Karnataka High Court
Mr.Sunil Babu J.B vs State Of Karnataka on 3 November, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
WP No. 11833 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 11833 OF 2022 (GM-KSR)
BETWEEN:
MR.SUNIL BABU J.B.,
S/O MR.JANARDHANA BABU
AGED ABOUT 36 YEARS
RESIDING AT B-006
HOYSALA COMMANDERS
RETREAT APARTMENT
BADRAPPA LAYOUT
KODIGEHALLI POST
6TH CROSS END, BENGALURU - 560 094.
...PETITIONER
(BY SRI. SAMEER SHARMA., ADVOCATE)
AND:
1. STATE OF KARNATAKA
Digitally signed by REPRESENTED BY THE REGISTRAR
PADMAVATHI B K
Location: HIGH DEPARTMENT OF CO-OPERATIVE SOCIETIES
COURT OF
KARNATAKA NO.1, ALI ASKER ROAD
BENGALURU - 560 052.
2. DEPUTY REGISTRAR OF
CO-OPERATIVE SOCIETIES
ZONE 1, 2ND FLOOR
SAHAKARA SOUDHA, NO.146
8TH CROSS, 3RD MAIN ROAD
MARGOSA ROAD
-2-
WP No. 11833 of 2022
MALLESHWARAM
BENGALURU - 560 003.
3. THE DISTRICT REGISTRAR
OFFICE OF THE REGISTRAR OF SOCIETIES
ZONE 1, 2ND FLOOR
SAHAKARA SOUDHA, NO.146
8TH CROSS, 3RD MAIN ROAD
MARGOSA ROAD
MALLESHWARAMA
BENGALURU - 560 003.
4. HOYSALA COMMANDERS RETREAT
APARTMENT OWNERS WELFARE ASSOCIATION
NO.1524, 6TH CROSS END
BHADRAPPA LAYOUT
BENGALURU - 560 094
RERPESENTED BY ITS PRESIDENT.
A SOCIETY REGISTERED UNDER KARNATAKA
SOCIETIES REGISTRATION ACT, 1960.
...RESPONDENTS
(BY SMT.RASHMI PATEL, HCGP FOR R1 TO R3;
SRI.PRAVEEN KAMATH., ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR THE RECORDS FROM R-1 AND 3 RELATING TO THE
REGISTRATION OF THE R-4 UNDER THE PROVISIONS OF THE
KARNATAKA SOCIETIES REGISTRATION ACT 1960; QUASH
THE CERTIFICATE OF REGISTRATION BEARING NO.DRB-
N/SOR/239/2012-13 DTD.9.8.2012 ISSUED BY THE R-3 IN
FAVOUR OF R-4 ANNEXURE-A BY WAY OF WHICH R-4 HAS
BEEN GRANTED REGISTRATION AS A SOCEITY UNDER THE
PROVISIONS OF THE KARNATAKA SOCEITIES REGISTRATION
ACT 1960.
-3-
WP No. 11833 of 2022
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question the registration of the 4th respondent - Hoysala Commanders Retreat Apartment Owners Welfare Association under the Karnataka Societies Registration Act, 1960 and the consequent act of the 4th respondent collecting maintenance charges from all the owners of the apartment in the apartment complex.
2. Heard Sri.Sameer Sharma, learned counsel appearing for petitioner, Smt.Rashmi Patel, learned High Court Government Pleader appearing for respondents 1 to 3 and Sri.Praveen Kamath, learned counsel appearing for respondent No.4.
3. Brief facts that lead the petitioner to this Court in the subject petition as borne out from the pleadings are:
-4- WP No. 11833 of 2022The petitioner is a resident of Hoysala Commanders Retreat Apartment and has knocked the doors of this Court on the ground that the 4th respondent - Welfare Association of the Apartment Owners have no right to collect any maintenance as they are not the owners registered under the 1972 Act and are the owners registered under the Karnataka Societies Registration Act, 1960.
