Rajasthan High Court - Jaipur
Smt.Usha D. Rana vs Raj State Coop.Tribunal,Jaipur on 13 September, 2022
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 4540/2006
Smt. Usha D. Rana W/o Shri Dalip Singh, Resident of Plot No.52-
53, Rathore Nagar, Queens Road, Jaipur.
----Petitioner
Versus
1. The Rajasthan State Co-operative Tribunal Jaipur (Raj.)
2. Arbitrator and Dy. Registrar (Co-operative) Jaipur, Jaipur
Development Authority, Jaipur.
3. Nand Lal Lohiya S/o Late Shri Moti Lal Lohiya R/o Ward No.8,
B.S. Land Quarters Hawda-89
4. Chhatrapati Shiwaji Grah Nirman Sahakari Samiti Ltd. Near
Panchayat Samiti, Kalwar Road, Jhotwara (Jaipur)
5. Prayag Singh R/o Plot No.55, Rathore Nagar, Queen Road
Jaipur
6. Col. Dalip Singh S/o Shri Parakram Singh R/o 52-53, Rathore
Nagar, Queens Road, Jaipur.
7. JDA through its Secretary, JLN Marg, Jaipur.
----Respondents
For Petitioner(s) : Mr. Shiv Charan Gupta, Adv. with
Mr. Mohit Goyal, Adv.
For Respondent(s) : Mr. Aatish Jain, Adv.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
13/09/2022
This writ petition has been filed by the petitioner, challenging
the order dated 28.04.2006 passed by Rajasthan State Co-
operative Tribunal, Jaipur in Appeal No.20/2001 and order dated
03.01.2001, passed by the Arbitrator, under Section 75 of the
Rajasthan Co-operative Societies Act, 1965 (hereinafter referred
to as 'the Act of 1965').
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Learned counsel for the petitioner-Mr. Shiv Charan Gupta,
submitted that the petitioner had purchased a parcel of land from
one Badal Kumar Singh, a member and allottee of the respondent
No.4-Chhatrapati Shiwaji Grah Nirman Sahakari Samiti Ltd. and
requisite payment was made to the said person by the petitioner.
Learned counsel submitted that the petitioner had applied for
issuance of patta by the respondent No.4 and the respondent No.4
accordingly issued allotment letter in favour of the petitioner
dated 17.08.2000 in respect of plot no.54, measuring 166.6
square yards.
Learned counsel submitted that the petitioner applied for
issuance of lease deed before the Jaipur Development Authority
and accordingly lease deed/patta was issued in favour of the
petitioner on 16.09.2000.
Learned counsel submitted that the respondent No.3-Nand
Lal Lohiya, raised a dispute before the Arbitrator, claiming his title
and possession over the Plot No.54, which was duly allotted to the
petitioner.
Learned counsel submitted that the Arbitrator vide his award
dated 03.01.2001, came to the conclusion that the Society had
wrongly allotted Plot No.54 to the petitioner and the lease deed
issued in favour of the petitioner on account of illegal allotment by
the Society, was also required to be cancelled. The Arbitrator
further directed that the Sub-Registrar Jaipur-II, Jaipur was to
carry out the necessary exercise of cancelling the registered sale
deed dated 16.09.2000 and further the Jaipur Development
Authority was to issue fresh lease deed in favour of the
respondent No.3 of Plot No.54, ad-measuring 166 square yards.
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Learned counsel submitted that the petitioner felt aggrieved
against the award of Arbitrator and appeal was preferred before
the Appellate Authority under Section 123 of the Act of 1965.
Learned counsel submitted that the Appellate Forum i.e.
Rajasthan State Co-operative Tribunal, Jaipur has also dismissed
the appeal vide order dated 28.04.2006 and award of the
Arbitrator has been maintained.
Learned counsel for the petitioner while assailing the order of
the Tribunal as well as the order of the Arbitrator, has made the
following submissions before this Court:-
1. The Jaipur Development Authority was a necessary
party as the lease deed was executed by it in favour of the
petitioner and in absence of Jaipur Development Authority as a
party either before the Arbitrator or before the Appellate Tribunal,
no order could have been passed in absence of a necessary party.
2. The Arbitrator did not have any jurisdiction to cancel
the registered sale deed executed in favour of the petitioner.
3. The Arbitrator is only competent to undertake the
summary proceedings and if there was a dispute with respect to
title and possession of the property, the summary proceedings
could not have resulted into, depriving of the petitioner of her
valuable right to own the property by way of duly executed
documents in favour of the petitioner.
