J 2015 SCC OnLine All 5998 Sjmathews Gmailcom 20210319 225643 1 1

SCC Online Web Edition, Copyright © 2021
Page 1 Friday, March 19, 2021

Printed For: Sunil J. Mathews
SCC Online Web Edition: http://www.scconline.com
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
Special Appeal No. - 815 of 2015
Resident Welfare Association v. State of U.P.
2015 SCC OnLine All 5998
In the High Court of Allahabad

(BEFORE V.K. SHUKLA AND MAHESH CHANDRA TRIPATHI, JJ.)
Resident Welfare Association (Regd.) Through its Secretary .….

Appellant
v.
State of U.P. & 5 Others .…. Respondents
Counsel for Appellant:- Ashish Kumar Dubey, Ananya Pandey
Counsel for Respondent:- C.S.C., Kunal Ravi Singh, Manjari Singh, Nisheeth Yadav
Special Appeal No. - 815 of 2015
Decided on November 4, 2015
V.K. SHUKLA, J. (Oral):— Resident Welfare Association (Regd.), Purvanchal Silver
City II, Plot No. 10, State Chorasia, Sector Pi-2, Greater Noida, district Gautam Budh
Nagar through its Secretary Dinesh Kumar Sharma is before this Court assailing the
validity of the judgement and order dated 16.10.2015 passed by the learned Single
Judge in Writ Petition No. 42123 of 2015 whereby the learned Single Judge while
disposing of Writ Petition No. 42123 of 2015 as well as Writ Petition No. 42202 of
2015 has issued directives in the direction of forming an association and for holding of
elections in consonance with the provisions as contained under U.P. Apartment
(Promotion of Construction, Ownership and Maintenance) Act 2010 and the U.P.
Apartment (Promotion of Construction, Ownership and Maintenance) Rules 2011.
2. Petitioner appellant society is registered under the Societies Registration Act
1860 in the name and style Resident Welfare Association, Purvanchal Silver City-II,
Greater Noida duly registered on 28 September 2010. The State notified the U.P.
Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010, on
18.3.2010 to provide for the ownership of an individual apartment in a building of an
undivided interest in common areas and facilities of appurtenant to such apartment
and to make such apartment and interest heritable and transferable and for matters
connected thereto and incidental thereto. In exercise of power conferred under Section
13 of Act 2010, the U.P. Apartment (Promotion of Construction, Ownership and
Maintenance) Rules 2011 was notified on 16.11.2011. Pursuant to powers under
Section 14(6) of Act 2010, the Governor made and got published Model Bye-Laws
requiring every Association of Apartment Owners hereinafter to make their Bye-laws at
its first meeting for the administration of the affairs in relation to the apartments and
the property appertaining thereto. The Model Bye laws was notified on 16.11.2011.
3. The case of the petitioner appellant-society is that upon notification of the Model
Bye-laws, in its first extraordinary general body meeting held on 24.11.2011 the
society adopted the Model Bye laws with minor amendment which was approved by
2/3rd majority of the RWA in accordance with clause 58 of the Model Bye-laws. The
Deputy Registrar Societies on 8.9.2014 accepted and approved the Model Bye laws
adopted by the petitioner appellant-society along with amendments. Thereafter, the
fourth respondent Deputy Registrar by letter dated 14.1.2015 intimated the petitioner
appellant-society that the amended Bye-laws not being approved by the second
respondent Competent Authority/CEO, Greater Noida Authority, therefore, till approval
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
is received the Model Bye laws framed under the Act shall govern the petitioner
society. The petitioner appellant filed objection/reply before the Deputy Registrar, who
in turn by letter dated 19.3.2015 addressed to the CEO, Greater Noida Authority,
sought approval of the amendment proposed in the Bye laws by the petitioner
appeelant-society. In the mean time, the sixth respondent, Neelam Ahi made a
complaint on 15.9.2014 to the CEO Greater Noida Authority, on which the Nodal
Officer, Greater Noida under Act, 2010 issued an order dated 26.9.2014 and 30.9.2014
convening special meeting of RWA. Aggrieved, the petitioner appellant approached
this Court in a petition being Writ Petition No. 55792 of 2014 which was disposed of
finally on 16.10.2014 directing the second respondent, CEO, Greater Noida Authority,
to decide the objection of the petitioner appellant-society, till decision is taken the
order passed by the Nodal authority dated 26.9.2014 and 30.9.2014 be kept in
abeyance. Pursuant thereof, the CEO, Greater Noida, decided the representation by
order dated 1.4.2015 holding therein “it is upto the members to resolve their dispute,
if any, in such manner as they may prefer”. In the mean time, it is alleged that one of
the member of RWA Sandeep Kumar was constrained to file a contempt petition being
Petition No. 1673 of 2015, Sandeep Kumar v. Devesh Singh, Deputy Registrar, Firms
Societies and Chits Meerut, U.P. for violation of judgement and order dated
14.11.2013 passed in Designarch Infrastructure Pvt. Ltd. v. Vice Chairman, Ghaziabad
Development Authority in which notices were issued to the opposite party on
