The Act outlines the basic legal provisionsensuring legal rights vested in the Apartmentowners as well as the innovative ideas formaintenance of common use and facilitiesand also custody of common assets in whichan individual flat owner has a proportionateshare.

Apartment means part of a property having adirect exit to a road, street or highway or to acommon area leading to such road, street orhighway which together with its undividedinterest in the common areas and facilitiesforms an independent residential unit andincludes a flat.

The West Bengal Apartment Ownership Act,1972 applies to every building havingresidential units or commercial units, and thesole owner or all the owners of every suchbuilding .

However, the State Government mayexempt, by general or special order, any suchowner for submitting such building to theprovisions of the aforementioned act.

In respect of any property an owner includes:

Any person owning such property or part thereof or apartment, or

Any person deemed to be owning such property or part thereof or apartment, or

Any promoter, or

Any lessee of such property or part thereof or apartment

Apartment Flat

Apartment means partof a property having adirect exit to a road,street or highway or to acommon area leading tosuch road, street orhighway which togetherwith its undividedinterest in the commonareas and facilities formsan independentresidential unit andincludes a flat.

Flat means a separateand self-containedpremises used orintended to be used forresidence or office orshow-room or shop orgodown (and includesa garage), the premisesforming a part of abuilding and includesan apartment.

Common areas and facilities of an apartment are the area and facilities that are enjoyed by all the apartment owners of a building. Common areas and facilities include:

The land on which the building is located and all easements, rights and appurtenances belonging to the land and the building.

The Foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stair-ways, fire-escapes and entrances and exits of the building,

The basements, cellars, yards, gardens, parking areas shopping centres, schools, garages, building or apartment vacant or occupied by a tenant or any other person, not being an owner, and transferred or proposed to be transferred to the Association of Apartment Owners and storage spaces,

The premises for the lodging of janitors or persons employed for the management or the property,

Installations of common services, such as power, light, gas, hot and cold water, heating, refrigeration, air conditioning, sewerage, etc.,

The elevators, tanks, pumps, motors, compressors, pipes and ducts and in general all apparatus and installations existing for common use,

Such other common facilities, as may be specially provided for in the Declaration,

All other parts of the property necessary or convenient to its existence, maintenance and safely, or normally in common use;

Common expenses means expenses of administration, maintenance, repair or replacement of the common areas and facilities and all other sums assessed against the apartment owners by the Association of Apartment Owners.

A promoter is a person who constructs a building or causes to be constructed a building for the purpose of transfer. Such transfer may be by way of-

Sale

Gift

Or otherwise

Such transfer may be in favour of any other person, company, co-operative society or association of persons .

The laws of our country leave a major omission by not prescribing a requisite set of qualifications for eligibility to be termed as a promoter. Promoter is a term of professional art and the expertise expected of him under provisions of the promoters’ law in force comprises certain level of proficiency in diverse disciplines of building technology, architecture, laws relating to transfer of property and contract, co-operative laws, conveyancing , fiscal laws etc.

The lack of qualification among promoters major lacunae which inducts a host of unscrupulous and uneducated contractors within the ambit of the definition side by side with renowned architects and firms of repute. In the result, the term ‘promoter’ tends to make a somewhat degrading connotation in the social and market context. The coverage and sweep of the application of the law has also suffered in consequence.

Each apartment owner shall be entitled to theexclusive ownership and possession of hisapartment.

An apartment, together with its undividedinterest in the common areas and facilities, shallconstitute heritable and transferable immovableproperty within the meaning of any law for thelime being in force:

Provided that no apartment and the percentage ofundivided interest in the common areas andfacilities appurtenant to such apartment shall bepartitioned or subdivided for any purposewhatsoever.

Notwithstanding anything contained in the Transfer of Property Act,1882, or in any other law for the time being in force, but subject lothe provisions of section 11 of this Act, any person,• acquiring by purchase or by inheritance, or

• taking lease of, for a period of thirty years or more, an apartmentcomprised in a property submitted to the provisions of this Act,shall,—

(i) in respect of the said apartment, be subject to the provisions ofthis Act, and

(ii) execute and register an instrument in such form, in suchmanner and within such period as may be prescribed, undertaking tocomply strictly with the bye-laws and with the covenants, conditionsand restrictions set forth in the Declaration.

The West Bengal Apartment Ownership Rules, 1974 mainly provide for the manner in which a Declaration under section 10 of the West Bengal Apartment Ownership Act, 1972 has to be submitted and also the form in which the instrument of conveyance for the transfer of the property shall be executed and registered.

