Telangana High Court
Y.Krishna Rao vs The State Of Telangana, on 18 March, 2025
THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI
WRIT PETITION NO.10010 OF 2024
ORDER
In this Writ Petition, the petitioners are seeking a Writ of
Mandamus declaring the action of the 2nd respondent in registering the
4th respondent society in R.C.No.3602762-12762 dt.21.02.2023 and
issuing a registered certificate dt.21.02.2024 for formation of society
with unilateral approval of bye-laws of the society as Sampoornam Flat
Owners/Residents Welfare Association contrary to the permission
granted by the 3rd respondent dt.25.05.2023 for formation of Ad hoc
Committee for maintenance of association and in further allowing to
conduct elections for it without consideration of their representation
dt.03.04.2024 as illegal, arbitrary, unconstitutional, violative of Articles
19(1) and 300A of the Constitution of India and contrary to the
provisions of the Telangana Mutually Aided Cooperative Societies Act,
1995 and consequently to direct the 2nd respondent to cancel the
registration certificate dt.21.02.2024 and to pass such other order or
orders.
2. Brief facts leading to the filing of the present Writ Petition are
that the Telangana Housing Board has taken up a project in the
Government land to develop a residential community in the year 2010.
The Board invited applications and allotted the flats. Some of the flats
were completed in the year 2014 and some in the year 2016. However,
all the flats are not occupied by the allottees. In the meantime, the Board
has addressed a letter to the allottees to form a residents welfare
association and take over the maintenance of the flats. The flat owners
have submitted representations to continue the maintenance of their
flats. However, the Board has informed that the maintenance would be
taken up only till 31.07.2023 and the maintenance would be handed over
to the welfare association with effect from 01.08.2023 and to form an
Ad hoc Committee to take over such maintenance job. It is alleged that
an Ad hoc Committee was formed without informing all the other flat
owners and they themselves submitted representation/application before
the 2nd respondent authority for registration of the society and the same
was registered on 21.02.2024 and thereafter, elections were also sought
to be held on 21.04.2024. The petitioners, however, submitted
representations to postpone the elections since all the flat owners have
not yet become members of the society and when the same was not
considered, the petitioners have filed the present Writ Petition
challenging the registration of the 4th respondent society itself as bad in
law and also as contrary to the provisions of the Telangana Mutually
Aided Cooperative Societies Act.
3. Initially, this Court, vide order dt.18.04.2024, had directed all the
parties to maintain status quo as on the date of the order in all respects
and subsequently, vide order dt.03.05.2024, the same was modified to
the extent of allowing the Ad hoc Committee to manage the day-to-day
affairs of the society. Thereafter, the 4th and 2nd respondents have filed
their respective counter affidavits along with stay vacate petitions in
I.A.Nos.2 and 3 of 2024 respectively and the 3rd respondent has also
filed its counter.
4. The 2nd respondent has filed counter affidavit on behalf of the 1st
and 2nd respondents stating that the members of the 4th respondent
society have made an application online on 07.08.2023 for registration
of the society with the District Cooperative Registrar, Medchal-
Malkajgiri and it was submitted by 11 members/promoters along with
approved bye-laws in the meeting held on 05.08.2023 and thereafter,
they submitted proposals on 07.08.2023 through E- Sahakara Seva
website for registration of the said society under Section 4(3)(b) of the
Telangana Mutually Aided Cooperative Societies Act, 1995 and
accordingly, the said society was registered on 21.02.2024. It is also
stated that as per Bye-law No.44 of the society, the society has to
conduct elections to the Board of Directors within 60 days of its
registration and while the matter stood thus, on 03.04.2024 the
petitioners have approached the 2nd respondent stating that they were not
given proper opportunity for registering themselves with the above
society for participating in the elections to be held on 21.04.2024. He
submitted that in view thereof, the 2nd respondent has addressed a letter
dt.10.04.2024 to the Chief Promotor/Ad hoc Chairman of the society to
give reasonable time to all the owners who have membership in the
society to participate in the elections. It is stated that the Registrar has
no role to intervene in the elections of the society as per the provisions
of the Telangana Mutually Aided Cooperative Societies Act, 1995. It is
further submitted that the bye-laws are in accordance with the provisions
of the said Act and therefore, there was no violation of any of the
provisions of the said Act.
