RAM KUMAR JHA Vs. STATE OF WEST BENGAL

JUDGEMENT

(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(CA) under the said Act, purportedly in exercise of its powers under Sec. 16B of the 1972 Act, removed the BOM, and superseded them forthwith, appointing an Administrator to perform the functions of the BOM for three months.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 Sec. 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.