Calcutta High Court (Appellete Side)
(Barin Saha & Ors vs State Of West Bengal & Ors.) on 27 June, 2016
Author: Dipankar Datta
Bench: Dipankar Datta
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27.06.2016 W.P. No. 9286(W) of 2016
(Barin Saha & ors. v. State of West Bengal & ors.)
Mr. Soumya Majumder
Mr. Debasish Kundu
.........for the petitioners.
Mr. Tulsids Ray
..........for the State.
Mr. Prasanta Dutt
Mr. Syamantak Banerjee
Ms. Ballari Banerjee
.......for the respondent no. 4
Mr. Kishore Dutta Mr. Ayan Banerjee .......for the addition of party.
1. The petitioners and the added respondents reside in their respective apartments comprised in Subarna Bhoomi Housing Complex at 36, Gorakshabasi Road, Kolkata - 700028 (hereafter the housing complex). The housing complex has been developed by the respondents 3 and 4. A total of 320 apartments are comprised in the housing complex of which 50% are owned by individuals belonging to high income group (hereafter H.I.G.) and the balance 2 50% by individuals belonging to middle and low income groups (hereafter M.I.G. and L.I.G). It is not in dispute that the owners of the apartments are bound by the provisions of the West Bengal Apartment Ownership Act, 1972.
2. The question that would arise for decision on this writ petition after the parties exchange their affidavits is whether in terms of the provisions of the Act, a separate association for the purpose of looking after maintenance work could be formed by the H.I.G. apartment owners or whether one association comprised of owners belonging to H.I.G., M.I.G. and L.I.G. is required to be formed.
3. The writ petition was moved on May 13, 2016. An interim order was passed permitting the meeting scheduled on May 15, 2016 to be held for the purpose of constitution of an ad hoc committee, to whom the respondents 3 and 4 would hand over the responsibility of maintaining the facilities useable by the H.I.G. apartment owners of the housing complex; however, it was also observed that no effect should be given to the decision taken at such meeting. By a further order dated May 18, 2016, the 3 interim order passed earlier was directed to continue till July 31, 2016.
4. The H.I.G. apartment owners were not parties to the writ petition and an application for addition of party having been filed by some of them, the same was allowed by an order dated June 15, 2016.
5. Mr. Mazumder, learned advocate for the petitioners, Mr. Dutta, learned senior standing counsel representing the State and Mr. Kishore Datta, learned senior advocate representing the added respondents have been heard at length on the question of extension of interim order. Having heard the parties and on perusal of the provisions of the Act, this Bench is of the prima facie view that formation of separate associations to look after maintenance work under the Act is not totally barred.
6. Section 3(k) defines property. To the extent relevant, it reads as follows:
"Property" comprises the land, the building and the common areas and facilities and in case of complexes having different types of apartments meant for selling to people of different income groups, property shall mean the land, building and the common areas and facilities for that particular type of apartment".4
The expression "common areas and facilities" has been defined in section 3(d) and, inter alia, include:
"(1) the land on which the building is located and all easements, rights and appurtenances belonging to the land and the building, (2) the foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stairways, fire-escapes and entrances and exists of the building, (3) the basements, cellars, yards, gardens, parking areas, shopping centres, schools, garages, building or apartments vacant or occupied by a tenant or any other person not being an owner, and transferred or proposed to be transferred to the Association of Apartment Owners and storage spaces,***"
Section 5 of the Act also provides for rights of each apartment owner in the common areas and facilities. It reads:
"5. Common areas and facilities.- (1) Each apartment owner shall be entitled to an undivided interest in the common areas and facilities in the percentage expressed in the Declaration. (2) The percentage of the undivided interest of each apartment owner in the common areas and facilities as expressed in the Declaration shall not be altered [Without the written consent of all the apartment owners. Addition or alteration if any, is to be expressed subsequently] in an amended declaration duly executed and registered as provided in this Act. The percentage of the undivided interest in the common areas and facilities shall not be separated from the apartment to which it appertains, and shall be deemed to be conveyed or encumbered with the apartment even though such interest is not expressly mentioned in the conveyance or other instrument.5
(3) The common areas and facilities shall remain undivided, and no apartment owner or other person shall bring any action for partition or division of any part thereof, unless the property has been withdrawn from the provisions of this Act.
