Allahabad High Court
Shobhan Pal Singh And Another vs Appellate Authority/Asstt. ... on 17 July, 2013
Bench: Tarun Agarwala
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR.
Court No. - 2
Civil Misc. Writ Petition No. 18933 of 2011
Sri Shobhan Pal Singh and another.
Vs.
Appellate Authority and others
Connected with
Civil Misc. Writ Petition No.20672 of 2011
Rohitas Singh .
Vs.
Appellate Authority and others
And
Civil Misc. Writ Petition No. 20673 of 2011
Km. Usha Singh
Vs.
Appellate Authority and others
*****
Hon'ble Tarun Agarwala,J.
The controversy involved in all the three writ petitions is the same and, consequently, all these writ petitions are being decided together by a common judgment. For facility, the facts of Writ Petition No.18933 of 2011 is being taken into consideration.
In the year 1965, the respondent No.3 Society was formed under the U.P. Cooperative Societies Act, 1965, in which the petitioners' father, Late Krishna Pal Singh, became a member. In 1966, the Society purchased land. It is alleged that a lay out plan was prepared and No Objection Certificate was obtained from the Chief Town and Country Planner, Lucknow, and in 1993, the lay out plan was approved by the Nagar Palika, but, subsequently when the Agra Development Authority came into existence under the U.P. Urban Planning and Development Act, 1973, a fresh lay out plan was approved from the authority. On 14.7.1983 the Society executed a sale-deed in favour of the father of the petitioners, being Plot No.B-1, measuring 933 Sq. metres. In 1992 the father of the petitioners died and, upon an application, the petitioners were substituted and also became members of the Society.
It transpires that in 1993, the Society prepared another lay out plan reducing the area to 692 Sq. meters. It is alleged that the said lay out plan was approved by the requisite authority. Another lay out plan was again approved in the year 2001. Ultimately, the Society filed an application in the year 2010 before the Deputy Registrar for reference of a dispute contending that the father of the petitioners owned a residential house in Agra and, therefore, had no requirement of the plot in the society's land. It was also alleged that the boundary wall was not constructed within the stipulated period nor a residential house was constructed and that the petitioners' are only interested in selling the land to the Mafias for profit. It was also alleged that the development charges were not paid and that the petitioners' father had made a false declaration that he did not own a house in Agra. The Society, accordingly, prayed that the matter be referred for arbitration and a declaration be issued that the sale-deed executed by the Society with the petitioners' father should be declared null and void.
The petitioners filed their objection denying all the allegations contending that the development charges was paid as and when demanded, and that, a boundary wall was constructed by their father, which might have been destroyed due to passage of time. The petitioners categorically denied that their father owned any residential house in Agra and also contended that petitioner No.2 had purchased a residential accommodation in Agra from his own funds and that he was never dependent upon his father.
The Arbitrator, after considering the objections, gave an award declaring the sale deed executed in the name of the petitioners' father to be null and void, on the ground, that the petitioners' father owned another house in Agra in which petitioner No.2 was residing and that the boundary wall was never constructed and that the petitioners or their father had no requirement of the house and that the petitioners want to sell the land to the Mafias at a lucrative price. The petitioners, being aggrieved by the said award, has filed an appeal, which was also dismissed and, consequently, the present writ petition has been filed.
Heard Sri Anil Sharma and Sri R.K.Shukla, the learned counsel for the petitioners and Sri Prashant Mishra, the learned counsel for the respondents.
The learned counsel for the petitioners submitted that the Arbitrator had no jurisdiction or power to declare a sale deed null and void, and that, only the Civil Court can set aside a sale deed, which has been duly registered in accordance with the Societies Registration Act. It was contended that such type of disputes cannot be referred under Section 70 of the U.P. Co-operative Societies Act, 1965 and that the only remedy available to the Society was to file a civil suit. It was also contended that no evidence of any sort was filed by the Society before the Arbitrator to prove that another house was owned by the petitioners' father nor any evidence was filed to indicate that development charges had not been paid nor any evidence was filed to indicate that the boundary wall had never been constructed.
