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2013 Supreme(Cal) 757
High Court of Judicature at Calcutta
DIPANKAR DATTA, J.
Dr. Debdas Banerjee & Others
Versus
The State of West Bengal & Others
W.P. No. 3724 (W) of 2013
Decided On : 28-11-2013
For the Petitioners:Bikash Ranjan Bhattacharya, Sr. Advocate, Sudip Sanyal, Sukanta Das, Dibyendu Chatterjee, Advocates.
For the Respondents:R1 to R4, Chama Mukherjee, Paromita Pal, R5 & R6, Sudipto Maitra, Ranjan Laskar, P.K. Ghosh, Advocates.
For the ld. Advocate General:Sundarananda Pal, Sr. Advocate, Naba Kumar Das, Advocate.
The Statement of Objects and Reasons of a statute cannot be used for interpreting the statute, as it does not form part of the Bill and is not voted upon by the members. A purposive interpretation of a statute is permissible only to the extent that it does not require the Court to reframe the legislation. A rule framed by the executive under a statute must be subservient to the legislation conferring power to frame rules, and any inconsistency between the rule and the statute will render the rule ultra vires.
Headnote:
WEST BENGAL APARTMENT OWNERSHIP ACT - SECTION 2, 10 - RULE 3 OF THE WEST BENGAL APARTMENT OWNERSHIP RULES - VALIDITY - INTERPRETATION OF STATUTES - STATEMENT OF OBJECTS AND REASONS - RELEVANCE - PURPOSIVE INTERPRETATION - LIMITS - HARMONISING STATUTORY PROVISIONS - ROLE OF THE COURT - SUBMISSION OF DECLARATION BY MAJORITY OF OWNERS - VALIDITY - ACQUIESCENCE IN ILLEGAL TAX - EFFECT.
Fact of the Case:
Petitioners, the President, Secretary, and Joint Secretary of the Calcutta Greens HIG B Residents’ Welfare Association, challenged the actions of the respondent authorities in seeking to form one Apartment Owners’ Association for two separate properties under the West Bengal Apartment Ownership Act, 1972 (the Act). The petitioners contended that the registration of the Calcutta Greens Apartment Owners Association (the Association) was illegal and inequitable as it was based on false consent and did not match the property mentioned in the deeds of conveyance of the respective parties. The petitioners also questioned the validity of Rule 3 of the West Bengal Apartment Ownership Rules, 1974 (the Rules), which allowed the majority of the owners to execute a declaration and submit the building to the provisions of the Act.
Finding of the Court:
1. The Court held that the Statement of Objects and Reasons of a statute cannot be used for interpreting the statute, as it does not form part of the Bill and is not voted upon by the members. (Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC 369) 2. The Court rejected the purposive interpretation of Section 2 of the Act, as it would require the Court to reframe the legislation, which is not permissible. (Seaford Court Estates Ltd. v. Esher, 1949 (2) All ER 155 (CA)) 3. The Court struck down Rule 3 of the Rules as ultra vires Section 2 of the Act, as it allowed the majority of the owners to execute a declaration and submit the building to the provisions of the Act, which was inconsistent with the requirement of all the owners to submit to the provisions of the Act under Section 2 and 10 of the Act and Form A appended to the Rules. (Amalgamated Coalfields Ltd. v. Janapada Sabha, Chhindwara, AIR 1961 SC 964)
Issues: 1. Whether the Statement of Objects and Reasons of a statute can be used for interpreting the statute? 2. Whether a purposive interpretation of Section 2 of the Act is permissible? 3. Whether Rule 3 of the Rules is ultra vires Section 2 of the Act?
