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TENANT & WBAOACT 1972

In the matter of allowing “tenancy” in any apartment in any Housing Complex, where the entire property is already submitted to the Competent Authority under The West Bengal Apartment Ownership Act, 1972, I am of the opinion that no Owner’s Association, registered under the same statute, is empowered to allow any apt-owner to let his/her apartment to a tenant who, in turn is free to use such apartment as rented apartment and enjoy the common areas and facilities at par with other owners of apartments.

Note of caution: While this guide tells you about apartment-owners rights and obligations on allowing tenancy under the wbaoa-1972, it does not give a full explanation of the law or tell you about the specific rights and obligations that apply to your own property especially in respect of allowing tenant in your apartment. However, owing to urgent necessity, I have to study the West Bengal Apartment Ownership Act, 1972 (along with its rules and bye-laws). During my study, I have noted the following grounds/reasons against “allowing tenancy” in any housing complex. I don’t know whether my observation is correct or not. I simply reproduce my thinking for your kind consideration and advice.

Section 4. (1) entitles an apartment-owner to the exclusive ownership and possession of his/her apartment. The legislature has deliberately used the word “exclusive” instead of “absolute” in order to bring this provision in conformity with other provisions of this Act. In effect, the rights of any owner, under the purview of this Act, are seldom absolute and often are in many respects controlled and regulated by the said Act. So, the ownership of any apartment is conditional especially for its common areas and facilities.

The legislature itself has chosen to define the word “apartment” and for the purposes of this Act, it would not be permissible to travel beyond the definition contained in this Act for determining the scope of that expression.

It is to be noted here that the distinction between WBAOA-1972 and the same Act of most of the other states lies in its use for commercial purposes apart from its user for residence. Moreover, the Maharashtra Act has gone a step further and defined the word “apartment owner” as meaning the person for persons owning an apartment and an undivided interest in the common areas and facilities in the percentage specified and established in the Declaration.

The West Bengal Act comprehends more or less the contents of these two definitions in the definition of “apartment”. The common areas and facilities which have been included in the definition of apartment have been fully and specifically defined in Section 3(d) of this Act.

Even though the owner of any apartment has the right to occupation in that apartment but has no right to alienate the apartment. More so, the legislature has cautiously used the expression “exclusive” which in effect is conditional in nature and bound by a livelihood which is based on reciprocity of obligations. Hence, the ownership here is not free and unrestricted. So, the ownership here is not of independent nature but bound together with other owners.

Section 4. (2) engrafts an exception to the general rule of property. This proviso imposes a restraint on alienation of an apartment. The object behind this restraint on alienation and sub-

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division is to maintain homogeneity in the housing complex and to prevent fragmentation of an apartment into small portions which will render it uninhabitable. Another purpose for imposition of such restraint is to curb influx of foreign discordant elements into the building with whom, the other resident-owners can hardly accommodate their enjoyment or possession in common interest. I presume that in case of allowing tenancy, the intention of the legislature will be the same.

So, standing on the same reason, we can say that in order to curb influx of the foreign discordant elements into the housing complex, the legislature was silent on tenancy. Even in the statement of Objects & Reasons of Act XVI of 1972, no word is used on tenancy rather it is said that the Apartment Ownership Act is intended to regulate the conduct of the owners of the Apartments. Here I suppose, the holy conduct of any apartment-owner is not to let out his apartment as well as not to invite the dual resident-ship in a single housing complex.

Bye-Laws – 31 ((a) to (g) impose restrictions on certain acts of the resident of any apartment of the property. These bye-laws have recognised such right of an apartment-owner as he is deemed to have an accessory licence to do the same in accordance with the principles embodied in Section – 55 of the Indian Easements Act. In model Bye-laws, there is no licence given to any apartment-owner for inviting tenant/renter. Moreover, if we abide by the bye-laws that we will not entertain any tenant in our housing complex, then also we can live without any tenant in our housing complex. Is it a tenable argument? By disallowing tenant/renter are we ignoring the fundamental rights of owners in general?

Section -7 of WBAOACT1972 says that no apartment owner shall do any work which would be prejudicial to the soundness or safety of the property or would reduce the value thereof or impair any easement............... . Now, as per definition of the property in Sec. 2(K), we note that “property” comprises the land, the building and the common areas and facilities. Apart from other restrictions, this section (Sec-7) prohibits activities affecting and/or impairing any easement or hereditament annexed with the property. It seems to me that allowing tenancy or allowing foreign discordant elements as tenant may destroy the principles of easement or create hindrances against smooth hereditament. We are concerned mainly on curbing of easement rights of other obedient owners of the property. Perhaps, the essential ingredients of easement shall be ignored if permission is given for creation of tenancy against rent. Beneficial enjoyment of the property by other owners of the apartments will be hampered.

Moreover, the definition as contained in the Section 3(d) embraces both “ areas “ and “facilities” and both these expressions are preceded by the word “common”. The word common has a special significance because the “common areas and facilities” have been set apart for the use and enjoyment of all the owners of the apartments in common and it enumerates some rights including easement right as well as facilities for the enjoyment of the apartment as well as the property since all the apartment owners have a common interest in enjoying the same.

While studying Section – 7 (Certain work prohibited), for its implementation, we find that Section – 2(k) defines the word “property” which comprises the land, the building and the common areas and facilities. In the interest of proper management and administration of the entire property, apart from other prohibitions, this Section has also burdened an apartment owner with the negative

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duty of doing any work which may cause diminution of the value of the property. This Section has also prohibited activities affecting and/or impairing any easement or hereditament annexed with the property.