31.3.2015. The Deputy Registrar in the mean time passed order dated 28.4.2015
derecognising the Bye laws of the petitioner appellant-society which was earlier
recognized on 8.9.2014. Pursuant thereof, the Deputy Registrar made a reference on
11.5.2015 to the Prescribed Authority/Sub-Divisional Magistrate under Section 25(1)
of Act 1860, to which the petitioner society submitted their objection on 12.6.2015.
The Prescribed Authority by the impugned order dated 16.7.2015 observed that the
rival parties since have submitted list of members being 258 and 306 respectively,
their being large variance in the membership, therefore, it requires that in the
presence of the Competent Authority the general meeting be convened and the Board
of Management be constituted in a democratic process after determining the actual
numbers of the apartment owners, accordingly, it was directed that till the elections
are held, a receiver/administrator be appointed to run the affairs of the RWA. Pursuant
to order dated 16.7.2015 passed by the Prescribed Authority/Sub-Divisional
Magistrate, Sadar, Greater Noida, by order dated 29.7.2015 appointed an
Administrator, who in turn, by order dated 30.7.2015 stayed the election of the
petitioner appellant-society scheduled to be held on 1.8.2015.
4. The order dated 29.7.2015 and consequent order dated 30.7.2015 impelled the
petitioners to assail the said action in writ jurisdiction.
5. Another writ petition has been filed wherein an apartment owner, Sandeep
Kumar, a member of RWA sought a direction to be issued to the respondents to
resolve the dispute between two rival Boards of Management of RWA and prayed for
the following reliefs:-
“(I) Issue a writ, order, or direction in the nature of mandamus directing
respondents no. 2 and 3 to immediately restrain the respondent no. 4 from
holding election dated 01.08.2015 as same is in violation of the order of
respondent no. 1 dated 16.07.2015.
(II) Issue a writ, order or direction in the nature of mandamus directing
Respondent no. 2 to hold election of Governing Body of respondent no. 4 under
section 25(2) of the Societies Registration Act, 1860 at an early date preferably
within 4 weeks or as this Hon'ble Court may deem fit.
(III) Issue a writ, order or direction in the nature of a mandamus directing
Respondent no. 3 to pass an order and appoint an administrator preferably
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
within 7 days as per the order dated 16.07.2015.”
6. Both the writ petitions have been taken up together and decided by common
judgment dated 16.10.2015 by learned Single Judge wherein the legality of the order
passed by the Prescribed Authority under Section 25(1) of Societies Registration Act
1860 and the consequential order of the Competent Authority, appointing receiver to
convene a general body meeting of Resident Welfare Association in order to determine
the electoral college (voters) so as to constitute legal/valid Board of Management has
not at all been gone into, on the premises that any interference with the impugned
order would perpetuate illegality, and writ petition has been disposed of with the
directions for holding of elections.
7. Issuance of such directive by learned Single Judge and various observations
made in the body of judgment, are subject matter of challenge in present Special
Appeal.
8. On the matter being taken up today, at the very outset, Sri. G.K. Singh, Senior
Advocate, assisted by Sri. Kunal Ravi Singh, Advocate, raised a preliminary objection
that special appeal in question is not at all maintainable under Chapter 8 Rule 5 of the
High Court Rules as here the dispute in question that has emanated before the learned
Single Judge was in reference to the order passed by the Prescribed Authority under
Section 25(1) of 1860 Act and Prescribed Authority under the Societies Registration
Act 1860 acts as Tribunal, then in view of the judgement of Division Bench of this
Court in the case of Jai Prakash Agarwal v. Prescribed Authority/SDM Sadar, Deoria,
1998 (4) AWC 10 and in the case of Mohd. Tabib Khan v. State of U.P., 2008 (1) ALJ
455, special appeal in question is not at all competent and maintainable before this
Court.
9. Sri. C.L. Pandey, Senior Advocate, assisted by Sri. Ashish Dubey, Advocate, has
resisted the said request by contending that in the present case special appeal has to
be entertained and has to be held competent and maintainable for the simple reason
that challenge made by him is not at all in reference of power exercised by the
Prescribed Authority under Section 25(1) of 1860 Act rather the challenge has been
made in reference to the excessive exercise of authority by the Prescribed Authority,
who has not at all been conferred with any authority to make recommendations for
appointment of Administrator or for issuing observer for holding the elections and once
the order passed by the Prescribed Authority was beyond the scope and ambit of
Section 25(1) of 1860 Act, and learned Single Judge bereft of the said order has
exercised his independent authority under Article 226 by issuing directions, then
against the order passed by the learned Single Judge special appeal has to be held to
