2007 PLP 1086 (YLR)

UMAR ATA BANDIAL, J.

The impugned order of remand dated 15-5-2006 passed by the respondent No.1 Secretary Cooperative is challenged on the ground that it fails to take account of the fact that the appeal filed before him by the respondent No.2 is time-barred. Learned counsel for the petitioner refers to certain documents showing admission by the respondent No.2 that on or about 31-5-2004 he had knowledge of the order by the Circle Registrar dated 22-12-2003 that was challenged in his appeal before respondent No.1 which was filed on 2-12-2004 well beyond the limitation period of two months.

2. Quite apart from the plea of limitation forcefully urged by counsel, a perusal of the petition shows on merits that the petitioner is an allottee in possession of plot 57-H in the respondent No.3 Society. Possession was lawfully handed over by the site engineer of the respondent Society to the petitioner on 3-11-1990. This was done pursuant to a direction dated 24-4-1990 given by the respondent No.5 for the petitioner to be put in possession of a suitable plot determined by the respondent Society. The affairs of the Society are badly tainted with fraudulent dealings and 153 allottees thereof are without possession of any plots. 13 years after the handing over of possession of the said plot to the petitioner, the respondent Society attempted to reopen the petitioner's case in 2003 by alleging that the petitioner had been given possession of a plot belonging to another allottee. It is admitted on record that the petitioner has possession of only one plot for which she has paid fully and has also been given a registered sale-deed executed by the respondent society.

3. The fact that the petitioner is an allottee in possession and that the respondent No.2 is also an allottee who was never heard at any stage justifies that the interest of both are considered and weighed by the respondents before arriving at a decision in the matter. The respondent No.2 cannot be shut out on the ground of limitation without an opportunity of hearing on the facts alleged by the petitioner. If the respondent No.2 crosses that hurdle, he shall have to meet the petitioner's defence, inter alia, of locus poenitentiae, vested right, fraudulent deprivation against the Society and locus standi and collusion against the respondent allottee.

4. A perusal of the record shows that a factual controversy is involved even on the question of limitation that may necessitate recording of evidence. Therefore, the impugned appellate order has rightly remanded the matter to the respondent No.5. The observation made in the impugned order that limitation does not run against the respondent allottee is, however, un-substantiated because it is neither based on a finding of, the factual dispute nor made with reference to specific law. The said observation is, therefore, deleted from the impugned order which shall have no bearing on the remand proceedings before the respondent No.5 in respect of which the direction given in the impugned order is upheld. The respondent No.5 shall conclude such proceedings within two months of the receipt by him of a certified copy of this order. Disposed of. M.B.A./T-3/L Order accordingly.