Now, the fact is that the “Residential Ownership Apartment” is primarily meant for the living/dwelling of the owners and their families, not for the use of any tenant/renter. It is seen that value of a property is always diminished when the property is occupied by tenant/renter or paying-guest etc. Now, in a ownership residential housing complex, if there are people of different categories viz. Owners, Tenants or Renters, Paying guests or Residents of Service-Apartments, the character of the property will be changed with composition of people of different kinds i.e. heterogeneous in nature. Naturally, in a property-market, the said property must go down the value of the just price which would have been otherwise if no heterogeneous character was there. So, renting /letting out a property is synonymous with reducing the value of the property, which is against the interests of other owners of the property and is contrary to the Section – 7 of WBAOA.

This Section also prohibits activities affecting and/or impairing any easement or hereditament annexed with the property. The problems of effecting the eviction of renters/tenants are known to all. Even a conflict or dispute between Tenant and Landlord may vitiate not only the respective two sides but also create disturbances to the neighbours and even to the other people of the locality. In this way, renting of property, especially residential one in an ownership housing complex may impair the easement rights of others.

The oaths, undertakings and declarations, which ought to be taken and submitted through registration of instruments and affidavits to the Competent Authority for obtaining approval under Apartment Ownership Act, are to be made from the side of apartment-owners, not from the side of any tenant to any Competent Authority. The liability of violation of any clause of those instruments rests only on owners and not on any tenant. So, the composer of the said Act perhaps may not want to solve the housing problems of any tenant but may agree to consider the housing problem of the purchaser of any apartment or owner of any apartment.

Only owners are under obligation to follow the Act and its bye-laws. Apartment Owners’ Association is also liable to care-take the property in general as per the obligation of the related act, rules and bye-laws. But the tenant is boundless. The only obligation, which the tenant has to follow, is towards Tenancy Act and not to the West Bengal Apartment Ownership Act.

It is said that not just resident-owners, even tenants are entitled to use all common areas and facilities as a matter of right, for they represent the owners during their authorized occupation. Is it true?

'Rent' refers to the mutually fixed amount of money that is paid in lien for possession of the property of landlord for a fixed period of time. A person who pays rent to live or use someone else's land or property is a tenant/renter. He/she possesses the property for the period of tenancy and uses it as per his/her requirements. The tenant enjoys the rented-property at par with the owner of the said property even if he uses it for a limited period of time. Since he has assumed ownership of the property (though apparently) for the period of tenancy, he should attempt at making his stay pleasant and not invite any legal action from the landlord. But if the tenant willingly or unwillingly

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invites legal action from the landlord, the Apartment Owners’ Association also faces troubles as seen elsewhere. Why shall the Owners’ Association undertake such burden of troubles which is out of the orbit of the West Bengal Apartment Ownership Act 1972?

Moreover, another purpose for imposition of such restraint is based purely on opening of holes on the security aspects in a housing complex. As per the recommendation of Kolkata Police, there is standing rule to submit and get check-up of the antecedents of every tenant from a nearby police station. Who will verify the details of the tenant from police? If, the owner of that particular apartment, who wants to create tenancy, disagrees to submit details of the tenant as per the Form (as per the format as recommended by Kolkata Police) given by the Association, what should be the bye-laws to be followed by the Association, and what should be the penalty if those bye-laws be violated and under what statute will it be protected?

The question of individual ownership in respect of an apartment does not arise as the element of ownership does not enter into the definition of expression “apartment” although 4(1) of this Act entitles an apartment owner to the exclusive ownership and possession of apartment (vide K.R.Agarwal v Dr. Balkrisna Jawar, AIR 1972 Bom 343: ILR (1973) Bom 373: 1972 Mah LJ 374: 74 Bom LR 238).

Section 3 (b) defines the expression “Association formed in accordance with the provision” made in the bye-laws. Clause – 3 of the West Bengal Apartment Ownership Bye-laws, 1974 provides for the manner and mode of the formation of this Owners’ Association.

In effect, it is needless to state here that once an owner becomes a member of the Association, he loses his individuality qua the Association and he has no independent rights except those granted to him by the statute and bye-laws. He must act and speak for through the Association or rather the Association alone can act and speak for him qua the rights and duties of the

Association as a body (vide Daman Sing v State of Punjub, AIR 1985 sc 9731985) 2 SCC 670). So, the element of ownership is also limited here.

The contextual exposition of the intention of the legislature, as expressed in the Objects & Reasons of Act XVI of 1972, can be found if the definition of “exclusive ownership” is read along with other provisions of restrictions of the said Act. An owner of an apartment, under this Act, is an owner of limited purpose. Because of the fact as stated above, the Owners’ Association is given power and legal backup for the management and administration not only of the common areas and facilities but also of the whole property in general.

In addition, the exercise of general supervision on overall affairs of community living is also its paramount responsibility. So, if the general meeting by majority decides to restrain an offer for rent of apartment, the Association can restrict the entry of any renter-resident to any residential housing complex.

Moreover, if an apartment is given out on a lease by any owner to a company etc, wherein different tenants are staying or started living for a short period, the said apartment has thus become a service-apartment or guest house which is commercial in nature. In my opinion, the Association can disallow it. Why shall the Association undertake the additional burden of administration and

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caretaking of such rented apartment, which is bypassing the related law and bye-laws or which is out of the jurisdiction of its power and responsibilities?

I owe my obligations: I have taken plenty of help especially from the book “Law of Ownership of Apartments/Flats in West Bengal” by Tapas Kumar Mukherjee, M.A., LL.B. Advocate, High Court, Kolkata. published by Book-N-Trade, 6, K.S.Roy Road, Kolkata – 700 001.

Dated 29th April, 2012

EMAIL: banerjee_subu52@rediffmail.com Subrata Banerjee

Phone- 9433153153