(4) Each apartment owner may use the common areas and facilities for the purpose for which they are intended without hindering or encroaching upon the lawful rights of the other apartment owners.
(5) The work relating to the maintenance, repair and replacement of the common areas and facilities and the making of any additions or improvements thereto shall be carried out in accordance with the provisions of this Act and the bye-laws made thereunder.
(6) The Association of Apartment Owners shall have right, to be exercised by the Manager or the Board of Managers on behalf of the Association, with such assistance as the Manager or the Board of Managers, as the case may be, considers necessary, to have access to each apartment from time to time during reasonable hours, for the maintenance, repair and replacement of any of the common areas and facilities therein or accessible therefrom, or for making emergency repairs therein to prevent any damage to the common areas and facilities or to other apartments.
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Section 13 of the Act deals with bye-laws and is quoted hereunder:
"13. Bye-laws. - (1) Every property shall be administered in accordance with such bye-laws as may be framed by the Competent Authority with the prior approval of the State Government. (2) The bye-laws shall provide for the following amongst other matters, namely:-
(a) the manner in which the Association of Apartment Owners is to be formed, the election of a Board of Managers from among the 6 apartment owners, the number of persons constituting the Board, the number of members of such Board to retire annually, the powers and duties of the Board; the honorarium, if any, of the members of the Board; the method of removal from office of members of the Board; the powers of the Board to engage the services of a Secretary or Manager, dele-gation of powers and duties to such Secretary or Manager;
(b) method of calling meetings of the apartment owners and the number to constitute a quorum;
(c) election of a President who shall preside over the meetings of the Board and of the Association of Apartment Owners;
(d) maintenance, repair and replacement of the common areas and facilities and payments therefor;
(e) manner of collecting share of the common expenses from the apartment owners;
(f) any other matter considered to be necessary for the administration of the property."
7. In exercise of power conferred by section 13 of the Act, the West Bengal Apartment Ownership Bye- laws, 1974 has been framed. Chapter II of the bye- laws containing sections 3 and 4 provide for formation of association and powers and functions of an association, respectively. Clause 1(a) of bye-law 3 being relevant is quoted below:
"There shall be, in respect of each property, an Association, and each apartment owner of such property shall be a member of such Association;".7
8. A conjoint reading of the aforesaid provisions would lead to the conclusion that even in respect of a big housing complex having different types of apartments meant for sale to people of different income groups, there could be separate land, building and the common areas and facilities for that particular type of apartment and such demarcated land or earmarked building and the common areas and facilities for that particular income group would be a separate property within the same housing complex. It is for this reason that the word 'each' has been used in bye-law 3(1)(a) and not "a". Once the Act and the bye-laws read together conceive of separate properties in a housing complex, an association for each such property could be formed and each apartment owner of such property has to be a member of the association formed for it.
9. Insofar as the facts and circumstances of the present case are concerned, it is clear from the relevant deeds of conveyance executed by and between the developer and the H.I.G. apartment owners on the one hand and the deeds of conveyance executed by and between the developer and the M.I.G./L.I.G. 8 apartment owners that the entrances to the housing complex are separate; the latter do not have the right to use the gymnasium, swimming pool, community hall, children play area and landscape meant to be used by the H.I.G. apartment owners; and that they shall not go to the complex of the H.I.G. apartment owners. It seems that for that part of the property which is exclusively useable by the H.I.G. apartment owners, a separate association can legitimately be formed to look after it and it is not open to the M.I.G/L.I.G. apartment owners to contend that no separate association could be formed by the H.I.G. apartment owners. It is only in respect of facilities such as sewerage and other facilities which are not separately earmarked/demarcated that a particular association comprised of apartment owners from different income groups can function for the purpose of maintenance and upkeep of the housing complex.
10. In that view of the matter, the interim order passed earlier stands vacated. The decision taken in the meeting held on May 15, 2016 may be given effect but the same shall be subject to and abide by the result of the writ petition.
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11. Let affidavit-in-opposition be filed by 6 (six) weeks; reply thereto, if any, may be filed by 2 (two) weeks thereafter. The parties shall be at liberty to mention the writ petition for hearing upon expiry of the time fixed above for exchange of affidavits.
12. Office is directed to incorporate necessary correction in the order dated June 21, 2016 to show that Mr. Kishore Datta and Mr. Ayan Banerjee appeared for the added respondents.
Urgent photostat certified copy of this order, if applied for, shall be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)