West Bengal Apartment Ownership Bye-laws, 1974 is a statutory bye-law having been prepared under powers conferred by sub section(1) of section 13 of the West Bengal Apartment Ownership Act, 1972. It deals mostly with the administration of the common areas and facilities by the Association of Apartment Owners.

West Bengal Apartment Ownership Bye-laws, 1974 states the process of formation of an Association, the power and functions of the association, the constitution of a Board of Managers for managing the affairs and business, the procedure of meeting thereof and other allied matters. Thus the basic features of the essential aspects of the enactment are detailed in the Rules and Bye-laws.

An association of owners is an association of persons competent to contract in their own name. It is an association formed in accordance with the provisions made in the The West Bengal Apartment Ownership Bye-laws, 1974.

There should be an Association of Apartment Owners in respect of each property. Each owner of such property shall be a member of such association.

Where more than one persons jointly own an apartment, such persons shall nominate one of themselves to be a member of the Association concerned, and immediately send intimation in respect to the board concerned.

Within 45 days from the appointed date or from the date of submission of the property concerned to the provisions of the Act, whichever is later, or within such further period as the competent authority may, on application made to it or of its own motion, allow, the apartment owners of each property, owned by four or more apartment owners, shall in a general meeting to be held on such date and at such time and place as may be, convenient to all such owners and to be prescribed over by an apartment owner chosen by the apartment owners present in such meeting

If an apartment owner transfers his property bysale or leases out the property, he ceases to bea part of the association concerned from thedate of sale or lease. The purchaser or thelessee immediately becomes a member of theAssociation in place of the transferor.

The final authority of an Association shall vest in the general meeting of the members, which shall administer the property concerned in accordance with the Act and the Bye-laws and exercise general supervision over the affairs and business of the Association and, in particular, over the activities of the Board.

The functions of an Association shall be:-

To raise funds for the association as provided for in the Act and the Bye-laws;

To provide maintenance, repair and replacement of the common areas and facilities of the property and payments thereof;

To provide for proper maintenance of accounts;

To provide for and do any other thing for the administration of the property.

The annual general meeting of every Association shall be held in the month of February each year. The business of the annual general meeting of an Association shall be:

To consider the annual report of the Board;

To consider the audit report and the audited financial statement of accounts;

To consider and approve the annual budget for the next financial year, including-

a) Determination and assessment of monthly contribution to be made in the next financial year by each apartment owner towards common expenses; and

b) Retention or letting out of the common areas and facilities, as described, for shopping, commercial or other purposes in the Declaration made and submitted under section 2 of the West Bengal Apartment Ownership Act, 1972

To elect Managers of the Board from among the apartment owners to fill up vacancies; and

To transact any other business that may be laid before the meeting by the Board or to be considered by the annual general meeting, to be necessary for the administration of the property.

On requisition of two-third members of an Association or of the Board or as required under the Bye-laws, special general meeting of such an Association may be held as often as may be necessary to consider all or any subjects specified to be the business of the annual general meeting and any other business of general importance in the interest of the Association and within the scope of the Act and the Bye-laws.

The requisites of a general meeting are as follow:A notice of a general meeting including an annual

general meeting stating the place, date and hour of the meeting together with a list of business to be transacted thereat, shall be sent to every members atleast seven days before the date of the meeting.

The general meeting shall be presided over by the President and, in his absence, by a member to be chosen by the members present in such meeting.

The quorum for a general meeting shall be one-third of the total number of members subject to the minimum number of three members.

The rules of a general meeting are as follows:Votes shall be cast in person.The meeting shall stand adjourned if there is

no quorum within half an hour from the time appointed for the meeting.

The minutes of the meeting should be recorded in a book kept for the purpose. The minutes are to be drawn up by the Secretary of the Association and shall be duly signed by the person presiding over the meeting on the termination of the meeting or as early as possible.

The Board of Managers is the executive wing of the Association of the Apartment Owners. The constitution of a Board of Managers along with its functions are detailed in Chapter III of the West Bengal Apartment Ownership Bye-Laws, 1974. The Board acts according to the powers vested in them by the Act. But the ultimate authority rests with the Association of Apartment Owners assembled at a general meeting deciding all matters in the manner prescribed in the Bye-Laws.

The number of Mangers of a Board shall be equal to one-third of the number of the apartment owners of the property concerned but in no case it shall be less than three or more than twenty-four.

Within 15 days from the formation of an Association, the apartment owner presiding over the general meeting should serve notice upon each member of the Association fixing the date, time and place at which a special general meeting shall be held for the election of the manager of the Board of such association by secret ballot in such manager as may be decided at the said meeting. The date of the meeting should not be before 15days from the date of issue of such a notice.

The notice for a special general meeting shall be effected by personal service or through letter sent by registered post.