In the connected writ petitions an additional ground was taken by the Society that the residential house was not constructed within the stipulated period as contemplated under the bye-laws of the Society.
Having heard the learned counsel for the parties at some length, the Court finds that certain provisions of the Act are required to be considered.
Section 70 of the Act provides reference of certain disputes to arbitration. For facility, the said provision is extracted hereunder:
"70. Disputes which may be referred to arbitration.- (1) Notwithstanding anything contained in any law for the time being in force, if any dispute relating to the constitution, management or the business of a co-operative society other than a dispute regarding disciplinary action taken against a paid servant of a society arises-
(a) among members, past members and person claiming through members, past members and deceased members ; or
(b) between a member, past member or any person claiming through a member, past member or deceased member, and the society, its committee of management or any officer, agent or employee of the society, including any past officer, agent or employee ; or
(c)between, the society or its committee and any past committee, any officer, agent or employee or any past officer, past agent or past employee or the nominee, heir or legal representative of any deceased officer, deceased agent, or deceased employee of the society; or
(d)between a co-operative society and any other co-operative society or societies;
such dispute shall be referred to the Registrar for action in accordance with the provisions of this Act and the rules and no court shall have jurisdiction to entertain any suit or other proceeding in respect of any such dispute:
[Provided that a dispute relating to an election under the provisions of this Act or rules made thereunder shall not be referred to the Registrar until after the declaration of the result of such election.]
(2)For the purpose of sub-section (1), the following shall be deemed to be included in dispute relating to the constitution, management or the business of a co-operative society, namely -
(a) claims for amounts due when a demand for payment is made and is either refused or not complied with whether such claims are admitted or not by the opposite party;
(b) a claim by a surety against the principal debtor where the society has recovered from the surety and amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor or whether such debt or demand is admitted or not ;
c)a claim by a society for any loss caused to it by a member, officer, agent, or employee including past or deceased member, officer, agent, or employee, whether individually or collectively and whether such loss be admitted or not; and
(d)all matters relating to the objects of the society mentioned in the bye-laws as also those relating to the election of office-bearers.
(3)If any question arises whether a dispute referred to the Registrar under this section is a dispute relating to the constitution, management or the business of a co-operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any court."
Rule 225 of the U.P. Cooperative Societies Rules, 1968 prescribes the form and the procedure for raising such dispute. For facility, the said provision is also extracted hereunder:
"225. When a dispute relating to any manner referred to in sub-section (1) of Section 70 arises, the aggrieved party shall, on the form, if any, prescribed for the purpose by the Registrar, apply to the Registrar stating the substance of the dispute and the claim; besides mentioning the name and address of the opposite party or clause(c) of sub-section (1) of Section 71, it shall also mention in the application the name of its nominee for the board of arbitrators."
A perusal of Section 70 read with Rule 225 of the Rules makes it apparently clear that any dispute relating to the constitution, management or the business of a Co-operative Society other than a dispute regarding disciplinary action against a servant of the Society between a member and the Society can be referred to the Registrar for action in accordance with the provisions of the Act and the Rules. Rule 225 provides a format under which the dispute could be referred. Rule 229 indicates the authority which can decide the dispute based on the valuation and that the arbitrator has been given the power to decide under Rule 241 after consideration of any documentary or oral evidence in accordance with justice, equity and good conscious.
This Court finds that a similar objection was raised by the petitioners in Yaduraj Singh vs. District Assistant Registrar, Cooperative Societies, U.P., Agra/ Appellate Authority and others, 2013(1) A.W.C.427, wherein the Court after considering the matter in detail held that a dispute with regard to the declaration of a sale deed being held null and void, can be decided by an Arbitrator in a dispute referred to it under Section 70 of the Act, as it would amount to a dispute relating to the business of a cooperative Society. The Court is in complete agreement with the aforesaid decision and, consequently, is not dwelling on the subject any further. The contention of the petitioner in this regard is rejected.
