Calcutta High Court (Appellete Side)
Egv Association Of Apartment Owners And ... vs Competent Authority And Others on 8 December, 2023
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
W.P.A. No.24556 of 2023
EGV Association of Apartment Owners and another
Vs.
Competent Authority and others
For the petitioners : Mr. Sabyasachi Chowdhury
Mr. Rajarshi Dutta
Mr. Soorjya Ganguly
Ms. Pooja Chakraborty
Ms. Arti Bhattacharyya
For the WBMC : Mr. Anirban Ray
Mr. Biswabrata Basu Mallick
Ms. Mrinalini Majumder
For the respondent no.3 : Mr. Abhrajit Mitra
Mr. Arindam Banerjee
Mr. Satadeep Bhattacharyya
Mr. Saptarshi Datta
Mr. Samriddha Sen
Ms. Srinjita Ghosh
Mr. Pourush Kanti Pal
Mr. Debdut Hore
For the respondent nos.4-29 : Mr. Jishnu Saha,
Mr. Ishaan Saha,
Mr. Aniket Chaudhury
Hearing concluded on : 01.12.2023
Judgment on : 08.12.2023
Sabyasachi Bhattacharyya, J:-
1. The present dispute pertains to one Elita Garden Vista (EGV)
apartment. Initially, 15 towers were erected in the said apartment
complex which were numbered serially but for 8. Subsequently, the
16th tower came up, which is known as Tower-8 (in short, "T-8").
2. In the initial Form-A declaration submitted by the owners of the first
15 towers, the said owners were described to be the apartment owners
who were also members of the petitioner no.1-Association which was
thus formed and registered.
3. Subsequently, after T-8 came up, the private respondents purchased
flats of the same, but their names were not included in the Form-A
declaration.
4. The respondent-Developer sought to make amendment to the said
Form-A which was turned down by the Competent Authority (in brief,
"CA") under the West Bengal Apartment Ownership Act, 1972 (for
short, "the 1972 Act").
5. A suit was filed by the private respondents/owners of T-8 in which an
order was passed in connection with an application for appointment of
a Special Officer for holding elections. The matter came up in appeal
before a Division Bench of this Court.
6. The Division Bench, by its first order dated March 15, 2022, expressed
its opinion that the Special Officer appointed by the Trial Court with
the aid of the CA shall hold the election. The Special Officer in
consultation with the CA shall prepare an electoral roll and decide on
the mode of voting. It was, however, mentioned that the flat owners of
the newly constructed tower (T-8) should not be included in the
electoral list in view of the pending litigation.
7. The said order was challenged in the Supreme Court which by an
order dated April 13, 2022 disposed of the Special Leave Petition by
granting liberty to the petitioners therein, that is, the private
respondents/ T-8 tower owners to move this Court for vacating or
modification of the order impugned insofar as it relates to the flat
purchasers of T-8.
8. Thereafter the matter was again moved before the Division Bench of
this Court which by its second order dated March 17, 2023 deleted
the observation that the flat owners of the newly constructed tower
should not be included in the electoral list in view of the pending
litigation. While doing so, the Division Bench observed that whether
the applicants can be considered as "owners" within the meaning of
Section 3(ia) of the 1972 Act was not considered when the Division
Bench decided the appeal and that the point was never urged nor
argued. The Division Bench further observed that it was not
necessary for it in the said proceeding to decide if by reason of such
deed the applicants would be entitled to participate in the election. It
was observed by the Division Bench also that it appears that the CA is
in seisin over the matter.
9. Meanwhile, the Association of the other towers than T-8 moved a writ
petition bearing WPA No. 15903 of 2018 challenging the revised
sanction plan pursuant to which T-8 was built.
10. The said writ petition was ultimately disposed of vide order dated
October 18, 2023 where the learned Single Judge observed, inter alia,
that the Newtown Kolkata Development Authority (NKDA) has to act
within the four corners of the NKDA Act, 2007 which creates it and it
cannot enforce the provisions of any other law, apparently referring to
the 1972 Act. Thus, it was observed that the Chairman of NKDA was
to consider the representations of the petitioners insofar as it relates
to alleged violation of guidelines of NBC and/or the 2009 Rules with
regard to distance restrictions in the light of the said observations
made thereinbefore and to decide the said issue by passing a reasoned
order.
