Chitramala Land And Flat Owners ... vs Government Of Karnataka
2023 Latest Caselaw 241 Kant

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                                                  WP No. 23674 of 2021
                                                 C/W WP No. 99 of 2021

                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 4TH DAY OF JANUARY, 2023

                                      BEFORE
                      THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                      WRIT PETITION NO. 23674 OF 2021 (GM-KSR)
                                        C/W
                       WRIT PETITION NO. 99 OF 2021 (GM-KSR)


              IN WRIT PETITION NO. 23674 OF 2021
              BETWEEN:

              SRI G S MURTHY
              S/O N GOPAL ROA
              AGED ABOUT 70 YEARS
              R/AT FLAT NO.202
              CHITRAMALA APARTMENT
              JAYANAGARA 1ST BLOCK
              BENGALURU 560 011.

                                                         ...PETITIONER

              (BY SRI. PRADEEP H.S., ADVOCATE)
Digitally signed by
PADMAVATHI B K AND:
Location: HIGH
COURT OF
KARNATAKA
              1.    THE STATE OF KARNATAKA
                    REP BY ITS REGISTRAR
                    DEPARTMENT OF CO-OPERATIVE SOCIETY
                    NO.1 ALI ASKAR ROAD
                    BENGALURU 560 051

              2.    THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETY
                    3RD ZONE 8TH CROSS
                    MARGOSA ROAD
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                                   WP No. 23674 of 2021
                                  C/W WP No. 99 of 2021

     MALLESHWARAM
     BENGALURU 560 003

3.   CHITRAMALA LAND AND FLAT OWNERS WELFARE
     ASSOCIATIONS
     4TH CROSS BYRASANDRA
     JAYANAGARA 1ST BLOCK
     BENGALURU 560 011
     REP BY ITS PRESIDENT
     SRI B B RAMANAMURTHY

                                        ...RESPONDENTS

(BY SRI. SRIDHAR HEGDE, AGA FOR R1 AND R2;
     SRI. AJAY GOVINDARAJ, ADVOCATE FOR R3)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DIRECT THE R-1 AND R-2 TO CANCEL THE REGISTRATION OF
THE R-3 ASSOCIATION VIDE ANNEXURE-A AND ETC.,

IN WP NO. 99 OF 2021 (GM-KSR)


BETWEEN:

CHITRAMALA LAND AND FLAT OWNERS WELFARE
ASSOCIATION
(AN ASSOCIATION REGISTERED UNDER THE
PROVISIONS OF THE KARNATAKA SOCIETIES
REGISTRATION ACT)
NOW REPRESENTED BY B V RAMANA MURTHY
PRESIDENT
R/A 4TH CROSS, BYRASANDRA
JAYANAGAR 1ST BLOCK
BANGALORE-560011

                                              ...PETITIONER

(BY SRI. AJAY GOVINDARAJU, ADVOCATE)
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                                   WP No. 23674 of 2021
                                  C/W WP No. 99 of 2021

AND:

1.   GOVERNMENT OF KARNATAKA
     DEPARTMENT OF CO-OPERATIVE SOCIETIES
     6TH FLOOR, MULTI STOREYED BUILDING
     AMBEDKAR VEEDHI, BANGALORE-560001
     REPRESENTED BY ITS SECRETARY

2.   DISTRICT REGISTRAR CO-OPERATIVE SOCIETIES
     ZONE-3
     BANGALORE URBAN DISTRICT
     SAHAKARA SOUDHA
     8TH CROSS, 3RD MAIN ROAD
     MARGOSA ROAD, MALLESWARAM
     BANGALORE-560003

3.   B S HARISH KUMAR
     ADMINISTRATOR AND DEVELOPMENT OFFICER
     CO-OPERATIVE SOCIETIES
     OFFICE OF THE DEPUTY REGISTRAR
     BANGALORE-560018

