1. Heard learned counsel appearing for the petitioners, learned Standing Counsel appearing for Respondents No. 1, 3 & 4 and Mr. Kaushlendra Nath Singh, learned counsel appearing for Respondent No. 2.
2. This Court vide order dated 23.04.2024 issued fresh notice to Respondent No. 6 and direction was given to serve the notice on Respondent No. 6 through ‘dasti’. The affidavit of service has been filed by the petitioners indicating therein that notice of the writ petition has been served on Respondent No. 6, but none has appeared on its behalf.
3. Petitioners through this writ petition have assailed the order dated 15.01.2020 passed by the Deputy Registrar, Firms, Societies and Chits, Moradabad whereby, he in exercise of his powers under Section 12-D(c) of the Societies Registration Act, 1860, has cancelled the registration of M/s Lotus Boulevard Espacia Apartment Owners Association (Registration No. GBN/00836/2019-2020).
4. Facts of the case, in brief, are that the residents of Towers No. 31 to 38 constructed by Respondent No. 6 on Plot No. GH-02, Sector 100, Noida organized meeting of the general body on 23.12.2018 and in the said meeting, the Board of Management of the Apartment Owners Association (A.O.A.) was elected and model bye-laws were adopted. The elected Board of Management of the A.O.A. requested the Respondent No. 2 to grant no objection certificate for the registration of the A.O.A. and in response thereof, Respondent No. 2 granted no objection certificate on 21.02.2019. Thereafter requisite papers were presented before the Respondent No. 4 for registration of the A.O.A. in the name of M/s Lotus Boulevard Espacia Apartment Owners Association, Plot No. GH-02, Sector 100, Noida. The Towers No. 32-36 were complete having occupancy of 320 flats/families.
5. The Respondent No. 4 after being satisfied with the documents produced before him, registered the Society on 29.04.2019 in the name of M/s Lotus Boulevard Espacia Apartment Owners Association, A.O.A. Office, Lotus Boulevard Especia, Plot No. GH-02, Sector-100, Noida, Gautam Buddha Nagar, 201301 bearing Registration No. GBN/00836/2019-2020.
6. Later on a complaint was filed by Respondent No. 6 before Respondent No. 4, that as per provisions made in the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) (Amendment) Act, 2016, minimum 60% occupancy of the apartments of the building is required for registration of the Apartment Owners Association (A.O.A.) and since at the time of registration of Petitioner No. 1, only 322 flats out of total 606 flats were occupied which comes to less than 60% occupancy therefore, the registration of Petitioner No. 1 could not have been done. In the complaint, it was further mentioned that since the registration of Petitioner No. 1 has been obtained by misleading and concealing material facts from Respondent No. 4 therefore, the said registration is liable to be cancelled. The Respondent No. 4 after hearing all the concerned parties has passed order dated 15.01.2020 whereby registration of Petitioner No. 1 has been cancelled under Section 12-D(c) of the Societies Registration Act, 1860 on the ground that as per Section 14(2) of the U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 as amended in the year 2016, minimum 60% occupancy of the flats is necessary for registration of the A.O.A. and since on the date of registration of Petitioner No. 1, occupancy was less than 60% therefore, its registration could not have been done.
7. Learned counsel appearing for the petitioners has argued that Section 14(2) of the U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 (hereinafter referred to as ‘the Act of 2010’) provides that the A.O.A. can be registered on 33% occupancy of the flats of the building. He further argues that later on State Legislature enacted the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) (Amendment) Act, 2016 (hereinafter to be referred as “the Act of 2016”) whereby Section 14(2) of the Act of 2010 was sought to be substituted by new Section 14(2) and thereby it was provided that for registration of Apartment Owners Association, occupancy of the 60% flats of the building is necessary but in Section 1(2) of the Act of 2016, it has been provided that the Act of 2016 shall come into force on such date as the State Government may by notification in the official gazette appoint and since till date, the notification, as required under Section 1(2) of the Act of 2016 has not been published in the official gazette, therefore, the amended section 14(2) has not come into force, as such, the cancellation of the registration of Petitioner No. 1 on the basis of the amended Section 14(2) is unsustainable.