Ratio Decidendi: 1. The Court held that the Statement of Objects and Reasons of a statute cannot be used for interpreting the statute, as it does not form part of the Bill and is not voted upon by the members. (Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC 369) 2. The Court rejected the purposive interpretation of Section 2 of the Act, as it would require the Court to reframe the legislation, which is not permissible. (Seaford Court Estates Ltd. v. Esher, 1949 (2) All ER 155 (CA)) 3. The Court struck down Rule 3 of the Rules as ultra vires Section 2 of the Act, as it allowed the majority of the owners to execute a declaration and submit the building to the provisions of the Act, which was inconsistent with the requirement of all the owners to submit to the provisions of the Act under Section 2 and 10 of the Act and Form A appended to the Rules. (Amalgamated Coalfields Ltd. v. Janapada Sabha, Chhindwara, AIR 1961 SC 964)
Final Decision: The Court allowed the writ petition and struck down Rule 3 of the Rules as ultra vires Section 2 of the Act. The order impugned dated December 19, 2013, which proceeded to refuse the petitioners’ prayer on the basis of Rule 3 was set aside.
1. The first, second and third petitioners in this petition under Article 226 of the Constitution are the President, Secretary and Joint Secretary respectively of the Calcutta Greens HIG B Residents’ Welfare Association. It is an association registered under the West Bengal Societies Registration Act, 1961.
2. The petitioners complain of alleged illegal and inequitous actions of the respondent authorities in seeking to form one Apartment Owners’ Association for the apartment owners of two separate properties under the West Bengal Apartment Ownership Act, 1972 (hereafter the Act).
3. According to the petitioners, premises no. 1050/2, Survey Park, under Municipal Ward No.109 in Borough No.12, Kolkata - 75 comprises of HIG Type A and HIG Type B apartments apart from 7 separate clusters of apartments aggregating 1056 number of flats, designed and developed by the West Bengal Housing Board. The two categories (HIG Type A and HIG Type B) had demarcated property and for their management, the owners of apartments of HIG Type A and HIG Type B have formed their respective Residents’ Welfare Associations.
4. It is averred in the writ petition that trouble began when a few apartment owners of HIG Type B in collusion with some of the office bearers of the Calcutta Greens HIG Type A Residents Welfare Association applied before the competent authority under the Act with false consent of several HIG Type B apartment owners for registration of a body named Calcutta Greens Apartment Owners Association. The common areas shown in the declaration, being Form A, were concocted and manufactured and did not match the property mentioned in the schedule of the deeds of conveyance of the respective parties, i.e. the apartment owners of the two types. On receipt of such application, the competent authority registered the Calcutta Greens Apartment Owners Association (hereafter the Association) on June 15, 2009 and allotted serial no. 7A/2009 on such registration.
5. Objection followed at the instance of the apartment owners of HIG Type B before the competent authority. According to them, they had neither executed any instrument of declaration nor had they submitted their respective apartments to any agency or authority under the Act. It was their specific version that no one was authorised to submit declaration in Form A in terms of the provisions of the Act and the rules framed thereunder, and that they did not receive any notice from the competent authority in regard to filing of an application for formation of a single society or the intention to grant registration to the Association.
6. The competent authority by his letter dated January 1, 2010 conveyed upholding of the order dated June 15, 2009 granting registration of the Association, without extending any opportunity of hearing. An appeal was filed challenging the order dated January 1, 2010, which was heard by the Special Secretary, Department of Housing as the appellate authority. By an order dated February 26, 2010, the appeal was disposed of by the appellate authority holding that he had no jurisdiction to adjudicate the matter.
7. Thereafter, the State Government invoked its power under Section 10B of the Act. The Secretary, Department of Housing by an order dated May 31, 2010 set aside the registration of the Association and directed maintenance of status quo with regard to maintenance and management of the properties.
8. A writ petition followed at the instance of persons who were aggrieved by the order dated May 31, 2010. Since the Secretary, Department of Housing had passed the impugned order without putting the members of the Association on notice, a learned judge of this Court by his order dated March 6, 2012 set aside the same and directed the Secretary to pass a fresh order after hearing all the concerned parties.
9. In compliance with the said order, the Secretary heard the parties. Three prayers were made by the petitioners. First, they prayed that the order of the competent autho
