Calcutta High Court (Appellete Side)
Ranjan Basu And Others vs The State Of West Bengal And Others on 6 May, 2022
SL. 1.
May 6, 2022.
MNS.
WPA No. 7426 of 2022
Ranjan Basu and others
Vs.
The State of West Bengal and others
Mr. Bikash Ranjan Bhattacharya,
Mr. Kishore Dutta,
Mr. Srijib Chakraborty,
Mr. Bimalendu Das,
Mr. Aditya Mondal
...for the petitioners.
Mr. Anirban Ray,
Mr. Raja Saha,
Mr. Soumitra Mukherjee,
Mr. Debasish Ghosh
...for the State.
Mr. Rohit Das,
Ms. Kishwar Rahman,
Mr. Indrajit Das,
Mr. Preetam Majumdar
...for the respondent no. 3.
At the outset, learned counsel for the
respondent no. 3 takes a preliminary objection as
regards the writ petition not being maintainable at the
instance of petitioner no. 10, which is the Rosedale
Garden Apartment Owners Association, purportedly
represented by its Vice-President of the Board of
Managers, in view of the said Board itself having
been superseded prior to filling of the writ petition.
The learned Senior Advocate appearing for
the petitioners submits that the petitioners do not
have any objection to the name of the petitioner
no.10 being expunged and/or transposed as a
respondent.
Insofar as the Administrator who is presently
running the affairs of the Board is concerned, the
said Administrator was appointed by respondent no.
2, the Competent Authority under the West Bengal
Apartment Ownership Act, 1972 (hereinafter referred
to as 'the 1972 Act'), which is a party to the writ
petition as such, there is sufficient representation, it
is contended, insofar as the Association is
concerned.
However, the learned Senior Advocate, as an
alternative, seeks leave to take out an application for
impleadment of the Administrator as a representative
of the Association.
The learned Senior Advocate for the petitioner
argues, in view of a previous order dated September
29, 2020 passed by the Competent Authority (CA)
itself, that the impugned order dated April 20, 2022
on the self-same issue is barred by the principle of
res judicata.
It is next contended by the petitioners that
although the relevant bye-law, being Bye-law 5(3) of
the Association, contemplating election of the
Managers of the Board by Secret Ballot in such
manner as may be decided at the said meeting, there
is no bar in such franchise being exercised
electronically.
It is contended that the bye-laws themselves
indicate that the Apartment complex was earmarked
for the residents of Non-Resident Indians (NRIs)
who, till date, comprise of about 76 per cent of the
occupants of the same. Out 614 only 145 occupants
are Indian residents.
In support of such contention, the learned
Senior Advocate for the petitioners relies on
paragraphs 5, 49, 50 and the Annexure at Page 63 of
the writ petition.
Thirdly, it is contended that Section 16B(2) of
the 1972 Act, resorted to by the CA to declare the
election of the present Board of Managers void, does
not empower the CA to do so. By placing Section
16B(2), it is argued that if the CA is of the opinion
that the function of the Manager or the Board of
Managers is detrimental to the interest of the
Association of apartment owners or of the apartment
owners or is against the public interest, the CA may
give a notice to the Manager or the Board to show
cause why he should not be removed or, as the case
may be, it should not be superseded. Upon
conforming to the procedure laid down in the said
Section, the CA may by order remove the Manager
or supersede the Board of Managers and appoint any
member from amongst the members of the
concerned Association or any employee of the State
Government or any other person as Administrator to
perform the functions of the Manager or the Board of
Managers, as the case may be, for a period not
exceeding six months and thereafter, if deemed
necessary by the CA, the removal or supersession
may be extended for a further period not exceeding
six months at a time taking the aggregate period of
removal or supersession up to the maximum limit of
three years.
In the garb of assuming powers under the said
provision, it is argued, the CA declared the election
void, without recording or discussing any specific
allegation as regards the Manager or Board of
Managers having functioned in any manner
detrimental to the interest of the Association or of the
Apartment owners or against the public interest.
Hence, such exercise of authority was without
jurisdiction.
The learned Senior Advocate for the
petitioners next contends that the hot haste in which
the proceeding was undertaken and the order passed
indicates patent mala fides and arbitrariness on the
part of the CA. The jurisdiction of the CA was
challenged by the petitioners on April 18, 2022. The
matter was fixed for hearing on the very next date,
that is, April 19, 2022, when it was concluded at
around 6:30 p.m. However, on the very next day that
is on April 20, 2022, the impugned order, comprised
of about 37 pages was passed hastily. On April 21,
2022 itself the said order was communicated.
The petitioners filed the present writ petition
on the day thereafter, that is, on April 22, 2022.
