Karnataka High Court
Mr Rekha Kannan vs State Of Karnataka on 2 May, 2025
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WP No. 27821 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF MAY, 2025
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
WRIT PETITION NO.27821 OF 2024 (CS-RES)
BETWEEN:
1. MR. REKHA KANNAN
D/O. LATE K.S. NARAYANA SWAMY,
AGED ABOUT 48 YEARS,
RESIDING AT FLAT NO.A-001,
RAMKY ONE NORTH,
DODDABALAPURA ROAD,
AVALAHALLI, YELAHANKA TALUK,
BENGALURU-560064.
2. MS. VAISHALI PANKAJ SHARMA
D/O. MR. LALSHANKAR M. PUROHIT
AGED ABOUT 47 YEARS,
RESIDING AT FLAT NO.A-1202,
RAMKY ONE NORTH,
DODDABALAPURA ROAD,
AVALAHALLI, YELAHANKA TALUK,
BENGALURU-560064.
Digitally signed by
MAHALAKSHMI B M 3. MS. CHITRA RAMANUJAN,
Location: HIGH D/O. MR. V.T. NARAYANAN,
COURT OF AGED ABOUT 62 YEARS,
KARNATAKA RESIDING AT FLAT NO.A-502,
RAMKY ONE NORTH,
DODDABALAPURA ROAD,
AVALAHALLI, YELAHANKA TALUK,
BENGALURU-560064.
4. MS. GARIMA PAUL
D/O. COL. SHIV GOVIND,
AGED ABOUT 42 YEARS,
RESIDING AT FLAT NO.A-504,
RAMKY ONE NORTH,
DODDABALAPURA ROAD,
AVALAHALLI, YELAHANKA TALUK,
BENGALURU-560064.
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WP No. 27821 of 2024
5. MS. SREELAXMI JEERIGANUR
D/O. MR. BASAVARAJAPPA,
AGED ABOUT 44 YEARS,
RESIDING AT FLAT NO.A-1103,
RAMKY ONE NORTH,
DODDABALAPURA ROAD,
AVALAHALLI, YELAHANKA TALUK,
BENGALURU-560064.
... PETITIONERS
(BY SMT. BEENA P.K., ADVOCATE)
AND:
1. STATE OF KARNATAKA
REP. BY ITS SECRETARY,
DEPARTMENT OF CO-OPERATIVE SOCIETIES,
VIKASA SOUDHA, AMBEDKAR VEEDHI,
BENGALURU-560 001.
2. THE DEPUTY REGISTRAR OF
CO-OPERATIVE SOCIETIES &
APPELLATE AUTHORITY,
III ZONE, BANGALORE URBAN DISTRICT,
"SAHAKARA SOUDHA", 1ST FLOOR,
3RD MAIN, 8TH CROSS,
MARGOSA ROAD, MALLESHWARAM,
BENGALURU-560003.
3. ASSISTANT REGISTRAR OF
CO-OPERATIVE SOCIETIES,
OFFICE OF THE ASSISTANT REGISTRAR,
CO-OPERATIVE SOCIETIES,
2ND FLOOR, MARGOSA ROAD,
8TH CROSS ROAD, 3RD ZONE,
MALLESHWARAM, BENGALURU-560003.
4. RAMKY ONE NORTH APARTMENT
OWNERS CO-OPERATIVE SOCIETY,
CO-OPERATIVE SOCIETY REGISTERED
UNDER THE KARNATAKA
CO-OPERATIVE SOCIETIES ACT, 1959
HAVING OFFICE AT
RAMKY ONE NORTH,
DODDABALAPURA ROAD,
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WP No. 27821 of 2024
AVALAHALLI VILLAGE, YELAHANKA HOBLI,
BENGALURU-560064.
REPRESENTED BY ITS
CHIEF PROMOTER.
5. RAMKY ESTATE & FARMS LIMITED
COMPANY REGISTERED UNDER
THE COMPANIES ACT, 1956
REPRESENTED BY ITS CHAIRMAN,
HAVING ITS OFFICE AT
9TH FLOOR, RAMKY GRANDIOSE,
RAMKY TOWERS COMPLEX,
GACHIBOWLI, HYDERABAD,
TELANGANA-500032.
