# M/s Lotus Boulevard Espacia Apartment Owners Association & Ors v. State of U.P. & Ors

- **Citation:** (2024) 7 ILRA 612
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-01
- **Case number:** Writ C No. 3791 of 2020
- **Bench:** Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-lotus-boulevard-espacia-apartment-owners-association-ors-v-state-of-u-p-ors-52258
- **Pages:** 4

## Headnote

Anshul
Kumar
Singhal,
C.S.C.,
Kaushalendra Nath Singh, Raghav Dev
Garg

Civil Law-(The Societies Registration
Act, 1860-Section 12-D(c)) (The Uttar
Pradesh
Apartment
(Promotion
of
Construction,
Ownership
and
Maintenance) (Amendment) Act, 2016Section-14(2)) (The U.P. Apartment
(Promotion of Construction, Ownership
and Maintenance) Act, 2010-Section14(2))- The sole ground for cancellation of
the registration of Respondent No. 1 is that
the occupancy of the flats of the building
was less than 60% therefore, in view of the
provisions made in the Act, 2016, the
registration of Petitioner No. 1 could not
have
been
done-The
registration
of
Petitioner No. 1 has been done as per
Section 14(2) of the Act of 2010 but the
said registration has been cancelled relying
on the amended Section 14(2) in terms of
the Act, 2016 whereas the Act, 2016 itself
has not come into force till date, as till date
notification contemplated under Section
1(2) of the Act, 2016 has not been issued.
Result impugned order quashed. (Para 12,
13, 14 & 16)

Writ petition allowed. (E-15)

## Text

612 INDIAN LAW REPORTS ALLAHABAD SERIES
District- Moradabad is set aside and it is
directed that application under Section
156(3) Cr.P.C. filed by applicant be
considered
and
concerned
SHO
and
Superintendent of Police, Moradabad are
directed to lodge FIR on basis of contents
made in application and proceed further for
investigation in accordance with law.

29. A copy of this order be sent to
concerned Magistrate as well as concerned
Superintendent of Police for compliance.

30. Registrar (Compliance) to take
steps.
----------
(2024) 7 ILRA 612
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.07.2024

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Writ C No. 3791 of 2020

M/s Lotus Boulevard Espacia Apartment
Owners Association & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Nikhil Kumar, Prashant Kanha

Counsel for the Respondents:
Anshul
Kumar
Singhal,
C.S.C.,
Kaushalendra Nath Singh, Raghav Dev
Garg

Civil Law-(The Societies Registration
Act, 1860-Section 12-D(c)) (The Uttar
Pradesh
Apartment
(Promotion
of
Construction,
Ownership
and
Maintenance) (Amendment) Act, 2016Section-14(2)) (The U.P. Apartment
(Promotion of Construction, Ownership
and Maintenance) Act, 2010-Section14(2))- The sole ground for cancellation of
the registration of Respondent No. 1 is that
the occupancy of the flats of the building
was less than 60% therefore, in view of the
provisions made in the Act, 2016, the
registration of Petitioner No. 1 could not
have
been
done-The
registration
of
Petitioner No. 1 has been done as per
Section 14(2) of the Act of 2010 but the
said registration has been cancelled relying
on the amended Section 14(2) in terms of
the Act, 2016 whereas the Act, 2016 itself
has not come into force till date, as till date
notification contemplated under Section
1(2) of the Act, 2016 has not been issued.
Result impugned order quashed. (Para 12,
13, 14 & 16)

Writ petition allowed. (E-15)

(Delivered by Hon'ble Manjive Shukla, J.)

1. Heard learned counsel appearing for
the petitioners, learned Standing Counsel
appearing for Respondents No. 1, 3 & 4 and
Mr. Kaushlendra Nath Singh, learned counsel
appearing for Respondent No. 2.

2. This Court vide order dated
23.04.2024 issued fresh notice to Respondent
No. 6 and direction was given to serve the
notice on Respondent No. 6 through 'dasti'.
The affidavit of service has been filed by the
petitioners indicating therein that notice of the
writ petition has been served on Respondent
No. 6, but none has appeared on its behalf.

3. Petitioners through this writ petition
have assailed the order dated 15.01.2020 passed
by the Deputy Registrar, Firms, Societies and
Chits, Moradabad whereby, he in exercise of
his powers under Section 12-D(c) of the
Societies Registration Act, 1860, has cancelled
the registration of M/s Lotus Boulevard Espacia
Apartment Owners Association (Registration
No. GBN/00836/2019-2020).

