Ravish Tiwari vs Prayagraj Vikas Pradhikaran Prayagraj ... on 17 May, 2025

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Allahabad High Court

Ravish Tiwari vs Prayagraj Vikas Pradhikaran Prayagraj ... on 17 May, 2025

1. The petitioner is an allottee of an apartment in a housing scheme by the name of Ambedkar Vihar Avas Yojna, Subedarganj, Allahabad. The said scheme was developed by Praragraj Development Authority, Prayagraj.

2. The case of the petitioner is that on 09.12.2010, he was handed over possession of the allotted flat. It is also his case that possession of other flats were given to other allottees between 2005 and 2011. Consequently, as per provisions of Section 14 of U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 (in short, 'the Apartment Act'), the developer, which in the instant case, is Prayagraj Development Authority, Prayagraj should take steps to get the association of apartment owners registered.

3. The facts in brief of the case are that in the year, 2005, the Prayagraj Development Authority had launched a housing scheme, namely Ambedkar Vihar Awas Yojana, Subedarganj, Allahabad. Since, the aforesaid Society was duly constructed and completed by the Prayagraj Development Authority, in the year, 2006, a Flat No. B-106 under Ambedkar Vihar Housing Scheme was allotted to the petitioner herein.

4. The case of the petitioner is that since after the scheme was launched, all the flats were allotted and possession was handed over to such allottees by the Prayagraj Development Authority. The case of the petitioner is that under Section 14 of the Apartment Act, it is an obligation on the part of the Promoter/Developer to form an Association and get the same registered in the event, 60% of the apartments are handed over to their allottees by way of sale, transfer or possession provided the building is complete alongwith all infrastructure services and Completion Certificate has been obtained from the concerned Authority.

5. Learned counsel for the petitioner submits that since way back in 2011, the possession was handed over to 100% allottees by the Prayagraj Development Authority after execution of the transfer deeds in their favour, thus, it was the duty of the Prayagraj Development Authority, who is the Promoter/Developer of the residential scheme, to form an Association of apartment owners and get the same registered. Since, the Prayagraj Development Authority did not take any step as per the duty enshrined upon it under Section 14 of the Apartment Act, different groups of the apartment owners got three different Societies registered, namely Ambedkar Vihar Awasiya Kalyan Samiti, Registration No. 545/2010-11, Sundram Awasiya Kalyan Samiti, Registration No. 789/2012-13 and Shivam Apartment Awasiya Kalyan Samiti, Registration No. 1020/2012-13. Since, as per the provisions of the aforesaid Act, only one apartment owner Association can be formed and registered, therefore, none of the above Societies can be considered to have been registered under the provisions of the aforesaid Act as none of them were got registered by the Promoter/Developer of the apartment.

6. In view of the same, learned counsel for the petitioner has also brought to the attention of the Court a communication dated 25.06.2016 by the Assistant Registrar for Firm, Societies and Chits, Allahabad, whereby, a notice was issued to all the three Societies so registered regarding cancellation of the registration of the said Societies. However, he has further pointed out that when the petitioner herein has brought the issue to the notice of the Prayagraj Development Authority, the Prayagraj Development Authority has made a query vide letter dated 10.06.2024 with the office of the Assistant Registrar for Firm, Societies and Chits, Allahabad asking whether the registration of the said Society has been cancelled; whether the said Society can be recognized to have been formed under the Apartment Act. The Assistant Registrar for Firm, Societies and Chits, Allahabad vide its communication dated 09.09.2024 has communicated that all the three Societies are unregistered and as per the Apartment Act, only one apartment owner association can be constituted and registered. It is also found that since the registration of the aforesaid Societies have already been cancelled, therefore, for registration of the Society under the Apartment Act and Societies Registration Act, the application is required to be moved under Section 3 of the Societies Registration Act on UPRFSC.GOV.IN portal, with all relevant documents.

7. Learned counsel for the petitioner relying upon Section 14 of the Act, submits that its the Promoter/Developer who is required to get the Association of the apartment owner registered. Thus, learned counsel for the petitioner submits that since the Prayagraj Development Authority has failed to perform its duty enshrined under Section 14 (2) of the Act, it may be directed to take necessary steps for formation and registration of the apartment association under the provisions of Section 14(2) of the Act.

8. Per contra, Sri Avneesh Tripathi, learned counsel for the respondent Development Authority has placed on record the instructions received from the Zonal Officer, Prayagraj Development Authority, Prayagraj. The said instruction reiterates the availability of the UPRFSC.GOV.IN portal for registration of the Association as per the Apartment Act and stand taken by the Development Authority is that as soon as the application for registration of the Association is submitted on the said Portal, the respondent Development Authority, which in the instant case is also the Developer, would take steps to get the Association registered in terms of Section 14 (2) of the Apartment Act.

9. Having heard the submissions made by learned counsel for the parties this Court has carefully gone through the record of the case.

10. Before proceeding further it would be relevant to take into notice the provisions of the Apartment Act, which reads as under:

Section 3(d) "apartment owner" means the person or persons owning an apartment or the promoter or his nominee in case of unsold apartments and an undivided interest in the common areas and facilities appurtenant to such apartment in the percentage specified in the Deed of Apartment and includes the lessee of the land on which the building containing such apartment has been constructed, where the lease of such land is for a period of thirty years or more;

Section 3 (e) "association of apartment owners" means all the owners of the apartments therein, acting as a group in accordance with the bye-laws;

Section 4 (6) After obtaining the completion certificate as provided in sub-section (5) and handing over physical possession of the apartments to the allottees, it shall be the responsibility of the promoter to hand over the possession of the common areas and facilities and also the originals of the plans and documents to the Association of apartment owners formed and registered under sub-section (2) of section-14"

[Provided that handing over of physical possession of the common areas and facilities under this sub-section shall be completed within a period of one year from the date of issue of completion certificate or the date by which sixty percent of the apartments have been handed over to the owners, whichever is earlier, subject to the condition that the promoter shall be responsible for the sale and transfer of the balance apartments.

