Acceptance of a Declaration under the West Bengal Apartment Ownership Act is invalid if made without proper notice to all concerned parties and adherence to statutory requirements.

Judgment :

Sabyasachi Bhattacharyya, J.

1. The petitioners and the private respondents are owners of different flats in a housing complex, namely Greenfield City, which schematically includes three categories of towers – the LIG, MIG and HIG segments. As per the allegations of the petitioners, they, along with the majority members of the HIG segment of the said housing complex, were preparing to file a Declaration for registration of the towers allocated for the HIG section under the West Bengal Apartment Ownership Act, 1972 (hereinafter referred to as “the 1972 Act”). However, the private respondents, comprising a miniscule section of flat owners of different segments, without proper notice to the petitioners or other majority owners, filed a Declaration in Form-A under the 1972 Act, seeking registration of the same under the said Act. Such Form was accepted by the Competent Authority (CA) under the Act on April 12, 2022.

2. Upon the petitioner learning of the same, they made a representation, on which a “speaking order” was passed by the CA on March 9, 2023, being aggrieved by which a writ petition, bearing WPA No. 19702 of 2022 was moved by the petitioners. A learned Single Judge of this Court, by an order dated September 14, 2022, remanded the matter to the CA, directing the latter to pass a fresh order with reasons within the period as specified therein. The said order questioned the CA‟s previous finding that it had no power to review its own decision, but left it open to the CA to decide all questions afresh on merits.

3. Subsequently, upon hearing both sides, the CA reiterated its stand, as taken in the previous order dated August 3, 2022, by passing another “speaking order” on March 9, 2023, thereby reiterating that it did not have the power to review its own order.

4. The present writ petition challenges the said order of the CA dated March 9, 2023. Arguments have been advanced by both parties on the legality of the acceptance of Declaration filed by the private respondents in Form-A on April 12, 2022, which merged in the order dated March 9, 2023. As such, the writ petition in effect challenges the decision of the CA to accept the Declaration filed by the private respondents in the first place, which culminated in and merged into the decision dated March 9, 2023 whereby the CA refused to recall such acceptance.

5. Learned counsel for the petitioners contends that no prior notice under Section 10A (1) was given to the remaining owners before submitting the Form-A to the CA. It is argued that, within the contemplation of Sections 2 and 10A of the 1972 Act, either the sole owner or all the owners or the majority of the owners are entitled to submit a Declaration in Form-A, whereas the private respondents comprised of only a miniscule number of the owners.

6. That apart, it is argued that the Declaration was signed on behalf of one of the private respondents purportedly by a constituted attorney, which is not permissible under the 1972 Act. It is next argued that under Rule 2A of the West Bengal Apartment Ownership Rules, 1974 (for short, “the 1974 Rules”), framed under the 1972 Act, the sole owner or all the owners or the majority of the owners must submit their property within three years from the date of the issuance of Completion Certificate by the CA. Thus, the issuance of Compliance Certificate is man