Karnataka High Court
Akhilesh Anand vs State Of Karnataka on 30 June, 2025
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2025:KHC:23360
WP No. 27341 of 2024
C/W WP No. 5479 of 2023
HC-KAR
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 27341 OF 2024 (CS-RES)
C/W
WRIT PETITION NO. 5479 OF 2023 (CS-RES)
IN W.P.NO.27341/2024
BETWEEN
1. AKHILESH ANAND
S/O ANAND N KOTIAN
AGED ABOUT 45 YEARS
R/AT FLAT NO. B-20504
COMMUNE-1 APARTMENT
MARSUR, BENGALURU 562 106
2. ADITYA KUMAR
S/O LATE PRAFULLA CHANDRA JHA
AGED ABOUT 39 YEARS
R/AT FLAT NO. C-30706
Digitally signed
by SHWETHA COMMUNE-1 APARTMENT
RAGHAVENDRA MARSUR, BENGALURU 562 106
Location: HIGH 3. RAHUL KUMAR SINGH
COURT OF
KARNATAKA S/O SUDHIR KUMAR SINGH
AGED ABOUT 40 YEARS
R/AT FLAT NO. B 20105
COMMUNE-1 APARTMENT
MARSUR, BENGALURU 562 106
4. PRAVEEN KUMAR
S/O SATYENDRA NARAYAN SINGH
AGED ABOUT 36 YEARS
R/AT FLAT NO.B 21301
COMMUNE-1 APARTMENT
MARSUR, BENGALURU 562 106
5. GOURAV KUMAR
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S/O RAJEEV KUAMR
AGED ABOUT 29 YEARS
R/AT FLAT NO. C-41203
COMMUNE-1 APARTMENT
MARSUR, BENGALURU 562 106
6. RAJESH KUMAR SINGH
S/O AWADHESH KUMAR SINGH
AGED ABOUT 57 YEARS
R/AT FLAT NO. E-50703
COMMUNE-1 APARTMENT
MARSUR, BENGALURU 562 106
7. SANDEEP KUMAR AGARWAL
S/O SANTOSH AGARWAL
AGED ABOUT 40 YEARS
R/AT FLAT NO. C-30307
COMMUNE-1 APARTMENT
MARSUR, BENGALURU 562 106
8. PRADEEP SHARMA
S/O HIRALAL SHARMA
AGED ABOUT 49 YEARS
R/AT FLAT NO. C-31203
COMMUNE-1 APARTMENT
MARSUR, BENGALURU 562 106
9. DEEPAK SINHA
S/O N K P SINHA
AGED ABOIUT 54 YEARS
R/AT FLAT NO. C-50702
COMMUNE-1 APARTMENT
MARSUR, BENGALURU 562 106
10.SANDIPAN BHATTACHARJEE
S/O SAMIR HANDRA BHATTACHARJEE
AGED ABOUT 41 YEARS
R/AT FLAT NO. C-40302
COMMUNE-1 APARTMENT
MARSUR, BENGALURU 562 106
11.KAMTA PRASAD
S/O LAXMI PRASAD
AGED ABOUT 44 YEARS
R/AT FLAT NO. B-21002
COMMUNE-1 APARTMENT
MARSUR, BENGALURU 562 106
12.ADITYA M YADAV
S/O. MAHADEV YADAV
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AGED ABOUT 55 YEARS,
R/AT FLAT NO. B-21101,
COMMUNE-1 APARTMENT
MARSUR, BENGALURU 562 106
13.PRADEEP NIMBALGUNDI
S/O ANJENYA
AGED ABOUT 42 YEARS,
R/AT FLAT NO. C-20508,
COMMUNE-1 APARTMENT
MARSUR, BENGALURU 562 106
14.SRINIVAS RAO V
S/O VENNAM HUSSAIN
AGED ABOUT 36 YEARS,
R/AT FLAT NO. E-51104,
COMMUNE-1 APARTMENT
MARSUR, BENGALURU 562 106
15.RITESH SINGHANIA
S/O SWAR MAL SINGHANIA,
AGED ABOUT 43 YEARS,
R/AT FLAT NO. E-51302,
COMMUNE-1 APARTMENT
MARSUR, BENGALURU 562 106
16.RAHUL GUPTA
S/O RAJENDRA PRASAD GUPTA,
AGED ABOUT 34 YEARS,
R/AT FLAT NO. C-31306,
COMMUNE-1 APARTMENT,
MARSUR, BENGALURU-562 106.
17.SUMANTHA MOITRA
S/O BISWANATH MOITRA
AGED ABOUT 64 YEARS,
R/AT FLAT NO. B-21204,
COMMUNE-1 APARTMENT,
MARSUR, BENGALURU-562 106.
18.RAMAKRISHNA BALAJI.K
S/O K.SREEDHAR,
AGED ABOUT 39 YEARS,
R/AT FLAT NO. C-31302,
COMMUNE-1 APARTMENT,
MARSUR, BENGALURU-562 106.
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19.ABHISHEK SINHA
S/O AMAR SINHA
AGED ABOUT 45 YEARS,
R/AT FLAT NO. B-20902,
COMMUNE-1 APARTMENT
MARSUR, BENGALURU 562 106
20.MININATH P
S/O BABAN SIDHU PACHARNE
AGED ABOUT 48 YEARS,
R/AT FLAT NO. C-30205,
COMMUNE-1 APARTMENT,
MARSUR, BENGALURU-562 106.
21.DURGA PRASAD SHARMA
S/O DEVENDRA KUMAR SHARMA
AGED ABOUT 35 YEARS,
R/AT FLAT NO. E-51304,
COMMUNE-1 APARTMENT,
MARSUR, BENGALURU-562 106.
22.VIJETH SANKETHI K
S/O KESHAVA PRAKASH
AGED ABOUT 40 YEARS,
R/AT FLAT NO. C-30403,
COMMUNE-1 APARTMENT,
MARSUR, BENGALURU-562 106.
23.ABHINEET SRIVASTAVA
S/O SHYAM NARAIN SRIVASTAVA
AGED ABOUT 37 YEARS,
R/AT FLAT NO. C-30208,
COMMUNE-1 APARTMENT,
MARSUR, BENGALURU-562 106.
24.HARSHA N
S/O NARASHIMA SHETTY
AGED ABOUT 43 YEARS,
R/AT FLAT NO. B-21107,
COMMUNE-1 APARTMENT,
MARSUR, BENGALURU-562 106.
25.SANDEEP. K. T.
S/O. K. DHARMAPALAN,
AGED ABOUT 50 YEARS,
R/AT FLAT NO. B-21203 AND C-30901,
COMMUNE-1 APARTMENT,
MARSUR,
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HC-KAR
BENGALURU-562 106.
26.ALOK KUMAR VERMA
S/O. LATE MADAN PRASAD VERMA,
AGED ABOUT 60 YEARS,
R/AT FLAT NO. E-50901,
COMMUNE-1 APARTMENT,
MARSUR,
BENGALURU-562 106.
27.AYUSH SINHA
S/O. ARUN KUMAR,
AGED ABOUT 35 YEARS,
R/AT FLAT NO. D-40902,
COMMUNE-1 APARTMENT,
MARSUR,
BENGALURU-562 106.
28.NILAKANTHA JENA
S/O. NANDA KISHORE JENA,
AGED ABOUT 45 YEARS,
R/AT FLAT NO. C-30903,
COMMUNE-1 APARTMENT,
MARSUR,
BENGALURU-562 106.
29.V SUNDAR RAJ
S/O VENKATASWAMY
AGED ABOUT 42 YEARS
R/AT FLAT NO. C 31308
COMMUNE 1 PARTMENT
MARSUR BENGALURU 562 106
30.ASHOK KUMAR SINGH
S/O NARENDRANATH SINGH
AGED ABOUT 55 YEARS
R/AT FLAT NO. B 20204
COMMUNE 1 APARTMENT
MARSUR BENGALURU 562 106
31.ADITYA SAXENA
S/O HARI SHANKAR
AGED ABOUT 42 YEARS
R/AT FLAT NO. B 20806
COMMUNE 1 APARTMENT
MARSUR BENGALURU 562 106
32.SWATI TULSIAN
W/O SANDEEP KUMAR AGARWAL
AGED ABOUT 40 YEARS
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C/W WP No. 5479 of 2023
HC-KAR
R/AT FLAT NO. D 40403
COMMUNE 1 APARTMENT
MARSUR BENGALURU 562 106
33.BISWARANJAN SAHOO
S/O BANKANIDHI SAHOO
AGED ABOUT 38 YEARS
R/AT FLAT NO. C 30107
COMMUNE 1 APARTMENT
MARSUR BENGALURU 562 106
34.ROOPA PRAKASH
S/O PRAKASH B C
AGED ABOUT 35 YEARS
R/AT FLAT NO. C 30107
COMMUNE 1 APARTMENT
MARSUR BENGALURU 562 106
35.SHASHYENDRA SINGH GAUTHAM
S/O VIRENDRA SINGH GAUTAM
AGED ABOUT 40 YEARS
R/AT FLAT NO. C 31005
COMMUNE 1 APARTMENT
MARSUR BENGALURU 562 106
36.DIPANJAN MONDAL
S/O DR G C MONDAL
AGED ABOUT 37 YEARS
R/AT FLAT NO. D 41102
COMMUNE 1 APARTMENT
MARSUR BENGALURU 562 106
37.ABHISHEKH ANAND
S/O ANAND N KOTIAN
AGED ABOUT 43 YEARS
R/AT FLAT NO. B 20704
COMMUNE 1 APARTMENT
MARSUR BENGALURU 562 106
38.SRITAMA MAJUMDAR
W/O DIPTARKO
AGED ABOUT 38 YEARS
R/AT FLAT NO. B 20206 A 10203
COMMUNE 1 APARTMENT
MARSUR BENGALURU 562 106
39.BIKASH KUMAR
S/O MAHESHWARI SHARAN
AGED ABOUT 52 YEARS
R/AT FLAT NO. D 40702
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HC-KAR
COMMUNE 1 APARTMENT
MARSUR BENGALURU 562 106
40.NITIN JUYAL
S/O DINESH CHANDRA JUYAL
AGED ABOUT 36 YEARS
R/AT FLAT NO. C 30507
COMMUNE 1 APARTMENT
MARSUR BENGALURU 562 106
41.J GOPINATHAN
S/O JEEVANANDAM
AGED ABOUT 45 YEARS
RA/T FLAT NO D40903
COMMUNE 1 APARTMENT
MARSUR
BENGALURU 562106
42.MALAY BISWAS
S/O LATE ANIL BISWAS
AGED ABOUT 55 YEARS
RA/T FLAT NO D41101
COMMUNE 1 APARTMENT
MARSUR
BENGALURU 562106
43.ARPITA GANGULY
W/O RAJIV KUMAR CHAURASIA
AGED ABOUT 42 YEARS
RA/T FLAT NO B21303
COMMUNE 1 APARTMENT
MARSUR
BENGALURU 562106
44.AZAM KHAN
S/O ADAM KHAN
AGED ABOUT 60 YEARS
RA/T FLAT NO B 20602
COMMUNE 1 APARTMENT
MARSUR
BENGALURU 562106
45.TULSIRAM PONDRATI
S/O PONDRATI APPARO
AGED ABOUT 44 YEARS
R/AT FLAT NO C30405
COMMUNE 1 APARTMENT
MARSUR
BENGALURU 562106
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HC-KAR
46.GAURAW KUMAR SRIVASTAVA
S/O BIPIN BHIHARI SRIVASTAVA
AGED ABOUT 38 YEARS
RA/T FLAT NO C30306
COMMUNE 1 APARTMENT
MARSUR
BEGNLURU 562106
47.DIPTI SINHA
D/O NAWAL KISHORE PRASAD SINHA
AGED ABOUT 52 YEARS,
R/AT FLAT NO.D-40602,
COMMUNE-1 APARTMENT, MARSUR,
BENGALURU-562106
48.NIRAJ KUMAR SINHA
S/O ADITYA PRASAD SINHA
AGED ABOUT 50 YEARS,
R/AT FLAT NO.C-30908
COMMUNE-1 APARTMENT, MARSUR,
BENGALURU-562106
49.PRATEEK KUMAR JAIN
S/O PRAVEEN KUMAR JAIN
AGED ABOUT 35 YEARS,
R/AT FLAT NO. C-30406,
COMMUNE-1 APARTMENT, MARSUR,
BENGALURU-562106
50.DHIRAJ KUMAR SINHA
S/O ADITYA PRASAD SINHA
AGED ABOUT 50 YEARS,
R/AT FLAT NO.B-20308,
COMMUNE-1 APARTMENT,
MARSUR, BENGALURU-562106
51.AKANKSHA SAHAY
W/O VIJAYANT ANAND
AGED ABOUT 35 YEARS,
R/AT FLAT NO.B-20505,
COMMUNE-1 APARTMENT, MARSUR,
BENGALURU-562106
52.SUNITA SAHAY
S/O AJAY KUMAR SAHAY
AGED ABOUT 68 YEARS,
R/AT FLAT NO.B-20402,
COMMUNE-1 APARTMENT,
MARSUR, BENGALURU-562106
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53.RAJNISH KUMAR
S/O LATE SHRI BRAJNANDAN PRASAD
AGED ABOUT 51 YEARS
R/AT FLAT NO. C-31303
COMMUNE-1 APARTMENT
MARSUR, BENGALURU 562 106
54.SUMAN SATPATHY
S/O GIRISH PRASAD SATIPATHY
AGED ABOIUT 44 YEARS
R/AT FLAT NO. C-31305
COMMUNE-1 APARTMENT
MARSUR, BENGALURU 562 106
55.RAVI PRASAD SINHA
S/O ADITYA PRASAD SINHA
AGED ABOUT 55 YEARS
R/AT FLAT NO. C-30808
COMMUNE-1 APARTMENT
MARSUR, BENGALURU 562 106
56.GAURAV VERMA
S/O SUBASH CHANDRA PRASAD
AGED ABOUT 40 YEARS
R/AT FLAT NO. C-31303
COMMUNE-1 APARTMENT
MARSUR, BENGALURU 562 106
57.SANJAY KUMAR SHARMA
AGED ABOUT 61 YEARS
R/AT FLAT NO. C-30506
COMMUNE-1 APARTMENT
MARSUR, BENGALURU 562 106
58.ANURAG SAURABH
S/O RATNESHWAR PRASAD SINHA
AGED ABOUT 37 YEARS
R/AT FLAT NO. B-21103
COMMUNE-1 APARTMENT
MARSUR, BENGALURU 562 106
59.COMMUNE -1 COMMUNE RESIDENTS
WELFARE ASSOCIATION (R)
(A SOCIETY /ASSOCIATION REGISTERED UNDER
KARNATAKA SOCIETIES REGISTRATION ACT )
(REGD. VIDE DRB3/SOR/487/2022-2023
REGD OFF 2ND FLOOR, CLUB HOUSE
THE COMMUNE-1, MARASUR VILLAGE
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HC-KAR
KASABA HOBLI, ANEKAL TALUK
BENGALURU 562 106
REPRESENTED BY ITS PRESIDENT
MR. K RAMAKRISHNA BALAJI
S/O K SREEDHAR
AGED 38 YEARS
...PETITIONERS
(BY SRI. RAJASHEKAR S., ADVOCATE)
AND
1. STATE OF KARNATAKA
REP BY ITS SECRETARY
DEPARTMENT OF CO OPERATIVE SOCIETIES
VIKAS SOUDHA
AMBEDKAR VEEDHI
BENGALURU 560 001
2. THE REGISTRAR KARNATAKA CO-OPERATIVE SOCIETIES
NO. 146, 8TH CROSS, SAHAKARA SOUDHA,
MARGOSA ROAD, MALLESHWARAM,
BENGALURU-560 003.
3. DISTRICT REGISTRAR OF SOCIETIES
ZONE-3, BENGALURU DISTRICT,
NO. 146, 8TH CROSS,
SAHAKARA SOUDHA,
MARGOSA ROAD,
MALLESHWARAM,
BENGALURU-560 003.
4. KARNATAKA REAL ESTATE REGULATORY
AUTHORITY (RERA)
NO.1/14, 2ND FLOOR,
SILVER JUBILEE BLOCK,
UNITY BUILDING BACKSIDE,
CSI COMPOUND, 3RD CROSS,
MISSION ROAD,
BENGALURU-560 027,
REP. BY ITS SECRETARY.
(DELETED V/O/D 10.12.2024)
5. THE SUB-REGISTRAR
ATTIBELE SUB-REGISTRAR OFFICE,
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HC-KAR
NO. 430, ANNA BUILDING,
HENNAGARA GATE,
BOMMASANDRA INDUSTRIAL AREA,
HOSUR MAIN ROAD,
ATTIBELE,
BENGALURU-560 105.
6. COMMUNE PROPERTIES INDIA PVT. LTD.,
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT NO. 823,
21ST MAIN ROAD, 8TH BLOCK,
KORAMANGALA,
BENGALURU-560 095,
REP. BY ITS AUTHORIZED REPRESENTATIVE
MR. A. X. ANTONY.
7. COMMUNE BUYERS WELFARE ASSOCIATION
COMMUNE 1 APARTMENTS,
CLUB HOUSE, MARASUR VILLAGE,
CHANDAPURA- ANEKAL ROAD,
ANEKAL TALUK,
BENGALURU-562 106,
REP. BY ITS SECRETARY.
(A SOCIETY REGISTERED UNDER THE
SOCIETIES REGISTRATION ACT)
8. COMMUNE 1 APARTMENT CO-OPERATIVE SOCIETY LTD.,
(A SOCIETY REGISTERED UNDER THE KARNATAKA CO-
OPERATIVE SOCIETIES ACT)
MARSURU VILLAGE,
KASABA HOBLI,
ANEKAL TALUK,
BENGALURU-562 106,
REP. BY ITS SECRETARY.
9. ANAND PATIL
S/O. LATE BAPUGOUDA PATIL,
AGED ABOUT 45 YEARS,
R/AT FLAT NO. 41303 AND 20406,
D BLOCK, COMMUNE 1,
MARSUR,
CHANDAPURA-ANEKAL ROAD,
BENGALURU-562 106.
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10.SUSHIL TAJES SOANS
S/O. PREMKUMAR SOANS,
AGED ABOUT 37 YEARS,
R/AT FLAT NO. 50202, E BLOCK,
COMMUNE 1, MARSUR,
CHANDAPURA-ANEKAL ROAD,
BENGALURU-562 106.
11.P. N. KRISHNA KUMAR
S/O. K. K. UNNI NAIAR,
AGED ABOUT 53 YEARS,
R/AT FLAT NO. 41302,
D BLOCK, COMMUNE 1,
MARSUR,
CHANDAPURA-ANEKAL ROAD,
BENGALURU-562 106.
12.GAURAV BARUA
S/O. B. C. BARUA,
AGED ABOUT 25 YEARS,
R/AT FLAT NO. 41304,
D BLOCK, COMMUNE 1,
MARSUR,
CHANDAPURA-ANEKAL ROAD,
BENGALURU-562 106.
13.HARIPRASAD
S/O. VASUDEVAN VENGATASAMY,
AGED ABOUT 43 YEARS,
R/AT FLAT NO. 40202,
D BLOCK, COMMUNE 1,
MARSUR,
CHANDAPURA-ANEKAL ROAD,
BENGALURU-562 106.
14.SAJAN SHAAJI
S/O. SHAAJI JI,
AGED ABOUT 43 YEARS,
R/AT FLAT NO. 40304,
D BLOCK, COMMUNE 1,
MARSUR,
CHANDAPURA-ANEKAL ROAD,
BENGALURU-562 106.
15.RAJESH SUBRAMANIAN
S/O. SUBRAMANIAN,
AGED ABOUT 51 YEARS,
R/AT FLAT NO. 20102,
B BLOCK, COMMUNE 1,
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MARSUR,
CHANDAPURA-ANEKAL ROAD,
BENGALURU-562 106.
.... RESPONDENTS
(BY SRI. YOGESH D. NAIK., AGA FOR R1 TO R3 & R5;
SMT. PRADEEP KUMAR P.K., FOR CR/7 &
C/R8 & ALSO FOR R9 TO R15;
SRI. VENKATESH R BHAGATH., ADVOCATE FOR R6;
SRI. GOWTHAMDEVE C ULLAL., ADVOCATE FOR R4;
V/O DATED 10.12.2024 IS DELETED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
REGISTRATION CERTIFICATE BEARING NO. AA.HA. HAAA.RE-
50/REGISTRATION/06/54965/2023-24 DATED 11.08.2023 ISSUED
BY SECOND RESPONDENT REGISTRAR FOR CO-OPERATIVE
SOCIETIES, ZONE-3, BENGALURU URBAN DISTRICT AT ANNEXURE-J
AND ETC.
