Sh. D.R. Roy Vs Amit Apartments Owners ... On 18 July, 2016

Sh. D.R. Roy vs Amit Apartments Owners ...
on 18 July, 2016
Delhi District Court

Sh. D.R. Roy vs Amit Apartments Owners ... on 18 July, 2016
In the court of Sonam Singh, Civil Judge-05, Central District, Tis Hazari Courts,
Delhi.
Suit No. 524/14

Unique ID No. 02401C0324102006
Sh. D.R. Roy
R/o Flat No. 01,
Amit Apartment,
Sector-13, Rohini,
Delhi-110085 ... Plaintiff
Versus
1.
Amit Apartments Owners Association Through its President, Smt. Preeti Gupta W/o Sh. S.K. Gupta,
R/o Flat No. 24, Amit Apartments Sector-13, Rohini, Delhi-110085
2. Smt. Preeti Gupta, President W/o Sh. S.K. Gupta
3. Sh. Naresh Kathpalia, Vice President, R/o Flat no. 82
4. Sh. Amrit Karmakar, Secretary,
5. Sh. R.K. Keswani, Asst. Secretary,
6. Late Sh. R.K. Jain (Treasurer)
7. Sh. Harender Jindal, Asstt. Treasurer,
8. Smt. Umesh Yadav W/o Sh. Rohtas Yadav, Member,
9. Smt. Kanta Rani (Member) W/o Sh. Gauverdhan
10. Sh. O.P. Arya (Member)
11. Sh. Raman Bhasin, Member,
12. Sh. Sanjay Gupta, Member,
13. Smt. Rani Vij, Member W/o Sh. Rakesh Vij,
Indian Kanoon - http://indiankanoon.org/doc/143759920/ 1

14. Smt. Raj Rani, Member W/o Sh. Jag Pravesh Khatri,
15. Sh. Bharat Bhushan Lal Member, R/o Flat No. 132,
16. Sh. H.S. Dureja, Member,
17. Sh. S.K. Bansal, Member,
18. Smt. Sukanya, Member Wife of Sh. Rakesh Bhardwaj,
19. Sh. Ashok Sharma, Member, SL. No. 02 to 19 above are officers of Defendant no. 1 Association
and resident in Flats as Indicated against each.
20 Amit Co-operative Group Housing Society

(Regn. No. 314/GH)
Through its Hony. Secretary Sh. Sukinder Singh
R/o 3/2, Singh Sabha Road,
Near Amba Cinema, Subzi Mandi, Delhi-07
21. Sh. S.P. Singh (In Personal Capacity)

R/o T-29, Andrews Ganj,
HUDCO Place.
Khelgaon Marg, New Delhi-49
22. The Registrar Co-Operative Societies (RCS for short), NCT of Delhi, Parliament Street, New
Delhi. ... Defendants.
Date of Institution: 18.04.2006 Date of Final Decision: 18.07.2016
1. Vide this judgment, I shall dispose of the present suit filed by the Plaintiff for the relief of
permanent injunction and declaration against the Defendants. In short, the main issues which are to
be decided is whether the association formed under the Delhi Apartment Ownership Act, 1986 i.e.
Defendant no.1 has been formed lawfully and if so, whether the Managing Committee formed under
Delhi Cooperative Societies Act ceases to have control over the Management and administration of
the housing complex or not.
Plaintiff's version as per the plaint
2. The Plaintiff has averred the following facts in his plaint:
a) The Plaintiff is a promoter member with the membership no. 17 of the Amit Co-operative Group
Housing Society Ltd. and was its founder Vice-President . The Society got registered with the
registration no. 314/GH with the Registrar of Societies (Defendant no. 20 herein) in the year 1979

under the Delhi Co-operative Societies Act, 1972 (in short 'DCS Act'). The total no. of members is
132 and after due allotment in the year 1998, the Plaintiff is residing in his Flat no. 01, since 1999.
The Amit Co-operative Group Housing Society (hereinafter referred to as 'Amit CGHS') is registered
under DCS Act and thus, is to be governed and is governed under this Act.
b) Defendant no. 1, Association is purported to have been unlawfully formed under Section 15 of the
Delhi Apartment Ownership Act, 1986 (in short 'DAO Act') on 26.02.2006 and Defendant no. 2 to 19
are its self appointed officers. Further, the Defendant no. 1, Association is not registered. Moreover,
apart from Defendant No. 5, namely, Sh. R.K. Keswani, all the other 17 are not owners but the Power
of Attorney (POA) holders of those allottee members who have sold their flats. These 17 Defendants
have only "possessory rights" of these flat and are not even 'nominal' members of the Amit CGHS, as
per provisions of Section 91 of DCS Amendment Act (Act 01 of 2005). Also, the Defendant no. 2 to
19 have not been enrolled as members of the Amit CGHS and most of them do not qualify for such
membership as per provisions of the Act.
c) That Defendant no. 21, Shri S.P Singh, who happens to be the present President of the Managing
Committee ( in short 'MC') is the person who has been pursuing the business of real estate in the
garb of Co-operative Group Housing Society with his family members and those of this close
associate, namely, Sh. Sukhinder Singh, the present Hony. Secretary. Both of them have been
managing to muster majority through fraud and manipulation. The subject matter of this suit arises
out of acts and omissions of Defendant no. 21, hence he has been impleaded in his personal capacity.
d) Defendant no. 22, the Registrar of Co-operative Societies (in short 'RCS') is holding the
superintending authority under the DCS Act, 1972 and now DCS Act, 2003. The RCS office has
patronized the duo of Sh. S.P. Singh and Sh. Sukhvinder Singh.
e) That at the time of granting possession, the Defendant no. 20, Amit CGHS executed a statutory
contract with the Plaintiff and its other 131 members under the provision of DCS Act and Rules 1973
and bye-laws of the Society thereunder. The said contract is still subsisting and valid. The privity of
this statutory contract cannot be violated by any third party, least by the Defendant no. 1 to 19 or
anyone else. The Defendant no. 1 to 19 by their wanton and unlawful actions have violated the
privity of this contract. This is not permissible under the law. Defendant no. 1 to 19 acting in concert
with Defendant no. 21 are only making a planned attempt to keep the original members deprived of
any say and vote in the management of this society in utter violation of Section 93 of the DCS Act,
2003. The reason for their concerted action is absolutely clear by the history of this Co-op. Group
Housing Society basically promoted to transact business of real estate by Sh. S.P. Singh, Defendant
no. 21, his family and close friends. The borrowed names of these friends and family members is no
more available and does not constitute the majority in the group of remaining members (allottees).
f) It is asserted that the Defendants have no right, authority, power or jurisdiction to rescind the said
statutory contract, against the wishes of the Plaintiff or for that matter any of the other bonafide
members of the Amit CGHS.

