Dismissed

Garden View Owners Welfare Association Thru Secy. and Another v. the Dy. Registrar Firms Societies and Chits Lucknow and Others

Allahabad HC15 Oct 2024WRIC/1001034/2015

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an order by the Deputy Registrar. The court held the order directing flat owners to join the society and pay maintenance was legal under the UP Apartment Act, finding a statutory right to membership and no failure of justice. Non-joinder of complainants did not justify setting aside the merits-grounded order.

What did the court decide?

The writ petition was dismissed. The impugned order dated 06.02.2015 passed by the Deputy Registrar stood unquashed.

Garden View Owners Welfare Association… — Pension and Retirement Benefits | Allahabad HC (2024)

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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD SITTING AT LUCKNOW

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A.F.R.

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Neutral Citation No. - 2024:AHC-LKO:69380

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Court No. - 18

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Case :- WRIT - C No. - 1001034 of 2015

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Petitioner :- Garden View Owners Welfare Association Thru Secy. And Another

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Respondent :- The Dy. Registrar Firms Societies And Chits Lucknow And Others

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Counsel for Petitioner :- ,Ankit Srivastava

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Counsel for Respondent :- C.S.C.,Mukund Tewari,Sabita Lahiri,Vijai Krishna

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Hon’ble Subhash Vidyarthi J.

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1. Heard Sri Ankit Srivastava, the learned counsel for the petitioners, Sri Laxmi Mohan Khare, the learned Standing Counsel for the State, Sri Vijai Krishna, the learned counsel for the opposite parties no.2 and 3 and perused the records.

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2. By means of the instant petition filed under Article 226 of the Constitution of India, the petitioner no.1 - Garden View Owners Welfare Association and petitioner no.2 – Sri. Sudhir S. Halwasiya, Secretary, Garden View Owners Welfare Association, have sought quashing of an order dated 06.02.2015, passed by the Deputy Registrar, Firms, Societies and Chits, Lucknow Division, Lucknow, whereby the petitioner no.2 has been directed to make all the flat owners of Garden View Apartments, 8 Rana Pratap Marg, Lucknow members of the petitioner no.1 association, which is a society registered under the Societies Registration Act, 1860. The flat owners, who have not paid the membership fee or annual subscription were directed to deposit the same in the society’s account within one month. The petitioner no.2 has been directed to deposit the one time

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maintenance amount charged at the time of execution of sale deeds of apartment in the bank account of the society.

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3. Briefly stated, the facts of the case are that the petitioner no.2 along with M/s Halwasiya Properties Private Limited had developed a multi storied residential building called ‘Garden View Apartments’, 8, Rana Pratap Marg, Lucknow. A Welfare Association/Society called ‘Garden View Owners Welfare Association’ was created by the builder for maintenance of the building and the society was registered in the year 1999-2000. Its registration was renewed from time to time and it expired in October, 2009. An application for renewal of registration of the society was filed on 30.06.2014. On 09.07.2014, the Deputy Registrar, Firms, Societies and Chits, Lucknow Division, Lucknow sent a letter informing the petitioners that the registration of the society was being renewed subject to submission of certain requisite papers mentioned in the letter.

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4. It has been stated in para 11 of the writ petition that while the matter of renewal of the society was yet to be finalized and the renewal certificate was yet to be issued, the opposite parties no.2 and 3, who are merely occupants of two flats in Garden View Apartments and who are not members of Garden View Owners Welfare Association, submitted a complaint before the Deputy Registrar. However, the copy of the complaint enclosed with the letter dated 08.09.2014 sent by the Deputy Registrar to the petitioner no.2 shows that this complaint was submitted by as many as 8 complainants, including the opposite parties no.2 and 3. The other 6 complainants have not been arrayed as opposite parties to the writ petition. The complaints inter alia stated that the petitioner no.2 does not reside in Flat No.801, Garden View Apartment. Flat No.801 has been constructed by the builder illegally and it is not a part of the building plan sanctioned by the Lucknow Development Authority. The place where Flat No.801 has been constructed has been shown in the sanctioned building plan as parking area. The flat owners’ association is not complying with its statutory obligations and is neglecting

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maintenance of the building. No meeting of the society is held and no notice thereof is sent to the flat owners. No accounts are placed before the members of the society and no approval for expenditure is taken from the members.

