(2013) 41 KLR 844

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:  26.04.2013

CORAM

THE HONOURABLE MR.R.K.AGRAWAL, The Acting Chief Justice,

THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMAR

AND

THE HONOURABLE MR. JUSTICE K.VENKATARAMAN

Writ Appeal Nos.783, 784, 1394, 1395, 1396, 1771, 1772, 1952 of 2011

and

All connected Miscellaneous Petitions

W.A.No.783 of 2011

------------------

The Tamil Nadu Housing Board,

Rep by its Managing Director,

Anna Salai, Nandanam,

Chennai  600 035.                                        .. Appellant / Respondent

Vs.

1.Mrs.Mary Rani Immanual

2.N.Sankara Pandian

3.K.L.Dhandapaani

4.M.Veerabadran

5.A.Samson Alexander

6.V.Ramakrishnan

7.Mohammed Ibrahim

8.V.Premkumar

9.V.K.Jayachandran

10.Meena Manickam

11.Badgar Welfare Association,

All are rep by their General Power of Attorney

P.Kurthivas

R-28, 12th Street, Anna Nagar

Chennai  600 040                                           .. Resps. No.1  11 / Writ Petitioners

12.The Chennai Metropolitan Development

     Authority, Rep. By its Member Secretary

   No.1, Gandhi Irwin Road,

   Egmore, Chennai  600 008.

13.The Corporation of Chennai

   Rep by its Commissioner

   Rippon Buildings

   Chennai  600 003.                                        .. Respts. No.12 & 13 / Respts.No.1 & 2

Writ appeal has been filed against the order dated 12.01.2011 made in W.P.No.29387 of 2010.

Head Note:-

Tamil Nadu Apartment Ownership Act, 1994 - Section 17, 18, 25 & 252- Tamil Nadu State Housing Board Act, 1961 - Section 37, 39 to 47, 49, 54 & 56 - Right to demolish the existing building and construct new apartment blocks - the Tamil Nadu Housing Board having not retained any right over the land appurtenant to the flats or common area, the question of obtaining No Objection Certificate from the  Tamil Nadu Housing Board will not arise. In such circumstances, the allottees of the flats, after execution of the sale deed in their favour have got every right to demolish the existing building and construct new apartment blocks. Even if additional dwelling units are constructed and sold to the third parties, the Tamil Nadu Housing Board cannot lay any claim over such additional construction.

Held:- As long as the construction are within the parameters of the rules of the CMDA, in our considered view, the  Tamil Nadu Housing Board have got not say, even if additional dwelling units are constructed after demolishing the existing flats. As stated already, the  Tamil Nadu Housing Board looses its rights as soon as it executes sale deed in respect of the flats, appurtenant land and even in the areas earmarked for the common enjoyment of the flat owners. The common area has to be enjoyed in common by the flat owners. If a consensus is arrived at by all the flat owners, they can utilize the common land also to put up construction without No Objection Certificate from the  Tamil Nadu Housing Board. As stated already, the construction shall comply with the requirements of the rules and regulations of the CMDA. Even assuming that there are restrictive covenants in the sale deed executed by the  Tamil Nadu Housing Board in favour of the allottees, the violation of the same cannot be questioned by the  Tamil Nadu Housing Board, since as stated already, as soon as the  Tamil Nadu Housing Board executes sale deed in favour of the allottees, it looses all its rights on the property and it cannot any more question the action of the allottees by saying that the allottees have violated the conditions enumerated in the sale deed.

Tamil Nadu Apartment Ownership Act, 1994 - Section 17, 18, 25 & 252- Tamil Nadu State Housing Board Act, 1961 - Section 37, 39 to 47, 49, 54 & 56 - Public Purpose - Though, the land have been acquired from the public by invoking the provisions of the Land Acquisition Act, on the ground that the lands are required for public purpose, the public purpose ends with the construction of the Housing Board flats and handing over the same to the allottees, after execution of the sale deed.

Tamil Nadu Apartment Ownership Act, 1994 - Section 17, 18, 25 & 252- Tamil Nadu State Housing Board Act, 1961 - Section 37, 39 to 47, 49, 54 & 56 - Right to maintain common areas and utilisation - Section 13 of the Act provides for framing of bye-laws of the Society or Association by the flat owners not only for maintenance and repairs of existing  flats but also for "replacement of common areas". The Society or Association so formed shall take action relating to "common areas and facilities". Right of the Society or Association to maintain, repair and replacement of common areas is provided under Section 18 of the Act. Thus the Act takes care of the common areas and facilities. Therefore, the Tamil Nadu Housing Board may not have any right over the common areas.