IN W.P.NO.5479/2023
BETWEEN
1. RAJESH SUBRAMANIAN
S/O V SUBRAMANIAN
AGED 48 YEARS,
RESIDING AT B20102, B BLOCK 1ST FLOOR,
COMMUNE 1 APARTMENT
CHANDAPURA ANEKAL ROAD,
BANGALORE - 562106
2. P N KRISHNA KUMAR
AGED ABOUT 48 YEARS,
S/O MR K.K. UNNI NAIAR,
RESIDING AT NO 29 ,
LAKSHMI NILAYAM, FCI ROAD,
N R LAYOUT BENGALURU-560016
3. RAJESH VALERI SIVASANKARAN NAIR
S/O MR VALERI SIVASANKARAN,
AGED ABOUT 43 YEARS,
RESIDING AT MANA TROPICALE TOWER 3 G1
CHIKKANAYAKANAHALLI
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OFF SARJAPUR ROAD,
CARMELARAM P O
BANGALORE - 560035
...PETITIONERS
(BY SRI. SATISH T.E., ADVOCATE)
AND
1. THE STATE OF KARNATAKA
REPRESENTED BY SECRETARY TO GOVERNMENT
DEPARTMENT OF CO OPERATIVE SOCIETIES,
M S BUILDING, BANGALORE
2. THE REGISTRAR
DEPARTMENT OF CO OPERATIVE SOCIETIES
(HOUSING AND OTHERS )
CENTRAL OFFICE,
NO 01, ALI ASKAR ROAD,
ULSOOR,
BENGALURU - 560025
3. THE ADDITIONAL REGISTRAR
DEPARTMENT OF CO OPERATIVE SOCIETIES
(HOUSING AND OTHERS)
CENTRAL OFFICE,
NO 01, ALI ASKAR ROAD,
ULSOOR BENGALURU - 560025
4. THE ASSISTANT REGISTRAR
DEPARTMENT OF CO OPERATIVE SOCIETIES
8TH CROSS, 3RD MAIN ROAD,
MARGOSA ROAD,
MALLESHWARAM,
BENGALURU - 560005
5. THE DISTRICT REGISTRAR
DEPARTMENT OF CO OPERATION
ZONE 3, MARGOSA ROAD,
NEAR KANCHIPURAM SILKS,
MALLESHWARAM
BANGALORE - 560003
6. KARNATAKA REAL ESTATE REGULATORY AUTHORITY
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NO 1/14, 2ND FLOOR,
SILER JUBILEE BLOCK,
UNITY BUILDING BACKSIDE,
CSI COMPOUND, 3RD CROSS,
MISSION ROAD, BENGALURU - 560027
REPRESENTED BY ITS THE CHAIRMAN
7. INSPECTOR GENERAL OF REGISTRATION AND
COMMISSIONER OF STAMPS
KANDYA BHAVAN
8TH FLOOR, K G ROAD,
BENGALURU - 560001
8. THE SUB REGISTRAR BANASHANKARI
AGRICULTURE PRODUCE CO-OP MARKETING
SOCIETY BUILDING APMC,
KANAKAPURA ROAD
BANASHANKARI
BENGALURU - 560050
9. COMMUNE PROPERTIES INDIA PVT LTD
A COMPANY INCORPORATED UNDER THE
PROVISIONS OF THE COMPANIES ACT 1956,
HAVING ITS REGISTERED OFFICE AT
NO 823 GROUND FLOOR, 21ST MAIN ROAD
8TH BLOCK, KORAMANGALA,
BANGALORE - 560095
REP BY ITS DIRECTOR
10.PRATAP SATYANARAYANA KUNDA
S/O MR SATYANARAYANA KUNDA
AGED ADULT,
FOUNDER DIRECTOR AND PROMOTER OF
COMMUNE PROPERTIES INDIA PVT LTD
RESIDING AT 8 -2-703/4/P ROAD NO 12,
BANJARA HILLS,
HYDERABAD, TELANGANA - 500034
11.RATISH KUMAR MOORTHY
AGED ADULT
DIRECTOR
COMMUNE PROPERTIES INDIA PVT LTD
RESIDING AT NO 820, 80 FEET ROAD
20TH FEET ROAD,
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20TH MAIN 8TH BLOCK
KORAMANGALA
BANGALORE - 560095
12.ANAND RATHI GLOBAL FINANCE LIMITED
A NON BANKING FINANCE COMPANY
HAVING ITS REGISTERED OFFICE AT
4TH FLOOR,
SILVER METROPOLIS,
JAI COACH COMPOUND
OPPOSITE BIMBISAR NAGAR GOREGOAN (EAST)
MUMBAI MAHARASHTRA INDIA 400063
THE MORTGAGER-REP BY AUTHORISED OFFICER
MR. BIJAY MAHANA
13.SENIOR SUB REGISTRAR ATTIBELE
NO 430, ANNA BUILDING
HENNAGARA GATE,
BOMMASANDRA INDUSTRIAL AREA,
HOSUR MAIN ROAD,
ANEKAL TALUK,
BANGALORE-562106.
.... RESPONDENTS
(BY SRI. YOGESH D. NAIK., AGA FOR R1 TO R5, R7, R8 R13;
SMT. VENKATESH R. BHAGATH., ADVOCATE FOR R9 TO R11;
SRI.GOWTHAMDEVE C.ULLAL., ADVOCATE FOR R6;
SRI. RISHABHA RAJ THAKUR., ADVOCATE FOR R12)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO DIRECT THE R2, R3 AND R4
TO EXPEDITIOUSLY REGISTER THE CO-OPERATIVE SOCIETY, "
COMMUNE I APARTMENT OWNERS CO-OPERATIVE SOCIETY LTD.,
AND ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS AND
HAVING BEEN RESERVED FOR ORDERS ON 25.04.2025, THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ
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CAV ORDER
1. The Petitioners in W.P.No.27341/2024 are before this
Court seeking for the following reliefs:
a. Quash Registration certificate dated 20.11.2020
DRB3/SOR/378/2020-2021 issued by third
Respondent District Registrar for Societies, Zone-3,
Bengaluru Urban District at Annexure-B
(Deleted vide order dated 10.12.2024)
b. Quash order dated 05.07.2022 in Complaint No.
(KRERA) 7613/2020 at Annexure-C and Order dated
03.01.2023 & 17.05.2024 in CMP 221116/0010348
clubbed with CMP 210223/0007613 at Annexure-U
passed by Third Respondent Karnataka Real Estate
Regulatory Authority (RERA);
(Deleted vide order dated 10.12.2024)
c. Quash Registration Certificate bearing No. AA.HA.
HAAA.RE-50/REGISTRATION/06/54965/2023-24
dated 11.08.2023 issued by Second Respondent
Registrar for Co-operative Societies, Zone-3,
Bengaluru Urban District at Annexure-J.
d. To quash notice dated 15.07.2024 bearing No. DRB-
3/DIS/48/2024-25 at Annexure-W and order dated
31.08.2024 bearing No. DRB-3/DIS/48/2024-25
passed by Third Respondent District Registrar for Co-
operative Societies at Annexure-Z by writ of
Certiorari or by any other writ.
e. Issue necessary directions to second Respondent
Registrar of Co-operative Societies and Third
Respondent District Registrar for Societies, Zone-3,
Bengaluru Urban District, to desist from intervening
with the affairs of petitioner Association pertaining to
task of management of Common areas and common
amenities in Commune 1 Project.
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f. Issue necessary directions to Sixth Respondent
Developer to act on Representation dated
29.04.2024 at Annexure-H by taking all such
necessary steps towards formation and registration
of an Association of Apartment owners under the
provisions of Karnataka Ownership Act, 1972 for the
purpose of accomplishing the maintenance of
common areas and common amenities in Commune-
1 Project,
g. Issue necessary directions to Seventh respondent
Sub-Registrar, Attibele, Bengaluru to accept and
register Deed of Declaration and Bye laws and Rules
and Regulations pertaining to registration of
Association for Flat owners at Commune 1 Project at
Annexure-AL to writ petition, or to register any other
Deed of Declaration of Bye-laws duly approved by all
the Apartment owners at Commune 1 Project.
h. Issue Directions to all the Respondents herein to
extend support and co-operatioin towards formation
and registration of an Association of Apartment
owners under the provisions of Karnataka Apartment
Ownership Act, 1972 for the purpose of undertaking
the maintenance of common areas and common
amenities in Commune-1 Project,
i. To pass such other order or writ as this Hon'ble Court
deems fit to grant under the facts and circumstances
of the case.
j. For costs of this Writ petition.
2. The Petitioners in W.P.No.5479/2023 are before this
Court seeking for the following reliefs:
a. Direct the R2, R3 and R4 to expeiditously register the
co-operative Society, "Commune I Apartment owners
Co-operative Society Ltd.,"
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b. Direct R7 to ensure that the order dated 24.03.2022
of the R6 at Annexure-C are complied by all the
jurisdictional sub-registrars.
c. Direct the R8, R13 and other sub-registrar having
jurisdiction to refrain from registering the sale deeds
when presented by R9 and R12 in violation of the
orders of R6 at Annexure-C.
d. Direct R6 to order take over of the project by the
complainant in CMP/210223/0007613 being a
welfare association registered as per at Annexure-B
before R5 with an option to transfer the same to the
proposed Society or any appropriate association.
e. Direct R9 to R12 to immediately deposit all the
amounts collected by sale of apartment units
pursuant to the order of restraint dated 24.03.2022
Annexure-C in the account of the complainant
association in CMP/210223/0007613.
f. Direct R9 to deposit the amounts required for
completion of the project as mentioned in Annexure-
G at page no. 123 in the account of the complainant
association in CMP/210223/0007613.
g. Direct R6 to pass orders declaring the legal validity
regarding the mortgage between the R9 and R12.
Being found illegal by R6 in its order dated
24.03.2022 at Annexure-C at page No. 53.
h. Direct R7 to initiate undervaluation proceedings in
respect to the sale of 42 apartments mentioned in at
Annexure-F at page no.110 to 119 by R9 in favour of
R12.
i. Grant costs of the proceedings. Grant such other
relief, relief's and orders as this Hon'ble Court deems
fit under the facts and circumstances of the case in
the interest of justice and
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FACTS IN W.P. No. 27341/2024:
3. The Petitioners claim to be the owners of residential
apartments at the Commune 1 residential apartment
complex, which was constructed and/or is in the
process of construction by the sixth Respondent,
Commune Properties India Private Limited,
[hereinafter referred to as the 'Developer'] on 5
acres, 14 guntas of converted land in Sy. Nos. 477/4,
478/A2, 479/A, and 480/3, situated at Marasur
village, Kasaba Hobli, Anekal Taluk, the project being
known as 'Commune 1'.
4. The Petitioners are before this Court as owners of
apartments in Commune 1 project to espouse their
own grievances as also on behalf of Petitioner No.
59, Commune 1, Commune Residents Welfare
Association (R), a Society registered under the
Karnataka Societies Registration Act, 1960
[hereinafter referred to as the 'Society'].
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5. The Petitioners claim that there are 384 residential
apartments required to be constructed in five
different towers in Commune 1 complex, with the
towers named as Tower A to E. By the end of the
year 2017, the developer had constructed Towers B
and C. Tower D was completed in the year 2020.
6. Thereafter, the developer abruptly stopped
construction of Towers A and E affecting the interest
of the persons who had agreed to purchase
apartments in Tower A and E. Insofar as Tower B, C
and D are concerned, the apartments having been
constructed have been handed over to the
purchasers and the purchasers are residing in those
three towers.
7. In respect of Tower B, it is claimed that there are 70
out of 104 apartments which are occupied. In respect
of Tower C, 80 out of 104 apartments have been
occupied. In respect of Tower D, 30 out of 52
apartments were occupied. In respect of Tower E, 15
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out of 52 apartments are occupied. Thus, it is
claimed that a total of 195 out of the total proposed
384 apartments have been sold and are occupied.
8. In view of the stoppage of the construction of Tower
A and E by the developer, the aggrieved agreement
holders, formed an association under the name and
style of 'Commune 1 Buyers Welfare Association',
[hereinafter referred to as the 'Association'], viz.,
Respondent No.7 herein, which is also a Society
registered under the provisions of the Karnataka
Societies Registration Act on 20.11.2020.
9. The said Buyers Welfare Association comprising of
agreement holders of Tower A and Tower E, had filed
a complaint in No. 210223/ 0007613, before the
Karnataka Real Estate Regulatory Authority
[hereinafter referred to as 'RERA'], seeking for a
direction to the developer to complete the
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construction of the apartments and convey them to
the members of the said association. In the
alternative, the association sought permission to
complete the construction of the apartments by
itself. The Society, claims that on filing of such
complaint before the RERA, the RERA has passed
illegal and unsustainable orders, one of them being
an order dated 05.07.2022, wherein the RERA issued
directions to the Association to register itself as a co-
operative Society and thereafter submit a formal
application under Section 8 of the Real Estate
(Regulation And Development) Act, 2016 [hereinafter
referred to as 'RERA 2016'].
10. Sri. Rajashekar S., learned counsel for the
Petitioners, submits that:
10.1. The impugned order passed by the RERA is an
illegal order passed contrary to law. The RERA
has not taken into consideration that the
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association did not have the requisite
membership and majority in terms of the entire
project. There being 384 apartments, owners of
195 of them are members of the Society who
have no grievance as regards the construction
or otherwise by the developer. It is only the
remaining persons who have purchased
apartments in Tower A and Tower E or who
have entered into an agreement to purchase
apartments in Tower A and Tower E who had
grievances, and they could not be said to be
the majority of the apartment purchasers.
10.2. The contention is also that no co-operative
Society could be formed since there is a
requirement to subject the apartments and
apartment purchasers to the provisions of the
Karnataka Apartment Ownership Act 1972
[hereinafter referred to as 'KAOA 1972']. No
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co-operative Society could be formed in respect
of the said apartments. Thus, the direction
issued by the RERA in respect of the formation
of the co-operative Society is misplaced and ill-
conceived.
10.3. It is contended that there could at the most
have been a direction to form an association in
terms of the KAOA 1972, which has not been
issued, which is contrary to the finding of the
division bench of this Court in several matters.
It is contended that there are multiple entities
which are now in operation, inasmuch as
Petitioner No.59 is a Society registered under
the Societies Registration Act, Respondent No.7
is again registered under the Societies
Registration Act and in terms of the direction of
the RERA, Respondent No.8, Commune 1,
Apartment Co-operative Society Limited has
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been registered [hereinafter referred to as 'Co-
operative Society'].
10.4. By such multiple entities being registered, there
would be confusion, which would cause
obstacles and hurdles in protecting and
fostering the interest and welfare of the
apartment owners of the entire project. It is
contended that there are only 250 apartments
which have been sold, balance 134 apartments
are yet to be sold, and as such, in terms of the
claim of only 55 agreement holders, the RERA
could not have directed the registration of a
Cooperative Society.
10.5. It is contended that the Society has a strength
of 140 apartment owners out of the total 200
occupants, that the remaining 50 could not
have approached the RERA seeking the
formation of a co-operative Society. The
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Society has been formed to protect the
interests of its members at an earlier point in
time; it is the Society alone that can represent
the interests of the purchasers.
10.6. It is contended that it is due to a subsequent
order dated 03.01.2023 passed by RERA
recommending the second respondent,
Registrar, Karnataka Co-operative Societies, to
take steps to register the application of
Respondent No. 8 and in pursuance of such
direction that the Registrar of Co-operative
Societies has registered the Co-operative
Society. In the absence of such a direction,
there could not have been any such
registration, and as such, it is contended that
the direction itself, being illegal and contrary to
law, registration of the Co-operative Society is
also bad in law.
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10.7. The contention is that, until then, some kind of
construction was going on, but from March
2023, the developer stopped the construction of
Tower A and Tower E, as well as stopped
maintenance of the common areas in the other
Towers, putting at risk the interest of the
petitioners. It is in that background that the
responsibility of the maintenance of the
common areas and common amenities was
taken over by the Petitioners by registering a
Society under the Societies Registration Act,
since not all the owners have come forward to
subject themselves to the KAOA 1972.
10.8. The petitioners, it is claimed, have made
consistent efforts to persuade the developer as
well as the other purchasers to subject
themselves to a deed of declaration and
register an Association in terms of KAOA 1972,
which has not yielded any positive result. In the
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meanwhile, the Respondent No. 8, Cooperative
Society, has been registered in terms of the
direction of the RERA. The said Co-operative
Society functioning in an urban area requiring a
minimum of 200 members, not having such
membership, despite the direction of RERA, the
second respondent, Registrar, ought to have
refused the registration of the Co-operative
Society.
10.9. It is further contended that the objects of the
Co-operative Society and the functioning of the
Co-operative Society in terms of the bye-laws
registered are contrary to the Karnataka Co-
operative Societies Act 1959, [hereinafter
referred to as 'KCSA 1959']. The KCSA 1959
does not provide as one of the objects the
maintenance of common areas and common
amenities. Thus, the registration is illegal.
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10.10. The Co-operative Society has apparently been
formed and registered by the apartment
purchasers of Tower A and Tower E on account
of the said Towers not being completed. Thus,
there is a personal interest of those members
of the Co-operative Society as regards their
own apartment, and they are not concerned
with the other apartment owners in Towers B, C
and D, which have been completed and are in
occupation of the purchasers.
10.11. Few of the purchasers in Tower A and Tower E
who have formed the Co-operative Society who
do not even number 50 members have sought
to take over the entire project including the
management of common areas and common
amenities, despite their apartments not having
been ready and they not being in possession of
the apartments for the purpose of their
maintenance.
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10.12. The contention is that the interest of the owners
of the apartments which have been completed,
in Towers B, C and D, which have been
completed differently, is different from the
interest of the purchasers who have entered
into an agreement of sale in Towers A and E,
which have not been completed. The claim of
those agreement holders being only as regards
Tower A and Tower E, they have sought to
exercise management and superintendence
over Tower B, C and D, which is not
permissible. It was but required for all the
apartment owners to have come together and
to have registered as an association of KAOA,
1972. Knowing fully well that the same may not
be in the personal interest of the purchasers of
Tower A and Tower E, it is contended that a Co-
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operative Society has been formed for the
entire project, which is not permissible.
10.13. It is contended that the Petitioners have no
objection insofar as the Co-operative Society
restricting its activities to Tower A and Tower E,
the Co-operative Society would have no role to
play in respect of the completed units in Towers
B, C, and D. The agreement holders in Towers
A and E, not being in possession of their
apartments, they are not residing in the
apartment complex, are not aware of the day-
to-day requirements of the apartment owners
who are in possession of Towers B, C and D and
therefore, they would be unable to maintain
Towers B, C and D.
10.14. It is further contended that there is no
requirement for those agreement holders to
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maintain Towers B, C, and D, over which they
have no interest. Insofar as common areas are
concerned, the common areas being utilised by
the persons who are residing in the apartment
complex, again, it is those persons who would
know what is required to be done and not
persons who do not have possession of any
apartment in the said complex.
10.15. In that background, that the purchaser in
possession had entered into an agreement with
No Broker Technology Solution Private Limited
(hereinafter for brevity referred to as "No
Broker") for the purpose of maintenance of the
common areas and common amenities, which
was sought to be interfered by the Co-operative
Society and as such, some of the petitioners
along with the Society and No Broker had filed
a suit in O.S. No. 7717 of 23 wherein an
interlocutory application under Order XXXIX
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Rules 1 and 2 of the Code of Civil Procedure,
1908 had been filed seeking for an injunction
restraining the office bearers of the Co-
operative Society from interfering the use of
the application of No Broker and the
maintenance of the common areas. The said
application was allowed, and an injunction was
granted on 21.12.2023, which has attained
finality not having been challenged.
10.16. It is contended that after the said injunction on
22.12.2023, respondent Nos . 9 to 15, who are
the office bearers of the Co-operative Society,
filed a complaint through the Co-operative
Society against petitioner No.59 - Society
before the Registrar of Societies, making
certain false allegations and that the Society
could not maintain the apartment complex.
10.17. While the suit was being contested, the Co-
operative Society pursued the complaint before
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the RERA, wherein an order was passed on
17.05.2024 permitting the Co-operative Society
to take over the project under Section 8 of the
RERA 2016 and complete the project within 24
months. While doing so, a direction was issued
to the developer to cooperate with the
Association of Allottees to complete the
construction and transfer the apartments.
10.18. It is contended that this order could have been
restricted only to Tower A and Tower E and not
to completed Towers B, C and D. By virtue of
the said order, the RERA order dated
17.05.2024, the RERA has handed over the
entire project to the Co-operative Society,
which is not permissible. The agreement
holders have no title in their favour; they are
mere agreement orders, nor are they in
possession of any apartments since the
apartment has not been constructed. Thus, no
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order could have been passed in their favour
contrary to the interest of the petitioners, who
have a sale deed in their favour, and are in
occupation and enjoyment of their respective
apartments. In the meantime, even Tower E
was completed, and the developer had called
upon the purchasers to occupy the same. The
construction of Tower A was also proceeded
with by the developer. No action was taken by
the Co-operative Society to either complete
Towers A or E. The Co-operative Society has
unduly taken advantage of the proceedings
before the RERA to stop the development to the
detriment of all concerned and has also come in
the way of the developer developing and
completing the property.
10.19. It is contended that the action on the part of
the Co-operative Society was only in the
interest of the agreement holders and
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respondents Nos . 9 to 15, the office bearers
and not in the interest of all the persons. The
only action taken by the Co-operative Society is
interference with the activities of all and
everyone concerned including the occupants of
Towers B, C and D, as also the action of the
developer, if not, for respondent Nos.9 to 15
having interfered and formed the Co-operative
Society, the developer would have completed
the construction, which would have enured to
the benefit of the petitioners. The common
areas and common amenities would have been
properly catered to by the association, which
would have been subject to KAOA 1972. None
of the so-called members of the Co-operative
societies have made available any monies for
the purpose of completion of the construction.
There is no genuine interest on the part of the
Co-operative Society to complete the project,
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which is causing harm and injury to the
petitioners.
10.20. Under the guise of being victims of the
developer, the Co-operative Society and its
members are victimizing the petitioners who
are genuine bonafide purchasers in occupation
and enjoyment of the apartments in Towers B,
C and D. The Co-operative Society can only
restrict its claim, if at all, to the completion of
Towers A and D. Tower E also being complete
in most aspects, it is only Tower A which is
required to be completed. Instead of doing so,
the Co-operative Society has interfered with
even the maintenance of common areas and
amenities of Towers B, C and D, which is not
permissible.
10.21. In that background, the petitioner No.59 -
Society had made a representation to the
Registrar of Co-operative Societies to appoint
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an Administrator and conduct a fresh election of
the Cooperative Society by admitting all
purchasers as members of the Cooperative
Society. This representation dated 02.07.2024
has also not been acted upon by the Registrar,
and as such, it is only a few of the agreement
holders in Towers A and E who continue to be
members of the Co-operative Society who are
causing detriment to all concerned.
10.22. On 15.07.2024, a notice of enquiry was issued
to the petitioners calling upon them to appear
before the Registrar on 24.07.2024, but there
was no hearing held. Though the officers of the
Society were present, their presence was not
noted, and they were informed that the next
date would be communicated to them. When no
such communication was received, the office
bearers of the Society submitted a detailed
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response to the enquiry notice on 26.07.2024
by Registered Post Acknowledgement Due.
10.23. As a further complaint on 28.07.2024, as
regards the actions of respondent Nos . 8 to 15,
bringing to notice of the Registrar that
respondent Nos . 9 to 15 had also indulged in
physical altercations with the residents. Despite
such a reply and complaint having been issued,
no action was taken. However, an order is
stated to have been passed on 31.08.2024 by
the Registrar of Co-operative Societies directing
the petitioner No.59 - Society not to collect
maintenance fees from any of the apartment
owners in the project. It is in furtherance
thereof that the Society has not collected any
amounts nor carried out any maintenance
activities but has challenged the said order
dated 31.08.2024 in this proceeding.
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10.24. It is contended that in view of the order dated
31.08.2024, it is the petitioners who are
suffering; respondent Nos . 9 to 15 are not
maintaining the entire project, nor do they have
the monies to maintain the same, let alone
interest in such maintenance. The said
agreement holders are inconsiderate and
insensitive to the problems of the persons in
possession and occupation of the apartments.
In the meanwhile, an application filed under
Order VII Rule 11D of the Code of Civil
Procedure in the aforesaid suit in O.S.No.7717
of 2023 was dismissed. However, respondents
Nos . 10, 13, 14 and 15 continued their barrage
against No Broker, coming in the way of No
Broker rendering services, resulting in No
Broker by its letter dated 13.09.2024,
terminating the agreement of maintenance.
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10.25. Thereafter, on 10.09.2024, the Co-operative
Society raised a demand for maintenance
charges on the purchase of the apartment by
stating that they had availed the service of the
MyGate application and insisting that all the
apartment owners make payment through the
said application. It is in that background that an
emergency meeting of the Society was called
for on 10.09.2024, wherein it was resolved to
challenge the illegal actions of the Co-operative
Society.
10.26. The Co-operative Society, vide its email dated
15.09.2024, took up the stand that in view of
the orders passed by the RERA, it is the Co-
operative Society which can handle the
maintenance of the common areas and
common amenities and in pursuance thereof
had deputed certain bouncers from an agency
to stop the entry of the apartment owners,
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pursuance of which a police complaint was
submitted on 16.09.2024. The police authorities
did not take any action thereon.
