' IJAZ-UL-AHSAN, J. --- Through this Constitutional petition, the Petitioner/Society challenges an order dated 05.04.2011 passed by the Secretary Cooperatives, Government of Punjab, Lahore praying that it may be set aside and an earlier order dated 21.07.2010 passed by Registrar Cooperative Societies ("RCS") be upheld.
2. The brief facts of the case' are that Respondent No, 3, Dr. Rubina ljaz ("Respondent No, 3") applied for and was admitted as a member of the Petitioner/Society on 26.09.1990. She was allocated Membership No,
111. She submitted an application for allotment of a 01-Kanal residential plot. The said application was accepted by the Petitioner/Society, pursuant to which she made payments in the aggregate sum of Rs, 1,80,000/- to the Petitioner/Society in 06 instalments starting from 26.09.1990 to 18.10.1992. The amount in question was paid in accordance with the guidelines incorporated in the brochure of Phase-I of the Petitioner/Society. She was accordingly allotted Plot No, 186 in Block-B, Phase-1 of the Society. Accordingly, a Provisional Allotment Letter dated 01.08.1996 was issued in her favour by the Secretary General of the Society. It appears that the Petitioner/Society erroneously issued two Allotment Letters of the same date, both signed by Secretary General of the Society showing allotment of plot No, 186 in one letter and plot No, 189 in the other letter. This discrepancy was brought to the notice of the Secretary General of the Society, who undertook to remove the said discrepancy. The matter did not get resolved and Respondent No, 3 was not given either of the plots although she was willing to accept either. This compelled her to move the RCS under Section 54 of the Cooperative Societies Act, 1925 ("Act") for arbitration.
During the arbitration proceedings the Petitioner/Society took the stance that Respondent No, 3 had defaulted in payment of the dues and her plot had been cancelled. The stance taken by Respondent No, 3 was that she never received any notice or letter of the Petitioner/Society regarding default or cancellation. Even otherwise, she had made full payment for the plot in Phase- I and had been given an allotment letter and the allotment in her favour could not be cancelled without following the procedures provided in the bye-laws of the Society, which were not followed.
Therefore, the stance taken by the Petitioner/Society was incorrect and male fide.
3. It appears that the Petitioner/Society took the position that .Respondent No, 3 may be given a ploy in Phase-II of the Society as she was entitled to such plot in the said Phase if she agreed to pay outstanding dues. This offer of the Petitioner/Society was not accepted by Respondent No, 3 who took the position that she had applied for membership in 1990, was allotted a plot in Phase-I, she had made all payments as provided by the brochure of the Society, nothing was due or payable by her and she was entitled to a plot in Phase-I of the Society. She however, expressed her willingness to pay any additional amounts/development charges that may be lawfully payable. It was further pointed out that admittedly Phase-II was allegedly launched in 1993 and was non- existent. Therefore, the offer of the Petitioner/Society to allot her plot in Phase-II was an eyewash.
4. After hearing the parties, the RCS came to the conclusion that Plot No, 186, Block-B, Phase-I was allotted to Respondent No 3 and she was required to deposit all dues against the said plot. In view of the fact that she failed to deposit the dues, Petitioner/Society cancelled the allotment which was lawfully done. However, taking a lenient view, he directed the Respondent Society to allot an alternate plot to Respondent No, 3 in Phase-II of the Society subject to payment of all outstanding dues. Respondent No, 3 challenged the order of the RCS before Secretary Cooperatives in an appeal under Section 64 of the Act. The said appeal was ;accepted vide order dated 05.04.2011 and the Petitioner/Society was given the following options:---
(i) Allot her a plot in Phase-I of the society on first availability/top priority basis, or
(ii) Allot her a commercial plot of the same value as of one kanal residential plot in Phase-I on availability. The appellant would have first right to get this plot, on availability.
(iii) Pay to the respondent the value of one kanal residential plot in Phase as of today after deduction of the outstanding dues, if any, on the availability of cash with the society. Appellant shall have the first right to get the cash on availability with the Society."
' The Petitioner/Society is aggrieved of the said order.
5. The learned counsel for the Petitioner/Society submits that Respondent No, 3 moved an application to become a member of the Society on 26.09.1990. Her application form for allotment of a plot was for Phase-II which could not be established. However, the Petitioner/Society is ready and willing to provide her a plot in Phase-II whenever it is established. He further submits that in view of the fact that Respondent No, 3 was a member since 1990, and had deposited certain amounts towards allotment of a plot in Phase-II, an offer was made to her at one stage for shifting of her membership to extension of Phased due to availability of few plots. Various letters were addressed to her in this regard, however, she did not respond to the same and subsequently took the stance that she had, in the first place, applied for a plot in Phased and was, therefore, entitled to the same. He further maintains that admittedly, Respondent No, 3 was a defaulter, her membership was lawfully terminated and she had no right to claim allotment of a plot of land in Phase-I of the Society in her favour.
6. The learned counsel for Respondent No, 3, on the other hand, has vehemently contested the version put forth by learned counsel for the Petitioner/Society. He has pointed out that Petitioner/Society has been taking self-contradictory positions before various fora including this Court. He maintains that even in the order of the RCS, it was categorically held that Respondent No, 3 was allotted Plot No, 186 in Block-B of Phase-I. The said finding has not been challenged by Petitioner/Society either before the Secretary Cooperatives or before this Court. The same has, therefore, attained finality. He further submits that the assertion of the learned counsel for the Petitioner/Society that Respondent No, 3 had applied for a plot of land in Phase-II is neither supported by record nor does it appeal to reason or logic. He points out that admittedly the Respondent No, 3 had become a member in 1990, had sought allotment of plot of land in the said year and in the next 02 years had paid the entire amount as per instructions contained in the brochure circulated by the Petitioner/Society. An allotment letter was issued in her favour by an authorized officer of the Society which has not been disputed. Payments made by Respondent No, 3 have not been disputed either. As such, the stance of the Petitioner/Society that she was entitled to allotment of a plot in Phase-II of the Society, which is nonexistent even today, is without any basis. He further maintains that there is neither any evidence of default nor any proceedings including notice issued to or received by Respondent No, 3 indicating that she was in default or that her plot had been cancelled. He, therefore, submits that the order passed by Secretary Cooperatives does not require any interference.
