M/S.Shwas Homes Private Limited vs Moon Waters Owners' Association on 1 June, 2022

[Cites 6, Cited by 0]

Kerala High Court

M/S.Shwas Homes Private Limited vs Moon Waters Owners' Association on 1 June, 2022

The impugned judgment rendered by the learned Single Judge on 21.12.2021 in the instant Writ Petition (Civil), W.P(C)No.28513/2021 is the subject matter of challenge in the instant intra court appeal instituted under Sec.5(i) of the Kerala High Court Act.

2. Heard. The appellants are respondents 3 & 4 in the W.P(C), R1 to R3 in the W.A are the petitioners in the W.P(C). R4 & R5 in the W.A are R1 & R2 in the W.P(C), R6 to R9 in the W.A are R5 to R9 in the W.P(C).

3. It will be pertinent to refer to the factual case projected in the instant Writ Petition (Civil), W.P(C) No.28513/2021. It is averred that the 1st petitioner is an Association registered under the provisions of the Travancore-Cochin Literary Scientific & Charitable Societies Act, formed by the owners of the instant apartment complex, viz. ''Moon Waters'', which is stated to be a 22 storied residential apartment complex and said to be part of Acquacity Township project in 17.09 acres of land near the W.A No.38 of 2022 2 river Periyar, which is developed and promoted by R3 & R4 in the W.A. The 2nd & 3rd petitioners are owners of two other flats in the abovesaid apartment complex. That, though R3 (builder) started the project in the year 2007, the project has not been completed so far, even on the lapse of 14 years. That, the ''Moon Waters'' apartment complex is not so far completed with offered amenities and is not having various other requisite facilities. That, though the apartments have been constructed and handed over to the respective owners, no facilities for water connection and car parking have been provided to the residents, including members of the 1st petitioner. That hence, the members of the 1st petitioner, including the 1st petitioner Association, have approached the statutory authority, mainly the Real Estate Regulatory Authority (''RERA'' for short), under the provisions of the Real Estate Regulatory Authority Act, seeking for a direction to the builder to complete the project, along with all offered amenities. This, according to the petitioners, had created animosity in the mind of R4, who is the Managing Director of the 3rd respondent-Flat Builder Company, and that hence, he has started harassing and disconnected the basic amenities in the above apartment complex. That, faced with the situation, the statutory authority-RERA has granted Ext.P-5 interim order dated 14.07.2021, in the petition filed by the 1st petitioner herein (Moon Waters Owners' Association), whereby W.A No.38 of 2022 3 it has been ordered that R3 therein (R3 herein - Builder) is directed not to obstruct any allottee, including the complainant herein from entering/accessing/using any part of the common areas or equipments such as lifts, etc., installed in the project, for the common usage of all the allottees.

4. Further, it is alleged that R4 (Managing Director) has colluded with R6, R7 & R8, who are certain other individual flat owners and has formed the 5th respondent-Association, which includes the tenants of the apartment complex. The writ petitioners would allege that the formation of the 5th respondent-Association is only intended to destroy the petitioner-Association and to disturb the peaceful living of the members of the petitioner-Association. Further that, more crucially, it is averred that respondents 3 to 9 have installed a biometric access control system in the apartment without the consent of the owners of the flats in the apartment. That the said installation of the biometric system is illegal and only to obstruct the access of the petitioners and the members to their own flats that respondents 3 to 9 are illegally demanding money for entry through the lift and those flat owners, who are not willing to pay, are being threatened to be implicated in false criminal cases and denied access. That the members of the 1st petitioner are senior citizens suffering from various ailments, like heart diseases and cancer patients and are W.A No.38 of 2022 4 illegally restrained by respondents 3 to 9 as above. Further, it is averred that inspite of various complaints given to the police to protect the life and property and also to give protection to remove the illegal access control, no action so far has been taken by the competent police authorities. It is in the light of this factual case, that the petitioners have filed the instant Writ Petition (Civil), with the following prayers:

"i) issue a writ of mandamus or such other writ, order or direction, compelling the respondent No.1 and 2 to extend Police protection to the life and property of the 1 st petitioner's members, 2 and 3 and their relatives and guests for having free access to their respective residential apartments in the Moon Water Apartment situated in Aquacity Township Project from the illegal obstructions caused by respondents 3 to 9.

ii) issue a writ of mandamus or such other writ, order or direction compelling the respondents No.1 and 2 to extend Police protection to the 1st petitioner's members to remove any obstruction and obstacles caused by the respondents 3 to 9, including the removal of illegal access control system inside the lift of the Moon Water Apartment situated in Aquacity Township Project.

iii) Pass such other writ, orders or directions deemed fit and necessary by this Court in the facts and circumstances of this case And

iv) Allow the Writ Petition with costs to the petitioner."

