Partly allowed

Smt.Usha D. Rana v. Raj State Coop.Tribunal,Jaipur

Rajasthan HC13 Sept 2022CW/4540/2006

Case brief

AI extract

What is this about?

Petitioner challenged an Arbitrator’s award cancelling her registered lease deed and Tribunal order upholding it. This Court quashed both, holding Arbitrators cannot cancel registered deeds and noting procedural lapses regarding a necessary party.

What did the court decide?

Writ petition allowed; order dated 03.01.2001 by Arbitrator and order dated 28.04.2006 by Tribunal quashed and set aside.

Smt.Usha D. Rana Vs Raj State… — Contract and Commercial Disputes | Rajasthan HC (2022)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Civil Writ Petition No. 4540/2006

¶3

Smt. Usha D. Rana W/o Shri Dalip Singh, Resident of Plot No.5253, Rathore Nagar, Queens Road, Jaipur.

¶4

----Petitioner

¶5

Versus

¶6

The Rajasthan State Co-operative Tribunal Jaipur (Raj.)

¶7

Arbitrator and Dy. Registrar (Co-operative) Jaipur, Jaipur Development Authority, Jaipur.

¶8

Nand Lal Lohiya S/o Late Shri Moti Lal Lohiya R/o Ward No.8, B.S. Land Quarters Hawda-89

¶9

Chhatrapati Shiwaji Grah Nirman Sahakari Samiti Ltd. Near Panchayat Samiti, Kalwar Road, Jhotwara (Jaipur)

¶10

Prayag Singh R/o Plot No.55, Rathore Nagar, Queen Road Jaipur

¶11

Col. Dalip Singh S/o Shri Parakram Singh R/o 52-53, Rathore Nagar, Queens Road, Jaipur.

¶12

JDA through its Secretary, JLN Marg, Jaipur.

¶13

----Respondents

¶14

For Petitioner(s) : Mr. Shiv Charan Gupta, Adv. with Mr. Mohit Goyal, Adv. For Respondent(s) : Mr. Aatish Jain, Adv.

¶15

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

¶16

Order

¶17

13/09/2022

¶18

This writ petition has been filed by the petitioner, challenging the order dated 28.04.2006 passed by Rajasthan State Cooperative 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’).

¶19

(2 of 9)

¶20

[CW-4540/2006]

¶21

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.

¶22

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.

¶23

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.

¶24

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.

¶25

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.

¶26

(3 of 9)

¶27

[CW-4540/2006]

¶28

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.

¶29

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.

¶30

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:-

¶31

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.

¶32

The Arbitrator did not have any jurisdiction to cancel the registered sale deed executed in favour of the petitioner.

¶33

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.

¶34

The Arbitrator proceeded ex parte against the petitioner without affording her adequate opportunity to represent her case and as such, entire award is vitiated.

¶35

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

¶36

(4 of 9)

¶37

[CW-4540/2006]

¶38

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.

¶39

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.

¶40

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.

¶41

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.

¶42

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

¶43

(5 of 9)

¶44

[CW-4540/2006]

¶45

under Section 75 of the Act of 1965, has power to declare any allotment to be bad in the eye of law.

¶46

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.

¶47

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.

¶48

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.

¶49

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,

¶50

(6 of 9)

¶51

[CW-4540/2006]

¶52

subsequent lease deed executed in favour of the petitioner is a nullity and is of no value.

¶53

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 .

¶54

I have heard the submissions made by learned counsel for the parties and perused the material available on record.

¶55

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.

¶56

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.

¶57

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

¶58

(7 of 9)

¶59

[CW-4540/2006]

¶60

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.

¶61

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.

¶62

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.

¶63

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.

¶64

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.

¶65

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

¶66

(8 of 9)

¶67

[CW-4540/2006]

¶68

available with him and as such, the order has been passed on the wrong premise by exercising the power of Civil Court.

¶69

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.

¶70

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.

¶71

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).

¶72

(9 of 9)

¶73

[CW-4540/2006]

¶74

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.

¶75

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.

¶76

(ASHOK KUMAR GAUR),J

¶77

Ramesh Vaishnav /86/Bhavnesh Kumawat

¶78

Smt.Usha D. Rana v. Raj State Coop.Tribunal,Jaipur

Case brief

What is this about?

What did the court decide?

Smt.Usha D. Rana v. Raj State Coop.Tribunal,Jaipur

Case brief

What is this about?

What did the court decide?

What the court decided

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