The main legal point established in the judgment is that the garage area was part of the undivided share of land conveyed under the Housing Scheme, and the restrictions imposed by the respondents were illegal and void.

R. Mahadevan, J.

1. Questioning the correctness of the order passed by the learned Single Judge dated 29.04.2008 in W.P.No.46508 of 2006 this Appeal is filed.

2. The Writ Petition was filed by the appellants for a Writ of Certiorarified Mandamus calling for the records of the second respondent connected with four impugned letters A.Na.Ko/Survey/4874 dated 10.11.2006 and quash the same and for consequential relief.

3. The appellants, allottees of residential flats in the Housing Scheme called ‘Belly Area Housing Scheme’ were utilizing the garage area located along the residential flats for parking purpose. The second respondent by the impugned letters directed them to vacate the garage treating them as encroachment. The reason behind issuing such letter was that the Housing Board had decided to allot the garage area to third parties. The conversion of garage sites into the commercial/residential use had already been approved by the Housing Board and planning permission was also obtained from the Chennai Metropolitan Development Authority. Challenging the impugned letters, the Writ Petitions were filed claiming that the area including the garage was sold to them, and that they have been using the garage for parking for the past several years. Relying upon the sale deed it was contended that the garage was always used as common area for parking and therefore alleged that the conversion of the user of the lands by the respondents is illegal and contrary to the Scheme.

4. On the other hand, the respondents defended the action of the Housing Board contending that the garage area was not sold to the appellants, and that the ownership over the garage area was retained by the Housing Board. Accepting the submission of the respondents, the Writ Petition was dismissed by the learned Single Judge. Aggrieved by the same, the present Writ Appeal has been filed.

5. The learned counsel for the appellants took us through the contents of the sale deed and submitted that the sale deed, if read as a whole, would certainly indicate that the garage area was also sold to the allottees. Further, no dispute was ever raised by the respondents for the past several years regarding the title and user of the garage, and therefore they are not entitled to claim ownership over the same. The learned counsel also placed reliance upon Section 3 (h) of Tamil Nadu Apartment Ownership Act, 1994 and argued that any condition or restriction relating to the common areas is invalid. Relying the judgments reported in 2013-2-L.W.685 [THE TAMIL NADU HOUSING BOARD vs. MARY RANI IMMANUAL AND 12 OTHERS], AIR 2000 MADRAS 446 [HIG FLAT OWNERS WELFARE ASSOCIATION vs. TAMIL NADU HOUSING BOARD AND OTHERS], 1997 WRIT L.R. 721 [RAMAKRISHNA NAGAR FLAT ALLOTTEES/OWNERS' CO-OP. HOUSING SOCIETY vs. TAMIL NADU HOUSING BOARD] the learned counsel argued that once the sale deed is executed, the Housing Board loses its right over the property and without notice to the appellants and other owners, the conversion of user is illegal.

6. Per contra, the learned counsel for the respondents submitted that the garage portion was not sold to the residents, and that the allotment to other parties is being made only after the approval of the Board and after obtaining planning permission from the Chennai Metropolitan Development Authority. The learned counsel for the respondents further submitted that in view of retention of ownership in the sale deed, the appellants cannot claim any right over the garage which fall under the ‘Saleable Area’. Contending that the issue on hand is covered by the judgments of this Hon’ble Court in W.P.No.11297 of 2007 and W.A.No.821 of 2007, the learned counsel for the respondents urged that the order of the learned Single Judge does not warrant any interference.

7. When the appeal was moved, an interim stay was granted by this Hon’ble Court. Subsequently, the appeal was admitted and interim stay was extended and on 21.07.2008, this Hon’ble Court after hearing the part