ALSO AT NO.25-30, RAMKY HOUSE
2ND CROSS, RAGHAVENDRA NAGAR,
KALYAN NAGAR,
BENGALURU-560043.
... RESPONDENTS
(BY SRI B.S. GURUSWAMY, AGA FOR R-1 TO R-3;
DR. SUJATHA V. DURGEKAR, ADVOCATE FOR R-4;
SRI PRAMOD NAIR, SENIOR COUNSEL APPEARING FOR
SRI MUDIT MUNDKAR, ADVOCATE FOR R-5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECTING THE
RESPONDENT NO.2 DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETY
TO CONSIDER THE REPRESENTATION LETTER DATED 06.09.2024
ANNEXURE-A; QUASH THE IMPUGNED ORDER OF REGISTRATION OF
THE RESPONDENT NO.4 BEARING REGISTRATION CERTIFICATE
NO.ARB-44/REGN/21/54506/2023-24 DATED 19.10.2023 ISSUED BY
THE RESPONDENT NO.2 ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETY ANNEXURE-D AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 14/03/2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
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WP No. 27821 of 2024
CAV O R D E R
Petitioners are seeking a writ of mandamus directing
respondent No.2-Deputy Registrar of Co-Operative
Societies (DRCS) to consider the representation dated
06.09.2024 at Annexure-A, to quash the impugned order
of Registration of respondent No.4-Ramky One North
Apartment Owners Co-Operative Society (hereinafter
referred to as 'the society' for short) and for further
reliefs.
2. Facts given rise to filing of this petition briefly
stated are that:
Petitioners are owners of the apartment units in
"Ramky One North" a residential complex situated at
Avalahalli Village, Yelahanka Taluk, Bengaluru North
having purchased from respondent No.5-Builder.
Respondent No.4-Society formed by few of the Apartment
owners of the Apartment complex of "Ramky North",
without the consent of all the Apartment owners,
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respondent No.4-Society has been registered on
19.10.2023.
3. Learned counsel for the petitioners submits that
Formation and Registration of Society is contrary to law.
She contends that under the Real Estate (Regulation and
Development) Act, 2016 ('RERA Act' for short) it was the
statutory obligation of the developer to facilitate the
Formation of the owners Association in accordance with
the Karnataka Apartment Ownership Act, 1972
(hereinafter referred to as 'KAO Act' for short). In the case
of residential Apartments, such Association must be
formed and registered as envisaged under the KAO Act.
Reliance is placed on the decision of the Division Bench of
this Court in the case of Proposed Starnest Apartment
Owners Co-operative Society Ltd. Vs. State of
Karnataka and others1 (Starnest Apartment), wherein it
was held that in residential Apartment projects, Formation
of an Association under the KAO Act is mandatory.
1
W.A. NO.564/2024 D.D. 18.06.2024
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Accordingly, it is submitted that the Registration of the
Society by respondent No.2 under the provisions of
Karnataka Co-Operative Societies Act, 1959
('KCS Act' for short) is one without jurisdiction and
unsustainable in law.
4. Learned counsel appearing for the Society,
supports the averments in their statement of objections
and submits that the Registration and functioning of the
Society has been upheld by this Court in the case of Mr.
M.S. Ramanujan and others Vs. State of Karnataka
and others2, which was confirmed in the case of Mr. M.S.
Ramanujan and others Vs. State of Karnataka and
others3. It is contended that the said decision is binding
on both the petitioners and respondent No.5, as they were
parties to the earlier proceedings. It is further submitted
that petitioner Nos.3, 4 and 5 are the wives of the
petitioners in WP No.25997/2023, suppressing, concealing
and misrepresenting the earlier proceedings, the present
2
W.P. No.25997/2023 D.D. 22.01.2024
3
W.A. No.190/2024 D.D. 23.09.2024
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petitioners have preferred this frivolous writ petition. It is
contended that except petitioner No.5, the other
petitioners are not apartment owners and thus, the
present writ petition is not maintainable.