11. The learned Single Judge also held that while granting sanction to the
building plan, NKDA has to see whether the plan is in accordance with
the Rules under the 2007 Act and that the NKDA has no power to
adjudicate the right of the parties to a deed of conveyance while
granting sanction to a plan.
12. The Special Officer, who had been directed by the Division Bench to
prepare the electoral rolls and hold the election in consultation with
the CA, gave an interim report on September 19, 2023 and referred
the matter back to the CA to take a decision with regard to the
impending issue as to whether the T-8 owners would be permitted to
participate in the elections of the apartment and advise the Special
Officer accordingly.
13. The CA, by the impugned communication dated September 27, 2023,
observed that every flat owner is a member of the Association as per
the provisions of the 1972 Act; therefore, in the present case, the
election is to be conducted with 1511 flat owners of EGV.
14. The writ petition has been preferred by the Association of owners of
the other 15 flat owners than T-8. Learned senior counsel argues that
the CA acted palpably without jurisdiction in holding that all 1511 flat
owners, including the T-8 owners, were eligible to vote for the
Association.
15. It is argued that reading Sections 2 and 3 of the 1972 Act in
conjunction, the T-8 flat purchasers were not „owners‟ eligible to vote.
As per Section 2, the 1972 Act shall apply to every property as
described therein by duly executing and registering a declaration
setting out the particulars referred to in Section 10.
16. Section 3 defines „property‟ in Clause (k) and „owner‟ in Clause (ia).
Section 10 gives the particulars which are to be given in the
declaration, including the names of the owners and the nature of
interest of the owner or owners in the property. Since the T-8 owners
do not find mention in the declaration given under Section 10, it is
contended that the 1972 Act, as per Section 2 thereof, does not apply
to T-8 and its owners. Hence, the observation of the CA in the
impugned communication regarding all flat owners including T-8
owners being eligible to participate is palpably bad in law.
17. Learned senior counsel points out to the second Division Bench order
where it was observed that the CA is in seisin of the issue whether T-8
flat purchasers fall under „owners‟ within the contemplation of the
1972 Act. Thus, it was incumbent upon the CA to give an opportunity
of hearing to the petitioners and to decide on the issue upon giving
reasons in accordance with law, which has not been done in the
cryptic one-liner in the impugned communication.
18. Learned senior counsel argues further that the communication of the
CA tantamounts to an order without hearing the petitioner and is
absolutely cryptic.
19. The petitioners point out that the learned Single Judge while deciding
the issue of legality of the revised sanction plan in construction of T-8
did not decide the present issue at all.
20. Learned counsel for the respondent/developer argues that the writ
petition is premature and not maintainable. No right was decided by
the impugned communication, it is contended. Learned senior
counsel submits that the said communication is not justiciable, since
it was merely in the nature of an opinion. By harping on the language
used by the Division Bench on both the occasions, it is argued that
the contemplation thereof was for the Special Officer, in "consultation
with" the CA, to prepare the electoral roll. Such consultation is
beyond the scope of judicial review. To support such contention,
learned senior counsel cites (2009) 8 SCC 273 [Mahesh Chandra Gupta
Vs. Union of India and others].
21. Learned senior counsel for the respondents/ T-8 owners argues that
as per Bye-Law 3(1)(a) of the West Bengal Apartment Ownership Bye-
Laws, 2022 (in brief, "the 2022 Bye-Laws"), each apartment owner of
the property is a member of the Association. Clause (b) Bye-Law 3(i)
provides that when an apartment owner transfers his apartment, the
transferee immediately becomes a member of the said Association in
place of the transferor. Learned senior counsel argues that, thus, the
said respondents, that is, the owners of the T-8 flats automatically
became owners within the meaning of the Act and are thus, eligible to
participate in the elections for the formation of the Association.
22. It is next argued that disqualifications for being managers are
stipulated in Bye-Law 11, which is not applicable to the present case.
