Tamil Nadu Housing Board, Rep by its Managing Director, Chennai vs Mary Rani Immanual

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2013 Supreme(Mad) 1748

High Court of Judicature at Madras
R.K. AGRAWAL & N. PAUL VASANTHAKUMAR, JJ.
The Tamil Nadu Housing Board, Rep by its Managing Director, Chennai
Versus
Mrs. Mary Rani Immanual & Others
Writ Appeal Nos. 783, 784, 1394, 1395, 1396, 1771, 1772, 1952 of 2011 & W.A.SR.Nos. 41390, 41394, 41398, 41406, 41410, 41414, 41418, 41422, 41426, 41430, 41434, 41438, 41442, 41445, 41447, 41450, 41453, 100308, 100351, 100354, 100360, 107783, 107787, 107791, 107795, 107799, 107803, 107807, 107811, 111788, 111794, 111805 of 2011 & All connected Miscellaneous Petitions
Decided on : 26-04-2013

Advocates Appeared:
For the Appellant:A.L. Somayaji, Advocate General for C. Kasirajan, Advocate.
For the Respondents:A. Suresh, N. Sampath, V. Bharathidasan, R. Mohan, P.S. Raman, Senior Counsel for Anand Venkatesh, Mrs. R. Usha Priya, V. Bharathidasan, R. Muthukumarasamy, Senior Counsel for R. Mohan, D.S. Rajasekaran, K. Rajasrinivasan, S. Muthuraman, R. Jayaseelan, Advocates.

Headnote:       (a). Transfer of Property Act, 1882 Section 11 - Tamil Nadu Apartment Ownership Act, 1994, Sections 13 and 18 - Tamil Nadu Apartment Ownership Rules, 1997, Rule 17 - Tamil Nadu State Housing Board Act, 1961 – it is held that after a sale deed executed between TNHB and Allottees, TNHB had no rights remained over the flats, so no NOC required from TNHB as per CMDA Rules for demolishing a superstructure- however due permission of all allottees have to be taken and also that the said construction should not be to make the residential premises a commercial one - Tamil Nadu State Housing Board Act, 1961 – it is held that absolute interest has been transferred by the TNHB to the Allottees as a sale deed was executed for the flats as well as land and even the common area rights are vested onto the association formed by allottees- any condition that is contrary to the provisions of the sale deed will not be applicable to the allottees.
       (b). Deeds and Documents- TNHB by way of a sale deed transferred all rights pertaining to the flats and land to the allottees- no portion of land was retained by the TNHB which is also made clear by the sale deed itself.
       (c). Tamil Nadu Apartment Ownership Act, 1994, Sections 13 and 18 - Tamil Nadu State Housing Board Act, 1961 – association of the allottees has the right over the common area and they are responsible for its maintenance etc. – TNHB does not have any right over the common area - Tamil Nadu Apartment Ownership Rules, 1997, Rule 17 - Tamil Nadu Housing Board Act, 1961 (T.N. Act of 1961) – right over the common area is intrinsic of the sale deed and cannot be separated from the apartment rights- therefore NOC is not a requirement for demolishing and construction. - Tamil Nadu Apartment Ownership Act, 1994 – the basic reason for the said act was to give rights to flat allottees over the flat and an interest over the common area-all rights over the area are vested into the association of allottees and Rules regarding the transfer of any flat or interest in the common area are to be framed by the association – there is no provision in the 1961 act pertaining to the right of allottees to demolish and re-construct- s. 25 of the 1994 act provides for an overriding clause as per which the 1994 act will prevail over any other existing legislation to that effect- any part of sale deed which is not inconsonance with the provision of the 1994 act is void.
       (d). Tamil Nadu State Housing Board Act, 1961 (T.N. Act 17 of 1961) – even if the land was acquired by the HB for public purpose, the scheme of HB will come to non-existence as soon as the flats built were allotted to the allottees - Tamil Nadu State Housing Board Act, 1961 (T.N. Act of 1961) – it is held that when there is no requirement for an NOC to demolish and reconstruct, there is no need for payment of a 10% charge over construction of an additional floor/eligible FSI.

Judgment :-

K. Venkataraman, J.

1. The order of reference was made by the then The Hon'ble The Chief Justice M.Y.Eqbal and Hon'ble Mr.Justice T.S.Sivagnanam. The reference thus reads as follows:

"This batch of appeals filed by the Tamil Nadu Housing Board is directed against the judgment and order passed in W.P.No.29837 of 2010 dated 12.2.2011 and W.P.No.670 of 2011 dated 18.1.2011 respectively.”

2. The respondents 1 to 8 in this appeal are the writ petitioners. The writ petition was filed for issuance of a direction upon the Chennai Metropolitan Development Authority (CMDA) and Corporation of Chennai to receive, consider, process and approve the writ petitioners application for demolition and reconstruction by issuing planning permission to construct residential flats in the property situated at block No.97A to F, Sowbackya Colony, Anna Main Road, K.K.Nagar, Chennai 78 comprised in Survey No.394/1(part) in Kodambakkam Village, Mambalam-Guindy Taluk, Chennai District, without insisting or production of no objection certificate from the Tamil Nadu Housing Board/appellant or any other authorities concerned and to accord sanction for the same in accordance with law expeditiously.

3. The learned Single Judge disposed of the writ petition with a direction to CMDA to proceed with the application submitted by the writ petitioners without insisting no objection certificate from the appellate Board subject to the condition that the property will be developed only for residential purpose. The learned Single Judge relied on the decision of a Division Bench of this Court in W.A.No.1052 of 2007 (The Managing Director vs. Lancor G. Corp Properties Ltd., and another). The operative portion of the judgment and order reads as hereunder:-

"3. Petitioners are owners of the property which was originally developed by Tamil Nadu Housing Board and sold to the individuals. The present owners are either original allottees or subsequent purchasers. The undisputed fact is that the Tamil Nadu Housing Board has no lien over the property. For the purpose of developing the property, the first respondent orally insisted the petitioners that no objection certificate issued by the Tamil Nadu Housing Board should be submitted along with the application for the purpose of demolition, planning permission and for issuance of planning and building permit to put up new construction.”

4. Similar issue with regard to the insistence of no objection certificate from Tamil Nadu Housing Board was considered by a Division Bench of this Court in W.A.No.1052 of 2007 (The Managing Director - vs. - Lancor G:Crop Properties Limited & another) where it has been clearly held that the Housing Board has no right over property developed and sold to the individual allottees. The petitioners have enclosed sale deeds to show absolute ownership. The only restriction appears to be that the property developed for residential purpose should not be commercial use. The petitioners' plea is only for demolition and reconstruction as residential property.

5. Petitioners' counsel states that the development of the property is for residential use only and petitioners are willing to file an affidavit to that effect. Following the Division Bench Judgment as above, several orders have been passed by this Court, viz., W.P.No.15170 of 2010 dated 20.7.2010, W.P.No.14784 of 2008 dated 6.8.2008 where the Chennai Metropolitan Development Authorities were directed to accept the application without insisting on no objection certificate.

6. Since the property in question undisputedly has been sold to the individual allottees by way of proper sale deeds, the Tamil Nadu Housing Board can have no right over the property and therefore, the question of issuing no objection certificate does not arise.

7. In view of the above, the first respondent is directed to proceed with the application submitted by the petitioners without insisting no objecting certificate from the third respondent Tamil Nadu Housing Board

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