PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, KARACHI vs SHAMIM KHAN through L.Rs, and 5 others

' MUHAMMAD NAWAZ ABBASI, J.---This appeal by leave of the Court has been directed against the judgment dated 18-11-1998 passed by High. Court of Sindh, at Karachi, in a Constitution petition.

2. The facts in small compass, are that Shamim Khan respondent herein, a Sub-Inspector in Excise and Taxation Department, Government of Sindh, while on deputation with Defence Officers Cooperative Housing Society, Karachi, was allotted a residential plot vide registered lease dated 27-11-1976. The Society was dissolved and was substituted by the Pakistan Defence Housing Authority, Karachi, appellant herein under Presidential Order No,7 of 1980. The allotment of the plot of the respondent was cancelled by the appellant on 1-9-1985 for non-deposit of development charges, with direction that allotment would be restored in case of deposit of charges within the time specified therein. The respondent deposited the outstanding dues and plot was restored in his name but subsequently, he was given a fresh show-cause notice for the cancellation of plot on the ground of his ineligibility to become the member of the Society and consequently, his allotment was cancelled. The respondent, being aggrieved of the action of appellant, invoked the Constitutional jurisdiction of the High Court of Sindh at Karachi and succeeded in the Constitution petition. The appellant being dissatisfied with the judgment of High Court has approached this Court. Leave was granted in this appeal, vide Order dated 19-7-1999, as under:- "We have perused order dated 31-3-1999 and grant leave to consider whether the respondent could be allotted Plot No,S-20 Summerset Street by the Executive Board of the respondent- Authority in view of the provisions contained in bye-law No,7?"

3. The learned counsel for the Defence Housing Authority, appellant herein, has contended that the appellant after a detailed scrutiny of the record, having come to the conclusion that the respondent was not eligible to become the member of the Society and plot was allotted to him in contravention of the bye-laws of the Society, cancelled the allotment of plot in his name in exercise of the powers under Article 17 of P.O. No,7 of 1980 and High Court was not supposed to interfere in the matter concerning with the internal affairs of the Society in its Constitutional jurisdiction. It has been argued by the learned counsel that a person not falling in any of the categories mentioned in the bye-laws of the Society would not be eligible to become its member and no allotment could be made by the Society in its Housing Scheme to a non-member. Learned counsel for the respondent, without challenging the power of the appellant to cancel an allotment which was made in contravention of bye-laws of the Society, contended that the DHA after cancellation of the allotment of respondent in 1985 for non-deposit of outstanding dues subsequently by restoring it, conceded the eligibility of respondent, therefore, the cancellation of the allotment was without any legal justification.

4. We having heard the learned counsel for the parties at length and perused the record with their assistance, have found that the appellants were not enjoying unlimited power of cancellation of allotment made by the Society rather this power was confined only to the extent of allotments which were made in contravention of the bye-laws of the Society. Article 17(h) of P.O. 7 of 1980 provided that all allotments and transfers of plots, whether residential, commercial or otherwise, made by the Society before such dissolution shall be deemed to be allotments and transfers made by the Authority. However, the Executive Board could cancel such allotments which would fall within the ambit of sub-article (i) of Article 17 of P.O. No,7 of 1980. This sub-article would read as under: "Provided that the Executive Board may--

(i) cancel such allotments which were made or issued in contravention of the bye-laws of the Society or the resolution of the Managing Committee of the Society."

' The bye-laws of the Society on the subject, are reproduced hereunder:-- "Bye-law No,7: The membership of the Society will be confined to the following:--

(i) Officers of the Pakistan Armed Forces and Civilian Officers paid from the Defence Service Estimates.

(ii) Officers of the Armed Forces who have been released either in PAKISTAN or pre-partitioned India and who have subsequently acquired PAKISTAN nationality.

(iii) Certain Officers working in the Ministry of Defence/Ministry Finance, at the discretion of the Managing Committee. This does not include organizations working under Ministry of Defence, e.g., PIA, Shipyard etc.

