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2017 DIGILAW 875 (CAL)

Hashi Mukherjee v. State Of West Bengal

2017-11-15

DEBANGSU BASAK

body2017
JUDGMENT : 1. The Court :- An order passed by the competent authority exercising jurisdiction under the West Bengal Apartment Ownership Act, 1972 is under challenge in the present writ petition. 2. Learned Senior Advocate for the petitioners submits that, the petitioners are the owners of the flats in an apartment building as also the tenants in respect of another portion thereof. He draws the attention of the Court to the provision of the West Bengal Apartment Ownership Act, 1972, particularly, Section 2 thereof as it is stood in 2013. He submits that, in terms of Section 2 of the Act of 1972 then obtaining, all the owners of the apartment building were required to make a joint application for the purpose of registration of such building under the Act of 1972. The petitioners did not join in making such application. There are other owners of different portion of such apartment building who also did not join in making of the application. Consequently, the application made by the private respondents and the subsequent registration granted by the authorities on the strength of such application are bad in law and should be declared to do so. The initial registration of the association being incorrectly done, no benefit can be derived out of such registration. Such registration should be declared as cancelled. The petitioners had made a representation dated January 15, 2015 to the authorities raising various issues. The issues raised by the petitioners in the representation dated January 15, 2015 to the competent authority were not considered. Consequently, the petitioners had to move before the High Court by way of a writ petition being WP No. 461 of 2015 which was disposed of by an order dated July 10, 2015. By such order the competent authority was directed to consider and decide such representation in accordance with law. The competent authority has chosen not to deal with the issues raised by the petitioner in such representation in the impugned order. The impugned order of the competent authority is, therefore, perverse. The same is liable to be set aside. 3. Relying upon 2014 (2) CHN (Cal) 186 [Debdas Banerjee-Versus-State of West Bengal] learned Advocate for the petitioners submits that, Section 2 of the Act of 1972 was amended subsequently. The impugned order of the competent authority is, therefore, perverse. The same is liable to be set aside. 3. Relying upon 2014 (2) CHN (Cal) 186 [Debdas Banerjee-Versus-State of West Bengal] learned Advocate for the petitioners submits that, Section 2 of the Act of 1972 was amended subsequently. As on the date of the application for registration, Section 2 of the Act of 1972 required all the owners of the apartment building to join in the process of registration. That being the position in law, and the petitioners not having joined the application for registration, such registration is required to be set aside. 4. The writ petition is opposed by the private respondent. Learned Advocate for the private respondent submits that, Section 2 of the Act of 1972 was subsequently amended by a Gazette Notification dated December 7, 2015 with retrospective effect from July 5, 1972. By virtue of such amendment, majority of the owners of the apartment have been permitted to make the application for registration. Therefore, on the date of the application for registration, so far as the association is concerned, there is no infirmity the impugned order. It is reasoned. The petitioners were heard before the impugned order was passed. Therefore, no interference is called for by the Writ Court. 5. I have considered the rival contentions of the parties and the materials made available on record. 6. The petitioners are the owners of an apartment. They are tenants of another portion. In an apartment building, as an owners, they are liable to pay the maintenance charges in respect of the building. They are also required to join in the process of the registration of the association under the Act of 1972. Apparently, they have chosen not to do so. Finding that the petitioners did not join the association initially, and in order to comply with the Act of 1972, a request was made to the private respondent to make over a statement containing the amount that the petitioners owe on account of maintenance charges and other heads for the petitioners to become a member of the association. Learned Advocate-on-Record for the private respondent had made over the statement of accounts to the learned Advocate for the petitioners. Learned Senior Advocate for the petitioners, on instructions, submits that, the amount claimed are without any basis. Learned Advocate-on-Record for the private respondent had made over the statement of accounts to the learned Advocate for the petitioners. Learned Senior Advocate for the petitioners, on instructions, submits that, the amount claimed are without any basis. Moreover, the petitioners are not interested in paying any of the amounts to the private respondent. 7. The effort to make the petitioners a member of the association by requiring the petitioners to pay their legitimate dues fails. 8. Apparently, nine of the flat owners out of a building consisting of twelve flats had applied to the competent authority for registration under the Act of 1972 on May 13, 2013. The competent authority had granted registration to the association. The petitioners did not join in the application for registration. Would such non-joinder of the petitioners be fatal to the registration under the Act of 1972 is the issue under consideration? 9. On May 13, 2013, Section 2 of the Apartment Act of 1972 was as follows: “S.2. Application of the Act–This Act shall apply to every building having residential units or commercial units or both residential and commercial units, and the sole owner or all the owners of every such building shall submit the same to the provisions of this Act by duly executing and registering a declaration setting out the particulars referred to in Section 10:” **** *** *** *** *** *** *** *** *** *** 11. Section 2 of the Act of 1972 under went amended on December 17, 2015. The amendment was given retrospective effect from July 5, 1972. The registration of such amendment is not under challenge in the present writ petition. 12. Section 2 of the Act of 1972 as amended with retrospective effect from July 5, 1972 is as follows:- “S.2. Application of the Act–This Act shall apply to every property having residential units or both residential and commercial units, and the sole owner or all the owners or majority of the owners of every such property shall submit the same, within such period as may be prescribed, to the provisions of this Act by duly executing and registering a declaration setting out the particulars referred to in section 10.” 13. By virtue of the retrospectivity given to the amendment of Section 2 of the Act of 1972, the application of the petitioners through majority of the members of the association is valid on the date of making such application. The challenge thrown by representation of the petitioners dated January 15, 2015 therefore, looses significance and validity. 14. Debdas Banerjee (supra) concerns the vires of Rule 3 of the West Bengal Apartment Ownership Rules 1974 and a decision taken by the competent authority acting under the Act of 1972. In the context of that case it was observed that, Section 2 would not have retrospective effect. However, the amendment to Section 2 of the Act of 1972 was introduced subsequent to the judgment of Debdas Banerjee (supra) giving retrospective effect from July 5, 1972. The observations of Debdas Banerjee (supra) to the extent Section 2 of the Act of 1972 cannot have retrospective effect, therefore, has to be read in the context of the date of delivery of the judgment of Debdas Banerjee (supra) and the amendment of the Act subsequent thereto with retrospective effect. As noted above, the retrospectivity of Section 2 is not under challenge in the present writ petition. 15. The impugned order is reasoned. It deals with the primary concern of the petitioners that, an application under Section 2 of 1972 could not have been made in 2013 given the circumstances. 16. A Writ Court is not called upon to function as an appellate authority, reappraise the evidence, and substitute to the finding returned in the impugned order before with its own finding. In the present case, principles of natural justice has not been substantiated to be breached. In fact, that is not the case of the petitioners. The impugned order cannot be said to be perverse or non-speaking. In such circumstances, I am not minded to interfere in the present writ petition. WP No. 25 of 2017 is dismissed. No order as to costs.