Back
2012 Supreme(Mad) 2023
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. CHANDRU
M/s. Balaji Builders Private Ltd., rep.by its POA agent R. Perumal
Versus
The Collector Collectorate Office Puducherry & Others
W.P.No.10358 of 2012 & M.P.Nos.2 & 3 of 2012
Decided On: 24-04-2012
For the Petitioner:AR. L. Sundaresan, Senior Counsel for Ms. Pushpa Sathyanarayana, Advocate. For the Respondents:R1 to R3 -G.P. (Puducherry), R4 - S. Rajasekar, Advocate.
The rights of apartment owners' associations over common utility and facilities under the Puducherry Apartment Ownership Act, 1987.
Headnote:
Apartment Ownership Act - Dispute over common utility - Puducherry Apartment Ownership Act, 1987 - Section 3(f), Section 6, Section 13(5)
Fact of the Case:
The petitioner, a builder, and the apartment owners' association were in dispute over the control of common utility in an apartment complex. The association sought redressal under the Puducherry Apartment Ownership Act, 1987.
Finding of the Court:
The court found that the petitioner's claim of exclusive ownership over common facilities was not tenable under the Act. The court cited a similar case where the Supreme Court held that common areas cannot be sold, supporting the association's rights.
Issues: Dispute over control of common utility, interpretation of the Puducherry Apartment Ownership Act, 1987
Ratio Decidendi: The court upheld the rights of the apartment owners' association under the Act and dismissed the petitioner's claim of exclusive ownership over common facilities.
Final Decision: The Writ Petition was dismissed, and no costs were awarded. The connected Miscellaneous Petitions were closed.
1. The Writ Petition is filed by the petitioner who is a builder and who was responsible for building one Chanakya Apartment at Sithankudi, Puducherry. The apartment consists of 62 flats in 6 blocks. The petitioner transferred undivided share in the land and also entered into a builder agreement for building the apartments, which have been handed over to the apartment owners. They formed an association in the name and style of 'Sree Chanakya Apartments Owners Association'.
2. The present controversy arose out of the dispute between the petitioner builder and the association over the power supply, water supply and common utility. It is accepted by both parties that the association comes within the purview of Pondicherry Apartment Ownership Act, 1987. Taking advantage of the provisions of the Act, the flat owners of Sri Chanakya Apartments went before the District Collector, Puducherry. After making enquiries with the association of flat owners of the Chanakya Apartment and the petitioner represented by his Power of Attorney agent, the impugned order dated 15.2.2012 came to be passed.
3. It was informed that each apartment has been registered by the apartment owners and the petitioner builder cannot have a full control over the common utility such as power supply, water supply, lift etc. This will be in violations of the provisions of Puducherry Apartment Ownership Act, 1987. Therefore, the petitioner was directed to transfer the common utility to the flat owners, failing which, it will result in breach of the provisions of the Act and the apartment owners will be constrained to approach the higher authorities for enforcing the adherence of the plan.
4. The contention raised by the petitioner was that while transferring the undivided share in the land in which the apartments were built, the petitioner retained certain portions for his ownership. He had retained the right to maintain the common utility. The common utility included water tanks, septic tanks, sewerage lines, common lightings and lifts, which come within the ownership and control of the petitioner builder. By the impugned order, the authorities have been virtually acted like a civil court in transferring the ownership of the area to the association and the provisions of Puducherry Apartment Ownership Act do not provide for any such contingency. This order is without justification. Challenging this order, the writ petition came to be filed.
5. The writ petition was admitted 16.3.2012. Pending the writ petition, in the application for interim order, Notice was ordered. On notice from this Court, the 4th respondent has filed a counter affidavit dated 23.4.2012 and they are represented by the counsel Mr.S.Rajasekar.
6. The contentions raised by the 4th respondent were that the apartment owners have entered into a sale deed executed by the petitioner company and Undivided Share of the land has been also transferred to their favour and they are enjoying over all the amenities including the common area such as entrance, passages, stair cases, ways, drains underground and overhead tank water tanks, septic tank, motor pump set for lifting water to overhead tank, common electrification and lift etc. Para 6 of the Sale Deed imposed an obligation to provide the building with all necessary amenities for the use of the owners of the flats. Sale Deed also referred to full ownership of the common utility right created under the said Act to the flat owners. However, the petitioner builder is collecting maintenance charges on a monthly basis for providing such services. The petitioner started to collect water charges on fixed basis despite the fact that separate meters have been provided for each flat and service charges for watch and ward staff. The watch and ward staff have been misused for providing security to Balaji Theatre. He failed to carry out the external painting for the apartment for the last 15 years. Several cracks were developed in the walls of the build