be competent and maintainable.
10. Before we proceed to consider these arguments, we proceed to look into the
Rule 5 of Chapter VIII of the High Court Rules. Rule 5 of Chapter VIII of the Rules of
the Court, 1952 contains provision for special appeal from order passed by a learned
single Judge. Rule 5 reads as under:
“An appeal shall lie to the Court from a judgment (not being a judgment passed
in the exercise of appellate jurisdiction in respect of a decree or order made by a
Court subject to the Superintendence of the Court and not being an order made in
the exercise of revisional jurisdiction or in the exercise of its power of
Superintendence or in the exercise of criminal jurisdiction (or in the exercise of
jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of
any judgment order or award fa] of a tribunal court or statutory arbitrator made or
purported to be made in the exercise or purported exercise of jurisdiction under any
Uttar Pradesh Act or under any Central Act, with respect to any of the matters
enumerated in the State List or the Concurrent List in the Seventh Schedule to the
Constitution, or (b) of the Government or any officer or authority, made or
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
purported to be made in the exercise or purported exercise of appellate or revisional
jurisdiction under any such Act of one Judge).”
11. Rule 5 of Chapter VIII of the Rules of Court, mentioned above, is in fact
reproduction of clause 10 of the Letters Patent and not a new provision.
12. The learned single Judge hearing a writ petition under Article 226 exercises
original Jurisdiction. His order deciding the writ petition is a judgment, from which
appeal will lie before a bench of two Judges under Rule 5. However, this right of
appeal was taken away by ‘several amendments in clause 10 of the Letters Patent.
Initially, an amendment was made by U.P. High Court (Abolition of Letters Patent
Appeals. 1962 (i.e., U.P. Act No. 14 of 1962). By this amendment, appeals from the
order of the learned single Judge passed in exercise of appellate Jurisdiction or in
respect of decree or orders were abolished. In 1972, it was further amended and the
special appeals from the judgment of the learned Single Judge passed in writ petitions
against orders of Board of Revenue and Director of Consolidation were abolished. By
U.P. High Court (Abolition of Letters Patent Appeals) Amendment Act, 1975. i.e., [U.P.
Act No-31 of 1975), special appeal was abolished against orders of learned single
Judge passed in writ petitions arising out of judgment, order or award of tribunal.
Court or statutory arbitrator made or purported to be made in exercise or purported
exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act with
respect to any of the matters enumerated in the State List or the Concurrent List in
the Seventh Schedule to the Constitution and also against orders of the Government
or any Officer or authority, made or purported to be made in the exercise or purported
exercise of appellate or revisional jurisdiction under any such Act. Rule 5 of Chapter
VIII of Rules of Court in present form, is after the amendment of 1975. Therefore, the
effect of the amendment is that if the order has been passed by the learned single
Judge in a writ petition under Article 226 filed against any judgment, order or award of
Tribunal, Court or statutory arbitrator, special appeal is not maintainable on its face
value.
13. Section 25 of the Societies Registration Act. 1860 was amended by the
Societies Registration (Uttar Pradesh Amendment) Act. 1978, i.e., U.P. Act No. 13 of
1978. The statement of object and reasons of this Act-appended to the Bill reads as
under:
“It is considered necessary to empower the prescribed authority authorised to
hear dispute of elections of office-bearers of the Societies. The aforesaid election of
office bearers of a society whether it is satisfied of the commission of corrupt
practices or of improper conduct of election.”
Section 25 of the Act reads as under:
“25. Dispute regarding election of office-bearers.-(1) The prescribed authority
may, on a reference made to it by the Registrar or by at least one-fourth of the
members of a society registered in Uttar Pradesh, hear and decide in a summary
manner any doubt or dispute in respect of the election or continuance in office of an
office-bearer of such society, and may pass such orders in respect thereof as it
deems fit:
Provided that the election of an office-bearer shall be set aside where the
prescribed authority is satisfied-
(a) that any corrupt practice has been committed by such office bearer; or
(b) that the nomination of any candidate has been Improperly rejected; or
(c) that the result of the election in so far it concerns such office-bearer has
been materially affected by the improper acceptance of any nomination or by
the Improper reception, refusal or rejection of any vote or the reception of any
vote which is void or by any non-compliance with the provisions of any rules
of the society.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
Explanation I-A person shall be deemed to have committed a corrupt practice

