S Designarch Infrastructure Pvt. Ltd. And Another v. Vice Chairman,Ghaziabad Development Authority And Other, the tenants
Case Details
Court No. - 69 Case :- WRIT - C No. - 588 of 2022 Petitioner :- Orange County Resident Welfare Association Respondent :- State of U.P. and Another Counsel for Petitioner :- Rajiv Sharma,Abhishek Sharma Counsel for Respondent :- C.S.C. Hon'ble Saumitra Dayal Singh,J. Heard Sri Rajiv Sharma learned counsel for the petitioner, learned Standing Counsel for the State respondents and Sri
Legal Reasoning
petitioner may not merit acceptance inasmuch as the appointment of the Election Officer appears to be in conformity with the provisions of Section 25(2) of the Societies Registration Act 1860, prima facie it does merit consideration if in accordance with the decision of a coordinate Bench of this Court passed in Writ-C No. 33826 of 2012 [M/S Designarch Infrastructure Pvt. Ltd. And Another vs. Vice Chairman,Ghaziabad Development Authority And Other, the tenants/lessees etc. of the apartment unit would also be entitled to vote. That objection has not been specifically dealt with in the impugned order. On the request of Sri Upadhyay, put up as fresh on 04.2.2022." Today, objection has been raised as to the authority of the petitioner to continue to act as the President of the Committee of Management though his term expired in the year 2019, it cannot be disputed that the petitioner had earlier approached this Court by means of Writ-C No. 30969 of 2021 which was
Arguments
Ramesh Upadhyay learned Senior Counsel assisted by Sri Rajan Upadhyay learned counsel for the interveners/some of the original allottees-owners. The petitioner who claims to be the President of the Resident Welfare Association has filed the present petition to challenge the order dated 24.12.2021 passed by the Deputy Registrar Firms Societies and Chits Meerut Division Meerut. Sri Upadhyay learned Senior Counsel has appeared as intervener on behalf of some of the residents. Upon hearing the parties at some length, below quoted order was passed on 02.2.2022: "Heard Sri Rajiv Sharma learned counsel for the petitioner, learned Standing Counsel for the State respondents and Sri Ramesh Upadhyay learned Senior Counsel assisted by Sri Rajan Upadhyay learned counsel for the interveners/some of the original allottees-owners. Submission of learned counsel for the petitioner is that the Deputy Registrar has failed to wholly comply with the order of the Court dated 26.11.2021 passed in Writ-C No. 30969 of 2021. (i) He has again nominated another authority namely Sri Abhishek Jain, Finance and Accounts Officer MDA, Meerut as the Election Officer. (ii) It has been submitted that by reiterating the order dated 23.9.2021 the Deputy Registrar has restricted the rights of voting to only the original allottes/owners or apartments units. (iii) Lack of opportunity of hearing has also been pressed by learned counsel for the petitioner. While the first objection being raised by the learned counsel for the
Decision
disposed of by the following directions:- "Having considered the submissions made by the learned counsel for the parties and examining the order impugned and other documents available on record as well as the law laid down by the Apex Court and this Court referred to above, this Court finds that the submissions made by the learned counsel for the petitioner have substance. In view of above, the impugned order 29th October, 2021 passed by the Deputy Registrar, Firms, Societies and Chits (respondent no.2) is set aside. The matter is remitted back to respondent no.2 for decision afresh. Accordingly, it is directed that petitioners may make a fresh representation, ventilating all their grievances supported by such documents, as they may be advised, before respondent no.2, within two weeks from today, along with a certified copy of this order. On such representation being made, respondent no.2 shall consider and decide the claim of the petitioners afresh, in accordance with law laid down by the Apex Court and this Court as well as other provisions applicable in the facts of the present case, by means of a reasoned speaking order, preferably within four weeks thereafter after affording opportunity of hearing to the parties concerned. This writ petition is allowed subject to the observations made above." In compliance of the above the petitioner filed objections on 06.12.2021 wherein amongst others he specifically raised an issue of eligibility of all residents/members of the apartment association in the coming elections. Thus, it has been claimed by the petitioner that residents whether original allottees/owners or lessees/tenants would be eligible to vote proportionate to the share of the unit in the total voting rights. In light of the above, strong objection has been raised to the impugned order dated 24.12.2021 whereby the Deputy Registrar has reaffirmed his earlier order dated 23.9.2021. Perusal of that order reveals, while constituting the election committee, he had made further observations to restrict the rights of voting in favour of the first owners of apartments only. If that condition is maintained, the voting rights would be denied to tenants/lessees or second owners and at any rate the specific objection raised by the petitioner would remain unanswered. The merits of the claim made by the petitioner apart, it cannot be denied that by the impugned order the Deputy Registrar has failed to address the issue of voting rights in favour of second owners/lessees/tenants etc. Perhaps it has escaped the attention of the said authority. Whatever be the final decision in that regard, the order dated 24.12.2021 is found to be laconic to the extent that the Deputy Registrar has not dealt with the above noted objection raised by the petitioner. Accordingly the writ petition is disposed of with the following directions. Upon filing of a copy of this order before the respondent No.2 within a period of one week from today, the said respondent shall issue further notice to all the affected parties and pass appropriate orders with respect to the objection raised by the petitioner as contained in paragraph-3( a), ((b) and (c) of the objections dated 06.12.2021 (Annexure No.11 to the writ petition) after dealing with the objections raised by the petitioner. It is expected that the said objection would be decided within a further period of three weeks from the date of production of a copy of this order, the election program may be announced and carried in terms of the decision above. It is made clear all other challenge raised in the writ petition fail. Order Date :- 4.2.2022 Faraz