Held:- The allottees of the flats in a scheme implemented by the Tamil Nadu Housing Board, after execution of the sale deed in their favour by the Tamil Nadu Housing Board are entitled to demolish the existing the superstructure and put up new apartment blocks with additional dwelling units and sell the same to the third parties without obtaining No Objection Certificate from the Tamil Nadu Housing Board, as long as the construction are within the parameters of the rules and regulations of the CMDA. The restrictive covenants in the sale deed executed by the Tamil Nadu Housing Board in favour of the allottees will not prevent the allottees or the subsequent purchasers from the allottees, in utilising the common areas, so long as the Society or Association which have been formed by the allottees gives consent for the same and no doubt, that the construction are within the parameters of the rules and regulations of the CMDA. Though, the land have been acquired from the public by invoking the provisions of the Land Acquisition Act, on the ground that the lands are required for public purpose, the public purpose ends with the construction of the Housing Board flats and handing over the same to the allottees after execution of the sale deed. When once the scheme is implemented, the Housing Board looses its rights and the scheme does not come into play. Some areas have been earmarked for the common enjoyment of the flat owners. The common areas have to be enjoyed in common by the flat owners and if a consensus is arrived at by all the flat owners, they can utilize the common land also to put up construction without  No Objection Certificate from the Tamil Nadu Housing Board. The various provisions extracted from the Tamil Nadu Apartment Ownership Act, 1994 will amply establish that if all the allottees who have formed the society or association decides to pull up the existing structure and raise a new construction with additional dwelling units even in the common areas, they can do so, provided such construction is in consonance with the rules and regulations of the CMDA.

For appellant in all the W.A's:         Mr.A.L.Somayaji,  Advocate General, for Mr.C.Kasirajan

For respondents in W.A.No.783/2011:        Mr.A.Suresh, for R1 to R12

                                                Mr.N.Sampath, for R13

                                                Mr.V.Bharathidasan, for R14

W.A.No.784/2011                        :        Mr.R.Mohan, for R1 to R8

                                                Mr.N.Sampath, for R13

                                                Mr.V.Bharathidasan, for R14

W.A.No.1394/2011                        :        Mr.P.S.Raman, Senior Counsel

                                                   for Mr.Anand Venkatesh, R10

                                                Not ready: R1 to R9, R11 to R15

W.A.No.1395/2011                        :        Mrs.R.Usha Priya, for R1 to R6

Not ready: R7 and R8

W.A.No.1396/2011                        :        Mrs.R.Usha Priya, for R1 to R6

                                                Not ready: R7 and R8

W.A.No.1771/2011                        :        Mrs.R.Usha Priya, for R1 to R27

                                                Mr.N.Sampath, for R27

                                                Mr.V.Bharathidasan, for R28

W.A.No.1772/2011                        :        Mrs.R.Usha Priya, for R1 to R4

                                                Not ready: R5 and R6

W.A.No.1952/2011                        :        Mrs.R.Usha Priya, for R1

COMMON JUDGMENT

K.VENKATARAMAN, J

The order of reference was made by the then The Hon'ble The Chief Justice M.Y.Eqbal and Hon'ble Mr.Justice T.S.Sivagnanam. The reference thus reads as follows:

"This batch of appeals filed by the Tamil Nadu Housing Board is directed against the judgment and order passed in W.P.No.29837 of 2010 dated 12.2.2011 and W.P.No.670 of 2011 dated 18.1.2011 respectively.

2. The respondents 1 to 8 in this appeal are the writ petitioners. The writ petition was filed for issuance of a direction upon the Chennai Metropolitan Development Authority (CMDA) and Corporation of Chennai to receive, consider, process and approve the writ petitioners application for demolition and reconstruction by issuing planning permission to construct residential flats in the property situated at block No.97A to F, Sowbackya Colony, Anna Main Road, K.K.Nagar, Chennai 78 comprised in Survey No.394/1(part) in Kodambakkam Village, Mambalam-Guindy Taluk, Chennai District, without insisting or production of no objection certificate from the Tamil Nadu Housing Board/appellant or any other authorities concerned and to accord sanction for the same in accordance with law expeditiously.