5. Learned counsel for respondent No.5 submits
that the Registration of the Society under the KCS Act 'to
manage the affairs of the residential Apartment complex
and further conveying rights and interest over the lands in
favour of the cooperative Society from its lawful owners',
contradicts the purpose and provisions of KAO Act.
Learned counsel submits that the law is well settled that
for the management of Apartment complex, the
Registration of the Association has to be made under the
KAO Act.
6. Having heard the learned counsel for the
parties, the point that arises for consideration is:
"When a special enactment as KAO Act provides a
particular mode for management or regulation,
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whether can be substituted by forming a Society
under the KCS Act?"
7. The petitioners are owners of their respective
apartment units in the project known as "Ramky One
North" which consists of residential units only and the
project was registered under the provisions of RERA. Prior
to the execution of the sale deeds, all the apartment
owners had executed a Deed of Declaration-cum-
undertaking in favour of the Builder-respondent No.5,
wherein they undertook to sign the Deed of Declaration for
the Formation of Apartment Owners Association. One such
Declaration-cum-undertaking executed finds place at
Annexure-L. The undisputed fact is that the project
"Ramky One North" consists of residential units only.
Section 2 of KAO Act reads as under:
"2. Application of the Act.-This Act
applies only to property the sole owner or all of the
owners of which submit the same to the provisions
of this Act by duly executing and registering a
Declaration as hereinafter provided:
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Provided that, no property shall be submitted
to the provisions of this Act, unless it is mainly
used, or proposed to be used for residential
purposes."
(Emphasis supplied)
8. Section 3(d) defines 'Association of Apartment
Owners' which reads as under:
"3. Definitions.-In this Act, unless the
context otherwise requires.-
(d) "Association of Apartment Owners"
means all of the apartment owners acting as a
group in accordance with the bye-laws and
Declaration.
9. Section 3(i) defines 'Competent Authority'
which reads as under:
(i) "Competent authority" means in relation to
building constructed or to be constructed by the
Housing Board, the Secretary of the Housing Board
and in any other case, the Registrar of Co-operative
Societies as defined in the Karnataka Co-operative
Societies Act, 1959;
(emphasis supplied)
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10. Section 5 of the KAO Act deals with Ownership
of Apartments, which reads as under:
"5. Ownership of apartments.-(1) Each
apartment owner shall be entitled to the exclusive
ownership and possession of his apartment.
(2) Each apartment owner shall execute a
Declaration that he submits his apartment to the
provisions of this Act and a Deed of Apartment in
relation to his apartment in the manner prescribed
for the purpose."
11. Section 5 emphasizes that each of the
apartment owner shall be entitled for exclusive ownership
and possession of his apartment. Sub-clause (2) of
Section 5 states that each apartment owner shall execute
a Declaration that he submits his Apartment to the
provisions of this Act and a Deed of Apartment in relation
to his Apartment in the manner prescribed for the
purpose.
12. The KAO Act makes it clear that if the property
is used or proposed to be used for residential purposes,
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KAO Act is applicable. As could be seen from the records
that the sale deeds indicate that the entire project is for
residential and no part of project is used or intended to be
used towards commercial. The Deed of Declaration is
executed by the Apartment owners for Formation of the
Apartment owners Association.
13. The law is well settled and no more a res
integra that the Association of the owners of flats situated
in an Apartment, consisting of residential units only, there
is a specific enactment under the KAO Act, and the
Registration of the Association has to be made under the
KAO Act and not under the provisions of the KCS Act. The
Division Bench in the case of VDB Celadon Apartment
Owners Association vs. Mr. Praveen Prakash and
others4 (VDB Celadon) at paragraph Nos.6 to 11 has held
as under:
"6. Section 3 of the said Act of 1960 reads thus:
3. Societies to which the Act applies.-
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W.A. No.974/2019 D.D. 06.11.2019
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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.