4. Facts of the case, in brief, are that
the residents of Towers No. 31 to 38
7 All. M/s Lotus Boulevard Espacia Apartment Owners Association & Ors. Vs. State of U.P. &
 Ors.
613
constructed by Respondent No. 6 on Plot
No. GH-02, Sector 100, Noida organized
meeting of the general body on 23.12.2018
and in the said meeting, the Board of
Management of the Apartment Owners
Association (A.O.A.) was elected and
model bye-laws were adopted. The elected
Board of Management of the A.O.A.
requested the Respondent No. 2 to grant no
objection certificate for the registration of
the A.O.A. and in response thereof,
Respondent No. 2 granted no objection
certificate
on
21.02.2019.
Thereafter
requisite papers were presented before the
Respondent No. 4 for registration of the
A.O.A. in the name of M/s Lotus
Boulevard Espacia Apartment Owners
Association, Plot No. GH-02, Sector 100,
Noida. The Towers No. 32-36 were
complete
having
occupancy
of
320
flats/families.

5. The Respondent No. 4 after being
satisfied with the documents produced
before him, registered the Society on
29.04.2019 in the name of M/s Lotus
Boulevard Espacia Apartment Owners
Association,
A.O.A.
Office,
Lotus
Boulevard Especia, Plot No. GH-02,
Sector-100, Noida, Gautam Buddha Nagar,
201301
bearing
Registration
No.
GBN/00836/2019-2020.

6. Later on a complaint was filed by
Respondent No. 6 before Respondent No.
4, that as per provisions made in the Uttar
Pradesh
Apartment
(Promotion
of
Construction, Ownership and Maintenance)
(Amendment) Act, 2016, minimum 60%
occupancy of the apartments of the
building is required for registration of the
Apartment Owners Association (A.O.A.)
and since at the time of registration of
Petitioner No. 1, only 322 flats out of total
606 flats were occupied which comes to
less than 60% occupancy therefore, the
registration of Petitioner No. 1 could not
have been done. In the complaint, it was
further mentioned that since the registration
of Petitioner No. 1 has been obtained by
misleading and concealing material facts
from Respondent No. 4 therefore, the said
registration is liable to be cancelled. The
Respondent No. 4 after hearing all the
concerned parties has passed order dated
15.01.2020
whereby
registration
of
Petitioner No. 1 has been cancelled under
Section
12-D(c)
of
the
Societies
Registration Act, 1860 on the ground that
as per Section 14(2) of the U.P. Apartment
(Promotion of Construction, Ownership
and Maintenance) Act, 2010 as amended in
the year 2016, minimum 60% occupancy of
the flats is necessary for registration of the
A.O.A. and since on the date of registration
of Petitioner No. 1, occupancy was less
than 60% therefore, its registration could
not have been done.

7. Learned counsel appearing for the
petitioners has argued that Section 14(2) of
the
U.P.
Apartment
(Promotion
of
Construction, Ownership and Maintenance)
Act, 2010 (hereinafter referred to as 'the
Act of 2010') provides that the A.O.A. can
be registered on 33% occupancy of the flats
of the building. He further argues that later
on State Legislature enacted the Uttar
Pradesh
Apartment
(Promotion
of
Construction, Ownership and Maintenance)
(Amendment) Act, 2016 (hereinafter to be
referred as "the Act of 2016") whereby
Section 14(2) of the Act of 2010 was
sought to be substituted by new Section
14(2) and thereby it was provided that for
registration
of
Apartment
Owners
Association, occupancy of the 60% flats of
the building is necessary but in Section 1(2)
of the Act of 2016, it has been provided
that the Act of 2016 shall come into force
614 INDIAN LAW REPORTS ALLAHABAD SERIES
on such date as the State Government may
by notification in the official gazette
appoint and since till date, the notification,
as required under Section 1(2) of the Act of
2016 has not been published in the official
gazette, therefore, the amended section
14(2) has not come into force, as such, the
cancellation of the registration of Petitioner
No. 1 on the basis of the amended Section
14(2) is unsustainable.

8. On the other hand, learned
Standing Counsel has opposed the writ
petition
but
has
admitted
that
the
notification in the official gazette, as
required under Section 1(2) of the Act of
2016, has not been published in the official
gazette till date.

9. I have heard learned counsel
appearing for the petitioners and learned
Standing Counsel appearing for the State
respondents.

