' MALIK MUHAMMAD QAYYUM, J.---This appeal under section 3 of the Law Reforms Ordinance, 1972 calls in question the judgment and order dated 6-8-1991 whereby a learned Single Judge of this Court dismissed W.P. No, 1437 of 1986 along with the connected petition (W.P. No,971 OF 1987).
2. It is not necessary to state the facts in detail as the same have been adequately set out in the impugned judgment of the learned Single Judge. For the present purposes, brief resume would suffice. On 1-10-1960, Sardar Atta Muhammad Khan Leghari (deceased respondent No,5) who was a member of the Government Gazetted House Building Society Ltd., Multan was allotted plot bearing No,5-E measuring 16 Kanals 5 Marlas in the Housing Scheme known as Officers Colony, Multan framed by the said Society. He paid the entire price but his allotment was cancelled by resolution dated 18-6-1972 of the Society on the ground that he had failed to raise construction over the plot within the fixed period of one and a half years. On an application filed by respondent No,5, the dispute was referred to the arbitration of the nominee of the Registrar, Cooperative Societies under section 54 of the Cooperative Societies Act, 1925 who delivered his award on 27-7- 1975 holding that cancellation of the allotment of respondent No,5 was illegal and u nlawful.
3. According to the learned counsel for respondent No,5, he had been trying his best to have the award enforced and implemented. The learned counsel for the appellant has, however, maintained that respondent No,5 had accepted the cancellation of his allotment and never agitated the matter any further except that in the year 1983, he had filed an application for restoration of his allotment which was refused by the Minister for Housing and Physical Planning on 16-5-1983.
4. Earlier on 31-1-1983, 2 Kanals of land out of the plot in question was allotted to the appellant who paid its price. On 21-7-1985, an agreement was entered into between the appellant and the Multan Development Authority to which assets and liabilities of the Cooperative Society stood transferred as a result of arrangements arrived at between the Society and the Multan Development Authority.
On 10-10-1986 the transfer in favour of the appellant was cancelled by the Multan Development Authority and the plot was restored to respondent No,5, vide order dated 11-11-1986 of the Multan Development Authority. The order of cancellation of allotment of the appellant and restoration of the plot to respondent No,5 was challenged by the appellant by filing a Constitutional petition which as already mentioned, was dismissed by the learned Single Judge.
5. In support of this appeal, learned counsel for the appellant has raised two contentions; firstly, that the allotment of the appellant could not have been cancelled without affording him an opportunity of being heard and secondly that the appellant has been unfairly discriminated against as in a similar case the learned Single Judge had taken the view that before proceeding to cancel the allotment, hearing to the affected person was necessary. It was also contended by the learned counsel for the appellant that there is nothing on the record to show that the dispute between respondent No,5 and the Society was ever referred to arbitration or that any award had been rendered by the arbitrator and in any case, as award had not been made rule of the Court, it was unenforceable. In support of first submission, reliance was placed by the learned counsel upon Salah-ud-Din and others v. Government of the Punjab through Secretary, Education and others 1987 SCM R 305, Syed Ijaz Hussain Sherazi and 28 others v. Secretary, Local Government and Rural Development Department, Lahore and others 1990 CLC 230 and Ittehad & Co. v. The Commissioner, Faisalabad and others PLD 1994 Lah.
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6. The learned counsel appearing on behalf of respondents have defended the impugned judgment of the learned Single Judge. It has been argued that the allotment to respondent No,5 was illegally cancelled by the Cooperative Society which was set aside by the Arbitrator on 27-7- 1975 and whereafter respondent No,5 had been making efforts to obtain possession of the plot which was unfortunately occupied by certain squatters till 1985 when they were ejected by providing alternative land.
7. Having heard the learned counsel for the parties at length and perused the record, we are of the view that none of the contentions raised by the learned counsel for the appellant can prevail. It is not disputed by him that the plot in dispute formed part of Plot No,5-E Officers Colony, Multan which was originally allotted to respondent No,5 on 10-1-1960. That allotment was cancelled on 18- 6-1972 and in our view, illegally, on the ground that he had failed to raise any construction over the plot in question within the period of 1-1/2 years fixed in that behalf. It is since long well-settled that in cases relating to sale of immovable property the time is not of essence of the contract and the mere failure to raise construction within the period fixed in the agreement cannot result in cancellation of the transfer. If any authority is needed reference may be made to Sh. Muhammad Shafi v. The Lahore Improvement Trust PLD 1959 Lah.
1. It is also interesting to notice that it is a common ground between the parties that at the time when the plot was allotted to respondent No,5 and even for a long period thereafter, it was occupied by certain squatters and as such its possession could not be delivered to him. We fail to understand as to how in the absence of delivery of possession, could respondent No,5 be penalised for not raising any construction over the plot.
8. It is, however, unnecessary to dilate upon this aspect of the matter any further as cancellation of allotment in favour of respondent No,5 was set aside and declared to be illegal by Mr. Anwar-ul- Haq, the Arbitrator appointed under section 54 of the Cooperative Societies Act, 1925. A copy of the award is available on the file of the connected Writ Petition bearing No,971/87. As a result of setting aside of the order of cancellation, the allotment in favour of respondent No,5 stood restored and consequently any part of the land could not have been allotted any further.
9. The learned counsel for the appellant has contended that as the award was not made rule of the Court, it had no validity. This argument is wholly misconceived. The dispute had been referred to the nominee of the Registrar under section 54 of the Cooperative Societies Act, 1925 and not Arbitration Act, 1940. The award delivered by the Arbitrator under the Cooperative Societies Act, 1925 is final under section 57 of the Act and does not require any further validation from the Civil Court.
10. It follows from the above that as result of the award rendered by the Registrar's nominee under section 54 of the Cooperative Societies Act, 1925 on 27-7-1975, the allotment in favour of respondent No,5 stood restored and no part of the land could have been transferred by the Society or Multan Development Authority, as the case may be to the appellant who did not derive any right whatsoever on the basis of the allotment made to him admittedly after the decision of Arbitrator. In such circumstances, the question of granting any hearing did not arise. The award was clearly binding not only upon respondents Nos.1 to 4 but also upon the appellant as subsequent transferee.
11. There is no force in the contention raised by the learned counsel for the appellant that respondent No,5 had accepted the cancellation of his allotment or had acquiesced with it. On the other hand, as already observed, the cancellation was challenged by respondent No,5 before appropriate forum. There is sufficient material on the record to show that after the award was rendered by the Arbitrator respondent No,5 had been trying his best to obtain possession of the plot which, however, could not be delivered to him for a long period of time as it was occupied by squatters and trespassers who were removed only in 1985. Along with written statement filed by respondent No,5 he has appended copies of various applications addressed by him to the Multan Development Authority, to the Martial Law Administrator and other high functionaries of the Government for the grant of appropriate relief. It cannot, therefore, be held that respondent No,5 had either accepted the cancellation or was estopped by his conduct from seeking its restoration or possession.
12. So far as reliance of the learned counsel for the appellant on the judgment of the learned Single Judge in W. P. No 146/89 decided on 16-6-1991, it is to be seen that petition was accepted by the learned Single Judge in the peculiar circumstances of that case where the allotment in favour of that petitioner in that petition had not yet been cancelled. It was specifically observed by the learned Judge that the question of legality of restoration in favour of respondent No,5 was not being decided by him. This decision is hardly be a precedent for holding that the cancellation of transfer of plot in favour of the appellant was without lawful authority.
' For the foregoing reasons, this appeal is found to be without any force and is accordingly dismissed with no order as to costs.