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5. A copy of the aforesaid complaint was sent to the petitioner no.2 along with the letter dated 08.09.2014 sent by the Deputy Registrar, Firms, Societies and Chits, Lucknow Division, Lucknow for giving an opportunity to submit a reply/explanation against the complaint. The petitioner no.2 was further directed to produce the membership receipt and other relevant evidence and to submit point wise explanation on the complaint submitted by the 8 complainants.

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6. In reply to the aforesaid notice dated 08.09.2014, the petitioner no.1- Garden View Owners Welfare Association through its Secretary-petitioner no.2, submitted a reply dated 17.11.2014 to the Deputy Registrar, Firms, Societies and Chits stating that Sri Govind Prasad Laath (the opposite party no. 3) and Sri Gaurav Laath, son of Sri Govind Prasad Laath are not members of Garden View Owners Welfare Association. Sri S.K. Gupta (the opposite party no. 2) is also not a member of the association. Smt. Varsha Chatlani is a member of the association but she has not given any written complaint about any alleged irregularities being committed by the association. Smt. Shalini Srivastava is not a member of the association. The association does not have any record concerning B.K.B. Engineering Pvt. Ltd. purported owner of Flat No.502 and he is not a member of the association. Sri Jamshed Khan is also not a member of the association.

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7. The petitioners stated that except for Smt. Varsha Chatlani, none of the complainants are the members of the association and they have no locus-standi to submit any complaint to the Deputy Registrar. The petitioners further stated that as per the provisions contained in Societies Registration Act, 1860, in case any members of the society have any grievance, they should first give a written intimation regarding the same to the office bearers of the society and in case the authority/office bearers failed to redress their grievance, only then

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they can submit a complaint to the Deputy Registrar. The petitioners did not give any reply to the allegations leveled in the complaint and they only raised objection against the entertainability of the complaint.

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8. After taking into consideration the complaint and the reply submitted by the petitioners the Deputy Registrar, Firms, Societies and Chits, Lucknow Division, Lucknow has passed the impugned order dated 06.02.2015, whereby the petitioner no.2 has been directed to induct all the flat owners as members of the petitioner no.1 society and to deposit the entire maintenance amount charged from the flat owners at the time of execution of the sale deed, in the account of the petitioner no.1-society.

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9. It is also mentioned in the impugned order dated 06.02.2015 that the petitioner no.2 has submitted that several flat owners had acted against the interests of the society and their membership had been terminated for the reason of violation of rules of the society and failure to pay annual maintenance amount.

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10. The opposite party no. 1 – State of U.P. has filed a counter affidavit and the opposite parties no. 2 and 3 also have filed a counter affidavit. The opposite party no. 1 has inter alia pleaded in its counter affidavit that on 10.04.2015, 15 flat owners of Garden View Apartments have given an application to the Deputy Registrar requesting for compliance of the order dated 06.02.2015. It has also been pleaded that another society in the name of “G. B. Apartment Owners Association” has been registered and there is no prohibition in law against registration of two different societies in two different names.

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11. In the counter affidavit filed on behalf of the opposite parties no. 2 and 3, a preliminary objection has been raised that the Writ Petition suffers from the defect of non-joinder of necessary parties, which has been denied by the petitioner in his rejoinder affidavit.

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12. While assailing the validity of the aforesaid order, Sri Ankit Srivastava, the learned counsel for the petitioners, has submitted that

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the petitioner no.2 had not submitted that several flat owners had acted against the interest of the society and their membership had been terminated for the reason of violation of rules of the society and failure to pay annual maintenance amount and this narration made in the impugned order is incorrect.