5. The interim prayer raised in the instant W.P(C) is as follows:

''.................... to issue an interim direction staying the operation of the directions issued in the judgment delivered by this Hon'ble court in W.P(C) No.28513 of 21 dated 21.12.21 by the learned single judge o0f this Hon'ble court, pending consideration of the above appeal, in the interest of justice.'' W.A No.38 of 2022 5

6. When the above interim plea in the W.P(C) has been taken up for consideration, the learned Single Judge has passed an interim order on 17.12.2021, inter alia noting that the learned counsel for R5 & R7 in the W.P(C) have no objection to the petitioners and their families being given biometric access into their apartment in question. Hence, the learned Single Judge has directed them to remain present in the apartment complex at 11 a.m. on 18.12.2021 and that the competent officer of the 5th respondent will record their biometrix, so as to enable them to get access to the apartment complex in future. Further, R2 in the W.P(C) [SHO] was directed to depute two police officers to the site at 10.45 a.m. to ensure that the afore directions are complied with, without any let or interference from anyone. It will be pertinent to refer to the contents of the interim order dated 17.12.2021 rendered by the learned Single Judge in the instant W.P(C), which reads as follows :

"Sri.Sreekumar Chelur enters appearance for R3, R4 & R9 and Sri.Vipin Vijayan for R5 to R7. It is also recorded that R8 is out of India and he cannot be validly served. Sri.Vipin Vijayan submits that his clients have no objection to the petitioners and their families being given biometric access into the apartment in question. I direct them to remain present in the apartment complex at 11 a.m. on 18-12-2021 and the Competent Officer of the 5 th respondent will record their biometrix so as to enable them to get access to the apartment complex in future. The 2nd respondent will depute two Police Officers to the site at 10.45 a.m. to ensure that the afore directions are complied with without any let or interference from anyone."

W.A No.38 of 2022 6

7. Later, the above W.P(C) came up for final hearing before the learned Single Judge on 21.12.2021. On that day (21.12.2021), the learned counsel, appearing for the writ petitioners, submitted that his parties have already been given biometric access by the party respondents, in terms of the aforesaid interim order dated 17.12.2021 in the W.P(C) and that there are various others, meaning thereby, other members of the 1 st petitioner-Association, who are also waiting for such benefit and it was thus submitted by him that this Court may direct the party respondents not to deny any owner of the apartments, in the afore residential complex, biometric access and thus, being indirectly denied entry to their own apartments and pleaded that the W.P(C) may be ordered in such terms.

8. To this, the learned counsel appearing for R5 to R7 in the W.P(C), very fairly submitted, on the basis of instructions, that R5 to R7 in the W.P(C) have absolutely no role to play in the controversy projected by the petitioners in the W.P(C), since the biometric access has now been directed to be maintained and operated by R3 & R4, as per the orders of the RERA (meaning thereby Ext.P-7 order modified by Ext.P-8 order rendered by the RERA). Accordingly, R5 to R7 in the W.P(C) contended that the writ petition, as against those parties, may be dismissed.