10.27. The dispute between the owners in occupation
and the agreement holders has been escalating
from time to time, and it is on that basis that
the owners in occupation contend that their
interests are being adversely affected. The
Petitioners in W.P.No.27341 of 2024 are before
this court seeking the aforesaid release.
10.28. It is contended that the total occupancy of the
project is about 195 apartments, out of which
140 apartment owners are members of the
Society, who are unable to streamline proper
and effective management of the common
areas and common amenities on account of
non-cooperation by the developer as also on
account of the separate Co-operative Society
which has been set up by the agreement
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holders. The sale deeds which have been
executed in favour of the apartment purchasers
mandate that an association under the KAOA
1972 is required to be formed. As a temporary
measure, a Society has been formed to handle
the day-to-day affairs. The petitioners are
ready to subject the apartments and the project
to a deed of declaration in terms of KAOA 1972.
The best of the efforts made by the
petitioners have not yielded any results, and as
such, it is contended that a direction be issued
by this court to all the apartment owners, as
also the developer, to draft a deed of
declaration and subject the same to the KAOA
1972. The continued disinterest on the part of
the developer and the efforts made by the Co-
operative Society to take over the
management, when in fact many of them are
only agreement holders and not even owners of
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the apartments, have resulted in improper
administration of the project and maintenance
of the common areas and common amenities.
10.29. It is also contended that if everyone were not to
come together, at least the majority of the
owners may be permitted to register an
Association under KAOA 1972 with an option
available for the others to join the said
Association from time to time. The Association
cannot undertake the construction of the
apartment complex. The Co-operative Society
could not have been formed by only a few of
the agreement holders. As per the directions
issued by the RERA, the interest of all the
apartment owners, purchasers and agreement
holders can only be protected under the KAOA
1972.
10.30. The entire community of apartment owners is
held at ransom by a few people who have
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formed the Co-operative Society, putting at risk
the life and liberty of those apartment owners,
more so, when the apartment building is a
multi-storied building, some of the blocks
comprising of 13 floors, there is a requirement
to provide uninterrupted power, lift facility,
water etc., as also to maintain the cleanliness
of the common areas like the corridors, lifts,
the safety equipment like fire fighting
equipment, etc. apart from maintenance of
water storage tanks, sewage treatment plants,
water treatment plants, etc., which need to be
done in a time-bound manner so as to
safeguard the life and liberty of the said
apartment owners who are residing in the said
premises.
10.31. As an example, it is pointed out that the annual
maintenance contract for the lifts has not been
extended, resulting in the lifts not working on
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many occasions, there being old people as well
as younger children residing in the apartment
complex. The access by them to their
respective apartments gets adversely affected
when the lifts are not functioning. Furthermore,
if there is any defect in the lifts which is not
noticed and handled by the original equipment
manufacturer of the lift, this being only one of
the problems, there are several other problems
as indicated above, which need to be looked at
in a humane manner and a solution found. The
developer and a few of the agreement holders
whose apartments have not been constructed
are putting at risk the life and liberty of the rest
of the apartment owners who are in possession
and occupation of Towers B, C and D and a
portion of Tower E.
10.32. The RERA, by its order dated 17.05.2024, has
directed the promoter to cooperate with the
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Association of Allottees as and when required
for transfer of the entire project, which includes
the entire built-up area/flats, common areas,
and title of the project to the Association of
Allottees. This so-called Association of Allottees,
which is now a Co-operative Society, consists
only of a few agreement holders. There is no
title to any apartment vested in the name of
those agreement holders, nor do they have
possession of the apartments. These agreement
holders are seeking to hijack the entire project
to the detriment of the apartment owners who
are in possession and occupation of their
respective apartments.
10.33. Petitioner No.59 - Society comprising a large
number of apartment owners, the Co-operative
Society has written to the Registrar of Societies
to de-register Petitioner No.59 - Society, so
that there is no opposition to the Co-operative
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Society in handling matters at their whims and
fancies to the detriment of the apartment
owners.
10.34. The actions of respondents Nos. 9 to 15 have
only helped the developer in delaying the
project. Even though the petitioners are not
concerned much with the apartment as such,
which are yet to be constructed, the common
areas and common amenities are also not
complete, which the developer is not
completing on account of this litigation by the
Co-operative Society which to the petitioners
appears to be collusive to only safeguard the
interest of the developer to the detriment of the
apartment owners.
10.35. The Co-operative Society is also seeking to
cause confusion insofar as the maintenance of
the project is concerned. There is no right
vested with the Co-operative Society to
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maintain the entire apartment complex. Only a
few of the apartment owners and agreement
holders are members of the Co-operative
Society. When the entire community is not
represented in the Co-operative Society, the
question of the Co-operative Society
maintaining the entire apartment complex and
or causing a demand for monthly maintenance
charges, is completely unsustainable.
10.36. The District Registrar of Societies has passed
the impugned order dated 31.08.2024 supra
without adhering to the principles of natural
justice, without providing an opportunity to
petitioners and or petitioner No.59 - Society.
The action of the Registrar of Societies is also
adversely affecting the interest of the
apartment owners.
10.37. He relies upon the decision of a coordinate
bench of this court dated 15.02.2019 in Mr.
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Praveen Prakash And Others Vs. State Of
Karnataka And Others1, more particularly
para no. 6 thereof, which is reproduced
hereunder for easy reference:
6. I have considered the submissions made
by learned counsel for the parties. Since,
respondent No.4 is a Association of the
owners of flat situate in a apartment for
which a specific enactment viz., Karnataka
Apartment Ownership Act 1972 has been
enacted. Therefore, the Registration of the
Association if any, has to be made under
Section 3 of the Karnataka Societies Act. It is
well settled in law that a specific provision of
law will always override the general
provisions of law. Since the specific
provisions as made by the Registrar,
therefore, respondent No.4 assertion ought
to have registered under Karnataka
Apartment Ownership Act, 1972.
10.38. By relying on Praveen Prakash's case, it is
submitted that this court has come to a
categorical conclusion that an Association can
only be registered under the KAOA 1972 for the
purpose of maintenance of an apartment
1
W.P.No.34660/2017
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complex and a Society registered under Section
3 of the KSRA 1960 cannot maintain an
apartment complex.
10.39. He relies upon the decision of the division bench
of this court dated 06.11.2019 in VDB Celadon
Apartment Owners Association Vs.
Praveen Prakash2, more particularly para nos.
7 to 12 thereof, which are reproduced
hereunder for easy reference:
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.
8. Today, the learned counsel appearing for
the appellant, on instructions, states that if
the said two objects are deleted, the
2
W.A.No.974/2019
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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 appeilant 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 apariment
owners contemplate formation of such
Association..
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12. Subject to what is observed above, the
writ appeals are dismissed. All pending
applications do not survive for consideration
and are accordingly disposed of.
10.40. The above Writ Appeal in VDB Celadon
Apartment Owners Association was filed
challenging the aforesaid order dated
15.02.2019 in W.P. No. 34660 of 2017 passed
by a coordinate bench of this court in Praveen
Prakash's case Supra. On appeal, the Hon'ble
division bench of this court dismissed the writ
appeal and while doing so, has categorically
observed that on a plain reading of Section 3 of
the KSRA 1960, 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 KSRA
1960. The object of the Society was to do
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something which could only be done by an
Association formed in accordance with KAOA
1972.
10.41. The division bench, taking note of the
stipulations in the agreement that the
purchaser of the apartments shall form an
Association in accordance with the provisions of
KAOA 1972, a Society under KSRA 1960, could
not be registered. Thus, he submits that there
is a categorical finding of the division bench of
this court in VDB CELADON APARTMENT
OWNERS ASSOCIATION's case supra that it
is only an Association under the KAOA 1972,
which can maintain the common areas and
common amenities and not any other entity, be
it a Society under the KSRA 1960 or a Co-
operative Society under the KCSA 1959.
10.42. He relies upon another judgment of the Co-
Ordinate Bench of this Court in
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MR.ARUNKUMAR.R VS STATE OF
KARNATAKA3 more particularly para 4, 5 and
21 thereof, which are reproduced hereunder for
easy referece:
4. As can be noticed from the submission
made by the learned counsel for the
petitioners as well as the learned counsel
appearing for the proposed 4th respondent
Society, the promoters of 4th respondent are
intending to register a Co-operative Society
under the provisions of the Act of 1959 to
maintain and NC: 2024:KHC:7684 manage the
residential apartment complex namely "DS-
Max Star Nest" referred to above. The
permission is granted in this regard by the
Registrar of Cooperative Societies vide
permission dated 21.09.2023.
5. The petitioners are before this Court
contending that the petitioners and some of
the flat owners who are intending to register
the 4th respondent Society having purchased
the flats in the aforementioned Property are
governed by the provisions of the Karnataka
Apartment Ownership Act, 1972 (for short the
'Act of 1972'). It is the contention of the
learned counsel for the petitioners that the
persons who have purchased the residential
flats as per the terms of the sale deed have
bound themselves to form an association
under the provisions of the Act of 1972. It is
further contended that the promoters and the
persons supporting them cannot form a Co-
operative Society, having an object to
3
WP.NO.25528/2023 DD 23.02.2024
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maintain and manage the residential
apartment under the Act of 1959.
21. Learned counsel for the respondent No.4
would submit that they will take effective
steps to maintain and manage the property till
the association is registered under the Act of
1972. Some of the petitioners who are before
the Court would also agree that they would
cooperate in arriving at a solution till the
registration is completed under the Act of
1972.
10.43. He submits that the above decision is popularly
known as DS Max's case by the name of the
developer in the said matter and he submits
that the coordinate bench considered the
aspect of registration of a Co-operative Society
by certain of the owners for the purpose of
maintenance and managing the residential
apartment complex viz., DS Max Star Nest.
10.44. The proposal to form a Co-operative Society
was challenged by certain of the apartment
owners, contending that it's only an Association
under KAOA 1972 that could maintain the
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common areas, and a Co-operative Society
cannot be so formed.
10.45. The coordinate bench of this court, considering
the rival contentions has categorically come to
a conclusion by referring to KAOA 1972 and the
Karnataka Ownership Flats (Regulation of the
Promotion of Construction, Sale, Management
and Transfer) Act, 1972 [hereinafter referred to
as 'KOFA 1972'] has come to a conclusion that
a Co-operative Society can be formed only if
there is any commercial business unit or
venture and without any such commercial unit,
no Co-operative Society could be formed for the
purpose of maintenance of the common areas
and common amenities and in that background,
prohibited the Registrar of cooperative societies
from registering the proposed Cooperative
Societies to manage and maintain the
residential apartment complex, and issued a
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direction to the builder/developer to comply
with all the requirements under law and to
cooperate with the petitioners and members of
the proposed Co-operative Society (i.e., the
owners of the apartment) to form an
Association under KAOA 1972 and until then, an
interim arrangement for maintenance had been
worked out by this court.
10.46. The said judgment of the learned Co-ordinate
Bench in WP No. 25528 of 2023 [ARUNKUMAR
AND OTHERS -V- STATE OF KARNATAKA
AND OTHERS] was taken on appeal before the
Division Bench in STARNEST APARTMENT
OWNERS CO-OPERATIVE SOCIETY LTD. -V-
STATE OF KARNATAKA AND OTHERS4 which
came to be disposed of vide the order dated
18.06.2024. He relies upon paragraphs 15 to
4
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20 thereof, which are reproduced hereunder for
easy reference:
15. The provisions of KOF Act, 1972 is
applicable when the premises is used or
intended to be used for residence or office or
show room or shop or godown forming part of
the building. In other words, premises forming
part of the building is used for residential as
well as commercial purposes. Then Section 10
of the KOF Act, 1972, mandates the promoter
to file an application to the Registrar for
registration of the Co-operative Society.
16. The narrow dispute in the present appeal
is, whether association is to be formed under
the Act of 1972 or Co-operative Society, is to
be formed under the KOF Act, 1972.
17. It is seen from the record that the sale
deeds would indicate the entire project is for
residential and no part of the project is used
or intended to be used towards commercial
purpose. That apart, the parties in the sale
deed have agreed to abide by the provisions of
the Karnataka Apartment Ownership Act,
1972, and to form an Association.
18. The contention of learned counsel for the
appellant that in view of the project being
registered under the provisions of RERA in
compliance of Section 11(4)(e), (f), (g) of
RERA, a Co-operative Society is to be formed,
is not acceptable. The said provisions of RERA
would mandate the builder to enable
formation of Association or Society or Co-
operative Society, as the case may be, of the
allottees. As the project under consideration
consists only residential units, the said
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provisions only mandate formation of
association of the allottees under the
applicable laws. The law applicable in the
present case is the Karnataka Apartment
Ownership Act, 1972.
19. The contention of learned counsel for the
appellant that, even if the project consists
only residential houses/flats, conversion of the
flats for commercial or use of such flats for
commercial purpose is not prohibited, in such
circumstances, provisions of KOF Act, 1972,
would be attracted and in compliance of
Section 10 of the said Act, the Co-operative
Society is to be formed is farfetched and is
rejected.
20. Learned Single Judge after considering the
relevant provisions under the statutes i.e., Act
of 1972 and KOF Act, 1972, has held that the
property does not include commercial unit to
attract KOF Act, 1972. The conclusion of the
learned Single Judge is on analysis of the
relevant provisions under both the
enactments. The order of learned Single Judge
does not suffer from any error on fact or law.
No ground is made out to interfere with the
order of learned Single Judge.
10.47. The submission is that the Hon'ble Division
Bench upheld the decision of the learned single
judge, dismissed the writ appeal and while
doing so came to a conclusion that KOFA 1972
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would be applicable only when the premises is
used for residence or office or showroom or
shop or godown forming part of the building
i.e., only if the building is used for both
residential and commercial purposes. If there
are only residential apartments, KOFA 1972
would not apply and therefore, no Co-operative
Society could be registered as per Section 10 of
the KOFA 1972 and as such, came to a
conclusion that it is only KAOA 1972 which
would apply and rejected the contention that
even if the entire project consists of residential
apartments a Co-operative Society could be
formed.
10.48. By relying on the above judgment, he submits
that it being very clear by two judgments of co-
ordinate bench of this court and two judgments
of the division bench of this court that only an
Association under KAOA 1972 could be formed
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and it also clearly held that no Society under
the KSRA 1960 or a Co-operative Society under
the KCSA 1959 could be formed for the purpose
of maintenance of common areas and common
amenities in a residential apartment complex.
The RERA could not have directed the Registrar
of Co-operative Societies to register a Co-
operative Society, viz., respondent No. 8, and
thereafter for respondent No. 8 to try and
hijack the project, both as regards maintenance
of common areas as also as regards the
completion of the project.
10.49. His submission is that it is only an Association
under KAOA 1972 which can do so, and all the
impugned orders which have been passed
either by RERA or the Registrar of Co-operative
Society, as also the Registrar of Societies would
have to be quashed with a direction to all the
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owners and the developer to register
themselves as a Association under KOA 1972.
11. Sri. Pradeep Kumar, learned counsel for Respondent
Nos.7 to 15 submitted that:
11.1. The Project Commune 1 is an ongoing RERA-
registered real estate project. The project not
being completed, some of the agreement
holders having formed themselves into an
association, viz., Commune Buyers Welfare
Association - Respondent No.7 had filed a
complaint in CMP/210223/0007613 under
Section 31 of RERA 2016 seeking for a direction
to the promoter to complete the project with all
amenities, hand over possession with the
occupancy certificate as also to initiate
proceedings under Section 35 of the RERA 2016
for forensic audit citing significant delay and
financial irregularities.
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11.2. In the said proceeding, a direction had been
issued by RERA directing the complainants
therein; to form themselves in a Co-operative
Society and as such, the said Co-operative
Society was registered inasmuch as by order
dated 05.07.2022 the RERA had observed as
under:
"The request of the complainants to
permit the takeover of the project under
Section 8 of the Act, shall be considered during
the next hearing, the Allottees Association is
required to register itself as a Co-operative
Society and submit a formal application under
Section 8 of the Act, and serve it on the
respondent so as to place it for further
consideration of the authority."
11.3. An Association of the owners having
approached the RERA, it is the RERA who had
directed the allottees to register as a Co-
operative Society and submit an application
under Section 8 of the RERA 2016. It is the
direction of the RERA which has been followed
by respondent No. 8 and a Co-operative Society
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registered thereafter; an application under
Section 8 of the RERA 2016 has been
submitted.
11.4. The said order having been passed in complaint
No.7613/2020 on 05.07.2022 on registration of
the Co-operative Society complaint in No.
CMP/22116/0010348 had been presented by
the Co-operative Society. The RERA vide its
order dated 03.01.2023 has considered the
judgment in Praveen Prakash's case supra,
as also the judgment in VDB, Celadon
Apartment Ownership Association supra,
and has come to the conclusion that a Society
registered under the KSRA 1960 is not the
appropriate Association to manage the affairs of
the apartment complex. It rejected the
contention of the Registrar of Co-operative
Society that a minimum of 200 allottees are
required to register a Co-Operative Society in
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an urban area and was of the opinion that
insofar as projects of construction of residential
apartments even if the number is less than
200, if the project is abandoned, stalled or
incomplete or delayed, the allottees can form
themselves into a Co-operative Society. The
non-registration of a Co-operative Society on
that ground would jeopardise the rights of the
allottees. The allottees are being prevented
from obtaining any orders from the RERA or
any other authority.
11.5. The RERA exercised powers under Section 32 of
RERA 2016, directing the Registrar of Co-
operative Societies and its subordinate officers
to take steps to register the application of
Commune 1, Owners Co-operative Society
Limited under the Co-operative Societies Act.
11.6. In pursuance thereof, a registration certificate
has been issued by the Registrar of Co-
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operative Societies on 11.08.2023, and the
Society has taken up the role of safeguarding
the interest of the agreement holders as well as
the purchasers. His submission is that the Co-
operative Society is a body corporate registered
as per the directions of the RERA and as such
would act in the interest of as also for the
benefit of not only the agreement holders who
are yet to be conveyed their respective
apartments, but also the apartment owners in
whose favour conveyance has already been
affected and who have been put in possession.
It is always open for the said owners to join the
Co-operative Society and participate in the
affairs of the Co-operative Society. The present
members of the Co-operative Society and or
the Co-operative Society have no objection for
all the apartment owners or agreement holders
to join the Co-operative Society.
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11.7. The original date of completion of the project
was slated to be 30.12.2014, which was
extended from time to time and even as on the
date of filing of the writ petition or even as on
today, the project is not completed, there being
a delay of nearly 11 years as on today, the
petitioners had not taken any steps as, regards
such delay. It is the respondents who have
taken steps to bring the developer to terms and
comply with his obligations. When the Co-
operative Society had obtained some
favourable orders, the petitioners filed a suit
and thereafter the present writ petition.
Therefore, he counter-alleges that it is the
petitioners who are hand in glove and have
colluded with the developer, and it is the
actions of the petitioners which has benefited
the developer.
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11.8. His submission is that Towers B, C and D have
also not been completed in all respects. There
are several aspects of the said Towers which
are to be completed, and the contention of the
petitioners that Towers B, C and D are
completed, Tower E is more or less completed,
is completely false.
11.9. His submission is that an order having been
passed by the RERA by exercising powers under
Section 32 thereof, the same is an appealable
order. The petitioners have an alternative
efficacious remedy in terms of Section 31 and
44 of the RERA 2016, as also in terms of
Section 106(a) of the KCSA 1959. The said
provisions are reproduced hereunder for easy
reference:
31. Filing of complaints with the Authority
or the adjudicating officer.--
(1) Any aggrieved person may file a complaint
with the Authority or the adjudicating officer,
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as the case may be, for any violation or
contravention of the provisions of this Act or
the rules and regulations made thereunder,
against any promoter, allottee or real estate
agent, as the case may be.
Explanation.--For the purpose of this sub-
section "person" shall include the association
of allottees or any voluntary consumer
association registered under any law for the
time being in force.
(2) The form, manner and fees for filing
complaint under sub-section (1) shall be such
as may be 1 [prescribed].
44. Application for settlement of disputes
and appeals to Appellate Tribunal.--
(1) The appropriate Government or the
competent authority or any person aggrieved
by any direction or order or decision of the
Authority or the adjudicating officer may prefer
an appeal to the Appellate Tribunal.
(2) Every appeal made under sub-section (1)
shall be preferred within a period of sixty days
from the date on which a copy of the direction
or order or decision made by the Authority or
the adjudicating officer is received by the
appropriate Government or the competent
authority or the aggrieved person and it shall
be in such form and accompanied by such fee,
as may be prescribed: Provided that the
Appellate Tribunal may entertain any appeal
after the expiry of sixty days if it is satisfied
that there was sufficient cause for not filling it
within that period.
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(3) On receipt of an appeal under sub-section
(1), the Appellate Tribunal may after giving
the parties an opportunity of being heard, pass
such orders, including interim orders, as it
thinks fit.
(4) The Appellate Tribunal shall send a copy of
every order made by it to the parties and to
the Authority or the adjudicating officer, as the
case may be.
(5) The appeal preferred under sub-section
(1), shall be dealt with by it as expeditiously
as possible and endeavour shall be made by it
to dispose of the appeal within a period of
sixty days from the date of receipt of appeal:
Provided that where any such appeal could not
be disposed of within the said period of sixty
days, the Appellate Tribunal shall record its
reasons in writing for not disposing of the
appeal within that period.
(6) The Appellate Tribunal may, for the
purpose of examining the legality or propriety
or correctness of any order or decision of the
Authority or the adjudicating officer, on its own
motion or otherwise, call for the records
relevant to deposing of such appeal and make
such orders as it thinks fit.
106. Appeals to other authorities.-
(1) Subject to the provisions of section 108A,
an appeal shall lie under this section against
an order of the Registrar.
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11.10. By relying on Sections 31 and 44 of the RERA
2016, his submission is that an order having
been passed by RERA, any person aggrieved
can challenge the same before the Appellate
Authority in terms of Sections 31 and 44, and a
writ petition is not maintainable.
11.11. Insofar as the registration of the Co-Operative
Society by placing reliance on Section 106(a) of
the KCSA 1959, his submission is that an order
passed by a Registrar registering a Co-
operative Society is appealable under the KCSA
1959, and as such, a writ petition is not
maintainable. During the pendency of the
above matter, the petitioners having withdrawn
the prayers challenging the registration of
Respondent No.7, Co-operative Society, also
having given up their challenge to the order
dated 05.07.2022 in Complaint No.7613 of
2020, as was the order dated 03.01.2023 and
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17.05.2024 in CMP/22116/0010348 passed by
the RERA, the actions taken in furtherance
thereof viz., the registration of the Co-operative
Society, cannot be challenged or continued to
be challenged after such deletion. This, he
submits, is for the simple reason that it is by
virtue of the order dated 17.05.2024 that the
RERA had directed the Registrar of Co-
operative Societies to register respondent No. 8
- Co-operative Society. The action of the
Registrar of Co-operative Societies being in
furtherance of a quasi-judicial order, a
challenge to the registration cannot be
maintained without a challenge to the order
under which the registration was made.