8. On the other hand, learned Standing Counsel has opposed the writ petition but has admitted that the notification in the official gazette, as required under Section 1(2) of the Act of 2016, has not been published in the official gazette till date.
9. I have heard learned counsel appearing for the petitioners and learned Standing Counsel appearing for the State respondents.
10. I find that U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 was enacted in the year 2010. The Section 14(2) of the Act of 2010 reads as under:
“14(2) It shall be the joint responsibility of the promoter and the apartment owners to form an Association. The promoter shall get the Association registered when such number of apartments have been handed over to the owners which is necessary to form an association or 33% of apartments, whichever is more, by way of sale, transfer or possession, provided the building has been completed along with all infrastructure services and completion certificate obtained from the local authority.”
11. This Court finds that under Section 14(2) of the Act of 2010, only 33% occupancy of the flats of the building is required for formation and registration of the Apartment Owners Association. This Court further finds that later on the State Legislature passed the Act of 2016 whereby certain amendments were sought to be incorporated in the Act of 2010. By the Act of 2016, Section 14(2) of the Act of 2010 was sought to be substituted by new Section 14(2) which provides that for formation and registration of the Apartment Owners Association, 60% occupancy of the flats of the building is necessary. Section 1(2) of the Act, 2016 further provides that the Act of 2016 shall come into force on such date as the State Government may by notification in that official gazette appoint. For ready reference, Section 1 and Section 8 of the Act, 2016 are extracted as under:
“Section 1 (1) This Act may be called the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) (Amendment) Act, 2016.
(2) It shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint.”
Section 8. In Section 14 of the principal Act,
(a) for sub-section (2), the following sub-section shall be substituted, namely:-
"(2) It shall be the joint responsibility of the promoter and the apartment owners to form an Association. The promoter shall get the Association registered when such numbers of apartments have been handed over to the owners which are necessary to form an association or sixty per cent of apartments, whichever is more, by way of sale, transfer or possession provided the building has been completed along with all infrastructure services and completion certificate obtained from the concerned local authority:
Provided that in case of an independent area or an independent commercial area the promoter may from a separate Association for its management, if required.". (b) In sub-section (5) after the existing proviso, the following proviso shall be inserted, namely:
"Provided further that the amount collected by the promoter towards interest free maintenance security shall also be transferred to the Association at the time of handing over of the common areas and facilities."
12. It is apparent from the impugned order dated 15.01.2020 that the sole ground for cancellation of the registration of Respondent No. 1 is that the occupancy of the flats of the building was less than 60% therefore, in view of the provisions made in the Act, 2016, the registration of Petitioner No. 1 could not have been done.
13. The Court finds that Section 1(2) of the Act, 2016 categorically provides that the Act, 2016 shall come into force on such date as the State Government may by notification in the official gazette appoint but till date, the State Government has not notified the date with effect from which the Act, 2016 will come into force. The aforesaid inference has been drawn by the Court as State respondents in their Counter-Affidavit have not given any detail of such notification and even further in spite of various opportunities granted by this Court, the State respondents have not produced any such notification.
14. Once this Court finds that the Act of 2016 itself did not come into force as till date, the State Government has not issued notification as contemplated under Section 1(2) of the Act, 2016, the amendments sought to be incorporated by the Act, 2016 in the Act, 2010 have not become effective. The registration of Petitioner No. 1 has been done as per Section 14(2) of the Act of 2010 but the said registration has been cancelled relying on the amended Section 14(2) in terms of the Act, 2016 whereas the Act, 2016 itself has not come into force till date, as till date notification contemplated under Section 1(2) of the Act, 2016 has not been issued.
15. In view of the aforesaid reasons, the impugned order dated 15.01.2020 passed by Respondent No. 4 cannot sustain in the eyes of law.
16. Accordingly, this writ petition is allowed. The order dated 15.01.2020 passed by Respondent No. 4 is hereby quashed.
