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IN THE HIGH COURT OF ALLAHABAD
HON'BLE MANJIVE SHUKLA, J.
M/s Lotus Boulevard Espacia Apartment Owners Association And 2 Others – Appellant
Versus
State Of Uttar Pradesh And 5 Others – Respondents
Writ C No.3791 of 2020
Decided on : 01-07-2024
CANCELLATION - REGISTRATION OF SOCIETY - Societies Registration Act, 1860 - Section 12-D(c); Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 - Section 14(2); Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) (Amendment) Act, 2016 - Section 1(2) - The court interpreted Section 14(2) of the Uttar Pradesh Apartment Act, 2010, which allows for registration of an Apartment Owners Association (A.O.A.) with 33% occupancy, and noted that the subsequent amendment in 2016, which increased the requirement to 60%, had not come into force due to the absence of a necessary notification. This interpretation led to the conclusion that the cancellation of the A.O.A.'s registration was unlawful.
Fact of the Case:
The petitioners challenged the cancellation of the registration of the Lotus Boulevard Espacia Apartment Owners Association by the Deputy Registrar, which was based on a complaint that the association was registered with less than the required 60% occupancy as per the amended Act of 2016.
Finding of the Court:
The court found that the amended Section 14(2) of the Act of 2016 had not come into force due to the lack of a notification from the State Government, thus the original requirement of 33% occupancy under the Act of 2010 was applicable, making the cancellation of the registration unsustainable.
Issues: Whether the cancellation of the registration of the Apartment Owners Association was valid given that the amended occupancy requirement had not been enacted.
Ratio Decidendi: The court held that the amendments to the occupancy requirement under the Act of 2016 were not effective until the State Government issued the necessary notification, thus the original provisions of the Act of 2010 remained in force.
Final Decision: The writ petition was allowed, and the order dated 15.01.2020 cancelling the registration of the Apartment Owners Association was quashed.
JUDGMENT :
Hon'ble Manjive Shukla, J.
1. Heard learned counsel appearing for the petitioners, learned Standing Counsel appearing for Respondents No. 1, 3 & 4 and Mr. Kaushlendra Nath Singh, learned counsel appearing for Respondent No. 2.
2. This Court vide order dated 23.04.2024 issued fresh notice to Respondent No. 6 and direction was given to serve the notice on Respondent No. 6 through ‘dasti’. The affidavit of service has been filed by the petitioners indicating therein that notice of the writ petition has been served on Respondent No. 6, but none has appeared on its behalf.
3. Petitioners through this writ petition have assailed the order dated 15.01.2020 passed by the Deputy Registrar, Firms, Societies and Chits, Moradabad whereby, he in exercise of his powers under Section 12-D(c) of the Societies Registration Act, 1860, has cancelled the registration of M/s Lotus Boulevard Espacia Apartment Owners Association (Registration No. GBN/00836/2019-2020).
4. Facts of the case, in brief, are that the residents of Towers No. 31 to 38 constructed by Respondent No. 6 on Plot No. GH-02, Sector 100, Noida organized meeting of the general body on 23.12.2018 and in the said meeting, the Board of Management of the Apartment Owners Association (A.O.A.) was elected and model bye-laws were adopted. The elected Board of Management of the A.O.A. requested the Respondent No. 2 to grant no objection certificate for the registration of the A.O.A. and in response thereof, Respondent No. 2 granted no objection certificate on 21.02.2019. Thereafter requisite papers were presented before the Respondent No. 4 for registration of the A.O.A. in the name of M/s Lotus Boulevard Espacia Apartment Owners Association, Plot No. GH-02, Sector 100, Noida. The Towers No. 32-36 were complete having occupancy of 320 flats/families.
5. The Respondent No. 4 after being satisfied with the documents produced before him, registered the Society on 29.04.2019 in the name of M/s Lotus Boulevard Espacia Apartment Owners Association, A.O.A. Office, Lotus Boulevard Especia, Plot No. GH-02, Sector-100, Noida, Gautam Buddha Nagar, 201301 bearing Registration No. GBN/00836/2019-2020.
6. Later on a complaint was filed by Respondent No. 6 before Respondent No. 4, that as per provisions made in the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) (Amendment) Act, 2016, minimum 60% occupancy of the apartments of the building is required for registration of the Apartment Owners Association (A.O.A.) and since at the time of registration of Petitioner No. 1, only 322 flats out of total 606 flats were occupied which comes to less than 60% occupancy therefore, the registration of Petitioner No. 1 could not have been done. In the complaint, it was further mentioned that since the registration of Petitioner No. 1 has been obtained by misleading and concealing material facts from Respondent No. 4 therefore, the said registration is liable to be cancelled. The Respondent No. 4 after hearing all the concerned parties has passed order dated 15.01.2020 whereby registration of Petitioner No. 1 has been cancelled under Section 12-D(c) of the Societies Registration Act, 1860 on the ground that as per Section 14(2) of the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 as amended in the year 2016, minimum 60% occupancy of the flats is necessary for registration of the A.O.A. and since on the date of registration of Petitioner No. 1, occupancy was less than 60% therefore, its registration could not have been done.
7. Learned counsel appearing for the petitioners has argued that Section 14(2) of the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 (hereinafter referred to as ‘the Act of 2010’) provides that the A.O.A. can be registered on 33% occupancy of the flats of the building. He further argues that later on State Legislature enacted the Uttar Pradesh Apartment (Promotion of Construction,
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