Windor Park Residents Welfare ... vs State Of U.P. And 4 Others
2023 Latest Caselaw 18282 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:145366
 
Court No. - 66
 

 
Case :- WRIT - C No. - 12380 of 2023
 
Petitioner :- Windsor Park Residents Welfare Association
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Abhijeet Mukherji,Sushmita Mukherjee
 
Counsel for Respondent :- C.S.C.,Dinesh Kumar Mishra
 

 
Hon'ble Ajay Bhanot,J.

1. The judgement is being structured in the following conceptual framework to facilitate the discussion:

I

Introduction

II

Submissions of learned counsels

III

Locus Standi

IV

Facts

V

Issues arising for consideration

VI

Legality of Reference to the Prescribed Authority

VII

Elections under the Apartment Act and Model Bye-Laws: Analysis

VIII

The judgment entered by this Court in Special Appeal No.1224 of 2018 & the Hon'ble Supreme Court in Civil Appeal No. 1442 of 2020

IX

Conclusions & Directions

I. Introduction

2. By the impugned order dated 29.10.2022 the respondent No.2-Deputy Registrar, Firms, Societies and Chits, Meerut referred the election dispute of the petitioner-society to the Prescribed Authority/Sub-Divisional Magistrate/respondent No.3 under Section 25(1) of the Societies Registration Act, 1860.

3. By the impugned order dated 08.02.2023 the respondent No.3-Sub-Divisional Magistrate, Ghaziabad/prescribed authority in exercise of powers under Section 25(1) of the Societies Registration Act, while deciding the reference made by the Deputy Registrar, Firms, Societies and Chits, Meerut has invalidated the elections to the Board of Management of the petitioner-society held on 26.06.2022. The said impugned order further directed the Deputy Registrar, Firms, Societies and Chits, Meerut to hold the elections to all 10 posts of Board of Management of the Windsor Park Residents Welfare Association.

4. The impugned order dated 14.03.2023 passed by the respondent No.2-Deputy Registrar, Firms, Societies and Chits, Meerut directs the holding of elections to all 10 posts of Board of Directors of the Windsor Park Residents Welfare Association under Section 25(2) of the Societies Registration Act and the said order has been passed in compliance of the order dated 08.02.2023 entered by the Sub-Divisional Magistrate/prescribed authority.

5. The impugned order dated 08.02.2023 finds that the annual elections of 26.06.2022 were held only to three posts instead of all 10 posts of the Board of Management.

II. Submissions

6. Shri Abhijeet Mukherji, learned counsel for the petitioner has made the following submissions assailing the impugned orders:

(i). Reference to the Prescribed Authority was unlawful.

(ii). As per the Uttar Pradesh Apartment (Promotion of Construction, Ownership & Maintenance) Act, 2010, read with Model Bye-laws, the elections to only 1/3rd (3 out of 10) of the posts of the Board of Management have to be held on an yearly basis.

(iii). 2/3rd of the members of the Board of Management are not liable to face annual elections.

(iv). No office bearer has held a post continuously for more than two years.

v. Respondent No.5 has no locus standi in the matter.

7. Shri Vinit Garg-respondent No.5 in person has made the following submissions in support of the impugned orders and against the actions of the petitioner:

(i). Respondent No.5 is an owner of a flat in the Windsor Apartment and is a member of the society.

(ii). The reference was within the ambit of Section 25(1) of the Societies Registration Act, 1860.

(iii). The Uttar Pradesh Apartment (Promotion of Construction, Ownership & Maintenance) Act, 2010, read with Model Bye-Laws mandates that the elections to all 10 posts of Board of Management have to be held on annual basis.

(iv). Elections dated 26.02.2022 are not consistent with the said Act and Model Bye-Laws.

(v). A number of persons have continued in the Board of Management but have evaded elections for past two years.

8. Learned Standing Counsel for the State-respondents has defended the impugned orders by adopting the arguments of the respondent No.5.

III. Locus Standi

9. The respondent No. 5 is a flat owner in Windsor Manor Park Apartment. He is a member of the Windsor Manor Park Residents Welfare Association. He had the locus standi to make a complaint before the Deputy Registrar, Chits Firms and Societies, Meerut and can legitimately contest the writ petition.

IV. Facts

10. The facts in this case are confined to a narrow compass. There exists a society running under the name and style of Windsor Park Residents Welfare Association registered under the Societies Registration Act, 1860. The Board of Management which runs the affairs of the society is an elected body comprised of 10 members. Composition of Board of Management of the petitioner-society is: President, Vice President, Secretary and Treasurer and six members of the Board of Management.

