Court No. - 36
Case :- WRIT - C No. - 34381 of 2018 Petitioner :- K. World Estate Private Limited Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Jitendra Kumar,Gyanendra Bahadur Rai,Mr. Naveen Sinha (Senior Advocate) Counsel for Respondent :- C.S.C.,Bala Nath Mishra,Kunal Ravi Singh,Manjari Singh,Ram Vishal Mishra,Sachin Mishra,Vrindavan Mishra
Hon'ble Mrs. Sunita Agarwal,J.
Heard Sri Naveen Sinha learned Senior Advocate assisted by Sri Gyanendra Bahadur Rai learned counsel for the petitioner and Sri Kunal Ravi Singh and Sri Bala Nath Mishra, learned counsels for the respondent no.3. Sri M.C. Chaturvedi, learned Additional Advocate General assisted by Sri Vrindavan Mishra learned counsel has put in appearance on behalf of the respondent no.6/Ghaziabad Development Authority.
The dispute being raised in the present petition is with regard to the order passed by the Deputy Registrar, Firms, Societies and Chits whereby the registration certificate of the Association namely K.W. Srishti Apartment Owners Association has been restored.
The present petition has been filed by the promoter objecting the registration of the Apartment Association which has been formed within the meaning of Section 14 (2) of the U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act' 2010. The submission of learned Senior Advocate appearing for the petitioner is that as per the requirement of section 14 (2), less than 33% of the apartments have been occupied as yet. The infrastructural services in the apartment are not complete and completion certificate issued by the local authority is only provisional. The construction of common area and facilities is still going on. The recognition of the association by registration at this stage would hamper the entire project. It is contended that as per the compounding map, 1468 flats have been sanctioned out of which, only 365 flats have been sold and occupied till the date of formation of the Association. The occupancy ratio, therefore, would be much less than 33%. The promoter is managing the affairs of the entire complex including common area and facilities. The alleged Apartment Association is creating hindrance in the working of the petitioner and thus adversely affecting the sale of unsold flats and further disturbing the management of common area and facilities of the apartment.
Learned counsel for the respondent no.3, on the other hand, submits that as per the previous sanctioned map, only 998 flats have been sanctioned. The promoter initially submitted a compounding plan for 1324 flats and later on sought to raise 1468 flats, the compounding plan of which was sanctioned subject to condition mentioned in the order dated 15.04.2013. One of the condition for getting release of the sanctioned compound map was that the promoter had to seek no-objection from the concerned departments such as Irrigation, Tehsil, Nagar Nigam, Air Force, Environment, Pollution Control Board and Fire. As he has not received No-objection, there is no question of release of the compounded map. The constructions of additional flats raised by the promoter are, therefore, unauthorised constructions. It is admitted to the parties that total 1468 apartments have been constructed so far without obtaining No-objection from the concerned authorities, which have not been received by the petitioner, so far.
In the said scenario, in the opinion of the Court, only 998 flats could have been said to be validly constructed. With the sale of 365 flats, the apartment owners proceeded to form an association within the meaning of section 14(2) of the Apartment Act' 2010. The registration of the association is in compliance of the provision of the Act and the Model Bye-laws. Section 14(2) provides that it shall be the joint responsibility of the promoters and the apartment owners to form an association. The requirements of completion of infrastructural services and completion certificate from the local authorities are not pre-conditions for formation of association. Issuance of completion certificate depends on the steps taken by the promoters. In case, the promoter cause delay in obtaining the completion certificate, he may succeed in defeating the object of the Act by delaying formation of association.
It would, therefore, be appropriate that the Association is formed and registered though provisionally. Any dispute with regard to providing of all infrastructural services and completion certificate,if any, can be addressed by the competent authority within the meaning of Rule 2(c) of the U.P. Apartment Rules' 2011 as it is within the jurisdiction of the competent authority to see that the building is complete in all respect and managed in accordance with the provisions of the Act' 2010.
As far as the common area and facilities which are still under construction, the respondent no.3 made a statement that they will not insist for handing over the same till the constructions are complete in all respect, and moreover, it will not be possible for them to manage the said area without completion thereof. In case of any dispute relating to completion of common areas and facilities and handing over thereof and management/maintenance of the same, the jurisdiction lies with the competent authority within the meaning of Rule 2(c) of the Rules. Thus, the grievances being raised by the petitioner in the present petition can very well be addressed by the competent authority. Bye-laws 57 of the Model Bye-Laws' 2011 also confers power on the competent authority, who can suo-muto or on an application, make inspection of the building in which the Act applies. The inspection would include the status of the building including the common areas and facilities and thereupon, it may also take such action in respect thereto as may be deemed necessary.
In view of the above, this Court is of the view that registration of the Association being mandatory requirement of Section 14(2) of the Act' 2010 cannot be withheld. It would further cause no prejudice to the promoter namely the petitioner-herein.
No infirmity, therefore, is found.
With the above observations, the present petition is disposed of.
Order Date :- 30.10.2018/Himanshu