who, directly or indirectly, by himself or by any other person-
(i) includes, or attempts to induce, by fraud intentional misrepresentation,
coercion or threat of injury, any elector to give or to refrain from giving a vote
in favour of any candidate, or any person to stand or not to stand as, or to
withdraw or not withdraw from being a candidate at the election;
(ii) with a view to inducting any elector to give or to refrain from giving a vote in
favour of any candidate, or to inducing any person to stand or not to stand as,
or to withdraw or not to withdraw from being, a candidate at the election,
offers or gives any money, or valuable consideration, or any place of
employment, or holds out any promise of individual advantage or profit to any
person;
(iii) abates (within the meaning of the Penal Code, 1860) the doing of any of the
acts specified in clauses (i) and (ii);
(iv) induces or attempts to induce a candidate or elector to believe that he, or
any person in whom he is Interested, will become or will be rendered an
object of divine displeasure or spiritual censure;
(v) canvasses on grounds of caste, community, sect or religion;
(vi) commits such other practice as the State Government may prescribe to be a
corrupt practice.
Explanation II-A ‘promise of individual advantage or profit to a person’ includes
a promise for the benefit of the person himself, or of any one in whom he is
interested.
Explanation III-The State Government may prescribe the procedure for hearing
and decision of doubts or disputes in respect of such elections and making provision
in respect of any other matter relating to such elections for which insufficient
provision exists in this Act or in the rules of the society.
(2) Where by an order made under sub-section (1), an election is set aside or an
office-bearer is held no longer entitled to continue in office or where the Registrar is
satisfied that any election of office-bearers of a society has not been held within the
time specified in the rules of that society, he may call meeting of the general body
of such society for election such office-bearer or office-bearers, and such meeting
shall be presided over and be conducted by the Registrar or by any officer
authorised by him in this behalf, and the provisions in the rules of the society
relating to meeting and elections shall apply to such meeting and election with
necessary modifications.
(3) Where a meeting is called by the Registrar under subsection (2). no other
meeting shall be called for the purpose of election by any other authority or by any
person claiming to be an office-bearer of the society.
Explanation-For the purposes of this section, the expression ‘prescribed
authority’ means an officer or Court authorised in this behalf by the State
Government by notification published in the official Gazette.”
14. Considering the object and reasons mentioned above and from the close look of
the provisions contained in Section 25 of the Act, the legislative intent is clear that it
was to provide a forum for deciding the dispute in respect of election or continuance in
office of office-bearers of a society. Section provides for grounds on which the election
of office-bearers can be set aside by the prescribed authority. Explanations I and II
provide when a person shall be deemed to have committed corrupt practices.
Explanation III confers authority on the State Government to prescribe the procedure
for hearing and decision of doubts or disputes in respect of such elections and make
provisions in respect of any other matter relating to such elections for which
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
insufficient provision exists in the Act or in the rules of the society. Explanation to
Section 25 further provides that for the purpose of this section, the expression
‘prescribed authority’ means an officer or Court authorised in this behalf by the State
Government by notification published in the official Gazette. Thus, if authorised by the
State Government by notification published in the official Gazette, the officer or the
Court shall be prescribed authority for purpose of the Act. The State Government by
notification dated October, 28, 1975, published in U.P. Gazette. Extra, dated 28th
October, 1975 has authorised the Sub-Divisional Magistrate as prescribed authority.
The notification reads as under:
“In exercise of the powers under the Explanation to Section 25 of the Societies
Registration Act, 1860 (Act No. 21 of 1860), as amended in its application to Uttar
Pradesh by the Societies Registration (Uttar Pradesh Amendment) Act, 1975 (U.P.
Act No. 52 of 1975), the Governor is pleased to authorise the Sub-Divisional
Magistrates within their respective jurisdiction to act as the ‘prescribed authority’
for the purposes of the said section of the said Act.”
15. Sub-Divisional Magistrate is thus Prescribed Authority.
16. A Division Bench of this Court in the case of Jai Prakash Agarwal (supra) has
taken the view that Prescribed Authority at the point of time when it proceeds to
exercise the authority under Section 25(1) of 1860 Act i.e. while deciding dispute
regarding election of office-bearer it acts as a Tribunal. This preposition being sound
preposition cannot be questioned or doubted by us and specially in the backdrop of
judicial discipline, as the said judgment has been delivered by a co-ordinate Bench of
this Court and nothing special has been pointed out before us to take a different or
contrary view. View to the similar effect has been taken by another Division Bench of
this Court in the case of Mohd. Tabib Khan (supra) wherein mention has been made
that the order passed by the Prescribed Authority passed under Section 25(1) of 1860
Act attains finality and the said order in respect of the right of the office-bearer of the
society is final and conclusive in so far as the 1860 Act is concerned. The said
judgment added few more reasons to arrive at same conclusion but in pith and
substance followed the ratio of the case as laid down in Jai Prakash Agarwal (supra).
Thus the inevitable conclusion is that when the Prescribed Authority proceeds to take
decision within the parameters of the provisions as contained under Section 25(1) of
1860 Act i.e. when the Prescribed Authority proceeds to decide the dispute regarding
the elections of office-bearer in a summary manner including doubt or dispute in
respect of the election or continuance in office of an office-bearer of such society and
passes such orders in respect thereof as it deems fit, then till the said point of time
the Prescribed Authority has to be accepted as Tribunal and to that extent qua the
exercise of authority, once learned Single Judge has refused to interfere/intervene with
the order passed by the Prescribed Authority, then the Special Appeal to that extent
cannot be held to be maintainable.