g) Plaintiff and other bonafide members and the Defendant no. 20 Amit CGHS perpetually
continued to be governed by DCS Act, 1973 and now DCS Act 2003, till such time DCS Act is
replaced by an enactment of Indian Parliament. It is further asserted that no other statute can
govern the Defendant no. 20 society simultaneously. The DAO Act is altogether statute enacted with
a different legislative purpose. This cannot be applied to the premises of Amit CGHS.
h) Defendant no. 21 Shri. S.P. Singh and his associates found their support in the Defendant no. 20
society dwindling sharply, because of outright sale of many flats of the Defendant no. 20 society to
strangers on POA through property dealers doing 'real estate' business.
i) That further the Defendant no. 21 and his associates also became unpopular among the residents
and remaining members of the Defendant no. 20 society as his corruption, malpractices and
misappropriation of funds by unlawful means became clear. Shri. S.P. Singh has neither submitted
audited account statement for several years nor has ever given break-up of maintenance charges nor
has presented voucher of expenditure despite repeated demands and has been charging
maintenance annually in an arbitrary manner, through an illegal co-ordination committee etc. The
maintenance charge cannot be levied on the whims and fences of Defendant no. 1 who is
accountable for public money spent by him.
j) Defendant no. 21 in order to continue his real estate business in the Defendant no. 20 society, set
up his own men of confidence through collusion. Consequently, Defendant no. 21 set up a
'coordination committee' from above Defendant no. 2 to 19 to extort money from the bonafide
members and residents by putting them under fear of injury and rumor mongering.
k) That the Defendant no. 22, RCS declared the said coordination committee set up from among
these very Defendant no. 2 to 19 in collusion with the Defendant no. 21, to be unlawful under
Section 89 (1) and Section 93 (1) of DCS Act 2005 after receiving information from the Plaintiff. The
Defendant no. 22 directed the Defendant no. 20 Amit CGHS and its President Defendant no. 21 to
ensure compliance of law and to ensure continuance of essential services and maintenance of the
society specifically asserting that this is the responsibility of a duly elected Managing Committee of
the Defendant no. 20 Society.
l) It is the game plan of Defendant no. 1 to 19 with Defendant no. 21 in order to maintain their hold,
subverting the law and denying the fundamental rights of bonafide members to them. The last
AGBM was held for namesake on 09.03.2003 and elections of MC were 'enacted' on 01.06.2003.
Defendant no. 22, by his acts, omissions and evident patronage to the duo referred herein has
granted time and elections have not been held.
m) After the order dated 05.07.2005 of the Defendant no. 22, RCS, the Defendant no. 2-19 further
conspired with the Defendant no. 21 Sh. S. P. Singh to find ways and means to continue with their
unlawful real estate business in the Defendant no. 20 society. The Defendant no. 2 to 19 in
connivance, with the Defendant no. 21, Sh. S.P. Singh became desperate to bye pass and circumvent
the order dated 05.07.2005 of the Defendant no. 22 with evil intention of garnering unlawful money
from the bonafide members/residents to indulge in unscrupulous sale and purchase of flats in the

society complex.
n) The Defendant no. 2 to 9 with the sinister connivance, of the Defendant no. 21, Sh. S.P. Singh,
posed to have convened an unlawful general body meeting on 26.02.2006 excluding the Plaintiff
and majority of other bonafide members/residents of the Defendant no. 20 Amit CGHS, without any
sanction of law. The Defendant no. 2-19 had no authority, power, jurisdiction or locus standi to call
for a 'General Body Meeting' of the Defendant no. 20 Amit CGHS. The acts of commission and
omission of the Defendant no. 2 to 19 are illegal, malafide, ultra wires and motivated by temptations
and wrongful gain to cause illegal and wrongful loss to the members/ residents/owners of the Amit
CGHS other than these Defendants.
o) That in execution of their malafide plans and conspiracy the Defendant no. 2 to 19 along with
some other docile power of attorney holders declared 'the constitution and formation of unlawful
'Amit Apartment Owners Association' vide resolution dated 26.02.2006, which de facto was
resolved only by them in privacy.
p) That the Defendant no. 1 to 19 acting unlawfully declared to have taken over the administration
and management of the Defendant no. 20, Amit CGHS by taking criminal venture and committing
trespass. The Defendant no. 1 to 19 sent a letter dated 27.02.2006 declaring the evil and unlawful
intention to forcibly hijack Defendant no. 20 Amit CGHS Society to the Defendant no. 21. It is
significant that the Defendant no. 2-19 did not inform Defendant no. 22. Defendant no. 20 being in
collusion and connivance with Defendant no. 1 to 19 kept quiet for a long time and did not act.
q) That the inquiry, resentment and unrest in the minds of bonafide members/residents of the
Defendant no. 20 society grew with every passing day due to this brazen assault on their
constitutional fundamental rights by the outsiders to the Defendant no. 20, Amit CGHS. Under the
pressure of such bonafide members of Defendant no. 20 society, the Defendant no. 20 Shri S.P.
Singh started some eyewash and wrote some letter to Defendant no. 22 RCS regarding the activities
of Defendant no. 1 to 19. The contents of such letter are not known to the Plaintiff and are in the
special knowledge of Defendant no. 21 to 22 only.
r) That the Defendant no. 1 to 19 continuing their criminal and unlawful assaults on the right and
privileges of the Defendant no. 20 Amit CGHS forcibly removed the boards of the society and
security guards, plumber and other staff illegally and unauthorizedly and placed their own board of
'Amit Apartment Owners Association' and a warning about reporting the matter of sale purchase
and renting to them. They conspicuously exhibited their names and addresses on the board of the
two gates of the society complex. Thus, created an evident fear in the minds of residents and even
visitors by such exhibition of force to create an atmosphere for their unlawful collection of
money/construction activities in the complex.
s) That the Defendant no. 1 to 19 have very conspicuously also displayed these boards creating their
mandate that all sale,purchase and renting should be done through them and them alone without
any say of any other person forcing carrying out of real estate business in the Defendant no. 20,
Amit CGHS in connivance and conspiracy with the Defendant no. 21 for their own gains. This

frustrates the very object of DCS Act, 2003 which is a welfare act meant as the major of self help for
individuals in need of residences in the NCT of Delhi.
t) That the Defendant no. 1 to 19 have actually brought construction material in the premises of the
Defendant no. 20 Society and are indulging in construction activity without any sanction or
permission of the General Body of the Defendant no. 20 Society or the approval of Defendant no. 22.
The Defendant no. 1 to 19 are having no authority to carry out any construction in the common areas
of the Defendant no. 20 Society without prior sanction or approval of General Body of Members or
the statutory authorities like MCD, DDA or the like.
u) That the Defendant no. 22 vide its order no. F-47/314/Coop/GHS/NW/691 dated 31.03.2006 has
already declared the formation of Defendant no. 1 association illegal. The Defendant no. 22 further
vide same order has declared all the activities of the Defendant no. 1 to 19 unlawful and illegal.
v) That the Defendant no. 21 Sh. S.P. Singh being in collusion, with the Defendant no. 1 to 19 has
taken no steps to implement the order no. F47/34/Coop/GH/NW/691 dated 31.03.2006 of the
Defendant no. 22. The Defendant no. 21 has taken no steps to remove the unlawful boards and
signboards put up by the Defendant no. 1 to 19. The Defendant no. 21 has not lodged any report with
the police against the Defendant no. 1 to 19 for their illegally vandalizing the property of the
Defendant no. 20 society removing of lawful boards and sign posts and removing duly engaged
security guards and other staff. The Defendant no. 21 has not lodged any report with the police to
stop the illegal construction being indulged in by the Defendant no. 1 to 19.
w) That despite orders dated 05.07.2005 of RCS, Defendant no. 22, and again dated 31.03.2006,
these Defendants are collecting money unauthorizedly and indulging in building activity in
unauthorized manner without any approval of General Body of the Society.
x) As per Section 91 of the DCS Act 2003, none of the POA holders nor Defendant no. 2 to 9 (except
Defendant no. 5 a misguided original allottee) are even 'nominal' members. As per law, they cannot
have any say in the management of this housing complex.
y) That the letter written by the Secretary of Defendant no. 1 association on 27.02.2006, who is
impleaded as Defendant no. 4 herein vide para 2 stated the following:
"The Association has formally declared to have taken over the administration and management of
the Amit Apartment w.e.f 27.02.06.". Hence, such a dictatorial act is anathema to the law.
z) That the Defendant no. 1 to 19 have displayed the list of office-bearers on the Gate no. 1 of the
Amit Apartments, since 27th February 2006, after throwing away the ' board' of the Amit CGHS.
Thus, by way of the present suit, the Plaintiff has sought the following reliefs: relief of declaration,
declaring Defendant No.1 as illegal; relief of injunction against Defendants no.1 to 19 prohibiting
them from interfering in the management, maintenance and administration of Defendant no.20 and
also to direct them to remove their unlawful boards and illegally deputed persons from the Society

