Madras High Court
State Bank Of Travancore vs The State Of Tamil Nadu on 23 October, 2003
Author: A.K.Rajan
Bench: A.K.Rajan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23/10/2003
CORAM
THE HONOURABLE MR.JUSTICE A.K.RAJAN
Writ Petition No.39468 of 2002
State Bank of Travancore
rep. by its Deputy General Manager
Zonal Office
Guna Complex
No.304/305, Anna Salai
Teynampet, Chennai 600 018 Petitioner
Versus
1. The State of Tamil Nadu
rep. by Secretary
Housing and Urban Development Department
Fort St. George
Chennai 600 009.
2. The Member Secretary
Chennai Metropolitan Development
Authority, Thalamuthu Natarajan Building
Egmore, Chennai 600 018.
3. Corporation of Chennai
rep. by its Commissioner
Ripon Buildings
Chennai 600 003.
4. Mrs.K.S.E.Roshan Beevi
5. Mr.M.Basheer Ahmed
6. Mr.M.Nainulabdeen
7. Mr.M.Himmath
8. Ms.Radhamathunnissa
9. Mrs.Zaibunish
10.Ms.Dowlathunnissa
11.Ms.Badhurunnissa
12.Ms.Soweathunnissa
13.Ms.Mumtaj
14.Ms.Mehar Banu
RR4 to 14 all residing at
No.2, Subbaraya Mudali Street
Pudupet, Chennai 600 002. Respondents
Petition filed under Article 226 of the Constitution of India,
praying to issue a writ of Mandamus, as stated therein.
For Petitioner : Mr.N.Radhakrishnan
For Respondents : Mr.R.Vijayakumar
Government Advocate for R1
Mr.N.Sampath for R2.
Mr.C.Ravichandran for R3
Mr.Vijay Narayanan for R4 to R14.
:ORDER
This writ petition has been filed for the issuance of a writ of mandamus, to direct the Respondents 1 to 3 to forbear from regularising or sanctioning any plan or requisition/application for change of user of land for construction that may be submitted by the Respondents 4 to 14 to them in respect of the land and the Ground Floor of the building complex situated at the premises named "Roshan Complex", bearing Door No.110, Block D, Anna Nagar East, Chennai 600 102, and also direct the said Respondents to demolish the constructions put up by them in the ground floor of the said complex.
2. The brief facts that are necessary for the purpose of disposal of the writ petition are as follows: (i) On 07.04.1982, the petitioner purchased from MSF.Mohamed Hanifa, an undivided 919/1779 share in the land, and eight out of the twelve flats constructed in the land and situated in the first and second floors. Out of the remaining four flats, in the third floor, two flats were purchased by M/s.Bharat Earth Movers Limited, and two other flats were purchased by the two individuals along with an undivided 446 /1779 share in the land. The balance of 414/1779 undivided share in the land was not sold. All the twelve flats in the complex were duly handed over to the respective owners in 1982 itself, after receiving the entire consideration.
(ii) The twelve flats including garage or Car Parking, was constructed after obtaining the planning permission from the authorities which permitted construction of flats in three floors in accordance with the plan sanctioned by them, purely for residential purposes. As per the plan, the entire flats were to be supported by pillars. The interspace between the pillars were to be used as Car parking. After the flats were handed over, the owner converted the Car parking in the into six shops in violation of the sanctioned plan. The user of the building was also converted for commercial use. The original owner applied for regularisation of the deviation, but it was rejected by the second respondent; appeal filed against that rejection was also dismissed in G.O.RT No.357, Housing and Urban Development, dated 15.07.1985 third respondent herein, to take suitable action for putting the unauthorised construction. That order was not contested either by way of revision or writ petition.