11.12. Petitioner No. 59 - Society is also one which is
registered under the KSRA 1960. By applying
the ratio of the division bench of this court in
W.A.No.974 of 2019 in VDB Celadon's case,
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he submits that petitioner No.59 - Society
registered under the KSRA 1960 cannot also
have one of its objects, maintenance of
common areas and common amenities. Thus,
by relying on the very same decision as that
relied upon by the petitioners, he submits that
petitioner No.59's registration is bad in law and
such registration is required to be cancelled.
The petitioners had not taken any steps against
the developer regarding the non-completion of
the proceedings. The date for completion being
30.12.2014, the petitioners have kept quiet
despite the delays and inaction on the part of
the developer. As such, they do not have any
locus standi to now question the actions on the
part of the Co-Operative Society in filing
proceedings against the developer and the
order passed therein. The Co-operative Society
has been registered as per the direction of the
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RERA; no other Society, Association, or the like
can be formed. It is for the petitioners 1 to 58,
as well as any other owners, to join and
become a member of the Co-operative Society.
11.13. His submission is also that an order under
Section 8 of the RERA 2016 having been
passed, the same can only be appealed and
challenged by way of an appeal under Section
44 and not by a writ petition.
11.14. The judgments in SHANTHARAM PRABHU vs.
DAYANAND SHANTHARAM PRABHU5 case
and STARNEST APARTMENT OWNERS CO-
OPERATIVE SOCIETY LTD case are not
applicable to the present facts. SHANTHARAM
PRABHU's case pertains to a dispute before
the RERA 2016 came into force; the same
pertains to a sale executed in the year 2014.
11.15. On the coming into force of the RERA 2016,
under Section 11(4)(e), an Association of
5
CRP NO.96/2021 c/w CRP NO.64/2021
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Allottees could be formed, which could take up
the issue against the developer. The judgment
in SHANTHARAM PRABHU case, dealt with
the applicability of the KOFA 1972 or KAOA
1972 as regards the management and
maintenance project. The same did not relate
to or consider the invocation of statutory
remedies, under Section 8, 11(4)(d), 11(4)(e),
17 or 31 of RERA 2016. These rights have been
invoked by the Association of Allottees before
the RERA 2016. The RERA had directed the
registration of the Co-operative Society when
the Registrar of Co-operative Societies did not
register; a further positive direction was issued
to the Registrar of Co-operative Societies. He
refers to the decision of the Hon'ble Apex Court
in Forum of People's Collective Efforts And
Another Vs. State of West Bengal And
Another6, more particularly, paragraphs 115,
6
(2021) 8 SCC 599
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116, 130, 131, 132, 133, 174 to 179 which are
reproduced hereunder for easy reference:
115. Article 254. Inconsistency between
laws made by Parliament and laws made
by the legislatures of States.--(1) If any
provision of a law made by the legislature of a
State is repugnant to any provision of a law
made by Parliament which Parliament is
competent to enact, or to any provision of an
existing law with respect to one of the matters
enumerated in the Concurrent List, then,
subject to the provisions of clause (2), the law
made by Parliament, whether passed before or
after the law made by the legislature of such
State, or, as the case may be, the existing
law, shall prevail and the law made by the
legislature of the State shall, to the extent of
the repugnancy, be void.(2) Where a law made
by the legislature of a State with respect to
one of the matters enumerated in the
Concurrent List contains any provision
repugnant to the provisions of an earlier law
made by Parliament or an existing law with
respect to that matter, then, the law so made
by the legislature of such State shall, if it has
been reserved for the consideration of the
President and has received his assent, prevail
in that State: Provided that nothing in this
clause shall prevent Parliament from enacting
at any time any law with respect to the same
matter including a law adding to, amending,
varying or repealing the law so made by the
legislature of the State."] contains provisions
for inconsistencies between laws made by
Parliament and by the legislatures of the
States. Clause (1) of Article 254 stipulates that
where a State law "is repugnant" to a
parliamentary law which Parliament is
competent to enact or to a provision of an
existing law "with respect to one of the
matters enumerated in the Concurrent List",
then the law made by Parliament is to prevail
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and the law made by the legislature of a State
shall "to the extent of the repugnancy" be
void. The provisions of clause (1) are subject
to clause (2). Clause (1) also provides that in
the event of a repugnancy between a law
enacted by the State Legislature with a
provision of a law made by Parliament which it
is competent to enact or to a provision of an
existing law with respect to a matter
enumerated in the Concurrent List, the law
enacted by Parliament is to prevail whether it
was enacted before or after the State law or,
as the case may be, the existing law. Clause
(1) of Article 254 is, however, made subject to
clause (2) which envisages that if a State law
on a matter enumerated in the Concurrent List
contains a provision which is repugnant to an
earlier law of Parliament or an existing law
with respect to the subject-matter, the law
made by the legislature of the State will
prevail in the State if it is has been reserved
for the consideration of the President and has
received such assent. Despite the grant of
Presidential assent, Parliament is not
precluded from enacting any law with respect
to the same matter in future including a law
adding to, amending, varying or repealing the
law made by the legislature of the State.
116. Some of the salient features of Article
254 may be noticed at this stage:
116.1. Firstly, Article 254(1) embodies the
concept of repugnancy on subjects within the
Concurrent List on which both the State
Legislatures and Parliament are entrusted with
the power to enact laws.
116.2. Secondly, a law made by the
legislature of a State which is repugnant to
parliamentary legislation on a matter
enumerated in the Concurrent List has to yield
to a parliamentary law whether enacted before
or after the law made by the State Legislature.
116.3. Thirdly, in the event of a repugnancy,
the parliamentary legislation shall prevail and
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the State law shall "to the extent of the
repugnancy" be void.
116.4. Fourthly, the consequence of a
repugnancy between the State legislation with
a law enacted by Parliament within the ambit
of List III can be cured if the State legislation
receives the assent of the President.
116.5.Fifthly, the grant of Presidential assent
under clause (2) of Article 254 will not
preclude Parliament from enacting a law on
the subject-matter, as stipulated in the proviso
to clause (2).
130. A two-Judge Bench of this Court
in Innoventive Industries Ltd. v. ICICI
Bank [Innoventive Industries Ltd. v. ICICI
Bank, (2018) 1 SCC 407 : (2018) 1 SCC (Civ)
356] ("Innoventive Industries"), dealt with the
provisions of the Maharashtra Relief
Undertakings (Special Provisions) Act, 1958
vis-à-vis the provisions of IBC. Speaking
through R.F. Nariman, J., the Court held that
IBC is an exhaustive code on the subject-
matter of insolvency in relation to corporate
entities, referable to List III Entry 9 of the
Seventh Schedule which deals with
"bankruptcy and insolvency". On the other
hand, the subject covered by the Maharashtra
legislation fell within List III Entry 23 which
deals with "social security and social
insurance; employment and unemployment".
IBC was held to prevail after adverting to the
earlier line of precedent, the Court formulated
the three tests of repugnancy in the following
terms : (SCC p. 460, para 51)
51.6. Repugnancy may be direct in the
sense that there is inconsistency in the actual
terms of the competing statutes and there is,
therefore, a direct conflict between two or
more provisions of the competing statutes.
In this sense, the inconsistency must be clear
and direct and be of such a nature as to
bring the two Acts or parts thereof into direct
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collision with each other, reaching a situation
where it is impossible to obey the one
without disobeying the other. This happens
when two enactments produce different legal
results when applied to the same facts.
51.7. Though there may be no direct
conflict, a State law may be inoperative
because the parliamentary law is intended to
be a complete, exhaustive or exclusive code.
In such a case, the State law is inconsistent
and repugnant, even though obedience to
both laws is possible, because so long as the
State law is referable to the same subject-
matter as the parliamentary law to any
extent, it must give way. One test of seeing
whether the subject-matter of the
parliamentary law is encroached upon is to
find out whether the parliamentary statute
has adopted a plan or scheme which will be
hindered and/or obstructed by giving effect
to the State law. It can then be said that the
State law trenches upon the parliamentary
statute. Negatively put, where parliamentary
legislation does not purport to be exhaustive
or unqualified, but itself permits or
recognises other laws restricting or qualifying
the general provisions made in it, there can
be said to be no repugnancy.
51.8. A conflict may arise when
parliamentary law and State law seek to
exercise their powers over the same subject-
matter. This need not be in the form of a
direct conflict, where one says "do" and the
other says "don't". Laws under this head are
repugnant even if the rule of conduct
prescribed by both laws is identical. The test
that has been applied in such cases is based
on the principle on which the rule of implied
repeal rests, namely, that if the subject-
matter of the State legislation or part thereof
is identical with that of the parliamentary
legislation, so that they cannot both stand
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together, then the State legislation will be
said to be repugnant to the parliamentary
legislation. However, if the State legislation
or part thereof deals not with the matters
which formed the subject-matter of
parliamentary legislation but with other and
distinct matters though of a cognate and
allied nature, there is no repugnancy."
131. Our journey of tracing the precedents of
this Court, commencing
from Zaverbhai [Zaverbhai Amaidas v. State of
Bombay, (1955) 1 SCR 799 : AIR 1954 SC 752
: 1954 Cri LJ 1822] up until Innoventive
Industries [Innoventive Industries Ltd. v. ICICI
Bank, (2018) 1 SCC 407 : (2018) 1 SCC (Civ)
356] indicates a thread of thought dwelling on
when, within the meaning of Article 254(1), a
law made by the legislature of a State can be
considered to be repugnant to a provision of a
law made by Parliament with respect to one of
the matters in the Concurrent List which
Parliament is competent to enact. The doctrine
of repugnancy under Article 254(1) operates
within the fold of the Concurrent List. Clause
(1) of Article 254 envisages that the law
enacted by Parliament will prevail and the law
made by the legislature of the State shall be
void "to the extent of repugnancy". Clause (1)
does not define what is meant by repugnancy.
The initial words of Clause (1) indicate that the
provision deals with a repugnancy between a
law enacted by the State Legislature with:
(i) a provision of a law made by Parliament
which it is competent to enact; or
(ii) to any provision of an existing law; and
(iii) with respect to one of the matters
enumerated in the Concurrent List.
132. The initial part of clause (1) alludes to a
law enacted by a State Legislature being
"repugnant" to a law enacted by Parliament or
to an existing law. The concluding part of
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clause (1) provides for a consequence,
namely, that the State law would be void "to
the extent of the repugnancy" and the
parliamentary enactment shall prevail. The
concept of repugnancy emerges from the
decisions of this Court which have elaborated
on the context of clause (1) of Article 254.
Clause (2) of Article 254 has also employed
the expression "repugnant" while providing
that a law enacted by the legislature of a State
which is repugnant to a law enacted by
Parliament or an existing law on a matter
within the Concurrent List shall, if it has
received the assent of the President, prevail in
the State. The decisions of this Court
essentially contemplate three types of
repugnancy:
132.1. The first envisages a situation of an
absolute or irreconcilable conflict or
inconsistency between a provision contained in
a State legislative enactment with a
parliamentary law with reference to a matter
in the Concurrent List. Such a conflict brings
both the statutes into a state of direct
collision. This may arise, for instance, where
the two statutes adopt norms or standards of
behaviour or provide consequences for breach
which stand opposed in direct and immediate
terms. The conflict arises because it is
impossible to comply with one of the two
statutes without disobeying the other.
132.2. The second situation involving a
conflict between State and Central legislations
may arise in a situation where Parliament has
evinced an intent to occupy the whole field.
The notion of occupying a field emerges when
a parliamentary legislation is so complete and
exhaustive as a Code as to preclude the
existence of any other legislation by the State.
The State law in this context has to give way
to a parliamentary enactment not because of
an actual conflict with the absolute terms of a
parliamentary law but because the nature of
the legislation enacted by Parliament is such
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as to constitute a complete and exhaustive
Code on the subject.
132.3. The third test of repugnancy is where
the law enacted by Parliament and by the
State Legislature regulate the same subject. In
such a case, the repugnancy does not arise
because of a conflict between the fields
covered by the two enactments but because
the subject which is sought to be covered by
the State legislation is identical to and
overlaps with the Central legislation on the
subject.
133. The distinction between the first test on
the one hand with the second and third tests
on the other lies in the fact that the first is
grounded in an irreconcilable conflict between
the provisions of the two statutes each of
which operates in the Concurrent List. The
conflict between the two statutes gives rise to
a repugnancy, the consequence of which is
that the State legislation will be void to the
extent of the repugnancy. The expression "to
the extent of the repugnancy" postulates that
those elements or portions of the State law
which run into conflict with the Central
legislation shall be excised on the ground that
they are void. The second and third tests, on
the other hand, are not grounded in a conflict
borne out of a comparative evaluation of the
text of the two provisions. Where a law
enacted by Parliament is an exhaustive code,
the second test may come into being. The
intent of Parliament in enacting an exhaustive
code on a subject in the Concurrent List may
well be to promote uniformity and
standardisation of its legislative scheme as a
matter of public interest. Parliament in a given
case may intend to secure the protection of
vital interests which require a uniformity of law
and a consistency of its application all over the
country. A uniform national legislation is
considered necessary by Parliament in many
cases to prevent vulnerabilities of a segment
of Society being exploited by an asymmetry of
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information and unequal power in a societal
context. The exhaustive nature of the
parliamentary code is then an indicator of the
exercise of the State's power to legislate being
repugnant on the same subject. The third test
of repugnancy may arise where both
Parliament and the State legislation cover the
same subject-matter. Allowing the exercise of
power over the same subject-matter would
trigger the application of the concept of
repugnancy. This may implicate the doctrine of
implied repeal in that the State legislation
cannot coexist with a legislation enacted by
Parliament. But even here if the legislation by
the State covers distinct subject-matters, no
repugnancy would exist. In deciding whether a
case of repugnancy arises on the application of
the second and third tests, both the text and
the context of the parliamentary legislation
have to be borne in mind. The nature of the
subject-matter which is legislated upon, the
purpose of the legislation, the rights which are
sought to be protected, the legislative history
and the nature and ambit of the statutory
provisions are among the factors that provide
guidance in the exercise of judicial review. The
text of the statute would indicate whether
Parliament contemplated the existence of
State legislation on the subject within the
ambit of the Concurrent List. Often times, a
legislative draftsperson may utilise either of
both of two legislative techniques. The
draftsperson may provide that the
parliamentary law shall have overriding force
and effect notwithstanding anything to the
contrary contained in any other law for the
time being in force. Such a provision is
indicative of a parliamentary intent to override
anything inconsistent or in conflict with its
provisions. The parliamentary legislation may
also stipulate that its provisions are in addition
to and not in derogation of other laws. Those
other laws may be specifically referred to by
name, in which event this is an indication that
the operation of those specifically named laws
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is not to be affected. Such a legislative device
is often adopted by Parliament by saving the
operation of other parliamentary legislation
which is specifically named. When such a
provision is utilised, it is an indicator of
Parliament intending to allow the specific
legislation which is enlisted or enumerated to
exist unaffected by a subsequent law.
Alternatively, Parliament may provide that its
legislation shall be in addition to and not in
derogation of other laws or of remedies,
without specifically elucidating specifically any
other legislation. In such cases where the
competent legislation has been enacted by the
same legislature, techniques such as a
harmonious construction can be resorted to in
order to ensure that the operation of both the
statutes can coexist. Where, however, the
competing statutes are not of the same
legislature, it then becomes necessary to apply
the concept of repugnancy, bearing in mind
the intent of Parliament. The primary effort in
the exercise of judicial review must be an
endeavour to harmonise. Repugnancy in other
words is not an option of first choice but
something which can be drawn where a clear
case based on the application of one of the
three tests arises for determination.
174. From our analysis of the provisions of the
RERA on the one hand and of WB-HIRA on the
other, two fundamental features emerge from
a comparison of the statutes. First, a
significant and even overwhelmingly large part
of WB-HIRA overlaps with the provisions of the
RERA. These provisions of the RERA have been
lifted bodily, word for word and enacted into
the State enactment. Second, in doing so, WB-
HIRA does not complement RERA by enacting
provisions which may be regarded as in
addition to or fortifying the rights, obligations
and remedies created by the Central
enactment. The subject of the provisions of the
State enactment is identical, the content is
identical. In essence and substance, WB-HIRA
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has enacted a parallel mechanism and parallel
regime as that which has been entailed under
RERA. The State Legislature has, in other
words, enacted legislation on the same
subject-matter as the Central enactment. Not
only is the subject-matter identical but in
addition, the statutory provisions of WB-HIRA
are on a majority of counts identical to those
of RERA. Both sets of statutes are referable to
the same entries in the Concurrent List --
Entries 6 and 7 of List III -- and the initial
effort of the State of West Bengal to sustain its
legislation as a law regulating "industry" within
the meaning of List II Entry 24 has been
expressly given up before this Court (as we
have explained, for valid reasons bearing on
the precedents of this Court).
175. In assessing whether this overlap
between the statutory provisions of WB-HIRA
and RERA makes the former repugnant to the
latter within the meaning of that expression in
clause (1) of Article 254, it becomes necessary
to apply the several tests which are a part of
our constitutional jurisprudence over the last
seven decades. Repugnancy can be looked at
from three distinct perspectives. The first is
where the provision of a State enactment is
directly in conflict with a law enacted by
Parliament, so that compliance with one is
impossible along with obedience to the other.
The second test of repugnancy is where
Parliament through the legislative provisions
contained in the statute has enacted an
exhaustive code. The second test of
repugnancy is based on an intent of Parliament
to occupy the whole field covered by the
subject of its legislation. In terms of the
second test of repugnancy, a State enactment
on the subject has to give way to the law
enacted by Parliament on the ground that the
regulation of the subject-matter by Parliament
is so complete as a code, so as to leave no
space for legislation by the State. The third
test of repugnancy postulates that the subject-
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matter of the legislation by the State is
identical to the legislation which has been
enacted by Parliament, whether prior or later
in point of time. Repugnancy in the
constitutional sense is implicated not because
there is a conflict between the provisions
enacted by the State Legislature with those of
the law enacted by Parliament but because
once Parliament has enacted a law, it is not
open to the State Legislature to legislate on
the same subject-matter and, as in this case,
by enacting provisions which are bodily lifted
from and verbatim the same as the statutory
provisions enacted by Parliament. The overlap
between the provisions of WB-HIRA and RERA
is so significant as to leave no manner of
doubt that the test of repugnancy based on an
identity of subject-matter is clearly
established. As the decision in Innoventive
Industries [Innoventive Industries Ltd. v. ICICI
Bank, (2018) 1 SCC 407 : (2018) 1 SCC (Civ)
356] emphasises, laws under this head are
repugnant even if the rule of conduct
prescribed by both the laws is identical. This
principle constitutes the foundation of the rule
of implied repeal. The present case is not one
where WB-HIRA deals not with matters which
form the subject-matter of the parliamentary
legislation but with other and distinct matters
of a cognate and allied nature. WB-HIRA, on
the contrary, purports to occupy the same
subject as that which has been provided in the
parliamentary legislation. The State law fits,
virtually on all fours, with the footprints of the
law enacted by Parliament. This is
constitutionally impermissible. What the
legislature of the State of West Bengal has
attempted to achieve is to set up its parallel
legislation involving a parallel regime.
176. But the submission which has been
articulately presented before the Court on
behalf of the State of West Bengal is that
Section 88 of the RERA itself allows for the
existence of State statutes by enacting
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Sections 88 and 89, which stipulate that its
provisions shall be in addition to and not in
derogation of the provisions of any other law
for time being in force and override only
inconsistent provisions. For the purpose of the
present discussion, we may accept the
hypothesis of the State of West Bengal that
the expression "any other law for the time
being in force" does not, in the context of
Section 88, imply the applicability of the
provision only to laws which had been enacted
before RERA. Conceivably, as the judgments of
this Court construing similar expressions
indicate, the trend has been to broadly
configure the meaning of the expression by
extending it to laws which were in existence
and those which may be enacted thereafter. In
other contexts, such an interpretation has not
been accepted but, for the purpose of the
discussion, we will proceed on the hypothesis
which has been put forth by the State of West
Bengal that "law for the time being in force"
within the meaning of Section 88 would also
include subsequent legislation. The submission
is that since Section 88 allows for the
existence of other laws by adopting the "in
addition to and not in derogation of" formula,
Parliament did not intend to exclude State
legislation even though it is identical to that
which has been enacted by Parliament. This
submission is also sought to be buttressed by
adverting to Section 92 of the RERA, under
which only the Maharashtra Act was repealed.
177. Now, in assessing the correctness of the
submission, it is necessary to construe Section
88 in its proper perspective. Unless this is
done, the Court would be doing violence to the
intent of Parliament and to the constitutional
principles which are embodied in Article 254.
Parliament envisaged in Section 88 of the
RERA that its provisions would be in addition
to and not in derogation of other laws for the
time being in force. True enough, this
provision is an indicator of the fact that
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Parliament has not intended to occupy the
whole field so as to preclude altogether the
exercise of legislative authority whether under
other Central or State enactments. For
instance, Section 71 of the RERA specifically
contemplates [in the proviso to sub-section
(1)] that a complaint in respect of matters
covered by Sections 12, 14, 18 and 19 is
pending in the adjudicating fora constituted by
the Consumer Protection Act, 1986. The
person who has moved the consumer forum
may withdraw the complaint and file an
application before the adjudicating officer
constituted under RERA. The effect of Section
88 is to ensure that remedies which are
available under consumer legislation, including
the Consumer Protection Act, 2019, are not
ousted as a consequence of the operation of
RERA. Of course, it is also material to note
that both sets of statutes, namely, the
Consumer Protection Act(s) and RERA, have
been enacted by Parliament and both sets of
statutes have to be, therefore, harmoniously
construed. Section 88 of the RERA does not
exclude recourse to other remedies created by
cognate legislation. Where the cognate
legislation has been enacted by a State
Legislature, Section 88 of the RERA is an
indicator that Parliament did not wish to oust
the legislative power of the State Legislature
to enact legislation on cognate or allied
subjects. In other words, spaces which are left
in RERA can be legislated upon by the State
Legislature by enacting a legislation, so long as
it is allied to, incidental or cognate to the
exercise of Parliament's legislative authority.
What the State Legislature in the present case
has done is not to enact cognate or allied
legislation but legislation which, insofar as the
statutory overlaps is concerned is identical to
and bodily lifted from the parliamentary law.
This plainly implicates the test of repugnancy
by setting up a parallel regime under the State
law. The State Legislature has encroached
upon the legislative authority of Parliament
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which has supremacy within the ambit of the
subjects falling within the Concurrent List of
the Seventh Schedule. The exercise conducted
by the State Legislature of doing so, is plainly
unconstitutional.
