# Smt. Leelawati & Ors v. The U.P. Cooperative Tribunal, Lko

- **Citation:** (2020) 2 ILRA 1103
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-18
- **Case number:** Misc. Single No. 2785 of 2008
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-leelawati-ors-v-the-u-p-cooperative-tribunal-lko-45621
- **Pages:** 10

## Headnote

1104 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C., Rakesh Kumar Chaudhary, Rakesh
Srivastava

A. U.P Co-operative Societies Act-Sec.70challenging-common
order-refusing
to
interfere
with
the
award-cancelling
the
allotment of plot & cancellation of registered
sale deed-entered into by Late husband of
petitioner-on the ground-the then President
of
society-near
relatives
of
Petitionerrelationship b/w president with son of
petitioner-was
of
sadhu
(sister-in-law's
husband)-not
covered
u/s.2(u)-non
application
of
mind-remanded
back
to
arbitrator-Disposed of.

B. Held, It is clear from the Rules that the
relationship of the petitioner with the
President of the society is not hit by Rule
2(u) and even the arbitrator has nowhere
adequately considered this fact and only on
the basis of inquiry report submitted at the
fag end of proceedings given this finding.
The findings also indicates non application of
mind as the arbitrator should have recorded
specific finding with regard to the exact
relationship of the husband of the petitioner
with the President of the society and also the
fact that the said relation is covered by the
definition of the relations as provided under
Rule 2 (u) of the Rules of 1968. No such
finding has been recorded by the arbitrator.
The findings of the arbitrator in this regard
are liable to be set aside.

List of cases cited:-

## Text

2 All. Smt. Leelawati & Ors. Vs. The U.P. Cooperative Tribunal, Lko.
1103
interest would have been fixed at the rate
of 7% instead of 8%.

14. Per contra, learned counsel for
the claimant-respondents has supported the
finding of the Tribunal and claimed that
the amount of the impugned award under
facts and circumstances of the case is
justified.

15. Considered the rival submissions
apart from testimony available on record.

16. Obviously, there are two
witnesses namely Mormukut Yadav
PW-1 and Maan Singh PW-2. Insofar
as testimony of PW-1 is concerned, it
cannot be said that PW-1 being an
Advocate was highly interested person
and biased in favour of the claimantrespondents. However, it was duty of
every witness to come out with truth as
to what was seen by him on the spot.
No doubt, testimony of PW-1 is
exposed to cross examination to be
carried out by the other side.

17. However, I have also perused
testimony of PW-1 wherein nothing
adverse as claimed was found, on the
other hand cross examination of DW-2
done
on
behalf
of
the
claimant
respondents throws certain doubt on
the claim raised regarding mistake of
the deceased himself in the accident.
Apart from that, monthly income of the
deceased under facts and circumstances
of the case was found to be proper. The
monthly income of the deceased was
assessed to Rs.3000/- Consequently,
annual income was Rs.36,000/-. After
slicing off 2/3 of the same, it was
pegged
to
Rs.24,000/-.
While
considering the dependency factor and
primarily age of the parents of the
deceased,
multiplicand
of
8
was
applied to the aforesaid annual income
Rs.24,000/- which after multiplication
aggregated
to
Rs.1,92,000/-
and
Rs.2000/- was awarded as funeral
expenses. The total amount so fixed
was Rs.1,94,000/-. Insofar as rate of
interest is concerned, it cannot be said
to be excessive when the accident took
place admittedly in the year 2007.
After overall assessment of the award
impugned and the entire interest, no
infirmity is perceptible as such and the
present appeal sans merits and is
dismissed.

18.

However,
Rs.25,000/-
deposited by the appellant at this stage
shall be remitted to the Tribunal
concerned
for
adjustment
of
the
distribution
of
the
amount
of
compensation directed as above.
----------
(2020)02ILR A1103

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.02.2020

BEFORE

THE HON'BLE ALOK MATHUR, J.