(iii) Since the third respondent herein failed to take any action, M/s.Bharat Earth Movers Ltd., filed W.P.No.13027 of 1986 before this Court for a writ of mandamus, directing the respondents 2 and 3 to restore the construction as per the sanctioned plan; and to demolish any deviation. In that writ petition, the Corporation of Chennai and MMDA gave an undertaking, that they would abide strictly by the rules and regulations and take appropriate action. Therefore, the High Court in its order dated 11.04.1997, recording the undertaking, observed that no further orders were passed in the writ petition in view of the undertaking given by the second and third respondents. (iv) Pursuant the said undertaking given to High Court, all the shops in the Car parking were demolished on 22.09.1997. The building was restored as per the sanctioned plan and possession of the entire Car Parking was handed over to all the flat owners who are now in joint possession. The petitioner bank being the owner of the maj ority of the flats, and the land on which the flats were built, subsequently erected a wall on the ground floor in order to prevent unruly and anti-social elements from entering the building. In the meanwhile, MSF.Mohammed Hanifa died and Respondents 4 to 14 herein, his legal heirs broke open a portion of the wall erected by the petitioner, claiming that the entire car parking as ground floor area and it is in their exclusive possession and put up shutters. They also started constructing shops in the car parking. However, in view of the threats of legal action by the owners of the flat, they did not proceed further.
(v) In the meanwhile, in view of the deviation made in the existing flats, the petitioner applied for regularisation of the deviation to the flats under the regulation schemes of CMDA after payment of fees and it is pending consideration by the seco espondent. The Respondents 4 to 14 again resumed unauthorised construction of the shops and broke open another portion of the wall. The fourth respondent acting on behalf of the Respondents 4 to 14 resorted to make false statements that user for the "ground floor" has been converted as a commercial area by the second respondent and the fee for regularisation has been paid and only the sanction is awaited.
(vi) The second respondent has no power to regularise the user of the building sanctioned earlier without prior approval and consent of the owners of the flats. As per the rules and regulations of the Madras City Municipal Corporation Act, no notice of any such action has been served on the petitioner; Any such regularisation or change of user amounts to violation of the undertaking given by the second and third respondent to this Court in WP.No.13027 of 1986; it amounts to contempt of the Court. Under the regularisation scheme, only the existing construction and deviation which are unauthorised as on 31.03.2002, can be regularised. Any further unauthorised construction cannot be permitted. There was no construction in the ground floor nor any provision for such construction in the sanctioned plan.
(vii) As per law, the entire land belongs to the owners of the flat and no person can own undivided share in the land without owning a flat. The undivided share in the aforesaid land retained by the vendor without owning a flat in the complex is without any effect or benefit. As per Section-8 of the Tamil Nadu Apartment Ownership Act, 1994, 'any work or other use which would jeopardize the soundness or safety of the property, reduce the value thereof or impair any easement of hereditament or any addition of material structure or excavation of additional basement or cellar without previously obtaining the unanimous consent of all the other apartment owners', is prohibited.
(viii) The respondents 4 to 14 not being the owners of any of the flats, have no right in the premises. Even the flat owners do not have any right to put up any Construction in view of the above said provision. Therefore, the proposed construction is illegal. By letter dated 04.10.2002, the petitioner called upon the second respondent to demolish the unauthorised construction being carried on by the Respondents 4 to 14 in the ground floor and to prevent further construction. The respondents have neither replied nor have taken any steps to demolish. The respondents 1 to 3 shall demolish the unauthorised construction being raised and to forbear from sanctioning of any plan. Therefore, the prayer for a writ of mandamus, to direct the respondents 1 to 3 forbear from regularising or sanctioning any plan or requisition/application for change of use of land or for construction.
3. In the counter affidavit filed on behalf of the CMDA it is stated that on the complaint dated 04.10.2002 from the petitioner, the building was inspected on 22.10.2002 and due to non-availability of approved plan, notice calling for approved plan was issued and in response to the notice, the respondents 4 to 14 had furnished a copy of the cash bill receipt, i.e., Regularisation fee and other charges remitted to the office on 12.09.2002. The respondent has filed a regularisation application under the self-assessment scheme dated 31.10.2000. The amount was paid in pursuance of the demand notice issued on 14.06 .2002. The application is pending for order of the High Court on the validity of the regularisation scheme.