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13. There is always a presumption about correctness of the narration of happenings in the Court made in a judicial order and this presumption will also apply to the orders passed by the quasi judicial authorities. In exercise of its Writ jurisdiction, this Court cannot adjudicate upon the disputed question of fact as to whether the aforesaid submission was made by the learned Counsel for the petitioners or not. In any case, even if the plea had not been raised by the petitioners, a mere wrong mention thereof would not vitiate the impugned order when this plea has not formed the basis of passing of the impugned order.

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14. The second submission of the learned counsel for the petitioners is that the petitioners had raised objections regarding entertainability of the complaint on the ground that the complainants are not members of the society. It was incumbent upon the Deputy Registrar to decide the objection against the maintainability first and only thereafter the aforesaid authority could have proceeded to entertain the complaint. In support of this contention the learned counsel for the petitioners has relied upon a decision of the Hon’ble Supreme Court in the case of Union of India and others Vs. Ranbir Singh Rathaur : (2006) 11 SCC 696. In that case, while allowing the appeal filed against an order passed by the Delhi High Court, the Hon’ble Supreme Court held that the Delhi High Court had not dealt with the matter in proper perspective and it would be proper for the High Court to rehear the matter. While remanding the matter the Hon’ble Supreme Court directed the Delhi High Court to decide the preliminary objection raised by the appellant about nonmaintainability of the writ petition before proceeding to deal with any other question. However, even while issuing the aforesaid direction,

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the Hon’ble Supreme Court categorically observed that normally such a course is not to be adopted, but in view of the peculiar facts involved in that case, the Hon’ble Supreme Court felt it proper to direct the High Court to decide the preliminary objection regarding maintainability first. Therefore, even as per the law laid down by the Hon’ble Supreme Court in the case of Ranbir Singh Rathaur (Supra) normally there is no necessity for deciding the question of maintainability before proceeding to decide the other questions.

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15. Moreover, the aforesaid observations were made by the Hon’ble Supreme Court in the light of the question of maintainability of a writ petition regarding which there are well established principles e.g. a writ petition will not be maintainable where there is a statutory remedy available or it suffers from gross unexplained latches or the dispute involved falls within realm of private dispute or there are disputed questions of fact etc. The aforesaid principle regarding maintainability of the writ petition would not apply to the entertainability of an objection filed before the Deputy Registrar, Firms, Societies and Chits, Lucknow Division, Lucknow.

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16. The learned counsel for the petitioners thirdly submitted that the complainants have no legally enforceable right of becoming members of the petitioner no.1-society and, therefore, the Deputy Registrar has no jurisdiction to pass any such direction to the petitioners. In support of this contention, the learned counsel for the petitioner has relied upon a decision rendered by a coordinate Bench of this court in Maharashtra Shikshan Mandal and others Vs. State of U.P. and others : 2016 (114) ALR 452. The aforesaid case was decided keeping in view the factual background where certain persons had applied for becoming member of a society which was running an educational institution. The Managing Committee of the society had resolved that ordinary membership should not be allowed to unmarried boys and girls who are not earning and that it should be open to persons who are graduates only. The society considered all 37 applications received for membership and accepted membership

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request of 22 persons only. The remaining 15 applicants submitted a complaint to the Assistant Registrar. Without interfering with the decision of the society regarding membership requests, the Assistant Registrar passed an order stating that as the term of the Managing Committee of the society was over, fresh elections are to be held under Section 25 (2) of the Societies Registration Act and he appointed District Inspector of Schools, Jhansi for this purpose. The Assistant Registrar wrote a letter to the D.I.O.S. and sent a list of 89 members, including 7 persons whose applications for membership had not been accepted by the society. The D.I.O.S. informed that those 7 persons had not been accepted by the society as its members. However, the Assistant Registrar passed an order directing the D.I.O.S. to hold elections of the society on the basis of the list of 89 members as submitted by him, including 7 persons whose membership requests had been declined. It was in light of the aforesaid peculiar factual backdrop that this court held that no person has any vested or fundamental right to become a member of a society merely for the reason that he fulfills the eligibility conditions, unless he is accepted to be a member by the society itself.