9. Whereas, the learned counsel appearing for R3, R4 & R9 in the W.P(C), i.e., 1st appellant, 2nd appellant & R-10 in the W.A, admitted W.A No.38 of 2022 7 that RERA has directed those parties [R3, R4 & R9 in the W.P(C), mainly the builder company, the Managing Director of the company & the Manager of the company respectively] to form a new Association and to entrust the maintenance of the building to them. This appears to be in reference to the directions issued by the RERA in terms of Ext.P-7, as modified by Ext.P-8. Further, it was submitted by R3, R4 & R9 in the W.P(C) that on account of paucity of funds, those parties are now finding it unable to do so, i.e. the process of formation of another Association, but conceded to a pointed question from the Court that, merely because an apartment owner does not pay any maintenance charge, he or she and their family cannot be denied access to their own apartments. It is in the light of these aspects, that the learned Single Judge has ordered, as per para.6 of the impugned judgment, that the writ petition will stand allowed, confirming the aforesaid interim order dated 17.12.2021, with a consequential direction to R3 & R4 in the W.P(C), who are the appellants herein, to ensure that every apartment owner and their family members are given adequate access to the biometric system, so as to enable them to enter their apartments on their own free will. Further, the learned Single Judge has also ordered as per para.7 of the judgment, that in case R3 & R4 in the W.P(C) [builder and the Managing Director] or anyone else has a complaint against any apartment owner, including the petitioners, that W.A No.38 of 2022 8 they have not paid the monthly maintenance charges, they are at full liberty to take necessary action in terms of law, without causing any obstruction to the access of such persons to their apartments through the biometric system. Further, the learned Single Judge has also clarified that the petitioners and others will have full access to the common areas, including the passenger and service lifts and this cannot be denied merely because they have not paid the service charge; though the afore liberty has been reserved to R3 & R4 to recover it from them. The W.P(C) has been finally disposed of by the learned Single Judge as per the aforementioned directions.

10. The main complaint raised before us by the learned counsel for the appellants is that the learned Single Judge has exceeded the pleas and has given wide directions to give the benefit, even to the persons who are not parties in the W.P(C). That out of the parties in the W.P(C), the 2nd & 3rd petitioners who are two individual members of the 1st petitioner-Association were given the benefit, in terms of the interim order and hence, the learned Single Judge should not have proceeded to issue any further directions in the matter. The said plea is strongly opposed by Sri.R.Lakshminarayan, learned counsel appearing for the writ petitioners/respondents 1 to 3 in the W.A. W.A No.38 of 2022 9

11. It has to be borne in mind that the specific case set up by the writ petitioners in the W.P(C), more particularly in para.10 of the statement of facts, is to the effect that R5 in the W.P(C) has given a frivolous and untenable statement before the RERA that they are doing maintenance of the apartment, and as part of the security of the apartment, they have fixed the biometric system and that the members of the 1st petitioner-Association will be allowed to enter into the apartment only when they are ready to pay maintenance charges to R5 in the W.P(C). In that regard, it has to be borne in mind that RERA has issued Ext.P-7 final order, where it has been inter alia found that the grievance of the complainants therein (members of the 1st petitioner-Association herein), could be redressed through a proper formation of a new Association of allottees in the apartment complex in question, which is to be initiated and enabled by R3 & R4 in the W.P(C) [appellants herein]. Further that, if any dispute exists between the promoter and the allottees, with respect to amounts due from the allottees, it could be solved in a meeting before forming the Association, on the production of a detailed statement of accounts by the promoter. The directions issued by RERA, as contained in para.8 of Ext.P-7 final order dated 13.09.2021, reads as follows :

''8. In view of the above findings, invoking Section 34(f) & 37 of the Act, we pass orders as follows :

1) The Respondent No.1 & 2 shall send notices to all the allottees of residential Tower ''Moonwaters'' calling them for a W.A No.38 of 2022 10 meeting for formation of a new Association of allottees as provided under Section 11(4)(e) & Section 19(9) of the Act and enable them for forming Association and its registration as provided under the law.

2) All the allottees of Tower ''Moonwaters'' shall co-operate and participate in the formation of Association without fail. Those who cannot attend physically can attend the meeting virtually for which the Promoter shall make all the necessary arrangements.

