clear its dues for about sixteen years; that as far the subdivision of the said plot into three plots is concerned, it is/was against the Policy on the subject. Adds that the Petitioner had originally purchased membership rights and was given provisional allotment; that he was issued a number of notices to clear his outstanding dues but he failed and on his such a long (sixteen years) default, the Respondent-Society opted to cancel the plot

refunding him three cheques, which he did not get encashed. It is added that the Respondent-Society works on cooperative principles and self-finance basis and thus purchase of land and development are made with the contribution of members and in case of default by the members, the Respondent-Society cannot complete its housing projects. Further adds that even otherwise, provisional allotment of the Petitioner was never confirmed by the Respondent-Society, therefore, it was necessary to send the matter to the Annual General Meeting, thus Section 17-B of the Cooperative Societies Act, 1925 is not applicable to the case in hand. Reiterates that subdivision of a plot cannot be made without change of layout plan of the Respondent- Society and that too with the approval of the competent authority i.e. the development authority or local body, thus the said plot could not be subdivided, as mentioned above. Lastly, prays for dismissal of this writ petition

IV. DETERMINATION

5.The purchase of plots in question and commission of default are admitted by the parties. It is also not denied that the Petitioner has been provisionally allotted the plots. As per argument of learned counsel for the Respondent-Society, provisional allotment of the Petitioner was never confirmed by it. It is also not deniable when a member of the Respondent-Society, in this case is the Petitioner, commits default in payment of one’s outstanding dues in case of a provisional allotment, it has not become mandatory that such matter may be sent to the Annual General Meeting. Learned counsel for the Respondent-Society’s stance that Section 17-B of the Act has not been violated in any manner, here it seems necessary that the same be glanced over, which is reproduced below:-

[17-B. Expulsion of a member....(1) A Society may recommend to the Registrar to expel from its membership a member who is a persistent defaulter of the dues of the society or who commits any act prejudicial to the interests of the Society.

Provided that the managing committee of the society shall after affording the member an opportunity of hearing, place the matter before the general body of the society and approval there shall be communicated to the Registrar.

(2)The Registrar may expel such a member from the society after affording him an opportunity of hearing.

5.A minute reading of the said Section guides that an opportunity of hearing is ‘must’ rather one is a ‘deadly committer’ of default. I am afraid, in Petitioner’s case this proviso is missing, as admittedly the Respondent-Society has been issuing the notices to the Petitioner but he had not been afforded an opportunity of hearing, prior to cancellation of even provisional allotment of plots. I seek support from “DILSHAD NABI RIAZ and 7 others Versus District Nazim, District Rahimyar Khan and 3 others” (2008 CLC 1120) wherein it has been held by the august Supreme Court of Pakistan that in any event the deprivation of proprietary rights must be attended at least by prior notice and opportunity of defence which was not given to the petitioner. Such defects had gone to the root of the matter disclosing patent illegality for which the constitutional jurisdiction under Article 199 of the Constitution would constitute the appropriate remedy. Similarly, in “PAKISTAN MEDICAL COOPERATIVE HOUSING SOCIETY Versus AZRA LATIF and others” (2012 CLC 662) it has been observed that management of any cooperative society was considered as custodian of the rights of its members. The Society took the ultimate step without affording an opportunity of hearing to the Respondent, which was an act against the golden principle of audi alteram partem. The principle of natural justice requires that the aggrieved party be provided an opportunity of hearing and in all proceedings by whomsoever held, whether judicial or administrative, the principle of natural justice has to be observed if the proceedings resulted in consequences affecting the person or property or other rights of the parties concerned. Thus, without participation of a party affected by an order or a decision, order amounts to an action

without lawful authority hence such action of the Respondents infringed Petitioner’s fundamental right of holding property as provided under Article 23 of the Constitution as well as undermined protection of his property rights as guaranteed by Article 24 of the Constitution. More so, the actions of the Respondents have seriously jeopardized the constitutional protection of due process of law provided under Article 10-A of the Constitution for determining civil rights and obligations with regard to payment, if any, have not been determined by the Respondents before canceling his property, therefore, actions of the Respondents which clearly breached the fundamental rights of the Petitioners provided and protected under the Constitution, was amenable before this Court within the meaning of Article 199 of the Constitution, which mandates that High Court on the application of any aggrieved person can make an order or give such directions for the enforcement of any of the Fundamental Rights. The requirement of the principle audi alteram partem is not confined to proceedings before Courts but it extends to all proceedings by whomsoever held, which may affect a person or property or other rights of the parties concerned in dispute. The principles of natural justice must be read into each and every statute unless and until it is prohibited by the statute itself. Even if there is no provision as to issuance of notice of personal hearing to the affected party, in a statute, it cannot override the principle of natural justice and an opportunity of a hearing has to be provided to the affected party. Reliance in said regard can easily be placed on esteemed guideline laid in case titled “ABDUL MAJEED ZAFAR and others Versus GOVERNOR OF PUNJAB through Secretary and others” (2007 SCMR 330). Further in “CH. MOHAMMAD NAWAZ and another Versus THE FEDERAL GOVERNMENT EMPLOYEES HOUSING FOUNDATION and others” (2018 PLC (C.S.) 325) it has been held that if principles of natural justice were violated with regard to any decision, said decision would be no decision in the eye of law. Non- issuance of a show cause notice by the Foundation to the employee and non-affording of opportunity of hearing prior to cancellation of

allotment shall be liable to be declared as void and coram non judice. It is well-settled by now that the principle of natural justice is attracted in the proceedings whether judicial or administrative if it result in consequence affecting "the person or property or other' right of the parties concerned" and reliance in said regard can be placed on esteemed guideline laid in case of “PAKISTAN STATE OIL COMPANY Ltd Versus MUHAMMAD ARAM KHAN and others” (2004 PLC (C.S) 992). In addition to the above, this Court in the case of “MST. ASIYA ASHRAF CHAUDHARY Versus GOVERNMENT OF PUNJAB and others” (2020 CLC 503) has already expanded the scope of property rights enshrined under Articles 23 and 24.

6.The upshot of above discussion is that before cancelling the above said allotment of plots, the Petitioner should have been afforded an opportunity of hearing which has not been done by the Respondent-Society, therefore, this Petition to this extent only is allowed and the case is sent back to the Secretary, Health Employees Cooperative Housing Society Limited, Rawalpindi (Respondent No.3), who shall receive the documents, which the Petitioner may intended to tender in support of his version and then shall decide the matter afresh by affording an opportunity of hearing to the Petitioner/all concerned through a speaking order within a month from the date of receipt of this order, in the light of Policy and Rules on the subject keeping in view the guidelines of the Superior Courts, mentioned above. The Petitioner is directed to appear before Respondent No.3 at 11:00 a.m. on 08.03.2022. However, it is made clear that nothing in this order shall preclude Respondent No.3 to act strictly in accordance with law.

7.Disposed of in the above terms.

(JAWAD HASSAN)

JUDGE

Usman*