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Judgment
Honourable Mr. Justice K. Chandru
Writ Petition is filed by the petitioner who is a builder and who was responsible for building one Chanakya Apartment at Sithankudi,
Puducherry. The apartment consists of 62 flats in 6 blocks. The petitioner transferred undivided share in the land and also entered into a builder
agreement for building the apartments, which have been handed over to the apartment owners. They formed an association in the name and style of
''Sree Chanakya Apartments Owners Association''. The present controversy arose out of the dispute between the petitioner builder and the
association over the power supply, water supply and common utility. It is accepted by both parties that the association comes within the purview of
Pondicherry Apartment Ownership Act, 1987. Taking advantage of the provisions of the Act, the flat owners of Sri Chanakya Apartments went
before the District Collector, Puducherry. After making enquiries with the association of flat owners of the Chanakya Apartment and the petitioner
represented by his Power of Attorney agent, the impugned order dated 15.2.2012 came to be passed.
It was informed that each apartment has been registered by the apartment owners and the petitioner builder cannot have a full control over the
common utility such as power supply, water supply, lift etc. This will be in violations of the provisions of Puducherry Apartment Ownership Act,
1987. Therefore, the petitioner was directed to transfer the common utility to the flat owners, failing which, it will result in breach of the provisions
of the Act and the apartment owners will be constrained to approach the higher authorities for enforcing the adherence of the plan.
The contention raised by the petitioner was that while transferring the undivided share in the land in which the apartments were built, the
petitioner retained certain portions for his ownership. He had retained the right to maintain the common utility. The common utility included water
tanks, septic tanks, sewerage lines, common lightings and lifts, which come within the ownership and control of the petitioner builder. By the
impugned order, the authorities have been virtually acted like a civil court in transferring the ownership of the area to the association and the
provisions of Puducherry Apartment Ownership Act do not provide for any such contingency. This order is without justification. Challenging this
order, the writ petition came to be filed.
The writ petition was admitted 16.3.2012. Pending the writ petition, in the application for interim order, Notice was ordered. On notice from
this Court, the 4th respondent has filed a counter affidavit dated 23.4.2012 and they are represented by the counsel Mr.S. Rajasekar.
The contentions raised by the 4th respondent were that the apartment owners have entered into a sale deed executed by the petitioner company
and Undivided Share of the land has been also transferred to their favour and they are enjoying over all the amenities including the common area
such as entrance, passages, stair cases, ways, drains underground and overhead tank water tanks, septic tank, motor pump set for lifting water to
overhead tank, common electrification and lift etc. Para 6 of the Sale Deed imposed an obligation to provide the building with all necessary
amenities for the use of the owners of the flats. Sale Deed also referred to full ownership of the common utility right created under the said Act to
the flat owners. However, the petitioner builder is collecting maintenance charges on a monthly basis for providing such services. The petitioner
started to collect water charges on fixed basis despite the fact that separate meters have been provided for each flat and service charges for watch
and ward staff. The watch and ward staff have been misused for providing security to Balaji Theatre. He failed to carry out the external painting for
the apartment for the last 15 years. Several cracks were developed in the walls of the building. There is a poor maintenance of lifts and the
provision of underground drainage still remains only in paper. He also started demands for car parking charge against all norms. This gave rise to
several disputes between the apartment owners and the petitioner company. He also gave false complaint against the apartment owners and
caused serious inconvenience to the flat owners.
Under the provisions of Puducherry Apartment Ownership Act, 1987, more particularly Section 3(f) read with Section 6 deals with the
irrevocation right of Apartment owners to exercise such acts which are necessary for maintenance, repair and replacement of any of the common
areas and facilities. Even the petitioner builder prevented the apartment owners from forming an association and started making personal gains by
claiming false control over the common areas. Therefore, the apartment owners approached the authority for getting redressal of their grievance
and they upheld the right of the apartment owners.
Mr. AR.L. Sundaresan, learned senior counsel appearing for Ms. Pushpa Sathyanaryana, learned counsel for the petitioner strenuously
contended that in the guise of exercising supervisory power vested under the Pondicherry Apartment Ownership Act, neither the Collector nor the
authority can transfer the ownership retained by the petitioner and the order is without jurisdiction.
Per contra, Mr. S. Rajasekar, learned counsel for the 4th respondent submitted that u/s 6(3) of the Act, the common areas and facilities shall
remain undivided and Section 6(3) reads as follows:
(3) the 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, unless the property has been removed from the provisions of the Act as provided in sections 14 and 22. Any covenant
to the contrary shall be null and void.
In fact, a perusal of the provision itself showed that even if the apartment owner or any other person had made any covenant for partition, such
covenant will become null and void. Section 6(4) gave rights to each apartment owner to use the 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. u/s 13(5), the sub-
Registrar or any other Registrar shall register the declaration along with floor plans of the building and the Deed of the apartments under the
Pondicherry Apartment Ownership Act, and shall also enter particulars in the Index kept under sub-section (3).
The only question that has to be considered is whether the impugned order suffered from any want of jurisdiction. On the other hand, it is the
authority constituted to enforce the provisions also makes an assertion as to what is the real legal position and that would not amount to
encroachment into the rights of the parties. It is unthinkable, the petitioner builder can claim exclusive susceptible right over the common facilities
when common facilities building plan would not have approved the same. Therefore, as declared u/s 6(3) of the Pondicherry apartment Ownership
Act, common facility will have to remain undivided. Hence, the claim of the petitioner that he is the exclusive owner of the common facility cannot
be countenanced. Even assuming that the order passed by the respondent are not traceable to the provisions of the Act, by setting aside the said
order, the petitioner builder cannot claim any proprietary right over the said flats.
More or less a similar question came up for consideration before the Supreme Court in Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-
operative Housing Society Ltd., . In that case, the question arose whether the parking space can be sold to a flat purchaser to the exclusion of
other flat purchasers. The Supreme Court held that common areas cannot be sold. By treating open/still parking space as common area, the
promoter is not put to any prejudice financially since he is entitled to charge price for the common areas and facilities from each flat purchaser in
proportion to the carpet area of the flat. For answering the question No. (iii) whether the stilt parking spaces are part of ''common areas and
facilities'', the Supreme Court answered the same in the affirmative. The question as to whether what are the rights of the promoter vis-a-vis society
in respect of stilt parking spaces, was answered by the Supreme Court in the following passage in paragraph No. 40 and it reads as follows:
..The promoter has no right to sell any portion of such building which is not; flat; within the meaning of Section 2(a-1) and the entire land and
building has to be conveyed to the organisation; the only right remains with the promoter is to sell unsold flats. It is, thus, clear that the promoter
has no right to sell ''stilt parking spaces'' as these are neither ''flat'' nor appurtenant or attachment to a ''flat''.
In the light of the above, no case is made out to interfere with the impugned order. Hence, the Writ Petition stands dismissed. No costs. The
connected Miscellaneous Petitions are closed.