178. The statutory overlaps between WB-HIRA
and RERA cannot be overlooked, as noted
above. But quite apart from that, there is an
additional reason why the test of repugnancy
engrafted in clause (1) of Article 254 is
attracted. This is because several provisions of
the WB-HIRA are directly in conflict and
dissonance with RERA. Where a State
enactment in the Concurrent List has enacted
or made a statutory provision which is in
conflict with those which have been enacted by
Parliament, it may in a given case be possible
to excise the provision of the State statute so
as to bring it into conformity with the
parliamentary enactment. But the present
case, as we shall demonstrate, involves a
situation where valuable safeguards which are
introduced by Parliament in the public interest
and certain remedies which have been created
by Parliament are found to be absent in WB-
HIRA. This is indicated from the following
provisions:
178.1. Section 2(n) of the RERA contains a
statutory definition of the meaning of
"common areas". Parliament has defined the
expression to mean what is set out in sub-
clauses (1)(i) to (iii) which includes open
parking areas. The WB-HIRA contains a
definition of the expression "common areas" in
Section 2(m). While this definition is in pari
materia, WB-HIRA has enacted the definition
of the expression "car parking area" in Section
1 to mean such area as may be prescribed in
exercise of the rule-making power. The rules
framed by the State Government define the
expression to mean an area either enclosed or
uncovered or open excluding open car parking
areas reserved as common areas and to
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exclude all types of car parking areas
sanctioned by the competent authority.
178.2. Section 2(y) of the RERA defines the
expression "garage" so as not to include an
unenclosed or uncovered parking space such
as open parking area. On the other hand,
Section 2(x) of WB-HIRA defines the
expression "garage" to mean garage and
property space as sanctioned by the
competent authority.
178.3. Section 6 of the RERA provides for an
extension of a registration under Section 5 on
an application by the promoter due to force
majeure. The explanation exhaustively defines
force majeure to mean a case of war, flood,
drought, fire, cyclone, earthquake or any other
calamity caused by nature affecting the
development of the real estate project. The
provisions of Section 6 of the WB-HIRA, in
contrast, while defining force majeure also
incorporate "any other circumstances
prescribed", thereby giving a wider discretion
to the regulatory authority or the State to give
extensions of registration to real estate
projects in a manner which may prejudicially
affect the interest of home buyers.
178.4. Section 38(3) of the RERA empowers
the real estate regulatory authority in a
monopoly situation to make a suo motu
reference to the Competition Commission of
India. No such provision is made in the State
enactment. Hence, a valuable safeguard to
protect home buyers in RERA has been
omitted. Section 38(3) of the RERA is in the
following terms:
"38. (3) Where an issue is raised
relating to agreement, action,
omission, practice or procedure
that--
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(a) has an appreciable prevention,
restriction or distortion of
competition in connection with the
development of a real estate project;
or (b) has effect of market power or
monopoly situation being abused for
affecting interest of allottees
adversely,then the Authority, may
suo motu, make reference in respect
of such issue to the Competition
Commission of India."
178.5. Section 41 of the RERA is a pivotal
provision under which the Central Government
is to establish a Central Advisory Council. The
Minister of the Central Government dealing
with housing is to be the ex officio
Chairperson. The membership of the Central
Advisory Council is stipulated in Section 41(3).
Section 41 provides as follows:
41. Establishment of Central
Advisory Council.--(1) The Central
Government may, by notification,
establish with effect from such date
as it may specify in such notification,
a Council to be known as the Central
Advisory Council.
(2) The Minister to the Government
of India in charge of the Ministry of
the Central Government dealing with
Housing shall be the ex officio
Chairperson of the Central Advisory
Council.
(3) The Central Advisory Council
shall consist of representatives of the
Ministry of Finance, Ministry of
Industry and Commerce, Ministry of
Urban Development, Ministry of
Consumer Affairs, Ministry of
Corporate Affairs, Ministry of Law
and Justice, Niti Aayog, National
Housing Bank, Housing and Urban
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Development Corporation, five
representatives of State
Governments to be selected by
rotation, five representatives of the
Real Estate Regulatory Authorities to
be selected by rotation, and any
other Central Government
department as notified.
(4) The Central Advisory Council
shall also consist of not more than
ten members to represent the
interests of real estate industry,
consumers, real estate agents,
construction labourers, non-
governmental organisations and
academic and research bodies in the
real estate sector."
178.6. The functions of the Central Advisory
Council are provided in Section 42 of the
RERA, which reads as follows:
42. Functions of Central Advisory
Council.--(1) The functions of the
Central Advisory Council shall be to
advise and recommend the Central
Government--
(a) on all matters concerning the
implementation of this Act;
(b) on major questions of policy;
(c) towards protection of consumer
interest;
(d) to foster the growth and
development of the real estate
sector;
(e) on any other matter as may be
assigned to it by the Central
Government.
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(2) The Central Government may
specify the rules to give effect to the
recommendations of the Central
Advisory Council on matters as
provided under sub-section (1)."
178.6. The functions of the Central Advisory
Council are provided in Section 42 of the
RERA, which reads as follows:
42. Functions of Central Advisory
Council.--(1) The functions of the
Central Advisory Council shall be to
advise and recommend the Central
Government--
(a) on all matters concerning the
implementation of this Act;
(b) on major questions of policy;
(c) towards protection of consumer
interest;
(d) to foster the growth and
development of the real estate
sector;
(e) on any other matter as may be
assigned to it by the Central
Government.
(2) The Central Government may
specify the rules to give effect to the
recommendations of the Central
Advisory Council on matters as
provided under sub-section (1).
178.7.WB-HIRA, on the other hand, provides
for the Constitution of a State Advisory Council
under Section 41, which is in the following
terms:
41. Establishment of State
Advisory Council.--(1) The State
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Government may, by notification,
establish with effect from such date
as it may specify in such notification,
a Council to be known as the State
Advisory Council.
(2) The Minister to the Government
of the State of West Bengal in charge
of the Department dealing with
Housing shall be the ex officio
Chairperson of the State Advisory
Council.
(3) The State Advisory Council shall
consist of representatives of the
Finance Department, Department of
Industry, Commerce & Enterprises,
Department of Urban Development
and Municipal Affairs, Department of
Consumer Affairs, Law Department,
five representatives of the Real
Estate Regulatory Authorities to be
selected by rotations, and any other
State Government department as
notified.
(4) The State Advisory Council shall
also consist of not more than ten
members to represent the interests
of real estate industry, consumers,
real estate agents, construction
labourers, non-governmental
organisations and academic and
research bodies in the real estate
sector."
178.8. Section 42 of WB-HIRA, which defines
the functions of the State Advisory Council, is
as follows:
"42. Functions of the State Advisory
Council.--(1) The functions of the State Advisory
Council shall be to advise and recommend the
State Government--
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(a) on all matters concerning the implementation
of this Act;
(b) on major questions of policy;
(c) towards protection of consumer interest;
(d) to foster the growth and development of the
real estate sector;
(e) on any other matter as may be assigned to it
by the State Government.
(2) The State Government may specify the rules
to give effect to the recommendations of the
State Advisory Council on matters as provided
under sub-section (1).
The State Legislature while enacting WB-HIRA has
replaced the Central Advisory Council, which has a
major policy-making role, with the State Advisory
Council. Though the functions of the State
Advisory Council are similar, its power is to advise
and recommend to the State Government in
distinct in contrast to the functions of the Central
Advisory Council, which is to make policy
recommendations to the Central Government on
the subjects contemplated in clauses (a) to (e) of
Section 42. As a consequence, the advisory role of
the Central Government, based on the
recommendations of the Central Advisory Council,
has been completely eroded in the provisions of
WB-HIRA.
178.9. While Section 70 of the RERA contains a
provision for compounding of offences, but WB-
HIRA does not contain any such provision.
178.10. Section 71(1) of the RERA provides that
the regulatory authority shall appoint adjudicating
officers for the purpose of adjudging
compensation under Sections 12, 14, 18 and 19.
The adjudicating officer is required to be a person
who is or has been a District Judge. WB-HIRA
does not contain any provision for appointment of
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adjudicating officers for the purpose of adjudging
compensation. Under Section 40(3) of WB-HIRA,
this power is entrusted to the regulatory authority
and not to a judicial person or body. The fact that
an appeal against the orders of the regulatory
authority lie to the Appellate Tribunal and
thereafter to the High Court cannot gloss over the
fact that the valuable safeguard of appointing
judicial officers as adjudicating officers for
determining compensation under RERA has not
been enacted in WB-HIRA.
178.11. Section 80(2) of the RERA provides that
no court inferior to a Metropolitan Magistrate or
JMFC shall try an offence punishable under the Act.
No such provision is contained in WB-HIRA.
179. The above analysis indicates an additional
reason why there is a repugnancy between WB-
HIRA and RERA--the above provisions of the State
enactment are directly in conflict with the Central
enactment. Undoubtedly, as Article 254(1)
postulates, the legislation enacted by the State
Legislature is void "to the extent of the
repugnancy". But the above analysis clearly
demonstrates that in material respects, WB-HIRA
has failed to incorporate valuable institutional
safeguards and provisions intended to protect the
interest of home-buyers. The silence of the State
Legislature in critical areas, as noted above,
indicates that important safeguards which have
been enacted by Parliament in the public interest
have been omitted in the State enactment. There
is, in other words, not only a direct conflict of
certain provisions between RERA and WB-HIRA but
there is also a failure of the State Legislature to
incorporate statutory safeguards in WB-HIRA,
which have been introduced in RERA for protecting
the interest of the purchasers of real estate. In
failing to do so, the State Legislature has
transgressed the limitations on its power and has
enacted a law which is repugnant to parliamentary
legislation on the same subject-matter.
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11.16. He submits that the RERA 2016 being a central
legislation enacted under the concurrent list, it
shall prevail over any inconsistent provisions of
pre-existing state enactments like KOFA 1972
or KAOA 1972 by virtue of Article 254 (1) of the
Constitution of India. Hence, he submits that
the RERA 2016 has an overriding effect over
KOFA 1972 and/or KAOA 1972. Hence, all the
judgements which have been relied upon by the
petitioners, which did not consider the RERA
2016 and its applicability, would not enure to
the benefit of the petitioners.
11.17. Since the provision of RERA 2016 has been
invoked, there will be repugnancy with KOFA
1972 and KAOA 1972, which is required to be
considered by this court. The decision in
Shantharam Prabhu's case not having
considered the aspect of the statutory rights
under RERA 2016, would not be applicable.
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Section 31 of the RERA 2016 permits only a
voluntarily registered consumer association to
collectively represent the interest of the
allottees, which would not be required to come
within the purview of KAOA 1972 or KOFA
1972.
11.18. He refers to the decision of the Hon'ble Apex
Court in Hibiscus Condominium Vs.
Managing Director, M/S Sobha Developers
Ltd. & Anr.7, more particularly para nos. 9 and
10 thereof, which are reproduced hereunder for
easy reference:
9. On a conjoint reading of the various
relevant provisions of the 1972 Act and the
Bye-laws of the Condominium referred above,
we are of the view that the appellant-body has
come into existence as per the mandatory
provisions under the 1972 Act. It is clear from
the objects of the said Act, that it is an Act to
provide ownership of an individual apartment
in a building and to make such apartment
heritable and transferable property. In view of
the mandatory provisions of the 1972 Act the
appellant cannot be said to be a voluntary
registered association for the purpose of filing
a complaint before the competent authority
7
Civil Appeal No.1118/2016
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under the provisions of the Act. The
Explanation to Section 12 of the Act makes it
clear that, the recognised consumer
association as referred under Section
12(1)(b) of the Act means any voluntary
consumer association registered under
the Companies Act, 1956 or any other law for
the time being in force. By applying the said
Explanation, the appellant cannot be said to be
a voluntary consumer association so as to
maintain a petition. Further, it will not fall
within the definition of 'consumer' as defined
under Section 2(1)(d) of the Act. The term
'voluntary' has been defined in Black's Law
Dictionary IX Edn. as under :
"voluntary, (14c) 1. Done by design or
intention voluntary act. 2. Unconstrained by
interference; not impelled by outside influence
voluntary statement. 3. Without valuable
consideration or legal obligation; gratuitous
voluntary gift. 4.Having merely nominal
consideration voluntary deed. Voluntariness".
The term 'voluntary' as defined in Oxford
Dictionary reads as under :
"2. Of an action: performed or done of one's
own will, impulse, or choice; not constrained,
promoted, or suggested by another. Also more
widely, left to choice, not required or imposed,
optional. Of an oath, a confession, etc:
voluntarily made or given; not imposed or
prompted by a promise or threat. Of a
conveyance, a disposition etc.: made without
money or other consideration being given or
promised in return. Growing wild or naturally;
or spontaneous growth. Volunteer
3. .... ....
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4.a. Assumed or adopted by free choice; freely
chosen or undertaken; (of work) unpaid b.
Brought about by one's own choice or
deliberate action; self-inflicted, self-induced.
C. Of a Society, association, etc.: entered into
a free choice. Also consisting of volunteers.
5. Done by deliberate intent; designed,
intentional
6. Of the will: free, unforced, unconstrained.
7. Of a person: acting from personal choice or
impulse, willingly, or spontaneously, in a
specified capacity. Also, endowed with the
faculty of willing. B. Serving as a volunteer
soldier. Also, composed of such volunteers.
8. Freely or spontaneously bestowed or made;
contributed from personal choice or impulse or
from generous or charitable motives.
9. .... ....
10. Of an institution, organisation, etc.:
maintained or supported solely or largely by
voluntary contributions. Also more widely,
existing through voluntary support, not
established by statute; in the UK, (of a school)
built by a voluntary institution but maintained
by a local education authority. B. of, pertaining
to, or advocating voluntarism in respect of
Church, schools, etc."..
In essence, a voluntary consumer association
will be a body formed by a group of persons
coming together, of their own will and without
any pressure or influence from anyone and
without being mandated by any other
provisions of law. The appellant association
which consists of members of flat owners in a
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building, which has come into existence
pursuant to a declaration which is required to
be made compulsorily under the provisions of
1972 Act, cannot be said to be a voluntary
association to maintain a complaint under the
provisions of the Act.
10. The learned counsel appearing for the
respondents also relied on the very same
judgment in the case of Moulivakkam Trust
Heights Flats Affected Buyers Association etc.1
In the aforesaid decision, a Full Bench of the
National Commission has taken a view that
even a Residents' Welfare Association, if
registered under a statute will qualify as a
consumer association under the provisions
of Section 12 of the Act provided, it qualifies
as a voluntary association.
11.19. He submits that an Association which has come
into existence pursuant to a declaration which
is required to be made compulsorily under the
provisions of KAOA 1972 cannot be said to be a
voluntary association to maintain a complaint,
under the provisions of the Consumer
Protection Act, 1986. The Hon'ble Apex Court
has come to the conclusion that a Residents
Welfare Association, if registered under a
statute, will qualify as a Consumer Association
under the provisions of Section 12 of the
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Consumer Protection Act as a Voluntary
Association. Therefore, by juxtaposing Section
12 of the Consumer Protection Act with Section
31 of the RERA 2016, he submits that an
Association registered under KAOA 1972 not
being a voluntary registered association cannot
maintain a proceeding under RERA 2016 and it
is for that reason that the owners of the
apartments have voluntarily come together to
register an Association of Allottees which was
later on as per the directions of the RERA
registered as a Co-operative Society.
11.20. He relies upon a decision of the Hon'ble Apex
Court in Subbhechha Welfare Society Vs.
M/S Earth Infrastructure Pvt. Ltd.8, more
particularly para no. 7 thereof, which is
reproduced hereunder for easy reference:
7. To maintain a complaint under the
provisions of the Act complainant must be
either a 'consumer' within the meaning of
8
Civil Appeal No.9961-9962/2017
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Section 2(1)(d) of the Act or it must fit into
Section 12(1) of the Act. The word 'consumer'
is defined under Section 2(1)(d) of the Act
which reads as under : "2. Definitions.-(1) In
this Act, unless the context otherwise
requires,- .... .... .... .... (d) "consumer" means
any person who,- (i) buys any goods for a
consideration which has been paid or promised
or partly paid and partly promised, or under
any system of deferred payment and includes
any user of such goods other than the person
who buys such goods for consideration paid or
promised or partly paid or partly promised, or
under any system of deferred payment, when
such use is made with the approval of such
person, but does not include a person who
obtains such goods for resale or for any
commercial purpose; or (ii) hires or avails of
any services for a consideration which has
been paid or promised or partly paid and partly
promised, or under any system of deferred
payment and includes any beneficiary of such
services other than the person who hires or
avails of the services for consideration paid or
promised, or partly paid and partly promised,
or under any system of deferred payment,
when such services are availed of with the
approval of the first mentioned person but
does not include a person who avails of such
services for any commercial purpose;
Explanation,-For the purposes of this clause,
"commercial purpose" does not include use by
a person of goods bought and used by him and
services availed by him exclusively for the
purposes of earning his livelihood by means of
self employment;"
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11.21. By relying on Subbhechha Welfare Society's
case, he submits that if a recognised consumer
association is made to file multiple complaints
in respect of several consumers having a
similar cause of action, it would defeat the
purpose of registration of the Society, and as
such, a single complaint could be filed. Since
the members have a similar and or same cause
of action. The association under KAOA 1972
would not have locus under Section 31 of the
RERA 2016.
11.22. He relies upon the decision of the Hon'ble Apex
Court in GOPAL KRISHAN & ORS VS.
DAULAT RAM & ORS9, more particularly, para
13 thereof, which is reproduced hereunder for
ready reference:
13. The language of Section 63(c)of the Act
uses the word 'OR'. It states that each Will
shall be attested by two or more witnesses
who have seen the Testator sign or affix his
mark on the Will OR has seen some other
9
(2025) 1 SCR 93
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persons sign the Will in the presence and by
the direction of the Testator OR has received a
personal acknowledgment from the Testator of
his signature or mark etc. What flows
therefrom is that the witnesses who have
attested the Will ought to have seen the
Testator sign or attest his mark OR have seen
some other persons sign the Will in the
presence of and on the direction of the
Testator. The judgment relied on by the
10|SLP(C)NO.25645/2018 learned Single
Judge in the impugned judgment, i.e.,
Kanwaljit Kaur (supra) holds that the
deposition of the attesting witness in the said
case had not deposed in accordance with
Section 63(c) of the Act, where two persons
had undoubtedly attested the Will, but the
aspect of the 'direction of the testator' was
absent from such deposition. In the considered
view of this Court, the Learned Single Judge
fell in error in arriving at such a finding for the
words used in the Section, which already
stands extracted earlier, read -"or has seen
some other person sign the Will, in the
presence and by the direction of the testator,
or has received from the testator a...". That
being the case, there is no reason why the 'or'
employed therein, should be read as 'and'.
After all, it is well settled that one should not
read 'and' as 'or' or vice-versa unless one is
obliged to do so by discernible legislative
intent. Justice G.P Singh's treatise, 'Principles
of Statutory Interpretation' tells us that the
word "or" is normally disjunctive while the
word "and" is normally conjunctive. Further, it
is equally well settled as a proposition of law
that the ordinary, grammatical meaning
displayed by the words of the statute should
be given effect to unless the same leads to
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ambiguity, uncertainty or absurdity. None of
these requirements, to read a word is which is
normally disjunctive, as conjunctive herein,
are present.
11.23. By referring to Gopal Krishan's case, he
submits by applying the grammatical rule of
statutory interpretation, the usage of the word
'and' in KOFA would have to be read as 'or' or
vice-versa. Thus, whether the apartment
complex is used only for residential purposes or
for residential or commercial purposes, a Co-
operative Society could be registered as per
Section 10 of the KOFA 1972.
11.24. He submits that if the plain and ordinary
meaning is given to the KOFA, the absurdity
that it will only apply if a commercial unit is
part of the project can be eschewed, and on
that ground, he submits that the decision in
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VDB Celadon is not a correct proposition of
law.
11.25. He relies upon the decision of the Hon'ble Apex
Court in Newtech Promoters And
Developers Pvt. Ltd. Vs. State Of Uttar
Pradesh And Ors.10, , more particularly para
no. 85 thereof, which is reproduced hereunder
for easy reference:
85. The provisions of which a detailed
reference has been made, if we go with the
literal rule of interpretation that when the
words of the statute are clear, plain and
unambiguous, the Courts are bound to give
effect to that meaning regardless of its
consequence. It leaves no manner of doubt
and it is always advisable to interpret the
legislative wisdom in the literary sense as
being intended by the legislature and the
courts are not supposed to embark upon an 53
inquiry and find out a solution in substituting
the legislative wisdom which is always to be
avoided.
11.26. By relying on Newtech Promoters case, he
again submits that when the words of the
statute are clear, plain and unambiguous, the
10
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meaning which gives effect to the enactment
has to be given to those words by the courts
and as such, the Association of Allottees under
Rule 2(1)(b) of the RERA Rules cannot be an
Association of apartment owners under Section
3(d) of the KAOA 1972. Section 11(4)(e) of the
RERA 2016 requires the formation of an
Association or Society or Co-operative Society,
as the case may be, of allottees, hence, a Co-
operative Society registered under the KCSA
1959 is permissible.
11.27. An apartment owner under Section 3(b) of the
KAOA 1972 is defined as a person who owns
both an apartment and a share in the common
areas, which could only be considered post
completion of the project and conveyance of
title. If the project is not completed, nor is a
sale deed or conveyance executed, the allottee
cannot be an apartment owner under Section
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3(b) of KAOA 1972. Therefore, a mere allottee
who is not an owner cannot be a part of an
Association under KAOA 1972. The same being
practically impossible, the legal niceties sought
to be contended by the petitioner cannot be
considered.
11.28. He relies upon the decision of the Hon'ble Apex
Court in Dushyan Janbandhu Vs. M/S
Hyundai Autoever India Pvt. Ltd.11, more
particularly para nos. 16 and 17 thereof, which
are reproduced hereunder for easy reference:
16. Having considered the factual background
in which the Section 11(6) petition has been
filed, we are of the opinion that it is an abuse
of process. It was clearly intended to threaten
the appellant for having approached the
statutory authorities under the PW Act and the
ID Act. There is no basis for invoking clause 19
of the agreement and demanding
compensation of Rs. 14,02,822/- when that
fact situation did not arise.
17. The Section 11(6) petition has two facets.
The first relates to disputes that were anyway
pending before the statutory authorities, and
they related to non-payment of wages and
legality and propriety of termination which are
non-arbitrable. The second facet relates to the
11
(2025) 12 SCR 492
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alleged violation of clause 19 relating to non-
disclosure obligation, which was not raised in
the show cause notice, inquiry report,
chargesheet and termination order and as such
is non-existent.
11.29. By relying on Dushyant Janabandhu's case,
his submission is that, like an employer, a
builder, would impose unilateral contractual
conditions, and one such condition in the
present matter is as regards the registration of
an association of the KAOA, which registration
can only happen after the apartments are
conveyed in favour of the allottees. Thus, the
developer cannot restrict the allottees to form a
Co-operative Society before the conveyance to
agitate their rights under the RERA 2016. After
the completion of the project, insofar as the
maintenance is concerned, an Association could
be formed under KAOA, but during the
pendency of completion of the project, an
association under the KAOA 1972 cannot be
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formed or registered, that the only remedy
available to the allottees is the registration of
an Association of Allottees as a Co-operative
Society as directed by the RERA.
11.30. He refers to decision of the Hon'ble Apex Court
in Kerala State Electricity Board & Ors. V.
Thomas Joseph Alias Thomas M.J. & Ors.12.
more particularly para nos. 63, 64, 65, 78, 79,
80, which are reproduced hereunder for easy
reference:
63. Thus, reliance on Regulation 153(15) of
the Code 2014 framed under Section 50 of the
Act 2003 by the respondent (consumers) is
thoroughly misconceived, as the same does
not conform to the provisions of the Act 2003.
