The Indian Judiciary has been the foundation stone of the democratic pillar of India. It is the one which held mountain of the hopes of the 130 Crore people of India. The day it fails it is the doom to our democracy built on sacrifices of our freedom fighters. It was ascertained time and again by the legendary geniuses like Justice Krishna Iyer and Justice Bhagwati. They held it at the highest esteem for the world to take notice. The founding fathers of the Constitution sighed with pride and relief when they read their judgements in heaven. It was meant for such greats made by those greats in heaven. The leftovers are us to be the trustees of the trust bestowed on us as a generation to keep and mentor it to a level that the next generation feels proud of us.
The Karnataka High Court, had a glorious past. Many from here went on to become the Chief Justice of India and lighted up the spirit of Justice in the Apex pillar of the country. The red Attara Kacheri structure has been the image of the memorable history of this great state. The six crore population has been waiting in the wilderness in the hope of a relief to their disputes. Some are lucky and some complain about the stories of Shangrilla. These murmurings of the common man in the corridor of the seat of justice, bring out some judgements which raise the eyebrows. In 2024 a judgement was delivered in WP No. 23487 of 2023 where it was clearly stated
“iii) Liberty is reserved with the Respondent No.3- association to register within two months under the Karnataka Cooperative Societies Act, 1959.”
It seemed to be an order with reference to the section 5 to 9 of the KCS Act 1959, provision of law for registration of Co-op Societies and seemed to have been delivered with prudence. People believe that the judgements are crafted within the walls of the written laws. But suddenly after few months, another Writ Petition was admitted and another prayer was sought where the order was passed reversing the above order to form an association under KAO Act 1972. The association was immediately formed with the DOD executed with questionable ways but registration is not done till date because there is no provision of law to do so.
This change of mind, reversing the order to form another association without the provision of law, in place of the earlier order brings doubts in the minds of the common man. It is more so when the registration department has clearly stated that the association is not registered under the KAO Act 1972 in their submissions to court. In these above mentioned two judgements which is within the provision of law and which is not, is the question of law which needs to be ascertained. The question of law remains the essential aspect of the justice delivery system to demonstrate that the justice has been done., or else the doubts keep surfacing in the minds of the citizens. It is also seen that some judgements to form the association under the KAO Act 1972 have been passed repeatedly as in WP No. 25528 of 2023, where it has said
“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.”
Here also the question of law is that, is there a provision to register the association under KAO Act 1972? No, there is no such provision in KAOA 1972 to form an association and register it either. In the same Writ Appeal judgement states that
“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.”
Here the KOF Act 1972 provision is stated but the provision of restricting it to the commercial purposes is not mentioned. It is taken up from one of the counsels pleadings. The question of law is not completely answered here about the commercial use restrictions. The law doesn’t prescribe total ban on any such residential and commercial use. The Society/association are for management and not for business. This has been overuled by the recent judgement in Commune WP No. 27341 of 2024. The judgement further goes to say that the unregistered association can be formed for pre RERA apartments. The law remains on one side but the opinions have many sides of perspectives which everyone need to be careful. The struggle by two opposing sides mainly to to take control of the property. Coop society laws are straight forward and defined. Whereas the KAO Act 1972 is vague filled with contradictions. This helps builder to retain the land, mortgage the land whenever wanted, evade stamp duty of common area and also facilitates the benami investment.
All these judgements giving directions to register the association under KAO Act 1972 have become otiose and failed to register the association because there is no such provision in the law. It is the necessity of the day to go into the question of law to interpret the same and apply instead simply believing the Counsel who misquote to mislead the Court at times. It will serve better purpose if the question of law is answered and the provision of law clearly stated in the judgement of speaking order. There may be many instances, in our complex judicial proceedings like this. But these are simple two examples to show that we need to retrospect and do the course correction immediately or else we may lose the Last Frontier in our struggle to clean up and be the economic Super power.
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Show CommentsVery nicely said the owner of flat to form an association in order to ensure day to day operations are maintained by the owner itself than by the builder lobbies who ha no interest than making further fund in the process.
Points brought out well in the article. I presume the first judgement was given after due hearing lasting a few hearings and all arguments from both sides were considered. Registration under Karnataka Co operative Societies Act, 1959 appeared to be the correct thing to do.
Very lucid summarisation of the contradictions in judgements. The builders are ready to grab such a opportunity to take shelter under such a judgement and further exploit the situation. Wondering whether such a position prevails in other Indian states too.
Well articulated Vidhyadhar.