4. Learned counsel for petitioner would submit that the very issue is considered by the Division Bench of this Court in W.A.No.974/2019 and connected cases in the case of VDB Celadon Apartment Owners Association v. Praveen Prakash and others. He would seek the same relief as is granted by the Division Bench.
5. Learned counsel appearing for the 4th respondent would however contend that the petitioner has filed a complaint before the 2nd respondent and is now seeking a dual remedy by knocking the doors of this Court on the same cause of action and would submit that remedy of appeal being available, this -5- WP No. 11833 of 2022 Court would not interfere by exercising its discretion under Article 226 and 227 of the Constitution of India.
6. The submission of the learned counsel for the 4th respondent though would become acceptable in the first blush, the fact remains that the identical issue being decided by the Division Bench in W.A.No.974/2019 and connected cases wherein the Division Bench has held as follows:
"1. The appellant is a Society registered under the Karnataka Societies Registration Act, 1960 (for short, 'the said Act of 1960'). By the impugned order passed in a petition filed by the first to seventh respondents, the learned Single Judge has proceeded to cancel the registration of the appellant Society under the provisions of the said Act of 1960.
2. It is the case of the appellant that M/s Value Design Private Limited, a builder and developer, constructed the apartment complex consisting of six blocks having 196 flats. The complex has various facilities such as swimming pool, club house, gymnasium, indoor game halls, parking space, walking track, etc. The case of the appellant is that no steps have been taken to form an Association of apartment owners by the developer under the provisions of the Karnataka Apartments Ownership Act, 1972 (for short, 'the said Act of 1972').-6- WP No. 11833 of 2022
3. The case made out by the appellant is that in terms of the said Act of 1972, deeds of declaration by the owners were prepared. However, an Association of apartment owners as contemplated by the said Act of 1972 was not registered and therefore, a majority of the apartment owners came together and formed the appellant Association in order to maintain the residential complex and to give services to the owners of the apartments.
4. The submission of the learned counsel appearing for the appellant is that the objects of the appellant Association will fall in the categories covered by Section 3 of the said Act of 1960. He pointed out that the dominant purpose or object of forming the said Association is to administer, maintain and run the buildings and apartments constructed by the aforesaid developer. He submitted that in fact, the appellant has been collecting maintenance charges for maintaining the residential complex from a majority of the apartment owners, barring a few of the owners of the apartments who are opposing the appellant. He submitted that there is nothing wrong with the registration of the appellant Association under the said Act of 1960 and that if the impugned order is maintained, the members who have not paid the maintenance will go scot-free. Without prejudice to his contentions, he submitted that the first to seventh respondents must co-operate for formation of the Association as contemplated by the said Act of 1972.
5. We have given careful consideration to the submissions.-7- WP No. 11833 of 2022
6. Section 3 of the said Act of 1960 reads thus:
3. Societies to which the Act applies.-
The following societies may be registered under this Act,--
Societies established for,--
(a) the promotion of charity;
(b) the promotion of education, science, literature, or the fine arts;
(c) the promotion of sports;
(d) the instruction and the diffusion of knowledge relating to commerce or industry or of any other useful knowledge;
(e) the diffusion of political education;
(f) the foundation or maintenance of libraries or reading rooms for general use among the members or open to the public, or of public museums and galleries of painting and other works of art;
[(ff) the promotion of conservation and proper use of natural resources and scarce Infrastructural facilities like land, power, water, forest and such other resources and infrastructural facilities, as may be notified by the State Government from time to time.]
(g) the collection of natural history, mechanical and philosophical inventions Or designs and -8- WP No. 11833 of 2022 Which intend to apply their profits, if any, or other income in promoting their objects and prohibit the payment of any dividend or distribution of any income or profits among their members."