17. The issue is that when the learned Single Judge, as per the facts of the case, on
his own has proceeded to pass an order and proceeded to issue directives that was
actually not the subject matter of order passed by Prescribed Authority but the
directives were required in the ends of justice as per the wisdom of learned Single
Judge by exercising authority under Article 226 as against the said directive Special
Appeal would be maintainable or not?
18. Recently Apex Court in the case of Sri. Jogendrasinghji Vijaising Ji v. State of
Gujarat, Civil Appeal No. 2374 of 2015, decided on 6.7.2015 has cleared the misgiving
on the maintainability of Letters Patent Appeal by mentioning that maintainability
would depend upon the pleadings in writ petition, the nature and character of order
passed by learned Single Judge, the type of directions issued regard being had to the
jurisdictional perspectives in the constitutional context.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
19. Here tested on said parameters, what we find from the record is that learned
Single Judge has not at all gone into the question of validity of the order passed by
the Prescribed Authority and contrarily in exercise of authority under Article 226 of
Constitution directives have been issued. The nature of the order/directive issued by
learned Single Judge has no concern or connection with the validity of order passed by
the Prescribed Authority and independent of order passed by Prescribed Authority,
such directive has been issued, then said directive, in the facts of the case, has to be
accepted as exercise of authority by learned Single Judge in his original jurisdiction.
20. In view of this, looking to the nature and character of directive issued by
learned Single Judge and the fact that he has exercised his original jurisdiction, the
Special Appeal in question to that extent where the learned Single Judge has
proceeded to issue directives, that were not at all part of the order of Prescribed
Authority is held to be maintainable.
21. Sri. C.L. Pandey, Senior Advocate, has next contended that in the present case
learned Single Judge has went out of way to issue directives and such a directives
ought not to have been issued by him.
22. Sri. G.K. Singh, Senior Advocate, on the other hand, has contended that
learned Single Judge, in the present case, on the basis of pleadings available on
record, has issued rightful directives and once in order to settle the matter in
consonance with the provisions of the Act and the Rules such a directive has been
issued, that was demand of the moment, then no interference should be made.
23. In order to appreciate the respective arguments, as already noted in the earlier
part of the judgment, the provisions of the U.P. Apartment (Promotion of Construction,
Ownership & Maintenance) Act, 2010 (in short the U.P. Apartment Act, 2010) was
enacted by the State Legislature 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; to make such apartment and interest heritable and
transferable, and for matters connected therewith or incidental thereto.
24. The U.P. Apartment Act, 2010 provides for an association of apartment owners
and bye-laws for the registration of the affairs of such association, for administration of
the affairs in relation to the apartments and the property appertaining thereto and for
the management of common areas and facilities. Sub-section (2) of Section 14 enjoins
joint responsibility of the promoter and apartment owners to form an association. The
responsibility of getting the association registered has been given to the promoter to
get the association registered, when such number of apartments have been handed
over to the owners, which is necessary to form an association or 33% of the
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 local authorities. Sub-section (3) of Section 14 places an
obligation upon a prospective apartment owner to become member of the association
within four weeks of receipt of the written intimation about the formation of such
association. On formation of the association of the apartment owners under sub-
section (2), sub-section (5) provides that the management of the affairs of the
apartment regarding their common areas and facilities shall be deemed to be
transferred from the promoter to the Association which shall thereupon maintain
them; provided that till all the apartments are sold or transferred, the promoter shall
proportionately share the maintenance cost of common areas and facilities. The model
bye-laws made by the State Government and notified in the gazette under sub-section
(6) of Section 14, which provide for (a) the manner in which the Association of
Apartment Owners is to be formed; (b) the election, from among apartment owners, of
a Board of Management by the members of the Association of Apartment Owners; (c)
the number of apartment owners constituting the Board, the composition of the Board
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
and that one-third of members of the Board shall retire annually etc. include in (j)
election of a President of the Association of Apartment Owners from amongst the
apartment owners, who shall preside over the meeting of the Board and of the
Association of Apartment Owners and of Secretary under (i) to be the ex-officio
member of the Board to be keeper of the minute books, provided in sub-section (7)
and other provisions of bye-laws under subsection (8) provide for a uniform and
standard bye-laws, which have been notified as model bye-laws under sub-section (6)
of Section 14 vide Notification No. 3977/8-1-11-115 D.A./02-TC-1 dated 16.11.2011.
The amendment to the bye-laws can be made by the association as per Bye-Law no.
58 in a duly constituted meeting for such purpose and no amendment is to take effect
unless approved by the owners representing at least 2/3rd of the total number of units
in the building with the prior approval of the competent authority.
25. The U.P. Apartment Act, 2010 and the U.P. Apartment (Promotion of
Construction, Ownership and Maintenance) Rules, 2011 (The Rules of 2011) notified
on 16.11.2011 provide for a complete code for regulating the rights, duties and
liabilities of the promoters and apartment owners. The formation of an association,
resolution of disputes, offences and penalties with the ultimate control vested in the
State Government under Section 27 of the Act. The Act has been given overriding
effect under Section 31 notwithstanding anything inconsistent therewith contained in
any other law for the time being enforced. Section 29 provides for removal of doubts
that the provisions of the Transfer of Property Act, 1882 shall in so far as they are not
inconsistent with the provisions of the Act apply to the transfer of any apartment,
together with its undivided interest in the common areas and facilities appertaining
thereto made by the owner of such apartment, whether such transfer is made by sale,
