IMPORTANT POINT
The court established that the election process for a statutory association must include all eligible voters, and exclusion of votes violates legal provisions.

JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. The matter relates to the Siddha Town Rajarhat Residents’ Association which was formed in respect of a housing complex under the West Bengal Apartment Ownership Act, 1972 (hereinafter referred to as, “the 1972 Act”) and the West Bengal Apartment Ownership Bye-Laws, 1974 (for short, “the Bye-Laws”).

2. The said housing complex is comprised of several blocks, one of which is called Magnolia, which is the epicenter of the present dispute.

3. An election was duly declared by the Presiding Officer of the Election Commission (EC) duly formed for conducting the first election, at the behest of the Ad Hoc Committee which was in charge of affairs after the formation of the Association. The modalities of the election were stipulated in the Election Notice dated March 3, 2024.

4. The election took place on March 10, 2024 but was tainted by controversy. Several residents, including the respondent no. 7, had raised objection in respect of the nomination of the petitioner. After the votes were cast, a furore arose regarding the petitioner having written an e-mail to the EC. In the said email, the petitioner had requested the EC to visit the flat of one Veena Singh, a resident of the Magnolia Block, on the ground of her inability to walk to the election area and to take her vote by homeballot. When the EC members later went there, Veena Singh refused to cast her vote and also wrote to the EC to indicate that she had not granted any authority to the petitioner to make such request and did not want to be a part of the election process. The said stand was reiterated in writing subsequently by her husband as well.

5. As a fallout of the arguments, the Presiding Officer alleged that the election process went on till well into the midnight and that he and the other members of the Committee were heckled by the respondent no. 7 and certain other residents. As a result, the Presiding Officer and almost all the EC members subsequently resigned. However, at the behest of one of the purported elected members, the election results were communicated to the Competent Authority (CA) who declared the elections valid as well as published the results.

6. In the entire process, the ballot box and home ballot box containing the votes cast by the residents of the Magnolia Block were kept sealed and were not counted for the purpose of declaring the election results.

7. The petitioner challenges the said election and declaration of results and argues that either the entire election process is to be scrapped or the votes cast by the residents of Magnolia ought to be counted and the results declared afresh.

8. Learned counsel appearing for the petitioner contends that there is no provision in the 1972 Act and the Bye-Laws to cancel a nomination after the election is conducted.

9. It is argued that Clause 3(2) of the Bye-Laws provides for making one apartment owner as Presiding Officer regarding formation of an Association of apartment owners and Clause 8 casts a duty upon the Presiding Officer to hold the election for Managers of the Board and complete the process of election, which was duly complied with in the present case. Out of the 29 Blocks and 1386 apartment owners involved, a large chunk residing in the Magnolia Block were overlooked. Thus, the formation of the Board of Members, who in turn elected the officer bearers, itself is vitiated due to non-counting of the Magnolia votes.

10. Learned counsel argues that the Bye-Laws came into force as per Section 13(1) of the 1972 Act and have statutory force. The flouting the said provisions, it is argued, is de hors the law.

11. Insofar as Veena Singh is concerned, it is argued that in the year 2022 as well, she had requested the petitioner to have her vote collected by home ballot and the petitioner had written a similar e-mail to the EC which was given effect to. Thus, the petitioner, this time also, made a similar request. In any event, it was for the EC to decide on such request an