complex since 27.02.2006; relief of injunction against Defendant no.1 to 19 restraining them from
extorting money, in the name of maintenance or any other activity in the name of the Society, from
the Plaintiff or any similarly placed member or resident or GPA holder, relief of mandatory
injunction , directing Defendant no.20 and 21 to take all lawful steps to implement the order dated
05.07.2005 and 31.03.2006 of Defendant no.22.
Defendants no. 1 to 19's case (Except Defendant no.3 and 18) as per their Written Statement:
2. The Defendants no.1 to 19 (Except Defendant no.3 and 18) have made the following preliminary
objections in their Written Statement:
a) That the present suit is not maintainable as Delhi Development Authority is necessary party of
this suit. Non-impleadment of DDA to the suit, is thus fatal and suit becomes bad for non-joinder of
necessary parties.
b) That the Plaintiff has not come to this Hon'ble present suit with clean hands and in the garb of
present suit wants to advice his extraneous interests. The Plaintiff has deliberately suppressed the
fact that he had been member of all the Managing Committee from 1979 till 2000 and had also
remained Secretary from May 1999 to January 2000. That the Plaintiff himself is engaged in trading
of flats with few of his associates namely, S.P. Singh, Kuldeep Singh, Inderjit Singh and Bodh Raj
Gupta. Plaintiff was the Chairman of the Committee, which had awarded contract for construction
of 132 flats to the husband of a member of Co-operative Society, namely, Baljit Kaur, Membership
no. 101. That the Defendant no. 1 is a statutory body formed and constituted under the provisions of
Sec. 15 of the DAO Act and its functioning could not be stayed as prayed for by the Plaintiff.
c) That the suit is not maintainable as no compliance has been made with provisions of Sec. 129 of
DCS Act, 2003, whereby a statutory notice has to be served upon the Registrar,well 90 days in
advance to filing of a suit.
d) That the suit is collusive between the Plaintiff and Defendants nos. 20-22 and as such is liable to
be dismissed.
3. The aforesaid Defendants have made the following averments as per reply on merits:
a) Defendant no. 1 is a statutory body and is formed lawfully in accordance with the provisions of
Section 15 of the DAO Act and the Rules and Bye-laws framed thereunder. Defendant nos. 2-19 are
the members of the board of Management duly elected in accordance with the bye-laws. It is averred
that to own on apartment in a housing complex promoted by the Co-op. Group Housing Society, as a
subsequent purchaser thereof, it is not necessary that the purchaser becomes member of the
promoting society. In accordance with the provisions of DAO Act, purchasers of flats in the Housing
Complex comprising of multistoreyed apartments, automatically became members of the statutory
association. It is averred that under the DCS Act, no ownership rights were available even to the
original allottee of flats. Group Housing Society itself being lessee of DDA, could have granted only
the sub-lessee rights in the said land to its members. It is only after coming into force of DAO Act

that the apartments had become fully heritable and transferable and ownership rights had come to
rest not only in allottees of the flats but also in their transferee. It is submitted that after DAO Act
came into force, the promotee Co-operative Societies have been relegated to the status of promoter
only and acquiring of its membership is neither a condition precedent nor relevant in any manner
whatsoever for purpose of transfer of rights and title in the Apartment. It is denied that the
Defendants are not owners of the Apartments purchased by them. It is also submitted that the
Defendant no. 1 being a statutory body, does not require any registration. It is clarified that the
answering Defendant are not claiming under the DCS Act but under the DAO Act which has
conferred full ownership rights after 1987, upon allottee of flats and also upon subsequent
transferee.
b) Defendant no. 21, Sh. S.P. Singh is close associate and business partner of the Plaintiff and the
present suit is collusive between them as against the Defendant no. 1 to 19.
c) The rights and obligations of the answering Defendants arise under the statute of Parliament i.e.
DAO Act and in case of a conflict the provisions of statute would override any terms of the contract.
It is denied that allottee members would be denied say in the management rather allottee and their
transferee all have at par rights in the management of Defendant association.
d) Firstly, contracts are not statutory and secondly, the contracts would certainly give way to statues
as is recently hold by Hon'ble Supreme Court in Prasant Mahata's Case.
e) DCS Act, 2003 is not an Act of Parliament, rather of Legislative Assembly, while DAO Act is
passed by Parliament. It is further denied that the DAO Act does not cover the complex promoted by
the Delhi Co-op Society. Section 2 of the DAO Act, specifically and primarily includes the residential
complexes promoted by Co- op. Society within its holds.
f) All subsequent purchasers of flats in housing complexes promoted by the Co- op Societies acquire
the full ownership rights on purchase of those flats.
g) The Managing Committee of the Co-op. Housing Society had become different and co-ordination
committee of residents was framed to manage the common areas and services in the Housing
complex.
h) No doubt, to manage the housing complex after allotment of flats by it, is the 'duty' of the
promoter society. But it is underlined that it is merely a 'duty' and cannot be claimed as a matter of
right and this 'duty' stands discharged as soon as the Association of Apartment Owners is formed
under Section 15 of the DAO Act and taken over the management and administration of the housing
complex.
i) It is averred that the Plaintiff is also member of the Defendant no. 1 having rights at par with other
members of the Defendant association thus, there cannot be any question of denying the rights to
the Plaintiff. He can always participate in the affairs of the management and administration of the
housing complex being member of the Defendant association.

j) The meeting of all apartment owners was called and conducted to form the statutory association
under Section 15 of the DAO, Act, and the body was successfully formed by the owners of
apartments, with statutory intimation sent to Delhi Development Authority.
k) It is averred that the Defendant no. 1 association has been formed under Section 15 of the DAO
Act in due compliance of the procedure established by the law. It is thus, denied that the Defendant
association is unlawful or has been formed in privacy.
l) The Defendant no. 1 has only taken over the management and administration of the housing
complex and not of the housing society.
m) Defendant no. 20 is no authority to interfere in the functioning of the statutory association. The
acts are within the domain of powers of the Defendant no. 1 and have been performed in discharge
of official duty.
n) In fact, the common expenses determined by the Board of Management of the Defendant
Association create a first charge upon the flat under, DAO Act, and thus, the purchasers have to take
"No Dues" certificate from the Association at the time of purchase. To prevent any fraud in this
regard upon innocent purchasers of flats, the warning board is displayed inconspicuous manner. No
construction as against the law is planned by the Defendant Association.
o) The alleged letter of the RCS does not refer to the statutory body, i.e. the Defendant no. 1. Even
otherwise RCS is no authority under the law, to rule upon the body under the DAO Act. Vice
Chairman, DDA is the authority competent in this regard, being notified under the DAO Act by
Hon'ble Lieutenant Governor.
p) The Association was formed on 26.02.2006, now in the end of April, the Plaintiff cannot plead an
urgency. Notice Under Section 129 is mandatory requirement under the DCS Act, 2003 and there is
no provision in DCS Act for waiver of notice.
Hence, in view of the aforesaid, the aforesaid Defendants have claimed that the suit filed by the
Plaintiff should be dismissed.
Defendant no. 3 to 18's case as per the Written Statement:
4. The Defendants no.3 to 18 have averred the following in their Written Statement:
a) This court lack jurisdiction to try and entertain the present suit. It is averred that jurisdiction of
civil court is specifically barred under Section 132 of DCS Act, 2003. It is averred that as per
allegations contained in the plaint, the dispute as raised by the Plaintiff touches management and
the business of Defendant no. 20 and further since Plaintiff is a member, the suit has been filed
against Defendant nos. 4,20 and 21 who are members as per the allegations in the plaint. The
dispute raised by the Plaintiff in the plaint is fully covered under the dispute referred in Section 70
of DCS Act, 2003.