4.   G S MURTHI
     S/O LATE N GOPAL RAO
     AGED ABOUT 69 YEARS
     R/A FLAT NO.202
     CHITRAMALA APARTMENTS
     JAYANAGAR, FIRST BLOCK
     BANGALORE-560011

                                        ...RESPONDENTS

(BY SRI. SRIDHAR HEGDE, AGA FOR R1 AND R2;
     SRI. B.S.GURUDATH, ADVOCATE FOR R4)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ENTIRE ACTION CULMINATING IN THE ORDER
DTD.4.12.2020 ISSUED BY THE R-4 ANNEXURE-H AND
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                                         WP No. 23674 of 2021
                                        C/W WP No. 99 of 2021

RESTRAIN THE R-4 FROM TAKING OVER THE MANAGEMENT OF
THE PETITIONER ASSOCIATION AND ETC.,


    THESE WRIT PETITIONS, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:



                            ORDER

Writ Petition No.23674 of 2021:

The petitioner is before this Court seeking a direction in

the nature of mandamus for cancellation of the registration of

the 3rd respondent on the ground that its registration itself is

without jurisdiction.

2. Heard Sri.H.S.Pradeep, learned counsel appearing for

petitioner, Sri.Sridhar Hegde, learned Additional Government

Advocate appearing for respondent Nos.1 and 2 and Sri.Ajay

Govindaraj, learned counsel appearing for respondent No.3.

3. The 3rd respondent-Chitramala Land and Flat Owners

Welfare Association ('Association' for short) is registered under

the Karnataka Societies Registration Act, 1960 in the year

2004. The petitioner, one of the residents of the apartment

complex, submits a representation to the 2nd respondent-

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Deputy Registrar of Co-operative Societies seeking to cancel

the registration of the 3rd respondent. This is turned down by

an endorsement dated 29.09.2021. This leads the petitioner to

this Court in the subject petition.

4. The learned counsel appearing for the petitioner

submits that the issue in the lis stands covered by the

judgment of the Division Bench of this Court in Writ Appeal

No.974 of 2019 disposed on 06.11.2019. The position of law is

not disputed by the respondents.

5. The Division Bench in Writ Appeal No.974 of 2019 has

held as follows:

"6. Section 3 of the said Act of 1960 reads thus:

3. Societies to which the Act applies.-

The following societies may be registered

under this Act,--

Societies established for,--

(a) the promotion of charity;

(b) the promotion of education, science, literature, or the fine arts;

(c) the promotion of sports;

(d) the instruction and the diffusion of knowledge relating to commerce or industry or of any other useful knowledge;

(e) the diffusion of political education;

(f) the foundation or maintenance of

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libraries or reading rooms for general use among the members or open to the public, or of public museums and galleries of painting and other works of art;

[(ff)the promotion of conservation and proper use of natural resources and scarce Infrastructural facilities like land, power, water, forest and such other resources and infrastructural facilities, as may be notified by the State Government from time to time.]

(g)the collection of natural history, mechanical and philosophical inventions Or designs and

Which intend to apply their profits, if any, or other income in promoting their objects and prohibit the payment of any dividend or distribution of any income or profits among their members."

Even according to the case of the appellant, the dominant object for the formation of the appellant Association is to administer, maintain and run the building and apartments. Clauses 5.1 and 5.2 are, even according to the learned counsel for the appellant, the dominant objects of the Association, and they read thus:

5.1 To administer, maintain and run the building and apartments known as VDB Celadon No.23/3, 23/4, 26/1, Shivanahalli Hobli, Jakkur Road, Yelahanka, Bangalore - 560064.

5.2 To Carry on the Day-to-day work relating to all aspects of the building, apartments, common areas, common facilities and common services therein;

7. On a plain reading of Section 3 of the said Act of 1960, it is clear that the object of administering, maintaining and running the buildings and apartments and to carry on the day-to-day work relating to all the aspects of the buildings/apartments, common areas and common facilities will not be covered by any of the clauses (a) to (g) of Section 3 of the said Act of 1960.