Misc. Single No. 2785 of 2008
with
Misc. Single No. 4111 of 2008
& with
Misc. Single No. 4110 of 2008

Smt. Leelawati & Ors. ...Petitioners
Versus
The U.P. Cooperative Tribunal, Lko.
 ...Respondent

Counsel for the Petitioners:
Ram Raj

Counsel for the Respondent:
1104 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C., Rakesh Kumar Chaudhary, Rakesh
Srivastava

A. U.P Co-operative Societies Act-Sec.70challenging-common
order-refusing
to
interfere
with
the
award-cancelling
the
allotment of plot & cancellation of registered
sale deed-entered into by Late husband of
petitioner-on the ground-the then President
of
society-near
relatives
of
Petitionerrelationship b/w president with son of
petitioner-was
of
sadhu
(sister-in-law's
husband)-not
covered
u/s.2(u)-non
application
of
mind-remanded
back
to
arbitrator-Disposed of.

B. Held, It is clear from the Rules that the
relationship of the petitioner with the
President of the society is not hit by Rule
2(u) and even the arbitrator has nowhere
adequately considered this fact and only on
the basis of inquiry report submitted at the
fag end of proceedings given this finding.
The findings also indicates non application of
mind as the arbitrator should have recorded
specific finding with regard to the exact
relationship of the husband of the petitioner
with the President of the society and also the
fact that the said relation is covered by the
definition of the relations as provided under
Rule 2 (u) of the Rules of 1968. No such
finding has been recorded by the arbitrator.
The findings of the arbitrator in this regard
are liable to be set aside.

List of cases cited:-

1. M/s Neelakantan & Bros. vs Superintending
Engineer, National Highways Salem and others
(1988) 4 SCC 462

2. M/s Construction India vs Secretary, Works
Department Government of Orissa and others
(1998) 2 SCC 89.

3. M.K.Shah Engineers & Contractors vs State
of M.P (1999) 2 SCC 594

4. Smt Kusum Lata vs State of U.P and others
(2018) 4 UBLBEC 3048

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Shri Ram Raj and Sri Sunil
Sharma learned counsel for the petitioners,
learned Standing counsel for respondent
No.1,
Sri
Rakesh
Srivastava
for
respondent No.3 while Sri Rakesh Kumar
Chaudhary is present for U.P. Awas Evam
Vikas Parishad.

2. By means of above writ petitions
the petitioners have assailed the common
order of U. P. Cooperative Tribunal dated
21st May, 2008 whereby while deciding
the appeal against the petitioner the
Tribunal has refused to interfere with the
award dated 22.8.2005 passed under
Section 70 of U.P. Cooperative Societies
Act.

3. It has been submitted by learned
counsel for the petitioner that the late
husband of the petitioner was allotted a
plot by Meerut Sahkari Awas Samiti Ltd.-
respondent No.3 (hereinafter referred to as
the Samiti) after becoming a member of
the said society applied for and was
allotted a plot having an area of 1200
square yards and deposited an amount of
Rs.10,20,000/- at the rate of Rs.850/- per
square yards by means of two demand
drafts. The said amount was deposited by
the petitioner on 14th June, 1999. He has
further
submitted
that
certain
other
amounts were deposited by him towards
development charges etc. Subsequent to
allotment of the said plot, a perpetual lease
deed was entered into between the
petitioner and Meerut Sahkari Awas
Samiti Ltd. which was registered on 5th
July, 1999; that in the meanwhile the
Committee of Management of Meerut
Sahkari Awas Samiti Ltd. was superseded
and an Administrator was appointed for
looking into the affairs of the said Samiti.
The Administrator who was appointed on
3rd April, 2000 within one week of
2 All. Smt. Leelawati & Ors. Vs. The U.P. Cooperative Tribunal, Lko.
1105
assuming the charges of Administrator
annulled the resolutions of the Samiti
dated 10th September, 1998 and 20th May,
1999 by which the plots in question were
allotted to late Laxmi Chand-the husband
of the petitioner and subsequently while
declaring the registered perpetual lease
deed executed on 5.7.1999 void also
ordered that the said plot would become
the property of the said Samiti and no
person shall have any claim on the said
plot.