4. In the affidavit filed by respondents 4 to 14 in the WMP to vacate the injunction, it is stated as follows: (No separate counter filed in the Writ Petition)
(i) The first respondent had amended the Town and Country Plan Act; it provides for regularisation of unauthorised construction or deviated construction. The validity of the rule is not in question in the writ petition. Under the rules, the CMDA have right to regularise and pass appropriate orders. The persons who have unauthorisedly constructed or constructed in deviation or change in utility from the sanctioned plan also have a right to make such applications to be considered by the competent authority. As long as the application conforms to the rules, CMDA will have to pass an order regularising the deviation. A statutory action being validly performed under the rules cannot be challenged. Respondents 4 to 14 have a right to make the application and also have the right that their applications should be considered by the competent authority in accordance with the rules. On that ground alone, the writ petition is liable to be dismissed. Further on the application made by the respondents 4 to 14 on 31.10.2000, an order has been passed on 14.06.2002 sanctioning regularisation and directing the respondents to pay Rs.3,36,375/-, and that amount was also paid. The application was made on behalf of the Respondents 4 to 14 as well as on behalf of M/s Bharat Earth Movers Limited who is the owner of two flats, Mr.J.A.Jones, owner of one flat in III Floor and Ms.S.Santhakumari, owner of one flat in III Floor. Except the petitioner all others applied for regularisation. The respondents 4 to 14 applied in respect of the change of user in the ground floor.
(ii) The writ petition has become infructuous inasmuch as the construction had already been completed. Further the flats were promoted by M.S.F.Mohammed Hanifa in the year 1982. As per the sale deeds to the various buyers an extent of 500 sq. ft. of covered Car Parking open space at the rear side of the floor was sold to the petitioner for the purpose of Car Parking and the extent of 125 sq. ft. allotted to M/s.Bharat Earth Movers Limited and therefore approximately 2875 sq. ft. of covered space in the ground floor was retained. MSF. Mohammed Hanifa also retained 414/1779 sq. ft. of undivided share in the entire land and building. Immediately after construction MSF.Mohammad Hanifa had partitioned the ground floor for construction of shops and let out. The petitioner was not given any part in the ground floor, but was given open space in the rear side of the building. The petitioner never protested for the past 16 years. In W.P.No.13027 of 1986, this Court passed an order dated 11.04.1997, recording the undertaking from the Corporation as well as CMDA that they will directly implement and restore as per the sanctioned plan. There are also deviations in 1st, 2nd and 3rd floors of the building. Pursuant to that, the ground floor shops were demolished on 22.09.1997. As a result of the discussion between the petitioner and the Respondents 4 to 14 along with other flat owners, it was finally decided that car spacing of 50 0 sq.ft would be allotted to the petitioner and 125 sq.ft would allotted to M/s.Bharat Earth Movers Limited. The Deputy Manager of the petitioner bank also gave a letter agreeing to occupy the car parking area as marked in the sketch. In respect of the balance area, there is no dispute; Respondents 4 to 14 again constructed shops as soon as the regularisation rules were issued and applied for the regularisation under the rules. It is the deviation that has been regularised and one shop had already been rented out.
(iii) The averment that the second respondent has no authority to regularise without prior approval and consent of the owners of the flat is untenable. Respondents 4 to 14 are only regularising the deviations in respect of their own property and not in respect of the petitioner's property. The entire ground floor was used as godown for two years and after making an application, the user was changed. The ground floor is not meant for common use of the owners. But, it is a common subject matter of the sale deeds. The reference to Tamil Nadu Apartment Ownership Act,1994 is untenable. The Act has not been notified till date. Hence, the writ petition has to be dismissed.
5. The learned counsel for the petitioner submitted that the respondents 4 to 14 have no exclusive right over the area for which they have sought for regularisation. The Flat owners filed W.P.No.13027 of 1 986 for demolishing the unauthorised construction which was contrary to the sanctioned plan and succeeded; the constructed area in violation of the sanctioned plan was dimolished in pursuance of the order passed in the writ petition; the very same violations are presently sought to be regularised. In that writ petition MSF. Mohammad Hanifa, the predecessor in title of respondents 4 to 14 was also a party. Even the appeal filed by MSF.Mohammad Hanifa against that order of the court was rejected. The counsel for the petitioner, therefore, contended that when the 2nd and 3rd respondents have already rejected the request made by MSF.Mohammed Hanifa, and the illegal constructions were demolished and the portion of the car parking was handed over to the flat owners, thereafter, R4 to 14 have no right to apply for regularisation under the 2000 scheme.
6. On the contrary the learned counsel appearing for R4 to R14 submitted that being the owner of 414/1779 undivided share in the land, and being the owner of the entire ground floor (except for a small portion conveyed to the petitioner), they are entitled to apply for regularisation as the scheme. The scheme does not prevent the regularisation sought for by them. The petitioners and the other flat owners have no right to object; it is a matter between them and the respondents 2 and 3. Inasmuch as the petitioners are not the owners of the ground floor, they cannot object for the regularisation and the writ petition is liable to be dismissed.