In any event, Regulation 153(15) travels much
beyond Section 126 and Section 51 50 resply
of the Act 2003. It is settled law that the
regulation making power cannot be used to
bring into existence substantive rights, which
are not contemplated under the Act 2003.
64. At this stage, it is apposite to state about
the rule making powers of a delegating
authority. If a rule goes beyond the rule
making power conferred by the statute, the
same has to be declared invalid. If a rule
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supplants any provision for which power has
not been conferred, it becomes invalid. The
basic test is to determine and consider the
source of power, which is relatable to the rule.
Similarly, a rule must be in accord with the
parent statute, as it cannot travel beyond it.
65. Delegated legislation has come to stay as
a necessary component of the modern
administrative process. Therefore, the question
today is not whether there ought to be
delegated legislation or not, but that it should
operate under proper controls so that it may
be ensured that the power given to the
Administration is exercised properly; the
benefits of the institution may be utilised, but
its disadvantages minimised. The doctrine of
ultra vires envisages that a rule making body
must function within the purview of the rule
making authority conferred on it by the parent
Act. As the body making rules or regulations
has no inherent power of its own to make
rules, but derives such power only from the
statute, it has to necessarily function within
the purview of the statute. Delegated
legislation should not travel beyond the
purview of the parent Act. If it does, it is ultra
vires and cannot be given any effect. Ultra
vires may arise in several ways; there may be
simple excess of power over what is conferred
by the parent Act; delegated legislation may
be inconsistent with the provisions of the
parent Act or statute law or the general law;
there may be noncompliance with the
procedural requirement as laid down in the
parent Act. It is the function of the courts to
keep all authorities within the confines of the
law by supplying the doctrine of ultra vires.
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78. A delegated power to legislate by making
rules or regulations 'for carrying out the
purpose of the Act', is a general delegation
without laying down any guidelines; it cannot
be exercised so as to bring into existence the
substantive rights or obligations or disabilities
not contemplated by the provisions of the Act
2003 itself. The Court, considering the validity
of a subordinate legislation, will have to
consider the nature, object and scheme of the
enabling Act, and also the area over which
power as has been delegated under the Act
and then decide whether the subordinate
legislation conforms to the parent statute.
79. It is important to keep in mind that where
a rule or regulation is directly inconsistent with
a mandatory provision of the statute, then, of
course, the task of the Court is simple and
easy. But where the contention is that the
inconsistency or non-conformity of the rule is
not with reference to any specific 57 provision
of the enabling Act, but with the object and
scheme of the parent Act, the Court should
proceed with caution before declaring the
same to be invalid.
80. Rules or regulation cannot be made to
supplant the provisions of the enabling Act but
to supplement it. What is permitted is the
delegation of ancillary or subordinating
legislative functions, or, what is fictionally
called, a power to fill up details.
11.31. By referring to Kerala State Electricity
Board's case, his submission is that if the Rule
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goes beyond the rule-making power conferred
by the statute, the same would have to be
declared invalid. If a Rule supplants any
provision for which power has not been
conferred, it becomes invalid and as such, Rule
9 of the KOFA Rules 1974 enables promoters/
developers to insert clauses in the agreement
of sale and sale deed requiring the apartment
purchaser to join association under the KAOA,
which would deprive the members of the
Association and of the Association the benefits
of RERA 2016 since what is required under
RERA 2016 is a voluntarily registered Consumer
Association. The aforesaid Rule 9, therefore,
enables developers to circumvent their
obligation and operate beyond the parent
statute and as such, Rule 9 is ultra vires and
legally unsustainable. Section 3(f) of KAOA
provides powers for the amendment of the
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definition of common areas and facilities, which
could be done at the unilateral discretion of the
developer. This power to amend under Section
3(f) of KAOA is contrary to the requirement of
RERA 2016 which makes it clear that whatever
has been promised by the developer would
have to be made available to the allottee and
the developer cannot unilaterally amend any of
those promises which would include the
promise in respect of common areas and
facilities.
11.32. Section 3(f) of KAOA 1972 conflicts with Section
2(n) of the RERA 2016, which provides an
exhaustive and non-modifiable statutory
definition of common areas. The validity of the
said provision has been upheld in the Forum
for People's Collective Efforts case supra.
The Hon'ble Apex Court at Para 178.1, having
clearly come to a conclusion that the definition
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of common areas is a binding statutory
definition, which cannot be overridden even by
the State Government through subordinate
legislation. When the State Government, by
exercising rulemaking power, cannot amend the
common areas, the question of a promoter
unilaterally amending the common areas in the
Deed of Declaration by exercising power under
Section 3(f) of the KAOA 1972 is not
permissible. On that basis also, he submits that
the requirement for registration of an
Association under KAOA 1972 would be
contrary to the mandate of RERA 2016.
11.33. As regards the allegations made against
respondents Nos . 7 to 15, he submits that all
those allegations are baseless. Respondent
No.7 being an Association, respondent No.8
being a Co-operative Society, respondent Nos .
9 to 15 being the office bearers of the Co-
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operative Society representing the allottees, all
of them are acting in the interest of the
allottees who have been deprived of an
apartment for nearly 11 years. The actions
taken by the Co-operative Society are in the
interest of the allottees who have paid monies
for their apartments, which have not been
completed. The petitioners claiming to be
apartment owners in whose favour deeds of
conveyance have been executed are not as
much affected as the allottees whose
apartments are yet to be constructed. He
therefore submits that the action taken by the
Registrar of Co-operative Societies in
registering the Co-operative Society, the action
taken by the Registrar of Societies for
cancellation of the registration of the
Petitioner's Society are proper and correct.
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11.34. At the present point of time, there being no
conveyance of the apartments in favour of the
allottees, they not being owners, an association
under the KAOA 1972 can neither be formed
nor registered. Such an Association, even if
registered, cannot maintain a proceeding under
RERA 2016. Therefore, none of the reliefs which
have been claimed for by the petitioners can be
granted. The Co-operative Society ought to be
permitted to continue with its endeavours in
getting the construction completed. The
decisions which have been relied upon by the
petitioners, all relating to aspects under KAOA
1972 and KOFA 1972 without reference to the
RERA 2016, would not be applicable, and it
would be for this court to consider all these
aspects and come to the rescue of the allottees
whose interest has been adversely affected by
the developer.
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12. Insofar as WP No.5479 of 2023 is concerned, he
submits that
12.1. The said Writ Petition has been filed by some of
the allottees seeking a direction to the
Respondent to register the Co-operative
Society, he submits that the said relief has
been rendered infructuous, on account of the
Co-operative Society having been registered.
12.2. He submits that now that the Co-operative
Society has been formed, there is a
requirement of a direction to be issued to the to
the Sub-Registrars to refrain from registering
sale deeds, for the Karnataka Real Estate
Regulatory Authority to take over the project,
for the developer and its Directors to deposit all
the amounts which have been collected, to
declare that the mortgage created by the
developer in favour of respondent No.12 is
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illegal and initiate under valuation proceedings
which are all consequential orders which are
required to be granted.
12.3. His submission is that the reliefs which have
been sought for in W.P.No.5479 of 2023 are
required to safeguard the interest of the
allottees.
13. Sri. Rishabha Raj, learned counsel for respondent No.12
in W.P.5479 of 2023, submits that insofar as
respondent No.12 is concerned, it is a lender who had
lent certain monies to the developer in terms whereof
certain apartments had been mortgaged. The amounts
being repaid by the developer, the respondent No. 12,
have released the mortgage rights and terminated the
secured interest. As of date, it is submitted that there is
no right of respondent No. 12 in respect of the project
or any of the apertments. All allegations against
respondent No.12 are denied. The actions taken by
respondent No.12 is as per the agreement between
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respondent No.12 and the developer, which cannot be
found fault with.
14. Sri. Yogesh D. Naik, learned Additional Government
Advocate for respondent Nos.5, 7, 8 & 13 in
W.P.No.27341 of 24, submits that:
14.1. Insofar as the prayers sought for against
Respondent No. 4 in W.P.No.27341 of 2024
with the withdrawal of Prayer Nos.1, 2 and 4
would also not be maintainable. He also
reiterates that prayer No.3 as regards quashing
the registration certificate of the Co-operative
Societies, the same being made in terms of the
order passed by RERA, the challenge to the said
order being withdrawn, prayer No.3 is not
sustainable and in this regard, he invokes the
doctrine of waiver on account of the voluntary
withdrawal of the challenge made to the
statutory orders.
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14.2. Insofar as the reliefs which have been sought
for in W.P.No.5479 of 2023, he submits that all
those reliefs are covered by the final order
passed in complaint No.CMP/210223/0007613
and CMP/221116/0010348, which reads as
under:
1. This Authority vide order dated
05.07.2022 in the complaint CMP No.
210223/0007613 directed the
complainants to register itself as a Co-
operative Society and to submit a
formal application under Sec.8 of the
RERA Act. The complainant has filed this
petition under sec 8 praying for grant of
various relies including takeover of the
project.
2. The complainant through a memo filed
before this Authority has brought to our
notice that the allottees have
approached the Registrar of co-
operative Society for registration of the
Association of the Allottees as a co-
operative Society and has filed their
proposal on 12.09.2022 before the
assistant registrar of co-operative
Society, zone 3 Bengaluru Urban
district. The complainant has brought to
the Authority's notice that the Assistant
Registrar of co-operative Society has
sought guidelines and clarifications from
the Additional Registrar (housing and
others) on the points below.
3. It is apparent that, as a result the
registration is withheld indefinitely
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awaiting the guidelines and clarifications
on the above points from the additional
registrar of co- operative societies.
4. The proposal is filed on 12.09.2022.
However, the process initiated till date
which is causing hindrance to the
complainant allottees. The allottees
approached this Authority for redressal
of their grievances when the promoter
failed to complete the project as per the
terms of agreement to sell.
5. From the materials placed on record, it
is apparent that the sale of apartment
units in the project commenced from
the year 2012 and is not completed till
date.
6. The complainant has brought to our
notice several violations made by the
promoters including creation of a
mortgage without consent of the
agreement holders. The complainant is
the association of the allottees who
have paid consideration under
agreement for sale towards purchase of
apartments units in the project. It is
also noted that the respondents are
violating the directions of this Authority.
7. This project is registered with RERA.
The Registration number is
PRM/KA/RERA/1251/308/PR/171015/00
0813.
8. The promoters of the project have
delayed the construction and completion
of the project for several years. The
allottees grievances are required to be
addressed as per the provisions of
RERA. The allottees to get their
grievance redressed have to form an
association. As per the Act the
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appropriate authority for formation of
association of allottees includes Co-
operative Society as per section 11(4)
(e) of RERA. The Act stipulates an
obligation on the promoter to enable
formation of association or co- operative
Society within a period of 3 months of
the majority of the allottees have
booked their apartments. The Hon'ble
High Court of Karnataka in Writ petition
No. 34660/2017 and its appeal WA
974/2019 has ruled that the association
formed and 5 registered under the
Karnataka Society registration act 1960
is not the appropriate association to be
formed to manage the affairs of the
apartment complexes. Formation of
association of allottees is an essential
requirement for all apartment projects
having 8 or more apartment units and
hence cannot insist to have minimum
numbers of 200 allottees to register the
allottees Society. In the projects which
are abandoned, stalled, and incomplete
or delayed, the allottees association are
required to approach this Authority to
get their grievances redressed. The
associations approaching this Authority
for takeover of the project are required
to be registered entity to avail the legal
rights and entitlements. The eligibility
criteria for an allottee e eligibility
criteria f is only an agreement for
purchase of a unit as per the Act. The
allottees under section 8 of RERA has
the right to seek take over for
completion of the projects, of which the
registration is revoked by this Authority.
Such take over can be done only by a
Society duly registered inter as
Cooperative Society. The takeover is
required when the project is abandoned,
stalled of inordinately delayed and none
of such project shall have occupancy
certificate. In view of the above and as
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per the act the registrar of co-operative
societies are required to register the
applicant allottees/owners co-operative
societies without insisting and
stipulating conditions such as occupancy
certificate, minimum members not
below 200, share capital of not less than
Rs. 4,00,000/ and allottees to be local
residents etc. These conditions are s.
4,00,000/- and a contrary to the
provisions of the Act. If the registration
is denied on the grounds contrary to the
Act, that shall jeopardise the rights of
the allottees. The administrative delays
shall further cripple the allottees from
achieving any remedies for their
grievances. CFICIAL C The concerned
authorities are mandated to assist in the
implementation of the RERA Act which is
a central enactment so as to ensure that
the legislative objectives are achieved.
9. It is mandate of the RERA Act, that all
the state instrumentalities shall function
in coordination to achieve the objectives
of the Act.
10. Section 32 empowers the Authority to
make such recommendation to facilitate
the growth and promotion of a healthy,
transparent, efficient and competitive
real estate sector for the protection of
interest of the allottees and others.
11. Hence, the following order is passed.
ORDER
In exercise of the powers conferred under
section 32 of the Real Estate (Regulation and
Development) Act, 2016, the complaint bearing
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No.CMP/210223/0007613 CMP/221116/0010348
is hereby allowed and recommends to the
Registrar of Co-operative Society and their
subordinate offices to take steps to register the
application of Commune 1 Owners Co-operative
Societies Act.
14.3. As regards the formation and incorporation of
the Cooperative Society, he submits that by
way of the 97th Amendment to the
Constitution, Article 19(1)(c) has been
introduced in the Constitution recognising the
right of citizens to form Associations or Unions,
including Co-operative Societies.
Correspondingly, Article 43B has been
introduced in the chapter relating to Directive
Principles of State Policy, which mandates that
the State shall endeavour to promote voluntary
formation, autonomous functioning, providing
democratic control and professional
management of Co-operative Societies. Thus,
the Co-operative Society having been formed
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by the Association of Allottees is an exercise of
the rights under Article 19(1)(c) as regards
which the State is to provide necessary facilities
in terms of Article 43B.
14.4. He also relies upon the Forum for People’s
Collective Efforts decision of the Hon’ble Apex
Court and submits that the RERA 2016 has an
overriding effect on all other enactments,
including KAOA 1972 and KOFA 1972. He
submits that there is a conflict between Section
3(m) of the KAOA 1972 and Section 2(n) of the
RERA 2016, which are reproduced hereunder
for easy reference:
3(m) “limited common areas and facilities”
means those common areas and facilities
designated in the Declaration as reserved for
use of certain apartment or apartments to the
exclusion of the other apartments;
2(n) “common areas” mean– (i) the entire
land for the real estate project or where the
project is developed in phases and registration
under this Act is sought for a phase, the entire
land for that phase; (ii) the stair cases, lifts,
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staircase and lift lobbies, fire escapes, and
common entrances and exits of buildings; (iii)
the common basements, terraces, parks, play
areas, open parking areas and common
storage spaces; (iv) the premises for the
lodging of persons employed for the
management of the property including
accommodation for watch and ward staffs or
for the lodging of community service
personnel; (v) installations of central services
such as electricity, gas, water and sanitation,
air-conditioning and incinerating, system for
water conservation and renewable energy; (vi)
the water tanks, sumps, motors, fans,
compressors, ducts and all apparatus
connected with installations for common use;
(vii) all community and commercial facilities as
provided in the real estate project; (viii) all
other portion of the project necessary or
convenient for its maintenance, safety, etc.,
and in common use;
14.5. By referring to Section 3(m) of KAOA 1972, he
submits that the concept of limited common
areas and facilities is recognised under the
KAOA 1972. However, under RERA 2016, there
is no such concept. All areas are common areas
and facilities which cannot be limited to any
particular person or group of persons. Thus, he
submits that as of today, RERA 2016 would be
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applicable till the completion of the project and
execution of a conveyance, thereafter it would
be KAOA 1972 which would be applicable for
the purpose of maintenance by the apartment
owners, there being no lis or dispute between
the apartment owners and the developer at
that point of time. As regards any dispute, as
aforesaid, the same cannot be agitated by an
Association formed under KAOA, but could be
agitated by a Co-operative Society registered
under the KCSA 1959.
14.6. He submitted that there is again a conflict
between Section 3(f) of KAOA 1972 and Section
2(n) of RERA 2016. Section 3(f) provides for
amendments to common areas, whereas
Section 2(n) does not provide for any such
amendment.
14.7. He relies on Sub-Section (2) of Section 4 of
RERA 2016 and submits that there is a
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mandate for the promoters to develop and
submit comprehensive documents with the
application for project registration including
sanction plan, proposed facilities, precise
location details, demarcation of project land
boundaries specification of the apartments,
Number, type, carpet area of the apartments,
number of garages, etc. Thus, a promoter is
required to disclose each and every detail of the
project at the time of submitting the application
for registration, and it is these details which are
disclosed which would be final and binding on
all concerned. No change could be made in
relation thereto subsequent to such
registration. For the purpose of such
registration, there would be no requirement of
execution of any deed of declaration under the
KAOA 1972 or otherwise. Once a project is
registered under RERA 2016, all the parties are
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governed by such registration, which includes
the details and specifications of the apartment.
These details and specifications not being
capable of being changed, he reiterates that
there is a conflict between the RERA 2016 in
terms of Section 2(n) and Section 3(f) and
3(m) of the KAOA 1972 and as such, KAOA
1972 cannot govern the relationship between
the promoter-developer on the one hand and
the allottees on the other.
14.8. He relies upon RERA Bill, 2013 and Clause
11(4)(c) thereof, which reads, “the promoter
shall take steps for the formation of an
Association or Societies or Co-operative
Societies, as the case may be, of the allottees,
or a federation of the same, under the laws
applicable”.
14.9. He submits that a select committee had been
formed to submit a report on the aforesaid Bill.
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The committee submitted a report on July 30,
2015, recommending certain modification to
Clause 11(4)(c) as under:
“Formation of Association of Societies or Co-
operative Societies may be left for the
allottees to decide, and the role of the
promoter should be limited to providing
enabling support”.
14.10. The Committee further recommended
establishing a time limit for Association
formation, noting that many local laws lack
such provisions. In that view of the matter,
when RERA 2016 was passed, the words “the
promoter shall take steps” were changed to
“the promoter shall enable”. Thus, leaving the
decision to the allottees and not imposing an
obligation on the promoter. However, it was
mandated that such an Association would be
required to be formed within three months after
the majority of the allottees have booked their
units in cases where local laws are silent.
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14.11. The requirement of formation of the Association
within three months of booking is different from
the requirement under the KAOA 1972 where it
is only the owners of the apartment who can
form an Association under the KAOA 1972 and
not persons who have booked the units. On
inquiry as to who is required to form the
Association within the said three months of the
majority of the allottees booking their units, he
submits that the allottees themselves may
come together to form such an
Association/Society.
14.12. He again reiterates that an Association under
KAOA 1972 can only be formed by the owners
after conveyance or by the developer along
with the developer being the owner of the land
or by the developer and the owner of the land
in the case of a joint development agreement.
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14.13. He supports the case of the Co-operative
Society by stating that it is the Karnataka Co-
operative Societies Act 1959, which is the only
applicable State law for forming an Association
of Allottees in RERA-registered projects; the
KSRA 1960, the KAOA 1972, or the KOFA 1972
provide for such registration of an Association.
He refers to Section 88 and 89 of the RERA
2016, which are reproduced hereunder for easy
reference:
88. Application of other laws not barred.–
The provisions of this Act shall be in addition
to, and not in derogation of, the provisions of
any other law for the time being in force.
89. Act to have overriding effect.–The
provisions of this Act shall have effect,
notwithstanding anything inconsistent
therewith contained in any other law for the
time being in force
14.14. By referring to the KSRA 1962, he submits that
the provision of RERA 2016 overrides the
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provisions of any other enactment in case of
inconsistency. Thus, he submits that there
being an inconsistency as regards the formation
of the Society under RERA 2016, which is
required to be so formed within three months
from the date on which the majority of the
units are booked, to that under the KAOA 1972
where only after conveyance, the owners can
form the Association, It is the RERA 2016 which
will prevail over KAOA 1972 and as such, the
apartment owners should be permitted to
register a Co-operative Society.
14.15. He also reiterates the submission of Sri.Pradeep
Kumar by submitting that an Association under
the KAOA 1972 does not meet the requirement
of a voluntary Consumer Association. By
referring to the decision in SOBHA HIBISCUS
CONDOMINIUM’s case, depriving such an
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Association from initiating proceedings under
Section 31 of the RERA 2016.
14.16. His submission is that the RERA 2016
recognizes a Co-operative Society in terms of
Section 2(zr) of RERA 2016, which is
reproduced hereunder for easy reference:
2(zr) Words and expressions used herein but
not defined in this Act and defined in any law
for the time being in force or in the municipal
laws or such other relevant laws of the
appropriate Government shall have the same
meanings respectively assigned to them in
those laws.
14.17. He juxtaposes the same to Section 2(c) of the
KCSA 1959 and submits that it is a Co-
operative Society under 2(c) of the KCSA 1959,
which is recognised under Section 2(zr) of
RERA 2016. He distinguishes the term allottees
from owners by representation by referring to
Section 2(d) of the RERA 2016, which reads as
under:
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2(d) “allottee” in relation to a real estate
project, means the person to whom a plot,
apartment or building, as the case may be,
has been allotted, sold (whether as freehold or
leasehold) or otherwise transferred by the
promoter, and includes the person who
subsequently acquires the said allotment
through sale, transfer or otherwise but does
not include a person to whom such plot,
apartment or building, as the case may be, is
given on rent;
14.18. By referring to Section 2(d) of RERA 2016, he
submits that allottees could be persons to
whom apartments have been allotted, which is
different from Section 3(b) of KAOA 1972,
which is reproduced hereunder:
3(b) “apartment owner” means the person or
persons owning an apartment and an
undivided interest in the common areas and
facilities in the percentage specified and
established in the Declaration;
14.19. Section 3(b) of KAOA 1972 requiring ownership,
Section 2(d) of RERA 2016 requiring allotment.
He also relies upon the decisions relied upon by
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Sri.Pradeep Kumar. In Forum for People’s
Collective Efforts case, Sobha Hibiscus case,
Subbhechha Welfare Society’s case. He
refers to one other judgment of the Division
Bench of this Court in RAMKY ONE NORTH
APARTMENT OWNERS COOPERATIVE
SOCIETY LTD. VS. MR.A.V.BHASKAR
REDDY13. Relying on Ramky One’s case, he
submits that this court has recognised a Co-
Operative Society that consists solely of
residential unit owners. On that ground, he
submits that writ petition W.P.No.27341 of
2024 is required to be dismissed. W.P.No.5479
of 2023 has been rendered infructuous in view
of the final order of the RERA and as such,
W.P.No.5479 of 2023 is also required to be
dismissed.
13
CCC.NO.260/2025 DD 15.04.2025
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15. Sri.Venkatesh R.Bhagat, learned counsel who appears
for the developer in both the matters, would submit
that
15.1. The developer has no objection to allowing
W.P.No.27341 of 2024. The developer has
always been ready and willing to register the
Association under KAOA 1972. He submitted
that the draft of the Deed of Declaration (DOD)
had been kept ready. During the pendency of
the above matter in pursuance of the interim
orders passed by this court, it is only the
petitioners who had approached the developer
for registration of the DOD. The respondents
Nos. 8 to 15 have not and have clearly
indicated that they do not wish to form an
Association under KAOA 1972.
