An apartment or a flat is a self contained housing unit that forms part of a building. Under West Bengal Apartment Ownership Act, 1972, (the Act) Section 3(a), an apartment means a property that has direct exit to a road or to a common area leading to such road and the apartment along with common areas and facilities forms an independent residential unit and it also includes a flat.
The object of the Act is to provide for ownership of an individual apartment and to make such apartment heritable and transferable property. The concept of apartment was born due to increasing population and growing need for housing in India and West Bengal. The object of the Act is not just to make such apartment units heritable and transferable but also to set out the common areas and facilities and the percentage share of each apartment owner in the apartment building. Most States in India have separate apartment ownership Acts that regulate such units in different States.
The main difference in Apartment Ownership Acts in different States of India is the purpose for which such apartments are utilized. While in States such as Maharashtra and Haryana, apartments can be utilized for residential as well as commercial purposes, apartments in West Bengal are Kerala are predominantly utilized for only residential purpose. Under West Bengal Apartment Ownership Act, 1972, Section 2, the Act applies to every building which is used, or is to be used, mainly for residential purposes.
Under West Bengal Apartment Ownership Act, 1972, Section 3(b), an association of apartment owners means the association competent to contract its own name and formed in accordance with provisions made in the bye-laws of the association. This association can be formed in accordance with the Act and the West Bengal Apartment Ownership Rules, 1974.
The association works for the welfare of the residents in an apartment, conducts events and protects the rights of the apartment owners by maintaining varied duties.
The association in West Bengal can be formed by all the owners individually or they can give power of attorney to one person who can submit the building or property under the provisions of the Act. The benefit of registering the property under the Act is that it provides legal help to the residents in case of disputes. Further, it helps in organizing the maintenance of the society and provides clear bye-laws for the residents to abide and follow. If any association is formed which engages in maintaining the property or building without registering under the Act then it is cannot be termed as illegal per se but it is rather an interim/ad-hoc/unregistered association which needs to be registered under the Act.
Steps for Formation of Registered Apartment Owner’s Association under the Act:
The fee for registering association is commensurate with the total value of the apartments of the building (i.e. if there are 8 flats of value Rs. 10,00,000/- each the total value of the Apartments will be Rs. 80,00,000/0_ is to be deposited with the Reserve Bank of India in T.R. Form No. 7 under the appropriate head of account. The T.R.Form No. 7 and computerised receipt of the Reserve Bank of India (both original) and 1 set photocopy of both are to be enclosed.
(i) Amount of Fees :
(a) Upto Rs. 25 lakhs – Rs. 1000/-
(b) Above Rs. 25 lakhs upto Rs. 50 lakhs – Rs. 2000/-
(c) Above Rs. 50 lakhs upto Rs. 1 crore – Rs. 4000/-
(d) Above 1 crore upto Rs. 5 crores – Rs. 5000/-
(e) Above Rs. 5 crores – Rs. 10,000/-
(ii) Appropriate Head of Account :
“0216 – Housing – 02 – Urban Housing – 800 – Othen
Receipts – 008 – Receipt under the West Bengal Apartment
Ownership Act, 1972 – 16 – Other Fees”
(iii) Account Code : 0216 – 02 – 80000816.
(iv) Name of the Treasury : Kolkata P.A.O. – II
A specimen of duly filled in T. R. Form No. 7 is given below:
[See sub-rule (2)(b) of T.R. 3.06]
Challan for Deposit of money in the account of
GOVERNMENT OF WEST BENGAL
(b) Treasury Code :
(14-Digit must be filled up properly)
(b) In words : Rupees Two hundred fifty only.
*(b) T. V. No. & Date of A. C. Bill :
Verified West Bengal
Signature of Department/Treasury Officer
Depositor’s Signature Treasury Receipted Challan No.
Date : Bank Scroll Serial No.
Received payment Signature with seal of the Bank
*In respect of Challan relating to refund of unspent amount of A.C.Bill.
(6) In case the Declarant is the constituted attorney of the apartment owners he must enclose a photocopy of the Deed of Power of Attorney duly attested by a Notary
(b) Disposal of Form A by the Competent Authority:
If the Form A filed by the Declarant(s) is found in order the Competent Authority will accept the Form A and return one set of Form A duly endorsed as “Accepted” to the applicant(s).
Declaration under section 2 – read with section 10 of the West Bengal Apartment
Ownership Act, 1972.
