Court No. - 36
Case :- WRIT - C No. - 24707 of 2018 Petitioner :- Ranjana Tripathi And 18 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Mahesh Sharma,Siddharth Khare Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sunita Agarwal,J.
Sri Arun Kumar Gupta, learned counsel appearing on behalf of Sangam Link Apartment Owners Association, Sangam Link Apartment, Baghambari Road, Allapur, Allahabad through its Secretary, formed in the elections held on 11.12.2017 filed an impleadment application today.
Sri Siddharth Khare, learned counsel for the petitioners has no objection to the prayer for impleadment.
The impleadment application is allowed.
Let the necessary incorporation be made in the array of parties within the course of the day.
The present petition is filed by 19 persons who claim to be the apartment owners of Sangam Link Apartment developed by Sangam Real Estate and Construction Pvt. Ltd.
The dispute herein is with regard to the election of the Residents Welfare Association of the said apartment under the Uttar Pradesh Apartment (Promotion of Construction, Ownership & Maintenance) Act, 2010.
As per claim of the petitioners, the election of Residents Welfare Association of the said apartment has been held on 11.12.2017 wherein the petitioners were not allowed to participate. As a result of it, they filed objection before the Nodal Officer (Officer-on-Special Duty/Zonal Officer) of the Allahabad Development Authority, Allahabad who had supervised the elections on 11.12.2017. Specific objections were taken by the petitioners that they did not receive any notice with regard to the date of election nor they were allowed to participate. The said objections were rejected vide order dated 19.2.2018 passed by the Nodal Officer while forwarding papers for registration to the Assistant Registrar, Societies, Chits and Fund, Allahabad.
Pursuant to the said letter, the Assistant Registrar had registered the list of office bearers of the Association on 19.3.2018. Resultantly, the petitioners filed objection challenging the list of office bearers of the Society before the Assistant Registrar on 16.4.2018 with the prayer to set aside the elections held on 11.12.2017 and further to issue directions for holding fresh elections after allowing all the apartment owners to participate.
Submission of learned counsel for the petitioners that the objections filed by the apartment owners (51 in number), including the petitioners herein, are pending before the Assistant Registrar and till date no decision has been taken. The contention is that the Residents Welfare Association cannot be allowed to act in an illegal manner.
Sri Arun Kumar Gupta, learned counsel for the newly impleaded respondent vehemently urged that the present writ petition is a proxy petition filed at the instance of builder/promoter who does not want to hand over the charge of the building/apartment to the duly formed Association i.e. the newly impleaded respondent.
Submission is that the elections dated 11.12.2017 were held under the directions issued by this Court in Writ-C No. 32910 of 2017 (Mayank Mani Dubey and 29 others vs. State of U.P. and 4 others) whereby the Vice Chairman, Allahabad Development Authority namely the competent authority was directed to nominate a responsible Gazetted officer of its office and to take all steps for registration of Association i.e. to convene a meeting of the occupants of the apartment as per the model byelaws framed under the provisions of the Act.
Submission is that while issuing the directions dated 21.8.2017, this Court had categorically directed the petitioners namely the apartment owners as also the interveners and the builder namely respondent no. 5 therein to cooperate in the formation/registration of the Association. The officers so nominated by the competent authority namely the Vice Chairman, Allahabad Development Authority was directed to convene the meeting for formation of Association i.e. to complete the process of registration within two months from the date of his nomination.
Submission is that the meeting dated 11.12.2017 was convened under the supervision of the Nodal Officer nominated by the Vice Chairman, Allahabad Development Authority under the direction issued vide judgment and order dated 21.8.2017. The petitioners herein did not cooperate in the process of election and abstained themselves from participating in the elections held on that date. Notice pertaining to the date of meeting for holding elections of the Association was duly passed at the conspicuous place of the apartment/building. The objections taken by the petitioners with regard to the validity of the elections held on 11.12.2017, therefore, cannot be sustained.
The Nodal Officer/Observer appointed by the competent authority namely the Vice Chairman, Allahabad Development Authority had considered the objections raised by the petitioners herein as also builder of the apartment and passed an order dated 19.2.2018 rejecting their objections before forwarding the papers for registration of the Association to the Assistant Registrar, Societies, Chits and Fund, Allahabad whereupon registration was made on 19.3.2018.
This apart, the Assistant Registrar also dealt with the objections raised by the petitioners herein with regard to the validity of the elections.
The order passed by the Assistant Registrar dated 19.3.2018 (Annexure '17' to the writ petition) has been placed before this Court to submit that whatever may be the objections with regard to the formation/registration of the Association of the petitioners, those have been dealt with by the Assistant Registrar. The order passed by the Assistant Registrar dated 19.3.2018 has been challenged in Writ-C No. 13222 of 2018 (Ranjana Tripathi and 50 others vs. State of U.P. and 6 others) by the petitioners herein which was withdrawn vide order dated 11.4.2018.