lease, mortgage, exchange, gift or otherwise as they apply to the transfer of any
immovable property. Section 28 exempts the application of Section 25 and 26 of the
Act relating to offences and offences of companies, if the promoter is local authority, or
any other statutory body constituted for the development of land or housing or a
company or a body wholly owned or controlled by the Government created for the
development of land or housing or promotion of industry and in such case no suit,
prosecution or legal proceedings shall lie against government or any officer or other
employee of the government in respect of anything which is in good faith done or
intended to be done by or under the Act, with further power under Section 32 to
exempt if the government is of the opinion that the operation of any provisions of the
Act cause any undue hardship, by a general or special order, any class of person or
areas from the provisions of the Act.
26. The U.P. Apartment Act, 2010 and the Rules of 2011 have taken care of every
detail for providing ownership of an individual apartment, undivided interest in the
common areas and facilities, the delineation of common areas and facilities to be
provided in the declaration, formation of association and the rights, duties and
liabilities of the promoter and apartment owners. Rule 3 of the U.P. Apartment Rules,
2011 provides for formation of declaration under sub-section (1) of Section 12. The
declaration shall be submitted by the promoter under sub-section (1) of Section 12 in
Form-A appended to the Rules within a period of 12 months from the date of approval
of the plans. Where the building has been constructed or is under construction prior to
the commencement of these Rules declaration shall be submitted within 90 days.
27. The ‘competent authority’ under Rule 2(c) of the Rules of 2011 means Vice
Chairman of the Development Authority in whose development area the building is
situated or Collector of the district, where no such development authority exists.
Though we find that no specific power has been given to the competent authority to
decide any dispute between the apartment owners and promoters or the apartment
owners inter-se, the provisions of the Act namely the prior permission of the
competent authority under sub-section (4) of Section 25 in case of any complaint for
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
any offences for the Court to take cognizance, the obligation of the competent
authority under sub-section (1) of Section 27 to carry out such directions as may be
issued to it from time to time; the lodgment of the declaration with the competent
authority under Section 12(1) and any amendment and the resolution of disputes on
such amendment under rule 4(4) of the U.P. Apartment Rules, 2011, clearly enjoins
that if a dispute or disputes is not resolved between the disputants in the meeting of
the association of apartment owners of which promoter is necessary member under
sub-section (2) of Section 14, the dispute has to be first raised before the competent
authority and thereafter to be raised before the State Government under sub-section
(3) of Section 27 of the Act, which has control and is accountable for the efficient
implementation of the Act and the powers of removal of doubts and removal of
difficulties under Section 29 and 33 of the Act.
28. The Act has thought it proper to provide for a compulsory formation of an
association of apartment owners, by way of a society for administering affairs in
relation to the apartment and properties appertaining thereto and for the management
of common areas and facilities.
29. The Act and the Rules do not provide for the authority with whom the
association of apartment owners will be registered. The model bye-laws notified by the
State Government on 16.11.2011, however, provide in the definition clause that the
Registrar means the Registrar under the provisions of the Societies Registration Act.
On the formation of the association of which obligation has been entrusted on the
promoter under sub-section (2) of Section 14, the association shall make its bye-laws
at its first meeting, which is also obligatory for every society under the Societies
Registration Act. The Model bye-laws made in sub-section (6) of Section 14 provide
that every association of apartment owners shall make its bye-laws at its first meeting
for the administration of the affairs in relation to apartment and properties
appertaining thereto. By its own name, the Model Bye-laws means that these bye-laws
has to be adopted by every association of apartment owners, which can be amended
under Bye-Law 58 of the Model bye-laws by the association in a duly constituted
meeting for such purpose and that no amendment shall take effect unless approved by
owners representing at least 2/3 of the total number of units in the building with the
prior approval of the competent authority, which has been defined under Rule 2(c) of
the U.P. Apartment Rules, 2011. By such approval being granted to a valid resolution
for amendment of bye-laws by the owners representing at least 2/3rd of the total
number of units in the building in the special meeting constituted for such purpose the
amendment shall be carried out by the Registrar of Societies. It goes without saying
that such amendment has to be in consonance with the U.P. Apartment Act, 2010 and
the U.P. Apartment Rules, 2011.
30. Though the apartment owner has been defined to mean; ‘a person or persons
owning an apartment or promoter or his nominee in case of unsold apartment’, since
there is no restriction on the occupation of the apartment by members of any joint
family, which has been defined under Section 2(q) and by the family members of the
apartment owner as well as lawful tenant or lawful occupant, who may be authorized
by the society/firm/company or any validly recognized association of persons, such
lawful occupation will also be included within the meaning of the apartment owner
both for the purposes of enjoying rights and obligations and corresponding general
liabilities of the promoter, but also for the purposes of becoming members of the
association of apartment owners. In case of any dispute on the validity of his
membership, it has to be first resolved by the members of the association in an annual
meeting or special meeting of the association and in case of any further dispute by the
Competent Authority under Rule 2(c) of the U.P. Apartment Rules, 2011 and thereafter
before the State Government before it is raised before any Court of law.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
31. After the enforcement of the U.P. Apartment Act, 2010 no builder, promoter can
resist/or delay the formation of association of apartment owners under Section 14 of
the Act. If the promoter does not get the association registered, the apartment owners
