Mily George v. Deputy Collector (Competent Authority - Kerala Apartment Ownership Act, 1983) & Distress Management, Kakkanad, Ernakulam, and Others

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 22[ND] DAY OF JANUARY 2024 / 2ND MAGHA, 1945 ``` ``` WP(C) NO. 1184 OF 2024 ``` ## `PETITIONER:` ``` MILY GEORGE, AGED 47 YEARS, SECRETARY, KENT MAHAL OWNERS ASSOCIATION, D/O GEORGE KURIAN, RESIDING AT TOWER 6, 11-A2, KENT MAHAL APARTMENT, PUTHENCRUZ, BRAHMAPURAM P O, ERNAKULAM, PIN – 682303. ``` ``` BY ADVS. SMRUTHI SASIDHARAN V.P.BRIJESH ASWATHY AMBY ``` ## `RESPONDENTS:` ``` 1DEPUTY COLLECTOR, (COMPETENT AUTHORITY - KERALA APARTMENT OWNERSHIP ACT, 1983 & DISTRESS MANAGEMENT), COLLECTORATE, KAKKANAD, ERNAKULAM, PIN-682 030. 2KEVIN KOSHY VARGHESE, AGED 38 YEARS, RESIDING AT TOWER 1,11-A4, KENT MAHAL APARTMENT, PUTHENCRUZ, BRAHMAPURAM P O, ERNAKULAM., PIN – 682303. 3BRANCH MANAGER, STATE BANK OF INDIA, SMART CITY BRANCH, KAKKANAD, HEERA CYBER VIEWS, INFOPARK EDACHIRA ROAD, THENGODE P O, EDACHIRA, ERNAKULAM., PIN – 682030. 4THAHASILDAR, KUNNATHUNADU THALUK OFFICE, MINI CIVIL STATION, PERUMBAVOOR, ERNAKULAM., PIN – 683543. 5STATION HOUSE OFFICER, INFOPARK POLICE STATION, ``` ``` WP(C) NO. 1184 OF 2024 ``` **==> picture [22 x 9] intentionally omitted <==** ``` KAKKANAD, ERNAKULAM., PIN – 682030. ``` ``` BY ADVS. ANIL PRASAD SABU P.JOSEPH(K/1406/1998) C.N.SREEKUMAR(K/716/1996) MANJU PAUL(K/362/1998) SRI.SUNIL KUMAR KURIAKOSE, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 1184 OF 2024 ``` ``` -3- ``` ## `JUDGMENT` ``` The petitioner calls into question Ext.P1 order issued by the Deputy Collector in his capacity as the competent Authority under the Kerala Apartment Ownership Act, 1983 (‘Act’, for short). ``` ``` 2.Smt.Smruthi Sasidharan - learned counsel for the petitioner, pointed out that, as per Ext.P1, the Authorities have directed her client to obtain the consent of the 2[nd] respondent for submitting bills for the day-to-day affairs of the‘KentMahalOwnersAssociation’ (‘Association’, for short) – of which she is the Secretary; and to present the same before the Bank. ``` ``` 3.Smt.Smruthi Sasidharan asserted that the aforesaid order has been issued by the Deputy Collector, being misdirected by the Order of Injunction issued by the competent Civil Court, ``` ``` WP(C) NO. 1184 OF 2024 ``` ``` -4- ``` ``` namely Ext.P2 – through which, the defendants therein, which includes the Association and its office bearers, have been ordered to use its funds only for day-to-day affairs and have stopped them from taking any policy decision; but that this does not mean, in any manner, that even the bills and payments in such fashion will require the consent of the 2[nd] respondent, who is the plaintiff in the Suit. She added that, in any event, the said order has been modified through Ext.P3 and thus prayed that Ext.P1 be set aside. ``` ``` 4.The learned counsel for respondent No.2 conceded that his client is not an office bearer ``` ``` of the Association; but argued that Ext.P1 is irreproachable because, through Ext.P2, a competent Civil Court has made it clear that the funds of the Association can be used only for its day-to-day affairs. He submitted that this ``` ``` WP(C) NO. 1184 OF 2024 ``` ``` -5- ``` ``` can be ensured only if such bills are placed before his client for approval and then presented before the Bank. ``` ``` 5.The learned Government Pleader – ``` ``` Sri.Sunil Kumar Kuriakose, defended Ext.P1, ``` ``` saying that the competent Authority only intended that the parties