The order passed by the Division Bench of this Court dated 11.4.2018 has been pressed before the Court to submit that the petitioner cannot have any plausible objection with regard to the validity of the election or registration of the Association. More so, in view of the fact that they withdrew the challenge made to the order passed by the Assistant Registrar dated 19.3.2018.
Sri Siddharth Khare, learned counsel for the petitioners, on the other hand, submits that the order dated 19.3.2018 cannot be said to be an order passed on the merits of the objections taken by the petitioners. The objections filed by the petitioners (19 in number) alongwith other flat owners dated 8.1.2018 has not been dealt with on merits rather the Assistant Registrar had relegated the petitioners to approach the 'competent authority' namely the Vice Chancellor, Allahabad Development Authority, Allahabad for disposal of their objections on the premise that the elections were held under the supervision and guidance of the competent authority under the directions issued by this Court.
Submission is that any challenge to the validity or correctness of the list of election office bearers of the Association registered under the Societies Registration Act, the Registrar is the competent authority.
Submission is that the under Section 4(1) of the Societies Registration Act, 1860 (hereinafter referred to as "the Act, 1860"), the list of Managing Committee of the Association is registered with the Registrar after dealing with the objection, if any, to the validity of the elections.
Thus, after the elections were held and the list of office bearers of the Managing Committee was submitted before the Assistant Registrar, he could not have relegated the petitioners to approach the competent authority, inasmuch as, the Vice Chairman, Allahabad Development Authority, Allahabad has no role to play in the matter of registration of the list of office bearers under the Registration Act, 1860.
Insofar as the submission of Sri Arun Kumar Gupta, learned counsel for the newly impleaded respondent with regard to the maintainability of the present writ petition in view of the order of withdrawal dated 11.4.2018, the submission of learned counsel for the petitioners is that the said writ petition was withdrawn with liberty to avail appropriate remedy against the elections. The Assistant Registrar is, therefore, under obligation to deal with the objections dated 8.1.2018 and 16.4.2018 filed after withdrawal of Writ-C No. 13222 of 2018 (Ranjana Tripathi and 50 others vs. State of U.P. and 6 others) .
The copy of the objection dated 16.4.2018 has been filed with the supplementary affidavit, in order to press the prayer made in the present writ petition that the Assistant Registrar, Societies, Chits and Fund, Allahabad is under obligation to deal with this matter on merits.
Considering the submissions of learned counsel for the parties and having gone through the recorded of the matter, the orders passed by this Court from time to time as also the order dated 19.3.2018 passed by the Assistant Registrar, this much is clear that till date the objections taken by the petitioners being the apartment owners with regard to correctness/validity of the elections held on 11.12.2017 have not been addressed on merits. Under Section 4(1) of the Act, 1860, it is obligatory upon the Registrar to deal with the objection, if any, by the members of Association, with regard to the correctness or validity of the election. Under the proviso to sub- section (1) of Section 4 as soon as the list of Managing Committee is presented before the Registrar for registration, he may issue public notice or notice to such persons as he thinks fit inviting the objections and decide all objection received within the period provided in the notice.
In the instant case, the objections were placed by the apartment owners (members of the Association) on 8.1.2018 i.e. soon after the elections were held and papers were presented before the Registrar for registration of list of office bearers under Section 4(1) of the Act, 1860. It was, therefore, obligatory upon the Registrar to deal with the matter and pass a reasoned order in accordance with law.
As this has not been done, the present petition is being disposed of with the direction to the Assistant Registrar, Societies, Chits and Funds, Allahabad to decide all objections taken with regard to the validity of the elections held on 11.12.2017.
For the purpose, the Assistant Registrar shall issue notice and require the officer bearers of the Association to place all papers pertaining to the elections held on 11.12.2017. An opportunity of hearing, if required, shall also be granted to the office bearers of the registered Association as also the representatives of the petitioners/apartment owners.
The entire record pertaining to the elections conducted in the presence of the Nodal Officer, (nominated by the Vice Chairman, Allahabad Development Authority, Allahabad), shall also be summoned from his office.
The Assistant Registrar, Societies, Chits & Fund, Allahabad is directed to consider all objections and the documents submitted before him and pass a reasoned and speaking order in accordance with law, preferably, within a period of six weeks from the date of submission of certified copy of this order.
In the meantime, no one shall interfere in the day-to-day maintenance of the apartment by the registered Association.
Subject to the above observations and directions, the present writ petition is disposed of.
Order Date :- 26.7.2018 Brijesh