7. I have heard the learned counsels for both the parties and gone through the record.
8. The record indicates that Respondent No, 3 applied for and was granted membership of the Petitioner/Society in 1990. It appears that only purpose for joining the society was to get a residential plot. She was required in accordance with the instructions contained in the brochure circulated by the Petitioner/Society to make certain payments. She made such payments in accordance with the schedule mentioned in the brochure in the next two years. Receipt of the said payments in aggregate of Rs, 1,80,000/-made, in six instalments over a period of two years has not been denied by the Petitioner/Society. In 1996, the Petitioner/Society through its Secretary General also issued provisional allotment letter in favour of the Respondent No, 3 which crystallized her right to a plot of land measuring 01- Kanal, Block-B of the Society. The stance of the learned counsel for the Petitioner/Society that she had applied for a plot of land in Phase-II and was, therefore, not entitled to a plot in Phase-I is not supported by the record. It is further negated by the fact that the Petitioner/Society itself issued a provisional allotment letter in her favour stating that a 01 kanal plot in Block-B of Phase-I has been allotted in her favour. The learned counsel for the Petitioner/Society has half-heartedly attempted to argue that the letter in question is forged. However, the record indicates that this stance was never taken before any forum and has been raised today as an afterthought. Further, the assertion of the Petitioner/Society that the Respondent No, 3 was defaulter, notices had been issued to her to clear default and upon her failure to do so her plot was cancelled is also belied by the record. The documents relied upon by learned counsel, indicating that a cancellation notice/clearance of default notice was sent to her informing Respondent No, 3 of her default, does not bear the address on which all earlier correspondence was sent to her Therefore, the said document cannot be relied upon in support of the stance of the Petitioner/Society. The finding of the Secretary Cooperatives that default is not established nor is communication of any notice in this regard is proved. This requirement of law not having been met, Respondent No, 3 could not be penalized for the same. The findings of the Secretary Cooperatives are in my view based upon sound reasoning duly supported by the record.
9. Admittedly, Respondent No, 3 had paid a sum of Rs, 1,80,000/- in 06 instalments which were received by Petitioner/Society and has not been denied at any stage. If at all, the Society claims that other amounts were due from her, such amounts were never claimed from her by issuing notices to clear her dues as per procedure prescribed under the Bylaws of the Society. Further a valuable right of the Respondent was taken away without due process or even granting her a hearing and behind her back. Therefore, the order of cancellation if at all it was passed is not sustainable. The Secretary Cooperatives was, therefore, in my opinion, quite justified in holding and I agree that the Petitioner/Society acted male fide, unlawfully against its bye-laws and contrary to the spirit of laws governing cooperatives societies. The. Respondent No, 3 was entitled to allotment of a 01-Kanal plot to Phase-I of the Society on clearance of amounts which were lawfully due from her at the relevant time. It may be noted that the order of the. Secretary Cooperatives gave three options to the Petitioner/Society in order to make it possible for it to either allot a plot of land to the Respondent No, 3 or to adequately compensate her for the same. I have not found any factual, legal or procedural error or flaw in the order passed by Secretary Cooperatives which is be upheld.
10. During the course of arguments, the learned counsel for the respondents has pointed out that this petition is not maintainable in view of the fact that the impugned order has already been accepted and partly implemented by the Petitioner Society insofar as a statement was made before the District Officer Co-operative by the Secretary of the Society that the respondent had already deposited a sum of Rs, 1,80,000/- and a balance amount of Rs, 1,70,000/-was payable. He stated that in order to accommodate the affected member for allotment of a commercial plot by way of compensation, permission had been granted by the District Officer Co-operative vide letter dated 23.05.2011. The Secretary of the Society gave an assurance on payment of the outstanding amount of Rs, 1,70,V0/-, "the applicant will be allotted a commercial plot of the value equivalent to the present day price for one kanal plot in Phase-I of the society". The above statement was recorded in the order dated 18.06.2011 passed by DOC/Deputy Registrar, Lahore.
11. It is submitted that acceptance of the order of the Secretary Co-operative and having made the afore-noted statement, the petition filed by the Society challenging the order of the Secretary is not maintainable.
12. It is apparent from perusal of the order that the Secretary Cooperatives has given three options to the Petitioner/Society. It is clear and obvious that the rationale for giving three options was that justice was done to both parties and at the same time the Society was not put in a situation where the order would practically be un-executable by it. It is clear and obvious that the Society has opted to take the second option and decided to allot a commercial plot of the present day value of a one kanal of residential plot in Phase-I. It is evident from the order dated 05.04.2011 that the Petitioner/Society had accepted the order passed by the Secretary Cooperatives and its Secretary has made a categoric statement that on payment of balance amount of Rs, 1,70,000/-, the Society will allot a commercial plot of the value equivalent to the present day price of one kanal plot in Phase-I of the society to Respondent No, 3.
13. In this view of the matter, this petition challenging the order of the Secretary Cooperatives is even otherwise not maintainable.
14. For reasons recorded above, this petition is found to be without merit. It is accordingly dismissed.