b) That the suit has neither been valued properly for the purpose of court fee and jurisdiction nor
requisite court fees as per the prayer sought in the plaint has been paid. As many as seven reliefs
have been sought by the Plaintiff in the prayer clause which are separate and distinct from each
other and against different Defendants but suit has been valued for two reliefs only.
c) That there is no cause of action in favour of the Plaintiff and against the replying Defendants to
file the present suit. It is averred that Plaintiff has nowhere disclosed in the entire body of plaint as
to how he is aggrieved person by the formation of Defendant no. 1. At best, as per the averment in
the plaint, it could be Defendant no. 20 who may consider itself as an aggrieved party to challenge
the rights authority and formation of Defendant no. 1. It is averred that admittedly the Plaintiff is
not a member or office bearer of Defendant no. 20. It is further submitted that in view of the written
statement filed by the Defendant no. 20 and 21, the suit of the Plaintiff has become infructuous
ab-initio as Defendant no. 20 and 21 have denied any cause of action to have arisen in favour of the
Plaintiff to file the present suit and to seek the relief.
d) That the present suit is not maintainable as Delhi Development Authority is necessary party to
this suit. Non-impleadment of DDA to the suit is thus, fatal and suit becomes not maintainable for
non-joinder of necessary parties.
e) The present suit also suffers from misjoinder of parties. It is averred that Defendant no. 22 is not
a necessary party for the adjudication of the issues raised in the present plaint. Further, this court
does not have jurisdiction to pass any direction to the Defendant no. 22 in view of the specific bar
u/s 132 of the DCS Act, 2003 and Section 9 of Code of Civil Procedure, 1908 (in short 'CPC').
f) That present suit is also not maintainable on the ground that same has been filed by the Plaintiff
in collusion with Defendant no. 20 and 21. It is averred that Plaintiff himself has been member of
the managing committee, i.e. Defendant no. 20 from 1979 to 2000 and he was secretary from May,
1999 to January, 2000. During this period this Plaintiff, extorted money from the bona fide
purchaser of the flat either in the name of entry fee or on other pretext. After January, 2000 he was
not elected afresh and then he did not handover the records of his tenure to the new constituted
committee. In this respect, search warrant has already been issued by the assistant Registrar u/s 33
(1) of DCS Act against the Plaintiff. The said search warrants yet not being effected as he has filed a
number of cases against the committee, Defendant no. 20. Plaintiff has never contributed towards
common facilities of the society.
g) There are total 132 flats in the complex of society, which were allotted to the members as per the
DCS Act. Out of these 132 members, 88 members have already sold out their flats through GPA etc.
So far as remaining 44 members are concerned only 20 (approx) members reside in the society and
rest of them reside out of the society and they have rented out their respective flats. So far as
members of management committee are concerned except one vice-president, Sh. P.C. Jain and one
lady member, no other member of Defendant no. 2 reside in the society but despite all this, these are
the office bearers who rule the society sitting outside of it through and at the behest of Plaintiff.
Management committee has been collecting maintenance from the residents but same is not spent
on the common facilities were not provided to the residents. Residents were forced to live without

electricity and water days together. Further, numbers of cases were filed against each other by the
members and office bearers of the Defendant no. 20 including the Plaintiff and litigation charges
were always forced upon the residents as same was included in the maintenance. The purchasers
were forced to pay entry fee at the rate of 40,000/- or at any other rate where ever it was settled and
no account of it was ever maintained. It is a recorded fact that audit of account has not been done
since 1996-97.
h) Due to these compelling circumstances, the residents of society formed the association under
DAO Act vide resolution, which was duly signed in a General Meeting by 82 persons, which includes
Sh. P.C. Jain present Vice-President of the Defendant no. 20. This was a voluntary act by the
residents. Out of around 120 occupied flats, 105 (approx) have contributed towards expenses of the
common areas of the society. Even Vice-President of the Defendant no. 20 and Smt. Harjeet Kaur,
member of Defendant no. 20 have paid their monthly expenses towards common expenses to the
Defendant no. 1. It is Defendant no. 1, which is looking after the affairs of the society as per the
desires of the residents. Defendant no. 22 has become ineffective by its own.
i) In view of the resolution dated 26.02.2006, association of Defendant no. 1 was formed and there
after its intimation was duly submitted in the office of competent authority under the said act, which
is vice-chairman of DDA with list of Board of Management. A letter to that effect was duly sent to
the P.S. Parshant Vihar and also to the Defendant no. 20. The Defendant no. 1 has not deprived the
Defendant no. 20 of any of its powers. The Defendant no. 1 is a statutory body duly constituted u/s
15 of the DAO Act. DAO Act is a separate and independent act and has been passed to provide
ownership of an individual apartment in a multistoried building and every person who has got
possession of a flat either by sale or transfer in any manner. Rights, liabilities and check over the
activities of Defendant no. 1 have been provided under the said Act. Defendant no. 1 is acting strictly
as per the bylaws of the Defendant no. 1 as given in the Act itself. As per the said Act, every occupant
of a flat is a member of Defendant no. 1 and is liable to contribute towards common expenses. Even
an occupant cannot exempt himself from liability for contribution by waiver of use of the common
areas and facilities.
j) The Plaintiff himself is engaged in trading of flats with few of his associates namely, S.P. Singh,
D-21, Gurpal Singh, Virender Pal Singh, Kuldeep Singh, Inderjit Singh and Badh Raj Gupta. Plaintiff
was the chairman of the Committee, which had awarded contract for construction of 132 flats to
husband of a member of Co-op. Society namely Baljit Kaur, Membership No. 101. In civil writ
petition bearing no. 6361/2003, flats of office bearers of Defendant no. 20 including that of Plaintiff
have been placed under status quo order in order to secure the recovery of amount, which may be
found due to these members as these members have played a fraud by making an embezzlement and
have not got audited their account since 1997.
k) That the suit is not maintainable as no compliance has been made of provisions of Sec. 129 of the
DCS Act, 2003, whereby a statutory notice has to be served upon the Registrar well 90 days in
advance before filing a suit.

l) That the suit is collusive between the Plaintiff and Defendants nos. 20-22 and as such is liable to
be dismissed.
m) Further, the pleadings averred by the aforesaid Defendants were almost similar to what was
pleaded by Defendants no.1 to 19.
Defendant no. 20's case as per the Written Statement:
5. The Defendant no.20 averred the following in its preliminary objections:
a) That the present suit is not maintainable on account of misjoinder of parties, since Defendant no.
20 to 21 have been impleaded without any cause or reason. Impleadment of Defendants 20 and 21 in
the present suit by the Plaintiff is the outburst of the Plaintiff against the said Defendants and to
settle his personal score with Sh. Sukhinder Singh and S.P Singh.
b) That the present suit does not disclose any cause of action against the answering Defendants as
the relief of declaration sought by the Plaintiff, to declare, Defendant no. 1 Association illegal,
malafide, ultravires and outside the provisions of DCS Act, 2003 has already been granted by
Defendant no. 22,RCS. The same was granted vide no. F.47/314/Coop./GHS/NW, dated 31.03.2006
and 05.07.2005, on the prayers of the answering Defendant no. 20-Society and 21, in the capacity of
the president of Defendant no. 20, when they approached the office of the Registrar of Cooperative
Societies, after the illegal actions of Defendant no. 2 to 19 of illegally usurping the powers of the
Defendant no. 20 and illegally claiming to be the successor of Defendant no. 20. In fact, the
Defendant no. 20 is the parental statutory body and since its constitution is looking after the
management, administration and housing complex of the Defendant no. 20 under the supervision
and control of Defendant no. 22 and nobody can claim to be its successor and if any body is doing
so, the same is illegal and not sustainable in law.
c) As far as the allegation of the Plaintiff that the answering Defendants have not taken any lawful
steps against the Defendant no. 1 to 19 is concerned, it is averred that immediately upon the illegal
actions of Defendant no. 1 to 19 on 04.03.2006 of illegally usurping the powers of Defendant no. 20
and illegally claiming to be the successor of Defendant no. 20 society, the Defendants 20 and 21 in
the capacity of president of Defendant 20 and other Executive Members of the Defendant no. 20
lodged a complaint dated 04.03.2006 with the SHO, Prashant Vihar Police Station on 05.03.2006
for taking action against the Defendants 1 to 19 about the illegal activities of the Defendant 1 to 19.
On 06.03.2006 the answering Defendants sent a letter to Defendant nos. 4,6 and 7 with regard to
unauthorized collection of dues from members/residents. The answering Defendants have also
circulated the letters dated 31.03.2006 and 05.07.2005 to the residents of Amit CGHS (Defendant
no. 20- Society) about the declaration of Defendant no. 1 Association as illegal. That the Answering
Defendants have also sent notice dated 12.04.2006 to Defendant no. 2 to 19 (copy annexed as
Annexure D-20/4) for restraining them from carrying out illegal activities in the Defendant no.
20-Society premises and in the said notice it has been specifically mentioned to the Defendants 2 to
19 to remit back the funds collected by the Defendants 2 to 19 under the banner of alleged
Defendant no. 1 association to Defendant no. 20-Society, otherwise appropriate civil and cirminal

