RWA dispute _ Authority to adjudicate _U.P. Apartment Act 2010 & Rules framed thereunder

as per prevalent perception / custom it is the development authority of concern district to adjudicate dispute with regard to the continuance of the management or dispute with regard to the election of the office bearers  of RWA / Apartment Owner's Association.  Even the Hon’ble Allahabad High Court also has given several decisions to this effect.

But  the Hon'ble B. Amit Sthalekar, J. in WRIT - C No. - 36208 of 2015  titled as S.P. Singh Yadav v/s State Of U.P. And 7 Ors decided on 13.7.2015 quoting the Article 254 of the Constitution of India clarified that “the dispute with regard to the continuance of the management or dispute with regard to the election of the office bearers  of the Apartment Owners Association would lie exclusively within the ambit of jurisdiction of the Registrar or Prescribed Authority notified under the Societies Registration Act, 1860”

Below is the aforesaid judgment.

HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 59 

Case :- WRIT - C No. - 36208 of 2015 

Petitioner :- S.P. Singh Yadav                               Respondent :- State Of U.P. And 7 Ors. 

Counsel for Petitioner :- M.H. Khan 

Counsel for Respondent :- C.S.C.,R.N. Chaubey,Rajni Ojha,Shivam Yadav 

Hon'ble B. Amit Sthalekar,J. 

Heard Shri M.H. Khan, learned counsel for the petitioner, Shri Mata Prasad, learned Addl. Chief Standing Counsel for the respondents no. 1, 4 and 5, Shri Shivam Yadav, learned counsel appearing for the respondents no. 2 and 3 and Ms. Rajni Ojha, learned counsel appearing for the respondents no. 7 and 8. 

It appears that there is some dispute with regard to the election of the Society, which is the Resident Welfare Society duly registered under the Societies Registration Act, 1860.  A reference no. 9 of 2015 is already pending before the Prescribed Authority, S.D.M. Dadri, Gautambudh Nagar. 

Ms. Rajni Ojha, learned counsel for the respondent has raised a preliminary objection that the reference is not maintainable before the Prescribed Authority since after coming into force of the U.P. Apartment (Promotion of Construction, Ownership & Maintenance) Act, 2010  (Act, 2010) and the Rules, 2011 framed thereunder, the jurisdiction vests in the competent authority of the said Development Authority. 

    
The submission of Ms. Rajni Ojha is that in view of the provisions of Section 31 thereof, the Act, 2010 shall have overriding effect notwithstanding the registration of the Resident Welfare Association under the Societies Registration Act, 1860. 

  
In my opinion the submission of Ms. Rajni Ojha must necessarily be rejected for the reason that under the Act, 2010 the competent authority to decide a dispute with regard to election of members relating to the Resident Welfare Association (Apartment Owner's Association) is not the Vice Chairman of the Development Authority or such other officer as the State may so designate and authorise to perform the function of the competent authority. 

Section 30 of the Act, 2010 contemplates the framing of Rules.   Rules known as the U.P. Apartment (Promotion of Construction Ownership & Maintenance) Rules, 2011 have been framed.   The Rules, 2011 further provide for registration of the model bye-laws with the Registrar under the provisions of the Societies Registration Act, 1860.   Section 14(7) (q) of the Act, 2010 lays down that the bye-laws may provide for any material which may be required by the competent to be provided for in the bye-laws for  proper and better administration of the property.   Section 14(7) (q) of the Act reads as under: 

"14(7)(q). any matter which may be required by the Competent Authority to be provided for in the bye-laws for the proper or better administration of the property;" 

This therefore indicates that if there is any dispute with regard to the property the same will fall for determination within the jurisdiction of the competent authority but by that itself it cannot be inferred that the dispute with regard to continuance of or election of the office bearers of the Association would also fall within the domain of the Competent Authority for determination. 

There is another aspect of the matter.  The Societies Registration Act, 1860 is Central Act.   Article 254 of the Constitution of India provides that if there is any inconsistency between the laws made by the Parliament and the laws made by the Legislatures of the State, the law made by Parliament shall prevail and the law by the Legislature of the State shall to the extent of repugnancy be void.   Article 254 of the Constitution of India reads as under: 

"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, 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." 

The act of 2010 is a State Act, having received the assent of the Governor on 18.3.2010. Therefore in view of the provisions of Article 254 of the Constitution of India the provisions of the Societies Registration Act, 1860 will have overriding effect over the Act of 2010. Therefore, in my opinion the dispute with regard to the continuance of the management or dispute with regard to the election of the office bearers  of the Apartment Owners Association would lie exclusively within the ambit of jurisdiction of the Registrar or Prescribed Authority notified under the Societies Registration Act, 1860.   Therefore, the preliminary objection raised by Ms. Rajni Ojha is rejected. 

The writ petition is therefore disposed of with a direction to the respondent no. 5-Prescribed Authority/S.D.M., Dadri, Gautam Budh Nagar to consider and decide the reference no. 9 of 2015 pending before him within a period of two months from the date of receipt of the certified copy of this order in his office. 

Order Date :- 13.7.2015