Hari Shankar vs Court Of Additional Housing Commissioner

Rajiv Sharma, J.—Supplementary affidavit filed today is taken on record.

Admit.

Issue notice to opposite party No. 2 returnable at an early date.

Notice need not be issued as on behalf of opposite party No. 1 appearance has been put by Sri Rahul Dubey, Advocate, who prays for and is accorded six weeks time to file counter affidavit. Rejoinder affidavit may be filed within next four weeks.

List thereafter.

Counsel for the Petitioner has argued that the Arbitrator in exercise of powers conferred u/s 70 of the U.P. Cooperative Societies Act is not competent either to declare a sale deed to be void or cancel the same, he can only adjudicate the dispute related to the constitution, management or the business of the society and has been referred to him but in the instant case, the Arbitrator while exercising powers u/s 70 of the Act has declared the sale deed to be void although the said sale deed relates to immovable property which was duly transferred as per the provisions of Transfer of Property Act and has been registered as envisaged under the provisions of Registration Act. It has also been argued that once the sale deed had been executed by the society, it can be annulled only by the competent civil court and not by the Arbitrator.

On the other hand, Sri Rahul Dubey stated that the Arbitrator by the impugned order has not cancelled the sale deed but it has declared as void, which an Arbitrator can do while exercising powers u/s 70 of the Act. Placing reliance on paragraph 12 of the judgment rendered in Smt. Kiran Devi v. The Sahayak Awas Ayukat Evam Sahayak Nibandhak, U.P. Avas Evam Vikas Parishad, Lucknow, and others 1991 All.L.J. 904 submitted that the Arbitrator has power to cancel the sale deed if the same has been held to be illegal, bad or in violation of the provisions of law.

One thing is very much clear that after the execution of the sale deed by the society, the title stood transferred from the society to its members. The transfer of property and execution of the sale deed takes place under the provisions of the Transfer of Property Act and the Registration Act. Any person aggrieved by the execution of the sale deed may file a regular suit before the civil court for cancellation of the sale deed.

Having considered the submissions made by the Counsel for the Petitioner and Sri Rahul Dubey, learned Counsel for the opposite party No. 1 and examining the case laws relied upon by them, I am of the view that the case of Smt. Kiran Devi (supra) relied upon by the Respondents cannot be applied in the present case as in that case, the Counsel did not bring to the notice of the court the various provisions of the Transfer of Property Act and Registration Act. In my opinion, the sale deed could not be cancelled or declared as void by the Arbitrator as it lies purely within the domain of the Civil Courts.

In view of the above, prima-facie a case for interim relief is made out.

Till the next date of listing the operation and implementation of the Award dated 21.1.2011 passed by the Arbitrator shall remain stayed.