(iv) The staff not covered by sub-paragraphs (i) and (ii) above employed by the Society whose minimum salary is 750 p.m. And have worked with the Society for a minimum period of 10 years.

(v) The allotment of plots shall always be through open ballot and the procedure of balloting shall be the most equitable based on principles .Of first come first served except those placed at the disposal of Commander-in-Chief of three services. The discretion for out of turn and special allotment will be with the President of the Society."

' Bye-Law No,8: "Notwithstanding anything contained in Bye-law No,7 associate membership of the Society without right of vote or the privilege of full membership may be granted at the discretion of the Managing Committee to the following categories of persons:--

(1) Persons not otherwise eligible under Bye-Law No,7 in whose favour due to special circumstances and for special reasons allotment has been made by the Managing Committee, or otherwise.

(2) Non-members who through the normal operation of the Transfer of Property Act and law of succession etc. Have acquired ownership of the properties in the Society area through sale, mortgage, assignment and gift etc."

5. The respondent certainly not falling in any of the category of the persons mentioned in Bye-Law No,7, would not be entitled to become member of the Society but we find that Managing Committee of the Society under Bye-Law No,8 was empowered to grant associate membership of Society to a person who was allotted a plot in the Housing Scheme by the Ccompetent Authority, despite the fact that he was not eligible under bye-law No,7 to become member of the Society.

6. The learned counsel for the appellant has not been able to satisfy us that the respondent was neither given membership nor he was allotted plot by Managing Committee in exercise of its powers under Bye-Law No,8 and the plot was allotted to him without the approval of the said Committee. The appellant cancelled the allotment of the respondent on the sole ground that he was not eligible to become member of the Society under bye-law No,7 of the bye-laws of the Housing Society and did not take the plea at any stage that respondent was not even an associate member of the Society. It may be seen that unless it is specifically proved that allotment was unauthorized, the presumption would be that the respondent, who was not eligible to become member of Society under bye-law No,7, was made associate member under bye-law No,8 of the Bye-Laws of Society and was validly allotted the plot in its Housing Scheme. Be that as it may, the real question for determination would be as to whether DHA in exercise of its powers under Article 17(i) of P.O. No,7 of 1980 could competently cancel the allotment of the plot made by the dissolved Society. Under clause (h) of Article 17 supra, all allotments made by the Society were deemed to be made validly and only in a case in which allotment was made in contravention of the bye-laws, the appellant in exercise of power under sub-Article (i) of Article 17 was authorized to cancel the allotment.

7. The Defence Housing Authority in exercise of its powers under Article 7(i) ibid, could certainly cancel an allotment made in contravention of the bye-laws of dissolved Society but the Authority would have no inherent power to re-open a case and cancel the allotment in its discretion. The Authority, without ascertaining the correct factual position regarding the exercise of power by the Managing Committee of the dissolved Society and the circumstances under which allotment was made in the name of respondent, proceeded to cancel the same treating it a case under bye-law No,7 of the bye-laws of Society. Learned counsel for the appellant when confronted that in similar circumstances, in the case of Muhammad Rafiq, the authority having taken a different view, regularized his allotment, he conceded that respondent stood at par to that of Muhammad Rafiq in the matter of allotment but his case was regularized for the consideration that he had already constructed the house. We are afraid, the learned counsel has not been able to satisfy us that the above consideration, would not lead to an inference of discrimination so far as the question of eligibility under the bye-laws of the Society was concerned and we having considered the matter, have not been able to find out any distinction in the case of respondent to be dealt with differently to that of Muhammad Rafiq. The appellant, a public functionary while discharging its affairs concerning with the valuable rights of the people, is not supposed to proceed in its entire discretion or in a discriminatory manner on the basis of policy of pick and choose which has no recognition in law. We agree with the learned counsel for the appellant that in case of controversial questions of facts requiring adjudication on the basis of evidence, the High Court should not interfere in its Constitutional jurisdiction but in the present case, we find that material facts were admitted by the appellant and the High Court, after satisfying the requirement of law, interfered in the matter.

9. In the light of foregoing discussion, we having found no substance in this appeal, dismiss the same with no order as to costs.