11. The elections to various offices of the Board of Management of the said society have been held from time to time. The elections to fill all 10 posts of the Board of Management were held on 09.07.2020, by the Deputy Registrar, Firms, Societies and Chits, Meerut and results were declared on 16.09.2020. However, in the year 2021 the elections were held only for three posts vacated by members who retired that year and not for all the 10 posts of the Board of Management. The election results were declared on 26.06.2021.

12. The same procedure was repeated in the year 2022. Annual election of 2022 for the Board of Management was notified only to fill 3 posts which fell vacant on the annual retirement of said members of the Board of Management. The results of the election of 2022 to the aforesaid 3 posts were announced on 26.06.2022. The elections of 2021 & 2022 were held by the Board of Management.

V. Issues arising for consideration

13. The issues arising for consideration are:

I. Whether the reference made by the Deputy Registrar, Firms, Societies and Chits, Meerut-respondent No.2 to the Prescribed Authority/Sub-Divisional Magistrate, Ghaziabad-respondent No.3 under Section 25(1) of the Societies Registration Act, 1860 was lawful and valid?

II. Whether elections to all 10 posts of the Board of Management are liable to be held on an annual basis as per the scheme of the Uttar Pradesh Apartment (Promotion of Construction, Ownership & Maintenance) Act, 2010, read with Model Bye-Laws dated 16th November, 2011 framed thereunder?

III. Whether the elections to fill only 1/3rd of the posts of the Board of Management on vacancies caused by annual retirements were in consonance with the provisions of Uttar Pradesh Apartment (Promotion of Construction, Ownership & Maintenance) Act, 2010, read with Model Bye-Laws dated 16th November, 2011 framed thereunder?

VI. Legality of the Reference to the Prescribed Authority

14. The dispute laid before the Deputy Registrar, Firms, Societies and Chits, Meerut-respondent No.2 pertained to elections of the Board of Management of the society and continuance of the elected office bearers of the said society. The legislature created a specific forum and provided a meticulous procedure for determination of election disputes in societies by the Prescribed Authority under Section 25(1) of the Societies Registration Act.

15. The statutory mandate is explicit. Good authorities have settled the law. Reference to cases in point can be profitably made to fortify the narrative. This Court in All India Council and another v. Assistant Registrar, Firms, Societies and Chits, Varanasi Region, Varanasi and another1, while interpreting the scope of Section 25(1) of the Societies Registration Act, 1860 held:

"7. It will, therefore, be seen that insofar as disputes or doubts in respect of the election or continuance in office of the office-bearers of a society registered in Uttar Pradesh are concerned, the Legislature has created a specific forum and laid down an exhaustive procedure for determination of the same under S.25. There is no other provision, express or otherwise, providing for determination of such disputes specifically. It is settled law that where, as here, the Legislature creates a specific forum and lays an exhaustive procedure for determination of a particular class of disputes in respect of matters covered by the stature, such disputes can be determined only in that forum and in the manner prescribed thereunder and not otherwise. If, therefore, a dispute is raised with regard to the election or continuance in office of an office-bearer of a society registered in Uttar Pradesh, the same has to be decided only by the Prescribed Authority under S. 25 (1) and not by the Registrar, save, of course, to the decision of the Prescribed Authority being subject to the result of a civil suit."

[Also see: Gram Shiksha Sudhar Samiti, Junior High School, Skandra, District Kanpur Dehat and another v. Registrar, Firms, Societies and Chits, U.P., Lucknow and others2]

16. The impugned order dated 29.10.2022 discloses that a dispute had arisen as to the legality elections to the society & also the continuance of elected office bearers pursuant to the said elections.

17. The Deputy Registrar, Firms, Societies and Chits, Meerut by passing the impugned order dated 29.10.2022 and referencing the election dispute to the Prescribed Authority has lawfully exercised powers vested in it by virtue of Section 25(1) of the Societies Registration Act, 1860 and acted in conformity with the law laid down by this Court in All India Council (supra) & Gram Shiksha Sudhar Samiti (supra).

VII. Elections under the Apartment Act and Model Bye-Laws : Analysis

18. Dilemma faced by societies and nations with the introduction of high-rise apartments culture was recalled at length by the former Prime Minister of Singapore Lee Kuan Yew in his memoirs3.

19. The proliferation of high-rise apartment societies are reflective of current economic realities and portend future social challenges. The legislature was cognizant of possible disruptive effects of apartment life and also the complexities in working such societies. The requirement of regulating affairs of such apartment societies was the felt need of the time, causing the legislature to enact the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 (hereinafter referred to as Apartment Act, 2010) and Model Bye-Laws dated 16th November, 2011 notified by the Government thereunder. The scheme of elections to the Board of Management of the said society are governed and regulated by the Apartment Act, 2010 and the Model Bye-Laws framed thereunder.