How come same builder lawyer keeps misguiding only a few judges is a multi million dollar question. Judicial accountability Bill is the need of hour atleast in Karnataka.
1. Writ petition needs to be directed to government bodies. Instead these mylords have been directing 3rd parties which is against Writ Petition itself
2. Giving the judgment1 and taking it back and giving another judgment 2 for the same apartment. Moreover 2nd judgment has made the life of home buyers life more miserable as it is against the law
3. They are giving the judgments just like a sip of tea or coffee
4. Last reiterating Judicial Accountability Bill atleast for Karnataka is must
Nice article to educate flat owners of asdociation formation n its importance to.protect once right as law abiding citizen
Apparently the Judiciary is looking at each case in a myopic way and not as an important instrument of law. These peice meal judgements have caused more damage than the misconceived, misinterpreted KAOA 72. While the Real Estate Industry clamoured on to KAOA 72, it conveniently side stepped the regulatory act KOFA 72. Obviously with the help of the Powers that be. KOFA 72 was never implemented and was unknown till recently when the Home Buyers pulled it out of the book shelves.
There’s is an urgent need for the Judiciary and the Government to put an end to this madness by judiciously take corrective measures and help the Home Buyers live in peace.
It’s a good article eye opening to the flat owners to form their own association and know their rights by becoming the members of the association thank you Sir by publishing knowledgeable article
All flat owners should read this insightful article, which effectively summarizes the law and highlights its contradictions. There’s a pressing need for the judiciary to deliver more precise and consistent rulings.
Society formation law of 1959 and karnataka apartment ownership act of 1972,both are criticised due to their drawbacks which often lead to the owners for misregistration.This can hinder the builders ability to convey the land to Association. Additionally these acts reliance on the declaration of submission by the owners,can create hurdles, particularly in my case where the builders are un cooperative and even the apartment owners are difficult to gather.
So both the above laws are inadequate and doesn’t fully address our needs ,particularly regarding ownership rights and maintenance responsibilities.
So,I request the govt.to mandate the following important points:
1]Within the limited period decided by the law,the builders should form Association and than only the OC should be given.
2]Once the apartment is issued with OC,no additional floors should be added/constructed.If the builders in future wishes to construct. extra floors,they should mention in the Sale Deed itself.
3] The law should give permission to file case against the builders in fast track courts, so that any individual will have rights to fight alone against builders.
4]All illegal govt.office authorities like KDA,DR & CMC should be punishable with heavy amount ,in the form of fine,if any extra permission is given to the builders to carry illegal construction in the apartment.
My special request to implement faster the above points.
A very well-written article highlighting the contradictory verdicts that resulted in more confusion among homebuyers. It’s time to introspect and course correct.
Nice article…well explained
Thanks for the article.
Unfortunately laws are made by the legislature. And it is the judiciary’s mandate to judge and direct in conformance to them. What happens when a law is poorly drafted and passed? Yes, the judiciary can refer to fundamentals in the constitution and direct remedial action. But can it overrule the law?
What if 90% of the citizens are not fully following laws because they are impractical and poorly drafted? And the citizens are the same as those who have elected the legislature?
It’s a quagmire. Pointing fingers doesn’t help. It only passes the buck around. The solution is to join hands : judiciary – legislature – citizens
Very well written article. While I do not see any provision under the KAOA for registering the Flat Owners Association as such. However under Sec. 13, the Declaration and Apartment Deed can be registered under the Registration Act, 1908.
Neither the courts nor the forms delivering justice can be held responsible for this fiasco for Apartment Owner’s; but the law makers themselves having drafted & passed these Acts are responsible though the Act provisions are contradictory in nature. Opportunists in the guise of Builders, some land owners are taking advantage of this discrepancy in legal interpretations to hoodwink & defraud the public/home buyers.
The interpretations of the provisions in various Acts by various petitioners in courts on KCSA1959, KAOA1972, KOFA1972 is similar to several blind men defining an ‘Elephant’ based on the parts of its body they touch.
I just hope for Justice be served even though Lady Justice is blindfolded for a different reason.
I really do not know if the judiciary at the high court level can review a state govt enacted law in its entirety with a view to judge its legality.In my view the KAOA1972 is a totally redundant that need to be declared unlawful by the Judiciary.Similar action was taken the by Supreme court in respect of Electoral bond scheme of union govt.
This article has highlighted the piecemeal and contradictory approach of state high court in respect of KAOA1972.The courts orders have resulted in utter confusion and benefited the builders.
Sri Vidyadhar Durgekar has made it a mission to enlighten the apartment owners and to take them in the rightful path of going for registered co-op societies.