can get such association registered after a notice giving reasonable period to the
promoter, say a month, and to adopting model bye-laws, if they have not adopted
earlier. In such case the Registrar of Societies shall not refuse the registration of the
association of the apartment owners. The promoter, however, has to be made a
member as he is jointly responsible with the apartment owners to form an association.
Even if he does not get the association registered and does not join or his authorised
agents and subscribe to be a member of the association, he will be deemed to be
member of the association for the purposes of enforcement of the Act as the promoter
being the member of the association has duties and liabilities under the Act to be
enforced.
32. Before this Court, in bunch of writ petition, Designarch Infrastructure Pvt. Ltd.
v. Vice Chairman, GDA, 2013 (9) ADJ 594 (DB), the provisions of U.P. Apartment Act
2010 and Rules 2011 have been considered in extenso and conclusions have been
drawn that they provide for complete code for regulating the right, duties and
liabilities of the promoters and apartment owners. The formation of association,
resolution of disputes, offences and penalties with the ultimate control vested in the
State Government under Section 27 of the Act. The Act has been given overriding
effect under Section 31. Specific mention has been made that after enforcement of
U.P. Act 2010 no builder, promoter can resist or delay the formation of association
under Section 14 of the Act. At item No. 13 of the directive finally insistence has been
made for adoption of Model By-laws.
33. A Division Bench of this Court once again in the case of Grand Omaxe
Apartment Owners Association v. New Okhla Industrial Development Authority, Writ
Petition No. 39150 of 2015, decided on 5.8.2015, has dealt with the provisions that
has been noted by us also on the same lines as earlier Division Bench has did, and in
the said Division Bench judgment observation has been made to the effect that
registration certificate issued by Deputy Registrar without registering the by-laws is of
no consequence, and thus there is no registered society. Division Bench of this Court
in the said writ petition, in addition to the same, has given following directives;
“1. The Chief Executive Officer, NOIDA or any officer authorised by him not below
the rank of Joint Secretary, NOIDA authority shall call for a meeting of the
apartment owners and the promoters on a date, time and place to be fixed by
him for the purposes of forming an association of the apartment owners.
2. The election/constitution of the Board of Management as provided under the Act
and Rules shall be held in the said meeting by the apartment owners under the
supervision of the competent authority or the officer nominated by him in this
behalf.
3. The association so formed in the said meeting after adopting the model bye-laws
shall make an application before the concerned Joint Registrar for registration
and the society so formed, with the elected office bearers, shall be registered
along with bye-laws adopted.
4. After the association is registered, the Chief Executive Officer shall proceed to
consider granting recognition to said association.
5. It shall be open to the association, so formed registered and recognised, to
amend the bye-laws as provided under Bye-law no. 58 of the model bye-laws in
a duly constituted meeting in such manner as provided under the Rules and
model bye-laws.
In the facts and circumstances of the case, there shall be no order as to
costs.”
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
34. In the present case the factual situation, that is so emerging, that Resident
Welfare Association has been a registered society under 1860 Act on 28.9.2010 i.e.
after the enforcement of the provisions of U.P. Apartment (Promotion of Construction,
Ownership and Maintenance) Act, 2010. Subsequent to the same Model By-laws has
been enforced and each and every society is mandatorily required to incorporate the
model By-laws and it appears that in this direction a resolution was presented before
the Deputy Registrar, Firms, Societies & Chits, Meerut with minor amendments, which
was alleged to be adopted by 2/3rd majority of the RWA and said amendments have
been accepted by the said authority on 8.9.2014 and, thereafter, complaint had been
made that without there being any resolution by valid members of the General Body,
said resolution has been presented and, then, thereafter, Deputy Registrar, Firms,
Societies & Chits, Meerut inquired the matter and proceeded to cancel the order dated
8.9.2014 vide order dated 28.4.2015. The said order in question, this is accepted
position, has not at all been questioned and has been permitted to attain finality. Once
such is the factual situation, that is so emerging, that at no point of time the By-laws
of the society in question has been brought in line with the model Bylaws, as is
required under the 2010 Act and the said amendment in question has been turned
down on 28.4.2015, and the election of both the sides has been set at nought, then
certainly consequential exercise was required to be undertaken strictly in consonance
with the provisions, as contained under 2010 Act and the Rules framed thereunder.
35. The learned Single Judge, in the present case, has proceeded to record a
categorical finding that no meeting of the general body of RWA was ever convened to
adopt the Model Bye-laws and the alleged amendment of the model Bye-laws had
never taken place, as there being no resolution of 2/3rd members approving the
amendment and there has been no prior approval of the Competent Authority
approving the amendment and mention has also been made that cancellation of the
registration and the bye-laws of the petitioner appellant-society by the Deputy
Registrar makes the petitioner appellant-society a non entity and by stop-gap
arrangement RWA has been directed by the Deputy Registrar to function as per the
Model Bye-laws until adopted by the general body. The learned Single Judge, in the
facts of the case, has chosen not to go into the question of the validity of the order
passed under Section 25(1) of 1860 Act by the Prescribed Authority and the
consequential order of the Competent Authority appointing a receiver to convene a
general body of the RWA and has proceeded to mention that Board of Management
under the model By-laws is yet to be constituted and proceeded to not to interfere in
the matter and proceeded to dispose of the writ petition with the following directives;
i. The Chief Executive Officer, Greater NOIDA or any officer authorised by him not
below the rank of Joint Secretary, NOIDA shall call a meeting of the apartment
owners and the promoters on a date, time and place to be fixed by him for the
purpose of forming an association of the apartment owners;