3. The learned Single Judge disposed of the writ petition with a direction to CMDA to proceed with the application submitted by the writ petitioners without insisting no objection certificate from the appellate Board subject to the condition that the property will be developed only for residential purpose. The learned Single Judge relied on the decision of a Division Bench of this Court in W.A.No.1052 of 2007 (The Managing Director vs. Lancor G. Corp Properties Ltd., and another). The operative portion of the judgment and order reads as hereunder:-

"3. Petitioners are owners of the property which was originally developed by Tamil Nadu Housing Board and sold to the individuals. The present   owners   are   either   original   allottees or subsequent purchasers.  The undisputed fact is that the Tamil Nadu Housing Board has no lien over the property.  For the purpose of developing the property,  the first respondent orally insisted the petitioners that no objection certificate issued by the Tamil Nadu Housing Board should be submitted along with the application for the purpose of demolition, planning permission and for issuance of  planning and building permit to put up new construction.    

4. Similar issue with regard to the insistence of no objection certificate from  Tamil Nadu Housing Board was considered by a Division Bench of this Court in W.A.No.1052 of 2007 (The Managing Director  - vs. - Lancor G:Crop Properties Limited & another) where it has been clearly held that the Housing Board has no right over property developed and sold to the individual allottees. The petitioners have enclosed sale deeds to show absolute ownership. The only restriction appears to be that the property developed for residential purpose should not be commercial use. The petitioners' plea is only for demolition and reconstruction as residential property.

5. Petitioners' counsel states that the development of the property is  for residential use only and petitioners are willing to file an affidavit to that effect.  Following the Division Bench Judgment as above, several orders have been passed by this Court, viz., W.P.No.15170 of 2010 dated 20.7.2010, W.P.No.14784 of 2008 dated 6.8.2008 where the Chennai Metropolitan Development Authorities were directed to accept the application without insisting on no objection certificate.  

6. Since the property in question undisputedly has been sold to the individual allottees by way of proper sale deeds, the Tamil Nadu Housing Board can have  no right over the property and therefore, the question of issuing no objection certificate does not arise.  

7. In view of the above, the first respondent is directed to proceed with the application submitted by the petitioners without insisting  no objecting certificate from the third respondent Tamil Nadu Housing Board subject to condition that the property will  be developed only for residential purpose. The petitioners, however, are directed to submit the individual sale deeds of all the land owners to the competent authority to get planning permission.   The Writ Petition is ordered as above.   No costs."

4. The learned Advocate General appearing for the appellant submitted that certain vital facts and legal position were not placed before the Division Bench while deciding W.A.No.1052 of 2007 and therefore, this Court should permit the appellant Board to contest the matter on merits. It is submitted that the writ petitioners were allottees of flats constructed by the appellant Board and are bound by the terms and conditions of allotment as well as the covenants contained in the deed of conveyance executed in their favour after they had paid the full cost to the Board. It is submitted that absolute ownership was conveyed to the allottees concerned only in respect of built up portion of the flats and not along with other common land and this aspect of the matter requires to be considered. Further, it is submitted that as per the deed of conveyance, executed in favour of the allottees one of the condition is that the vacant land around the building and the terrace shall be held in common by the owners of all the flats and the allottee/purchaser shall not be entitled to convert the common land for their personal or exclusive use and in several cases including the present writ petitioners are subsequent purchasers and therefore, they are not entitled to proceed without obtaining no objection certificate from the appellant Board. It is submitted  that the deed of conveyance executed in favour of the allottees stipulates that they shall not put up any additional construction to the flat without prior permission of the appellant Board and therefore, the appellant Board is fully justified in enforcing such condition and the requirement to obtain no objection certificate cannot be dispensed with. Further, it is stated that as per Board resolution No.11.05, dated 30.06.2004, the Board shall collect 10% of the market value on the additional floor area/eligible FSI under the Development Control Rules for the proposed reconstruction and the learned Advocate General placed reliance on the following covenants contained in the sale deed executed in favour of the allottees:-        

"The sale deed is only for the cost of construction of the flat and the proportionate cost of land on which building stands".

"The land is hereby conveyed, granted transferred and assigned unto and to the use of the purchaser to be enjoyed by the purchaser for every absolutely, free from all encumbrances and charges whatsoever except the restrictions and under takings given herein", that is Vendor's covenants and purchaser covenants.

The purchaser and the persons deriving title under him shall not put up any additional construction to the flat without prior permission of the Tamil Nadu Housing Board in writing.

The purchaser and the persons deriving title under him shall not put up construction of any sort over or around the space available in an around the flat, without prior permission of the Tamil Nadu Housing Board in writing.