Subsequent to such filing, on the same day, the
Administrator assumed Office and thereafter froze all
bank accounts of the Association. Such manner
itself renders the process suspect, it is submitted.
It is next contended that the CA, acting as
quasi judicial authority, does not have the power to
review its own order and, as such, the order is bad
on such count as well.
It is next argued that the judgment of A.C.
Jose Vs. Sivan Pillai and others [(1984) 2 SCC 656],
which was the basis of the impugned order, was
subsequently distinguished in a later judgment of the
Supreme Court, reported at (2003) 8 SCC 498 [P.T.
Rajan Vs. T.P.M. Sahir and others].
The learned Senior Advocate for the
petitioners places reliance on the judgment reported
at (2018) 4 SCC 494 [Industrial Infrastructure
Development Corporation (Gwalior), Madhya
Pradesh Limited Vs. Commissioner of Income Tax,
Gwalior, Madhya Pradesh] in support of the
proposition that quasi judicial forums have no power
to review their own judgments.
By placing reliance on the definition of 'ballot'
as defined in the Black's Law Dictionary (10th
Edition), the learned Senior Advocate argues that the
same is defined as an instrument, such as a paper or
ball, used for casting a vote - also termed (if in the
form of paper) ballot paper.
The expression 'electronic ballot' has also
been included to mean a ballot cast and counted
electronically, thereby including electronic voting as
part of secret ballot.
Hence, the basic premise of the impugned
order is also challenged by the petitioners.
Learned counsel for the respondent no. 3
argues, by placing reliance on several judgments,
which are reflected in the impugned order itself, that
the principle of res judicata is not applicable when the
previous judgment was rendered on the question of
jurisdiction.
That apart, it is argued that the writ court,
sitting in judicial review under Article 226 of the
Constitution, does not act as an appellate authority
and ought not to set aside an order merely because
the writ court is of a different opinion, unless there is
any perversity reflected on the face of it. In the
present case, it is argued that ample opportunity of
hearing and filing pleadings and documents were
given to the petitioners. As such, the writ petition, is
submitted, ought to be dismissed in limine.
By placing reliance on the judgment reported
(1999) 4 SCC 396 [Budhia Swain and others Vs.
Gopinath Deb and others], learned counsel for the
respondent no.3 argues that Tribunals have inherent
power, akin to courts, to recall their own orders under
certain circumstances, including where fraud is
practised or where there is some patent mistake, etc.
As far as secret ballots are concerned, learned
counsel for the respondent no.3 specifically relies on
the language of Bye-law 5(3) to contend that a
special General Meeting of the Association shall be
held for election of the Managers of the Board of
such Association by secret ballot in such a manner s
may be decided in the said meeting. Bye-law 4(9)(b),
applicable to all General Meetings of the Association,
stipulates that votes shall be cast 'in person', thereby
indicating that electronic votes cannot be permitted to
replace such mode. Learned counsel contends that
it is well-settled that if the statute provides for the
exercise of a power, the same has to be exercised
strictly in accordance with the modality provided in
the statute itself.
Learned counsel for the respondent no.3 next
argues that the CA could not be faulted for
expeditiously deciding the matter, rather, the same
should be construed in favour of the CA.
Moreover, the matter had been heard on
several occasions, spread over days, for which it
cannot be said that the lengthy judgment passed on
April 20, 2022 was impossible to be passed.
Upon hearing learned counsel for the parties,
this Court is of the opinion that the writ petition ought
to be heard on merits on the above issues.
In view of sufficient grounds having been
prima facie made out by the petitioners in the writ
petition to be heard on merits, as discussed above,
the Rosedale Garden Apartment Owners Association
shall stay its hands regarding the proposed meeting
dated May 8, 2022 and shall not take any steps
immediately for holding the impending elections
under the aegis of the Administrator till May 20, 2022
or until further orders, whichever is earlier.
The matter shall next be enlisted before the
Regular Bench on May 10, 2022.
Liberty is granted to the parties to mention the
matter for enlistment before the appropriate Bench.
The right of the writ petitioners in respect of
praying for an order of stay of operation of the
impugned order is reserved for being renewed before
the Regular Bench.
Leave is granted to the petitioners to file a
supplementary affidavit, pursuant to which such
affidavit is filed today and the same be kept on
record.
Liberty to the parties to submit further
pleadings, subject to any order that may be passed
by the Regular Bench, is also reserved.
Leave is granted to the petitioners to implead
the Association, represented through its
Administrator, as a respondent/proforma respondent
to the present writ petition by way of filing an
application to that effect.
(Sabyasachi Bhattacharyya, J.)