proceedings will be initiated against Defendants no. 2 to 19.
d) The answering Defendants have no collusion with the Defendants no. 1 to 19 The circulars and
statements issued by the Defendants no. 2 to 19 , under the banner of alleged Defendant no. 1
Association are their self-serving statements and circulars, which they are doing illegally and the
answering Defendants have already taken legal steps through the statutory authorities against them
and if the said statutory authorities fail to take action against the Defendants 1 to 19 then the
answering Defendants will approach the courts for taking lawful actions against the Defendants 1 to
19.
6. The Defendant has made the following averements in its reply on merits:
a) It is averred that submissions of the Plaintiff that the said alleged Amit Apartments Owners
'Association was formed on 26.02.2006 are not in the knowledge of the answering Defendants as
the answering Defendants came to know about the formation of alleged Amit Apartments Owners'
Association only on 04.03.2006 when suddenly on that morning Defendant no. 2 to 19 attacked the
premises of Defendant no. 20 and threatened the employees of Defendant no. 20 to return back to
their homes as they are no longer employees of the Defendant no. 20 and then issued self serving
statements and circular.
b) It is admitted to the extent that at the time of granting possession, the Defendant no. 20, Amit
CGHS executed a statutory contract with Plaintiff and its members under the provisions of DCS Act
1972 and Rules 1973 and bye-laws of the Society thereunder. It is admitted that the said contract is
still subsisting and valid. It is again admitted that the privity of this statutory contract cannot be
violated by any third party least by the Defendant no. 1 to 19 or anyone else. It is admitted that the
Defendant no. 1 to 19 by their wanton and unlawful actions have violated the privity of this contract.
This is not permissible under the law. It is denied that the Defendant no. 21 in concert with
Defendant no. 1 to 19 are making planned attempt to keep the original members deprived of any say
and vote in the management of this society in utter violation of Section 93 of DCS Act 2003.
c) A 'Coordination Committee' was formed by Defendant no. 20 amongst the members/residents of

the Amit CGHS in order to assist the Defendant no. 20 only and explore the possibility of applying
the society's funds in the development of society at appropriate places, which the Plaintiff has taken
otherwise.
d) Defendant no. 22, by letter dated 05.07.2005 made it amply clear that the Managing Committee
of the Defendant no. 20 is the only competent authority to collect the maintenance charges from the
members/residents of the Defendant no. 20 and none else, which is the only parental body
competent and no other association can be its successor. The said instructions has been reiterated
by the Defendant no. 22 vide its letter dated 31.03.2006 declaring the Defendant 1 association as
illegal association on the request of Defendant no. 20 and Defendant no. 21 in the capacity of
president of Defendant 20 only.

e) Defendant 2 to 19 illegally agreed to form an illegal Association, which they named it as Amit
Apartments Owners' Association (Defendant no. 1 herein) purported to be formed under Section 15
of the DAO Act. The illegal object was to take over the management and administration of the
Society in utter violation of the DCS Act/Rules without the knowledge of the Defendants 20 and 21.
On 04.03.2006, the Defendant no. 2 to 19 implemented their said conspiracy and ulterior designs
and in doing so they forcibly removed the boards of the Managing Committee of the Society, forcibly
removed the Guards/employees of the society who made complaints to the Police and they were
reinstated but they are not allowed to work by the Defendant no. 2 to 19 till date and by illegal
means Defendants 2 to 19 took over the charge of the common-facilities of the society under the
alleged banner of Defendant no. 1. The Defendant no. 2 to 19 placed their own boards in and around
the society and started conveying wrong messages to the members/residents of the society that the
Managing committee is not in existence and from now onwards they are the only custodians and
successors of the Managing Committee of the Society. The Defendant 2 to 19 illegally started
collecting maintenance charges from the Members/residents @ 1050/- per quarter for the period
January-February 2006 and in advance April-June 2006. The Defendant 20 and Defendant no. 21
in the capacity of president of Defendant-Society took the lawful actions against the Defendant no. 2
to 19.
f) Defendants no. 2 to 19 conspired to find ways and means to continue with their unlawful real
estate business in the Defendant 20 and they bypassed the order dated 05.07.2005 of the Defendant
22-ROC.
g) Defendant no. 1 to 19 are utilizing the funds illegally collected by them and doing illegal
construction activity without any approval.
h) Defendant no. 21 has been impleaded in personal capacity by the Plaintiff and in the personal
capacity, the status of the Defendant no. 21 is only an ordinary member of Defendant no. 20-Society,
which status Plaintiff himself is enjoying in the Defendant no. 20-Society. No-where in the
corresponding para of the Plaint the Plaintiff has stated as to how cause of action has arisen against
Defendant no. 20.
Defendant no. 22 case as per the Written Statement:
7. The Defendant no.22 has taken the following preliminary objections in its Written Statement:-
a) That the present suit is not maintainable as the Plaintiff has approached to this Hon'ble Court
with unclean hands by suppressing material facts, hence the suit is liable to be dismissed.
b) That the present suit is bad for misjoinder and nonjoinder of necessary parties hence the present
suit is liable to be dismissed outrightly.
c) That no notice under Section 129 of DCS Act & Rules 2003 has been served upon the answering
Defendant which is a statutory requirement before filing the present suit.

d) That there exists no cause of action against the answering Defendants hence the suit is liable to be
dismissed.
e) That this Hon'ble Court has no jurisdiction to entertain the present suit, hence the suit is liable to
be dismissed on this ground only.
8. Defendant no.22 has made the following averments in its reply on merits:
a) The answering Defendant have full right authority or jurisdiction to ensure the compliance of
provisions of DCS Act Rules and directives for the Group Housing Society registered with him. This
is to ensure that the purpose of co-operative movement is not defeated.
b) The society registered with RCS office is allotted land by the landowning agency at subsidized
rates under cooperatives movement,which is allotted to its members for construction of house. In
case of CGHS the flats built by the society are allotted to its members, through draw of lots by the
DDA and thereafter the affairs of the society are managed by the Managing Committee of the
society, elected as per the provisions of DCS Act &Rules., The provisions of any other Act cannot be
applied for the CGHS for enforcing the provisions of DCS Act and Rules.
c) It is admitted that the answering Defendant did not reveive any letter from Defendant no. 1 to 19.
However, the Defendant no. 20 approached the Defendant no. 22 vide their letter dated 31.03.2006
complaining about the hijacking of the society by the Defendant no. 1 and encroaching their rights
and duties vested in them under Provisions of Section of 89 and 93 i.e. the development and
maintenance of the society. The answering Defendant was informed vide letter dated 05.07.2005
about constitution of a Coordination Committee by Managing Committee of the society to look after
the maintenance of the essential services.
d) It is averred that letter written to Defendant no. 22 by Defendant no. 20 were duly attended
without any loss of time and requisite replies were sent to the society.
e) The remaining Defendant has already appointed Returning Officer to hold election to the
Managing Committee of the Society, as the provisions of the Act & Rules 2003. Further, members of
the society may bring new person in place of Defendant no. 21, if in their opinion, he is not the best
suited for the post. On the basis of letter of the Defendant no. 20, the answering Defendant has
already issued letter dated 31.03.2006 reflecting therein that only Management Committee is solely
responsible for maintenance of essential services under Section 89 and 93 of DCS Act & Rules 2003.
f) It is also pertinent to mention that as per section 132 of DCS Act and Rules 1973, no civil court
have any jurisdiction in respect of affairs of the Cooperative Societies Registered under DCS Act. The
remedies are available under DCS Act and Rules itself. The RCS is fully empowered to pass order
after the hearing party under various provision of the act as such this Hon'ble Court has no
jurisdiction to entertain the present suit.
Replications filed by the plaintiff:

9. The Plaintiff made the following averments in its replication:
a) The Defendants' No. 1 to 19 have formed "Amit Apartments Owners' Association" under the
non-existent and repealed statute, DAO Act, 1986. It is averred that it is well known to the
Defendants' no. 1 to 19 that the rules, bye-laws etc. under DAO Act were never notified/published.
Although the amended rules were finalized by the Ministry of Urban Development in Consultation
with the DDA and the Government of NCT of Delhi in 1998, their notification was withheld.
b) That even if it is assumed only for the sake of arguments without admitting that the DAO Act is in
force, the acts of the Defendants' No. 1 to 19 are illegal, malafide and unlawful under the very
provisions of the DAO Act. It is well known to the Defendants' no. 1 to 19 that the DAO Act being
relied by them before this Hon'ble Court, was not meant to govern the flats of Co-operative Group
Housing Societies, in view of the specific proviso to the Section 5 of DAO Act.
c) The provisions of the DCS Act, 2003 (As amended by Act 1 of 2005) override the provisions of any
other statute. Section 140 of the DCS Act, 2003 (As amended by Act 1 to 2005) is quoted below for
ready reference: -
"Section 140. Act to override other laws. The provisions of this Act shall have the effect
notwithstanding anything inconsistent therewith contained in any other law..."
d) That Section 91 of the DCS Act 2003 has incorporated special provisions for the power of attorney
holders of the flats in co-operative societies, specifically inserted through amendment Act (Act 1 of
2005) in Delhi Co-operative Societies Act 2003.
e) Defendants' no. 1 to 19 due to their malafide and ulterior motives have not availed of the available
opportunity extended by Section 91 of the DCS ,Act 2003. The Defendant no. 1 to 19 have the evil
intention of robbing the Government of the revenue to be paid by the Defendants' no. 1 to 19 to avail
the benefits of the Section 91 of the DCS Act, 2003.
f) The Defendants' no. 1 to 19 have not even complied with any of the provisions of the repealed
DAO Act by which they intend to vouchsafe their entire stand before this court. That none of the
Defendants' No. 1 to 19 have duly executed and registered the 'Deed of Apartment' which was
mandatory under the very provisions of the said Act .
g) That none of the Defendants' no. 1 to 19 are having any 'separate deeds of sub- lease, in respect of
such land in favour of each apartment owner , required under Section 8 of DAO Act.
h) That so much so that the Defendants' no. 1 to 19 have not complied with the mandatory
provisions of the DAO Act, while purporting to have formed an Association under Section 15 of the
said act.
i) That Hon'ble High Court of Delhi vide its judgment dated 31.03.2006 in WP(C) No. 4949/2006 in
Mr. V.K. Goyal Vs. Ordinance Cooperative G/H Society has held that transferee of a member of a

cooperative group housing society notwithstanding his freehold status has no locus standi under
DCS Act. In view of the said law declared by the Hon'ble High Court of Delhi, the Defendants' no. 1
to 19 do not have any locus standi in the affairs, management and administration of Amit CGHS
Society or its members till such time the Defendants' No. 1 to 19 acquire the membership under the
provisions of Section 91 DCS Act, 2003. The Defendants' no. 1 to 19 are attempting to forcibly
trespass into the office of the Managing Committee of the Amit CGHS.
j) The Defendants' No. 1 to 19 and their counsel Sh. V. P Rana are guilty of perjury for making false
statements before this Hon'ble Court through false averments and pleading false law. The solemn
duty of the said counsel was to advise the Defendants' no. 1 to 19 before submitting the said false
written statement to this Hon'ble Court, the fact that the Government repealed the DAO Act in the
year 2000 itself.
10. On 28.01.2008, the following issues were framed:
1. Whether this court has jurisdiction to entertain the present suit in view of section 132 r/w Section
70 of Delhi Cooperative Societies Act, 2003 and in view of Section 15 of Delhi Apartment Ownership
Act, 1986? OPD
2. Whether the Plaintiff has not properly valued the present suit and has not paid the correct court
fees?
3. Whether the present suit is not maintainable due to lack of cause of action in favour of Plaintiff?
OPD
4. Whether the present suit is not maintainable due to misjoinder of necessary parties? OPD
5. Whether the present suit is not maintainable due to non compliance of the provision of section
129 of Delhi Cooperative Societies Act, 2003? OPD
6. Whether the Plaintiff is entitled to the reliefs claimed in plaint? OPP
11. It is pertinent to state in here that no one had appeared on behalf of the Defendants on
29.11.2011, and suit was proceeded ex-parte against the Defendants on 29.11.2011. On 20.05.2013,
the Plaintiff had submitted that Defendants no. 6, 9 & 10 had expired and that he does not wish to
proceed against the LRs of the deceased Defendants. Further, on the request of Ld. Counsel for the
Plaintiff, Defendant no. 22 was also deleted from the array of parties.
12. The Plaintiff himself stepped into the witness box as PW-1 and placed his affidavit in lieu of
evidence as Ex. PW-1/A and placed on record the following documents as given below:
SR. No. Exhibits Nature of Documents

1. Ex. PW-1/1 Plaint (page 1 to 20) and Application
under Order XXXIX Rules 1 and 2
2. Mark PW-1/1 Letter from Defendant no. 20 and 21

dated 01.04.2006 and other documents

filed by the Plaintiff on 18.04.2006 from
pages 01 to 08.
3. Mark PW-1/2 (colly) Additional documents filed by the
Plaintiff on 22.05.2006 and also letters
dated 28.01.2008, 02.04.2008 and the
photographs.
4. Ex. PW-1/2 'Brief' by the Plaintiff dated 16.02.2013
13. I have heard the Plaintiff and perused the record carefully.
14. My findings on the aforesaid issues are as under:
Issue no.1, 2, 3, 4 and 5 are being dealt with under common discussion, for the purpose of
convenience.
1. Whether this court has jurisdiction to entertain the present suit in view of Section 132 r/w Section
70 of Delhi Cooperative Societies Act, 2003 and in view of Section 15 of Delhi Apartment Ownership
Act, 1986? OPD
2. Whether the Plaintiff has not properly valued the present suit and has not paid the correct court
fees?
3. Whether the present suit is not maintainable due to lack of cause of action in favour of Plaintiff?
OPD
4. Whether the present suit is not maintainable due to misjoinder of necessary parties? OPD
5. Whether the present suit is not maintainable due to non compliance of the provision of section
129 of Dellhi Cooperative Societies Act, 2003? OPD The onus to prove the aforesaid issues was on
the Defendants but no evidence has been led by the Defendants and thus, the Defendants have failed
to discharge the onus.
Hence, issue no.1,2,3,4 and 5 are decided in favour of the Plaintiff and against the Defendants.
Whether the Plaintiff is entitled to the reliefs claimed in plaint? OPP The onus to prove the aforesaid
issue is on the Plaintiff. It is settled law that even if the suit has been proceeded ex-parte and the
testimony of the plaintiff's witnesses has gone unrebutted yet the Plaintiff has to stand on its own
legs and prove its own case. The main issue which is to be decided is whether the Association formed
under Section 15 of DAO Act has been legally formed and if not, then will the Managing Committee
of Amit CGHS continue to govern the management and administration of the said housing complex.
Let us now consider each contention of the Plaintiff and appreciate whether it has been able to prove
its case or not.

