South City Apartment Owners' ... vs Siddhartha Mitra & Ors
2021 Latest Caselaw 1662 Cal

  23 (D/L)
 04-03-2021
debajyoti/kole
                                MAT 711 of 2020
                                     With
                             IA No. CAN 1 of 2020
                 South City Apartment Owners' Association & Ors.
                                     Vs.
                           Siddhartha Mitra & Ors.

                      Mr.   Bikash Ranjan Bhattacharyya, Sr. Adv.
                      Mr.   Sabyasachi Chaudhury,
                      Mr.   Rajarshi Dutta,
                      Mr.   Bimalendu Das,
                      Mr.   Shomrik Das
                                               ... For the appellants.

                      Mr. Probal Kumar Mukherjee, Sr. Adv.
                      Mr. Arnab Mukherjee
                             ... For the respondents/writ petitioners.

Mr. Partha Pratim Ray, Mr. Ayan Banerjee, Ms. Debasree Dhamali, ... for the State.

1. The dispute essentially appears to be between some of the apartment owners and the Apartment Owners' Association at the South City Housing Complex on the southern fringes of Calcutta.

2. The Association was contemplating constitution of a Board of Managers as required by the relevant laws. The essential dispute appears to be that some of the apartment owners wanted the voting to be by show of hands, whereas the Association contends that as per law the voting is to be through secret balloting, whether physical or virtual.

3. Some of the apartment owners approached the learned Single Judge in the writ jurisdiction. The Learned Judge held that the voting will be by show of hands. The appellants have approached us being aggrieved

by the impugned judgment and order passed on October 8, 2020.

4. We have heard Mr. Bikash Ranjan Bhattacharyya, learned Senior Counsel appearing for the appellants and Mr. Probal Mukherjee, appearing for the writ petitioners/respondents.

5. It appears from the judgment that the Learned Judge has relied on Rule 9(a) of Clause 4 of The West Bengal Apartment Ownership Bye-laws, 1974. Prima facie, it appears that the said clause may not be applicable. However, we do not make any further observation since we wish to hear out the appeal and the stay application on an early date.

6. Parties say that exchange of affidavits is not necessary. Only a point of law is involved.

7. Post the matter under the same heading but for final disposal three weeks hence. In the meantime, there will be a stay of operation of the order under appeal. It is also made clear that no election will be held by the appellants and the present Board of Managers shall continue to take care of the day to day affairs of the Association without taking any policy decision, until further orders.

( Thottathil B. Radhakrishnan, C.J. )

( Arijit Banerjee, J. )