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(g) the collection of natural history,
mechanical and philosophical inventions
Or designs and
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;
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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.
8. 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 wherein 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
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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
the said Act of 1972 inasmuch as the sale deeds
executed in favour of the apartment owners
contemplate formation of such Association."
14. The Co-ordinate Bench of this Court in the case
of Shantharam Prabhu and others Vs. K. Dayanand
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Rai and others5 (Shantharam Prabhu), has held at
paragraph No.23 as under:
"23. To Summarise:
23.1. KAOA would only apply to an apartment where
it is used for residential purposes. A flat or an
apartment which is used for an office or showroom
or shop or godown (and includes garage) cannot be
subjected to KAOA and would always continue to be
governed by KOFA.
23.2. When an apartment is proposed to be
constructed or under construction and agreements
are entered into, KOFA would apply insofar as the
relationship and/or dispute between the purchaser
and the Promoter.
23.3. KOFA would continue to apply if the
Apartment is not subjected to KAOA as afore
detailed.
23.4. Once an apartment is subjected to KAOA,
KOFA would cease to apply and it is only the KAOA,
Declaration, Deed of Apartment and bye-laws which
would be applicable.
5
CRP No.96/2021 D.D. 08.09.2021
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23.5. In the event of an apartment being removed
from the provisions of KAOA in terms of Section 14
of KAOA, KOFA would come into operation.
23.6. Essentially KAOA, Declaration, Deed of
Apartment and bye-laws would be the provisions
under which the relationship between an apartment
owner and Association of the Apartment, building,
property, which would be governed.
23.7. KOFA would apply insofar as the relationship
and/or dispute between the purchaser of an
apartment and Promoter and any defaults on part of
the Promoter. The other enactments like RERA
would also be applicable.
23.8. Even when an Apartment is not subjected to
KAOA and KOFA applies, the dispute and the
relationship between the apartment owner and the
Association would be governed in terms of the rules
and regulations under the Co-operative Society
under which the said Association is registered or the
terms of articles and memorandum of Association of
company under which the said Association is
registered.
23.9. If the Association is formed under KOFA,
registration of the Association would be required
under the Karnataka Co-operative Societies
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Registration Act and/or the Companies Act
depending on whether it is a Co-operative Society or
a Company which is to be registered.
23.10. In the event of a declaration, Deed
Apartment and byelaws being executed and the
Apartment, building, property is subjected to KAOA,
the said documents would have to be registered
before the jurisdictional Sub-Registrar and the same
be informed to the Registrar of the Co-operative
Societies.
23.11. There would be no requirement for
registration of the Declaration, Deed of Apartment
and/or bye-laws with the Registrar of the Co-
operative Societies.
23.12. If the property is subjected to KAOA, the
proceedings if any would have to be filed before the
Civil Court of competent jurisdiction.
23.13. If a Co-operative Society or a Company is
formed to manage the property, and the provision
of KOFA being applicable the proceedings would
have to be filed in terms of Section 13(5) before a
Small Causes Court where a Small Causes Court is
established, in the absence thereof, before a Civil
Court of competent jurisdiction.
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23.14. All the apartment owners are not required to
sign and execute the Declaration, Deed of
Apartment and bye-laws. The Promoter before
registration of a sale deed can execute and register
the Declaration, Deed of Apartment and bye-laws
with the jurisdictional Sub-Registrar being the owner
of the Apartment, building and property. If there is
a joint development agreement, the owner of the
property would also have to join the execution of
the registration of the above documents. Suffice it
to say, it is only the persons or entities who have
registered title in respect of the property who are
required to execute and register the above
documents.
23.15. On the purchase of the property and
registration of the sale deed, the purchaser or
apartment taker would have to execute necessary
Declaration under Form B of KAOR agreeing to be
bound by the said Declaration, Deed of Apartment
and bye-laws. The Association when formed could
always amend the same in terms of the provisions
applicable thereto."
