The Karnataka Apartment Ownership Act exclusively governs residential apartments, preventing the formation of a cooperative society under the Karnataka Co-operative Societies Act for such properties.

ORAL ORDER

Petitioners are the apartment owners of a Multi Storied Apartment Complex known as “Parkside Retirement Homes Brigade Orchards Apartment Complex”, respondent No.4-Brigade Orchards Parkside Apartments Owners’ Association (ownership association) (hereinafter referred to as ‘Association’ for short) was registered under the Karnataka Apartment Ownership Act , 1972 (‘KAO Act’ for short) by the petitioners on the strength of a deed of declaration dated 15.02.2021 registered under the Registration Act, 1908.

2. The petitioners are seeking for the following reliefs:

“a) Restrain the Respondent No.3 from registering the Proposed Brigade Orchards Parkside Retirement Housing Co-operative Society Ltd., (BPRHHCSL) and the Proposed Bye-laws before the Jurisdictional Registrar of Co-operative societies, Doddaballapura Sub-Division, Doddaballapura, Bengaluru Rural District.

b) Issue a writ of mandamus to the Registrar of the Co-operative Society/Respondent No.2 to consider the objections/letter filed by the Petitioner at Annexure-J and to reject the Respondent No.3’s application dated 21/11/2022 vide (Annexure-E) filed under the Karnataka Co-operative Societies Act [date 21/11/22 taken from reminder letter sent by R3 annexed here as Annexure-G).

c) Grant such other releifs that this Hon’ble court deems fit to grant in the circumstances of the case, to the Petitioners, in the interest of justice.”

3. Respondent No.3 preferred an application on 21.11.2022 before respondent No.2 for formation of a cooperative society under the Karnataka Co-operative Societies Act , 1959 (‘Act, 1959’ for short). Respondent No.2 issued an order dated 23.02.2023 by which, the Chief promoter of respondent No.3 (the proposed society) was permitted to collect share capital contributions from those residents / owners in the project desirous of being part of such society.

4. The contention of the petitioners are in two folds:

i. That there already exists an association registered under the KAO Act on the strength of the deed of declaration, and the apartment owners are registered under the KAO Act, therefore, there cannot be a society formed under the Act, 1959. It is submitted that the validity of KAO Act has been upheld in the case of Shantharam Prabhu and others Vs. K. Dayanand Rai and others , [CRP No.96/2021 D.D. 08.09.2021] (Shantharam Prabhu), wherein it has held that “once an apartment is subjected to KAO Act, Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 (hereinafter referred to as ‘KOFA’ for short) would cease to apply and it is only the KAO Act, by duly executing and registering a declaration, deed of apartment and bylaws which would be applicable.”

ii. That no cooperative society can be formed in a project where the units a re purely residential in nature.

5. Placing reliance on the decision of the Coordinate Bench of this Court in the case ofArunkumar .R and others Vs. State of Karnataka and others , WP No.25528/2023 D.D. 23.02.2024 (Arunkumar) confirmed in the case of Proposed Starnest Apartment Owners Co-operative Society Ltd. Vs. State of Karnataka and others , [WA NO.564/2024 D.D 18.06.2024] (Starnest Apartment) and the decision of the Coordinate Bench of this Court in the case ofShantharam Prabhu, it is her contention that the persons having purchased the flats in a residential apartments are governed by the provisions of the KAO Act and the flat owners cannot form a cooperative society under the provisions of the Act, 1959 to manage and maintain the apartment.

6. Per contra, learned counsel appearing for respondent No.3 controverts the grounds urged by the petitioners, contending that a cooperative society is a project and can be very well formed under the Act, 1959, as the basic requirement of Section 2 of the KAO Act has not been met. Emphasizing his submission, it is submitted that as on the date of deed of declaration, there were 150 units in the project, however, only 90