VENUS Apartments Welfare Association vs The Commissioner, Corporation of Chennai and Others

N. Kirubakaran, J.—The Petitioner is Venus Apartments Welfare Association. According to the petitioner, the association is for the welfare of the 48 members who are all the residents of the Venus Apartments at TNHB M.I.G., Block 101 and 102 situated at Anna Nagar Western Extension, Mugappair East, Chennai-600 037. The housing units of the apartments were constructed by the Housing Board for residential purpose and Deed of Sale for flats was executed by the Tamil Nadu Housing Board to all the respective residents. The 3rd respondent, who is one of the owners of the flats, converted his residential flat to commercial purposes in 2013 and let out the same to some third parties. The conversion was done without getting proper permission from the concerned authorities, namely, the first and second respondents. The petitioner gave a representation dated 23.12.2013 to the Housing Board and to the Corporation of Chennai and no action was taken. Subsequently, on 13.06.2014, the petitioner gave another representation to the CMDA and again on 18.08.2014 to the Mayor. Since no action was taken, the petitioner again gave a representation on 12.01.2015 to the first and second respondents to take necessary action against the illegal conversion. Till date no action has been taken on the petitioner''s representation dated 12.01.2015 with regard to the conversion of residential flats to commercial use by the third respondent.

Mr.V.Manohar, the learned counsel appearing for the third respondent would submit that there is no prohibition for converting the flats for commercial use. Moreover, an application seeking permission to convert the flats was already given to the Corporation and no order has been passed and in the meanwhile the first respondent has issued a stop work notice and lock and seal notice, against which an appeal is pending before the Secretary to Government, Tamil Nadu Municipal Administration and a direction in Writ Petition No. 28543 of 2015 has been obtained to dispose of the said appeal within a period of two weeks. The said order was passed on 31.10.2014. Since the appeal is pending, no order could be passed in the writ petition.

Mr.P.V. Selvakumar, the learned counsel appearing for the first respondent would submit that the first respondent has done his duty properly by issuing a stop work notice and lock and seal notice and the appeal is pending before the Secretary.

However, Mr. Raja Srinivasan, the learned counsel appearing for the second respondent would submit that as per Section 56(2)(A) of the Tamil Nadu Town and Country Planning Act, the Authorities can proceed with the work in the absence of Stay.

A perusal of the records, especially, the sale deed which was executed by the Tamil Nadu Housing Board in favour of the owners of the flats would disclose that the flats should be used only for dwelling purpose and not to be used for any other purpose. Clause 1 of the Second Schedule of the Sale Deed reads as follows:-

"SECOND SCHEDULE''''

Restrictions, easements, rights, privileges, exceptions, reservations and matters in respect of the MIG Flat No. 102/10 at Anna Nagar West Extension, Chennai - 600 101.

Not to use the Flat nor permit the same to be used for any purpose whatsoever other than as private dwelling house in the occupation of one family only not to any purpose from which a nuisance may arise to the owners lessees and or occupiers of the other flats comprised in the building or in the neighbourhood not for any illegal or immoral purpose

Totally, 48 flats have been constructed and they have been specifically constructed only for the residential purpose and that is the reason why, the Tamil Nadu Housing Board, while executing the sale deed specifically prohibited not to convert it to any other purposes and it is only for dwelling purpose. When there is a condition in the sale deed through which the third respondent is claiming title over the property, it is binding on him and he cannot violate the said condition and use his flats for commercial purpose. The said condition has been incorporated taking into consideration the availability of 46 dwelling flats and if any flat is converted for commercial purpose, it will lead to problem and cause nuisance to the other flat owners who are all using it for residential purpose. When that is the intention, the third respondent cannot violate the said condition and according to his whims and fancies, he cannot convert his flats to commercial purpose, which will cause nuisance and inconvenience to the members of the petitioner Association, who are all using the flats only for residential purposes. Therefore, using the flats for commercial purpose is contrary to the sale deed through which the third respondent himself claims title over the property.

However, Mr. Manohar, the learned counsel appearing for the third respondent would submit that the defence has been spelt out in the argument. Even as per the argument, there is no approval from the authorities either for alteration or for converting to commercial and there cannot be any argument against the condition spelt out in the basic document, namely, sale deed, regarding non conversion and that is only for residential purpose.

Even According to the third respondent, he has not obtained any permission from the authorities for reconverting the flats or for making any alteration and that was the reason why the Corporation rightly gave stop work notice on 27.08.2014 and lock and seal notice dated 23.09.2014. The said notices were given, taking into consideration the violation of rules when he is in possession. Even though the appeal is filed and the same is pending, as long as the violation is there, the appellate authority also cannot pass any order in favour of the petitioner. Filing of the appeal itself is a ruse for prolonging the matter and therefore the appeal is liable to be dismissed. Though the learned counsel for the third respondent has argued the matter at length on so many occasions, he has not chosen to file counter affidavit. The very fact that the third respondent has not filed the counter would show that he has nothing to defend in the above matter.

Even though it is stated that once the Tamil Nadu Housing Board executed the sale deed, it does not claim any right, when it is in the interest of all the parties and only undivided share has been given, definitely the condition has been correctly imposed and that cannot be violated.

However, The learned counsel appearing for the third respondent further submits that it is not possible for the third respondent to vacate the shops because it has been let out to third parties. Those tenants are getting rights only through the third respondent alone. When the conversion is illegal and contrary to the sale deed, the third party also cannot get any right and they cannot independently initiate any proceedings also.

In view of the above, the first and second respondents are directed to enforce the lock and seal notice and report before this Court on 29.10.2015. If the third respondent wants to use the flats for commercial purpose, the third respondent should approach the Association in which he is also a member. But, when the Association is of the opinion that it will be against the interest of all the residents and their family members, definitely, the Association also cannot grant such permission. In the mean while, it is open to the third respondent to file affidavit regarding the alternative arrangement and the time required by him to do it.

In view of the above direction, the writ petition is disposed of. No costs. For compliance of the order, post this matter on 29.10.2015.