Whether DAO Act is in force or not?
16. The Plaintiff had raised the contention that the Defendants' No. 1 to 19 have formed "Amit
Apartments Owners' Association" under repealed statute, "Delhi Apartment Ownership Act, 1986."
It is averred by the Plaintiff that it is known to the Defendants' no. 1 to 19 that the rules, bye-laws
etc. under Delhi Apartment Ownership Act, 1986 were never notified/published. The Hon'ble Delhi
High Court in in Sagar Apartments Flat Owners Society (Regd.) and Ors. v. Sequoia Construction
Pvt. Ltd. and Ors 1993 Raj LR 446: 1993 26 DRJ 71 held:
"(15) In Hamdard Davakhana Vs. Union of India, the difference between conditional
legislation and delegated legislation was explained. It was held that when the
legislation is complete in itself and the legislature has itself made the law and the only
question left to the delegate is to apply the law to an area of to determine the time
and manner of carrying it into effect, it is conditional legislation. In the case of the
Delhi Apartment ownership Act, the legislation was complete in itself. Only the date
of its being brought into effect remained to be notified. This date was also notified in
1988. Therefore, nothing remained to be done. Non-appointment of the competent
authority under the Act does not make it a conditional legislation.
(16) Sardar Inder Singh Vs. The State of Rajasthan, , The State of Bombay Vs. Narottamdas
Jethabhai, Air 1951 Bombay 69 and Emperor Vs. Benoari Lal Sarma, Air 1945 P.C. 48 enunciate the
same principle. The test for a conditional legislation is whether the legislation was full and complete
when it left the legislative chamber. What remains to be done is not any law making function, but
only to execute the legislative will by determining the date and time of enforcement of the Statute, lf:
at all the Delhi Apartment Ownership Act was a conditional legislation because the date of its
enforcement remained to be notified, the condition stands satisfied with the enforcement of the
Statute.
(17) The Delhi Apartment Ownership, Act came into existence in the year 1986. However, this was
enforced in the year 1988. Passing of the legislation and enforcing the same clearly shows that the
Act is intended to be live wire rather than a dead letter. Merely because the competent authority has
not been notified so far, does not render the statute otiose. The Act defines common areas and
facilities and as such spells out various things in a multi-storeyed building complex which are
covered under the sweep of the definition of common areas and facilities. The effect of non notifying
the competent authority can at best be that the Deeds of Apartment can not be executed. This does
not mean that by non execution of the deeds of apartment, rights and interests of the apartment
owners/allotters are obliterated. The non execution of the deeds of apartments may mean that the
exact percentage of the interest of the individual apartment owners in relation to the building
complex is not specified. But it can not surely mean that their rights and interest evaporate in thin
air."
Hence, in view of the aforesaid, it is clear that the Hon'ble Delhi High Court has held
the DAO Act is in force and the rights of the parties created under the aforesaid Act
have to be protected. Thus, the contention of the Plaintiff in this regard cannot be

sustained.
Whether the DAO Act is applicable to the present case?
17. The Plaintiff has averred that the DAO Act does not apply to Amit CGHS. In order to appreciate
the contention, it is important to refer to the provisions of DAO Act. Section 2 of the DAO Act
provides that the provisions thereof shall apply to every apartment in a multi-storeyed building
constructed for residential or commercial purposes by any group housing society or any other
person and whether before or after the commencement of said Act, and on a free hold land or a lease
hold land, if the lease for such land is for a period of thirty years or more. The Act applies to all
buildings which have four or more apartments. As per the plaintiff himself, Amit CGHS has more
than four apartments and the documents show the lease of land underneath the same to be
perpetual. Thus, the DAO Act applies to the said building. The purpose of the said Act was to protect
the rights of the buyers of the flat and it has been succinctly explained by the Hon'ble Delhi High
Court in Sagar Apartments Flat Owners Vs. Sequoia Construction Pvt. Ltd. 51 (supra):
"4. The aforesaid Act was legislated by the Legislature as it was found that existing
laws were not sufficient to protect the rights of the buyers of flats/officers etc. in the
multistory building where on account of existence of different owners and occupier
certain area and facilities were bound to be common which gave rise to disputes
between the promoters and the apartment owner and between the apartment owner
inter se, which were incapable of being solved by the existing laws. In the aforesaid
circumstances, the aforesaid law came into the existence. The effect of the aforesaid
Act was only to provide ownership of an individual apartment in a multistory
building and of the undivided interest in the common areas and facilities
appurtenant to such apartment and to make such apartment and interest heritable
and transferable and for matters connected therewith or incidental therewith. Said
Act is having overriding effect over terms of the agreement between the
builder/promoter and apartment owner but only in respect of those terms which are
in conflict with the provisions of the Act."
Whether DCS Act or DAO Act has an overriding effect?
18. An argument was raised by the Plaintiff was that the DAO Act was not applicable to co-operative
grouping housing societies and thus, Amit CGHS formed under DSC Act has to be regulated only by
DCS Act. He relied on proviso to Section 5 of DAO Act, the same reads as:
"Section 5. Apartment to be heritable and transferable.- Subject to the provisions of

section 6, each apartment, together with the undivided interest in the common areas
and facilities appurtenant to such apartment, shall, for all purposes constitute as a
heritable and transferable immovable property within the meaning of any law for the
time being in force, and accordingly, an apartment owner may transfer his apartment
and the percentage of undivided interest in the common areas and facilities
appurtenant to such apartment by way of sale, mortgage, lease, gift , exchange or in

any other manner whatsoever in the same manner, to the same extent and subject to
the same rights, privileges obligations, liabilities, investigations, legal proceedings,
remedy and to penalty forfeiture or punishment as any other immovable property or
make a bequest of three same under the law applicable to the transfer and succession
of immovable property;
Provided that where the allotment, sale, or other transfer of any apartment has been made by any
group housing co-operative society in favor of any member thereof, the transferability of such
apartment and all other matters shall be regulated by the law applicable to such group housing
co-operative society."
19. A bare perusal of the proviso to the section reveals that the exception of the applicability of DAO
Act is carved out only vis-à-vis transferability of the apartment. The phrase "and all other matters"
are to be interpreted ejusdem generis. In the present case, the mooted question is whether the
association formed under Section 15 of DAO Act is illegally formed or not and has nothing to do with
transferability of any apartment. Hence, proviso to Section 5 does not apply to the present case.
20. Section 24 of the DAO Act, which specifically makes it an overriding Act, stipulates that "The
provisions of the Delhi Apartment Ownership Act would have effect notwithstanding anything
inconsistent therewith in any other law for the time being in force or in any contract, undertaking or
other instruments and all apartment owners, tenants of owners, employees of owners and tenants,
or any other person, who may, in any manner, use the property or any part thereof to which the said
Act applied, would be subject to the provisions of the said Act and the bye- laws and the rules made
thereunder"
Hence, in view of the aforesaid, the DAO Act would have primacy and the DCS Act would cease to
apply. Thus, this contention of the Plaintiff is nto sustainable.
Whether any contract can supersede the applicability of DAO Act?
21. The Plaintiff has also pleaded that at the time of granting possession, the Defendant no. 20, Amit
CGHS executed a statutory contract with the Plaintiff and its other 131 members under the provision
of DCS Act which is still subsisting and valid. Hence, he contended that the the privity of this
statutory contract cannot be violated by any third party, least by the Defendant no. 1 to 19 or anyone
else. However, this contention of the Plaintiff is also not acceptable. The Hon'ble Delhi High Court
in M/S Nehru Place Hotels Ltd. V. M/S. Bhushan Steel & Strips Ltd. 2005 SCC OnLine Del 532 : ILR
(2005) 1 Del 650 held:
"26. Whatever may be the terms of agreement, the field is admittedly covered by the statutory
provisions. Indisputably, the apartment in question is covered by the provisions of the Act.
Therefore, statutory provisions contained in that Act, wherever applicable, shall override the
contractual terms stipulated in the Agreement signed between the parties. It is trite law that
'contracting out' is not permissible in a manner which would offend and breach the statutory
provisions. To put it simply, there cannot be a clause in the Agreement between the parties which