7. The learned counsel appearing for R3/CMDA also submitted that regularisation in a matter between R3 and the owners (R4 to R14). The application for regularisation has been found to be in order and therefore, the application for regularisation was approved. To that effect, a communication has been sent. The sanction has not been granted as R3 awaits the verdict of this Court on the legality of the Rules of regularisation.
8. From the records filed in the typed set of papers, it is seen that MSF.Mohammed Hanifa got a plan to put up three floors consisting of twelve residential flats; as per the sanctioned plan, the three floors are to be raised on pillars and the space covered by pillars was to be used for car parking. In the year 1982 all the 12 residential flats were sold to the petitioner and three others. Thereafter, MSF.Mohammed Hanifa converted the car parking i nto shops. This was objected by the flat owners and they requested R2 and R3 to enforce the sanctioned plan. MSF.Mohammed Hanifa wanted the shops to be regularised. But, that was negatived and he moved even the government. Appeal by MSF. Mohammad Hanifa against the order of the Commissioner, Corporation of Madras, was rejected by the Government; that order was passed in G.O.RT.No.357, Housing and Urban Development dated 16.05.1995 which is as follows: "The Government after careful consideration of the appeal received from M.S.F.Mohamad Hanifa and the remarks offered by the Member Secretary, Madras Metropolitan Authority, have decided to accept the recommendations of the Member Secretary. They, accordingly, reject the appeal preferred by Thiru M.S.F.Mohamed Hanifa in the matter. The Commissioner, Corporation of Madras is requested to take suitable action for the unauthorised construction already made."
Yet no action was taken by the Commissioner of Corporation to implement the order and hence the writ petition was filed to restore the structure in accordance with the sanctioned plan. Only in that writ petition undertakings were given by the Corporation of Madras as well as by the CMDA that they will strictly implement their sanctioned plan as well as the Government order dated 15.07.1985 and no directions were required for such implementation. The learned Judge passed the following order only on such undertaking: "In view of the undertaking of the learned counsel appearing for the Corporation and the Madras Metropolitan Development Authority, I do not think it is necessary to give a direction by way of a writ of mandamus, directing the respondents 2 and 3 as prayed for. However, the respondents are expected to comply with the undertaking placed before this Court within a reasonable time, in any event, within two months from the date of receipt of a copy of this order. In view of the above undertaking, no further orders are required in the above writ petition. The Writ Petition is ordered accordingly."
9. Subsequent to this order by this Court in the Writ Petition, the Assistant Executive Engineer, Zone-5, Corporation of Madras demolished the illegally constructed shop in 'ground floor' on 22.09.1997 and the car parking as per the sanctioned plan was restored and possession of the car parking was handed over to all the owners of the flat. Accordingly T.R.Kannan District Manager for M/s.Bharath Earth Movers Limited, N.K.Mohandoss for State Bank of Tranvancore and J.Jones, and S.Shanthakumari have jointly taken over the possession of the ground floor from the Corporation of Madras on 22.09.1997 at 5.30p.m. From this, it is seen that the possession of the entire Car Parking was handed over to the petitioner, M/s.Bharat Earth Movers Limited, and two other flat owners which shows that the possession of the entire car parking area was given in possession of the twelve flat owners. Therefore, the respondents 4 to 14 are not in possession of any portion of the entire car parking area.
10. It is to be seen that as per the Rules 3(iii) framed under the regularisation scheme, "Any application made by any person for regularisation who does not have any right over the land or building shall be summarily rejected." As per Rule 3 (2)(k): "In case of flatted developments for considering regularisation of individual flat, the application shall be made by the flat owner and such application shall be accompanied by the documents specified in clauses(a)to (i) above with advance payment of self-assessed regularisation fee and scrutiny fee for that flat. The appellant shall also execute an indemnity bond in the format specified by Chennai Metropolitan Development Authority."
A combined reading of these two provisions makes it clear that in case of flatted developments for consideration of regularisation, the application shall be made by the a person who is the owner of the land or building or an individual flat. If an application made by a person who does not have any right over the land or any part in the building shall be summarily rejected. Therefore, to make an application for regularisation that person shall have a right in the land or building.