After the Managers of the Board are elected, the Board shall, within ten days of the date of election of its managers, hold its first meeting and elect its President who shall forthwith forward the names of the President and of the managers of the Board in Form No. 3 to the Competent Authority, which shall cause those names to be entered in the relevant register to be maintained in its office for the purpose

A Board shall meet atleast once a month and shall be presided over by its President and in his absence, by a Manager to be elected by the Managers present in the meeting

A Board should give notice about the date, time and venue of the meeting and shall observe rules and procedures in regard to the transaction of its business at its meeting as may be determined by such Board.

All the questions which come up before any meeting of a Board shall be decided by a majority of votes of the managers present and voting, and in the event of equality of votes, the President and in his absence the Manager presiding shall have and exercise a second or casting vote.

The function of the Board of Mangers are as follows:

The care, up-keep, maintenance, repairs and replacement of the common areas and facilities including the limited common areas and facilities of the property concerned;

The collection of money, including arrears, due from each apartment owner on account of monthly assessment made by the Association concerned for payment towards common expenses;

The collection of monthly rents out of the common areas and facilities let out for shopping, commercial or other purposes, as specified in the Declaration

The proper maintenance of the funds and accounts of the Association concerned, and, for the building up of a reserve fund out of the common profits left over after meeting the common expenses

Securing and furthering the interests of the Association concerned in every possible way;

Hearing and dealing with all complaint.

The power and duties of the Board are as follows:

Receive and disburse money, sanction working expenses, ensure regular and day-to-day maintenance of the cash book under the supervision of the treasurer and make arrangements for daily verification of cash balance.

Maintain and inspect the accounts of the Association concerned.

Maintain an account of amounts received and expended on behalf of the association and also keep an account of the assets and liabilities of the Association.

Prepare an annual report, an audited annual financial statement and annual budget estimate.

Do all the needful for the purpose of auditing the accounts of the Association;

Remove and rectify all defects and irregularities pointed out at the audit.

Convene annual general meeting of the Association

Realise and enforce realisation of all dues of the Association and meet all its liabilities.

Let out the common areas and facilities for earning common profits and settle terms and conditions for such letting out.

Make arrangements and enter into agreements for the proper and effective maintenance, repair and replacement of the common areas and facilities and make payments thereof;

Institute, defend, or compound any legal proceedings for and against the Association.

Improve the condition of general welfare of the apartment.

Maintain an up-to-date Register of Apartment Owners.

Perform any other duty or discharge any other function as per the directions of the Association in a general meeting

The duties and liabilities of the Apartment Owners are as follows:

On being directed by the Board, the owner of the apartment shall immediately undertake and complete all maintenance and repair work within his own unit. If the owner of the apartment delays the said work then he shall be responsible for the damage that his failure to undertake such work may cause to the said property and shall also be liable for payment of damages as may be determined by the Board.

All the repairs, required to be effected in respect of the doors, windows, internal installations(including sanitary installation) in connection with, or in relation to water, light, gas, power sewage, televisions, air-conditions, and all other kinds of accessories within the area of such apartment, shall be undertaken at the expenses of the owner of the apartment concerned.

The owner of an apartment shall reimburse the Association for any expenditure that may have been incurred by it for replacing anything pertaining to common areas and facilities, such repairing or replacing being required to be effected due to any damage caused by such apartment owner in respect of the common areas and facilities.

All apartment units, except those specifically meant for non-residential purpose, shall be utilised for residential purpose only and no apartment owner shall utilise them, or any portion thereof except for residential purpose.

Every Association should have a fund called the Apartment Owners Fund to which the following should be credited:

All the dues and rent collected from its members and its tenants

Any amount received or raised by the association by way of advance, grant, donation, loan or otherwise

Any amount due, payable, or made over, to the association

An account in the name of an Apartment Owner’s Association Fund should be opened in the State Bank Of India or in any other Nationalised Bank in the name of the Apartment Owner’s Fund. All the said funds should be deposited in the account and the account should be operated jointly by the Treasurer and the President of the Association. Payment above Rs. 20/- shall be made by cheques and the Treasurer,as a representative of the Association, may retain some amount of money in his hand for defraying petty expenses.

It is not necessary for the association to beregistered but having the association registeredwill get legal benefits. If a court is approachedfor such small issues it might take severalmonths or even years to resolve such disputes asthe court will have a hundred other biggerdisputes to take care of. If you have a registeredapartment owner’s welfare association, it willhelp work as a mediator and helps in resolvingthe dispute without any legal interference. Apartfrom central laws like the Societies RegistrationAct and the Apartment Association Act, there arelocal legislations in different cities.