In case of any dispute arising between the parties hereto the same shall be referred to Secretary to the government of Tamil Nadu, Housing Department, whose decision thereon shall all final.

The Land should not be converted to commercial purpose, it should remain as residential purpose.

5. It is further submitted that the Board is enforcing the terms and conditions of allotment and conveyance and therefore, the necessity to frame a rule to insist upon a no objection certificate does not arise. The learned Advocate General prayed that the judgment of the earlier Division Bench requires to be reconsidered and may be referred to a Larger Bench to decide all points.

6. The learned counsel appearing for the respondents/writ petitioners contended that all the points raised by the appellant Board had been dealt with by the earlier Division Bench and the writ petitioners being purchasers of the property and a deed of absolute sale having been executed in their  favour, the Housing Board has no right over the property and they cannot insist upon issuance of no objection certificate. The learned counsel placed reliance on the Division Bench judgment of this Court in W.A.No.124 of 1995, dated 25.07.1997, wherein the Division Bench held that the Board having sold the flats in favour of the allottees and the flat owners having formed an association, the entire area belongs to the allottees and the Housing Board has no right to interfere with control, possession and management of the said area.

7. It is on the above rival contentions, it has to first decided as to whether the judgment of the earlier Division Bench of this Court in W.A.No.1052 of 2007, requires reconsideration. The appeal before the earlier Division Bench arose out of an order passed by a learned Single Judge, wherein prayer was made to quash the order passed by the Corporation of Chennai insisting upon production of no objection certificate from the Housing Board for considering their application for demolition of the building and for issuance of building permit. The learned Single Judge in the said case, allowed the writ petition and Housing Board preferred the appeal. At this stage, we may refer to the operative portion of the judgment in W.A.No.1052 of 2007:-

"6. The writ appeal is filed on the ground that originally the property was acquired by the Tamil nadu Housing Board for housing purposes and after putting up the construction, they were allotted to various allottees and the allottees were conveyed the necessary documents in respect of the built up flat portion and therefore, in respect of the common land, the allottees are expected to keep intact as per the conditions of allotment.  According to the appellant, when the original plan lay out consisted of the built up house as well as common land for the common use of all occupants, by virtue of the demolition, the occupants cannot be expected to convert the common land for the personal and exclusive use and the first respondent who is a subsequent purchaser is attempting to put up construction in the common space left for the common purpose and that is why the No Objection Certificate is required from the Tamil Nadu Housing Board.

7. The No Objection Certificate is insisted based on the terms of allotment, which is binding upon the first respondent.  According to the appellant, on receipt of such application for receipt of No Objection Certificate and on payment of application charges,  such No Objection Certificate is issued for demolition and reconstruction.  As per S.R.No.11.09 dated 30.6.2004, the Tamil Nadu Housing Board is entitled to collect 10% market value on the Additional floor area/eligible FSI under the DCR proposed for reconstruction and only thereafter, No  Objection Certificate is issued.

8. The learned counsel appearing for the appellant Housing Board apart from insisting the above said point would also submit that the first respondent cannot be permitted to use the common area to put up the commercial complexes.  When this Court has directed the learned counsel for the appellant to produce the Rules which permit the Tamil Nadu Housing Board to collect 10% of the market value from the occupants after the registered sale deed has been executed, the learned counsel is unable to point  out any such rule.  Therefore it is clear that there is absolutely no reason for the Tamil Nadu Housing Board to insist for 10% market value for the purpose of issuance of No Objection Certificate.  The allotment has been made nearly thirty years ago and admittedly the entire sale consideration and other charges  have been paid by the allottees and documentations have been made and therefore the allottees have sold away the properties to the third  parties.  

9. In such circumstances, unless there is a statutory rule enabling the Housing Board to make such collections,  the Housing Board cannot arbitrarily refuse to issue the No Objection Certificate on the basis that it is entitled to collect 10% market value.

10. As far as the other apprehension raised by the learned counsel for the appellant that the common area shown in the flats are sought to be converted by the first respondent for non-residential multi-storied building, Mr.Muthukumarasamy, learned Senior Counsel appearing for the first respondent would fairly submit that the proposed reconstruction is not for non-residential purpose and it is for residential purpose and therefore, there is no need for any apprehension on the part of the Tamil Nadu Housing Board that multi-storied building are sought to be put up for non residential purposes."