4. The Arbitrator proceeded ex parte against the petitioner
without affording her adequate opportunity to represent her case
and as such, entire award is vitiated.
Per contra, learned counsel-Mr. Aatish Jain appearing for the
respondent No.3, submitted that both the Authorities have rightly
come to the conclusion that the petitioner was not legally entitled
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for allotment of Plot No.54 by the Society and further a lease deed
was also wrongly issued in favour of the petitioner by the Jaipur
Development Authorities on 16.09.2000.
Learned counsel for the respondent No.3, submitted that the
dispute which was raised by the respondent before the Arbitrator
was claiming specific relief about wrong allotment of plot in favour
of the petitioner and further the title of the petitioner was also
disputed as the Society itself had informed the respondent about
his entitlement of plot on account of certain changes made by the
Jaipur Development Authorities, while undertaking the exercise of
approving the scheme of the Society.
Learned counsel for the respondent No.3, submitted that the
Arbitrator after considering the fact of allotment of Plot No.53, in
favour of husband of the petitioner, where lease deed was also
executed in respect of Plot Nos.52 & 53 in favour of the husband
of the petitioner, rightly came to conclusion that the Plot No.54,
could not have been allotted to the petitioner.
Learned counsel for the respondent No.3 further submitted
that the objection with regard to the maintainability of claim of the
respondent No.3 before the Arbitrator was rightly decided by him
and there was no requirement of going to any other forum
including the Civil Court for challenging the wrong allotment of a
plot by the Society and consequential lease deed, executed by
Jaipur Development Authority.
Learned counsel for the respondent No.3 further submitted
that this Court in the case of Anil Kumar Saxena Vs. State of
Rajasthan & Ors. (S.B. Civil Writ Petition No.2709/1999),
decided on 18.02.2013, has laid down the law that Arbitrator
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under Section 75 of the Act of 1965, has power to declare any
allotment to be bad in the eye of law.
Learned counsel for the respondent No.3 also places reliance
on a judgment passed by Division Bench of this Court in D.B.
Special Appeal (Writ) No.500/2014 [Dhapa Bai (deceased)
through her legal representatives Vs. Roop Narain & Ors.],
decided on 24.05.2016.
Learned counsel for the respondent No.3 on the strength of
the said judgment, submitted that the Arbitrator under Section 75
of the Act of 1965, has right to decide the dispute in respect of a
title of the property as well and as such, it cannot be allowed to be
pleaded by the petitioner that the Civil Court was the only remedy
to seek cancel of lease deed.
Learned counsel for the respondent No.3 submitted that the
respondent No.4-Chhatrapati Shiwaji Grah Nirman Sahakari Samiti
Ltd., had issued a letter dated 05.08.2000, whereby, the
respondent No.3 was informed that initially, he was allotted Plot
No.218, measuring 227.7 square yards and later on amended and
approved plan of Jaipur Development Authority, it had sanctioned
Plot No.54, measuring 166.6 square yards and as per original
plan, the allotee of said plot had already got lease deed executed
in his favour and as such, option was given to him either to take
his money back or to get allotment of suitable land in any other
scheme of the Society.
Learned counsel for the respondent No.3 submitted that the
said letter was issued on 05.08.2000 and lease deed in favour of
the petitioner was admittedly executed on 16.09.2000 and as
such, in spite of the letter of the Society dated 05.08.2000,
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subsequent lease deed executed in favour of the petitioner is a
nullity and is of no value.
Learned counsel for the petitioner places reliance on a
judgment in the case of Government of Andhra Pradesh Vs
Thummala Krishna Rao & Anr., reported in 1982 AIR 1081
and the judgment passed by the Co-ordinate Bench of this Court
in S.B. Civil Writ Petition No.1592/1998 (Roop Narayan Vs.
Rajasthan State Cooperative Tribunal, Jaipur & Ors.) and
the judgment in the case of M/s. Anukampa Avas Vikas Pvt.
Ltd. & Another Vs. State of Rajasthan & Anr., 2009 (1) WLC
(Raj.) 332.
I have heard the submissions made by learned counsel for
the parties and perused the material available on record.
This Court finds that the Arbitrator while passing the award
has not only cancelled the lease deed which was issued in favour
of the petitioner but has also further given direction to the Jaipur
Development Authority to get the said lease deed cancelled in the
official record, maintained by Sub-Registrar Jaipur-II, Jaipur and
further direction has been given that the respondent No.3 may be
allotted the same plot, which was already allotted to the petitioner
and fresh lease deed was directed to be issued.