23. Sections 10A and 10B of the 1972, it is argued, are the only provisions
empowering the CA. Under those provisions, no power has been
conferred on the CA to adjudicate as to who are the owners within the
contemplation of the Act eligible to elect in the Association elections.
After accepting Form-A, unless the same is validly amended, the CA
does not have any jurisdiction to decide the issues as raised herein. It
is argued that the Division Bench direction to the Special Officer was
merely to consult with the CA and there was no scope of any decision
by the CA. Thus, the CA did not make any adjudication while making
the impugned communication.
24. The learned Single Judge, it is submitted, in WPA No. 15903 of 2018,
turned down the objection of the petitioners regarding the legality of
the revised plan and the validity of the T-8 construction was upheld.
Thus, upon the said adjudication, the T-8 flat purchasers‟ ownership
has been vindicated.
25. Learned counsel appearing for the CA argues that Bye-Law 3(i)(a)
speaks about "owner". The CA has accordingly made the impugned
communication by holding that every flat owner is a member of the
Association as per the provision of the 1972 Act. That apart, it is
argued that the CA does not have any power of adjudication apart
from those conferred by Section 10A and Section 10B of the 1972 Act
which is limited to acceptance or rejection of Form-A and its
amendment.
26. The case presents certain interesting facets. It has to be ascertained
first whether the learned Single Judge in WPA No. 15903 of 2018
decided the issue presently at hand since, if such adjudication has
already been made, there is limited or no scope of re-deciding the
issue by the CA or by this Court.
27. A perusal of the said order dated October 18, 2023 shows that the
challenge was made by the owners of the other towers, who are
members of the present petitioner no.1-Association, against the
revised sanction plan dated August 20, 2015 which according to them
was in contravention of the provisions of the 1972 Act. The also
sought demolition of structures erected in terms thereof, meaning
thereby primarily T-8.
28. While deciding the issue, the learned Single Judge observed that the
learned Senior Advocate for the petitioner in course of his arguments
could not point out any provision in the 2007 Act restricting the power
of the promoter to make any alteration in plans, specifications and
other particulars after execution and registration of deeds of
conveyances in favour of the apartment owners. In the absence
thereof, the court was of the considered view that the provisions
contained in 1972 Act prohibiting the alteration of the percentage of
undivided interest of each apartment owner in the common areas and
facilities as specified in Form-A declaration cannot prevail upon the
provisions of the 2007 Act. The Court accordingly held that the
provisions of the 1972 Act do not have any consequences on the right
of the promoter to obtain revised plan. Therefore, the issue of taking
consent of the apartment owners while submitting the application for
revised plan does not arise in the case at hand. The NKDA, it was
held, is to act within the four corners of the statute which creates it,
that is the NKDA Act, 2007 and also that it cannot enforce the
provisions of any other law. In such context, the learned Single Judge
went on to observe that the Chairman of NKDA was to consider the
representations of the writ petitioner.
29. Thus, the subject-matter of the said writ petition was the revised
sanction plan for constructing T-8. The Court, while deciding the writ
petition, categorically observed that the sanction of the revised plan
was not governed by the provisions of the 1972 Act. The NKDA was
bound by the 2007 Act and could not be affected by the provisions of
the 1972 Act in that respect.
30. Hence, the learned Single Judge clearly demarcated the provinces of
the two statutes. The issue at hand which pertains to the rights of the
T-8 owners to vote, emanating from the 1972 Act, could not thus be
said to have been decided by the learned Single Judge in the order
dated October 18, 2023 passed in WPA No. 15903 of 2018.
31. Let us now scrutinize the relevant portions of the Division Bench
orders to ascertain its intention insofar as the role of the CA is
concerned. In the first order dated March 15, 2022, the Division
Bench found that the Special Officer appointed by the learned Trial
Court with the aid of the Competent Authority shall hold the election
and the Special Officer in consultation with the CA shall prepare an
electoral roll and decide on the mode of voting. The said findings were
never disturbed in its subsequent orders.