11. The case of the petitioner is that all the twelve flats that were built as per the sanctioned plan have been sold by the owner of the land. Therefore, the entire land on which the flats were constructed and also the entire car parking at the ground floor belonged to all the owners of the flats in common. The vendor/promoter does not have any right over the car parking area. On the contrary, the arguments of the learned counsel for the respondents 4-14 is that the entire land has not been sold by the vendor/land owner. Only a portion of undivided share has been sold and the vendor has retained 414/1779 undivided share in the land. Therefore, the vendor has a right in the land and the entire ground floor, except a small portion which was sold to the few of the flat owners, remains with the vendor, and therefore Respondents 4 to 14 are the owners of that ground floor.
12. It is to be noted that the Tamil Nadu Apartment Ownership Act,19 94 has been passed by the Tamil Nadu State Legislature and it was published in the Tamil Nadu Government Gazette extraordinarily on 24th April,1995.
Section 8 of the Act reads as follows:
"8. Certain works prohibited:- No apartment owner shall do any work or put the apartment to any other use which would jeopardise the soundness or safety of the property, reduce the value thereof or impair any easement or heriditament nor shall any apartment owner add any material structure or excavate any additional basement or cellar without previously obtaining the unanimous consent of all other apartment owners."
Relying upon this Section, the petitioner contended that no apartment owner shall do anything in such a manner as to reduce the value of the flats or impair any easement nor shall any apartment owner at any material structure or any additional basement or cellar without previously obtaining the unanimous consent of all the other flat owners. Therefore, no alteration can be made on the area which according to the sanctioned plan is only a car parking. In that car parking, no structure can be put up by any person including the flat owners. Inasmuch as the respondents 4-14 have not been given any consent by the flat owners, Respondents 4 to 14 have no right to put up any structure in that car parking.
13. This argument of the learned counsel for the petitioner was opposed by the respondents 4 to 14, that the Tamil Nadu Apartment Ownership Act has not been notified so far and therefore, the Act has not come into force. Therefore, this provision in the Act has no application. Hence the structure put up by the respondents 4 to 14 in the car parking area, which was not sold to anybody, belong to them. Therefore the application for regularisation is perfectly lawful and hence neither the petitioner nor the other flat owners have any right to question their action. 14. The Tamil Nadu Apartment Ownership Act has been notified as early as on 07.04.1997, by notification issued under Subsection-3 of Section 1 of the Act. Thus the Act has come into force from 7th April, 1 997. Therefore, the provision of the Act applies to all flatted developments including that concerned in this writ petition.
15. This Act also contain some other very important provisions which are referred to hereunder:
"3. Definition In this Act, unless the context otherwise requires,--
(c) "apartment owner" means the person or persons owning an apartment and an undivided interest in the common areas and facilities or the limited common areas and facilities in the percentage specified in the Deed of Apartment and includes an outright purchaser or a hire purchase allottee of such apartment and undivided interest;"
"h. 'common areas and facilities' unless otherwise provided in the Deed of Apartment, means- (1) the land on which the building is located; (2) the foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stairways, terrace, compound walls, fire escapes, wells, and sumps and entrances and exits of buildings; (3) the basements, cellars, yards, gardens, parking areas and storage spaces; (4)..... (5)..... (6)..... (7).... (8).... (9)all other parts of the property necessary or convenient to its existence, maintenance and safety, or normally in common use."
6. Common areas and facilities:-- (1) Each apartment owner shall be entitled to an undivided interest in the common areas and facilities in the percentage specified in the Deed of Apartment and the limited common areas and facilities. Such percenta hall be computed by taking as the basis the extent of the plinth area available in the apartment in relation to the total extent of the plinth area available in the building.
(2) The percentage of the undivided interest of each apartment owner in the common areas and facilities, and in the limited common areas and facilities, if any, as expressed in the Deed of Apartment shall have a permanent character, and shall not be altered without the consent of all the apartment owners. The percentage of the undivided interest in such common areas and facilities and the limited common areas and facilities shall not be separated from the apartment to which it appertains, and shall be deemed to be conveyed or encumbered with the apartment whether or not such interest is expressly mentioned in the conveyance or other instrument.
(3) The common areas and facilities and the limited common areas and facilities shall remain undivided and no apartment owner or any other person shall bring any action for partition or division of any part thereof and any covenant to the contrary shall be null and void.
