HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 30 Case :- WRIT - C No. - 38705 of 2015 Petitioner :- Atul Kumar Sinha Respondent :- The Dy. Registrar Reginal Office Of Dy. Registrar & 5 Others Counsel for Petitioner :- Ramesh Pandey Counsel for Respondent :- C.S.C.,R.B. Yadav Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the petitioner, learned Standing Counsel for respondent Nos. 1,2 & 6 and and Sri R.B. Yadav, learned counsel for respondent no. 3.Ghaziabad Development Authority.
By means of the present writ petition, the petitioner who claims to be an apartment owner and resident of 502, Regent, Supertech Estate Sector-09, Vaishali, Ghaziabad, U.P. prays for a direction to the Election Officer respondent No 2 to decide the objection dated 6.7.2015, challenging the voter list forwarded by the Ghaziabad Development Authority (hereinafter referred as 'GDA') to the Deputy Registrar, Firms, Societies and Chits, Meerut Mandal, Meerut vide letter dated 30.7.2015.
Contention of the petitioner is that he is living in the apartment alongwith his family i.e. wife and minor children. The Apartment Owner as per the definition under Section 3 (d) of the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance,) Act, 2010 will not only the person or persons owning an apartment but includes the spouse and children of the apartment owner and a lawful tenant of the allottee/owner of the allotment, which will also include officer or employee of the company/firm or association, which owns an apartment under a valid allotment letter and its tenant. It will also include a person holding valid power of attorney of the allottee/ owner of the apartment, where it is owned individually, jointly or in the case of a company/ firm/ society and occupied without any right of occupation either as family member, tenant, employee or person holding power of attorney will not be included in the definition of apartment owner.
As per clause 8 as contained in Chapter II of the Model Bye-Laws framed under Section 14(6) of the Act, 2010, the voting shall be on percentage basis, and the percentage of the vote to which the owner is entitled is the percentage assigned to the Dwelling unit or units in the Declaration.
The Form of declaration as provided under Rule 3 of the U.P. Apartment Rules, 2011 is to be submitted by a promoter under sub section (1) of section 12 in Form 'A' within a period of 12 months from the date of approval of the plans, where the building has been constructed or is under, construction prior to the commencement of these rules, the declaration shall be submitted within 90 days from the date of such commencement.
Specific contention of the petitioner is that no such declaration has been submitted by the promoter before the competent authority i.e. GDA. The GDA on its own has submitted a list of 247 residents as apartment owners/voters to the Deputy Registrar, Firms, Societies and Chits on the basis of which the elections are scheduled to be held on 29.7.2015. The promoter i.e. respondent no 5 in order to shift his responsibility filed writ petition no. 54398 of 2014 before this Court in which a direction has been given by this Court to the Deputy Registrar, Firms, Societies and Chits, Meerut to ensure that the elections be held provided there is no legal impediment. Resultantly an invalid registered society will be formed which will act to the prejudice of the legal Apartment Owners.
The categorical objections have been filed by the petitioner before the election officer on 2.7.2015 which has been forwarded to the Deputy Registrar on 3.7.2015. No decision has been taken as yet and the election officer is proceeding with the election scheduled as per the list published on 30.6.2015.
Sri R.B. Yadav, learned counsel has put in appearance on behalf of respondent no. 3 GDA. Upon a query made by the Court, he is not in a position to inform as to whether the promoter respondent no. 5 has submitted declaration before the competent authority i.e. GDA in Form 'A' in accordance with Rule 3 of the Rules, 2011 till date. The basis of preparation of voter list of 247 Apartment Owner is not before the Court.
Be that as it may, this Court is of the view that in case, the petitioner is legal occupant of the apartment, he has right to be heard before an Association is registered on the basis of the elections to be held on 29.7.2015.
A Division Bench of this Court in M/s. Designarch Infrastructue Pvt. Ltd. and Another vs. Vice Chairman, Ghaziabad Development Authority and others in Civil Misc. Writ Petition Nos. 33826, 46099 of 2012, 15782 of 2010 and 12110 of 2013 decided on 14th November, 2013 while answering the questions of the applicability of the Model Bye-laws, the obligation of the developer/promoter to submit the declaration and the power of the 'competent Authority' to verify the same has held in paragraph 65(12) which is quoted as under:-
"(12) The competent authority will also be entitled to verify the contents of the declaration under Section 12 of the U.P. Apartment Act, 2010 and to decide any question, which may arise out of such declaration."
In view of the dispute being raised by the petitioner that there is no declaration and the apartment owners have been deprived of their rights to vote, it would be appropriate that the matter be examined by the 'Competent Authority' within the meaning of Section 2(c) of the Apartment Act, 2010. Specific objection taken by the petitioner that no declaration has been submitted by the promoter as required under the Apartment Act, 2010, shall be considered and decided by the Competent Authority after issuing notices to the promoter and giving opportunity of hearing to all the parties concerned within one month from the date of production of certified copy of this order.While taking a decision, the 'Competent Authority' shall be guided by the observations of this Court in M/s. Designarch Infrastructue (supra) and shall issue necessary direction to ensure compliance of the directions given by this Court therein for the purpose of formation of an Association of Apartment owners.
Elections, if any, held on 29.7.2015 shall be subject matter of decision taken by the Competent Authority.
The writ petition is disposed of.
Order Date :- 17.7.2015 P.P.