O R D E R

(Order of the Court was made by R.SUBRAMANIAN, J.)

The petitioner, an Association of apartment owners in a project developed by the 3rd respondent, has come up with this Writ Petition, seeking a Writ of Mandamus, directing the respondents to handover possession of the portion of the building consisting basement and ground floor to the Association, on the ground that the Association is the rightful owner of the said portion of the building and land upon which it has been constructed.

2.The facts as disclosed in the pleadings in the Writ Petition are as follows:-

The 3rd respondent, which is a promoter of residential apartments had obtained a sanctioned plan for construction of about 77 flats residential apartments in a piece of land abutting Sir C.P.Ramaswamy Road, Alwarpet, Chennai – 18 in the year 2001. It appears that the 3rd respondent had proposed to put up a Software Technology Park with built up area of about 2,00,000 Sq.ft in the said land in tandum with M/s.SRA Systems. It is claimed that an advance of Rs.20,00,000/- was also paid by the said SRA Systems. However, even before the necessary permission could be obtained, SRA Systems backed out of the contract. The 3rd respondent, however, sold the residential apartments along with necessary undivided share in the land as per the planning permission dated 27.08.2001 to various allottees.

3.It is claimed that by oversight, the total constructed area was shown as 2,00,000 Sq.ft instead of 1,30,000 Sq.ft as per the approved plan. While the process of execution of the sale deeds was on, a neighbour filed a Writ Petition in W.P.Nos.16477 & 16505 of 2001 seeking stoppage of construction. Around that time, 38 sale deeds were executed in respect of the undivided share of the land. On 16.11.2001, this Court had disposed of the said Writ Petitions with certain directions on the nature of the pile foundation that is to be done for the purpose of erection of the entire structure. This led to developor being forced to give up the plan to construct basement floors.

4.The 3rd respondent applied for revised plan for construction of Stilt + 8 floors and a Non-FSI block but, they could not construct one wing of the 8 floors in the second block facing Beemanna Garden Street. While approving the revised proposal, the Chennai Metropolitan Development Authority insisted upon construction of a building in the front portion of the land abutting Sir C.P.Ramasamy Road, since it apprehended that the said open car parking could be sold separately thereby, a multi storried building will be left with access from 40 feet Beemanna Garden Road, since the entire FSI (Floor Space Index), which was available was consumed. 5.It was agreed that a Non-FSI building would come up in a property abutting Sir C.P.Ramaswamy Road. The same proportion of undivided share was conveyed to all the 77 flat owners taking the total built up area of 2,00,000 Sq.ft. and it is claimed that all the owners had confirmed in the handing over agreements that the Non-FSI building is not part of the common area and the builder retains the same. Therefore, according to the 3rd respondent, Non-FSI area does not form part of the common area and it had not collected monies either for the value of the land or for the building.

6.In the light of the above, the 3rd respondent claimed ownership over the land and the Non-FSI building and sold the same to the 2nd respondent. The 2nd respondent had let it out for non-residential purposes to M/s.Sabari Super Markets Private Limited. This resulted in the petitioner Association filing a Writ Petition in W.P.No.19374 of 2014 , claiming that there has been a violation of the planning permission with regard to user of the Non-FSI structrure and seeking a mandamus, directing the respondents therein to restore the building in accordance with the sanctioned plan.

7.It is also borne out from the records that action was initiated by the Chennai Metropolitan Development Authority under Section 56 r/w. 85