IMPORTANT POINT
The main legal point established is the liability of the promoter for statutory violations and illegal activities related to property development.

JUDGMENT :

J. Nisha Banu, J.

(Prayer: Writ Petition filed under Article 226 of Constitution of India, praying for issuance of WRIT OF MANDAMUS directing respondents 1 to 3 and 5 to take action against the respondents 6 to 10 for the statutory violations and illegal activities committed by them.)

1. This writ petition is filed praying for a direction to respondents 1 to 3 and 5 to take action against the respondents 6 to 10 for the statutory violations and illegal activities committed by them.

2. It is the case of the Petitioner, that he and his wife are the owners of the Flat 2-A in “Ramaniyam Swarnamukhi” apartments in Kalakshetra Colony, Besant Nagar which was promoted by the 8th Respondent, M/s. Ramaniyam Real Estate.

3. It is averred in the writ petition that the owners who are arrayed as 6th and 7th respondent and the promoter who is arrayed as 8th respondent has converted the non- FSI area approved and earmarked for pump room, store room, generator room, watchman room and toilet into an apartment and sold to the 9th respondent. The 9th respondent who claims to have purchased the flat in the ground floor started to encroach the common areas including the set back areas which are admittedly common areas.

4. The petitioner further submits that 8th respondent-promoter is habitual in committing these kinds of violations as is evidenced by the Division Bench order of this court in W.P.No.5765 of 2020 dated 20.01.2023.

5. The Petitioner being aggrieved by the conversion of non-FSI area into an apartment by the 6th and 7th Respondents, who are the owners of the land along with the 8th Respondent-promoter and selling of the same to the 9th Respondent, has approached this Court. It is submitted by the petitioner that the construction of Ground floor apartment in the Non-FSI area is illegal and the same being done in the common area.

6. Mr. N. Muralikumaran, Senior Counsel, appearing for the Petitioner, pointing out that the Order passed in W.P.No.5765 of 2020 dated 20.01.2023 would clearly show that the 8th Respondent is a habitual offender and that the sale effected by him to the 9th Respondent of the apartment constructed in the non-FSI area is an illegality which cannot be cured and the sale is also illegal. The said decision was also confirmed by the Supreme Court in SLP (Civil) Diary No.16011/2023.

7. The learned Senior Counsel also contended that when the Petitioner and others resisted the attempted encroachment of the common area by the 9th Respondent, they preferred a complaint on 02.04.2023 before the 4th Respondent and also to the 1st Respondent and with a view to threaten the Petitioner, an F.I.R was registered on the complaint of the 9th Respondent.

8. The learned senior counsel appearing for the petitioner further submits that the above referred to illegality has been committed with the connivance of the regulating body and brought the attention of this court to the following points:-

(i) The 1st respondent/CMDA instead of filing a status report as directed by this court by order dated 10.08.2023 chose only to file their counter on 26.09.2023.

(ii) The communication of the 1st respondent/CMDA has been purposefully issued excluding the promoter and the owner, when the violation was committed by them.

(iii) Even though the CMDA was asked by this court to state what are the violations that were set out in the letter dated 14.08.2023 in Letter No.G/GOI/11797/2023 and Notice dated 11.09.2023 in Notice No.EC/S-I/2409/2023, are capable of being regularized/curable and what could not be regularized, the CMDA chose not to answer this specific query of this court.

(iv) When admittedly the conversion of the non-FSI common area into an apartment was evidenced in Sl.No.4 of the notice dated 11.09.2023 of the 1st respondent and putting up of the illegal dividing wall was committed by the owners and promoters as evidenced in Sl.No.8 of the notice dated 11.09.2023 of the 1st respondent, the CMDA/1st respondent has chosen not to issue any notice