Court No. - 40
Case :- WRIT - C No. - 36326 of 2018 Petitioner :- Rahul Sagar Sahay And 2 Others Respondent :- New Okhla Industrial Development Authority And 9 Others Counsel for Petitioner :- Kunal Ravi Singh,Manjari Singh Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Ajit Kumar,J.
Heard learned counsel for the petitioners and Sri Kaushalendra Nath Singh, learned counsel for the respondent No.1 and learned standing counsel for the second respondent.
The dispute raised in this petition is two fold. First is with regard to inaction on the part of the respondent No.1 in not proceeding to decide a complaint relating to the elections of the respondent No.4. Second is a challenge raised to the authority of the Deputy Registrar, the respondent No.2 to issue a direction to the respondent No.1 for transferring the amount collected towards interest free maintenance security to the respondent No.4-association.
The grievance of the petitioners is that with regard to the first contention, namely the complaint with regard to the election, the competent authority issued a notice on 7.09.2018. Instead of finalizing the said complaint, the Deputy Registrar in between has issued the impugned direction dated 13.09.2018. The petitioners therefore apprehend that if the continuance or otherwise of the office bearers of the association is adversely affected by any order to be passed by the competent authority then in that event the transfer of funds would be prejudicial to the interest of the flat owners.
Sri Singh for the first respondent submits that the claim made by the petitioners is premature at this stage inasmuch as the decision on the issue of the continuance or otherwise of the office bearers is yet to be taken on the complaint so moved, and so long as the current office bearers continue, the association will be entitled to retain the amount of interest free maintenance security in terms of Section 14(2)(b)(5) of the U.P. Apartment Act, 2010. He further submits that the retention of the amount if directed by the Deputy Registrar is only for compliance of the aforesaid provisions and not otherwise.
Sri Kunal Ravi Singh, learned counsel for the petitioners however submits that transfer of the amount is to the association with validly elected office bearers which is under dispute and secondly this has to be transferred at the time of handing over of the common area and facilities which occasion has not yet arisen. Consequently the order of the Deputy Registrar cannot be enforced nor does he has any such authority to intervene in the matter.
We have considered the submissions raised and we find that the competent authority under the 2010 Act is the authority which is entitled to decide the dispute which is pending before it in relation to the election. The said election dispute therefore will have to go before the Deputy Registrar who is the competent authority to take such a decision in the matter but at the same time, if the transfer of the amount is directed without their being any decision on such complaint, the same will have to be taken into account while issuing such directions.
The question as to whether the present office bearers are validly elected office bearers of the association or not would be dependent upon the outcome of the complaint which is yet to be decided by the authority.
In this view of the matter, we direct the respondent No.2 to proceed to decide the said complaint with regard to the elections preferably within two months from today and we also direct that the transfer of amount shall be subject to the outcome of such a decision to be taken by the respondent No.2 in accordance with law as directed hereinabove.
Disposed off with the said observations.
It will be open to the petitioners to file a list of the complaints and those already sent along with a certified copy of this order for appropriate action in the matter.
Order Date :- 31.10.2018 saqlain