Smt. Archana Singh Dhakre vs The State Of Madhya Pradesh

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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR

BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No. 2316 of 2023
CNR No.: MPHC030029102023
SMT. ARCHANA SINGH DHAKRE
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri N K Gupta - Senior Advocate with Shri Yashasvi Pratap Singh
Rathore - Advocate and Shri Anoop Nigam - Advocate for the petitioner.
Shri Nitin Mangal - Advocate for the respondent No.5.
Ms Ekta Vyas - Panel Lawyer for the respondent/State.
Shri Navnidhi Parharya - Advocate for the respondent No.7.
Reserved on : 30.09.2026
Pronounced on :22.10.2026
ORDER
The present petition under Articles 226 and 227 of the Constitution of
India has been filed by the petitioner, Smt. Archana Singh Dhakre, calling in
question the order dated 03.01.2023 passed by the Sub-Divisional Officer
(Revenue), Jhansi Road, Gwalior, in Case No. 224/B-121/2021-22, along
with the consequential orders dated 06.01.2023 and 11.01.2023, whereby
proceedings for determining the society to be entrusted with the management
and maintenance of Windsor Hills Township, Gwalior, were undertaken and
the result of the election was declared.
The principal controversy involved in the present petition concerns the
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constitution and registration of an association comprising the apartment

owners of Windsor Hills Township and the procedure to be followed for
determining the nature and registration of such association in accordance
with the applicable statutory provisions.
The facts, as pleaded in the petition, are that M/s Assotech C.P.
Infrastructure Private Limited, the promoter of Windsor Hills Township,
submitted a Prakoshtha Ghoshna under the provisions of the Madhya
Pradesh Prakoshtha Swamitva Adhiniyam, 2000, which was registered on
25.10.2010. The township comprises residential flats, houses and other
premises, and, according to the petitioner, there are approximately 711
apartment owners in the township. It is the petitioner's case that different
groups of residents subsequently constituted separate societies for the
management and maintenance of the township. Windsor Welfare Society
was registered on 15.10.2015 under the Madhya Pradesh Society
Registrikaran Adhiniyam, 1973. Another society, namely, Windsor Colony
Maintenance Cooperative Society Maryadit, Gwalior, was registered on
31.05.2016 under the Madhya Pradesh Co-operative Societies Act, 1960. A
third society, namely, Windsor Hills Family Utthan Evam Sanskritik Samiti,
was registered on 22.11.2018 under the Madhya Pradesh Society
Registrikaran Adhiniyam, 1973. According to the petitioner, none of these
societies represented all the apartment owners of Windsor Hills Township.
The dispute regarding the management and maintenance of the township was
also brought before the Real Estate Regulatory Authority (RERA). By order
dated 01.05.2018, the Authority issued directions concerning the resolution
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of the dispute relating to the management of the project and the competing

claims of the societies. Thereafter, the Sub-Divisional Officer (Revenue),
Gwalior, passed an order dated 02.09.2022, taking note of the fact that the
existing societies did not comprise all the apartment owners of Windsor Hills
Township. The authority accordingly directed the Assistant Registrar, Firms
and Societies, Gwalior, to take steps for registration of a society comprising
all the apartment owners and thereafter to proceed with the election of its
executive body. The said order was affirmed in revision by the Additional
Collector, Gwalior, vide order dated 07.10.2022. According to the petitioner,
notwithstanding the aforesaid orders, the Sub-Divisional Officer
subsequently proceeded to prescribe a voting process for deciding the society
to be entrusted with the management and maintenance of the township. The
impugned order dated 03.01.2023 was followed by a supplementary order
dated 06.01.2023 and a consequential order dated 11.01.2023, pursuant to
which the election-related proceedings were undertaken. The petitioner has,
therefore, approached this Court seeking quashment of the aforesaid orders
and a direction to the competent authority to proceed further in accordance
with the earlier order dated 02.09.2022 which was subsequently confirmed
by the Additional Collector vide its order dated 07.10.2022.
Learned counsel for the petitioner submits that the impugned order
dated 03.01.2023, together with the consequential orders dated 06.01.2023
and 11.01.2023, is contrary to law. It is contended that the Sub-Divisional
Officer had already considered the competing claims of the societies and, by
order dated 02.09.2022, directed that a society comprising all the apartment
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owners of Windsor Hills Township be registered. The said order was

