P L D 2007 Lahore 538 (PLP)

UMAR ATA BANDIAL, J.

Learned counsel for the petitioner submits that the petitioner was member of the respondent society and joined the balloting for 1 kanal plot by the deposit of cost of land in the amount of Rs.35,000 and later the additional cost of land in the amount of Rs.11,010 on 12-3-1989. The second deposit was made by the petitioner in the correct name but under wrong membership number. Consequently, the respondent society cancelled the petitioner's membership on 8-9-1989 on account of petitioner's default. Notwithstanding the same the petitioner deposited a further amount of Rs.12,000 on 10-6-1990 on account of development charges but without any demand in this behalf being raised by the respondent society.

2. A dispute arose between the parties about the petitioner's default which was ultimately taken before the D.O.C. Gujranwala/respondent No.4. By order dated 9-6-2000, the respondent No.4 found the respondent society to be at fault in failing to give the petitioner benefit of the amount deposited by him in its account but under a wrong membership number. Consequently, an order for allotment of plot to the petitioner was made by the respondent No.4. That order was assailed by the respondent society before the Registrar Cooperatives/respondent No.3 who modified the order of the D.O.C. and directed by his order dated 19-4-2001 that the petitioner should instead be paid compensation by the society at the rate of Rs.20% mark-up on the amount deposited by him. The petitioner challenged She said order before the Secretary/ respondent No.2 who has vide order dated 13-3-2006 upheld the order by the Registrar.

3. Before this Court learned counsel for the petitioner submits that all three orders passed by the respondent authorities acknowledge the right of the petitioner to the allotment of a plot but the latter two orders direct payment of compensation due to unavailability of any plot with the society. That the default in the matter by the respondent society stands established on record and now the only challenge is that the quantum of compensation awarded bears no reference to the adjudicated entitlement of the petitioner namely, value of 1 kanal plot of land. In reply learned counsel for the respondent society has urged that the petitioner never paid the entire dues of the society for the allotment of a plot and, therefore at best his entitlement is for compensation for the amount deposited rather than on the basis of the value of plot of land in the respondent society.

4. The order by the respondents Secretary and Registrar direct financial compensation because no plot is available for allotment to the petitioner. Both these orders, however, fail to consider whether the petitioner had acquired a mature right to allotment of plot from the respondent society. According to the submissions made by the learned counsel for the respondent society an amount of Rs.1,26,000 was payable as the price for allotment of a 1 kanal plot, good 14 years ago. Therefore, the petitioner's claim for compensation amounting to the value of a plot is misconceived. On the other hand, it is duly established that the petitioner was willing to pay his financial dues for the allotment of a plot but was denied the opportunity to do so on account of the wrongful cancellation of his membership. Therefore failure to pay balance amount of price of a plot by the petitioner is not due to his personal default but by the act of the respondent society. The above facts, however, do not entitle the petitioner to claim either a plot of land or the value thereof because that would reward him with an advantage for which he has not discharged the corresponding obligation. Indeed, if the petitioner were to make such claim he should have sought a direction from the respondent authorities to allow deposit of the balance price of a plot with the respondent society as and when such payments became due.

5. Be that as it may, the petitioner did deposit an amount of Rs.58,010 with the respondent society which was utilized for development work carried out by the respondent society. However, on account of the established wrongful acts by the respondent society the petitioner was prevented from maturing his entitlement to the allotment of a plot for which he managed to pay about 45% of the price. Therefore, the loss suffered by the petitioner by the denial of opportunity to make full payment of the price of a plot forms the fair and reasonable basis for awarding compensation .to him. That approach would compensate the petitioner with the corresponding benefit accruing on his investment towards the allotment of a plot and would likewise impose on the respondent society a burden corresponding to the advantage derived by respondent society from the petitioner's investment. Accordingly the impugned award of compensation based on mark-up on the amount deposited is neither relevant nor justified.

6. Consequently, the impugned order is set aside. The right of the petitioner to receive compensation is duly established on record and is not challenged by the respondent society. The respondent No.2 Secretary is directed to do the needful in the matter and to expeditiously take steps to quantify the benefit that is due to the petitioner and to award the same to him as compensation. Disposed of. M.H./I-32/L Petition allowed.