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2015 Supreme(All) 3897
ALLAHABAD HIGH COURT
Suneet Kumar, J.
Resident Welfare Association and Ors. - Appellant
Versus
State of U.P. and Ors. - Respondent
Writ - C. Nos. 42123 and 42202 of 2015
Decided On : 16-10-2015
For the Appellant: Ashish Dubey, Ananya Pandey, Anil Kumar Bajpei and C.L. Pandey
For the Respondents: C.S.C., Kunal Ravi Singh, Manjari Singh and Nisheeth Yadav
The main legal point established in the judgment is the requirement for prior approval of the competent authority for any amendments to the Model Bye-laws and the overriding effect of the Act 2010 over other laws.
Headnote:
Societies Registration Act 1860 - Resident Welfare Association - U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 - 1860, 2010, 2011 - The court discussed the adoption and rejection of Model Bye-laws, the authority of the Prescribed Authority, and the role of the Competent Authority under the Acts. It highlighted the requirement for prior approval of the competent authority for any amendments to the Model Bye-laws and the need for a democratic process for the constitution of the Board of Management. The judgment emphasized the overriding effect of the Act 2010 over other laws and the role of the Competent Authority in ensuring better administration of the property.
Fact of the Case:
The petitioner society adopted Model Bye-laws with minor amendments, which were later rejected by the Deputy Registrar. Disputes arose regarding the adoption and approval of the Bye-laws, leading to the appointment of an administrator and the challenge of the impugned orders in writ jurisdiction.
Finding of the Court:
The court found that the petitioner society did not properly adopt the Model Bye-laws and the constitution of the Board of Management was illegal. It declined to interfere with the impugned orders, as doing so would perpetuate fraud and illegality. Instead, it issued directions for the formation of an association of apartment owners, registration, and constitution of the Board of Management under the supervision of the Competent Authority.
Issues: The issues revolved around the adoption and rejection of Model Bye-laws, the authority of the Prescribed Authority, the role of the Competent Authority, and the constitution of the Board of Management.
Ratio Decidendi: The judgment emphasized the need for prior approval of the competent authority for any amendments to the Model Bye-laws, the overriding effect of the Act 2010, and the role of the Competent Authority in ensuring better administration of the property.
Final Decision: The court declined to interfere with the impugned orders and issued directions for the formation of an association of apartment owners, registration, and constitution of the Board of Management under the supervision of the Competent Authority.
Suneet Kumar, J.
1. Petitioner society is registered under the Societies Registration Act 1860 Act 1860 in the name and style Resident Welfare Association, Purvanchal Silver City-II, Greater NOIDA RWA duly registered on 28 September 2010. The State notified the U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 Act 2010, on 18 March 2010 to provide for the ownership of an individual apartment in a building of an undivided interest in common areas and facilities of appertaining 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 Rules 2011 was notified on 16 November 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 November 2011.
2. The case of the petitioner-society is that upon notification of the Model Bye-laws, in its first extraordinary general body meeting held on 24 November 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 September 2014 accepted and approved the Model Bye laws adopted by the petitioner-society along with amendments. Thereafter, the fourth respondent Deputy Registrar by letter dated 14 January 2015 intimated the petitioner-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 filed objection/reply before the Deputy Registrar, who in turn by letter dated 19 March 2015 addressed to the CEO, Greater Noida Authority sought approval of the amendment proposed in the Bye laws by the petitioner society. In the mean time, the sixth respondent, Neelam Ahi made a complaint on 15 September 2014 to the CEO Greater Noida Authority on which the Nodal Officer, Greater Noida under Act, 2010 issued an order dated 26 September 2014 and 30 September 2014 convening special meeting of RWA. Aggrieved, the petitioner approached this Court in a petition being Writ Petition No. 55792 of 2014 which was disposed of finally on 16 October 2014 directing the second respondent, CEO, Greater Noida Authority to decide the objection of the petitioner society, till decision is taken the order passed by the Nodal authority dated 26 September 2014 and 30 September 2014 be kept in abeyance. Pursuant thereof, the CEO, Greater Noida decided the representation by order dated 1 April 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 Versus Devesh Singh, Deputy Registrar, Firms Societies and Chits Meerut, U.P. and another for violation of judgment and order dated 14 November 2013 passed in M/s. Designarch Infrastructure Pvt. Ltd. and another Versus Vice Chairman, Ghaziabad Development Authority and others [2013 (9) ADJ 594 (DB)] in which notices were issued to the opposite party on 31 March 2015. The Deputy Registrar in the mean time passed order dated 28 April 2015 derecognising the Bye laws of the petitioner-society which was earlier recognized on 8 September 2014. Pursuant thereof, the Deputy Registrar made a reference on 11 May 2015 to the Prescribed Authority/Sub-Divisional Magistrate under Sectio