The registration of new Association shall be completed within One month from the date of receipt of this order. Each and every allottee shall make sure that the amounts liable to pay by them have been paid completely;

3) The Respondents No.1&2 shall hand over possession of the common facilities/area of the Tower ''Moonwaters'' along with the keys and documents concerned to the newly formed Association, immediately after registration of the new Association and get it acknowledged formally in the proper manner;

4) Until handing over the common area to the new Association as directed above, the maintenance of the common area shall be responsibility of the Respondents No.1&2;''

12. Later, the abovesaid directions as per Ext.P-7 order has been modified by Ext.P-8 order dated 12.11.2021 rendered by the RERA, which reads as follows :

'' ORDER [Erratum order issued under Section 39 of Real Estate (Regulation and Development) Act, 2016] In the Order dated 13-09-2021, of the above case, the last sentence of para 8(2) in page No.15 shall be changed and joined with the previous sentence which shall be read as follows; ''The registration of new Association shall be completed within One month from the date of receipt of this order and thereafter each and every allottee shall make sure that the amounts liable to pay by them towards maintenance have been paid completely.'' It is in the light of these aspects that the writ petitioners have specifically alleged in para.10 of the W.P(C) that, it is clear from the abovesaid orders, as per Exts.P-7 & P-8 that R3 in the W.P(C) has not handed over the W.A No.38 of 2022 11 apartment to any of the Associations for maintenance and that hence, the installation of the biometric system by R5 in the W.P(C) is illegal and hence, the illegal restraint, at the instance of R5 in the W.P(C), is a criminal offence, punishable under the relevant provisions of the IPC, etc.

13. A reading of the order dated 17.12.2021, rendered by the learned Single Judge in the above W.P(C), would make it clear like the day light that none other than R5 to R7 [rival Association & two individual flat owners, who are said to be members of R5-Association], have categorically and unequivocally stated before this Court that they have no objection whatsoever to the petitioners in the W.P(C) and their families being given biometric access to the apartment in question. It is in the light of these aspects, that the learned Single Judge has issued the consequential directions, as per the interim order dated 17.12.2021. So, it can be seen that none other than R5 to R7 in the W.P(C) have clearly admitted before this Court that they have no objections whatsoever to the petitioners in the W.P(C) and their families are given biometric access to the apartment in question. The 1st petitioner is the registered Association, who claim that they have 49 flat owners as their members. The correctness or otherwise of the abovesaid number of members may not be relevant for the present purpose, except to say that the abovesaid admission of R5 to R7 in the W.P(C) is a categorical admission in favour W.A No.38 of 2022 12 of all the members of the 1st petitioner-Association and not only to the 2nd & 3rd petitioners in the W.P(C), who are also members and for whom benefits were worked out as per interim order dated 17.12.2021.

14. Further, a reading of para.4 of the impugned judgment would indicate that R5 to R7 in the W.P(C) again have clearly and unequivocally stated before this Court that they have absolutely no role whatsoever to play in the controversy projected by the petitioners, since the biometric access has been directed to be maintained and operated by R3 & R4 in the W.P(C) [builder & the Managing Director] under the orders of RERA as per Exts.P-7 & P-8. Therefore, it is clear like the day light that even as per the stand of R5 to R7, all the members of the 1 st petitioner-Association could be given access to the biometric system, as per their stand taken on 17.12.2021, before the rendering of the judgment in the W.P(C) on 21.12.2021 and at the time of the rendering of the judgment, they would categorically admit and state that, in view of the orders of the RERA, as per Exts.P-7 & P-8, they have no role whatsoever in the controversy, since the biometric access has been directed to be maintained and operated by R3 & R4 in the W.P(C) [appellants] (as per Exts.P-7 & P-8).