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Even according to the case of the appellant, Clauses 5.1 and 5.2 are its dominant objects. In fact, on the earlier date, we had granted time to the appellant to take instructions whether it proposes to apply for deletion of certain objects which are a part of the bye-laws of the appellant Association.

8. Today, the learned counsel appearing for the appellant, on instructions, states that if the said two objects are deleted, the registration of the appellant under the said Act of 1960 cannot be maintained.

9. Thus, the main object of the appellant was to do something which could have been done by an Association formed in accordance with the provisions of the said Act of 1972. In fact, the documents of sale executed by the developer in respect of the flat/apartment contain a stipulation that the purchasers of the flats shall form an Association/Society/Condominium in accordance with the provisions of the said Act of 1972. That is how the learned Single Judge by modifying the impugned order dated 15th February, 2019, has clarified that steps can be taken to register the appellant Association under the provisions of the said Act of 1972.

10. Thus, after having perused the dominant objects of the appellant Association, we find that the said objects are not covered by Section 3 of the said Act of 1960, and therefore, the appellant could not have been registered under the said Act. We find no error in the view taken by the learned Single Judge when he had proceeded to cancel registration of the appellant.

11. As observed by the learned Single Judge, the impugned order as well as this order will not prevent the persons who are members of the appellant Association from taking steps for formation and registration of an Association/Condominium under the provisions of the said Act of 1972 inasmuch as the sale deeds executed in favour of the apartment owners contemplate formation of such Association."

(Emphasis supplied)

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A co-ordinate Bench of this Court in Writ Petition No.7193

of 2021 disposed on 09.11.2021 following the aforesaid

judgment of the Division Bench has held as follows:

"The subject matter of this writ petition is substantially covered by the Decision Bench decision dated 06.11.2019 in W.A.No.974/2019 (GM-KSR) & W.A.Nos. 1206-1211/2019 (GM-KSR) between VDB CELADON APARTMENT OWNERS ASSOCIATION Vs. MR. PRAVEEN PRAKASH & OTHERS, wherein paragraphs. 7, 9 & 10 read as under:

"7. On a plain reading of Section 3 of the said Act of 1960, it is clear that the object of administering, maintaining and running the buildings and apartments and to carry on the day-to-day work relating to all the aspects of the buildings/apartments, common areas and common facilities will not be covered by any of the clauses (a) to (g) of Section 3 of the said Act of 1960. Even according to the case of the appellant, Clauses 5.1 and 5.2 are its dominant objects. In fact, on the earlier date, we had granted time to the appellant to take instructions whether it proposes to apply for deletion of certain objects which are a part of the bye-laws of the appellant Association.

9. Thus, the main object of the appellant was to do something which could have been done by an Association formed in accordance with the provisions of the said Act of 1972. In fact, the documents of sale executed by the developer in respect of the flat/apartment contain a stipulation that the purchasers of the flats shall form an Association/Society/Condominium in accordance with the provisions of the said Act of 1972. That is how the learned Single Judge by modifying the impugned order dated 15th February, 2019, has clarified that steps can be taken to register the appellant Association under the provisions of the said Act of 1972.

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10. Thus, after having perused the dominant objects of the appellant Association, we find that the said objects are not covered by Section 3 of the said Act of 1960, and therefore, the appellant could not have been registered under the said Act. We find no error in the view taken by the learned Single Judge when he had proceeded to cancel registration of the appellant."

2. The Division Bench of this Court in W.A.Nos.932-933/1974 between A.V.VINODA & ANOTHER Vs. STATE OF KARNATAKA BY ITS COMMISSIONER & SECRETARY, disposed off on 11.12.1974, has held that the Court should treat the like- cases alike and if relief is granted to a litigant it has to be extended to a similarly circumstanced litigant as well, there being no derogatory circumstances.

