South City Apartment Owners' ... vs The State Of West Bengal & Ors
2023 Latest Caselaw 1036 Cal

             IN THE HIGH COURT AT CALCUTTA
                    Constitutional Writ Jurisdiction
                             Appellate Side


Present :-

The Hon'ble Justice Moushumi Bhattacharya.

                          W.P.A 2269 of 2023

         South City Apartment Owners' Association & Anr.
                                    vs.
                   The State of West Bengal & Ors.

                                   With
                          W.P.A 2334 of 2023

                     Patita Paban Bishwal & Ors.
                                   vs.
                   The State of West Bengal & Ors.



For the petitioners in WPA 2269 of 2023   :       Mr. Kishore Dutta, Sr. Adv.
                                                  Mr. Srijib Chakroborty, Adv.
                                                  Mr. Bimalendu Das, Adv.
                                                  Ms. Shomrita Das, Adv.
                                                  Mr. Shomrik Das, Adv.


For the petitioners in WPA 2334 of 2023       :   Mr. Jishnu Chowdhury, Sr. Adv.
                                                  Mr. Aritra Basu, Adv.
                                                  Ms. Ujjaini Chatterjee, Adv.
                                                  Mr. Aditya Mondal, Adv.

For the State                             :       Mr. Debasish Ghosh, Adv.
                                       2


                                                   Ms. Debapriya Chatterjee, Adv.


For the respondent no. 3                   :       Mr. Rohit Das, Adv.
                                                   Mr. Kishwar Rahman, Adv.
                                                   Mr. Indradip Das, Adv.
                                                   Mr. Preetom Majumdar.


Last Heard on                                  :   02.02.2023.


Delivered on                                   :   08.02.2023.


Moushumi Bhattacharya, J.

1. The petitioners are an Association of apartment owners of South City

Housing Complex, the President of the Association and residents of the

building complex. The petitioners seek quashing of an order passed by the

Competent Authority, under the provisions of the West Bengal Apartment

Ownership Act, 1972 on 25.1.2023 whereby the Competent Authority

directed the petitioners to conduct the election of the Managers of the

Association only through manual voting. The petitioners were also directed

to complete the process of election of the Managers and form a new Board of

Managers within 5.2.2023. The private respondent no. 3 is a resident of

South City Apartment Complex on whose complaint the Competent

Authority passed the impugned order.

2. The basis of challenge to the impugned order of the Competent

Authority is on certain undisputed facts which would appear from the

impugned order itself. These are as follows.

3. The tenure of the existing Board of Managers of the Association of the

building complex was to end on 31.5.2020. The election of the Managers

however could not be held within the statutory time period due to the Covid-

19 pandemic. The President of the Association/petitioner no. 2 therefore

announced the elections on 17.12.2022 and 18.12.2022 in hybrid mode i.e.

through physical as well as online mode. The Competent Authority, acting

on certain complaints received from members of the Association, directed

the President of the Association to immediately convene a Special General

Meeting of the Association for deciding the manner of election of the

Managers of the Board and to conduct the election in accordance with the

manner decided by the members in the Special General Meeting. The

election of the Managers of the new Board was thereafter extended to

30.1.2023. The Special General Meeting was held on 8.1.2023 in compliance

with the direction of the Authority and the members were given two options

in respect of the manner of election. The first option was a combination of

online and manual voting and the second option was only for manual voting.

4. Of the total number of 341 votes polled, 197 voted for hybrid while

144 for only manual voting. The online voting was decided to be done

through the CDSL Platform.

5. The private respondent no. 3 complained to the Authority by a mail

dated 11.0.1.2023 against the decision taken in the Special General Meeting

alleging that online voting was contrary to the West Bengal Apartment

Ownership Bye-laws, 2022.

6. The Authority came to the conclusion that the election must preserve

the condition of secret ballot. The Authority further concluded that online

voting through the CDSL platform would be inconsistent with Bye-law 8 and

hence directed the President of the Association to conduct the election of the

Managers of the Association only through manual voting. The time for

forming a new Board of Managers was extended till 5.2.2023 and the new

Board was to take charge by 6.2.2023. The petitioners approached the Court

on 30.1.2023 for urgent relief.

7. The contention of the petitioners, through learned counsel, is that the

election of the Board of Managers through the CDSL Platform would not

dilute the secrecy contemplated in Bye-law 8 in any manner whatsoever.

Counsel also relies on the decision of the majority of the members taken at

the Special General Meeting for a hybrid method of election. Counsel further

urges the practical difficulties in conducting the election through manual

voting where 40% of the residents of the complex are NRIs and living outside

the State.

8. Learned counsel appearing for the Competent Authority proposes that

the election be held by way of postal ballot and disagrees with the

arguments with regard to the efficacy of the CDSL Platform.