32. In the second order of the Division Bench dated March 17, 2023, after
the Supreme Court granted liberty to apply for modification of its
earlier order, the Division Bench held that whether the applicants (T-8
owners) can be considered as „owners‟ within the meaning of Section
3(ia) of the 1972 Act was not considered when it decided the appeal,
having not been urged or argued. It was not necessary for the
Division Bench in the said proceeding to decide if by reason of such
title deeds they would be entitled to participate in the election. The
parties, it was observed, have already disclosed proceedings before the
CA with regard to objections concerning Form-A and Form-B, which
was held not to be the subject-matter of the suit or a matter that was
urged before the Division Bench.
33. The Division Bench further found that the orders relied upon by the
Association that were passed in the pending writ application would
not show that the T-8 owners were debarred from exercising their
rights under their respective deeds of purchase nor the issue as to
whether they would be considered as owners under the 1972 Act was
gone into and decided. Hence, the Division Bench clearly washed off
its hands on the issue of whether the T-8 owners are owners within
the 1972 Act and are entitled to elect. Having observed so, the
Division Bench added that "it appears" that the CA is in seisin over
the matter. Although the observations of the Division Bench could not
confer jurisdiction on the CA which it does not otherwise have in law,
it is clear from the orders of the Division Bench that it had not decided
the issue and had left it open to be decided by the CA, which was
perceived by the Division Bench to be in seisin over the matter.
34. A perusal of Sections 10A and 10B shows that the CA has the limited
power of deciding on the acceptance of any declaration referred to in
Section 2 or amendment thereto under Section 4(3).
35. Section 10A lays down a procedure for the same. Section 10B on the
other hand provides for the State Government to call for and examine
the records of any proceeding before the CA. Thus, the only
conferment of power under the Act of 1972 on the CA is under Section
10A.
36. In the present case, the CA has not been called upon to accept or
reject any declaration or amendment thereto. The developers‟ attempt
to have an amendment to the declaration has been foiled by the CA on
the ground that since the majority of the then owners of the flats had
presented the declaration in Form-A, the developer alone could not
have the same amended. It was a technical rejection, but a rejection
all the same. Hence, as of today, the Form-A declaration which was
submitted by the present writ petitioners stands in the records. The
CA does not, as such, have power under Section 10A to decide the
issue whether the flat owners of the newly constructed tower are
owners within the 1972 Act or eligible to vote. However, the intention
of the Division Bench has to be construed from the language used by
it. The respondents are correct in submitting that the Division Bench
had not directed any adjudication but had merely directed the Special
Officer to hold the election with the aid of the CA and to prepare an
electoral roll and decide the mode of voting in consultation with the
CA. However, such perceived „consultation‟ as directed by the Division
Bench was imbued with the observation of the Division Bench itself
that, it its perception, the CA was in seisin over the issue as to
whether the T-8 owners would be considered as owners under the
1972 Act and were eligible to vote.
37. Seen in such perspective, the opinion of the CA, upon „consultation‟ by
the Special Officer, acquires much more weight than a mere stray
observation or advice. The entire voting rights of the T-8 owners
hinges around such observation, since, after the Division Bench
directed the Special Officer to consult with the CA and the Special
Officer having categorically solicited the decision and advice of the CA
on the said issue, the preparation of the electoral roll became
dependent exclusively on the opinion of the CA.
38. Hence, although the CA does not have powers of adjudication under
Section 10A of the 1972 Act in that regard, the role of the CA in giving
such advice dated September 27, 2023, as per the direction of the
Division Bench, acquired the colour of a prima facie adjudication of
the rights of the T-8 owners. As such, the argument of the developers
that the said observation is not justiciable cannot be accepted.
39. The context of Mahesh Chandra Gupta (supra) cited by the developer is
distinct and different from the present case. The said judgment was
rendered in the context of Article 217 of the Constitution of India. In
sub-article (1) of Article 217, it is provided that every Judge of a High
Court shall be appointed by the President by warrant under his hand
and seal "after consultation" with the Chief Justice of India. The
Supreme Court, in such backdrop, held that there is a vital difference
between judicial review and merit review. „Consultation‟ as envisaged
in Article 217 forms part of the procedure to test the fitness of a
person to be appointed a High Court Judge. Once there is
consultation, the content of the consultation is beyond the scope of
judicial review, though lack of effective consultation could fall within
the scope of judicial review. It was also observed that the aspect of
suitability which was involved in ascertaining eligibility fell outside the
purview of judicial review.
