Even if a flat owners’ association is unregistered, any managing committee or secretary holds the property and common assets of the building in a fiduciary capacity for the benefit of all co-owners. The sale of a common asset such as a generator without prior consent of the general body and without proper resolution in a duly convened general meeting can amount to breach of trust and misappropriation of common property. Recording such a decision only in a managing committee meeting, without notice to and approval from the general body of owners, does not meet the legal requirement of collective consent for disposal of common property under the West Bengal Apartment Ownership Act, 1972, and related principles under the Indian Penal Code (Sections 403, 406, 409 – criminal breach of trust/misappropriation). The fact that the association has since been dissolved does not absolve the persons involved from liability for acts committed while in office. Aggrieved owners may:
1. Lodge a criminal complaint for criminal breach of trust and misappropriation of common assets.
2. File a civil suit for recovery of proceeds from the sale of the generator and for injunction to protect remaining common assets.
3. Approach the local municipal authority or competent authority under the Apartment Ownership Act for intervention.
Given the lack of an alternative power source, the wrongful disposal of the generator may also be treated as an act causing nuisance and hardship to residents, strengthening the case for action against those responsible.
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