(4) Each apartment owner may use the common areas and facilities and the limited common areas and facilities in accordance with the purpose for which they are intended without hindering or encroaching upon the lawful rights of the other apartment owners.
(5) The necessary work of maintenance, repairs and replacement of the common areas and facilities and the limited common areas and facilities and the making of any additions or improvements thereto shall be carried out only in accordance with the provisions of this Act and the bye-laws." (Emphasis supplied)
16. Reading the two definitions of apartment owner and common areas and facilities together makes it clear that an apartment owner is a person who owns apartment and an undivided interest in the land, on which the building is located, and he has interest in the foundation, the basement, cellar, yards, gardens, parking space and storage spaces and also on the other parts of the property necessary or convenient to its existence, maintenance and safety. Therefore, an apartment owner owns also the foundation, basement, car parking areas etc.,. 17. Further Section 6(2), provides that undivided interest in the common area shall not be altered without the consent of all the apartment owners. The percentage of undivided interest in the common areas and facilities shall not be separated from the apartment to which it appurtenant and shall be deemed to be conveyed or encumbered with the apartment whether or not such interest is expressly mentioned in the covenant or other instruction. Section 3(3) provides that common areas and the facilities shall remain undivided and no apartment owner or any other person shall bring any action for partition or deviation of any part thereafter and any covenant to the contrary shall be null and void and under Clause 4, the facilities provided under common area meant for the use of the apartment owners in accordance with the purpose for which they are intended without hindering or encroaching upon the lawful rights of the apartment owners. Therefore, the area shown as car park in the sanctioned plan canno t be altered either by the flat owners or by any other person including the vendor who had retained a portion of the undivided share only in the land on which the flat was put up.
18. Admittedly, the vendor is not in possession of any constructed area. Therefore, in so far as the interspace where the pillars stand which is shown as car park in the sanctioned plan is concerned, respondents 4 to 14 are the exclusive owners. It cannot be called as ground floor it is only Car parking. As per the definition of this Act, the vendor cannot even be called as an apartment owner. To be an apartment owner, one must be owning an apartment and undivided interest in the common areas. Without owning any constructed area no one can have any interest in the common area. The Car Parking is common area as per Section 3(h)(iii) of the Tamil Nadu Apartment Ownership Act. Inasmuch they do not have any interest in the common area (Car Parking). As per Rule 3(2)(k) of the regularisation rules extracted above, if an application is made by a person, he has no interest in the land or in the building cannot apply for regularisation. Therefore, inasmuch as respondents 4 to 14 do not have any interest in the Car Parking as the Tamil Nadu Apartment Ownership Act,1994, they cannot apply for regularisation; the application made by them shall be rejected under Rule 3(iii) summarily.
19. From the sale deed, it is seen that rights included in the transfer to the purchaser is referred to in Schedule 'D'. Paragraph-2 of the 'D' schedule is as follows:
"Full right and liberty to the person referred to supra in common with all other persons with or without motor cars or other permitted vehicles at all times, during day and night and for all purposes to go and repair over the land appurtenant to the buildings constructed in the land described in the schedule A above and to use the open space around the building to park vehicles using areas however not in excess of the undivided interest in the land hereby conveyed bears to the total area of the land."
Further under Section 6(3), the common area and facilities cannot be subject to partition or division and any covenant to the contrary shall be null and void. Therefore, even assuming for the sake of argument that the petitioner covenanted not to claim the car park, such a covenant becomes null and void. Therefore, the entire car park is a common area which belong to the owners of the twelve flats. Respondents 4 to 14 do not even have a common interest in the car parking area as they are not apartment owners.
20. Further as per section 6(3), "no apartment owner or any other person" shall bring any action for partition or division of the car parking. Respondents 4 to 14 are not the owners of the car parking area and consequently they have no right to file an application for regularisation under the Regularisation Scheme.
