Owners of residential properties must comply with restrictive covenants against commercial use as outlined in sale deeds and applicable regulations.

JUDGMENT

This Writ Petition is filed by the petitioners seeking issuance of a writ of mandamus directing respondents 1 to 3 to take action in order to prevent use of apartments in Chinnakkada Housing Accommodation Scheme, Site II of the Housing Board at Kollam for commercial purposes and to ensure that apartments are used purely for residential purposes and other related relieves.

2. Necessary facts required for the disposal of the Writ Petition are as follows:

3. Petitioners are owners of flats purchased from the 1st respondent, in its Housing Accommodation Scheme, Site II at Chinnakkada in Kollam. They are aggrieved by the inaction of the Board in taking action against the use of flats in the housing scheme for purposes not provided under this scheme. The Kerala State Housing Board is a statutory authority created under the Kerala State Housing Board Act, 1971, hereinafter called the Act, for the execution of housing and improvement schemes in Kerala. In accordance with the powers conferred on the Board under the said statute, it formulated a scheme under S.42 of the Act, 1971 viz; Chinnakkada Housing Accommodation Scheme, Site - II for the construction of 24 EF-9 type flats. The scheme was sanctioned by the Government as per G.O.(MS) No.38/92/Housing dated 27.7.1992 and notified under S.55 of the Act, evident from Ext.P1. Shop rooms and commercial buildings with office space mentioned in the notification are situated away from the residential buildings.

4. Board has constructed 4 blocks of multi-storied building. There are 6 apartments in each block. Petitioners purchased flats by executing a sale deed with the 3rd respondent. First petitioner purchased flat No.EF-9/308 as per registered sale deed No.1147/1/2004 dated 29.3.2004 and 2nd petitioner purchased flat No.EF-9/207 as per registered sale deed No.651/04 dated 27.2.2004, of S.R.O., Kollam.

5. It is the contention of the petitioners that, they are residing in the said flats along with their families. The flats in the housing scheme are exclusively meant for residential purposes. Sale deeds provide that the flats shall not be used for any purpose other than residential purpose. Likewise Clause 19 of the Hire Purchase Agreement in respect of persons who opt for hire purchase also provides that the parties shall not use the building and premises thereto directly or indirectly for any purpose other than the purpose of his own residence.

6. It is contended that Regulation 6(1) of Kerala State Housing Board (Formation of Allottees Associations) Regulations, 2000, hereinafter called Regulations, also provides that all apartments in the housing scheme shall be used purely for residential purposes. In spite of the specific stipulation in the sale deed, hire purchase agreement and in the regulations, many of the allottees of flats have let out their flats for using it for commercial purposes to various persons. It is the specific contention of the petitioners that, there are godowns, offices, sales outlet etc. etc., functioning in the housing complex, that 14 flats are now being used for commercial purposes. The details of the flats used for commercial purposes are as follows: