1980 PLP 322 (SCMR)

ANWARUL HAQ, C J.‑The dispute in this case concerns the allotment of a b4ilding plot bearing No. 67‑E situate in Satellite Town, Rawalpandi. It was allotted to the petitioner Abdul Latif Dar on 24th February, 1956 in lieu of the plot bearing No. 92‑A which bad been originally allotted to him on 8th December, 1953. Its area is 9 kanals, 3 marlas and 85.5 sq. ft., out of which the petitioner was given possession of 7 kanals, 2 marlas and 212.50 sq. ft. on 3rd March. 1956. The possession of the remaining area measuring 2 kanals and 98 sq. ft. could not be delivered as it was under dispute with the Holy Family Hospital, and a note to this effect was made on the possession slip issued to the petitioner. While obtaining the original allotment of Plot No. 92‑A, the peti tioner had deposited a sum of Rs. 1401 so as to cover 20 per cent of the price of that plot, as was required under .clause (B) of the terms and conditions of allotment contained in circular UDD

35. He had also deposited the amount required for stamp paper for drawing up the relevant agreement between the parties. However, when the petitioner obtained the larger plot now it dispute, in lieu of Plot No. 92‑A, he did not deposit the differences between the 20%of the price of the original plot and that of the price of the plot in dispute. He did not pay any other instalment either towards the payment of its price. On 31st December, 1958 a notice was issued to the petitioner for the payment of the balance of the price of the plot in addition to penal interest. The petitioner did not comply with this demand, apparently for the reason that he had not been given possession of the total area of the plot. On the 30th of January, 1959, the allotment of the plot was cancelled from his name. After considerable correspondence between the parties the matter was placed before the Commissioner, Rawalpandi, for arbitration ; and he made his award on 25th July, 1952, holding that the cancellation of the allotment was justified. The Arbitrator took pointed note of the fact that the petitioner had failed to make payment of the price of the plot in accordance with the terms and conditions of the allotment, and that he had not also submitted a building plan for the same, although this could have been done even if he had not obtained possession of the entire area of the plot. The petitioner filed objections against the award, but they were dismissed by the learned Administrative Civil Judge by his order dated the 30th of April, 1970. The appeal filed by the petitioner was dismissed by the learned Additional District Judge, Rawalpindi, on the 10th of February, 1972, and his revision petition has now been dismissed by a learned Judge of the Lahore High Court by his order dated the 20th of November, 1978. Leave to appeal is sought on the following grounds :‑ (a) That in terms of the dictum of their Lordships of the Privy Council in Champasy Bhara & Company v. Jivraj Balloo Spinning of Weaving Company Ltd., A I R 1923 P C 66 the Courts were bound to take notice of the fact that there was an error apparent on the face of the award and the record consisting of the documents referred to by the Arbitrator ; (b) That in terms of the conditions of the allotment as contained in circulars bearing Nos. UDD 33, UDD 34 and UDD 35, the petitioner was under no obligation to pay any instalments towards the price of the plot as he had not obtained possession of the entire area of the plot ; nor could he submit building plan for the same reason (c) That in terms of sections 51, 54 and 55 of the Contract Act, the obligations of the parties being reciprocal, and the Government having failed to fulfil its obligation of delivering possession of the entire plot. petitioner could not unilaterally be called upon to make payment of the balance of the price, and his failure to do so could not render him liable to the cancellation of allotment ; and (d) The learned Arbitrator was clearly in error in thinking that the petitioner had entered into unnecessary and vexatious correspondence with the Allotment Committee. After hearing Mr. Bashir Ahmad Ansari at considerable length and perusing the various documents placed on the record and particularly the three circulars mentioned above, we have formed the view that there is no merit in this petition. According to clause (8) of the conditions allotment contained in document UDD 35, it was incumbent upon the petitioner to deposit in advance, within one month of the allotment, 20% of the total price of the plot. As already stated, he deposited only a sum of Rs. 1401, while 20% of the price of the plot in dispute amounted to nearly Rs. 4,

500. He was given part possession of the plot on 24th February, 1956, and until the date he received a notice of'‑demand the 31st December, 1958, he had not made any payment at all in order to meet the requirement as contained in clause (8) just mentioned. A fair reading of this clause makes it clear that this payment of 20% o the price of the plot is in the nature of an advance payment and was to A serve as security for the payment of future instalments, and that this payment was to be made before the formal order of allotment could issue. In other words, it is clear that this payment was not dependant upon the delivery of possession of the plot allotted to the petitioner ; rather it was a condition precedent for allotment and delivery of possession. There is no merit in the submission made by Mr. Ansari that the petitioner was entitled to a notice in this behalf. The clause referred to by us absolutely clear on this point, and if any notice at all was required, it was served on the petitioner on 31st December, 1958, but even then he failed to comply with the same. In the circumstances, it is clear to us that there was a failure on the part of the petitioner to comply with a condition precedent for the allotment of the plot.. The learned Arbitrator was, therefore, justified in upholding the cancellation of the plot from the name of the petitioner. The Courts below were similarly justified in refusing interfere with the award made by the Arbitrator. The petition, accordingly, fails and is hereby dismissed. Petition dismissed.