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17. In the present case, the complainants claim to be owners of the apartments in Garden View Apartment, 8 Rana Pratap Marg, Lucknow. The Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 (hereinafter referred to as “the Apartment Act, 2010”) has been enacted to provide for the ownership of an individual apartment in a building, of an undivided interest in the common areas and facilities appurtenant to such apartment and to make such apartment and interest heritable and transferable and for matters connected therewith or incidental thereto. The aforesaid Act has come into force with effect from 21.07.2010.

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18. Section 3 (e) of the Apartment Act, 2010 provides that “ association of apartment owners” means all the owners of the apartments therein, acting as a group in accordance with the bye-laws”

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19. Section 14 of the Apartment Act, 2010 provides that: -

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(1) There shall be an Association of Apartment Owners for the administration of the affairs in relation to the apartments and the property appertaining thereto and for the management of common areas and facilities:

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Provided that where any area has been demarcated for the construction of buildings, whether such area is called a block or pocket or by any other name, there shall be a single Association of Apartment Owners in such demarcated area.

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(2) It shall be the joint responsibility of the promoter and the apartment owners to form an Association. The promoter shall get the Association registered when such numbers of apartments have been handed over to the owners which are necessary to form an association or sixty percent of apartments, whichever is more, by way of sale, transfer or possession provided the building has been completed along with all infrastructure services and completion certificate obtained from the concerned local authority:

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20. As per the aforesaid statutory mandate, there has to be an association of apartment owners and all the owners of apartments in the building shall form an association of apartment owners. Therefore, in the present case all the apartment owners in the building have a statutory right to become a member of the association of flat owners, which association in the present case is Garden View Owners Welfare Association-the petitioner no.1. As the flat owners have got a statutory right to become members of the Garden View Owners Welfare Association, the facts of the present case are different and distinct from the facts on the basis whereof the case of Maharashtra Shikshan Mandal (supra) was decided and the ratio of the aforesaid case will not apply to the facts of the present case.

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21. The learned counsel for the petitioners has fourthy submitted that the Deputy Registrar has no authority to pass any order directing the petitioners to induct the flat owners of the society as members of the society and such an order can only be issued by the competent civil court. In support of this contention, the learned counsel for the petitioner has relied upon a decision of a coordinate Bench of this court in the case of Board of Trustee of the Shia College and the

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School and another Vs. State of U.P. and others : 2015 (33) LCD 1989. In that case, there were rival disputes between parties regarding previous election of the governing body which were held on 15.11.2009. Thereafter, the election was approved/recognized by means of an order dated 31.03.2010 and the registration of the society was also renewed on 30.10.2010 for a period of five years with effect from 10.10.2010. During the term of previous governing body some trustees were removed prior to expiry of their term and some new persons were inducted as trustees on the same day. When election proceedings based on the disputed list were submitted for approval under Section 4-B and Section 4 of Societies Registration Act by the rival claimants, the Deputy Registrar passed the impugned order. It was in these circumstances that this Hon’ble Court had held that the decision making authority of the Registrar/Deputy Registrar is not contemplated under Section 4-B of the Act, but what is contemplated is an administrative exercise of power. The membership disputes are amenable to the jurisdiction of civil court in a civil suit and Section 4- B does not divest the civil court of this dominion either expressly or by implication.

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22. In the present case, all the apartment owners in the building have a statutory right to become a member of the association of flat owners and the Deputy Registrar has directed the petitioners to make all flat owners members of the welfare association. Ownership of flat is not such a disputed question of fact as requires any detailed evidence to be taken and arguments to be heard for a finding to be recorded regarding it. Ownership of flats for the purpose of membership of the society is to be determined only on the basis of proof of execution of sale deed of the flat, which can easily be done by the Deputy Registrar. Keeping in view the facts of the case and the law applicable thereto, it cannot be said that the Deputy Registrar is not competent to issue any direction for making all the flat owners members of the petitioner no.1-society.

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23. The learned counsel for the opposite parties no.2 and 3 has drawn attention of the court to the statutory provision contained in Section 24 of the Societies Registration Act, 1860 as applies to the State of U.P. which provides as follows: -

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“24. Investigation of affairs of a society.—(1) Where on information received under Section 22 or otherwise, or in circumstances referred to in sub-section (3) of Section 23, the Registrar is of opinion that there is apprehension that the affairs of a society registered under this Act are being so conducted as to defeat the objects of the society or that the society or its governing body by whatever name called, or any officer thereof in actual effective control of the society is guilty of mismanaging its affairs or of any breach of fiduciary or other like obligations, the Registrar may, either himself or by any person appointed by him in that behalf, inspect or investigate into the affairs of the society or inspect any institution managed by the society.

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(2) It shall be the duty of every officer of the society when so required by the Registrar or other person appointed under subsection (1) to produce any books of account and other records of or relating to the society which are in his custody and to give him all assistance in connection with such inspection or investigation.

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(3) The Registrar or other person appointed under sub-section (1) may call upon and examine on oath any officer, member or employee of the society in relation to the affairs of the society and it shall be the duty of every officer, member or employee, when called upon, to appear before him for such examination.

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(3-A) The Registrar or other person appointed under sub-section (1) may, if in his opinion it is necessary for the purpose of inspection or investigation, seize any or all the records including account books of the society:

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Provided that any person from whose custody such records are seized shall be entitled to make copies thereof or to take extracts therefrom in the presence of the person having the custody of such records.

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(4) On the conclusion of the inspection or investigation, as the case may be, the person, if any, appointed by the Registrar to inspect or investigate shall make a report to the Registrar on the result of his inspection or investigation.

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(5) The Registrar may, after such inspection or investigation, give such directions to the society or to its governing body or any officer thereof as he may think fit, for the removal of any defects or irregularities within such time as may be specified and in the event of default in taking action according to such

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directions, the Registrar may proceed to take action under Section 12-D or Section 13-B, as the case may be.”

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(Emphasis added)

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24. The powers of the Registrar have been delegated to the Deputy Registrar. In exercise of the delegated powers the Deputy Registrar entertained the complaint submitted by the eight complainants and forwarded its copy to the petitioners giving them opportunity to submit a reply thereto. The letter dated 08.09.2014 sent by the Deputy Registrar to the petitioners categorically mentions that the petitioners may submit a point wise reply to the complaint dated 21.08.2014 submitted by Govind Laath and others and a copy of the complaint was annexed with the notice dated 08.09.2014. Although the petitioners submitted a reply dated 17.11.2014, they chose not to submit any point wise reply and they confined their reply to preliminary objections only. Therefore, the factual allegations leveled in the complaint dated 21.08.2014 submitted by the eight complainants remained uncontroverted, which amounts to an implied admission. In these circumstances, if the Deputy Registrar felt that holding of a detailed investigation and seizing of records was not necessary, this court finds no illegality in the approach adopted by the Deputy Registrar. Therefore, this court finds no force in the submission of the learned counsel for the petitioners that the Deputy Registrar had no authority to pass the impugned order.

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25. The learned Counsel for the opposite parties no. 2 and 3 has submitted that complaint that led to passing of the impugned order, had been filed by 8 persons, all of whom have not been arrayed as opposite parties to the Writ Petition and, therefore, the Writ Petition suffers from the defect of non-joinder of necessary parties. In reply to this objection, the learned Counsel for the petitioners has submitted that a complainant is not a necessary party to the Writ Petition. In support of this contention, the learned Counsel for the petitioners has placed reliance upon a judgment rendered by a Division Bench of this Court in Amin Khan versus State of U.P. : 2008 (26) LCD 1453, in