infringes statutory provision and such a clause would clearly be void even if the parties had agreed
to the specific terms...
32. As already seen above, as per Section 24 of the Act provisions of the Act are binding on all
apartment owners, tenants etc. notwithstanding anything inconsistent therewith contained in any
other law for the time being in force or in any contract, undertaking or other instrument etc."
Thus, even if there was a contract between the Plaintiff and the Defendant no.20, Amit CGHS, the
same ceases to subsist, as Section 24 of DAO has an overriding effect.
Whether non-registration of Deed of Apartment Act can withhold the applicability of the DAO Act?
22. Another argument raised by the Plaintiff was that the Defendants have neither executed nor
registered the Deed of Apartment under DAO Act and they do not even have the "separate deeds of
sub-lease", thus they are entitled to the benefits of DAO Act. I am unable to agree with this
contention of the Plaintiff also. The Hon'ble Delhi High Court in Sagar Apartments Flat Owners Vs.
Sequoia Construction Pvt. Ltd. 51 (1993) DLT 308, 1993 (26) DRJ 71, 1993 RLR 446 held:
"(25) The main reason advanced on behalf of defendant No. 1 for non- application of the provisions
of the Delhi Apartment ownership Act is the non-execution of the Deeds of Apartment. In view of
the above discussion and particularly for the following reasons.
1.Under the Act the Deeds of Apartment are required to be executed by the promoters of the
building;
2.Plaintiffs are in no way responsible for their non execution;
3.Plaintiffs have fully performed their obligation under the Act in as much as they have paid full
consideration for their respective apartments;
4.The Act is meant to confer certain rights on the apartment owners and is a legislation for their
benefits;
5.Equity demands that even if the Act does not apply, the property be preserved in the status quo
condition, till the Act applies. (25) I am of the considered view that the plaintiffs ought not be
denied the advantage of the beneficial provisions of the Act The Act is a legislation meant primarily
for the protection of the flat buyers from the unscrupulous practices of the builders. The Court
should endeavor to uphold this legislative intent. 2. Rights of the plaintiffs' under the license
agreements :"
The court had also held that : "...This does not mean that by non execution of the deeds of
apartment, rights and interests of the apartment owners/allottersareobliterated..."

Hence, in view of the aforesaid case-law, it is clear that the Defendants cannot be denied the
privileges offered by DAO Act, only because the Deed of Apartments have not been registered and
executed and the same analogy applies also to the argument raised vis-à-vis separate deed of sub-
lease.
Whether Power of Attorney(POA) holders of allottee members can form a legal association under
Section 15 DAO Act?
23. The Plaintiff has argued that apart from Defendant No. 5, namely, Sh. R.K. Keswani, all the
other 17 are not owners but power of attorney (POA) holders of those allottee members who have
sold their flats. Hence, these 17 Defendants have only "possessory rights" of these flat and are not
even 'nominal' members of the Amit CGHS, as per provisions of Section 91 of DCS Act. Section 4 of
the DAO Act provides that every person to whom any apartment is allotted, sold or otherwise
transferred by the promoter shall be entitled to the exclusive ownership and possession of the
apartment so allotted, sold or otherwise transferred to him. In the present case, the Plaintiff is
admittedly the promoter and the Defendants no.2 to 19 are the persons to whom the allotment, sale
or transfer of the flats have been made and who are the owners thereof. Hence, by virtue of Section 4
of DAO Act, which vests ownership rights in favour of such allottees/transferees of apartments/such
flats, the Defendants no.2 to 19 are owners, to whom sale have been made by way of power of
attorney. Section 15 of DAO Act provides that the administration and management of the affairs of
the apartment would be governed by the association of owners, which in the present case is the
Association formed under DAO Act. The intention of the said Act was clear that the best watchdog to
protect the interest is the association of the owners under the said Act and their interest is to be
honoured.
24. In fact, the Hon'ble Delhi High Court O.S Bajpai v. The Administrator (Lt. Governor of Delhi)
WP (C) No. 1959 of 2007 decided on May 28, 2010, while dealing with a public interest litigation
filed regarding enforcement of the Delhi Apartment Ownership Act,1986 had passed the following
directions regarding the Apartment Owners of the association:-
"The competent authority shall send specific notice to all multi-storeyed apartments informing the
owners of apartments that it is their right to form owner's association in accordance with the
bye-laws as per the Explanation B of Chapter 1 of the said bye-laws under Section 15(2) of the Act.
The officials from the office of the competent authority shall be deputed to visit all these
multi-storeyed buildings, who would ensure formation of owners' association. They would be
authorized to call for the meeting of the owners and supervise the formation of the association, so as
to ensure smooth formation of the association. This exercise in respect of multi-storeyed buildings
shall be completed within six months and the existing maintenance companies shall transfer the
management of the multi-storeyed building to such associations.
c) Transfer of Management, Books of Account, etc. Once the apartment owners' association is
formed, it shall take over the management from the promoter/builder. All the books of account,
bank account and other documents shall be handed over by the promoter/builder to the apartment
owners' association so formed and all functions relating to the management of the building,

common area, collection of maintenance charges, expenditure to be incurred on maintenance,

employment of manpower, legal compliance, etc. will be performed by the association."
This judgment itself shows that the apartment owners association is to take control over the
management and affairs of the apartments. Thus, applying the DAO Act in its true spirit to the facts
of the present case, the Association formed under the DAO Act is legally formed and will take over
the administration and management over the affairs of the apartments and the Managing
Committee formed under DCS Act will have to take a backseat.
Hence, in the present case, the Plaintiff has failed in proving the present issue and cannot be said to
be entitled to any relief.
In view of the above discussion, present issue is decided in favour of Defendants and against the
Plaintiff.
25. Relief:
In view of the observations made above, suit of the plaintiff is dismissed. The court is also of the
opinion that considering the present facts and circumstances of the case, there is no order as to cost.
Decree sheet be prepared accordingly.
Application under Order XXXIX Rule 2A stands dismissed, since the Plaintiff failed to bring any
evidence to show as to how the order of the court dated 21.04.2006 was violated.
All the other pending applications, if any, are disposed off as not pressed. File be consigned to
record room after due compliance.
Pronounced in the open Court on 18.07.2016.
(Sonam Singh ) Civil Judge-05, Central District Tis Hazari Courts,Delhi Present judgment is
consists of 46 pages and each page is signed by me.

Sh. D.R. Roy Vs Amit Apartments Owners ... On 18 July, 2016

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Sh. D.R. Roy vs Amit Apartments Owners ...

Delhi District Court

Suit No. 524/14

2. Smt. Preeti Gupta, President W/o Sh. S.K. Gupta

3. Sh. Naresh Kathpalia, Vice President, R/o Flat no. 82

4. Sh. Amrit Karmakar, Secretary,

5. Sh. R.K. Keswani, Asst. Secretary,

6. Late Sh. R.K. Jain (Treasurer)

7. Sh. Harender Jindal, Asstt. Treasurer,

8. Smt. Umesh Yadav W/o Sh. Rohtas Yadav, Member,

9. Smt. Kanta Rani (Member) W/o Sh. Gauverdhan

10. Sh. O.P. Arya (Member)

11. Sh. Raman Bhasin, Member,

12. Sh. Sanjay Gupta, Member,

13. Smt. Rani Vij, Member W/o Sh. Rakesh Vij,

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16. Sh. H.S. Dureja, Member,

17. Sh. S.K. Bansal, Member,

18. Smt. Sukanya, Member Wife of Sh. Rakesh Bhardwaj,

20 Amit Co-operative Group Housing Society

21. Sh. S.P. Singh (In Personal Capacity)

Date of Institution: 18.04.2006 Date of Final Decision: 18.07.2016

Plaintiff's version as per the plaint

2. The Plaintiff has averred the following facts in his plaint:

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Defendant no. 3 to 18's case as per the Written Statement:

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Defendant no. 20's case as per the Written Statement:

5. The Defendant no.20 averred the following in its preliminary objections:

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proceedings will be initiated against Defendants no. 2 to 19.

c) A 'Coordination Committee' was formed by Defendant no. 20 amongst the members/residents of

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Defendant no. 22 case as per the Written Statement:

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Replications filed by the plaintiff:

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9. The Plaintiff made the following averments in its replication:

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10. On 28.01.2008, the following issues were framed:

6. Whether the Plaintiff is entitled to the reliefs claimed in plaint? OPP

SR. No. Exhibits Nature of Documents

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dated 01.04.2006 and other documents

14. My findings on the aforesaid issues are as under:

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Whether DAO Act is in force or not?

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Whether the DAO Act is applicable to the present case?

Whether DCS Act or DAO Act has an overriding effect?

"Section 5. Apartment to be heritable and transferable.- Subject to the provisions of

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Whether any contract can supersede the applicability of DAO Act?

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2.Plaintiffs are in no way responsible for their non execution;