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2024 Supreme(Cal) 88
IN THE HIGH COURT AT CALCUTTA
Sabyasachi Bhattacharyya, J.
Ram Kumar Jha – Petitioner
Versus
The State of West Bengal and Others – Respondents
WPO No. 1755 of 2023
Decided On : 30-01-2024
Advocate Appeared:
For the Petitioner: Mr. Krishnaraj Thaker, Adv., Mr. Soumavo Mukherjee, Adv., Mr. Indranil Munshi, Adv., Mr. Vinayak Chaubey, Adv., Ms. Vedika Bhotika, Adv., Mr. Subhankar Chatterjee, Adv.
For the Respondent: Mr. Somnath Ganguli, AGP., Mr. Sukalpa Seal, Adv., Mr. Biswaroop Bhattacharya, Adv., Mr. Raja Saha, Adv., Ms. Sharmistha Ghosh, Adv., Mr. Amit Ghosh, Adv., Mr. Subhrojyoti Mookherjee, Adv
IMPORTANT POINT
The central legal point established in the judgment is the requirement for compliance with legal provisions, fair opportunity for the Board to defend against allegations, and the necessity of valid grounds for removal of the entire Board under the relevant legal framework.
Headnote:
Show-Cause Notice - West Bengal Apartment Ownership Act, 1972 - Section 16B - 2022 Bye-Laws - [Section 16B of the 1972 Act, Clause 7(2) and 10(b) of the 2022 Bye-Laws] - The court discussed the validity of the Show-Cause Notice and the impugned Order dated October 17, 2023, highlighting the non-compliance with legal provisions, lack of opportunity for the Board to defend against the allegations, and the absence of valid grounds for removal of the entire Board. The court found the Show-Cause Notice and the impugned Order to be vitiated in law and beyond the jurisdiction and authority of the CA, and subsequently set them aside, reviving the previous Board of Managers and removing the Administrator appointed in the interregnum.
Fact of the Case:
The petitioner, claiming to be a Vice-President of a Society registered under the West Bengal Apartment Ownership Act, challenged the Competent Authority's Order removing the Board of Managers (BOM) and appointing an Administrator based on a Show-Cause Notice. The petitioner argued various irregularities in the issuance and content of the Show-Cause Notice and the subsequent Order.
Finding of the Court:
The court found the Show-Cause Notice and the impugned Order to be vitiated in law and beyond the jurisdiction and authority of the CA, and subsequently set them aside, reviving the previous Board of Managers and removing the Administrator appointed in the interregnum.
Issues: Validity of the Show-Cause Notice, jurisdiction and authority of the Competent Authority, compliance with legal provisions, and the grounds for removal of the entire Board.
Ratio Decidendi: The court emphasized the importance of compliance with legal provisions, the need for providing a fair opportunity for the Board to defend against allegations, and the requirement of valid grounds for removal of the entire Board under the relevant legal framework.
Final Decision: WPO No. 1755 of 2023 is allowed on contest, thereby setting aside the impugned order of the CA dated October 17, 2023 along with the Show-cause Notice/Order dated October 10, 2023 leading to the same, both of which are hereby quashed. The Board of Managers prevailing immediately prior to the impugned Order dated October 17, 2023 is, thus, revived. The Administrator appointed in the interregnum is hereby removed. There will be no order as to costs. The operation of the above order is stayed till February 16, 2024.
JUDGMENT :
Sabyasachi Bhattacharyya, J.
1. The petitioner claims to be a Vice-President of a Board of Managers (BOM) of a Society registered under the West Bengal Apartment Ownership Act, 1972 (hereinafter referred to as, “the 1972 Act”) being the Kolkata Uniworld City Apartment Owners’ Association. The present challenge has been preferred against an Order dated October 17, 2023 whereby the Competent Authority (CA) under the said Act, purportedly in exercise of its powers under Section 16B of the 1972 Act, removed the BOM, and superseded them forthwith, appointing an Administrator to perform the functions of the BOM for three months. Prior to such removal, a Show-cause Notice was issued by the CA on October 10, 2023 to the erstwhile President of the Association. Learned counsel for the petitioner argues that the Show-cause Notice dated October 10, 2023 mentions as its basis a complaint petition dated October 9, 2023 from an “aggrieved resident” residing in the Uniworld City Horizon-3, 1801, described as a member of the Association. The said complaint was, in terms of the language of the show-cause, the sole trigger for the Show-Cause Notice. However, it is pointed out that under Section 3(ia) of the 1972 Act, an “owner” under the Act has to be an owner in relation to any property or part or apartment. The complainant, one Dr. Praveen Kumar, being merely a tenant in respect of an apartment and not its owner, did not qualify as a member. Thus, the premise of the Show-Cause Notice was bad.
2. It is next argued that the CA took a contradictory stand subsequently by observing in its impugned Order dated October 17, 2023 that the complaint petition had been made not only by Dr. Praveen Kumar but also by one Surya Narayan Bhattacharya, thereby deviating from the statement made in the Show-cause Notice itself that there was a sole complainant.
3. It is next contended that the Show-cause Notice was issued to the personal e-mail ID of one Partha Pratim Chatterjee, the erstwhile President of the Association. However, the President had resigned on October 7, 2023 and had intimated about such resignation by an e-mail dated October 9, 2023 to the CA. In fact, the outgoing President had clearly nominated in his e-mail dated October 12, 2023 two persons namely one Mr. Vikas Kumar and one Mr. Akshay Prakash, as having accepted the responsibility of discharging their respective duties post the resignation of the President and had urged the CA to communicate with the said persons. However, despite being communicated about the resignation on October 9, 2023, the Show-cause Notice was issued to the personal e-mail of the resigned President on the very next day, that is, October 10, 2023. Even in the affidavit-in-opposition affirmed in connection with the present writ petition, the CA has admitted the same.
4. It is further argued that although it was mentioned in the Show-cause Notice that a copy of the complaint petition was annexed thereto, actually no such complaint was served or attached to the show-cause. Despite the non-service being pointed out by the erstwhile President, no copy of the complaint was ever produced by the CA either before this Court or served upon anybody.
5. In fact, at the time of argument, learned counsel for the State/CA admits that no copy of the complaint was ever attached to the Show-cause Notice, although erroneously mentioned in the show cause to have been annexed thereto.
6. Learned counsel for the petitioner argues that the CA could have served the Show-cause Notice on the existing five members or the two members nominated by the outgoing President and/or on the present petitioner who is the Vice-President of the Association.
7. Although the petitioner resigned from his post as Vice-President by an e-mail communication dated October 11, 2023 to the CA, requesting the same to be accepted with effect from October 7, 2023, as on October 10, 2023, when the Show-cause Notice was issued, the petitioner was still a Vice-Presiden
