MEENA KUMARI Vs. SAINIK CO-OP HOUSE SOCIETY

JUDGEMENT

(1.) The present petition has been filed by the petitioner under Sec. 11(6) of the Arbitration and Conciliation Act, 1996 for the appointment of an independent Arbitrator.

(2.) Brief facts, which lead to the filing of the present petition, are that on 03. 10.2005, as per perpetual lease deed, lease hold rights of shop bearing No. GS119 measuring 12' x 15' situated at Sector G, Sainik Colony, Jammu was allotted in favour of Smt. Vaishno Devi and as per clause (4) of the Lease Deed, arbitration clause has been incorporated, in the event of existence of any dispute. On 10/7/2007, the premium for regularization of excess land of 225 sqft. appurtenant to the shop was received by the respondent No. 1 Society from the lessee. On 19/7/2007, as per Release Deed, the lease hold rights of the shop was transferred in faovur of Ajay Kumar Choudhary and possession of excess land for which premium was received was also given. As per release deed, the aforesaid shop along with excess land and its possession was obtained by the petitioner on 12/9/2017. On 17/10/2019, the petitioner applied for construction of shop on the shop site and the excess land which came to be sanctioned in favour of the petitioner. On 5/6/2023, the respondents no. 1 and 3 without having any authority unilaterally cancelled the allotment of excess land appurtenant to the shop, as was allotted in favour of the petitioner resulting existence of dispute to be decided by an arbitration as per terms of the Perpetual Lease Deed, Release Deed read with Rule 49 of the Bye Laws of the respondent no.1 Society. Finally, on 27/9/2023, the petitioner issued notice for appointment of an independent Arbitrator, as the Registrar Cooperative being the controlling Head of all the Cooperative Societies under the Cooperative Societies Act is debarred from acting as an Arbitrator as per Sec. 12(5) of the Arbitration and Conciliation Act but no Arbitrator has been appointed. Hence the present petition.

(3.) It is averred in the petition that an independent arbitrator is required to be appointed in this case because in the present case, the Registrar of Cooperative Societies is nominated as arbitrator in terms of the Clause (IV) of Perpetual Lease executed between the parties which is against prohibition contained in Sec. 12(5) of Arbitration and Conciliation Act, 1996 read with Schedule 7 thereof.