5. The 3rd respondent, i.e., the Housing Board also has filed a
counter affidavit stating that it has taken up the construction of 270 flats
with all basic infrastructure facilities and amenities under Venture-III,
Phase-XV of KPHB Colony, Hyderabad and allotted the same to the
applicants/allottees and the flats were constructed in 3 Blocks consisting
of 90 flats each and about 234 allottees have taken physical possession
of the respective flats allotted to them and that either they or their
tenants are residing in them. It is stated that the maintenance of the
common areas, amenities and common facilities is usually handed over
by the Housing Board to the association formed by the flat owners and
till such time, the Housing Board takes up the maintenance temporary
by collecting maintenance charges from the allottees/flat owners and
though two blocks were completed by 30.06.2014 and the remaining one
block was also contemplated by 03.09.2016, as the flat owners had not
formed as a registered owners' association due to various reasons, the
Housing Board had been maintaining the same. It is submitted that on
29.04.2023, a meeting was convened with the available flat
owners/residents of Sampoornam Flats and were informed that the
maintenance as proposed to be handed over to the flat owners
association with effect from 01.06.2023 and requested them to form an
Ad hoc Committee for taking over the maintenance with effect from
01.06.2023. However, some time was sought and ultimately, on
13.06.2023 a meeting was held during which the flat owners requested
the Telangana Housing Board to continue the maintenance up to August,
2023. However, they were informed that the Housing Board will take up
maintenance only up to 31.07.2023 and thereafter, vide letters
dt.16.06.2023 and 17.06.2023, the Ad hoc Committee of Sampoornam
Flat Owners' Welfare Association informed the 3rd respondent that the
Committee has been formed with 3 members from each of the blocks
and that they were in the process of preparation of bye-laws, registration
of association and holding of elections, etc. The Committee was
informed vide letter dt.05.07.2023 that the Telangana Housing Board
will take up maintenance up to 31.07.2023 only and requested them to
take over maintenance with effect from 01.08.2023. It is also stated that
on 28.07.2023, the 3rd respondent also issued a notice to all the
allottees/residents of 270 flats that the maintenance of common facilities
would be handed over to the Ad hoc Committee and all the
allottees/residents were requested to cooperate with the Ad hoc
Committee and accordingly, maintenance was also handed over to the
Ad hoc Committee with effect from 01.08.2023. It is submitted that the
Ad hoc Committee did not hold elections even after the lapse of five
months and thereafter, the Ad hoc Committee has applied for and got
the registration under the Telangana Mutually Aided Cooperative
Societies Act, 1995. It is sated that as per Bye-law No.44, the Ad hoc
committee shall enrol all eligible persons as the members of the society
and take steps for conduct of elections within a period of 60 days from
the date of registration of the society and accordingly, the Ad hoc
Committee has issued notice to all the allottees asking them to get
enrolled in the society and thereafter has issued election notification
dt.23.03.2024 for conduct of elections on 21.04.2024. The Housing
Board has further stated that once the construction of the flats is over,
they are no longer interested in the property and that the Housing Board
cannot be treated as a promoter. It is stated that the promoter is one of
the members of the society and is also one amongst them and since 11
members of the society have approached the authorities for registration,
there is no violation of the provisions of the Telangana Mutually Aided
Cooperative Societies Act, 1995. It is also denied that the society has to
be registered under the Telangana Cooperative Societies Registration
Act and not under Telangana Mutually Aided Cooperative Societies Act,
1995.
6. The 4th respondent society has filed a counter affidavit along with
a stay vacate petition confirming the above factual background. It is,
however, submitted that bye-laws were framed in accordance with the
provision of the Telangana Mutually Aided Cooperative Societies Act,
1995 and required number of members have approached the 2nd
respondent for registration of the society and in accordance with the
provisions of the Telangana Mutually Aided Cooperative Societies Act,
1995, the election schedule was issued. It was stated that filing of
nominations will be commenced from 13.04.2024 and completed on
14.04.2024. In the meantime, the petitioners have filed a Writ Petition in
W.P.No.9537 of 2024 which was listed before this Court on 15.04.2024
and on the very same day, they filed an application to withdraw the
same with liberty to file a fresh Writ Petition and to avail alternative
remedy against the election process. It is further submitted that since the
election process has started, the same should not be stopped as per the
judgment of the Hon'ble Supreme Court in the case of Shaji K. Joseph
Vs. V.Viswanath and others1. However, elections which were to be
held on 24.01.2024, have been stayed by this Court vide interim order
dt.18.04.2024 and the 4th respondent has prayed for vacation of the
interim order.
(2016) 4 SCC 429
7. The writ petitioners have also filed reply affidavit to the counter
filed by the 2nd respondent.