4. The order dated 3rd April, 2000
was challenged by the petitioners by
moving an application before the Registrar
/Housing Commissioner under Section 70
of the U.P. Housing and Cooperative
Societies Act. The Registrar/Housing
Commissioner, Uttar Pradesh on 23rd
January, 2001 passed an interim order
whereby the operation and implementation
of the impugned order dated 3.4.2000 was
stayed and the arbitration proceedings
were
referred
to
Additional
Registrar/Managing
Director,
Uttar
Pradesh Sahkari Awas Sangh Limited, 6
Sarojini Naidu Marg, Lucknow. Before the
Arbitrator the society filed its written
statement. The petitioner as well as the
society were afforded full opportunity of
hearing and the arbitrator was of the view
that cancellation of the plots as well as
cancellation of registered lease deed was
not in accordance with law but during the
course of hearing a fact was brought to the
knowledge of the arbitrator that the plot
had been allotted to the petitioner by the
President of the society, who was a near
relative. On coming to know of this facts
an inquiry was instituted and an inquiry
report was submitted to the arbitrator on
25.6.2005 wherein this fact was endorsed
that the husband of petitioner No.1 was a
close relative of the President of the
society and, therefore, the allotment of the
plot was illegal and a perusal of the
operative portion of the impugned order
clearly indicates that the claim of the
petitioner was rejected only on this count.

5. Aggrieved by the aforesaid order
the petitioner preferred an appeal under
Section 98 of U.P. Cooperative Societies
Act before the U.P. Cooperative Tribunal.
It has been submitted that after exchange
of pleadings when the matter was at the
stage of final hearing, a preliminary
objection was filed by one of the
respondents submitting that appointment
of arbitrator by the Housing Commissioner
was not in accordance with law and the
award suffered from inherent lack of
jurisdiction and, therefore, was liable to be
set aside and the appeal preferred by the
petitioner was liable to be rejected. The
Tribunal taking into account various
notifications issued by the State of U. P.
under Section 3(2) of U. P. Cooperative
Societies Act and after considering the
same came to the conclusion that the
valuation of the claim preferred by the
petitioner was more than Rs.1 lakhs and,
therefore, the application made to the
Housing Commissioner was erroneous as
he did not have the jurisdiction in this
regard and consequently the nomination of
arbitrator was illegal, therefore, the award
passed by opposite party No.2 was
declared to be a nullity. The Tribunal only
considered the preliminary objection of the
respondents and the upholding the said
preliminary objection rejected the appeal
of the petitioner.

6. Assailing the order passed by the
Tribunal learned counsel for the petitioner
has submitted that Housing Commissioner
was fully competent to entertain the
application under Section 70 of U.P.
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
Cooperative Societies Act and there was
no error nominating the arbitrator. He has
drawn the attention of this Court towards
sub-section 2 of Section 3 of the Act
which provides as under:-

"(2) The State Government may,
for the purposes of this Act, also appoint
other persons to assist the Registrar and
by general or special order confer on any
such person all or any of the powers of the
Registrar."

7. Section 71 of U. P. Cooperative
Societies Act, 1965 provides reference of a
dispute to arbitration which is quoted as
under:-

"71. Reference of dispute to
arbitration.- (1) On receipt of a reference
under sub-section (1) of Section 70, the
Registrar may, subject to the provisions of
the rules, if any-

(a) decide the dispute himself, or

(b) refer it for decision to an
arbitrator appointed by him, or

(c) refer it, if the parties so
request in writing, for decision to a board
of arbitrators consisting of the three
persons to be appointed in the prescribed
manner.

(2) The Registrar may, for
reasons to be recorded, withdraw any
reference made under clause (b) or (c) of
sub-section (1) and refer it to another
arbitrator or board of arbitrators or
decide it himself.