ii. The association so formed in the said meeting after adopting the Model Bye-laws
shall make an application before the concerned Registrar for registration and the
association so formed, with the elected office bearers, shall be registered along
with bye-laws adopted;
iii. After the association is registered, the Chief Executive Officer shall proceed to
consider granting recognition to said association;
iv. The election/constitution of the Board of Management as provided under the Act
and Rules shall be held in the said meeting by the apartment owners under the
supervision of the competent authority or the officer nominated by him in this
behalf;
v. The electoral roll shall be prepared strictly in accordance with Section 12(1)(f),
Rule 3, Form “A” read with Annexure “B” appended to Rule 3 and Bye-laws 8 of
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
the Model Bye-laws in a meeting of the Association;
vi. The apartment owners shall be permitted to deposit interest/fee of Rs. 1000/-
within a stipulated time, if already not deposited earlier;
vii. The voter list of eligible members, thereafter, shall be prepared in accordance
with the Act, 2010 and Rule 2011 and Model Bye-Laws;
viii. The Election Officer, thereafter shall proceed to hold the elections as per the
Election Schedule without questioning or entertaining any objections to the
validity of the voter list prepared hereinabove;
ix. The Board of Management constituted upon elections shall be handed over
charge of the Association (RWA);
x. The Competent Authority, as well as, the District Authorities shall ensure that no
outsider or external bodies, including associations shall be permitted to interfere
in the election of the Association;
xi. Senior Superintendent of Police, Gautam Budh Nagar shall provide requisite
police force, if necessary, on the request of the CEO, Greater Noida.
36. In our considered opinion, in the facts of the case, directive issued by learned
Single Judge on admitted facts cannot be faulted but for the fact that as far as the
society in question is concerned, the society cannot be said to be a defunct body and
at the best when amendment dated 8.9.2014 has been cancelled on 28.4.2015, the
net effect of the same would be that the society would be there with old By-laws that
were in existence prior to 16.11.2011, the date when model by-laws have been framed
by the Governor in exercise of powers under Sub-section 6 of Section 14 of U.P.
Apartment (Promotion of Construction, Ownership and Maintenance) Act 2010. The
provisions of U.P. Apartment (Promotion of Construction, Ownership and Maintenance)
Act 2010, Sub-section (1) of Section 31 clearly provides that the provisions of Act
2010 shall have effect, notwithstanding any thing inconsistent therewith contained in
any law for the time being in force. Sub-section (2) of Section 31 also provides that
save as expressly provided in Sub-section (1) the provisions of this Act, shall be in
addition to, and not in derogation of any other law for the time being in force. Once
Model By-laws have been enforced w.e.f. 16.11.2011, then the societies that are
registered under 1860 Act prior to it their By-laws will have to fall in line, in
consonance with the provisions of 2010 Act, Rules and the Model By-laws on account
of overriding effect of the provisions of 2010 Act and the mandate that after
enforcement of Model By-laws, in the first meeting it has to be acted upon. The society
in question is mandated to make by-laws of the society, on the lines of model By-laws,
in view of this as far as observation, that has been so made that cancellation of the
registration and the bye-laws of the petitioner appellant-society by the Deputy
Registrar makes the petitioner appellant-society a non entity under the provisions of
Societies Registration Act 1860, cannot be approved of by us and in our considered
opinion once the society in question has been registered under Societies Registration
Act 1860 and there is renewal of the society then it cannot be declared to be non
entity merely because the amendments, that have been so proposed, have been
turned down, in view of this, the observation, that has been so made that there is
cancellation of registration of society in question, is an incorrect presumption but
certainly for the purposes of 2010 Act and the Rules framed thereunder, Managing
Committee of Society cannot be, ipso facto, accepted as duly recognized Managing
Committee of association of all apartment owners.
37. Learned Single Judge by issuing directives has only tried to see and ensure that
law prevails in free/fair/transparent manner and nothing beyond the same.
38. Consequently, in the facts of the case, as far as Special Appeal is concerned,
same is being disposed of by mentioning that as far as society in question is
concerned, the society in question cannot be said to have become a non entity for the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
reasons already indicated above and the CEO of Greater Noida or any officer authorised
by him not below the rank of Joint Secretary, Noida as per the order/directive of
learned Single Judge shall call a meeting of the apartment owners and the promoters
on a date, time and place to be fixed by him for the purpose of amending the By-laws
of the society and brining the same in line with the model Bylaws and after the said
exercise is undertaken then the papers in question should be transmitted to the
Deputy Registrar, who shall scrutinize the amendments in question to the effect that
the same has been validly carried out and, thereafter, the CEO, Greater Noida shall
proceed to consider the matter of elections and constitution of Board of Management,
as provided under the Act; Rules and By-laws and electoral roll shall be prepared
strictly in accordance with Section 12(1)(f), Rule 3, Form “A” read with Annexure “B”
appended to Rule 3 and Bye-laws 8 of the model Bye-laws in a meeting of the
Association. The apartment owners, who are valid members in accordance with 2010
Act, Rules 2011 and Model By-laws, should be permitted to participate in the elections
and Election Officer should proceed to hold the election as per schedule, so fixed.
39. With these observations, present special appeal is disposed of.
———
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.

J 2015 SCC OnLine All 5998 Sjmathews Gmailcom 20210319 225643 1 1

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

J 2015 SCC OnLine All 5998 Sjmathews Gmailcom 20210319 225643 1 1

Uploaded by

Copyright:

Available Formats

SCC Online Web Edition, Copyright © 2021

Page 1 Friday, March 19, 2021

Special Appeal No. - 815 of 2015

Resident Welfare Association v. State of U.P.

2015 SCC OnLine All 5998

In the High Court of Allahabad

Resident Welfare Association (Regd.) Through its Secretary .….

Explanation I-A person shall be deemed to have committed a corrupt practice

You might also like