This Court finds that such direction by the Arbitrator to
cancel the registered sale deed is not legally sustainable and as
such, the Arbitrator does not have any power to annul or cancel
the registered lease deed, which was executed between the
petitioner No.3 and the Jaipur Development Authority.
This Court also finds that the Jaipur Development Authority
was not made a party by the respondent No.3 before the
Arbitrator and it is the Jaipur Development Authority alone who
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could have produced the relevant record before the Arbitrator to
show as in what manner the Society had given the list of members
for their entitlement for allotment of plot and lease deed to be
executed in their favour.
This Court is at loss to understand as in what manner the
Arbitrator has passed the award in absence of necessary party and
as such, the findings of the Arbitrator cannot be approved by this
Court.
This Court further finds that the Appellate Tribunal, while
dealing with the issue raised before it by the petitioner has
recorded findings with regard to the possession of the petitioner
since 1982 and further the agreement made by the petitioner with
one Badal Kumar Singh, has also been commented upon.
This Court finds that the issue before the Appellate Forum
was with regard to the findings which was recorded by the
Arbitrator and the Appellate Forum has altogether considered the
different aspect which was not relevant at all to see the validity of
a lease deed, which was executed in favour of the petitioner.
This Court further finds that Appellate Court has also decided
the Appeal in cursory manner and the issue which was raised
before the Appellate Tribunal, has not been dealt with.
The submission of the learned counsel for the respondent
No.3 that the prayer of the respondent No.3 in the dispute before the Arbitrator was only in respect of possession and if any consequential relief was to be granted, the same could not have deprived the Arbitrator to pass the award, suffice it to say by this Court, the Arbitrator has gone to the extent of cancelling the lease deed and further direction has been given to issue fresh lease deed in favour of the respondent No.3, such power was not (Downloaded on 20/09/2022 at 12:02:40 AM) (8 of 9) [CW-4540/2006] available with him and as such, the order has been passed on the wrong premise by exercising the power of Civil Court.
The submission of learned counsel for the respondent No.3 that this Court in the case of Anil Kumar Saxena Vs. State of Rajasthan & Ors. (supra) and Dhapa Bai (deceased) through her legal representatives Vs. Roop Narain & Ors. (supra) has laid down the law that the Arbitrator under Section 75 of the Act of 1965, has power to annul the lease deed, this Court finds that the issue in the case of Anil Kumar Saxena Vs. State of Rajasthan & Ors. (supra) before this Court was in respect of possession and not in respect of title of the property.
This Court, on careful reading of the judgment of Division Bench passed in the case of Dhapa Bai (deceased) through her legal representatives Vs. Roop Narain & Ors. (supra), finds that issue was not in respect of cancelling the validly issued and registered lease deed and as such, in absence of said challenge to the registered sale deed before the Court, no assistance can be granted to the learned counsel for the respondent to hold that the registered lease deed can be cancelled by the Arbitrator or for that matter by any other Authority.
This Court finds that the judgment passed by this Court in the case of M/s. Anukampa Avas Vikas Pvt. Ltd. & Another Vs. State of Rajasthan & Anr. (supra), specifically deals with the issue that if any sale deed has been registered, then the same cannot be cancelled except by a competent Civil Court, the same view has been reiterated by this Court in the case of Roop Narayan Vs. Rajasthan State Cooperative Tribunal, Jaipur & Ors. (supra).
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(9 of 9) [CW-4540/2006] This Court accordingly, finds that the order dated 03.01.2001 passed by the Arbitrator and the order dated 28.04.2006 passed by the Tribunal, are required to be quashed and set aside and same are accordingly set-aside.
Learned counsel for the respondent No.3-Mr. Aatish Jain, at this juncture, submitted that if the petitioner is relegated to file the civil suit, it will take considerable time and as such, the respondent No.3 will be even deprived to get the possession of the property which is allegedly/illegally kept by the petitioner, this Court finds that the respondent No.3 is always free to avail the remedy provided under the law and he can file appropriate application for seeking relief and the findings of Arbitrator or Tribunal will not be read against or in favour of either of the party.
Accordingly, the present writ petition stands allowed.
(ASHOK KUMAR GAUR),J Ramesh Vaishnav /86/Bhavnesh Kumawat 24 (Downloaded on 20/09/2022 at 12:02:40 AM) Powered by TCPDF (www.tcpdf.org)