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IN THE HIGH COURT AT CALCUTTA
MOUSHUMI BHATTACHARYA, J.
South City Apartment Owners’ Association & Others - Appellant
Versus
The State of West Bengal & Others - Respondent
W.P.A. No. 2269 & 2334 of 2023
Decided On : 08-02-2023
WEST BENGAL APARTMENT OWNERSHIP ACT - ELECTION OF MANAGERS - BYE-LAW 8 - ONLINE VOTING THROUGH CDSL PLATFORM - VALIDITY
Fact of the Case:
Petitioners sought to quash an order of the Competent Authority directing them to conduct the election of the Managers of the Association only through manual voting. The Competent Authority's order was based on a complaint that online voting through the CDSL platform would be contrary to the West Bengal Apartment Ownership Bye-laws, 2022.
Finding of the Court:
The Court held that the impugned order was liable to be quashed for the following reasons: (i) Bye-law 8(2) of the West Bengal Apartment Ownership Bye-laws, 2022 requires the election to be held by secret ballot but does not specify that it shall only be held by manual voting; (ii) the Special General Meeting held in this case resulted in a majority of members voting in favor of a hybrid mode of voting; (iii) there was no reason to suspect the secrecy credentials of the CDSL Platform; and (iv) the practicalities of the situation, with 40% of the residents being NRIs or living outside the State, made online voting a more feasible option.
Issues: Whether online voting through the CDSL platform for the election of the Managers of the Association was valid under the West Bengal Apartment Ownership Bye-laws, 2022.
Ratio Decidendi: The Court held that Bye-law 8(2) of the West Bengal Apartment Ownership Bye-laws, 2022 does not require the election to be held only by manual voting. The Court also held that the decision of the Special General Meeting to adopt a hybrid mode of voting was in accordance with Bye-law 8(2). Further, the Court held that there was no reason to suspect the secrecy credentials of the CDSL Platform and that the practicalities of the situation made online voting a more feasible option.
Final Decision: The Court allowed the petitions and quashed the impugned order of the Competent Authority. The petitioners were directed to conduct the election of the Board of Managers of the Apartment building in terms of the decision taken in the Special General Meeting held on 8.01.2023, that is, by hybrid mode.
JUDGMENT
1. The petitioners are an Association of apartment owners of South City Housing Complex, the President of the Association and residents of the building complex. The petitioners seek quashing of an order passed by the Competent Authority, under the provisions of the West Bengal Apartment Ownership Act, 1972 on 25.1.2023 whereby the Competent Authority directed the petitioners to conduct the election of the Managers of the Association only through manual voting. The petitioners were also directed to complete the process of election of the Managers and form a new Board of Managers within 5.2.2023. The private respondent no. 3 is a resident of South City Apartment Complex on whose complaint the Competent Authority passed the impugned order.
2. The basis of challenge to the impugned order of the Competent Authority is on certain undisputed facts which would appear from the impugned order itself. These are as follows.
3. The tenure of the existing Board of Managers of the Association of the building complex was to end on 31.5.2020. The election of the Managers however could not be held within the statutory time period due to the Covid- 19 pandemic. The President of the Association/petitioner no. 2 therefore announced the elections on 17.12.2022 and 18.12.2022 in hybrid mode i.e. through physical as well as online mode. The Competent Authority, acting on certain complaints received from members of the Association, directed the President of the Association to immediately convene a Special General Meeting of the Association for deciding the manner of election of the Managers of the Board and to conduct the election in accordance with the manner decided by the members in the Special General Meeting. The election of the Managers of the new Board was thereafter extended to 30.1.2023. The Special General Meeting was held on 8.1.2023 in compliance with the direction of the Authority and the members were given two options in respect of the manner of election. The first option was a combination of online and manual voting and the second option was only for manual voting.
4. Of the total number of 341 votes polled, 197 voted for hybrid while 144 for only manual voting. The online voting was decided to be done through the CDSL Platform.
5. The private respondent no. 3 complained to the Authority by a mail dated 11.0.1.2023 against the decision taken in the Special General Meeting alleging that online voting was contrary to the West Bengal Apartment Ownership Bye-laws, 2022.
6. The Authority came to the conclusion that the election must preserve the condition of secret ballot. The Authority further concluded that online voting through the CDSL platform would be inconsistent with Bye-law 8 and hence directed the President of the Association to conduct the election of the Managers of the Association only through manual voting. The time for forming a new Board of Managers was extended till 5.2.2023 and the new Board was to take charge by 6.2.2023. The petitioners approached the Court on 30.1.2023 for urgent relief.
7. The contention of the petitioners, through learned counsel, is that the election of the Board of Managers through the CDSL Platform would not dilute the secrecy contemplated in Bye-law 8 in any manner whatsoever. Counsel also relies on the decision of the majority of the members taken at the Special General Meeting for a hybrid method of election. Counsel further urges the practical difficulties in conducting the election through manual voting where 40% of the residents of the complex are NRIs and living outside the State.
8. Learned counsel appearing for the Competent Authority proposes that the election be held by way of postal ballot and disagrees with the arguments with regard to the efficacy of the CDSL Platform.
9. Learned counsel appearing for the private respondent no. 3 submits that the condition of secrecy in holding election is a statutory requirement under the West Bengal Apartment Ownership Bye-laws, 2022 and that the C
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