“‘Registration Under KAO Act Prevails’: Karnataka High Court : Co-Operative Society Registration Impermissible for Residential Complex, Stating ‘KOFA Has No Application’”
Safiya Malik
The Karnataka High Court has restrained the Registrar of Co-operative Societies from registering a proposed society intended to manage the Parkside Retirement Homes Brigade Orchards Apartment Complex. The Court, presided over by Justice K.S. Hemalekha, held that as the project comprises purely residential units, the Karnataka Apartment Ownership Act, 1972 (KAO Act) governs such premises. It further recorded that registration of a co-operative society under the Karnataka Co-operative Societies Act, 1959 is impermissible in such circumstances. The Court directed that management and maintenance of the project shall remain with the existing association registered under the KAO Act.
The petitioners, residents of the Parkside Retirement Homes Brigade Orchards Apartment Complex, sought to restrain respondent No.3, the proposed Brigade Orchards Parkside Retirement Housing Co-operative Society Ltd., from registering the society and its bye-laws before the Registrar of Co-operative Societies. They further prayed for a mandamus directing the Registrar to consider and uphold their objections filed against the society's application. The petitioners contended that respondent No.4, an owners' association, was already registered under the KAO Act pursuant to a deed of declaration dated 15 February 2021.
The petitioners, represented by Smt. Beena P.K., submitted that under Section 2 of the KAO Act, the law applies to properties used or proposed to be used for residential purposes and that the said project consisted exclusively of residential units. They argued that under precedents including Shantharam Prabhu and Others v. K. Dayanand Rai and Others and Arunkumar R. and Others v. State of Karnataka and Others, properties solely residential in nature must be governed by the KAO Act. Relying on these decisions, they contended that a co-operative society could not be formed under the Karnataka Co-operative Societies Act, 1959 (Act, 1959) for such properties.
Respondent No.3, represented by Sri Sameer Sharma, contested the petitioners’ claim, submitting that the formation of a co-operative society is permissible under the Act, 1959 and is a constitutionally protected right. It was argued that as of the date of the deed of declaration, only 90 out of 150 unit owners had signed the document, which according to them, was insufficient to meet the statutory requirement under Section 2 of the KAO Act. The respondents asserted that the decisions cited by the petitioners were rendered in the context of the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 (KOFA) and could not be applied to the present scenario.
Petitioners countered this by highlighting further case law, including Praveen Prakash and Others v. State of Karnataka and Others and VDB Celadon Apartment Owners Association v. Mr. Praveen Prakash, to demonstrate that the issue was squarely covered under existing jurisprudence favoring their stance.
The Court examined the statutory framework of the KAO Act and referenced established judicial precedents. It recorded that Section 2 of the KAO Act stipulates applicability only to properties used or intended to be used for residential purposes. The Court noted that “the project referred above is for the residential units” and that the petitioners, along with other apartment owners, had executed a deed of declaration subjecting themselves to the KAO Act.
Citing Section 5 of the KAO Act, the Court recorded that “each apartment owner shall execute a Declaration that he submits his apartment to the provisions of this Act”. The Court further observed that “the deed of declaration which is registered by the petitioners is an act to say that the KAO Act applies.”
Referring to the decision in Shantharam Prabhu, the Court reiterated: “Once an apartment is subjected to KAOA, KOFA would cease to apply and it is only the KAOA, Declaration, Deed of Apartment and bye-laws which would be applicable.” It also noted that the requirement of all apartment owners signing the deed was not essential, as clarified by the Coordinate Bench in the same precedent.
The Court further referred to VDB Celadon Apartment Owners Association, where the Division Bench recorded that managing and maintaining residential apartments fell outside the ambit of Section 3 of the Karnataka Societies Registration Act, 1960 and was instead governed by the KAO Act.
Justice K.S. Hemalekha observed: “In the instant case, the project does not include any commercial unit and as such, the KOFA has no application and since the KOFA has no application, the registration under the Act, 1959, is not permissible.”
The Court concluded that “respondent No.4 is the association of the owners of the flats situated in an apartment for which a specific enactment, viz., the KAO Act has been enacted and therefore, the registration of the association has to be made under the KAO Act.”
In its final order, the Court partly allowed the writ petition and issued the following directions:
“Respondent No.2 is hereby restrained from registering the proposed respondent No.3-society and proposed bylaws to manage and maintain the ‘Parkside Retirement Homes Brigade Orchards Apartment Complex’.”
The Court further directed that “respondent No.3 is directed to cooperate with the petitioners and the members of the registered association-respondent No.4 to manage and maintain the project.”
Advocates Representing the Parties
For the Petitioners: Smt. Beena P.K., Advocate
For the Respondents: Sri Yogesh D. Naik, Additional Government Advocate, Sri Sameer Sharma, Advocate; Smt. Nimmy K.S., Advocate , Sri P. Chinnappa and Sri Harsh Gupta, Advocates
Case Title: Mrs Saraswathi Prakash and Others v. State of Karnataka and Others
Neutral Citation: 2025:KHC:9743
Case Number: WP No. 3779 of 2023 (CS-RES)
Bench: Justice K.S. Hemalekha
[Read/Download order]