20. The legislature while enacting the scheme for elections to various posts in the Board of Management of the society have addressed the issues relating to the governance of apartment societies, and aligned them to the needs of a thriving community. The constitution of apartment societies is democratic in conception and transparent in functioning.

21. The relevant provisions of the Apartment Act, 2010 & the Model Bye-laws dated 16th November, 2011 notified by the Government thereunder are reproduced hereinbelow: 

"Section 2(f) of the Apartment Act, 2010-"Board" means the Board of Management of an Association of Apartment Owners elected by its members under the bye-laws;

Section 2(h) of the Apartment Act, 2010-"bye-laws" means the bye-laws made under this Act;

Clause 4 of the Model Bye-Laws. Members of Association-

(1) All persons who have purchased apartments in .............. Condominium and executed a deed of apartment, shall automatically be the members of the Association and will pay the entrance fee of one thousand rupees. Each apartment owner shall receive a copy of the bye-laws.

(2) Upon the sale, bequest or transfer of apartment, the purchaser of the apartment or the grantee or legatee or the transferee shall automatically become the member of the Association and shall be admitted as member on payment of the entrance fee of one thousand rupees.

Clause 13 of the Model Bye-Laws. Annual Meetings -The first meeting of the Association shall be held on.....(date)......Thereafter the annual meetings of the Association shall be held on such date as the Association may decide. At such meetings Board of Management shall be elected by ballot of the apartment owners in accordance with the requirements of bye-law 23. The owners may also transact such other business of the association as may properly come before them.

Clause 18 of the Model Bye-Laws. Management of Association- The affairs of the association shall be governed by a Board. The Board of Management shall comprise of neither less than 4, nor more than 10 persons to be constituted and elected by the members by simple majority in the General Body Meeting. The principal office bearer of the Association shall be a President, a Vice-President, a Secretary and a Treasurer, all of whom shall be elected by and from the Board. The Board may appoint an Assistant Secretary and an Assistant Treasurer and such other Office bearer as the Board may consider necessary.

Clause 26 of the Model Bye-Laws. Election and term of office-

(i) The annual general meeting of the Association, to beheld in the first quarter of each financial year, shall elect neither less than 4, nor more than 10 members including the President, Vice President, Secretary, and Treasurer from Members of the Association. Provided that no member shall be eligible for election if he has been found guilty of misusing the post during his previous term. The term of office of the office-bearers of the Board shall be one year from the date of assuming office and they will be eligible for re-election. Provided that a person can not hold the same post continuously for more than 2 years. (emphasis supplied)

(ii) An arrangement shall be made by the board to ensure that one third of members of the board retire annually.

(iii) The office bearers shall hold office until their successors have been elected and hold their first meeting."

22. The requirement of registration of an association of apartment owners and the bye-laws are provided in Section 14 of the Apartment Act, 2010.

23. The aforesaid statutory scheme discloses the following distinct features:

(I). The Board of Management is composed of the 10 elected members. (Ref. Section 2(f) of the Apartment Act, 2010)

(II) Term of office of the Board of Management is one year. After expiry of the term of elected office the entire Board has to face elections. Elections to all ten posts in the Board of Management shall be held on an annual basis.

(III). Arrangements have to be made by the Board of Management for retiring 1/3rd of its members on an annual basis.

(IV). There is a restriction on continuance of a person on the same post for more than two years.

(V). The office bearers continue in office till their successors have been elected and hold their first meeting. This prevents a vacuum in the society and ensures continuity in existence and functioning.

24. Two salient aspects are evident in the said statutory election scheme. Regularity in holding elections to fill all 10 posts in the Board of Management on an yearly basis. Secondly the right to run for elected office is subject to restrictions.

25. The statutory scheme of the elections encourages a participative culture responsive to the needs of all residents, and eschews any exclusive class catering to personal ambitions of individual members.

26. Regular elections on an annual basis to all 10 posts in the Board of Management make all Board members constantly accountable to the residents. Consent of the governed is the basis of governance of the society, and the Board draws its legitimacy from elections. Yearly elections to fill all posts in the Board of Management secure the democratic underpinnings of the society administration, and also alert the residents/members to their social obligation of participating in the community event.

27. The right to run for elections is restricted and prioritizes community needs over selfish aspirations by providing for a cooling period. 1/3rd of Board members have to retire annually, and cannot contest elections in that year. Similarly office bearers are restrained from entering electoral fray after two successive years in office. Easing out the said members from the electoral fray every year enlarges voter choices, embraces diversity of opinions and churns the composition of the Board by inducting fresh faces.

