The court affirmed that the formation of an apartment owners' association must comply with the KAO Act for residential units, and registration under the KCS Act is not legally sustainable.

ORDER :

1. 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, 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 others , W.A. No. 564/2024 dated 18.06.2024 (Starnest Apartment), wherein it was held that in residential Apartment projects, Formation of an Association under the KAO Act is mandatory.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 M.S. Ramanujan and others Vs. State of Karnataka and others , W.P. No. 25997/2023 dated 22.01.2024, which was confirmed in the case of M.S. Ramanujan and others Vs. State of Karnataka and others , W.A. No. 190/2024 dated 23.09.2024. 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 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 partie