Kendriya Vihar Apartment Owners vs Igr-Cum-Registrar Of Societies
2023 Latest Caselaw 2097 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                            W.P.(C) No.5281 of 2023
                            (Through hybrid mode)

 Kendriya Vihar Apartment Owners                    ....               Petitioners
 Association Phase-II and another

                                     -versus-

 IGR-cum-Registrar of Societies,                    ....        Opposite Parties
 Board of Revenue, Odisha and
 others



 Advocates appeared in this case:

 For Petitioners:            Mr. Goutam Mishra, Senior Advocate

 For Opp. Party no.2: Mr. Anindya Kumar Mishra, Advocate

 For Opp. Party no.1: Ms. Suman Pattanayak, AGA



              CORAM: JUSTICE ARINDAM SINHA
                                      JUDGMENT

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Date of hearing and judgment: 13.03.2023

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1. Mr. G. Mishra, learned senior advocate appears on behalf of

petitioners and submits, his clients are apartment owners in Phase-II of

Kendriya Vihar Apartments constructed by Central Government

Employees Welfare Housing Organization.

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2. He submits, impugned is order dated 9th February, 2023 by

which the Registrar of Societies cancelled registration of his client's

society known as 'Kendriya Vihar Apartment Owners Association

Phase-II (KV AOA-II)'. He submits, the cancellation was illegal.

3. The project for constructing apartment buildings was to be

undertaken in two phases. His clients are apartment owners in Phase-II,

construction of which was completed after coming into force of Real

Estate (Regulation and Development) Act, 2016. He draws attention to

the explanation under section 3, reproduced below.

"Explanation.- For the purpose of this section, where the real estate project is to be developed in phases, every such phase shall be considered a stand alone real estate project, and the promoter shall obtain registration under this Act for each phase separately."

(emphasis supplied)

Separate registration in respect of Phase-II was obtained as evident

from application made in Form-B dated 18th November, 2019.

4. He relies on view taken by a learned Single Judge of Delhi

High Court in Pritam Singh v. Registrar of Firms and Societies

(W.P.(C) no.7517 of 2012) decided on 9th April, 2015 and available

at 2015 SCC Online Del 8732. He relies on paragraph 7.1 reproduced

below.

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"7.1 Ms. Maheshwari has not been able to demonstrate from the provisions of the SRA or the Rules framed thereunder, anything, which would show that two societies cannot be housed in the same premises."

5. He submits, this contention was taken before the Registrar but

not dealt with. On query from Court he submits, there was no

misrepresentation in giving address of his clients' society and hence

there was no ground under section 12-D(c) in Societies Registration

Act, 1860 (by Odisha Amendment) to cancel the registration. He seeks

interference.

6. Mr. A.K. Mishra, learned advocate appears on behalf of

opposite party no.2 and submits with reference to impugned order that

there was clear misrepresentation regarding address of petitioners'

society. The project consisted of phases 1 and 2, as was made known

to petitioners. It had and has only one address, which is address of his

clients' society. Hence, there was clear misrepresentation of address

given by petitioners' society in operating from the same project and

necessarily to have the same address. In the circumstances, clause (c)

in section 12-D (Act of 1860/Odisha Amendment) stood attracted and

impugned order duly made.

7. Ms. Pattanayak, learned advocate, Additional Government

Advocate appears on behalf of opposite party no.1.

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8. The cancellation provision was brought into the Act of 1860

by Odisha Amendment. Subsequently the Act of 2016 (Central Act)

was enacted and to come into effect on notification made. Mr. G.

Mishra submits, separate provisions were separately notified. Section

3 was notified as came into effect on 19th April, 2017.

9. It appears from the form-B application dated 18th November,

2019, for registration under the Act of 2016 in respect of Phase-II that

several plots were mentioned in it. All these plots were said to come

within limit of post office Janla having pin code 752054. However,

address of petitioners' Society, as per its certificate of registration

dated 13th July, 2020 gives, inter alia, pin code to be 751028. There

does not appear to be inquiry made regarding this, in the finding of

misrepresentation of address given for cancellation of registration of

the society of petitioners. In the circumstances, it is not necessary to

delve further for adjudicating whether commonality found by

impugned order would prevent separate registration of the societies.

10. There appears on the face of impugned order material

irregularity, in omitting to consider the facts urged before it as

available from the materials on record. In the circumstances,

impugned order is set aside and quashed. Application of opposite

party no.2, for cancellation of registration in respect of petitioners'

society, is restored to the authority. Upon hearing given to petitioners

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and opposite party no.2, opposite party no.1 will pass fresh order, to

dispose of the application.

11. The writ petition is disposed of.

(Arindam Sinha) Judge Sks