15.2. Insofar as the completion of the building etc.
and the other allegations made against the
developer, he submitted that the developer has
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always been ready and willing to complete the
project. However, it is on account of the dispute
between the petitioner, Society and the
respondent, Co-operative Society, that the
matter could not be taken forward. The final
order passed by the RERA is also proposed to
be challenged by the developer, and as such,
he submits that the developer will abide by any
orders passed by this court.
16. In W.P.No.27341 of 2024, heard Sri. Rajshekhar S.
learned counsel for the petitioners, Sri. Yogesh D. Naik,
learned Additional Government Advocate for respondent
Nos. 1 to 3 and 5, Sri. Pradeep Kumar P.K., learned
counsel for respondent Nos.7 to 15, Sri. Venkesh R.
Bhagat for respondent No.6.
17. In W.P.No.5479 of 2023, heard Shri Pradeep Kumar
P.K. for the petitioners, learned Additional Government
Advocate for respondent Nos.1 to 5, 7 and 8 and 13,
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Sri. Gautam Ullal, learned counsel for respondent No.6,
Sri. Venkatesh R. Bhagat, learned counsel for
respondent Nos.9 to 11 and Sri. Rishabha Raj, learned
counsel for respondent No.12.
18. Perused papers in both matters.
19. The points that would arise for the consideration of this
Court are:
1. Whether an Association of Allottees
contemplated under the RERA 2016 would
include an Association formed under KAOA
1972 or would the Association of Allottees be
different from an Association under KAOA
1972?
2. Whether an Association under KAOA 1972 can
be formed by allottees before conveyance in
their favour by the developer?
3. Whether there is any conflict between KAOA
1972 and KOFA 1972 on the one hand and RERA
2016 on the other? If so, which enactment
would prevail?
4. Whether an Association under KAOA 1972 can
initiate proceedings under the RERA 2016,
more so, in relation to Section 31 of the RERA
2016?
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5. Whether prayer No.3 in W.P.No.27341 of 2024
would be maintainable after the deletion of
prayer (i) and (ii) in the said petition?
6. Whether the Registrar of Societies could initiate
proceedings against the petitioner No.59-
Society for cancellation of such registration,
and or issue a direction to the said Society not
to carry on maintenance of common areas and
common amenities?
7. Whether a direction could be issued by this
court directing the developer and all the
apartment owners and agreement holders to
form an Association under KAOA 1972?
8. Whether the writ petition in W.P.No.5479 of
2023 is rendered infructuous on account of the
final order passed by the RERA?
9. What order?
20. I answer the above points as under:
21. Answer to Point No. 1: Whether an Association of
Allottees contemplated under the RERA 2016
would include an Association formed under KAOA
1972 or would the Association of Allottees be
different from an Association under KAOA 1972?
And
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Answer to Point No.2: Whether an Association
under KAOA 1972 can be formed by allottees
before conveyance in their favour by the
developer?
21.1. Both the above points being related to each
other are taken up for consideration together.
21.2. The crux of the matter in the present petition
is, who is to represent the interest of allottees,
in whose favour no sale deed has been
executed, that is to say, the allottees being
those in whose favour an allotment letter or an
agreement of sale has been executed, there
being no sale deed which has been executed.
21.3. The issue involved in the present matter is one
which will normally be faced when a real estate
project is implemented in phases, with the
initial phases being completed early, and in
such cases, as regards the completed
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apartments, the developer was to execute
registered sale deeds. Insofar as the buildings
which are to be constructed subsequently, in
subsequent phases, there being a time lag
between the initial phases and subsequent
phases, there could be a situation where due to
substantial time lag, the interest of the persons
in whose favour sale deeds have been executed
and the interest of persons in whose favour
only allotment letters or agreements for sale
have been executed would clash and there
would be a requirement to balance the interests
of all.
21.4. In the present case, as could be seen, there are
five towers which are required to be
constructed from Towers A to E. It is contended
by the petitioners that Towers B, C and D have
been constructed. Towers A and D are yet to be
constructed. It is further contended that during
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the pendency of the above petition, Tower E
has also been completed, and it is only Tower A
which remains to be constructed. The
petitioners are residents of Tower B, C and D
who contend that their respective apartments
have been constructed, sale deeds have been
executed and registered in their favour, they
have no substantial grievance against the
developer, and what they want is proper
maintenance of the apartments and common
areas sold to them.
21.5. The contention of the respondent Nos.7 to 15 is
that they have purchased apartments in Tower
A and E, as also in Tower B, C and D. The
entire project is not complete in all respects
and it is for that reason that they had
approached the RERA with a complaint against
the developer.
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21.6. The RERA being of the opinion that an
association registered under the KSRA 1960 is
not one which could be said to be an
Association of Allottees in terms of RERA 2016
directed them to register a Co-operative
Society under the KSCA 1959. The Registrar of
Co-operative Society not having registered the
same, a positive direction came to be issued in
pursuance of which the Co-operative Society
had been registered, as such, the Co-operative
Society has taken up the claims and complaints
against the Developer.
21.7. It is in this background that the following
entities emerged as players in this, for lack of a
better word, ‘drama’, the first being the
developer, second being a Society formed by
the purchasers of the apartments in whose
favour sale deeds have been executed, viz., the
petitioners, third being an Association of the
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Allottees whose apartments have not been
completed, who also registered under the KSRA
1960, fourth the Co-operative Society which
had been formed as per the directions of the
RERA and fifth, the RERA itself.
21.8. The Association of Allottees has not been
defined. However, Subsection (3) of Section 19
makes a reference to the Association of
Allottees. An allottee has been defined under
clause (d) of Section 2 of the RERA 2016, which
reads as under:
2(d) “allottee” in relation to a real estate
project, means the person to whom a plot,
apartment or building, as the case may be,
has been allotted, sold (whether as freehold or
leasehold) or otherwise transferred by the
promoter, and includes the person who
subsequently acquires the said allotment
through sale, transfer or otherwise but does
not include a person to whom such plot,
apartment or building, as the case may be, is
given on rent;
21.9. A perusal of the above provision would indicate
that an allottee in relation to a real estate
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project would mean a person to whom a plot,
apartment or building, as the case may be, has
been allotted, sold, (whether as freehold or
leasehold or otherwise transferred by the
promoter) including a person who subsequently
acquires the said allotment. Thus, in a sense, an
Association of Allottees would be an Association
of such persons who are Allottees, Allottee
having been defined under Clause (d) of
Section 2 above.
21.10. Section 19 deals with the rights and duties of
allottees which is reproduced hereunder for
easy reference:
19. Rights and duties of allottees.–
(1) The allottee shall be entitled to obtain the
information relating to sanctioned plans, layout
plans along with the specifications, approved by the
competent authority and such other information as
provided in this Act or the rules and regulations
made thereunder or the agreement for sale signed
with the promoter.
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(2) The allottee shall be entitled to know stage-wise
time schedule of completion of the project, including
the provisions for water, sanitation, electricity and
other amenities and services as agreed to between
the promoter and the allottee in accordance with the
terms and conditions of the agreement for sale.
(3) The allottee shall be entitled to claim the
possession of apartment, plot or building, as the
case may be, and the association of allottees shall
be entitled to claim the possession of the common
areas, as per the declaration given by the promoter
under sub-clause (C) of clause (l) of sub-section (2)
of section 4.
(4) The allottee shall be entitled to claim the refund
of amount paid along with interest at such rate as
may be prescribed and compensation in the manner
as provided under this Act, from the promoter, if the
promoter fails to comply or is unable to give
possession of the apartment, plot or building, as the
case may be, in accordance with the terms of
agreement for sale or due to discontinuance of his
business as a developer on account of suspension or
revocation of his registration under the provisions of
this Act or the rules or regulations made thereunder.
(5) The allottee shall be entitled to have the
necessary documents and plans, including that of
common areas, after handing over the physical
possession of the apartment or plot or building as
the case may be, by the promoter.
(6) Every allottee, who has entered into an
agreement for sale to take an apartment, plot or
building as the case may be, under section 13, shall
be responsible to make necessary payments in the
manner and within the time as specified in the said
agreement for sale and shall pay at the proper time
and place, the share of the registration charges,
municipal taxes, water and electricity charges,
maintenance charges, ground rent, and other
charges, if any.
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(7) The allottee shall be liable to pay interest, at
such rate as may be prescribed, for any delay in
payment towards any amount or charges to be paid
under sub-section (6).
(8) The obligations of the allottee under sub-section
(6) and the liability towards interest under sub-
section (7) may be reduced when mutually agreed
to between the promoter and such allottee.
(9) Every allottee of the apartment, plot or
building as the case may be, shall participate
towards the formation of an association or
Society or Cooperative Society of the allottees,
or a federation of the same.
(10) Every allottee shall take physical possession of
the apartment, plot or building as the case may be,
within a period of two months of the occupancy
certificate issued for the said apartment, plot or
building, as the case may be.
(11) Every allottee shall participate towards
registration of the conveyance deed of the
apartment, plot or building, as the case may be, as
provided under sub-section (1) of section 17 of this
Act.
21.11. A perusal of the above provision would indicate
that an Allottee would be entitled to obtain the
information relating to the project, know the
stage-wise time schedule of completion, and
claim possession of the apartment, plot or
building, with the Association of Allottees being
entitled to claim possession of the common
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areas. The manner and methodology of
formation of the Association of Allotees is as
contained under clause (e) of Sub-section (4) of
Section 11 of the RERA 2016, which is
reproduced hereunder for easy reference:
11 (4) The promoter shall–
(a)xxxx
(b)xxxx
(c)xxxx
(d)xxxx
(e) enable the formation of an association or
Society or co-operative Society, as the case may
be, of the allottees, or a federation of the same,
under the laws applicable:
Provided that in the absence of local laws, the
association of allottees, by whatever name called,
shall be formed within a period of three months of
the majority of allottees having booked their plot
or apartment or building, as the case may be, in
the project;
21.12. In terms whereof, the obligation is on the
promoter to enable the formation of an
‘Association’ or ‘Society’ or ‘Co-operative
Society’, as the case may be of the Allottees or
a Federation of the same under the laws
applicable and unless the local laws otherwise
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prescribe, such Associations shall be formed
within a period of three months of the majority
of the allottees having booked their plot or
apartment or building, as the case may be.
21.13. Thus, even clause (e) of Sub-section (4) of
Section 11 does not specify the nature of the
Association, but only indicates that the
promoter shall enable the formation of an
Association, Society or Co-operative Society. It
is this which has caused the confusion
inasmuch as an Association could be one under
KAOA 1972, a Society could be one under KSRA
1960, and a Co-operative Society could be one
under KSCA 1959. It is in that background that
the petitioners contend that an Association
under KAOA 1972 is required to be formed to
handle the maintenance of the building and not
a Co-operative Society under KSCA 1959.
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21.14. Respondent Nos. 7 to 15 contending that there
is not only maintenance of a building which is
being considered and acted upon, but also the
claim against the developer for not complying
with its obligation, which has been taken up.
The submission in this regard is that an
Association under KAOA 1972 can only be
formed by the owners of the respective
apartments after the registration of all the
apartments is complete, the project not being
complete, registration of the apartments not
being complete, no Association under KAOA
1972 can be formed. It is this factual
background which has given rise to a legal
conundrum which is required to be interpreted
by this court.
21.15. If it is to be held that an Association could be a
Society under the KSRA 1960, the Division
Bench of this court in VDB CALEDON’S case
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and DS MAX’S case has categorically come to a
conclusion that a Society registered under the
KSRA 1960 cannot have as one of its objectives
maintenance of an apartment complex and the
Division Bench of this court having come to a
conclusion in the above matters that it is only
an Association under the KAOA 1972 which can
maintain an apartment complex. A Society
registered under the KSCA 1959 is mentioned
in the KOFA 1972. However, this court, in
STARNEST APARTMENT OWNERS CO-
OPERATIVE SOCIETY LTD, has come to a
conclusion that a Co-operative Society can only
be formed if in the building there are both
residential and commercial properties i.e., if
there are no commercial properties in the said
building, a Co-operative Society cannot be
formed for the purpose of maintenance of the
building.
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21.16. The decisions in VDB CALEDON, DS MAX,
STARNEST APARTMENT OWNERS CO-
OPERATIVE SOCIETY LTD and
SHANTHARAM PRABHU case were all
rendered in a situation where the RERA 2016
was not made applicable, and what was under
consideration in all three matters is as to who
can maintain an apartment complex in the
absence of RERA 2016 being applicable.
21.17. As indicated in the proviso to clause (e) of Sub-
section (4) of Section 11, in the absence of
local laws, the Association of Allottees by
whatever name called, shall be formed within a
period of three months of the majority of
Allottees having booked their plots or
apartments or building, as the case may be and
towards this end, the promoter is required to
enable such formation of Association of
Allottees. The requirement being to form the
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Association of Allottees within three months of
the majority of the Allottees having booked
their plot, apartment or building would
categorically take away an Association under
KAOA 1972 since such Association under KAOA
1972 cannot be formed without a deed of
declaration by all the owners of the property,
the ownership arising only after registration of
a sale deed in their favour.
21.18. Section 5 of the KAOA 1972 is reproduced
hereunder for easy reference:
5. Ownership of apartments.-
(1) Each apartment owner shall be entitled to
the exclusive ownership and possession of his
apartment.
(2) Each apartment owner shall execute a
Declaration that he submits his apartment to
the provisions of this Act and a Deed of
Apartment in relation to his apartment in the
manner prescribed for the purpose.
21.19. A reading of Sub-Section (2) of Section 5 would
indicate that each apartment owner shall
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execute a declaration that he submits his
apartment to the provisions of the Act and
Deed of the Apartment in relation to his
apartment in the manner as prescribed for such
purposes.
21.20. The Association of Apartment Owners is defined
under Clause (d) of Section (3) of KAOA 1972
as under:
(d) “association of apartment owners” means
all of the apartment owners acting as a group in
accordance with the bye-laws and Declaration.
21.21. A perusal of the above would indicate that such
association would mean all the apartment
owners acting as a group in accordance with
the bye-laws and declaration. Thus, as
indicated supra, an Apartment Owner would
have to execute a declaration, such ownership
would be determined only on the basis of a
registered sale deed in favour of such person
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and the Association would be of Apartment
owners, thereby clearly indicating that an
Allottee would not be a owner and therefore,
could not subject his apartment to a declaration
and thereby not form an Association.
21.22. In view of the above, on account of the
decisions of the Division Bench of this court, a
Society cannot maintain an apartment, and an
Association of Owners cannot be formed under
the KAOA 1972, unless there are registered
sale deeds in favour of the owners, a Co-
operative Society cannot be registered under
KOFA 1972 without there being a commercial
unit in the building.
21.23. This brings us back to the question as to what
is the composition and or nature of the
Association of Allottees as contained under
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clause (e) of sub-Section (4) of Section 11 of
the RERA 2016.
21.24. Again, as indicated supra, in all the decisions of
the Hon’ble Division Bench of this court, when
the issue as regards maintenance of the
apartment complex was considered, they were
considered without reference to RERA 2016.
21.25. I have also while considering this issue in
Shantaram Prabhu’s case supra, dealt with
the applicability of KOFA 1972 and KAOA 1972,
however, while doing so I have clearly stated
therein that RERA 2016 has not been
considered and this would have to be
considered at an appropriate time in an
appropriate matter and manner, which has
arisen in the present case.
21.26. In the present matter, the applicability of RERA
2016 is required to be considered since it is the
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Association of Allotees who are required to
approach the RERA for necessary orders and it
is the Association of Allottees who can lay claim
to common areas and amenities with the
Allottees being able to lay claim only as regards
the apartment, flat or building allotted to the
said Allottee in personam. The functioning of
the Association of Allottees is not inasmuch as
maintenance of the building, but is more as
regard to the claim made by the Allottees
through their Association against the
promoter/developer as regards any
discrepancies and or deficiencies in
implementation of the project. Thus, the
decision in STARNEST APARTMENT OWNERS
CO-OPERATIVE SOCIETY LTD, which was
dealing with maintenance and held that unless
a commercial unit was present in the building, a
Co-operative Society cannot be registered
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under KOFA 1972 would not be applicable to a
project, which is being implemented in different
phases where the Association of Allottees
intends to take up their grievance against the
promoter/developer. Hence, by logic of
elimination and deduction, the Association of
Allottees, which intends to take up their
grievance against the promoter, would not be
covered by the above decision. It is clear that
the Association of Allottees under clause (e) of
sub-Section (4) of Section 11 would not include
an Association formed under KAOA 1972, would
not be a Society under the KSRA 1960, but can
however be a Co-operative Society formed of
the owners of the Allottees who are yet to
acquire ownership in order to agitate their claim
against the promoter/ developer.
21.27. Hence, I answer point No.1 by holding that
the Association of Allottees contemplated
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under RERA 2016 would not include an
Association formed under KAOA 1972 or a
Society under KSRA 1960.
21.28. I answer point No.2 by holding that the
Association of Allottees contemplated
under KAOA 1972 cannot be formed by
Allottees before conveyance in their favour
by the developer, no declaration being
capable of being submitted by them.
22. Answer to point No.3: Whether there is any
conflict between KAOA 1972 and KOFA 1972 on
the one hand and RERA 2016 on the other? If so,
which enactment would prevail?
22.1. Though several submissions have been made
by all the counsels in this regard and there are
several decisions which have been cited in this
regard, all the decisions which have been cited
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are ones either relating to KAOA 1972, KOFA
1972 and the interplay between them. None of
those decisions deals with all four enactments,
i.e., KAOA 1972, KOFA 1972 and RERA 2016,
as well as the interplay between them.
22.2. As indicated supra, in SHANTARAM
PRABHU’S case, this court had also observed
that the aspect of RERA 2016 was not
considered therein, since the project in question
was not a project subject to RERA 2016, since
the same had been implemented prior to RERA
2016 coming into force. Insofar as projects
which have been implemented prior to RERA
2016 coming into force and or project as
regards which, RERA 2016 is not applicable,
then in such a situation, in so far as
maintenance is concerned, it’s KAOA 1972
which would be applicable and insofar as
dispute between the allottee and the developer
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is concerned, it is KOFA 1972 which is
applicable.
22.3. With the promulgation of RERA 2016, once a
project is made subject to RERA 2016, it is the
rights and obligations under RERA 2016 which
would prevail and which would be applicable to
the Allottee, Association of Allottees, Owner of
the apartment, as well as the
promoter/developer.
22.4. Again, as indicated supra, KAOA 1972 would
only be applicable as regards maintenance of
the apartment complex with the owners
subjecting their respective apartments and their
common interest by way of a declaration, viz.,
the deed of declaration, by executing the said
deed of declaration and the forms in support
thereof, which would be registered with the
Registrar of Assurances.
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22.5. The said deed of declaration also contains the
manner and methodology of establishing an
Association of Owners and the bye-laws
applicable thereto. Thus, looked at from any
angle, an Association under KAOA 1972 can
only be formed by the Owners of the
apartments and not by the allottees.
22.6. KOFA 1972 has been dealt with in detail in
SHANTARAM PRABHU’s case, and the
conflict, if any, between KAOA 1972 and KOFA
1972 has been considered therein. It has been
categorically held that until the completion of
the building, the KOFA 1972 would be
applicable. After the completion of the building
and execution of sale deeds, insofar as
maintenance is concerned, the KAOA 1972
would be applicable.
22.7. With the entry of RERA 2016, RERA 2016
addresses the inter se rights, duties, liabilities,
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etc., between an Allottee-owner and the
promoter/developer. RERA 2016 would, in most
cases, be applicable until the project’s
completion, and for a few matters, even after
the project’s completion.
22.8. RERA 2016 deals with the relationship and inter
se disputes as aforesaid, which was earlier
dealt with to a limited extent by KOFA 1972. In
my considered opinion, RERA 2016 would
prevail over KOFA 1972, regarding any project
that has been subjected to RERA 2016, more so
since RERA contains non-obstante provisions,
indicating that it prevails over any other law.
22.9. As regards KAOA 1972 and RERA 2016, KAOA
1972 can only come into being if all the owners
subject their apartments and common areas to
a deed of declaration in accordance with KAOA
1972.
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22.10. Insofar as the construction phase is concerned,
until the completion of the construction, KAOA
1972 would have no role to play, and as such,
it is RERA 2016, which would address all those
issues.
22.11. Hence, I answer point No.3 by holding that
there is no conflict between KAOA 1972
and RERA 2016, inasmuch as RERA 2016 is
applicable pre-ownership, KAOA 1972 is
applicable post-ownership. Insofar as
KOFA and RERA 2016 are concerned, there
is a conflict. However, RERA 2016 would
override KOFA 1972, and it is the rights
and remedies which are provided under
RERA 2016 which would override those
under KOFA 1972.
22.12. On the completion of the building, RERA
2016 being applicable in respect of certain
of the aspects, KAOA 1972 being related to
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maintenance, RERA 2016 also providing
warranty as regards the construction
which has been done, there could be some
overlap between RERA 2016 and KAOA
1972, but however, at that stage, it could
be the Association under KAOA 1972 which
could agitate its rights under RERA 2016,
Since an Association under KAOA in 1972
can, as held by the division bench of this
court in VDB CALEDON and DS MAX’S case,
be the competent Association to handle all
aspects relating to the maintenance of the
building.
23. Answer to Point No.4: Whether an Association
under KAOA 1972 can initiate proceedings under
the RERA 2016, more so, in relation to Section 31
of the RERA 2016?
23.1. Some of the aspects touching upon this point
have been dealt with in point Nos . 1 to 3. I
have clearly and categorically come to the
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conclusion that no Association can be formed
under KAOA in 1972 unless ownership is
transferred to the Apartment Owners.
Proceedings under RERA 2016 are normally
initiated with regard to any defaults on the part
of the promoter/developer.
23.2. Section 31 of the RERA 2016 reads as under:
31. Filing of complaints with the Authority
or the adjudicating officer.–
(1) Any aggrieved person may file a complaint
with the Authority or the adjudicating officer,
as the case may be, for any violation or
contravention of the provisions of this Act or
the rules and regulations made thereunder,
against any promoter, allottee or real estate
agent, as the case may be.
Explanation.–For the purpose of this sub-
section “person” shall include the association
of allottees or any voluntary consumer
association registered under any law for the
time being in force.
(2) The form, manner and fees for filing
complaint under sub-section (1) shall be such
as may be [prescribed].
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23.3. Reading of Sub-section (1) of Section 31 would
indicate that any aggrieved person may file a
complaint with the Authority or the Adjudicating
Officer and as per the explanation to Sub-
section (1) of Section 31, the person shall
include the Association of Allottees or any
voluntary Consumer Association registered
under any law for the time being in force.
23.4. The contraventions of the RERA 2016, Rules
and regulations are more often than not
relating to the construction, implementation
and completion of the project and are filed
against the Promoter/Developer.