[ See sub-rule (1) of rule 3 and sub-rule (1) of rule 5 ]
1. In pursuance of section-2 of the West Bengal Apartment Ownership Act, 1972, read with sub-section (1) of section 10 of the said Act, I/we hereby declare that I am the sole owner/we are all the owners/we are majority of the owners (delete the phases not applicable) of the property situated at Premises No./Dag No.______________ in the City/ Town/ Village of______________________________ having its full postal address________ ___________________________________________________________________ and do further declare that hereby I/we submit the said property comprising a building or buildings having residential units/both residential and commercial units together with common areas and facilities to the provisions of the West Bengal Apartment Ownership Act, 1972 (West Bengal Act XVI of 1972).
Authenticated copies of the building plan and site plan, prepared by ______________ ___________________________________________________________________ and sanctioned by _________________________________________________________________ are appended herewith and marked respectively as Annexure ”A” and “B”.
The copy of relevant Completion Certificate is also appended herewith and marked as Annexure “C”. The copies of Voter Card/PAN Card of the declarants for identification as Annexure “D” collectively.
The copies of receipt of letter in Form-E served to all the Apartment Owners are appended herewith as Annexure “E” collectively.
2. We_____________________________________________________________________ do hereby furnish further the following particulars as required under sub-section (1) of section 10 of the said Act –
A. Description of the property –
i) Area and description of the land upon which the building/buildings
is/are constructed :
ii) Area and description of the building/buildings
Building No. :
(a) Total Built up area :
(b) Number of storeys :
(c) Number of apartments :
(d) Other particulars, if any :
iii) Area and description of common areas and facilities :
(a) Lawn, Parks etc. :
(b) Road, Pathways :
(c) Other common areas, if any :
(d) Water supply arrangements :
(e) Street light within the property :
(f) Internal drainage :
(g) Other common facilities, if any :
(iv) Description of the limited common areas and facilities, if any
stating to which apartments their use is reserved :
(v) Value of the property :
(vi) Nature of interest of the owner/owners in the property :
(vii) Existing encumbrances, if any, affecting the property :
(B) Description of common areas and facilities in respect of each building –
(a) Foundation and main wall of the building/buildings :
(b) Stairway :
(c) Water tank :
(d) Plumbing network :
(e) Electric wiring network :
(f) Other common areas :
(C) Description of each apartment or each building-Apartment No……………
or Building No. ……………………….
(a) Location :
(b) Approximate area :
(c) Number of rooms :
(d) Immediate common area to which it has access :
(e) Any other information necessary for its proper identification :
(f) Built up area of the apartment :
(D) Percentage of individual interest in the common areas and facilities
appertaining to each apartment and its owner for all purposes including
(E) Other particulars, if any :
3. I/We………………………………………………………………………………………. do hereby
further declare, covenant and undertake as follows –
(i) that each apartment constitutes a single residential unit, transferable and heritable as such, but shall not be partitioned or subdivided for any purpose whatsoever;
(ii) that each apartment owner, present or future, shall be entitled to an undivided interest in the common areas and facilities in the percentage expressed in the Declaration and appurtenant to such apartment;
(iii) that the common areas and facilities, general or restricted, shall remain undivided and that no owner shall bring any action for partition or division thereof so long as the property remains submitted to the provisions of the said Act;
(iv) that the percentage of the undivided interest in the general or restricted common areas and facilities, as expressed in the Declaration, shall not
be altered except with the consent of all the apartment owners expressed in an amended Declaration duly executed and registered as provided in the said Act;
(v) that during the period the property remains subject to the said Act, no encumbrance of any nature shall be created against the property, though such an encumbrance may be created only against each apartment and the percentage of undivided interest in the common areas and facilities appurtenant to such apartment, in the same manner as in relation to any other separate parcel of property subject to individual ownership;
(vi) that the percentage of the undivided interest in the common areas and facilities shall not be separated from the apartment to which it appertains and shall be deemed to be conveyed or encumbered with the apartment even though such interest is not expressly mentioned in the conveyance or other instrument.
(vii) that no apartment owner shall do anything which would be prejudicial to the soundness and safety of the property or reduce the value thereof or impair any easement or hereditament or shall add any material structure or excavate any additional basement or cellar;
(viii) that no apartment owner shall sell, otherwise transfer or rent out his apartment for any purpose other than residential; and
(ix) that for the proper and effective administration of the property and for the due maintenance, repair and replacement of the common areas and facilities the apartment owners shall strictly comply with the provisions of the said Act and the bye-laws made thereunder and shall pay their share or common expenses as assessed by the Apartment Owners, and that the failure to comply with any such requirement shall be a ground for action for damages or for other relief or reliefs at the instance of the Manager or the Board of Managers on behalf of the Association of Apartment Owners or in a proper case, by an aggrieved apartment owner.
