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2018 DIGILAW 2004 (ALL)

RESIDENTS WELFARE ASSOCIATION TOWNSHIP GURJINDER VIHAR v. STATE OF U. P.

2018-09-17

ANJANI KUMAR MISHRA

body2018
JUDGMENT Hon’ble Anjani Kumar Mishra, J.—Heard Shri Swapnil Kumar, learned counsel for the petitioner and Shri V.K. Singh, Senior Advocated assisted by Ms. Archana Singh for the newly added respondents. 2. The petitioner, a registered society duly registered under the Societies Registration Act w.e.f. 11.9.2009 has challenged the order dated 30.6.2018 passed by the Deputy Registrar, Firms Societies and Chits Mohanpuri, Meerut. 3. By this order, the Deputy Registrar has set aside an earlier order dated 19.2.2018 registering the Bye Laws of the Society and has issued several directions to the Society. 4. The Bye Laws of the petitioner Society are required to be framed in accordance with the provisions contained in Section 14 of the U.P. Apartment (Promotion of Constructions, Ownership and Maintenance) Act, 2010. The same Act also provides the Model Bye Laws. 5. Sub-section 6 of Section 14 provides that the Association of Apartment owners shall not make any departure from, or variation or addition or ommission from the Model Bye Laws except with the prior approval of the Competent Authority. 6. The case of the petitioner in this writ petition, which is also an association of apartment owners is that the Bye Laws, which had been submitted for registration and were duly registered on 19.2.2018 were framed in accordance with the procedure prescribed under law. These Bye Laws had also been forwarded to the Competent Authority for approval. 7. However, the parties are at issue as to whether, the approval were duly granted by the Competent Authority or not. Although, the petitioner’s claim that such an approval was granted, there is nothing on record to substantiate this contention. 8. The contention of counsel for the contesting respondent of course is that no such approval has been granted by the Competent Authority till date. 9. It is also the case of the respondent that in fact, the Model Bye Laws were required to be approved in a meeting of the General Body of the Society, but this has not been done. 10. The dispute in the writ petition is to be decided in the context of the afore-noted submissions of counsel for the parties. The primary issue is as to whether or not the Bye Laws framed by the petitioner have been duly approved by the Competent Authority. 11. 10. The dispute in the writ petition is to be decided in the context of the afore-noted submissions of counsel for the parties. The primary issue is as to whether or not the Bye Laws framed by the petitioner have been duly approved by the Competent Authority. 11. In so far as the order impugned cancels registration of the Bye Laws, the order in my considered opinion, is not liable to be interfered with because the petitioners have not been able to establish that the Bye Laws framed by them have been duly approved by the Competent Authority, especially as there appears to be some variation between the Model Bye Laws and the Bye Laws formed by the Society. 12. Therefore, all that remains to be considered in this writ petition is whether the Deputy Registrar was competent to issue the directions contained in the impugned order. 13. The contention of Senior Counsel for the respondents is that the writ petition is premature because the impugned order is a mere show-cause notice in essence. 14. As many as 3 directions have been issued by the impugned order. The first direction is that the Bye Laws should be a word to word copy of the Model Bye Laws provided in the Act. This word to word copy of the Model Bye Laws has been directed to be submitted after getting the same approved by the General Body of the Society. 15. In my considered opinion and especially having regard to the provisions contained in Section 14(6) of the Act, such a direction does not appear to be justified because under the said provision, variation from the Model Bye Laws is permissible as long as such variation is approved by the Competent Authority. It is the specific case of the petitioner that the Bye Laws framed had been duly forwarded to the competent authority for approval. 16. The second direction that has been issued by the impugned order is with regard to the transfer of the flats by their owners. The petitioner has been directed to issue the NOC, which is required prior to the transfer of a flat. It has also been provided that in case, the NOC is not given by the petitioner within a period of 15 days, the AWHO will grant the NOC. 17. The petitioner has been directed to issue the NOC, which is required prior to the transfer of a flat. It has also been provided that in case, the NOC is not given by the petitioner within a period of 15 days, the AWHO will grant the NOC. 17. In my considered opinion, even this direction does not appear to be justified because it is the case of the petitioner that the NOC is not to be issued by it. In any case, the NOC will have to be issued in terms of the Bye Laws of the Society, which prima facie appear to be pending approval to the Competent Authority. 18. The third direction that has been issued by the impugned order is that the petitioner can framed Bye Laws only with regard to the common area and public services and their management and maintenance. This direction again is contrary to second direction in the impugned order, which also cost the responsibility upon the petitioner to issue a NOC within a period of 15 days. The directions therefore, in my considered opinion, are not justified and cannot be sustained because the Bye Laws, once approved by the Competent Authority shall have to be registered by the Deputy Registrar. For the same reason, the impugned order cannot be termed a mere show-cause. 19. Under the circumstances, the writ petition is allowed in part. The directions issued to the petitioner by the impugned order are set aside. 20. Further, the petitioner is directed to get the approval of the Competent Authority, as regards, the Bye Laws framed by it and thereafter get the same registered by the Deputy Registrar. This exercise must be completed as expeditiously as possible, preferably within three months. 21. The Competent Authority shall, while considering the question of grant of approval to the Bye Laws framed by the Society, also examine as to whether, the Bye Laws have been approved by the members of the Society as per provisions of law applicable for the same.