Section 4 (7) The promoter shall maintain the common areas and facilities till the Association is formed in accordance with the conditions laid down in sub section (2) of section-14 and shall be entitled to levy proportionate maintenance charges as specified in the declaration.

Section 14. Association of apartment owners and bye-laws relating thereto.-

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

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

[(2) It shall be the joint responsibility of the promoter and the apartment owners to form an Association. The promoter shall get the Association registered when such number of apartments have been handed over to the owners which are necessary to form an association or 60 of apartments, whichever is more, by way of sale, transfer or possession, provided the building has been completed along with all infrastructure services and completion certificate obtained from the concerned local authority.

Provided that in case of an independent area or and independent commercial area the promoter may form a separate Association for its management, if required];

(5) On formation of the Association of the Apartment Owners under sub- section (2) above, the management of the affairs of the apartments 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.

[Provided further that the amount collected by the promoter towards interest free maintenance security shall be transferred to the association at the time of handing over of the common areas and facilities.] (6) The Government may by notification in the gazette frame model bye-laws in accordance with which property referred to in subsection (1) shall be administered by the Association of Apartment Owners and the Association shall, at its first meeting, make its byelaws in accordance with the model bye-laws so framed, and in making its bye-laws the Association of Apartment Owners shall not make any departure from, variation of, addition to, or omission from, the model bye-laws aforesaid except with the prior approval of the competent authority.

(7) The model bye-laws framed under sub-section (5) shall provide for the following, among other matters, namely:

(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;

(d) the powers and duties of the Board;

(e) the honorarium, if any, of the members of the Board;

(f) the method of removal from office of the members of the Board;

(g) the powers of the Board to engage the services of a Manager;

(h) delegation of powers and duties of the Board to such Manager;

(i) method of calling meetings of the Association of Apartment Owners and the number of members of such Association of Apartment Owners;

(j) election of a President of the Association of Apartment Owners from among the apartment owners, who shall preside over the meeting of the Board and of the Association of Apartment Owners;

(k) election of a Secretary to the Association of Apartment Owners from among the apartment owners, who shall be an ex-officio member of the Board and shall keep two separate minutes books, one for the Association of the Apartment Owners and the other for the Board, pages of each of which shall be consecutively numbered and authenticated by the President of the Association of Apartment Owners, and shall record, in the respective minutes books, the resolutions adopted by the Association of Apartment Owners or the Board, as the case may be;

(l) election of a Treasurer from among the apartment owners, who shall keep the financial records of the Association of Apartment Owners as also of the Board;

(m) maintenance, repair and replacement of the common areas and facilities and payment therefor;

(n) manner of collecting from the apartment owners or any other occupant of apartments, share of the common expenses;

(o) resignation and removal of persons employed for the maintenance, repair and replacement of the common areas and facilities;

(p) restrictions with regard to the use and maintenance of the apartments and the use of the common areas and facilities, as may be necessary to prevent unreasonable interference in the use of each apartment and of the common areas and facilities by the several apartment owners;

(q) any matter which may be required by the Competent Authority to be provided for in the bye-laws for the proper or better administration of the property;

(r) such other matters as are required to be, or may be, provided for in the bye-laws."

11. As per Section 3(e) of the Apartment Act, the association of apartment owner means all the owners of the apartments therein, acting as a group in accordance with bye-laws.

12. Section 14(7)(a) provides that the Model bye-laws to be framed under sub-section (6) of Section 14 shall provide for the manner in which association of apartment owners is to be formed.

13. In pursuance thereof, the Model bye-laws were notified by the Government on 16.11.2011, however, such bye-laws do not contain any provision as directed under Section 14(7)(a) of the Act.

14. Section 14 (2) of the Act provides that it is the joint responsibility of the Promoter as well as the owners to form an association. However, the duty to get such association registered has been enshrined to the promoter of the apartment. Since, no specific manner has been provided for registration of the association in the Model bye-laws as was mandated by Section 14(7)(a) of the Apartment Act, thus, from the reading of the entire scheme of the Act, it is apparent that it is the promoter, who has been enshrined a duty to constitute an association of the apartment owners and get the same registered and the apartment owners are expected to cooperate with the process of formation of the association and registration thereof. Since, the Promoter/Developer herein i.e., Prayagraj Development Authority has failed in its duty as was mandated under Section 14(2) of the Act, it appears that three different associations for the same apartment had got registered and as per communication dated 09.09.2024, by Registrar of the Societies, registration of all three such Societies was cancelled by the Registrar.

15. In view of the aforesaid, the instant petition is disposed of with direction the Prayagraj Development Authority, Prayagraj, which in the instant case is also a Developer, to take all necessary steps for registration of the Association in terms of Section 14 of the U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 within eight weeks.

Order Date :- 17.5.2025 Shubham Arya (Anish Kumar Gupta, J.) (Manoj Kumar Gupta, J.)

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Allahabad High Court