The Tn Housing Board, v. V.Mohan Rao

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:27.07.2017

CORAM:

THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN AND THE HONOURABLE MR. JUSTICE N.SESHASAYEE WA.No.322/2012 & MP.No./12012 The Tamil Nadu Housing Board Ltd., rep. by its Managing Director, No.48, Dr.Muthulakshmi Salai Sastri Nagar, Adyar, Chennai 600020.

.. Appellant / Respondent 2 Vs 1.Mr.V.Mohan Rao 2.V.Sampath Kumaran 3.T.Mayappan 4.M/s.Sri Ayyappa Builders Private Limited N0.1, Krishna Iyer Street, 1st Floor [Valluvar Kottam High Road] Nungambakkam, Chennai-34.

5.S.Chandra Rao 6.P.S.L.Narasimhan 7.Raji Krishnaswamy 8.S.Venkatramani 9.M.Visalakshi 10.M.Vijayalakshmi 11.K.V.Narayan 12.V.R.Sabitha Neelakanthan 13.A.Thiruvarul Selvan 14.S.Krishnamoorthy 15.Dr.P.Saraswathy 16.Arthi 17.N.Srinivasan 18.N.Ranjani represented by their Power Agent Mr.J.Seetharaman ..

Respondents 1 to 18 / writ petitioners

19.The Chennai Metropolitan Development Authority rep.by its Member Secretary No.1, Gandhi Irwin Road, Egmore, Chennai 600 008.

.. Respondent No.19 / 1st respondent in Writ petition Prayer:- Writ Appeal filed under Clause 15 of the Letters Patent against the order passed in the writ petition in WP.No.29877/2010 order dated 29.12.2010.

WP.29877/2010 Wirt Petition filed under Article 226 of the constitution of India, praying to issue a writ of mandamus to direct the 1st respondent to entertain consider and grant approval to the planning permission and building permit for putting up construction in the property bearing Block No.M-36 East Avenue Road Kamaraj Nagar Thiruvanmiyur together with all that piece and parcel of land measuring around 19 300 sq.ft. and comprised in S.No.97 Block No.28 Patta Ref:T.S.No.97/5 C.A.No.838/2010 dt.11.6.2010 Thiruvanmiyur Village Chennai as sought for without insisting upon the No Objection Certificate from the 2nd respondent or from any other authority so long as the new construction activities are in accordance with the Development Control Rules.

For Appellant : Mr.V.Anandamoorthy For R 19th respondent : Mr.Raja Srinivas

JUDGMENT

[Judgment of the Court was made by M.SATHYANARAYANAN, J.] The 2nd respondent / appellant, aggrieved by the order passed in WP.No.29877/2010 vide impugned order dated 29.12.2010, has filed the present writ appeal. The only question arises for consideration in this writ appeal is whether the No Objection Certificate from the appellant / Tamil Nadu Housing Board is required in respect of the land appurtenant to the flats or common area. The said issue is no longer res integra in the light of the decision rendered a Full Bench of this Court reported in 2013 [3] CTC 129 [Tamil Nadu Housing Board rep.by its Managing Director, Anna Salai, Nandanam, Chennai 600 035 Vs. Mary Rani Immanual and

others], wherein, it has been held in paragraph No.15 as follows:- "...

Thus, the reading of the various provisions of the Tamil Nadu Apartment Ownership Act, 1994, the covenants in the Sale Deed executed by the Tamil Nadu Housing Board in favour of the Allottees will amply establish that the Tamil Nadu Housing Board having not retained any right over the land appurtenant to the Flats or common area, the question of obtaining "No Objection Certificate" from the Tamil Nadu Housing Board will not arise. In such circumstances, the allottees of the Flats, after execution of the Sale Deed in their favour have got every right to demolish the existing building and construct new Apartment blocks. Even if additional dwelling units are constructed and sold to the third parties, the Tamil Nadu Housing Board cannot lay any claim over such additional construction.

As long as the construction are within the parameters of the Rules of the CMDA, in our considered view, the Tamil Nadu Housing Board have got no say, even if additional dwelling units are constructed after demolishing the existing Flats. As stated already, the Tamil Nadu Housing Board looses its rights as soon as it executes the Sale Deed in respect of the Flats, appurtenant land and even in the areas earmarked for the common enjoyment of the Flat owners. The common area has to be enjoyed in common by the Flat owners. If a consensus is arrived at by all the Flat owners, they can utilize the common land also to put up construction without "No Objection Certificate" from the Tamil Nadu Housing Board.

As stated already, the construction shall comply with the requirements of the Rules and Regulations of the CMDA. Even assuming that there are restrictive covenants in the Sale Deed executed by the Tamil Nadu Housing Board in favour of the allottees, the violation of the same cannot be questioned by the Tamil Nadu Housing Board, since as stated already, as soon as the Tamil Nadu Housing Board executes Sale Deed in favour of the Allottees, it looses all its rights on the property and it cannot any more question the action of the Allottees by saying that the

Allottees have violated the conditions enumerated in the Sale Deed."

Thus it has been held by the Full Bench that "a reading of the various provisions of the Tamil Nadu Apartment Ownership Act, 1994, the covenants in the Sale Deed executed by the Tamil Nadu Housing Board in favour of the Allottees will amply establish that the Tamil Nadu Housing Board having not retained any right over the land appurtenant to the Flats or common area, the question of obtaining "No Objection Certificate" from the Tamil Nadu Housing Board will not arise" and that "the common area has to be enjoyed in common by the Flat owners and if a consensus is arrived at by all the Flat owners, they can utilize the common land also to put up construction without "No Objection Certificate" from the Tamil Nadu Housing Board." In the light of the said decision, the writ appeal deserves to be dismissed and accordingly, the same is dismissed. Consequently, the connected miscellaneous petition is also dismissed.

Sd/- Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar AP To

1. The Managing Director, Tamil Nadu Housing Board Ltd., No.48, Dr.Muthulakshmi Salai Sastri Nagar, Adyar, Chennai 600020.

2. The Member Secretary Chennai Metropolitan Development No.1, Gandhi Irwin Road, Egmore, Chennai 600 008.

+1cc to M/s.A.Anandamoorthy, Advocate, S.R.No.54068 +1cc to M/s.K.Rajasrinivas, Advocate, S.R.No.53709 WA.No.322/2012 VG II(CO) CU(28/08/2017)