The Supreme Court, while affirming impugned judgment of the High Court, observed that “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”.
A Division Bench, comprising Justices Abhay S. Oka and Pankaj Mithal, was hearing the matter.The core issue being adjudicated in this case was whether late Krishna Pal Singh, member of the society, and subsequently, his successors, were eligible for plot allotment within the society and if the same resulted in the violation of society’s bye-laws.
In the present case, the society, named Purushottam Bagh Sahkari Awas Samiti Ltd (appellant), developed a residential colony wherein a plot was allotted in favour of Krishna Pal Singh and a sale deed was executed in his favour. It is worth mentioning 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. In this backdrop, 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 thus, the plot was allotted to him.
Proceedings Before Sole Arbitrator
After about 26 years, the society vide order dated 19.03.2010 referred the matter to the sole arbitrator with regard to the price of the land sold by sale deed. The society further 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. 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.
On the other hand, the successors of Krishna Pal Singh contended that 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. Moreover, their father never had any house or building within the area of operation of the society.
However, arbitrator vide its award dated 12.08.2010 declared 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.
Writ petition filed by the successors Krishna Pal Singh, challenging the award of the arbitrator, was dismissed too. Thus, the present appeal.
Court’s Observations
After hearing the arguments of both sides, the Court scrutinized Clauses 5(1) and 3(10) of the bye-laws of the society. The Court observed that as per the said provisions, family of a member of the society means husband, wife and dependent minor children and 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 same, 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.
At this, the Court opined that since the appellant is alleging violation of the Bye Laws as aforesaid therefore it is upon it to prove the same. Moving forward, the Apex Court affirmed the view taken by the High Court 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.
Further, the Court also demonstrated the lapses in the award passed by the arbitrator. The Court noted 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.
Based on these observations, the Court dismissed the instant appeal.
Case Title: Purushottam Bagh Sahkari Awas Samiti Ltd. v. Sri Shobhan Pal Singh And Anr. Etc,
