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:
Filing of Form A
The process of registration of apartment owners’ association require careful understanding of the requirements of the association. The best property lawyers in West Bengal and Kolkata who have experience in dealing with association can guide you in this process. However, some simple things to note are as below:
1. Sole, majority or all the apartment owners should apply for the service.
1. Authenticated copy of building plan/ plans duly signed.
2. Copy of Sanctioned Site plan.
3. Copy of relevant Completion certificate from the local authority/Municipality letter duly notarized.
4. Self-attested EPIC Card (Elector’s/Voter’s Photo Identity Card)/PAN card of all the Apartment Owners.
5. Power of Attorney as per format, where necessary, of all the apartment owners or concerned apartment owners.
6. Copy of Receipt of Form-E.
7. Document containing all the owners’ details (Excel).
8. Authorization letter by all the other flat owners.
9. Scanned Copy Of Original documents to be uploaded.
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, today there is much clarity about the formation of apartment owners’ association in West Bengal and Kolkata. The process has been streamlined but there is further need of regularisation to enable ease of formation. For more details or to register your association, contact here.