(3) The Registrar, the arbitrator
or the board of arbitrators, to whom a
dispute is referred for decision under this
section may, pending the decision of the
dispute make such interlocutory orders
including attachment of property as he or
they may deem necessary in the interest of
justice.

(4) The decision given by the
Registrar, the arbitrator or the board of
arbitrators
under
this
section
shall
hereinafter be termed as award.

(5) The procedure to be followed
by the Registrar, the arbitrator or the
board of arbitrators in deciding a dispute
and making an award under this section
shall be as may be prescribed."

8. The State Government in exercise
of the power under Section 3 of the Act
conferred the power upon the Housing
Commissioner, U.P. by notification dated
15.6.1976 was which is quoted as under:-

"In exercise of the powers under
sub-section (2) of Section 3 of the Uttar
Pradesh Co-operative Societies Act, 1965
(U.P. Act XI of 1966) and in suppression
of
the
Government
Notification
No.1538/XIJ-C-1-12 (AS)-74, dated May
17, 1976, the Governor, for the purpose of
the said Act, is pleased to appoint the
Housing Commissioner, Uttar Pradesh exofficio to assist the Registrar and to confer
on him all the powers of the Registrar in
respect of Uttar Pradesh Sahkari Avas
Sangh Limited and of all Urban Cooperative Housing Societies in Uttar
Pradesh."

9. It has also been submitted that
subsequently
vide
notification
dated
10.8.1989 the State Government has
conferred the jurisdiction and power of the
Registrar
to
the
Deputy
Housing
Commissioner and Deputy Registrar and
Assistant
Housing
Commissioner,
Assistant Registrar (Co-operative). It has
been said that in case the value of the
property of the amount of claim involved
exceeds rupees one lakh, then under subrule (1) of Rule 229 the matter may be sent
to the Additional Registrar. Vide another
2 All. Smt. Leelawati & Ors. Vs. The U.P. Cooperative Tribunal, Lko.
1107
notification
dated
31.10.1998
several
amendments were carried out under
Cooperative Societies Rules including
Rule 229 and 229 (1) (c) which is as
under:-

"(c) in case the value of the
property or the amount of claim involved
in the dispute exceeds rupees fifty
thousand but does not exceed rupees three
lakh, be made to the Additional Registrar
having
jurisdiction
over
the
region
concerned."

10. The affidavit filed by the housing
Commissioner
also
states
that
by
notification dated 08/09/17 the pecuniary
amount regarding a petition has been
changed by the State Government and the
Additional
Housing
Commissioner/Additional
Registrar
Cooperative was conferred the jurisdiction
in respect of disputes involving a sum of
Rs. 5 Lacs to 10 lakhs. In the present case
the valuation of the case would be 10 lakhs
and therefore in light of the notification
dated 08/09/17 which though has been
passed subsequently but empowers the
Additional Housing Commissioner to act
as arbitrator. The Tribunal rejected the
appeal of the petitioner on the ground that
the Housing Commissioner did not have to
entertain any complaint and consequently
did not have any power to appoint the
arbitrator, and the appeal was therefore
rejected because the Additional Registrar
does not have jurisdiction to enter upon
reference.

11. In the present case the dispute
was referred to the Housing Commissioner
and Registrar by the High Court vide its
judgement and order dated 22.12.2000
passed in writ petition No. 32744 of 2000
and the then Housing Commissioner,
referred the dispute for arbitration to
Additional Registrar (Co-operative) who
was posted as Managing Director, Housing
Federation.

12. The U.P. Cooperative Tribunal
while appreciating the facts of the case it
seems has totally ignored the fact that the
dispute in the present case was referred to
the Housing Commissioner by the High
Court in its order passed on 22/12/00 in
writ petition number 32744/2000. The
Tribunal has recorded a finding that the
present dispute was not cognizable by the
housing Commissioner and the housing
Commissioner had no authority to firstly
entertain the said dispute and subsequently
to refer the same for arbitration. The
Tribunal has allowed the preliminary
objection preferred by the respondent and
dismissed
the
appeal
filed
by
the
petitioner, and the matter was remanded
for arbitration before the competent
authority for a fresh adjudication. By
means of interim order dated 20/06/08 this
court had stayed the operation of the
judgement and order of the tribunal.

13. During the pendency of the
instant writ petition, in order to resolve the
controversy this court and directed the
standing counsel to seek instructions the
matter regarding the position of the
Housing Commissioner to discharge the
duties of Registrar in respect to Section 70
and 71 of the U.P. Cooperative Societies
Act. In pursuance to the said directions of
this court dated 20/08/2019 an affidavit of
the Housing Commissioner was filed. In
the said affidavit it has been stated that the
power of the Registrar was conferred upon
the Housing Commissioner, U.P in respect
of inter alia all urban cooperative of the
societies in U.P by the State Government
by
notification
dated
15/06/76.
1108 INDIAN LAW REPORTS ALLAHABAD SERIES
Subsequently
by
notification
dated
10/08/89
the
State
Government has
conferred the jurisdictional power of the
Registrar
and
Deputy
Housing
Commissioner/Deputy
Registrar
and
Assistant
Housing
Commissioner/Assistant
Registrar,
Cooperative Societies posted under the
Housing Commissioner. As per rule of
4(c) it has been submitted that in case the
amount involved, 1 lakhs that as per rule
229 (1) the matter may be sent to
additional registrar.

14. With regard to the facts relating
to the present case it is been submitted that
the same was referred to the Housing
Commissioner/Registrar by the order of
the High Court dated 22/12/00 passed in
Writ Petition No.32744/2010 and even
otherwise the Housing Commissioner had
been conferred the power of Registrar as
per
notification
dated
15/06/76
and
subsequently the dispute was referred to
the then Additional Registrar Cooperative
Housing. It has been stated that as per rule
229 (1) (c) the Additional Registrar
Cooperative was empowered to deal with
the matter of arbitration and therefore he
had rightly decided the said arbitration.

15. Sri Rakesh Srivastava, counsel
for opposite party No.3 submitted that in
view of the statutory provisions contained
in U.P Cooperative Societies Act as well is
the rules framed thereunder, it is only the
Registrar of the U.P. Cooperative Society
could have referred the dispute for
arbitration, while in the present case the
Housing Commissioner having entertained
the dispute and therefore the reference of
the dispute for arbitration, was totally
without jurisdiction and a nullity and
therefore has supported the order of the
Tribunal.

16. The learned Counsel the
petitioner has submitted that before the
arbitrator, the grounds of maintainability
of the reference of the dispute for
arbitration
was
never
raised.
The
respondents appeared and contested the
matter before the arbitrator and therefore
they were precluded from challenging the
award on the ground of jurisdiction,
having acquiesced to his jurisdiction. It is
further submitted that in any view of the
matter, the reference was made in
pursuance to the orders passed by the High
Court dated 22/12/2000 in writ petition
No.32744 of 2000 and therefore the
proceedings were conducted in pursuance
and in compliance with the said directions
and the same cannot be set aside on the
ground of Jurisdiction by the Tribunal.

17. It is also admitted that the order
of the High court dated 22/1/2000 attained
finality as it was not further challenged
and was passed in the presence of the
respondents.

18. Considering the arguments raised
by both the parties with regard to the
jurisdiction of the Housing Commissioner
to refer the dispute for arbitration it is
noticed that admittedly this High Court at
Allahabad by means of order dated
20/02/00 was pleased to direct the
petitioner to file the arbitration case before
the Housing Commissioner/Registrar and
directions were issued to the Housing
Commissioner/Registrar that in case of
filing of arbitration case then the matter
may
be
decided
expeditiously.
In
furtherance of the aforesaid order the
petitioner had approached the Housing
Commissioner, and this fact was duly
disclosed to the tribunal by the petitioner
who had filed additional objection to the
preliminary objection, and the Tribunal did
2 All. Smt. Leelawati & Ors. Vs. The U.P. Cooperative Tribunal, Lko.
1109
not take cognizance of the said fact and
proceed to record a finding to the effect
that the Housing Commissioner had no
jurisdiction to entertain the dispute and
refer the same for arbitration. The findings
recorded by the Tribunal is, on the face of
it, contrary to the order of the High Court
and therefore illegal and arbitrary and
cannot be sustained.

19. The tribunal in the present case
has held that the Housing Commissioner
has no authority of jurisdiction to entertain
the dispute, despite the fact that it was the
High Court which had directed him to
entertain the said dispute. The Tribunals
do not have any power or authority to sit
in appeal over the orders passed by the
High Court. Despite this fact having been
pointed out by the petitioner in the
pleadings before the Tribunal, they choose
to blatantly ignore this fact, and proceeded
to strike down the order passed by the
Housing Commissioner. In this view of the
matter also, the order of the Tribunal
deserves to be set aside.

20. The second ground of challenge
to the order of Tribunal is that as no
objection regarding jurisdiction was raised
by the respondent before the arbitrator, he
would have
been deemed
to
have
acquiesced to the award and the same
cannot be challenged on this ground
subsequently.
In
the
case
of
M/s
Neelakantan & Bros. vs Superintending
Engineer, National Highways Salem and
others (1988) 4 SCC 462 it has been held
"If the parties to the reference either agree
beforehand to the method of appointment,
or
afterwards
acquiescence
in
the
appointment made with full knowledge of
all the circumstances. they will be
precluded
from
objection~
to
such
appointment as invalidating subsequent
proceedings. Attending and taking part in
the proceedings with full knowledge of the
relevant
fact
will
amount
to
such
acquiescence,"

21. The aforesaid judgement has
been referred with approval by the Hon'ble
Apex
Court
in
the
case
of
M/s
Construction India vs Secretary, Works
Department Government of Orissa and
others (1998) 2 SCC 89.

22. In the case of M.K.Shah
Engineers & Contractors vs State of M.P
(1999) 2 SCC 594 the honourable apex
court has held:-

"18. The subsequent conduct of
the respondents involuntarily agreed to the
appointment of arbitrators in both the
cases and not pursuing their objection
under section 33 of the arbitration act,
shall be valid on their part on the plea of
non-compliance with the earlier part of
clause 3.3 .29, if only there was such noncompliance. The respondent State of MP
has acquiesced in the appointment of
arbitrators and the proceedings for
settlement of disputes by arbitration. The
respondent cannot be permitted to turn
around and plead invalidity or nonmaintainability of arbitration proceedings
by reference to clause 3.3 .29."

23. Applying the ratio laid down by
the Hon'ble Apex Court in the above
judgements to the facts of the present case,
it can safely be concluded that the
respondent having appeared before the
arbitrator and having actively participated
in the proceedings, they would have been
deemed
to
be
participating
with
knowledge of full facts of the case and did
not raise any objections regarding the
jurisdiction
and
competence
of
the
1110 INDIAN LAW REPORTS ALLAHABAD SERIES
arbitrator or legality of the reference, had,
therefore, acquiesced to his jurisdiction.
The award was passed against the
petitioner. He preferred an appeal to the
Cooperative
Tribunal,
where
the
respondent raised for the 1st time a
preliminary objection with regard to the
competence of the Housing Commissioner
to refer the dispute raised by the petitioner.
The Tribunal proceeded to consider the
objections raised by the respondents on
merits, without taking into account the
order of the High Court dated 22/12/2000
whereby the petitioner was directed to
approach
the
housing
Commissioner/registrar.

24. The Tribunal had clearly
misdirected
itself,
while
instead
of
rejecting the preliminary objection raised
by the respondents at the very outset,
proceeded to consider the merits of the
same. The very fact that the Housing
Commissioner exercised powers under the
UP cooperatives Societies Act on the
directions of the High Court, and the
exercise of the said power, even otherwise,
could not have been be held by the
Tribunal to be illegal and arbitrary,
coupled with the fact that the respondent
who willingly participated before the
arbitrator, never raised any objections with
regard to the either the reference or the
competence of the arbitrator was clearly
precluded from raising the same by means
of the preliminary objection before the
Tribunal. This Court no hesitation in
holding that the order of the Tribunal is
clearly illegal, arbitrary, and contrary to
the settled legal principles. We are not
proceeding to adjudicate upon the powers
of the housing Commissioner/registrar in
entertaining the dispute and to further
referring the same to the competent
authority in exercise powers under section
3 (2) of the U.P Cooperative Societies Act
inasmuch as the same was done under the
orders of the court and not on his own
motion.

25. Petitioner has also challenged the
award passed by the Additional Registrar
dated 22.8.2005. The Additional Registrar
after considering the entire conspectus of
facts as well as material was of the
considered view that the cancellation of
the allotment of the plot as well as
subsequent cancellation of lease deed is
illegal and arbitrary and deserves to be set
aside but he proceeded to reject the claim
of the petitioner solely on the ground that
an inquiry report has been received which
indicates that the petitioner is near relative
of the President of the society and,
therefore, the allottment of the plot was
illegal. It has been submitted that the
arbitrator has not considered the rules or
definition as given in Section 2 (u) of the
U.P. Cooperative Societies Rules, 1968
and, therefore, the judgement is without
any application of mind and being contrary
to the statutory provisions and, therefore,
liable to be set aside.

26. Section 2(u) of which defines
near relation of a person is as follows:-

(u) "Near relation of a person"
refers to his following relations: -

(i) wife, (ii) husband, (iii) son,
(iv) daughter, (v) father-in-law, (vi)
mother-in-law. (vii) wife's sister, (viii)
wife's brother, (ix) husband's sister, (x)
husband's brother (xi) father, (xii) mother,
(xiii) grand-son or grand-daughter, (xiv)
father's sister, (xv) brother, (xvi) brother's
son, (xvii) sister, (xviii) sister's son, (xix)
father's brother, (xx) mother's brother,
(xxi) son-in-law, (xxii) daughter-in-law,
(xxiii) sister's husband;"
2 All. Smt. Leelawati & Ors. Vs. The U.P. Cooperative Tribunal, Lko.
1111

27. It has been submitted that son of
the petitioner was "lk<+w** of the President of
the society and this relationship does not
fall under definition of "near relative" as
per Rule 2 (u) of the Rules of 1968 and,
therefore, the allottment of the plot in
question is not hit by aforesaid rules and
the finding given by the arbitrator in this
regard is contrary to the provisions as
quoted hereinabove.

28. Challenge was also been made to
the cancellation of the lease deed by the
administrator
which
after
due
consideration returned a finding that same
was not in accordance with the rules. The
counsel for the petitioner has further
submitted that it is only a competent civil
court which can cancel a set aside such of
registration
after
examining
oral
documentary evidence adduced by the
parties as held by a full bench of this court
in the case of Smt Kusum Lata vs State of
U.P and others (2018) 4 UBLBEC 3048.
This issue does not deserve any further
consideration in this petition in as much as
the same has been decided in favour of the
petitioner by the arbitrator.

29. It is clear from the Rules that the
relationship of the petitioner with the
President of the society is not hit by Rule
2(u) and even the arbitrator has nowhere
adequately considered this fact and only
on the basis of inquiry report submitted at
the fag end of proceedings given this
finding. The findings also indicates non
application of mind as the arbitrator should
have recorded specific finding with regard
to the exact relationship of the husband of
the petitioner with the President of the
society and also the fact that the said
relation is covered by the definition of the
relations as provided under Rule 2 (u) of
the Rules of 1968. No such finding has
been recorded by the arbitrator. The
findings of the arbitrator in this regard are
liable to be set aside.

30. As discussed above, the order of
Cooperative Tribunal dated 21.5.2008 as
well as award dated 22.8.2008 are hereby
set aside.