In the above circumstances, this writ petition succeeds; a Writ of Certiorari issues quashing the impugned Registration Certificate bearing No. JNR-S455-2015-16 dated 18.02.2016 a copy whereof is at Annexure-A. Costs made easy.

In the light of the judgment rendered by the Division

Bench and the order passed by the co-ordinate Bench (supra),

the petitioner is entitled to succeed for grant of the prayer that

is sought in the petition.

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Writ Petition No.99 of 2021:

6. The petitioner is an Association which is the 3rd

respondent in the companion petition. What drives the

Association to this Court in the subject petition is the order

dated 4.12.2020 by which the Government appoints an

Administrator to the Association.

7. Heard Sri.Ajay Govindaraj, learned counsel appearing

for petitioner, Sri.Sridhar Hegde, learned Additional

Government Advocate appearing for respondent Nos.1 and 2

and Sri.B.S.Gurudath, learned counsel appearing for

respondent No.4.

8. The issue in the lis is an offshoot of what is held in the

companion petition. In the light of companion petition being

allowed and a direction to cancel the registration of the

Association being issued, the appointment of Administrator in

terms of the order impugned would also go.

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9. In view of the Administrator already being appointed

and the Division Bench in Writ Appeal No.974 of 2019 granting

two months time to the Association to get themselves

registered under the Karnataka Apartment Ownership Act, 1972

('1972 Act' for short), for the smooth functioning of the

Association, I deem it appropriate to permit the Administrator

to continue in the position till the Association gets registered

under the 1972 Act, so that there is no vacuum in

Management.

10. For the aforesaid reasons, the following:

ORDER

(WRIT PETITION NO.23674 OF 2021)

(i) Writ Petition is allowed.

(ii) The respondents 1 and 2 are directed to cancel the

registration of the 3rd respondent under the

Karnataka Societies Registration Act, 1960.

(iii) The 3rd respondent is reserved liberty to get

themselves registered under the Karnataka

Apartment Ownership Act, 1972.

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ORDER

(WRIT PETITION NO.99 OF 2021)

(i) Writ Petition is allowed.

(ii) Impugned order dated 04.12.2020 appointing the

Administrator stands quashed.

(iii) The Administrator so appointed shall continue till

the Association get themselves registered under the

1972 Act.

Sd/-

JUDGE

bkp

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WP No. 23674 of 2021 C/W WP No. 99 of 2021

IN THE HIGH COURT OF KARNATAKA AT BENGALURU [SRI G S MURTHY VS. THE STATE OF KARNATAKA AND OTHERS]

MNPJ 18.01.2023 (VIDEO CONFERENCING / PHYSICAL HEARING)

ORDER ON 'BEING SPOKEN TO'

The subject petitions were heard and disposed on 04.01.2023.

The learned counsel Sri. Ajay Govindaraj, appearing for respondent No.3 has moved this memo for being spoken to, on the ground that there is some inadvertent error crept in, into the order, insofar as it relates to the operative portions of both the orders.

In W.P.No.23674/2021, this Court has directed respondents No.1 and 2 to cancel the registration of respondent No.3. The same shall be read as registration of respondent No.3 stands cancelled.

In the operative portion of W.P.No.99/2021, at clause 3, it is observed that the Administrator so appointed shall continue till the association would get themselves registered.

The learned counsel would submit that the order appointing the Administrator was stayed by this Court and has never taken such charge. Therefore, the said clause shall be read as the association shall get themselves registered within an outer limit of two months from today under the 1972 Act,

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failing which, they would loose the power of collection of any maintenance from the hands of the residents of the apartment, until such time the present committee shall continue to function.

This order shall be treated as part and parcel of the final order dated 04.01.2023.

The aforesaid corrections be effected to the operative portions of the respective orders and a fresh certified copy be issued to the petitioners.

Sd/-

JUDGE

JY