15. Further, a reading of para.5 of the impugned judgment would make it clear that the appellants herein [R3 & R4 in the W.P(C)/ 1st & 2nd appellants] & R-10 in the W.A, [mainly the builder company, its W.A No.38 of 2022 13 Managing Director & its Manager], that since RERA has directed those parties, as per Exts.P-7 & P-8, to form a new Association and to entrust the maintenance of the building to them and that on account of paucity of funds, the appellants are now finding it unable to do so, but they have very fairly conceded before the Court that, merely because an apartment owner does not pay any maintenance charge, he or she and their family cannot be denied access to their own apartments. So, it is in the light of these categorical and fair admissions made by none other than R3, R4 & R9 in the W.P(C) [which is inclusive of two appellants herein] as well as R5 to R7 in the W.P(C) that the learned Single Judge has issued the consequential directions as per paras.6 & 7 of the impugned judgment. Further, at the time of granting of the interim order dated 17.12.2021, R5 to R7 have unambiguously admitted before this Court that the petitioners and their families will be given biometric access to the apartment in question. Therefore, even at that time, not only the 2 nd & 3rd petitioners, but all the members of the 1st petitioner-Association, had secured the right to gain access to the biometric system and that too only for entering their own flats. Further, since none other than the appellants herein have categorically admitted that it is their duty to form a new Association, so as to run the maintenance of the building, but that on account of paucity of funds, they are unable to do so, but they have very W.A No.38 of 2022 14 fairly conceded that none of the owners of the apartment, who have not paid maintenance charge, can be denied access to their respective apartments. So, the abovesaid directions issued by the learned Single Judge at paras.6 & 7 of the judgment, cannot be seriously faulted. Further, the learned Single Judge has very guardedly and consciously ordered, as per para.7 of the judgment, that liberty is accorded to the appellants herein or anyone else that, in case they have a complaint against any apartment owner, including the petitioners herein, for having not paid the monthly charges, then they are at liberty to take necessary action in terms of law, without causing any obstruction to their access to their own apartments through the biometric system. The directions issued by the learned Single Judge, as per the last paragraph of the impugned judgment, is only consequential in nature, so as to grant full access to the common areas, including the passenger and service lifts to the flat owners concerned.

16. Having said so, technically, the appellants would contend that the writ petition has been instituted by the 1 st petitioner, which is a registered Association and two other individual flat owners and at best, those benefits could have been claimed only by the members of the 1st petitioner-registered Association. We pointedly asked the learned counsel appearing for the appellants whether he has a case that we should W.A No.38 of 2022 15 modify the abovesaid directions issued by the learned Single Judge, as per paras.6 & 7 of the judgment, so as to restrict the benefit of the direction, only to the members of the 1st petitioner-Association, inclusive of all members of the 1st petitioner-Association and not to any other flat owner or tenant, who is not a member of the 1st petitioner-Association.

17. From the tone and tenor of the submissions made by the learned counsel appearing for the appellants, we could gather that the appellants are not seriously interested to seek that option.

18. However, Sri.Sreekumar G.Chelur, learned counsel appearing for the appellants, would submit that the benefit of the abovesaid direction should be confined only to the 2 nd & 3rd petitioners in the W.P(C) and not to any other members of the 1st petitioner-Association.

19. We are afraid that we are not in a position to countenance the said plea of the learned counsel appearing for the appellants. A reading of para.5 of the judgment, would clearly indicate that none other than the appellants and their Manager have fully conceded and admitted before this Court that merely because an apartment owner does not pay the maintenance charges, he or she and their family members cannot be denied access to their own apartments. That admission made by the appellants would enure to the benefit of not only all the members of the 1st petitioner-Association, but also to other owners and tenants of the W.A No.38 of 2022 16 flats, who may not be members of the 1st petitioner-registered Association. Since the appellants are not seriously interested to seek any directions to make it clear that the abovesaid beneficial will not enure to the benefit of any person, who is not a member of the 1 st petitioner-Association, etc., we need not seriously consider that plea, at the same time, we would say that the abovesaid stand of the appellants, now as against the other members of the 1st petitioner-Association would be directly contradictory to their own admitted stand, as reflected in para.5 of the impugned judgment.

20. In that regard, Sri.Sreekumar G.Chelur, learned counsel for the appellant would also submit before us that subsequent to the rendering of the impugned judgment in the W.P(C), all the flat owners and tenants have been enrolled into the biometric access system, etc. From the submissions of both the learned counsel for the appellants and the learned counsel appearing for the writ petitioners, we are told that certain other subsequent developments have also happened regarding the institution of an appeal at the instance of the appellants herein (builder- Company) before the appellate authority under the RERA Act, presumably in relation to the matters arising out of Exts.P-7 & P-8. We need not get into those aspects. However, we would make it clear that such proceedings before the appellate Forum may proceed, in accordance W.A No.38 of 2022 17 with law.

21. The upshot of the above discussion is that no valid grounds are made out for interfering with the well-considered verdict of the learned Single Judge. In that view of the matter, the above Writ Appeal fails and will stand accordingly dismissed.

Sd/-

ALEXANDER THOMAS JUDGE Sd/-

SHOBA ANNAMMA EAPEN JUDGE vgd

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