The basic dispute raised in all the writ petitions is, that the member has given a false declaration and that the said member owns another land or a residential house in his or her name in the city of Agra. The Court is constrained to observe that the Society has failed to furnish any documentary proof before the Arbitrator with regard to this allegation against the petitioners having a land or a house in his or her name in Agra and has further failed to file any evidence with regard to violation of any of the conditions of the sale-deed or of the bye-laws of the Society.
In furtherance to the aforesaid, it would be appropriate for the Court to dwell on Clause 5 (1) and 3(10) of the bye-laws. For facility, the same are extracted hereunder:
Clause 5 (1)-
"5- tc rd fd vf/kfu;e rFkk fofu;eksa ds izkfo/kkuksa ds v/khu vugZ u gksa rc rd lfefr dh lnL;rk ,sls O;fDr;ksa ds fy, miyC/k jgsxh tks LoLFkfpRr] lpfj= rFkk 18 o"kZ dh vk;q ls vf/kd gksa vkSj tks%&
(1)lfefr ds dk;Z{ks= esa jgrs gksa vFkok jgus ds bPNqd gksa vkSj ftudk viuk vFkok muds ifjokj ds fdlh lnL; dk dksbZ viuk [email protected][k.M lfefr ds tuin ds 'kgjh {ks= esa u gks vkSj tks fdlh vU; lgdkjh vkokl lfefr ds lnL; u gksa ftudk dk;Z {ks= bl lfefr tuin dh lhek esa gksA ,sls O;fDr Hkh lnL;rk ds ik= gksaxs ftudh Hkwfe lfefr }kjk v/;kIr dh x;h gksA"
Clause 3(10)-
"3(10). ifjokj ls rkRi;Z ifr] iRuh ,oa [email protected] lUrku ls gksxkA"
A perusal of Clause 5(1) of the bye-laws indicate that a person can only become a member of the Society, if the member or his family does not own any land or a residential building in the area of the operation of the Society.
'Family' has been defined under Clause 3(10) of the bye-laws of the Society, which includes husband, wife and dependent of the member.
In the instant case, a specific averment has been made that petitioner No.2 was never dependent on his father as at the time when he purchased the property in Agra he was serving in the Army. There is nothing to indicate that the purchase of the land was done by the petitioners' father as a Benami transaction nor there is any allegation made to this effect by the Society before the Arbitrator. The Court, upon perusal of the impugned order, is constrained to observe that the Society has failed to file any documentary evidence and the Arbitrator has given his finding based on surmises and conjectures without there being any cogent evidence on record. Neither before the Arbitrator nor before this Court any evidence has been filed by the Society to prove that the house in which the petitioner No.2 is residing is owned or was owned at the relevant moment of time by the petitioners' father nor there is any evidence to indicate that the petitioner No.2 was dependent on his father at the time when the sale deed was executed.
The contention that there has been no construction of the house and consequently, there has been a violation of the bye-laws, is also patently erroneous. For facility Clause 50 of the bye-laws is extracted hereunder:
"50- izR;sd lnL; dks ftls lfefr }kjk xkVk IykWV izfn"V fd;k tk;s ml ij fodkl dk;Z iw.kZ gksus ds mijkUr lhek fu/kZkj.k djus ds fnukad ls rhu o"kZ dh vof/k ds Hkhrj dkj.k lfgr vkosnu djus rFkk i;kZIr dkj.k fn;s tkus ij c
From a perusal of the aforesaid, it is apparently clear that it is not a mandatory provision and that time can be extended for making the construction. Consequently, the sale deed cannot be declared null and void, on the ground, that the member has not constructed the house within the stipulated period.
In the light of the aforesaid, the impugned orders cannot be sustained and are quashed. The writ petitions are allowed.
Dated: 17.7.2013
AKJ
(Tarun Agarwala,J.)