28. The election rights are structured for wide participation in community life, but also ensure that politics do not monopolize daily life. Elections conducted regularly to fill all posts in the Board of Management and contested restrictively by those made eligible by statute foster interconnectness from arising from cooperative endeavours and avoids fissures created by professional political processes.

29. The said scheme of elections and the election rights amalgamates elements which are essential to shaping a harmonious environment in a gated community, and also critical to achieve efficient functioning and collective solutions to common problems.

VIII. The judgment entered by this Court in Special Appeal No.1224 of 2018 & the Hon'ble Supreme Court in Civil Appeal No. 1442 of 2020

30. The judgement rendered in Special Appeal No.1224 of 2018 (The Management Board, Windsor Park Residents Welfare Association Vs. State of U.P. and others) on 11.03.2019 does not come to the aid of the petitioner. The Hon'ble Supreme Court on 11.02.2020 in Civil Appeal No. 1442 of 2020 (The Management Board, Windsor Park Residents Welfare Association Vs. State of U.P. and others) while examining the said judgement (Special Appeal No.1224 of 2018) entered by the learned Division Bench of this Court took a contrary view and held as under:

"8. We, therefore consider it appropriate to set aside order dated 13.03.2018 and all consequential proceedings arising therefrom, passed by the Deputy Registrar, Firms, Societies and Chits, Meerut, as affirmed by order dated 13.11.2018 passed by the learned Single Judge and order dated 11.03.2019 passed by the Division Bench of the High Court, and direct that the matter may be reconsidered by the Registrar and appropriate orders for holding election be passed after hearing both sides. Till the elections are held,the Registrar shall take over the Management of the Association in question either himself or through a duly authorized representative. The Registrar may pass an order within a period of six weeks from the date the parties appear before him. We further direct that the elections to the Board of Management shall be held by the appropriate authority in accordance with law and the further elections to the office bearers too shall be held by the appropriate authority in accordance with law."

31. The judgement of the learned Division Bench of this Court in Windsor (supra) has merged in the judgement of the Supreme Court. [See: Kunhayammed and others v. State of Kerala and another4]

IX. Conclusions & Directions

32. Admittedly on 26.02.2022 the elections were held only to fill 1/3rd of the posts in the Board of Management. 2/3rd members of the Board of the Management evaded the annual elections in 2022.

33. Facts in the record establish that this ingenious and illegal method of elections has been in vogue since 2021, and has enabled some members of the Board of Management to continue in the Board without contesting annual elections for two years. Further there is no certainty when the said members would face elections. The system of elections adopted by the petitioner creates an entitled class which is entrenched in elected office but avoids electoral contest and abjures accountability of elected representatives. The legislature assiduously sought to curb this evil with the promulgation of the Apartment Act, 2010 read with Model Bye-Laws dated 16th November, 2011 notified thereunder.

34. In the wake of the preceding narrative failure to hold elections to fill all 10 posts of the Board of Management vitiates the elections dated 26.02.2022. The elections dated 26.02.2022 being in contravention of the Apartment Act, 2010, read with Model Bye-Laws dated 16th November, 2011 notified thereunder were lawfully set aside by the impugned order dated 08.02.2023, and accordingly the direction in the impugned order dated 08.02.2023 to conduct fresh elections cannot be faulted.

35. The impugned order dated 14.03.2023 was passed by the Deputy Registrar, Firms, Societies and Chits, Meerut-respondent No.2 in compliance of direction and the order of the prescribed authority/Sub Divisional Magistrate, Ghaziabad dated 08.02.2023 upheld earlier, and in lawful exercise of powers under Section 25(2) of the Societies Registration Act to conduct the elections of the society. The challenge to the said order also fails.

36. In the interest of justice this Court commands the respondents to execute the following directions:

(I) The respondent No.2-Deputy Registrar, Firms, Societies and Chits, Meerut shall hold the elections to fill the 10 posts in the Board of Management of the society. The election schedule shall be notified within a period of 15 days from the date of receipt of a certified copy of this order, and the elections shall be conducted in the manner discussed in the earlier part of the judgement.

(II) The District Administration shall offer full support in the holding of fair and peaceful elections of the society.

(III) Elections to the 10 posts in the Board of Management shall be held annually in future, and in light of this judgement and in accordance with the Apartment Act, 2010, read with Model Bye-Laws dated 16th November, 2011 notified thereunder.

37. The writ petition is liable to be dismissed and is dismissed subject to above observations.

38. Registry is directed to send a copy of this order to the Deputy Registrar, Firms, Societies and Chits, Meerut for compliance.

Order Date :- 20.07.2023

Ashish Tripathi