Private Association Of Apartment Owners Not 'State' U/Article 12: Karnataka HC Dismisses Writ Plea Against 'Facilitation Charge' For Tenancy

The Karnataka High Court recently refused to entertain a writ petition moved by certain flat owners questioning the amendment of bye laws of the Apartment Owners' Association which paved way for levy of 'Facilitation Charge' from owners who had let out their apartments on lease, licence, tenancy or otherwise.

A single judge bench of Justice R Nataraj dismissed the petition filed by questioning the action of the Prestige St Johns Wood Apartment Owners Association which is constituted under the Karnataka Apartment Ownership Act, 1972.

The petitioners argued that this levy of facilitation charges is arbitrary and against the principles of law, the amendment of the bye-law of to insert necessary 'Facilitation Charge' are all illegal.

The bench noted that respondent No.1 (Association) is a private association of owners of apartments and therefore, does not qualify to be a 'State' under Article 12 of the Constitution of India. It added,

“It is also not performing any public duty and hence its activities are not amenable to be scrutinised by this Court in a proceeding for issuance of a prerogative writ.”

Court said if the petitioners have any grievance against the respondent No.1 in amending the bye-laws or in collecting the facilitation charge or if the respondent No.1 has introduced a charge, which is not permitted under the Act of 1972, the only remedy available to the petitioners is to challenge the amendment of the bye-laws of the respondent No.1 before the competent Civil Court.

Accordingly, it dismissed the petition.

Case Title: M J MAthew & others And Prestige St. Johns Wood Apartment Owners Association & ANR

Case No: WP 2881/2016

Citation: 2023 LiveLaw (Kar) 317

Date of Order: 07-08-2023

Appearance: Advocate Shreya S Kumar for Advocate Siji Malayil for Petitioners.

Advocate Priya Kale for Advocate Rayappa T H for R1.

HCGP Rashmi Patel for R2.

Click Here To Read/Download Order