Even according to the case of the appellant, the dominant object for the formation of the appellant Association is to administer, maintain and run the building and apartments. Clauses 5.1 and 5.2 are, even according to the learned counsel for the appellant, the dominant objects of the Association, and they read thus:
5.1 To administer, maintain and run the building and apartments known as VDB Celadon No.23/3, 23/4, 26/1, Shivanahalli Hobli, Jakkur Road, Yelahanka, Bangalore -
560064.
5.2 To Carry on the Day-to-day work relating to all aspects of the building, apartments, common areas, common facilities and common services therein;
7. On a plain reading of Section 3 of the said Act of 1960, it is clear that the object of administering, maintaining and running the buildings and apartments and to carry on the day- to-day work relating to all the aspects of the buildings/apartments, common areas and common facilities will not be covered by any of the clauses (a) to (g) of Section 3 of the said Act of 1960. Even according to the case of the appellant, Clauses 5.1 and 5.2 are its dominant objects. In fact, on the earlier date, we had granted time to the appellant to take instructions whether it proposes to apply for deletion of certain objects which are a part of the bye-laws of the appellant Association.
-9- WP No. 11833 of 20228. Today, the learned counsel appearing for the appellant, on instructions, states that if the said two objects are deleted, the registration of the appellant under the said Act of 1960 cannot be maintained.
9. Thus, the main object of the appellant was to do something which could have been done by an Association formed in accordance with the provisions of the said Act of 1972. In fact, the documents of sale executed by the developer in respect of the flat/apartment contain a stipulation that the purchasers of the flats shall form an Association/Society/Condominium in accordance with the provisions of the said Act of 1972. That is how the learned Single Judge by modifying the impugned order dated 15th February, 2019, has clarified that steps can be taken to register the appellant Association under the provisions of the said Act of 1972.
10. Thus, after having perused the dominant objects of the appellant Association, we find that the said objects are not covered by Section 3 of the said Act of 1960, and therefore, the appellant could not have been registered under the said Act. We find no error in the view taken by the learned Single Judge when he had proceeded to cancel registration of the appellant.
11. As observed by the learned Single Judge, the impugned order as well as this order will not prevent the persons who are members of the appellant Association from taking steps for formation and registration of an Association/Condominium under the provisions of
- 10 -
WP No. 11833 of 2022the said Act of 1972 inasmuch as the sale deeds executed in favour of the apartment owners contemplate formation of such Association."
(Emphasis supplied) The Division Bench in the afore-quoted judgment holds that the Apartment Owners Welfare Association has no right to collect maintenance from the hands of the residents of the apartment and at the same time reserves liberty to the Association to register themselves under the Karnataka Apartment Ownership Act, 1972 ('1972 Act' for short) and then perform duties of the Welfare Association, which would necessarily include collection of maintenance from the hands of the residents. In the light of the issue standing covered by the judgment of the Division Bench, I deem it appropriate to accept the petition and obliterate the impugned action.
7. At this juncture, the learned counsel for the 4th respondent would take this Court through the proceedings pending in W.P.No.511/2021 which is filed in public interest wherein the issue of registration under the Societies Registration Act or the 1972 Act is pending and submits that
- 11 -
WP No. 11833 of 2022this Court has to await a decision in the said PIL. The submission is unacceptable. The pendency of the said PIL would not hold the hands of this Court to keep the petition pending, as it stands covered by the judgment rendered by the Division Bench in W.A.No.974/2019 (supra).
8. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) Impugned order dated 09.08.2012 passed by the 3rd respondent registering the 4th respondent under the Karnataka Societies Registration Act, 1960 stands quashed.
(iii) However, the quashment of registration will not come in the way of the 4th respondent Welfare Association getting themselves registered under the 1972 Act.
- 12 -
WP No. 11833 of 2022(iv) Learned counsel for petitioner would undertake payment of maintenance subject to registration of the 4th respondent under the 1972 Act.
Sd/-
JUDGE BKP List No.: 1 Sl No.: 53