IMPORTANT POINT
Mere living in a particular house by itself would not mean that said house is under ownership of person living therein in his individual capacity or even that it is within area of operation of society.

JUDGMENT :

PANKAJ MITHAL, J.

1. The challenge in these appeals is to the common judgment and order dated 17.07.2023 passed by the learned Single Judge of the High Court allowing three writ petitions based on similar and identical facts whereunder writ petition no.18933 of 2011 was treated as a leading case and the facts of the same were narrated in the impugned order.

2. In view of the above, as the writ petition was decided on the basis of the facts of one of the writ petitions, we also consider it appropriate to narrate the facts of the same only while adjudicating upon the correctness of the judgment and order of the writ court.

3. A society with the name Purushottam Bagh (residential) Sahkari Awas Samiti Ltd., Dayal Bagh, Agra, was formed in accordance with the provisions of the U.P. Cooperative Societies Act, 1965. In the said society, late Krishna Pal Singh, the predecessor-in-interest of the present respondents was one of the members. The said society developed a residential colony wherein a plot No. B-1, measuring 933 sq. meters was allotted in favour of Krishna Pal Singh and a sale deed in his favour was executed on 14.07.1983. It may not be out of place to mention here that under the bye-laws of the society, a residential plot could be allotted to a member only if he lives or wishes to live in the area of operation of the society provided he or his family member does not own any building or plot in the area of operation of the society. The ‘family’ of such a member under the bye-laws means husband, wife and dependent minor children.

4. It appears that Krishna Pal Singh gave an undertaking on an affidavit that he does not possess any building or plot in the area of operation of the society and probably in light of such an undertaking, the aforesaid plot was allotted to him and the sale deed was executed.

5. After about 26 years, the society vide order dated 19.03.2010 referred the matter to the sole arbitrator, i.e. cooperative officer (resident) Agra with regard to the price of the land sold by sale deed dated 14.07.1983. The society in its plaint alleged that Krishna Pal Singh had a personal house wherein he resided and that he does not require the plot in question and that he has purchased the same from the society in order to sell it to third party on higher rate. This plot of land was obtained by him by furnishing a false affidavit. It was also alleged that Krishna Pal Singh had not constructed a house or the boundary wall of the said plot within the time permitted.

6. It is worth noting that the aforesaid Krishna Pal Singh died in 1992 and was succeeded by his two sons, Lt. Col. Upendra Pal Singh and Shobhan Pal Singh, whose names were duly mutated in the records of the society as the owners of the said plot on the death of their father. The successors of Krishna Pal Singh contested the arbitration proceedings alleging that the reference to the arbitrator was not maintainable as it does not fall within the ambit of Section 70 of the U.P. Cooperative Societies Act, 1965. Their father had raised a boundary wall on the said plot after the building plan was sanctioned by the society and that they had deposited even the development charges with the society. Their father never had any house or building within the area of operation of the society. Therefore, the allotment and the sale deed of the said plot was not liable to be cancelled.

7. Notwithstanding the maintainability of the reference to the arbitrator or that the sale deed could not have been cancelled by him, an Award was made on 12.08.2010 declaring the sale deed dated 14.07.1983 to be null and void. The arbitrator observed that when Krishna Pal Singh had purchased the said plot, he had given his address of Kamla Nagar where even his successors are residing till date, and that he had not raised any construction over the said plot despite sanction of the building plan.

8. An appeal was preferred against the aforesaid Award and the same too was dismissed vide order dat