8. Having regard to the rival contentions and the material on record,
this Court finds that the 3rd respondent has constructed 270 flats and
allotted all the flats but only 234 flat owners have taken possession and
others are yet to take possession. Therefore, this Court findsthat the
Government or the 3rd respondent is already divested of its interest in the
said property. After construction of the flats, the 3rd respondent has
requested the flat owners/allottees to form an association to take over
the maintenance of the flats and accordingly, an Ad hoc Committee was
formed and the maintenance was handed over to the Ad hoc Committee
with effect from 01.08.2023. These are the undisputed facts. The Ad hoc
Committee, thereafter, has framed bye-laws and have approached the 2nd
respondent for registration of the society under the Telangana Mutually
Aided Cooperative Societies Act, 1995 and it was accordingly registered
and registration certificate has been issued. Thereafter, election
notification has been issued. It is at this juncture that the petitioners have
approached this Court challenging the registration and also the election
process in W.P.No.9537 of 2024. The said Writ Petition has also been
withdrawn by the writ petitioners with liberty to avail the remedies as
available under law. Therefore, the preliminary objection raised by the
3rd respondent that the petitioners cannot file this Writ Petition having
withdrawn the earlier Writ Petition in W.P.No.9537 of 2024 is not
sustainable.
9. As regards the contention of the petitioners that the society ought
to be registered under the Telangana Cooperative Societies Act, 1964
and not under the Telangana Mutually Aided Cooperative Societies Act,
1995, this Court finds that a society would have to be registered under
the Telangana Cooperative Societies Act, 1964 only if the Government
is in any way concerned with the society. In this case, though it is the
Housing Board which has constructed the complex, it is divested of its
rights over the property by allotting/selling the flats. The Government
therefore has no control in the property and therefore, it cannot be said
that the society can only be registered under the Telangana Cooperative
Societies Act, 1964 and not under the Telangana Mutually Aided
Cooperative Societies Act, 1995. For registration under Section 4 of the
Telangana Mutually Aided Cooperative Societies Act, 1995, at least 21
persons with the same object or common bondage have to make an
application. In this case, it appears that the Ad hoc Committee of 11
members was formed and they have approached the authority for
registration of the society under Section 4 of the Telangana Mutually
Aided Cooperative Societies Act, 1995. The number of members
required to make the application for registration being 10 was up to the
year 2016, and thereafter it has been amended to 21. In this case, since
21 members have not approached the 2nd respondent for registration of
the society, the 4th respondent society ought not to have been registered.
For this reason alone, the registration certificate needs to be set aside.
10. Further, the contention of the petitioners that it is the promoter,
i.e., Telangana Housing Board which has to apply for registration and
not one of the members of the society, is, however, not tenable for the
reason that Section of 4 of the Telangana Mutually Aided Cooperative
Societies Act, 1995 only refers to 21 individuals of class or category
with common bondage and each being a member of different family or
intend to form a cooperative society and it does not refer to a promoter
and there is no definition of 'promoter' being the builder. From the
counter of the 2nd respondent, it is noticed that the promoter can be one
of the members of the society, i.e., a promoter of society or not a
promoter of the building. Therefore, this contention of the petitioners is
also not acceptable.
11. The contention of the respondents that elections could not have
been held without allowing all the flat owners as members of the society
and that it is in violation of the provisions of the Telangana Mutually
Aided Cooperative Societies Act, 1995, is, however, answered by bye-
law No.6 which observes that all flat owners shall become the members
of the society provided they apply for the same and on payment of
Rs.100/- as share capital.
12. In this case, though the society was formed only in February,
2024 and within a period of 60 days, they have to conduct the elections
and therefore, they have proceeded with issuance of election
notification. However, since it is observed that 21 members have not
approached the 2nd respondent for registration of the society, this Court
deems it fit and proper to set aside the impugned registration certificate
and direct the Ad hoc Committee of the 4th respondent society along
with others, i.e., a total number of 21 members, to make an appropriate
application before the 2nd respondent for registration of the society along
with required documents within a period of two weeks from the date of
receipt of a copy of this order and thereafter, the 2nd respondent shall
issue registration certificate in accordance with law and it is thereafter
that the resultant society shall hold elections to the Managing
Committee within a period of two months thereafter. Till such time, the
Ad hoc Committee of the 4th respondent society which has been formed
and is continuing to maintain the common facilities of the flats in the
complex, shall continue to do so.
13. With the above directions, the Writ Petition is accordingly
disposed of. No order as to costs.
14. Pending miscellaneous petitions, if any, in this Writ Petition
including I.A.Nos.2 and 3 of 2024 shall stand closed.
___________________________
JUSTICE T. MADHAVI DEVI
Date: 18.03.2025
Svv
