{"id":305615,"date":"2023-10-25T13:00:09","date_gmt":"2023-10-25T07:30:09","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=305615"},"modified":"2023-10-26T14:39:54","modified_gmt":"2023-10-26T09:09:54","slug":"competent-authority-enquire-alleged-irregularities-diamond-city-west-apartment-owners-association-calcutta-hc-scc-blog","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2023\/10\/25\/competent-authority-enquire-alleged-irregularities-diamond-city-west-apartment-owners-association-calcutta-hc-scc-blog\/","title":{"rendered":"Calcutta High Court directs Competent Authority to enquire alleged irregularities in Diamond City West Apartment Owners\u2019 Association"},"content":{"rendered":"
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Calcutta High Court:<\/span> In a petition seeking Court’s opinion about the Competent Authority’s obligation to investigate the irregularities regarding illegal functioning of the Diamond City West Apartment Owners’ Association (Association) under Section 16-B<\/a> of the West Bengal Apartment Ownership Act, 1972<\/a> (the Act), a single-judge bench comprising of Sabyasachi Bhattacharyya<\/span>,* J., held that the Competent Authority is obligated to investigate the complaints regarding the functioning of the Association and directed the Competent Authority to conduct a preliminary investigation and form an opinion within two weeks. The Court rejected the respondents’ arguments against individual members filing complaints with the Competent Authority.<\/p>\n

Factual Matrix<\/p>\n

In the instant matter, the petitioner is a flat owner and a Board Manager of the Diamond City West Apartment Owners’ Association, which is a residential complex registered under the Act. The petitioner lodged complaints about the illegal functioning of the Association and provided evidence, but the respondent-authorities have ignored them. The complaints concern serious allegations of misappropriation of funds from the public and the petitioner fears account manipulation once evidence is given to the respondents 2 to 11, who are allegedly involved in the misconduct.<\/p>\n

The petitioner raised these grievances through numerous emails and WhatsApp messages, but the respondent authorities allegedly suppressed these allegations. It was claim that the Association’s President has never included these grievances as an agenda in Annual General Meetings (AGMs) or Special General Meetings (SGMs).<\/p>\n

The petitioner asserted that when they raised grievances marked as Annexure P-10, there was no functioning Grievance Redressal Committee, as two members had become Board Managers and resigned. The Committee was reinstated after the writ petition was filed, with members selected by the respondents.<\/p>\n

The petitioner preferred the writ petition before this Court contending that the Competent Authority is obligated to investigate the irregularities under Section 16-B<\/a> of the Act<\/a>.<\/p>\n

Moot Point<\/p>\n

Whether the Competent Authority under the Act has a duty to investigate complaints raised by the petitioner regarding the functioning of the Association?<\/p>\n

Legal Arguments<\/p>\n

The petitioner contended that the provision of Bye-Law 16(4) of the West Bengal Apartment Ownership Bye-Laws, 2022, is not mandatory. It contended that there is a discrepancy in the number of car parking spaces in the residential society as per the deed of declaration filed under the West Bengal Apartment Ownership Rules, 1974. It was contended that this inconsistency requires amendment, but the respondents 2 to 11 have taken no steps to address it.<\/p>\n

The respondent 1-Competent Authority argued that the Act does not grant Competent Authority powers equivalent to a Civil Court. The disputes raised in the case are beyond the jurisdiction of the Competent Authority, as the Competent Authority cannot adjudicate disputed facts, which falls under the jurisdiction of a Civil Court. It was contended that the Act does not confer any statutory right on members, managers, or office bearers of an association to file a petition before the Competent Authority for adjudication. Furthermore, there is no provision in the Act to bar the jurisdiction of Civil Courts. It was further contended that Section 16-B(2)<\/a> of the Act<\/a> allows the Competent Authority to act only upon receipt of complaints substantiated by a majority of members dealing with issues like violations of statutory compliance or maintenance of Bye-Laws.<\/p>\n

The respondents. 2 to 11 argued that the writ petition is an attempt to address private disputes under the guise of representations to the CA to invoke Article 226<\/a> of the Constitution of India<\/a>. They claim there has been no violation of any statutory provision to warrant Article 226.<\/p>\n

Legal Principles<\/p>\n