23.5. The Hon’ble Apex Court in Hibiscus
Condominium’s case has held that an
Association under KAOA 1972 is not a voluntary
Association but is an Association which has
come into being on account of the compulsory
requirement or mandate thereof under the
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KAOA 1972 and rejected a claim made by such
an Association under KAOA 1972 against the
Developer.
23.6. As per the explanation to Sub-section (1) of
Section 31, a person would include an
Association of Allottees or any voluntary
consumer Association. As held in Hibiscus
Condominium’s case, an Association under
KAOA 1972 would not be a voluntary consumer
Association and as held supra, an Association
under KAOA 1972 cannot be formed without
ownership being transferred, i.e., without the
project being completed and as such, an
Association of Allottees would be an Association
of persons who are Allottees of the apartments
where registration of sale deed has not
occurred.
23.7. Thus, I answer point No.4 by holding that
firstly, an Association under KAOA 1972
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cannot be formed without the ownership
being transferred, which more often than
not is done only after the project is
complete.
23.8. An Association under KAOA 1972 being
formed out of a compulsory mandate
under KAOA 1972 such an Association is
not a voluntary Consumer Association as
held by the Hon’ble Apex Court in the
HIBISCUS CONDOMINIUM’S case and as
such, an Association under KAOA 1972
even if formed by the owners, (Allottees in
whose favour, sale deeds have been
executed) before the project is complete
under Section 31 of the RERA 2016.
24. Answer to point No.5: Whether prayer No.3 in
W.P.No.27341 of 2024 would be maintainable
after the deletion of prayer (i) and (ii) in the said
petition?
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24.1. Prayer Nos.(i) and (ii) in W.P.No.27341 of 2024
have been extracted hereinabove, which have
been deleted subsequently in terms of the order
dated 10.12.2024.
24.2. Prayer No.(i) petitioners had sought for the
quashing of the registration certificate dated
20.11.2020 issued by the District Registrar of
Societies registering the Respondent No.7-
Cooperative Society.
24.3. Prayer No.(ii) petitioners seeking for quashing
of the order dated 05.07.2022 in complaint
7613 of 2020 and order dated 03.01.2023 and
17.05.2024 in CMP 221116/0010348, clubbed
with CMP 210223/0007613, by virtue of which,
firstly, there was a direction to register a Co-
operative Society, secondly, on account of
Registrar of Co-operative Society in not
registering the Co-operative Society, a positive
direction was issued to so register.
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24.4. These two prayers having been deleted, what
remains are the ancillary relief seeking for
quashing of the registration certificate of the
respondent No.7- Cooperative Society, which is
not maintainable since such registration has
been granted in furtherance of the orders of the
RERA 2016.
24.5. As held by the Division Bench of this Court in
VDB CALEDON and DS MAX, a Society
registered under the KSRA 1960 cannot carry
on any of the objects of maintenance of an
Apartment Complex or the building. Thus,
irrespective of the deletion of Prayer (i), the law
laid down by the Hon’ble Division Bench will
continue to hold fort and respondent No.7,
which has been registered under the KSRA
would not be entitled to carry on any
maintenance activities.
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24.6. Insofar as the prayer to quash the notice dated
15.07.2024 and order dated 31.08.2024 at
Annexures-W and Z respectively, petitioner
No.59, being a Society registered under the
KSRA 1960, cannot also have as its objective
maintenance of the apartment building and it is
for that reason that the notice dated
15.07.2024 at Annexure-W has been issued,
which cannot be found fault with. So also the
order dated 31.08.2024 at Annexure-Z,
cancelling the registration of petitioner No.59,
which was involved in the maintenance of the
apartment complex/building, which it could not
have, cannot be faulted with.
24.7. Respondent No.3 could have, however, instead
of cancelling the registration of Petitioner No.
59, restricted the order only to a prohibition to
Petitioner No.59 from carrying out any
maintenance activities of the apartment
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building. Be that as it may, there being no
other objective of petitioner No.59 except to
maintain the apartment building known as
‘Commune’, no fault can be found with the
order of respondent No.3, the same being in
terms of the decision of the Division Bench of
this Court in VDB CALEDON, DS MAX and
SHANTARAM PRABHU case.
24.8. Insofar as Prayer No.(v) is concerned, the
petitioner No.59-Association itself being
involved in activities which it could not viz.,
management of common areas and common
amenities, the question of issuing directions to
the Registrar of Co-operative Societies and
Registrar of Societies to desist from intervening
with the affairs of petitioner No.59- Association,
pertaining to task of management of common
areas and common amenities, would not at all
arise. The same, in fact, would be contrary to
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the applicable law for the very same reasons as
mentioned above.
24.9. Prayer No.(vi) being for issuance of directions
to the Developer to take steps necessary for
formation of Association under KAOA 1972,
would also not arise for the reason that the
ownership of the apartments is yet to be
transferred. Allotment having already been
made, unless all the allottees are to join, the
question of directing a private developer to
register an Association under KAOA of all the
owners of the building would not arise. It will
always be left open to the owners of the various
apartments to come together with the
Developer to form an Association under the
KAOA in 1972 for the purpose of maintenance
of the apartment complex.
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24.10. Insofar as direction sought for in prayer
No.(vii), if and when a deed of declaration
signed by all the owners and the developers/
promoter were to be submitted, the Sub-
registrar would be bound to register such a
deed of declaration and as such, no direction
would have to be issued, until such submission.
24.11. Prayer No.(viii) being an omnibus prayer to
direct all the respondents to extend support
and cooperation for formation of an Association
of Apartment Owners again cannot be issued
for the very same reasons as stated in my
answer to prayer No.(vi) and (vii). Such an
Association of Owners can be formed only after
sale deeds are executed in favour of the
respective owners and they come together to
form an Association under KAOA in 1972, of
course, since a declarative affidavit has been
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executed by all the Allottees at the time of
entering into an agreement of sale, they would
be bound to be part of a Deed of Declaration
under KAOA 1972 and register themselves as
an Association under KAOA 1972.
25. Answer to Prayer No. 6: Whether on the
registration of the Co-operative Society, could
the registrar of Co-operative Society initiate
proceedings against the petitioner No.59-
Society for cancellation of such registration and
or issue direction to the said Society not to
carry on maintenance of common areas and
common amenities?
25.1. Many of the aspects relating to this issue have
also been covered in answers to the points
above. The aspect of registration of respondent
No.8-Cooperative Society and the complaint
made by the Cooperative Society with the
Registrar of Societies, exercising jurisdiction
under KSRA 1960, as regards petitioner No. 59,
Society has in fact nothing to do with the
cancellation of such registration except insofar
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as the complaint is concerned. As dealt with
hereinabove and as held by this court in VDB
CELADON APARTMENT OWNERS
ASSOCIATION, DS Max, STARNEST
APARTMENT OWNERS CO-OPERATIVE
SOCIETY LTD and SHANTARAM PRABHU
case, a Society registered under the KSRA 1960
cannot have as one of its objects maintenance
of an apartment complex. It is only the
Association under and KAOA 1972 who can
carry out maintenance activity. Thus,
irrespective of who is the complainant on the
aspect of a Society carrying out maintenance
activity of an apartment complex being brought
to the notice of the Registrar of Societies, the
Registrar of Societies would be required to take
necessary action in that regard. It is only
fortitude that in the present case, Respondent
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No.8-Co-operative Society has instituted a
complaint with the Registrar of Societies.
25.2. The allegation in this regard is that on account
of the dispute between members of the
Petitioner No.59-Society and the members of
the Respondent No.8-Co-operative Society, the
complaint has been filed and registered. If not
for the said complaint, no action could be taken
by the Registrar of Societies. This again is
academic in nature, inasmuch as whether it
was Respondent No.8-Co-operative Society or
any member of the Co-operative Society or
anyone else, if had brought to notice of the
Registrar of Societies regarding the above, the
Registrar of Societies was required to take
necessary action as regards the activities of the
Petitioner No.59-Society carrying out
maintenance Activity of an Apartment Complex.
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25.3. Hence, I answer Point No. 6 by holding that as
held by this court in the decisions in VDB
CELADON APARTMENT OWNERS
ASSOCIATION, DS Max, STARNEST
APARTMENT OWNERS CO-OPERATIVE
SOCIETY LTD and SHANTARAM PRABHU
case, a Society registered under the KSRA 1960
cannot carry out any maintenance activity of an
apartment complex, even if it may be only that
of common areas and common amenities. This
aspect if brought to the notice of the Registrar,
it would be a bounden duty on part of the
Registrar of Societies to take such action as is
required under law, including the cancellation of
registration of such a Society.
26. Answer to point No. 7: Whether a direction
could be issued by this court directing the
Developer and all the apartment owners and
agreement holders to form an Association
under KAOA 1972?
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26.1. Again many of the aspects relating to and
touching upon this point have been dealt with
in answer to the earlier points. The facts are
not in dispute inasmuch as sale agreements
having been executed, declaratory affidavits
have been executed by the allottees that they
will subject their respective apartments to a
Deed of Declaration under KAOA 1972. Some of
these agreements of sale have resulted in sale
deeds and the apartments have been conveyed
to the respective purchasers. Some of these
sale agreements have continued to be at the
agreement stage, and the conveyance deed is
yet to be executed in favour of such
purchasers.
26.2. The petitioners are before this court,
contending that since it is only an association
under the KAOA 1972 that can carry out
maintenance activities of common areas and
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common amenities, a direction would be
required to be issued to the developer and all
the apartment owners to form an Association
under the KAOA 1972.
26.3. In answer to the points above, I have
categorically opined that though it is the
association under KAOA 1972 which is required
to carry out maintenance activities, an
association under KAOA 1972 can only be
formed by the owners of the apartment, mere
agreement holders cannot form such an
association under KAOA 1972. In the present
case, the members of petitioner No.59-Society
claim to be owners, whereas members of
Respondent No. 8 Cooperative Society claim
that some of them are owners under a deed of
conveyance, but a majority of them claim to be
only agreement holders or Allottees. Thus, no
direction could be issued to the agreement
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holders to form an association under KAOA
1972 since the formation of such an association
of agreement holders is not permissible under
KAOA 1972. There would be an obligation on
the part of the owners of the apartments after
conveyance deeds are executed to subject
themselves to a Deed of Declaration and
registration in terms of KAOA 1972. Until such a
conveyance deed is executed in favour of all
the owners, no such Association could be
registered under KAOA 1972, albeit, the
developer who is also the landowner can along
with the persons in whose favour registered
sale deeds have been executed can form such
an association under KAOA 1972, since there is
a developer who continues to be the owner of
the apartments which have not been conveyed.
26.4. In the event of there being a Joint Development
Agreement, then the owner of the land, the
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developer and the persons in whose favour
conveyance is affected can subject themselves
to the KAOA 1972. However, there cannot be a
partial declaration making it subject to KAOA
1972 of few of the owners, All the owners
would have to get together to form such an
association under KAOA 1972.
26.5. Thus, I answer point No. 7 by holding:
i) If the developer would also be a
landowner, and no sale deeds have been
executed in favour of anyone, the
developer could subject the entire
apartment complex to KAOA 1972 and
register an association along with bylaws.
ii) If the development is on the basis of a
Joint Development Agreement with the
land being owned by someone else, then
it is the landowner along with the
developer who can subject the entire
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project to the KAOA 1972 if there is no
deed of conveyance executed in favour of
any of the allottees.
iii) In the event of any sale deed or deed of
conveyance being executed in favour of
any of the allottees, then in both the
cases above, the owner of the apartment
in whose favour a registered sale deed
has been executed would also have to join
the deed of declaration for the purpose of
forming an Association.
iv) In all three situations above, all the
apartments would have to be subjected to
the deed of declaration, including all
common areas and amenities.
v) The above obligation being in terms of the
declaration already executed by the
agreement holders at the time when the
agreement was executed in their favour,
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this is a contractual obligation on the part
of all the parties. There could be no
direction in the nature of a mandamus
issued by this court directing private
parties to subject themselves to a deed of
declaration under KAOA 1972.
27. Answer to point No. 8. Whether the Writ
Petition in No.5479 of 2023 is rendered
infructuous on account of the final order passed
by the RERA?
27.1. The reliefs which have been sought for in W.P.
5479 of 2023 have been extracted hereinabove.
This writ petition has been filed by three of the
allottees who wish to register a Cooperative
Society. The said Cooperative Society not
having been registered, the directions have
been sought for. It is also contended that the
registration of the Cooperative Society was
required in terms of the orders passed in
CMP/210223/0007613. During the pendency of
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the above matter, one other complaint filed by
the allottees in CMP 221116/0010348 has been
disposed of by the RERA, and the directions
issued have been extracted hereinabove. By
way of the said order, the RERA had directed
the Registrar of Co-operative Societies to take
steps to register the application of Respondent
No.8, of which the petitioners in WP No.
5479/2025 are members. In furtherance of the
said direction, the Registrar of Co-operative
Societies has registered Respondent No.8 in WP
No.27341/2024. Thus, insofar as the first and
second prayers are concerned, the above
petition in WP No. 5479/2023 has been
rendered infructuous.
27.2. Insofar as prayer (c) is concerned, the
submission of Sri.Venkatesh Bhagat, learned
counsel for the Developer is that no sale deeds
would be registered by the developer. The said
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submission answers the grievance of the
petitioners and there would be no requirement
for the sub-registrar to be restrained from
registering any sale deed when the developer,
who is also the owner of the land, has
categorically stated that the developer would
not alienate any of the properties.
27.3. As regards the prayer (d) seeking for Karnataka
Real Estate Regulatory Authority to take over
the project, the Cooperative Society having
been formed to take over the project, it would
now be the obligation of the Cooperative
Society to take over the project and complete it
in all respects. Hence, prayer (d) cannot be
granted.
27.4. Prayer (e) and (f) are relating to deposit of the
amounts made by the purchasers. These reliefs
arising out of the rights and obligations created
under the RERA 2016, it would be for the
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petitioner to agitate these contentions before
the RERA.
27.5. Insofar as prayer (g) is concerned, Respondent
No.12 has categorically stated that the dues of
the developer have been paid to Respondent
No. 12, the mortgage has been redeemed and
Respondent No.12 would not exercise any right
over any of the properties subject matter of the
above petition, as such, the question of
declaring the mortgage between Respondent
No.9 and 12 to be illegal would not arise, more
so when the said transaction has been entered
into between the parties in the usual course of
business and the amounts advanced by
Respondent No.12 is stated to have been used
by Respondent No.9 for the purpose of
completion of the project.
27.6. Again, insofar as Prayer No. (h) is concerned,
the agreement of sale which were executed by
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Respondent No. 9 in favour of Respondent
No.12 of 42 apartments was a security towards
the loan advanced by Respondent No. 12 to
Respondent No.9. The said transaction having
come to an end, there would be no requirement
for this court and the agreement of sale having
been cancelled, there would be no requirement
for this court to pass any orders in terms of a
prayer (h).
27.7. Thus, the prayers which have been sought for
in WP No. 5479 of 2023, firstly have been
rendered infructuous as indicated above.
Secondly, cannot be agitated before this court
but would have to be agitated before RERA.
Thirdly, some of the prayers have become
redundant apart from being infructuous. As
such, I answer point No. 8 by holding that the
reliefs sought for in WP No. 5479 of 2023,
having either been rendered infructuous or
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redundant, as indicated supra, are not required
to be considered or granted.
28. GENERAL DIRECTIONS:
28.1. As indicated supra, the present litigation has
arisen on account of a new enactment, namely
RERA 2016 being introduced. Prior to that, it
was the KAOA 1972 or KOFA 1972, which were
applicable to any aspect relating to an
apartment complex.
28.2. KOFA 1972 was relating to any dispute between
the allottee and the developer. Rights of both
parties having been enumerated in the KOFA
1972, the aggrieved party could agitate any
grievance under the said Act.
28.3. KAOA 1972 provides for an association of
apartment owners; such an association could
be formed only by the owners of the
apartment, as indicated Supra.
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28.4. Apart from KAOA and KOFA, any person
aggrieved could always approach the civil court
of competent jurisdiction to seek for such relief
as may be permissible, unless there is an
alternative dispute resolution provided for
contractually.
28.5. With the advent of RERA 2016, the said Act
encapsulates various rights and obligations of
the allottee, Developer and the public, as also
provides for a grievance-redressal mechanism
under the said Act. RERA 2016, though
provides for an Association of allottees, there is
no methodology which has been prescribed
under RERA 2016 as to how the said
association can be formed, what would be the
legal status thereof, as also under what
enactment such Association has to be
registered.
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28.6. It is in that background that the petitioners are
contending that a Society could be registered
for maintenance of an apartment complex, a
Cooperative Society like Respondent No.8 could
not be registered for maintenance, and the
Cooperative Society cannot agitate the rights
under RERA 2016, as also maintain the
common areas and amenities.
28.7. This has given rise to a situation where, though
a Cooperative Society of the allottees can be
registered under the KSCA 1959, the said
Cooperative Society cannot carry out
maintenance activity. Petitioner No.59, being a
Society registered under the KSRA 1960,
cannot carry out maintenance activity. No
Association of owners can be formed under
KAOA 1972 since several of the apartments
have been conveyed by a registered deed and
several of the apartments are still at the
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allotment stage. Thus, giving rise to a Catch22
situation where there is no one who can
maintain the apartment, common areas and
common amenities, while the Cooperative
Society is agitating the rights of the allottees as
against the Developer/Promoter.
28.8. Under RERA 2016 the common areas are
required to be owned by the Association of
owners. Again an Association under KAOA
1972 would not have the requisite legal
characteristics to be registered as owner of
such common areas. The Cooperative Society
having requisite characteristics if formed within
three months of the majority of the apartments
being sold, the said Cooperative Society could
also be the owner of these common areas and
amenities.
28.9. In my considered opinion, both the Union Law
Commission as also the State Law Commission
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would have to look into these aspects and to
bring about clarity by way of legislation apart
from the interpretation that has been made by
this court in the present circumstances.
28.10. Though there is an obligation imposed on the
Promoter/Developer to enable the registration
of an Association of Allottees, which has to be
done within three months of the allotment of
the majority of the apartments, it is only the
Promoter/Developer who has all the details.
The Allottees who do not know each other
cannot come together to form such an
Association. In that background, it would
probably be required that an Association is
formed at the time of the launch of the project,
with all allottees joining in as and when
allotment is made.
28.11. Hence, the Registrar Judicial is directed to
forward a copy of this order to the Union Law
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Commission and State Law Commission for
information and consideration.
29. Answer to point No. 9: What Order?
29.1. In view of my answers to the various points
above, at the cost of repetition, it being clear
that it is an association under KAOA 1972 that
can carry out the maintenance activities of the
apartment complex. Such an association could
be formed only by owners as indicated supra.
In the present case, such an association under
KAOA 1972 not being capable of being formed,
such an Association would have to be formed
only after conveyance of all apartments in
favour of the respective allottees, the owners
coming together to form such an association
under KAOA 1972.
29.2. The petitioner No.59-Society has also
respondent No.7-Association being Societies
registered under KSRA 1960 would not be
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entitled to carry out any maintenance activities
in view of the decisions of this court in VDB
CELADON APARTMENT OWNERS
ASSOCIATION, DS Max, STARNEST
APARTMENT OWNERS CO-OPERATIVE
SOCIETY LTD and SHANTARAM PRABHU
case. Thus, they would have to be restrained
from carrying out any such maintenance
activities.
29.3. The cooperative Society now having been
formed, the builders/developers would have to
execute necessary deed of conveyance in
respect of the common areas and amenities in
favour of the Cooperative Society within a
timebound manner, i.e., within a period of 120
days from the date of receipt of this order.
29.4. Respondent No.8-Cooperative Society having
been formed by the allottees to agitate the
rights of the allottees against the promoters on
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account of non-completion of the apartment
complex, improper works being carried out,
etc., the Cooperative Society would be well
within its right to agitate those issues before
the appropriate forum since the aims and
objects of a Cooperative Society would include
such agitation of rights by the Cooperative
Society representing all its members, it being
an Association of Allottees under RERA 2016.
29.5. The KSCA 1959 enables a Cooperative Society
to carry out maintenance activities of the
apartment complex, including those of common
areas and common amenities. It is only KSRA
1960 which does not provide for such an
object. Though this court in STARNEST
APARTMENT OWNERS CO-OPERATIVE
SOCIETY LTD has held that for the purpose of
Cooperative Society under KOFA 1972, a
commercial unit would have to be part of the
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development, I am of the considered opinion
that the Division Bench of this court, while
considering such restriction, was only
considering KOFA 1972 and not RERA 2016.
The enablement of registration of Cooperative
Society for carrying out the maintenance
activity and agitation of the rights of the
allottees would have to be considered with
reference to RERA 2016 and not KOFA 1972
since most of the rights which could be agitated
under KOFA 1972 would have to be agitated by
the Allottees now under RERA 2016 and not
under KOFA 1972.
29.6. Several of the provisions in RERA 2016
containing non-obstante provisions, RERA
2016 would override KOFA 1972. Apart from
this, RERA 2016, being a central enactment
that occupies the field relating to disputes
between allottees and developers/Promoters,
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would override KOFA 1972, a State enactment,
in order to maintain uniformity across the
country. Taking into account these aspects and
factors, I am of the considered opinion that the
decision of the Division Bench of this court in
STARNEST APARTMENT OWNERS CO-
OPERATIVE SOCIETY LTD, holding that a co-
operative Society can only be registered in
respect of KOFA 1972 if there is a commercial
unit, would no longer be applicable after RERA
2016 has come into force, more so since RERA
2016 was not considered in STARNEST
APARTMENT OWNERS CO-OPERATIVE
SOCIETY LTD. This would also have to be
taken into consideration with reference to the
proviso to clause (e) of Subsection (1) of
Section 14, which requires that such an
Association is required to be formed within a
period of 3 months of the majority of the
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allottees having booked their plot or apartment.
Thus, the Association of allottees in terms of
clause (e) of subsection (1) of Section 14 could
be an Association or Society or co-operative
Society but if such an Association were required
to carry out maintenance activity also, then it
could only be a Co-operative Society under the
KSCA 1959 and such a Co-operative Society is
required to be formed within a period of three
months or the majority of allottees having
booked their plots or apartments.
29.7. In the present case, it is not in dispute that
majority of allottees have booked their
apartment, the construction has not been
completed despite the period fixed having
lapsed and several of the allottees have formed
themselves into a Cooperative Society,
Respondent No. 8, which has been registered in
pursuance of direction of the RERA.
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29.8. In view of my above discussion, it is clear that a
Cooperative Society could both agitate the
rights of the allottees vis-a-vis the
Promoter/Developer, as also carry out
maintenance activities of an apartment,
including that of common amenities and
common areas. Thus, in this situation, I am of
the considered opinion that Respondent No. 8-
Cooperative Society, which has been registered
in the present case, can carry out maintenance
activities in respect of the apartment complex.
29.9. The grievance of the petitioner in 27341/2024
is completely unwarranted.
29.10. In the above circumstances, I pass the
following:
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ORDER
i. Both Writ petitions WP No. 27341 of 2024
and 5479 of 2023 stand dismissed in
terms of the observations made
hereinabove.
ii. No costs.
SD/-
(SURAJ GOVINDARAJ)
JUDGESS/LN
List No.: 1 Sl No.: 62