15. The Division Bench of this Court in the case of
Proposed Starnest Apartment Owners Co-Operative
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Society Ltd., Vs. State of Karnataka6 (Proposed
Starnest) has held at paragraph Nos.16 to 18 as under:
"16. The narrow dispute in the present appeal
is, whether association is to be formed under the
Act of 1972 or Co-operative Society, is to be formed
under the KOF Act, 1972.
17. It is seen from the record that the sale
deeds would indicate the entire project is for
residential and no part of the project is used or
intended to be used towards commercial purpose.
That apart, the parties in the sale deed have agreed
to abide by the provisions of the Karnataka
Apartment Ownership Act, 1972, and to form an
Association.
18. The contention of learned counsel for the
appellant that in view of the project being
registered under the provisions of RERA in
compliance of Section 11(4)(e), (f), (g) of RERA, a
Co-operative Society is to be formed, is not
acceptable. The said provisions of RERA would
mandate the builder to enable formation of
Association or Society or Co-operative Society, as
the case may be, of the allottees. As the project
under consideration consists only residential units,
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W.A. No.564/2024 D.D. 18.06.2024
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the said provisions only mandate formation of
association of the allottees under the applicable
laws. The law applicable in the present case is the
Karnataka Apartment Ownership Act, 1972."
16. Thus, in light of the law declared by the Co-
Ordinate Bench of this Court and upheld by the Division
Bench referred supra, cannot hold the Court for long to
arrive at a conclusion that the petitioners are members of
respondent No.4-Society are entitled to have Registration
of an Apartment Owners Association under the KAO Act
and there cannot be any Association registered under the
KCS Act.
17. Another contention of counsel appearing for the
Society is that 'Society Formation' has been upheld in WA
No.190/2024 and thus, the same is binding on the
petitioners. The challenge in W.P. No.25997/2023 by the
husband of the petitioners was against the public notice
issued by the Returning Officer under Rule 14 (3) of
Karnataka Co-Operative Societies Rules, 1960, the Co-
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Ordinate Bench of this Court dismissed the writ petition
with the following observations:
"14. Accordingly, the Writ petition is dismissed.
15. Respondent No.5 shall issue fresh calendar
of events to hold elections to the Board of
6th respondent-Society.
16. Notwithstanding the dismissal of the Writ
Petition, in case the petitioners are able to
establish that their applications have been
rejected or not accepted by the authority,
the petitioners are at liberty to avail such
statutory remedy before the Appellate
Authority. If such an appeal is filed, the
same shall be decided in accordance with
law without being influenced by the
observations made in this Writ Petition.
17. This Court has not expressed anything on
the merits of the claim made by the
petitioners to be the members of the 6th
respondent Society. This Court has only
examined whether the notification dated
07.11.2023 is to be quashed at this stage or
not."
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18. W.A. No.190/2024 preferred by the petitioners
therein came to be confirmed holding that the Board of the
Co-Operative Society-respondent No.4 has become
functional. It is pertinent to note that the challenge in WP
No.25997/2023 was only to the calendar of events for
conducting the elections and in the said petition, there was
no challenge to the validity of the Formation of a Co-
operative Society-respondent No.4 for the purpose to
manage and maintain the Apartment Complex. This being
so, the contention raised by respondent No.4 that the
present writ petition needs to be dismissed on the ground
that the earlier findings in writ petition confirmed in writ
appeal are binding on the petitioners is unsustainable.
19. For the foregoing reasons, the point framed for
consideration is answered holding that the Association has
to be formed by the Builder under the KAO Act and the
Society formed under the KCS Act is not sustainable and
this Court pass the following:
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ORDER
I. Writ petition is allowed. II. The impugned order registering the Society under the KCS Act dated 19.10.2023 issued by respondent No.2-ARCS is hereby set aside. III. Respondent No.5-Builder is directed to comply with all the requirements under the law and form an Association of Apartment Owners under the KAO Act and the members of respondent No.4- Society to cooperate in forming an Association for the project known as "Ramky North".
Sd/-
_____________________ JUSTICE K.S. HEMALEKHA MBM List No.: 1 Sl No.: 1