Law Web: Whether a person can be treated as owner of a house if he resides in said house?

It may also be pertinent to mention here that on perusal of the

Award of the arbitrator and the order of the appellate authority,

it is evident that the arbitrator had not recorded any finding that

Krishna Pal Singh had given a false affidavit or that he owned a

house or a plot in the area of operation of the society. The only

finding recorded by the arbitrator is that at the time of allotment

he had given his address to be F150 Kamla Nagar, Agra where

even now his successors are residing. However, such finding

falls short of saying that the address at which he was living was

a house which belonged to him or his family members as defined

under the bye-laws or that his successors are the owners of the

said house in their own capacity. Mere living in a particular

house by itself would not mean that the said house is under

ownership of the person living therein in his individual capacity

or even that it is within the area of operation of the society.

{Para 16}

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 5380-5382 OF 2015

PURUSHOTTAM BAGH SAHKARI AWAS SAMITI LTD Vs

SRI SHOBHAN PAL SINGH AND ANR. ETC.

Author: PANKAJ MITHAL, J.

Dated: SEPTEMBER 04, 2023.

Citation: 2023INSC789.

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-ininterest

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 dated 24.02.2011.

9. In the background of the aforesaid facts and circumstances, the

successors of Krishna Pal Singh, assailed the Award dated

12.08.2010 and the appellate order dated 24.02.2011 declaring

the sale deed dated 14.07.1983 to be null and void by invoking

the writ jurisdiction of the High Court. The said writ petition

after contest was allowed vide judgment and order dated

17.07.2013 with the clear finding that the society had failed to

bring on record any material to prove that Krishna Pal Singh at

the time of the purchase of the property was residing in his own

house or that he was having any residential property in the area

of operation of the society. No evidence was brought before the

arbitrator about ownership of any other land by the said

Krishna Pal Singh or that no construction was raised on the plot

in question. Accordingly, the order of the appellate court and

the award were both set aside and it was held that the sale deed

dated 14.07.1983 cannot be declared to be null and void.

10. It is the aforesaid judgment and order of the writ court which

has been assailed by the society in these appeals.

11. The contention of Shri D.S. Naidu, learned Senior Counsel for

the society is that Krishna Pal Singh obtained the allotment and

the sale deed of the plot in question by submitting a wrong

affidavit that he does not own and possess any property in the

area of operation of the society which is in violation of clause

5(1) of the bye-laws of the society and that he failed to construct

anything on it within a reasonable time.

12. It would be appropriate for this Court to refer to clause 5(1) and

clause 3(10) of the bye-laws of the society so as to deal with the

submission made by the learned counsel on behalf of the

society. Clauses 5(1) and 3(10) of the bye-laws of the society

reads as under:

“Clause 5 (1)-

5. Subject to anything contrary contained

in the bye law or the regulations, a person

be entitled to become of the member of the

Society if he is of sound mind, bears good

character and above 18 years of age and

who

(1) Lives or wishes to live in the area of

operation of the society and who himself

or his family member does not own any

building or plot in the area of operation of

the society and who is not the member of

any other cooperative residential society

having its area of operation in the same

area. Those persons would also be

entitled whose land has been acquired by

the Society.

Clause 3(10)-

3(10) Family means husband, wife and

dependent/minor children”.

13. A simple reading of the aforesaid provision reveals that family

of a member of the society means husband, wife and dependent

minor children and that no member of the society is entitled to

allotment of any plot if he himself or his family member owns

any building or plot in the area of the operation of the society.

In view of the above, Krishna Pal Singh would not have been

entitled for allotment and purchase of any plot under the society

if he or his family members had any building or plot in the area

of operation of the society.

14. The appellant is alleging violation of the Bye Laws as aforesaid

therefore it is upon it to prove the same. In this context, the

writ court has returned a specific finding that the society had

failed to furnish any evidence before the arbitrator to

substantiate its allegation that the petitioners are having land

or a house in Agra and that Krishna Pal Singh or his successors

have violated any of the conditions of the sale deed or of the byelaws

of the society.

15. For ready reference, the relevant finding of the writ court is

reproduced hereinbelow:

“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”.

16. It may also be pertinent to mention here that on perusal of the