Nitin Dev And Another vs Registrar Firm Societies And Chits And Others

Vipin Sanghi, CJ

Issue notice.

Mr. Miglani appears for the intervener, who had intervened in the writ-proceedings, he accepts notice.

We have heard learned counsels and proceed to dispose of the present appeal.

The present appeal is directed against the order dated 31.08.2022 passed by the learned Single Judge in WPMS No.2059 of 2022. By the impugned order the learned Single Judge has dismissed the writ-petition preferred by the appellants with cost of Rs.5,000/-.

The appellants, are aggrieved by the guidelines dated 04.08.2022 issued by respondent no.2 i.e. Deputy Registrar, Firms, Societies and Chits, New Tehri, District Tehri Garhwal whereby he has sought to declare as to who all would be entitled to vote in the elections to be held for the constitution of the Managing Committee of the Deecon Residents Welfare Society.

The said association is a registered society under the Societies Registration Act, 1860 as amended by the Uttarakhand Act No.4 of 2019.

The dispute arose since the appellants were held to be not entitled to participate in the election process by virtue of the impugned order dated 04.08.2022 passed by respondent no.2 on the ground that they were not the owners of the flats in the Deecon Valley.

The objectives of the society as contained in the by-laws of the societies are as follows:-

The aforesaid objectives clearly show that it is the actual residents of the colony, who are concerned with the achievements of the aforesaid objectives. The residents of the colony may or may not be the owners of the flats. In case, the owners are residents themselves of their flats, then, obviously, they would have a stake in the achievement of the aforesaid objectives and they would be entitled to participate in the process of election of the Managing Committee. However, it is possible that the registered owner of the flat may not be a resident in the colony and he or she may have leased or licensed his or her flat to a third-party, who may be residing in the flat. In such a situation, to say that only the registered owner would have the right to vote would defeat the purpose of the constitution of the society, which is to promote and protect the interests of the residents. In case the owner of the registered flat is not a resident, he would not have any stake in ensuring the achievements of the objectives of the society.

The situation that the residents, whose interests are sought to be protected by the society by having the objectives as aforesaid, would not have the saying in the management of the society, would be paradoxical.

Therefore, the clear intendment of the formation of the society with the aforesaid objectives was to have participation of the residents in the process of election of the Managing Committee whose duty could be to achieve the aforesaid stated objectives.

We, therefore, direct that in case the registered flat owners are themselves residents of the colony, then the registered flat owner would have right to participate in and vote in the election process to elect the Managing Committee of the society.

In case, the registered flat owner is not residing in his flat/ her flat and the same has been either leased or licensed out to a third-party, then the resident of the flat would have the right to participate in the aforesaid election process.

Mr.  Miglani  has  pointed  out  that  the appellants are claiming right to vote in the forthcoming elections despite the fact that the registered flat owners, who are the parents and wife of the two appellants respectively, are also residents in their respective flats.

In our view, the flat owners/ residents are entitled to equal representation and it cannot be that in respect of a single flat there are more than one representatives casting their vote in the election process. This cannot be permitted, because it would completely destroy the democratic character of the society, as one flat owner / resident may get several persons enrolled as members of the society and, by use of money power, would be able to take over the control of the society by having multiple votes.

We, therefore, make it clear that there would be only one vote per flat-whether it is that of the owner – in case the owner is residing in the flat, or of the resident — in case the owner is not residing in the flat and the resident is a lessee or a licensee of the registered owner.

With the aforesaid directions, we dispose of the present appeal.

The cost imposed upon the appellants stands waived.