subsequently affirmed by the Additional Collector in revision on 07.10.2022.
The Sub-Divisional Officer could not have reviewed or departed from the
earlier directions without authority of law. It is further contended that the
procedure adopted did not ensure the constitution of an association
comprising all the apartment owners in accordance with the governing
statutory framework.
Learned counsel further submits that the Sub-Divisional Officer could
not have departed from the aforesaid directions and proceeded to conduct
voting for selecting one of the existing societies without first ensuring the
constitution and registration of an association in accordance with the
applicable statutory provisions. Such a course, according to the petitioner,
amounts to an impermissible review of the earlier order and defeats the
object of ensuring representation of all the apartment owners.
It is further argued that Rule 2(G) of the Madhya Pradesh Prakoshtha
Swamitva Rules, 2019 contemplates an association comprising all apartment
owners. The petitioner submits that, when the township consists of
approximately 711 apartment owners, the process of deciding the
management of the township through competing societies having only a
limited number of members cannot substitute the statutory requirement of
forming and registering an association in accordance with law.
Learned counsel has also drawn the attention of this Court to Section
18(2) of the Madhya Pradesh Prakoshtha Swamitva Adhiniyam, 2000, which
provides for registration of the association in the form determined in
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accordance with the preference of the majority of apartment owners. It is,

therefore, submitted that the competent authority must first ascertain the
preference of the apartment owners regarding the form in which the
association is to function and thereafter register it in accordance with the
aforesaid provision. On these grounds, learned counsel prays that the
impugned orders be appropriately modified and necessary directions be
issued to the competent authority.
Per contra, learned counsel appearing for the State, while referring to
the reply filed on behalf of respondents No. 1 to 3, submits that the
impugned order dated 03.01.2023 was passed in furtherance of the directions
issued by RERA on 01.05.2018 in relation to the dispute concerning the
management and maintenance of Windsor Hills Township.
It is submitted that several societies were claiming the right to manage
the township and the proceedings before the Sub-Divisional Officer were
undertaken to resolve the competing claims. According to the State, the
voting process was conducted to ascertain the preference of the residents,
and respondent No. 5, Windsor Colony Maintenance Cooperative Society
Maryadit, secured the majority of votes. Consequently, directions were
issued for handing over the management and maintenance of the project to
the said society.
Learned counsel for the State further submits that the objections raised
in the present petitioner are of no consequence, inasmuch as the principal
order passed by the Real Estate Regulatory Authority (RERA) has attained
finality, the same having not been challenged by the petitioner. It is
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contended that, in the absence of any challenge to the said order, neither its

correctness nor any consequential action or effect flowing therefrom can be
assailed indirectly in the present writ petition, which, in substance, seeks to
achieve precisely that result. On these grounds, learned counsel for the State
prays for dismissal of the present petition.
Learned counsel appearing for respondent No. 5, Windsor Colony
Maintenance Cooperative Society Maryadit, Gwalior, has opposed the
petition and submitted that the society had already conducted the election of
its managing committee on 13.01.2023 and the management and lawful
charge of the society had been handed over to its duly elected President, Dr.
Ruchi Gupta, by the erstwhile Administrator, Shri O.P. Pathak.
It is further submitted that the election dated 11.01.2023 referred to by
the petitioner was distinct from the election of respondent No. 5 conducted
on 13.01.2023. According to respondent No. 5, the official election record
dated 20.01.2023 records the election of its managing committee and the
elected office-bearers. It is, therefore, contended that the petitioner's
objections concerning the election dated 11.01.2023 ought not to be treated
as invalidating the separate election of respondent No. 5.
Learned counsel further submits that the petitioner has an alternative
statutory remedy of appeal under Rule 11 of the Madhya Pradesh Prakoshtha
Swamitva Rules, 2019 and the writ petition is liable to be considered in
view of the availability of such remedy. It is also argued that the order dated
02.09.2022, affirmed on 07.10.2022, was passed in the course of continuing
proceedings and was not a final adjudication of every issue arising in relation
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to the management of the township. The subsequent proceedings, according

to respondent No. 5, were undertaken to implement the directions issued by
RERA.
On the question of notice and participation in the voting process,
learned counsel submits that information regarding the voting was displayed
at the clubhouse of the township and was also circulated among the residents.
It is pointed out that, out of approximately 711 apartment owners, 394
participated in the voting process. Respondent No. 5, therefore, disputes the
allegation that the residents were not adequately informed.
Learned counsel further submits that the Real Estate Regulatory
Authority had not issued any direction for registration of a new society. On
the contrary, the Authority had directed that a decision be taken regarding the
entrustment of charge to either of the two existing societies functioning in
Windsor Hills. Pursuant thereto, respondent No. 2, after conducting the
election process, has taken the impugned decision. It is further submitted that
the said decision does not adversely affect the rights or interests of the
petitioner in any manner. In view of the aforesaid submissions, learned
counsel prays that the petition, being devoid of merit, deserves to be
dismissed.
Heard learned counsel for the parties and perused the material
available on record.
The controversy raised in the present petition primarily concerns the
appropriate statutory procedure for constitution and registration of an
association of apartment owners for the management and maintenance of
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Windsor Hills Township. The record indicates that multiple societies have