31. As a result of the above
discussion, the matter is remanded to the
arbitrator, who shall be appointed by the
Registrar on an application made by the
petitioner. The petitioner is given liberty to
make an application to the Registrar along
with the certified copy of this judgement,
and on receipt of the application the
Registrar shall refer the matter for
arbitration in accordance with law. The
arbitrator is directed to decide the claim of
the petitioner within six months from the
claim made by the petitioner. The
arbitrator shall only consider and decide
the issue relating to rejection of the claim
of the petitioner on the ground of his being
the
relative
of
the
President.
The
respondents having not challenged the
findings of the arbitrator with regard to
cancellation of plot and of lease deed in
favour of petitioner, the same have
become final.

32. It has further been submitted
that interest of the petitioner has been
protected by various interim orders
passed during the proceedings and he
is continuing in possession till date. It
is, therefore, provided that till the
decision of the arbitrator status quo
with regard to the plot in question shall
be maintained.

33. With aforesaid direction the
petition stands disposed of.
----------
1112 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)02ILR A1112

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.02.2020

BEFORE

THE HON'BLE VED PRAKASH VAISH, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Misc. Bench No. 4433 of 2013

Radhey Krishna Trivedi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Dhruv Mathur

Counsel for the Respondents:
C.S.C., Girish Chandra Sinha

A. Challenging-notice dated 20.02.2013proceedings
initiated
against
him-by
Economic
Offences
Wing-seeking
declaration of the same as illegal-on the
ground that-investigation initiated-without
lodging of FIR-notices served on himinstead of appearing or filing reply-before
Economic
Offences
Wing-filed
present
petition-prel.
enquiry
permissible-before
lodging of FIR-no illegality in impugned
notice-Petition Dismissed.

B. Held, in the instant case, on receipt of a
complaint against the petitioner, Economic
Offences Wing issued a letter dated 21st
January, 2013 to the petitioner, another
letter
dated
20th
February,
2013
(annexure-1 to the writ petition) was sent
to the petitioner to appear within one week
and submit his reply. The petitioner instead
of appearing in the office of Economic
Offences Wing or filing reply to the queries
made by them, file the present petition.We
are of the considered opinion that the
Economic
Offences
Wing
has
taken
recourse to a preliminary inquiry which is
inconsonance with the decision in Lalita
Kumari's case (supra). We do not find any
illegality in the impugned notice dated 20th
February, 2013. In the light of aforesaid
discussion, we are of the view that the writ
petition
is
without
any
merit,
same
deserves to be dismissed and the same is
hereby dismissed.

List of cases cited:-

1. P. Sirajuddin, ETC vs. State of Madras, ETC', 1970
(1) SCC 595

2. Lalita Kumari vs. State Government of Uttar
Pradesh and others', (2014) 2 SCC 1

(Delivered by Hon'ble Ved Prakash Vaish, J.)

1. Heard Sri Dhruv Mathur, learned
counsel for the petitioner, Sri Raj Baksh Singh,
learned Additional Chief Standing Counsel for
respondents No.1 to 5 and Sri Girish Chandra
Sinha, learned counsel for respondent No.9.

2. The petitioner, Sri Radhey Krishna
Trivedi has filed the present writ petition under
Article 226 of the Constitution of India with
the following prayer:-

"(i) Issue a writ, order or direction
in the nature of mandamus declaring the
impugned
investigation/proceeding
being
conducted against the Petitioner by the
Economic Offences Wing of the State
Government as illegal.

(ii) Issue a writ, order or direction
in the nature of certiorari for quashing the
impugned
investigation/proceeding
being
carried out by the Economic Offences Wing of
the State Government against the petitioner.

(iii) Issue a writ, order or direction
in the nature of mandamus directing the
Respondents not to harass and proceed
against the Petitioner in any manner.

(iv) Issue an appropriate writ,
order or direction for summoning of all
letters,
orders,
notices,
Government
Orders pursuant to which the impugned