ensure the management ``` ``` of the Association without any unnecessary ``` ``` impediment. He submitted that, since the 2[nd] ``` ``` respondent has obtained Ext.P2 order, the ``` ``` competent Authority thought it better to direct ``` ``` the Association to obtain his consent with ``` ``` respect to every bill, so that a controversy as to whether it is raised for day-to-day affairs ``` ``` can be allayed. ``` ``` 6.I am afraid that I cannot find favour with the afore submissions of the learned ``` ``` Government Pleader because, when the Deputy ``` ``` Collector, in his capacity as the Competent ``` ## `WP(C) NO. 1184 OF 2024` ``` -6- ``` ``` Authority, issued Ext.P1, it ought to have been for valid reasons and as per the Statutory Scheme. Pertinently, in Ext.P2, the competent Civil Court never directed the Association or the other defendants therein, to obtain the concurrence of the 2[nd] respondent, before the bills for day-to-day affairs are presented for being honoured by the 3[rd] respondent - Bank. This is an additional condition that has been incorporated by the Deputy Collector, but without assigning any reason. ``` ``` 7.When the competent Civil Court has ``` ``` already permitted the Association and its office bearers to deal with the funds of the former for day-to-day affairs, but inhibiting from taking any policy decision, one fails to understand how the Deputy Collector could have issued Ext.P1 without assigning any reason. If he obtains legal competence to have issued the said order, ``` ``` WP(C) NO. 1184 OF 2024 ``` ``` -7- ``` ``` then it ought to have been reflected therein; and cannot now be explained by him through counter pleadings, going by the well recognized doctrine postulated by the Hon’ble Supreme Court ``` ``` inMohinder Singh Gill v. Chief Election Commissioner [(1978) 1 SCC 405] ``` ``` In the afore perspective, I order this writ ``` ``` petition and set aside Ext.P1; however, leaving liberty to the Deputy Collector to take necessary action in terms of law; only after ``` ``` hearing the petitioner and the party respondent. ``` ``` I also clarify that my observations above ``` ``` are only intended for the purpose of this judgment; and that, if the Deputy Collector is ``` ``` to find any reason to intervene in his capacity ``` ``` as the competent Authority under the ‘Act’, then ``` ``` he shall be entitled to do so, however, following due procedure and the manner as stated therein. ``` ``` WP(C) NO. 1184 OF 2024 ``` **==> picture [22 x 9] intentionally omitted <==** ``` I am also persuaded as afore because, the pleadings indicate that Ext.P2 order had subsequently been modified, through Ext.P3 order, by the competent Civil Court; but this does not appear to have engaged the mind of the Deputy Collector, while Ext.P1 was issued. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` akv ``` ``` WP(C) NO. 1184 OF 2024 ``` ``` -9- ``` ## `APPENDIX OF WP(C) 1184/2024` ## `PETITIONER EXHIBITS` ``` EXHIBIT -P1A TRUE COPY OF THE ORDER (ORDER NO: DCEKM 11395/2023 D4) OF THE DEPUTY COLLECTOR (COMPETENT AUTHORITY - KERALA APARTMENT OWNERSHIP ACT, 1983 & DISTRESS MANAGEMENT) DATED 22/11/2023 EXHIBIT -P2A TRUE COPY OF THE ORDER OF THE HON'BLE 1ST ADDL. MUNSIFF COURT, ERNAKULAM IN IA 2/2023 IN OS 1017/2023 DATED 26/10/2023 EXHIBIT -P3A TRUE COPY OF THE ORDER OF THE HON'BLE 1ST ADDL. MUNSIFF COURT, ERNAKULAM IN IA 2/2023 IN OS 1017/2023 DATED 25/11/2023 EXHIBIT -P4A TRUE COPY OF THE PETITIONER'S APPLICATION THE 1ST RESPONDENT WITH RECEIPT DATED 30/11/2023 ```