been constituted by different groups of residents, whereas the township
comprises a substantially larger number of apartment owners. The competing
claims of these societies have resulted in disputes concerning the
management of the township and the procedure for selecting the body to
which such management is to be entrusted.
The order dated 02.09.2022 passed by the Sub-Divisional Officer,
which was affirmed in revision on 07.10.2022, contemplated the registration
of a society comprising all the apartment owners, followed by the election of
its executive body. However, the subsequent proceedings culminated in the
impugned order dated 03.01.2023 and the consequential orders dated
06.01.2023 and 11.01.2023, which have given rise to the present
controversy.
This Court is of the considered opinion that the issue cannot be
resolved merely by determining which of the existing societies has secured a
greater number of votes. The first and foremost requirement is to ensure that
the association of apartment owners is constituted and registered in
accordance with the statutory framework applicable to the township. The
process of identifying the body that would undertake management and
maintenance must conform to the requirements of the governing enactment.
In this regard, Section 18(2) of the Madhya Pradesh Prakoshtha
Swamitva Adhiniyam, 2000 assumes significance. The said provision reads
as follows:
"18. Fromation of association. (1) xxxx
(2) The association shall be registered with the Competent
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Authority. The Competent Authority shall ascertain whether the
majority of the apartment owners desires the association to
function as a co-operative society or as a limited company. The
Competent Authority shall register the association accordingly,
either as a co-operative society under the Madhya Pradesh Co-
operative Societies Act, 1960 (No. 17 of 1961) or as a limited
company under the Companies Act.”

A plain reading of the aforesaid provision makes it evident that the
competent authority is required to ascertain whether the majority of the
apartment owners desires the association to function as a cooperative society
or as a limited company. The provision thus contemplates determination of
the preferred legal form of the association by ascertaining the wishes of the
majority of apartment owners, followed by registration of the association
accordingly.
Consequently, the process of registration cannot be bypassed merely
because one of the existing societies has secured a majority of votes in a
particular voting exercise. The statutory requirement is to ascertain the
preference of the apartment owners regarding the form in which the
association is to function and thereafter undertake registration in accordance
with law. The existence of previously registered societies and the elections
conducted by them cannot, by themselves, dispense with this statutory
requirement.
At the same time, this Court does not consider it necessary to enter
into a final adjudication of all the rival claims concerning the elections
already conducted or the respective rights of the existing societies to
undertake management and maintenance of the township. Such issues must
be considered by the competent authority in accordance with the applicable
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statutory provisions and the directions governing the matter.

In the facts and circumstances of the case, the ends of justice would be
served by modifying the impugned order dated 03.01.2023, contained in
Annexure P/1, and directing the competent authority to first undertake the
process contemplated under Section 18(2) of the Madhya Pradesh
Prakoshtha Swamitva Adhiniyam, 2000.
Accordingly, the writ petition is disposed of with the following
directions:-
(i) The Sub-Divisional Officer (Revenue), Gwalior, being the
competent authority, is directed to first ascertain the preference of the
majority of the apartment owners of Windsor Hills Township as to whether
the association is to function as a cooperative society or as a limited
company, in accordance with Section 18(2) of the Madhya Pradesh
Prakoshtha Swamitva Adhiniyam, 2000.
(ii) Upon ascertaining such preference, the competent authority shall
take appropriate steps for registration of the association in the form so
determined, either as a cooperative society under the Madhya Pradesh Co-
operative Societies Act, 1960, or as a limited company under the Companies
Act, as applicable. The exercise shall be undertaken in accordance with the
governing statutory provisions and after affording due opportunity to the
concerned stakeholders, wherever required by law.
(iii) The competent authority shall thereafter proceed in accordance
with law in relation to the constitution of the association and the election of
its executive body. The existing societies and their respective claims shall be
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considered subject to compliance with the aforesaid statutory requirements.

It is made clear that this Court has not expressed any final opinion on
the merits of the rival claims of the existing societies, and all consequential
steps shall be governed by the applicable law.
The impugned order dated 03.01.2023, contained in Annexure P/1, is
modified to the extent indicated hereinabove. The consequential orders dated
06.01.2023 and 11.01.2023 are hereby quashed.
With the aforesaid modification and directions, the petition stands
disposed of.
(MILIND RAMESH PHADKE)
JUDGE
ojha

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