9. Learned counsel appearing for the private respondent no. 3 submits

that the condition of secrecy in holding election is a statutory requirement

under the West Bengal Apartment Ownership Bye-laws, 2022 and that the

CDSL platform would compromise on the secrecy which is required to be

maintained in the election. Counsel urges that manual voting is the only

preferred mode for the election.

10. There are several reasons for holding that the impugned order dated

25.1.2023 passed by the Competent Authority is liable to be quashed.

11. Foremost among those reasons is the construction given by the

Authority to Bye-law 8(2) of the West Bengal Apartment Ownership Bye-

laws, 2022. The said Bye-law provides for election to be held by secret ballot

in accordance with the detailed manner decided under Bye-law 8(1). Bye-law

8(1) stipulates that the apartment owner presiding over the General Meeting

shall serve notice upon each member of the Association within 15 days of

formation of an Association under Bye-law 3(2) specifying the date, on and

from the 7th day from the date of issue of the notice, and the time and place

of the Special General Meeting for deciding the manner and the date for

holding the election of the Managers of the Board. Therefore, the only

requirement in Bye-law 8(2) is for holding the election by secret ballot i.e for

the purpose of maintaining secrecy. Significantly, Bye-law 8(2) gives

precedence to the decision taken at the Special General Meeting on the

mode in which the election is to be held. There is nothing in Bye-law 8(2) to

suggest that the election shall only be held by manual voting as has been

decided by the Authority in the impugned decision.

12. Second, Bye-law 8(2) provides that mode/manner of holding elections

shall be decided in the Special General Meeting. The Special General

Meeting held in this case resulted in a majority of 197 members voting in

favour of a hybrid mode as against 144 votes in favour of manual voting. It

was also decided in the Special General Meeting that a certificate could be

obtained from CDSL confirming the secrecy of votes. Hence, the impugned

decision of the Competent Authority to direct the conduct of the election

only by manual voting is straightaway contrary to Bye-law 8(2). Further, the

impugned order does not record any objection or subjective satisfaction for

the Authority to conclude that election through the CDSL Platform would

compromise on the secrecy requirement under Bye-law 8(2). This is all the

more significant since the Authority had by an earlier decision dated

2.12.2022 directed the Association to decide on the manner of election in a

Special General Meeting.

13. The perceived doubt as to the secrecy which can be maintained on the

CDSL Platform is not corroborated by any reason or material produced by

the Authority itself in other litigations where the Authority was represented

including in WPA 7426 of 2022 and WPO 2237 of 2022. The orders passed

in those matters, which form part of records, show that the Authority agreed

to voting being held on CDSL Platform. The situation of loss of faith on the

CDSL Platform is hence unexplained.

14. The practical side of the matter is equally relevant. Admittedly, 40% of

the residents of the South City Complex are NRIs or live outside the

city/State. Hence, it is inconceivable that in this day and age when a large

part of the global business is being carried on through virtual platforms, the

residents of the Apartment Complex who live outside the State are being

asked to come to Kolkata only to vote in the election for the Board of

Managers. There is absolutely no reason to suspect the secrecy credentials

of the CDSL Platform and even if it is assumed that there may be a slip-up

from somewhere, the Association can always call upon CDSL to provide

details of how it intends to maintain the secrecy of election. This alone

cannot be a ground to keep the elections in abeyance particularly when the

tenure of the present Board ended on 24.5.2020. Bye-law 8(1) mandates

that a Special General Meeting be held within 15 days of the formation of an

Association for deciding the manner of holding the election of the Managers

of the Board. The Association has been fixed with the responsibility of taking

the steps prescribed under Bye-law 8(1).

15. This Court fails to understand the basis and the reason (or the lack of

it) for the Competent Authority to direct that the election of the Board shall

be held only by manual voting and by no other method. The impugned

decision is not only against the particular Bye-law which the Authority has

itself relied on but is also against all considerations of practicality. The

contention of the Authority that the elections may be held by postal ballot is

also untenable and would lead to an unnecessary waste of resources.

16. WPA 2269 of 2023 and WPA 2334 of 2023 are accordingly allowed and

disposed of by quashing the impugned decision of the Competent Authority

dated 25.01.2023. The petitioners shall conduct the election of the Board of

Managers of the Apartment building in terms of the decision taken in the

Special General Meeting held on 8.01.2023 that is by hybrid mode. The

entire exercise shall be done in strict compliance with The West Bengal

Apartment Ownership Act, 1972 and the Rules and Bye-laws framed

thereunder.

Urgent photostat certified copies of this judgment, if applied for, be

supplied to the parties upon fulfillment of requisite formalities.

(Moushumi Bhattacharya, J.)