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2020 Supreme(Cal) 635
IN THE HIGH COURT OF CALCUTTA
Sabyasachi Bhattacharyya, J.
Greenwood Park Extension Apartment Owners Association & Anr. - Appellants
Versus
State Of West Bengal & Ors. - Respondents
W.P.O. No. 333 of 2019
Decided On : 22-12-2020
Sakya Sen, Advocate, Sukrit Mukherjee, Advocate, Arindam Paul, Advocate, Amitesh Banerjee, Advocate, Ipsita Banerjee, Advocate
The Competent Authority has the power to issue directions if the Association fails to perform its functions under the Act or Bye-laws, and the declaration filed under Section 10 is amenable to amendment when there is a change in the Act, the Rules, or Bye-laws.
Headnote:
West Bengal Apartment Ownership Act - Maintenance Charges - Section 16B, Bye-law 10 - [1972 Act, Section 16B; 1974 Bye-laws, Bye-law 10] - The court discussed the provisions of the West Bengal Apartment Ownership Act, 1972 and the Bye-laws, particularly focusing on Section 16B and Bye-law 10. The court emphasized the Competent Authority's power to issue directions if the Association fails to perform its functions and the jurisdiction to interdict the action of the Boards in respect of maintenance of common areas and facilities. The court also highlighted the procedure for amending the declaration under Section 10 and the circumstances under which a declaration may be amended.
Fact of the Case:
The Greenwood Park Extension Apartment Owners' Association filed a writ application against an order directing the calculation of maintenance charges on the basis of the built-up area of the flats, instead of the value of each individual flat as stipulated in the West Bengal Apartment Ownership Byelaws, 1974. The LIG flat owners argued that they were unfairly burdened with increased maintenance charges despite being deprived of certain facilities enjoyed by HIG and MIG owners.
Finding of the Court:
The Competent Authority was justified in directing the petitioner-Association to file an amended Form 'A' declaration, along with Form 'B' specifying the cause and scope of such amendment, in terms of Rule 5 of the 1974 Rules. The maintenance charges were correctly ordered to be paid pro rata on the basis of the value of the flats, till such amended Form 'A' and connected Form 'B' were submitted.
Issues: The issues revolved around the calculation of maintenance charges, the Competent Authority's jurisdiction, the amendment of the declaration under Section 10, and the rights of LIG flat owners in relation to the facilities enjoyed by HIG and MIG owners.
Ratio Decidendi: The Competent Authority has the power to issue directions if the Association fails to perform its functions under the Act or Bye-laws. The declaration filed under Section 10 is amenable to amendment when there is a change in the Act, the Rules, or Bye-laws. The maintenance charges were correctly ordered to be paid pro rata on the basis of the value of the flats, till such amended Form 'A' and connected Form 'B' were submitted.
Final Decision: The writ petition was dismissed without any order as to costs.
JUDGMENT
Sabyasachi Bhattacharyya, J. - The Greenwood Park Extension Apartment Owners' Association, a registered Association under the provisions of the West Bengal Apartment Ownership Act, 1972 (in brief, "the 1972 Act") and its Secretary have preferred the instant writ application against an order dated April 12, 2019, whereby the Competent Authority under the 1972 Act, upon hearing the grievance of Low Income Group (LIG) residents of the said apartment regarding maintenance charges and allied issues, ordered that the Association shall collect maintenance charges on the basis of the value of each apartment; if the Association wants to collect maintenance charges on the basis of built-up area of the apartment then they have to amend the Form 'A' in accordance with present format by submitting Form 'B'. It was also ordered that all facilities, that is, community hall, lobby, gymnasium, etc., shall be opened for the use of all the owners.
2. The petitioners argue that the West Bengal Apartment Ownership Byelaws, 1974 (in brief, "the 1974 Bye-laws") originally stipulated that maintenance charges would have to be calculated on pro rata basis according to the value of each individual flat as provided in Form 'A', being the declaration submitted under Section 10(1)(g) of the 1972 Act. However, with effect from February 26, 2016 such system was replaced, providing that maintenance charges were to be calculated pro rata according to the built-up area of the flats. With effect from November, 2016, the Board of Managers of the Association started raising maintenance bills on the flat owners as per the amended provisions of the 1974 Bye-laws. Such calculation on the basis of built-up area, instead of the value of the flats, became a bone of contention between the complainants (LIG owners) and the Board.
3. Learned counsel for the petitioners submits that, as per the amended Bye-law 20(2) of the 1974 Bye-laws, the maintenance charges have to be calculated pro rata according to the built-up area in terms of Form 'A'. Since the Form A submitted in respect of Greenwood Park Extension reflects the built-up areas of all 276 flats within the apartment complex, the petitioners submit that there is no impediment to calculation of the maintenance charges on the basis of such built-up area.
4. Due to application of the amended rates, the LIG flat owners lost advantage as the value of their flats, which was the previous basis of calculation, was much lower in comparison with Middle Income Group (MIG) and High Income Group (HIG) owners due to Government subsidies granted during allotment. Thus, the share of the LIG owners in the maintenance charges stood increased.
5. Learned counsel for the petitioners argues that the office of the Competent Authority is defined under Section 3(g) of the 1972 Act, which does not confer jurisdiction to receive, entertain or adjudicate on private disputes among flat owners or between a group of flat owners and the Board of Managers. Thus, the Competent Authority acted without jurisdiction in passing the impugned order.
6. Moreover, it is argued, as per the amendment dated February 26, 2016, Bye-law 20(2) now contemplates maintenance charges to be calculated pro rata according to built-up area. The impugned order, in violation of such amended Bye-law, stipulated maintenance charges to be calculated on the basis of the value of the flats.
7. Since Form A was submitted in respect of the apartment-in-question in the year 2010 and stands unchallenged till date, the Competent Authority acted illegally in directing an amendment thereof.
8. Learned counsel for the petitioners next submits that the Competent Authority has taken a new stand in the affidavit-in-opposition, contending that since the petitioner-Association was registered under the 1972 Act prior to the 2016 amendment, such amendment does not apply to the Association, since the amendment does not have retrospective effect. It would necessarily follow from such logi
