Allowed

The Embassy Apartment Onwer"S Association v. the State of Karnataka

Karnataka HC13 Jan 2023WP/49557/2012

Case brief

AI extract

What is this about?

An apartment owners' association challenged a criminal complaint under the Karnataka Shops and Commercial Establishments Act, 1961 for alleged non-renewal of a licence held under a mistaken impression. The court quashed the complaint, holding that the association's activities do not constitute a commercial venture and thus no registration was legally required.

What did the court decide?

The criminal complaint dated 30.06.2012 filed by the respondent before the MMTC-3, Bangalore in C.C. No.1832/2012 is hereby quashed.

The Embassy Apartment Onwer"S Association Vs the… — Service and Employment | Karnataka HC (2023)

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WP No. 49557 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ

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WRIT PETITION NO. 49557 OF 2012 (L-RES)

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BETWEEN:

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THE EMBASSY APARTMENT ONWERS’ ASSOCIATION NO 15, ALI ASKAR ROAD, BANGALORE-560 052 REPRESENTED BY ITS PRESIDENT MR ASHOK PEREIRA AGED ABOUT48 YEARS

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MR STANLEY PINTO AGED ABOUT 69 YEARS EX PRESIDENT THE EMBASSY APARTMENT OWNERS’ ASSOCIATION, NO 15, ALI ASKAR ROAD, BANGALORE-560052

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Digitally signed by POORNIMA SHIVANNA Location: HIGH COURT OF KARNATAKA

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SMT RACHANA GOPINATH AGED ABOUT 36 YEARS EX SECRETARY THE EMBASSY APARTMENT OWNERS’ ASSOCIATON, NO 15, ALI ASKAR ROAD BANGALORE 560 052

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SRI K.S.SRINIVAS AGED ABOUT 49 YEARS ACCOUNTS MANAGER, THE EMBASSY APARTMENT OWNERS’ ASSOCIATION NO 15, ALI ASKAR ROAD, BANGALORE 560 052 560052

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…PETITIONERS

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(BY SRI. C.K. SUBRAMANYA, ADVOCATE FOR SRI. B C PRABHAKAR., ADVOCATE)

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WP No. 49557 of 2012

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AND:

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THE STATE OF KARNATAKA REPRESENTED BY ITS SENIOR LABOUR INSPECTOR, 9^TH CIRCLE, DEPARTMENT OF LABOUR BANGALORE 50 029560029

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…RESPONDENT

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(BY SRI. BHOJEGOUDA T. KOLLER, AGA)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS LEADING TO THE FILING OF THE CRIMINAL COMPLAINT DATED 30.6.12, FILED BY THE RESPONDENT BEFORE THE MMTC-3, BANGALORE IN CC.NO.1832/12 AND ETC.

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THIS WRIT PETITION, COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners are before this Court seeking for the following reliefs:

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a. Call for records leading to the filing of the Criminal Complaint dated 30.6.2012, filed by the Respondent before the MMTC-3, Bangalore in CC.No.1832/12;

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b. Quash the Criminal Complaint dated 30.6.2012, filed by the Respondent before the MMTC-3 Bangalore in CC.No.1832/12 (Annexure-E);

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c. Grant any other relief (s) as may be deemed fit and proper by this Hon’ble Court.

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The petitioner No.1 is an Association of the

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Apartment Owners of “The Embassy Apartments”,

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Bangalore. The Association has been formed for the purpose of maintenance and better interaction, etc. of the owners and residents of the Apartment, so that the association can take care of the interests of

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the apartment owners and/or residents in a proper manner by election of certain office bearers who could appoint certain employees to take care of the requirements of the owners and residents.

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The Association, according to the petitioner, inadvertently under wrong advise got itself registered under the Karnataka Shops and Commercial Establishments Act, 1961 on 12.03.2008. On an inspection being carried out of the records of the Association on 22.03.2012, it was indicated that there were certain violations of the Karnataka Shops and Commercial Establishments Act, 1961 and Rules made thereunder, as also various other labour enactments like Payment of Wages Act, Minimum Wages Act, Payment of Bonus Act, etc. It is in

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furtherance thereof that prosecution is initiated against the Association under the said enactments. In the present petition what we are concerned is the prosecution initiated against the petitioner vide the criminal complaint filed in C.C. No.1832/2012 under the Karnataka Shops and Commercial Establishments Act, 1961.

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Learned counsel for the petitioner would submit that as regards other proceedings which have been initiated, this Court in the case of Smt.Rachana Gopinath and Another -vThe State of Karnataka, Department of Labour, Bangalore [ILR 2016 KAR 4239] has come to a categorical conclusion that the registration obtained by the petitioner was under a wrong conception that under the Karnataka Shops and Commercial Establishments Act, 1961 was required and as such, the proceedings

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which had been initiated against the petitioner for not doing so resulting in violation of the Contract

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Labour (Regulation & Abolition) Act, 1970 has been quashed. It is further submitted that another proceedings which had been initiated for alleged violation of the provisions of the Minimum Wages Act, 1948 has also been quashed for the very same reasons by this Court in W.P. No.49553/2012 dated 10.11.2022.

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The very premise for registration under the Karnataka Shops and Commercial Establishments Act, 1961 is for the said establishment to carry out some commercial activity. If no commercial activity is carried out, there is no requirement for registration under the Karnataka Shops and Commercial Establishments Act, 1961.

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As observed supra, the petitioner is an Association of the owners and residents of “The Embassy Apartment” and has only been formed and registered under the Societies Registration Act and the aims and objectives of the apartment owners Association

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is to safeguard the interest of the owners and residents thereof. There is no commercial activity as such which is carried out by the Association. Engagement of employees and workers are only for upkeep of the common areas and maintenance of the building which is done from and out of the contribution made by the apartment owners, as such it would not amount to any commercial venture.

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Though the petitioners have got registered themselves under the Karnataka Shops and Commercial Establishments Act, 1961, the learned counsel for the petitioner submits that the same was by mistake, under wrong advise and with abundant caution not to violate any principle. The said submission has merit inasmuch as there is no particular requirement under law for registration of the petitioner under the Karnataka Shops and Commercial Establishments Act, 1961. In view thereof, I am of the considered opinion that there is

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no requirement for proceeding against the petitioners

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for alleged violation of the Karnataka Shops and Commercial Establishments Act, 1961, on account of non-renewal of the said licence since after taking into consideration the submissions, no such registration was required.

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The submission of the learned counsel for the petitioners that necessary action would be taken to bring a closure of the registration as per the applicable provisions is placed on record. In view of the above, I pass the following:

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ORDER

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