In witness I/we have set our hands this……………. day of …………………. 20………. and solemnly declare that what is stated in ………………….. is true to my/our knowledge and what is stated in ……………….. is to my/our information received from………………………………………………………………..
Sole Owner/or all the
(1) Shri/Smt………………………………….. Owners or majority owners
of the property
(2) Shri Smt……………………………………
and so on,
in the presence of –
Solemnly affirmed before me this ……………… day of ……………….. 20……..
(Signature of the Magistrate/or person competent to administer Oath.)
(ii) Above Rs. 3 lakhs but upto Rs. 7.5 lakhs – Rs. 400/-
(iii) Above Rs. 7.5 lakhs – Rs. 500/-
Form 1 under bye-law 3(2) is to be filed in plain paper along with a Xerox copy of the certified copy of the Registered Declaration under Form A shall be enclosed.
The names of all apartment owners shall be stated in Form 1 as per regulation 3 of the West Bengal Apartment Ownership Regulations, 1974.
A specimen copy of Form – 1 given below :-
FORM NO> 1
[See Bye-Law 3(2)]
The Competent Authority,
Under the West Bengal Apartment Ownership Act, 1972,
Law Cell, Deptt. of Housing,
New Secretariat Buildings, 1st Floor,
1, Kiran Shankar Rop Ropad,
Kolkata 700 001.
I hereby communicate that a General Meeting duly held on ____ (date) presided over by the undersigned, the Association of apartment Owners under the name and style of “ABC Flat OWNERS’ ASSOCIATION” for our property at Premises No. 111, ABC Road, Kolkata 700 000, Police Station ________ already submitted according to Provisions of the West Bengal Apartment Ownership Act, 1972, has been formed under bye-laws framed under the said Act with the following as members thereof:
Sl. No. Name of the members Member of the Apartment
In the building by him.
It is further stated that the Declaration in Form No. a approved by you was registered in the Office of the Assistant Registrars of Assurance – 1, Kolkata, vide being No.01659/07. A Xerox copy of the certified copy of the Declaration obtained form the Registration Office, Kolkata is attached herewith for your ready reference.
Now, I would request you to register our Association and send the Registration number of our society to us.
Dated : _____
Place : Kolkata Sd/-
Signature of the Apartment Owner
Presiding the General Meeting held
However, as of date, according to the West Bengal Apartment Ownership Act Office at Law and Promoter Cell, 3rd Floor, ‘C’ Wing, New Secretariat Building, 1, Kiran Shankar Roy Road, Kolkata 700 001. Telephone No. (033) 22420801, apartment ownership association formation is currently unavailable due to the recent decision of the Calcutta High Court in Dr. Debdas Banerjee & Ors. v The State of West Bengal & Ors. [W.P. No. 3724(W) of 2013].
In this matter, the Hon’ble Calcutta High Court has stated that Rule 3 of the WB Apartment Ownership Rules, 1974 as ultra vires Section 2 of the WB Apartment Ownership Act, 1972. The main contention in this matter and the confusion still prevalent is whether to form an association under WB Apartment Ownership Act, 1972, the declaration has to be signed by all apartment owners or whether the majority can sign the declaration. The unworkable situation has been created because under Section 2 of the 1972 Act and Form A, all the apartment owners need to sign the declaration while under Rule 3 of the 1974 Rules, signature of only majority members will be required.
However, Rules cannot take precedence over the Act and as such Rule 3 of 1974 Rules was declared ultra vires Section 2 of the 1972 Act. The matter is pending further adjudication or necessary amendments to be incorporated into the Act by the legislature.
In any case, if all apartment owners are willing to abide by the 1972 Act and sign the declaration then I don’t think there should be any issues in registering such Association even under the current legal scenario. I have heard that several Form A declarations have been kept pending as of date but I think if all apartment owners are willing to sign then the question of majority does not arise and the Association should be allowed to be formed under current law.
According to the latest update, the concerned authority is accepting applications for apartment association formation in West Bengal. You need to be prepared with few documents that would be required to get the association formed. Further, you will also need to submit an application with the following documents: