In a housing complex with different types of apartments for different income groups, the formation of separate associations for maintenance work is not totally barred under the West Bengal Apartment Ownership Act, 1972 and the West Bengal Apartment Ownership Bye Laws, 1974, provided that such associations are formed in accordance with the provisions of the Act and the bye-laws.

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 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 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”.

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