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2024 Supreme(Cal) 1381
IN THE HIGH COURT AT CALCUTTA
SABYASACHI BHATTACHARYYA, J.
Anirban Roychoudhury and Others – Petitioners
Versus
Ram Kumar Jha and Others – Respondents
R.V.W.O. No. 7 of 2024, IA No. G.A. 1 of 2024, W.P.O. No. 1755 of 2023
Decided On : 14-05-2024
Advocate Appeared:
For the Petitioners: Biswaroop Bhattacharya, Raja Saha, Amit Ghosh, Ranit Roy.
For the Respondents: Krishnaraj Thaker, Soumava Mukherjee, Rohan Raj, Indranil Munshi, Vedika Bhotika, Anushka Sarkhel.
For the State : Anirban Ray, Sk. Galib, Ashmita Chakraborty.
IMPORTANT POINT
Resignation under the Bye-Laws is not effective until formally accepted by the Board, and suppression of non-material facts does not warrant a review of a court order.
Headnote:
Review - Writ Petition - West Bengal Apartment Ownership Act, 1972; 2022 Bye-Laws - The court discussed the provisions regarding resignation and acceptance, emphasizing that resignation is not effective until accepted by the Board, influencing the decision to dismiss the review application.
Fact of the Case:
The applicants sought a review of a judgment that set aside an order of the Competent Authority under the West Bengal Apartment Ownership Act, arguing that the writ petitioner had resigned and misrepresented his status.
Finding of the Court:
The court found no error apparent on the record, stating that the writ petitioner's resignation was never accepted, and thus he retained the right to maintain the writ petition.
Issues: Whether the writ petitioner suppressed material facts regarding his resignation and whether the court should review its earlier judgment based on these claims.
Ratio Decidendi: The court held that a resignation is not effective until accepted by the Board, and suppression of facts must be material to the adjudication to vitiate a court order.
Result: The review application was dismissed without costs.
JUDGMENT :
SABYASACHI BHATTACHARYYA, J.
1. The applicants, who are respondent nos. 3 to 5 in the writ petition, have preferred the present application for review of a judgment and order dated January 30, 2024 passed in WPO No. 1755 of 2023.
2. The writ petition had been allowed, setting aside an order of the Competent Authority (CA) under the West Bengal Apartment Ownership Act, 1972 dated October 17, 2023 along with a preceding show-cause Notice dated October 10, 2023 and reviving the Board of Managers (BoM) prevailing immediately prior to October 17, 2023.
3. Learned counsel for the applicants contends that the court failed to take into consideration a letter dated October 7, 2023 whereby the writ petitioner had tendered his resignation from the post of Vice-President. It is argued that as on the date of passing of the order under review, the writ petitioner Ram Kumar Jha no longer retained his status as Manager or Vice President of the concerned Association. Thus, fraud was played on the court by not disclosing that he had put in his papers on October 7, 2023 itself.
4. It is argued that the writ petitioner had asserted that he was Vice President of the Association on October 10, 2023 and had every right to represent the Board in the absence of the President.
5. It is argued that the court, while passing the order under review, had observed that there were at least five existing members of the BoM which was an error apparent on the face of the record occasioned by suppression by the writ petitioner. It is submitted that there were only four members on October 10, 2023 and three members of the BoM during the period between 11th and 17th of October, 2023.
6. The resignations of 36 out of 45 members of the BoM had been suppressed as had been the further resignations of five others respectively on October 8 and October 10, 2023 and other two resignations during pendency of the writ petition. It is sought to be contended that till after the conclusion of oral arguments on January 17, 2024, despite exercise of due diligence, the applicants were not posted with the fact, nor were they privy to the communications received on the official e-mail addresses of the Association or the BoM or the CA.
7. Learned counsel appearing for the applicants-places reliance on several judgments in support of his contention that the court is not precluded from taking note of subsequent material events if they have a bearing on the adjudication even after the hearing is concluded. The court, it is contended, can always correct its mistakes even at the stage of passing of judgment.
8. In refuting such arguments, learned counsel appearing for the respondent no. 1/writ petitioner, contends that there was no mistake apparent on the face of the record. Learned counsel for the writ petitioner submits that mere production of the e-mail dated October 7, 2023 cannot be a ground for review. It was admittedly within the knowledge of the review applicants as far back as on October 10, 2023 and was also evident from the e-mail dated October 11, 2023, which was duly disclosed by the writ petitioner, that the writ petitioner’s resignation was intended initially to take effect from October 7, 2023.
9. That apart, it is argued that the court, in its order under review, had come to the conclusion that even independent of the writ petitioner’s status as Vice President of the Association, he was entitled to maintain the writ petition as resident and apartment owner and therefore a member of the Association.
10. Further, whether there were five members or three members of the BoM is of no significance as none of their resignations, including that of the writ petitioner, was complete in terms of Clause 13(2)(b) of The West Bengal Apartment Ownership Bye-Laws, 2022 (hereinafter referred to as, “the 2022 Bye-Laws”).
11. It is argued that as long as there were three members, casual vacancy caused by the purported resignation of the other members could be filledup by holding special elec