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which this Court was dealing with an application filed by a complainant seeking leave to file Special Appeal against an order passed by an Hon’ble Single Judge Bench in a Writ Petition in which the complainant was not a party. The respondent No. 4 in that case had been elected as a Gram Pradhan and proceedings under Section 95(1)(g) of the U.P. Panchayat Raj Act, 1947 had been initiated against her on certain charges on the basis of a complaint made by the applicant. The District Magistrate found the charges prima facie established and passed an order depriving the respondent No. 4 from exercising financial and executive powers till regular enquiry is concluded for which he also appointed as Enquiry Officer. The District Magistrate further appointed a three Members Committee to look after the day-to-day work of the Gram Sabha. The applicant was also made a member of the said Committee. The respondent No. 4 challenged the order of the District Magistrate by filing a Writ Petition, which was allowed. The complainant sought leave of the Court for filing a Special Appeal. A preliminary objection was raised regarding the right of the appellant who was the complainant and who had been appointed as a member of the Committee to perform the duties of the Pradhan pending regular enquiry on the ground that the said applicant being the complainant cannot be a party to the lis. Moreso, he was a beneficiary of the order depriving the said respondent from exercising her financial and executive powers, he cannot be permitted to file the appeal. Rejecting the application seeling leave to file the Special Appeal, this Court held that: -

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“5. Admittedly, the applicant is a complainant and has also been included by the District Magistrate in the three Members Committee to look after the work of the Pradhan pending final enquiry. The issue as to whether such a beneficiary of order, impugned in writ petition could be heard by a Court was considered at length by the Division Bench of this Court to which one of us (Dr. B.S. Chauhan, J.) was a member in Smt. Kesari Devi v. State of U.P., (2005) 4 A.W.C. 3563 : (2005 All LJ (NOC) 50) wherein after noticing large number of judgments of the Hon’ble Supereme Court, the Court reached the conclusion that such an applicant cannot be a party in litigation for the reason that he cannot be a person aggrieved. The said judgment

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was challenged before the Hon’ble Apex Court in S.L.P. (Civil) No. 19761 of 2005 and the same was dismissed vide order dated 3-10-2005.”

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26. Thus in Amin Khan (Supra), the application seeking leave to file Special Appeal was rejected in view of the peculiar facts of the case where the Court came to the conclusion that the applicant was not a person aggrieved. However, in the present case, the complainants, or at least those complainants who admittedly own flats in Garden View Apartments, have a statutory right to become members of the Society and they have an interest in proper functioning of the society and proper maintenance of the apartment complex and, therefore, the complainants in this case are persons aggrieved.

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27. Further, the petitioners themselves have chosen to implead two of the eight complainants as opposite party nos. 2 and 3 to the Writ Petition even when the petitioners’ contention is that they do not own any flat in the apartment complex, which shows that the petitioners treat them to be necessary or at least proper parties to the Writ Petition. The petitioners admit that at least one of the complainants Ms. Varsha Chatlani owns an apartment in the complex and that she is a member of the society and yet she has not been arrayed as an opposite party to the Writ Petition whereas she is a person aggrieved and she would be affected by the outcome of the Writ Petition. Therefore, the Writ Petition suffers from the defect of non-joinder of necessary parties, which defect was not removed even after a specific plea having been raised in the counter affidavit. However, as this Court has already examined the merits of the matter, the Writ Petition is not being dismissed on the preliminary ground alone.

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28. In view of foregoing discussion, this court is of the considered view that there is no illegality in the impugned order dated 06.02.2015, passed by the Deputy Registrar, Firms, Societies and Chits, Lucknow Division, Lucknow, and the order does not cause a failure of justice to the petitioners. Therefore, the impugned order does not warrant any interference by this Court in exercise of its

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extraordinary Writ jurisdiction vested in it under Article 226 of the Constitution of India.

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29. The Writ Petition lacks merit and the same is dismissed .

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(Subhash Vidyarthi, J.)

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Order Date: 15.10.2024 Ram.

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