10. I find that U.P. Apartment
(Promotion of Construction, Ownership
and Maintenance) Act, 2010 was enacted in
the year 2010. The Section 14(2) of the Act
of 2010 reads as under:

"14(2) It shall be the joint
responsibility of the promoter and the
apartment owners to form an Association.
The promoter shall get the Association
registered when such number of apartments
have been handed over to the owners which
is necessary to form an association or 33% of
apartments, whichever is more, by way of
sale, transfer or possession, provided the
building has been completed along with all
infrastructure
services
and
completion
certificate obtained from the local authority."

11. This Court finds that under
Section 14(2) of the Act of 2010, only 33%
occupancy of the flats of the building is
required for formation and registration of
the Apartment Owners Association. This
Court further finds that later on the State
Legislature passed the Act of 2016
whereby certain amendments were sought
to be incorporated in the Act of 2010. By
the Act of 2016, Section 14(2) of the Act of
2010 was sought to be substituted by new
Section 14(2) which provides that for
formation and registration of the Apartment
Owners Association, 60% occupancy of the
flats of the building is necessary. Section
1(2) of the Act, 2016 further provides that
the Act of 2016 shall come into force on
such date as the State Government may by
notification in that official gazette appoint.
For ready reference, Section 1 and Section
8 of the Act, 2016 are extracted as under:

"Section 1 (1) This Act may be
called
the
Uttar
Pradesh
Apartment
(Promotion of Construction, Ownership
and Maintenance) (Amendment) Act, 2016.

(2) It shall come into force on
such date as the State Government may, by
notification
in
the
Official
Gazette,
appoint."

Section 8. In Section 14 of the
principal Act,

(a) for sub-section (2), the
following sub-section shall be substituted,
namely:-

"(2)
It
shall
be
the
joint
responsibility of the promoter and the
apartment owners to form an Association.
The promoter shall get the Association
registered
when
such
numbers
of
apartments have been handed over to the
owners which are necessary to form an
association or sixty per cent of apartments,
whichever is more, by way of sale, transfer
or possession provided the building has
been
completed
along
with
all
infrastructure services and completion
7 All. Mohammad Shahid & Ors. Vs. Union of India & Ors.
615
certificate obtained from the concerned
local authority:

Provided that in case of an
independent area or an independent
commercial area the promoter may from a
separate Association for its management, if
required.".

(b) In sub-section (5) after the
existing proviso, the following proviso shall
be inserted, namely:-

"Provided further that the amount
collected by the promoter towards interest
free maintenance security shall also be
transferred to the Association at the time of
handing over of the common areas and
facilities."

12. It is apparent from the impugned
order dated 15.01.2020 that the sole ground
for cancellation of the registration of
Respondent No. 1 is that the occupancy of the
flats of the building was less than 60%
therefore, in view of the provisions made in
the Act, 2016, the registration of Petitioner
No. 1 could not have been done.

13. The Court finds that Section 1(2) of
the Act, 2016 categorically provides that the
Act, 2016 shall come into force on such date
as the State Government may by notification
in the official gazette appoint but till date, the
State Government has not notified the date
with effect from which the Act, 2016 will
come into force. The aforesaid inference has
been drawn by the Court as State respondents
in their Counter-Affidavit have not given any
detail of such notification and even further in
spite of various opportunities granted by this
Court, the State respondents have not
produced any such notification.

14. Once this Court finds that the Act of
2016 itself did not come into force as till date,
the State Government has not issued
notification as contemplated under Section
1(2) of the Act, 2016, the amendments sought
to be incorporated by the Act, 2016 in the
Act, 2010 have not become effective. The
registration of Petitioner No. 1 has been done
as per Section 14(2) of the Act of 2010 but
the said registration has been cancelled
relying on the amended Section 14(2) in
terms of the Act, 2016 whereas the Act, 2016
itself has not come into force till date, as till
date notification contemplated under Section
1(2) of the Act, 2016 has not been issued.

15. In view of the aforesaid reasons, the
impugned order dated 15.01.2020 passed by
Respondent No. 4 cannot sustain in the eyes
of law.

16. Accordingly, this writ petition is
allowed. The order dated 15.01.2020 passed
by Respondent No. 4 is hereby quashed.
----------
(2024) 7 ILRA 615
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2024

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE MANISH KUMAR NIGAM, J.

Writ C No. 16025 of 2024

Mohammad Shahid & Ors. ...Petitioners
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioners:
Sri Shiv Kant Mishra

Counsel for the Respondents:
A.S.G.I., C.S.C., Sri Rajesh Kumar Jaiswal

A. (Civil Law-The National Highways Act,
1956-Section 3-H)- The State Government
will deposit the compensation amount before
taking possession is not a provision enabling the
Central Government to delay payment of the