21. That apart, admittedly W.P.No.13027 of 1986 was filed in this Court by M/s.Bharat Earth Movers Limited against respondents 1 to 3 herein and MSF.Mohammad Hanifa. The respondents 4 to 14 are the legal representatives of MSF.Mohammed Hanifa. In that writ petition, a direction was sought to demolish the unauthorised construction put up at the car park area. In that writ petition in which MSF.Mohammad Hanifa was also a party, the High Court passed an order as extracted already whereby the High Court recorded the undertaking given by the CMDA and the Corporation of Chennai, and only in view of the undertaking no mandamus was issued; But, for the undertaking, the mandamus would have been issued. Further, as per the undertaking given to the High Court, the unauthorised construction in the car parking was demolished on 22.09.1997 and the entire car parking was handed over to the owners namely M/s.Bharat Earth Movers Limited, State Bank of Travancore and two other individuals by name Jones and Shanthakumari. Therefore, the legal possession or de jure right over the Car parking is only with the flat owners or apartment owners. The respondents 4 to 14 or their predecessor in title not in possession of the car park after 22 .09.1997. There is no record to show that possession was handed over by the apartment owners to MSF.Mohammad Hanifa or to any of the respondents 4 to 14.
22. When that be the case, in that application for regularisation dated 10.11.1999, the 5th respondent M.Basheer Ahmed has stated as follows:
"We were the promoters of the mentioned building during 1981-1982 and we have retained 414/1779 undivided share which is about 241 square meters on the ground floor only, the balance undivided share is sold to four parties on various sale deeds.........."
Even in this letter, he has stated that only 414/1779 undivided share is retained by the owner. As per the recital sale deed 919/1779 undivided share in the land has been sold to the petitioner. Similarly, the total undivided share in the land that was sold to all the 12 flat owners comes to 1365/1779 undivided share in the land. Only 414 /1779 undivided share in the land was not sold by the owner. The total plinth area is 60 x 50 sq. ft. that comes to 3000 sq. ft. That is the entire car parking area as shown in the sanctioned plan is only 3000 sq.ft. Out of that, 3000 sq. ft. is the plinth area. In that 3 floors have been constructed in all 9000 sq. ft. has been built up. That is when the total plinth area is only 3 000sq.ft, the respondents 4 to 14 claim that they have retained 241 square meters which approximately comes to 2410 sq. ft. If 414/1779 undivided share comes to 2410 sq.ft., 1779 share should be 9640 sq.ft. But, all that 9640 sq.ft of constructed area has been sold to the twelve flat owners. Therefore, the statement made in the application that Respondents 4 to 14 have retained 241 square meters (i.e., 2410 sq.ft) only in the ground floor is not correct. Therefore, respondents 4 to 14 have submitted application with false particulars.
23. Further, when the possession of the entire car parking had been handed over to the apartment owners, the respondents 4 to 14 are not in possession of the car parking, cannot seek for any regularisation. A person who is not in possession of the building cannot seek for any regularisation. By no stretch of imagination, it can be said that the entire car parking area is in possession of the respondents 4 to 14.
23. For the reasons stated already, Respondents 4 to 14 cannot be called as apartment owners and therefore they cannot said to have any interest in the building or common area though MSF. Mohammed Hanifa did not convey but retain 414/1779 undivided share in the entire land.
24. A person cannot retain any undivided share in the land unless he is an apartment owner and in possession of the constructed area in the building. The Car parking is not owned or possessed by Respondents 4 to 14. Inasmuch as possession of the entire car parking had already been handed over , after demolition of the structure pursuant to the undertaking given before this Court by R2 and R3, to the flat owners and they were not legally divested of their possession , the car parking in law, is in the possession of the petitioner and the other apartment owners. It is not in the possession of the respondents 4 to 14; and they have no interest in the car parking area. Hence, Respondents 4 to 14 cannot seek for regularisation by payment of fees and become owners of the 241 square meters of the car parking area. Their application for regularisation therefore is liable to rejected summarily.
25. Therefore, the petitioners are entitled to the relief as prayed for; there shall be an order of writ of mandamus directing the respondent to forbear from regularisation or sanctioning any plan for change of user of land or for construction submitted by respondents 4 to 1 4, in respect of the lands and ground floor of the building complex at Roshan Complex, No.110, D-Block, Anna Nagar East, Chennai. There shall also be a direction to the respondents to demolish the construction put up in the Car parking at the said complex.
26. In the result, the writ petition is allowed as prayed for. No costs.
To 1.
The State of Tamil Nadu rep. by Secretary Housing and Urban Development Department Fort St. George Chennai 600 009.
2. The Member Secretary Chennai Metropolitan Development Authority, Thalamuthu Natarajan Building Egmore, Chennai 600 018.
3. Corporation of Chennai rep. by its Commissioner Ripon Buildings Chennai 600 003.
A.K.RAJAN,J.
ksr 23.10.2003