40. The subjective element in suitability and the context of the said
judgment are entirely different from the present case. As discussed
above, here the element of consultation as contemplated by the
Division Bench is not merely subjective but conclusively decides the
issue of eligibility of the T-8 tower owners to vote. Hence, the
impugned decision of the CA as embodied in its communication dated
September 27, 2023 is not only justiciable but amenable to judicial
review under Article 226 of the Constitution of India.
41. Thus, this Court has to assess the legality of the said opinion of the
CA independently, since none of the Courts, either the Division Bench
or the learned Single Judge, has decided the said issue.
42. For ascertaining such aspect of the matter, we are to look into Section
2 of the 1972 Act first. The sub-text of the said provision clearly
provides that the 1972 Act shall apply to a property as defined therein
only if the sole or majority owners or all the owners submit to the
jurisdiction of the Act by duly executing and registering a declaration
setting out the particulars referred to in Section 10.
43. Section 10 speaks of the declaration referred to in Section 2 and lays
down the contents of the same which includes the name of the owner,
nature of interest of the owner or owners, description of each
apartment, etc.
44. The West Bengal Apartment Ownership Rules, 1974 provides for the
modalities of submission of Form-A declaration and its amendment.
Rule 3 speaks about the declaration under Section 2 by the sole owner
or all the owners or majority of the owners as the case may be. Rule 4
provides the circumstances of amendment of such a declaration. Rule
5 indicates that the amendment is to be at the instance of such sole
owner or all the owners or majority of the owners, etc. The term
"such" refers to the owner/owners who had submitted the Form-A
declaration originally in the first place. In the present case, the other
15 tower owners than T-8 had presented the declaration Form-A and
it can be amended only at their behest. Undisputedly, till date, there
has been no amendment to the Form-A and the Form-A declaration
originally submitted still subsists.
45. It is also admitted that in the said original Form-A declaration, there
was no mention of T-8 itself, let alone the names of the purchasers of
the flats in it. Hence, reading Section 2 in conjunction with Section
10 of the 1972 Act, T-8 and its owners having not been mentioned in
the Section 10 declaration, the 1972 Act itself does not apply to it
within the contemplation of Section 2 of the said Act.
46. The segregation of T-8 from the other towers in this regard is validated
by Section 3(a) which defines "apartment" as part of a property having
a direct exit to a road, etc. Section 3(ia) defines "owner" in relation to
any property or part thereof or apartment. Thus, the ownership is in
relation to „property‟ as defined in Clause (k) of Section 3 which
property has to come within the fold of Section 2, that is, in respect of
which a Section 10 declaration has been made.
47. Hence, we find that the T-8 owners have never become "owners"
within the contemplation of the 1972 Act, since T-8 does not find
mention in the Form-A declaration made in respect of the concerned
apartment.
48. Thus, the finding of the CA in the impugned decision/communication
dated September 27, 2023 that every flat owner is a member of the
Association as per the 1972 Act and that election is to be conducted
with 1511 flat owners (including the T-8 owners) is perverse, being
contrary to the records, and palpably arbitrary. Hence, the said
decision cannot stand judicial scrutiny and ought to be set aside.
49. In such view of the matter, WPA No. 24556 of 2023 is allowed on
contest, thereby setting aside the impugned communication dated
September 27, 2023 and directing the CA to re-consider its
opinion/advice in the light of the observations made above and to
issue a fresh advice to the learned Special Officer for him to proceed
with the preparation of the electoral roll and with the process of
election itself. Such fresh advice shall be issued by the CA within a
fortnight from the date of communication of this order to the CA
(respondent no.1 herein).
50. There will be no order as to costs.
51. Urgent certified server copies, if applied for, be issued to the parties
upon compliance of due formalities.
( Sabyasachi Bhattacharyya, J. )