8. The Division Bench recorded a finding that there was no statutory rule enabling the appellant Board to collect 10% of the market value for issuing no objection certificate and in the absence of any such rule, the Board is not justified in insisting upon no objection certificate. The Division Bench also noticed the decision of the earlier Division Bench in the case of Ramakrishna Nagar flat allottees, wherein the Division Bench held that the entire area belongs to the allottees and the Board had no control.

9. It is seen that the appellant Board seeks to enforce terms and conditions of allotment as well as the covenants contained in the deed of sale executed in favour of the allottees. Admittedly, the conditions contained in the letter of allotment as well as the covenants in the deed of sale are binding upon the parties. It is contended that the deed of sale is a conveyance in favour of the allottee subject to the conditions contained and it is not a deed of absolute sale simplicitor. Therefore, the question would be whether such covenants and conditions contained in the deed of sale and accepted by the allottee would be binding on the allottee or his successor in interest. The Larger Question would be whether the Board was justified in imposing conditions in the letter of allotment and covenants in the deed of sale so as to ensure that the purpose and object for which the scheme was promoted continuous to remain intact.

10. It is submitted by the learned Advocate General that the deed of transfer was only in respect of the built up area of the flat and the remaining common area shall continue to remain common with no person be entitled to claim any exclusive right over such common area. It that be so, if all the owners of the flats join together and decide to utilise the common area for their respective exclusive purpose would that be in contravention to the conditions of the covenants. However, this aspect of the matter had not come up for consideration before the earlier Division Bench. The other grievance expressed by the appellant Board is that the original allottees have joined together and applied for demolition of all the flats and have sought for building permit for putting up new construction and in the proposed new construction, the number of dwelling units has been increased. These additional dwelling units/flats are sold and such sale proceeds appropriated by the original allottees or given to the developer who constructs the flats for the allottees as well as the additional flats. Whether this would be permissible in the light of the conditions of allotment and the covenants in the sale deed, more so when, the land on which, the flats were constructed were acquired by the State Government by the power of compulsory acquisition, citing the need that the lands are required for a public purpose. It that be so, should the public purpose continue to survive despite efflux of time? This issue also did not come up for consideration before the earlier Division Bench.

11. The other issue would be if the original allottees having found that their building has become old took a decision to pull down the building and put up a new construction without increasing the number of flats, with an increased built up area, then will it be permissible under the planning rules. The question would be whether even in such cases, where the number of dwelling units has not been increased, yet it would require the No Objection from the appellant Board. This question has also not come up before the earlier Division Bench."

2. Thus, the Division Bench deemed it fit to refer the matter to a larger bench to decide the following questions:

"(i) Whether the allottees of flats in a Scheme evolved and implemented by the Housing Board, after execution of sale deeds in their favour by the Housing Board would be entitled to demolish the building and construct a new apartment complex with additional dwelling units and sell such additional dwelling units to third parties without obtaining no objection certificate from the Housing Board.

(ii) Whether the restrictive covenants contained in the deed of sale executed by the Housing Board in favour of the allottee would bind the allottee or his successor in interest and by virtue of which whether the allottee shall be required to keep the common areas as such without claiming any exclusive right over the same.

(iii) Whether the Housing Board is justified in contending that such restrictive covenants are valid and enforceable in the light of the fact that the land on which the apartment complex had been constructed, had been acquired from the public by invoking the provisions of the Land Acquisition Act on the ground that the lands are required for a public purpose.

(iv) Whether if all the allottees in an apartment complex join together and decide to pull down the existing structure and raise new construction by increasing the number of dwelling units/flats by putting to use the land area which was initially earmarked as common area and required to be retained as such in the covenants contained in the deed of sale.

(v) Whether the allottees by joining together decide to demolish the apartment complex and construct a new apartment complex with larger built up area without increasing the number of dwelling units, would still be required to obtain no objection certificate from the Housing Board.

(vi) Whether the Housing Board has power to levy charges at the rate of 10% of the market value on the additional floor/eligible FSI and whether such power is traceable to any Act, Rule or Regulation and what is the basis of such levy/demand."

3. In these cases, the allottees or the subsequent purchasers from the allottees, with an intention to demolish the existing superstructure (their flats) and put up new construction have sought permission from the authorities. Their demolition plan before the Corporation authorities and building permission sought for from the CMDA authorities are not processed on the ground that they shall obtain "No Objection Certificate" from the Tamil Nadu Housing Board.  However, the writ petitions filed by the allottees or the subsequent purchasers from the allottees have been allowed and the corporation authorities were directed to grant approval for the demolition of the existing structure and the CMDA authorities were directed to process their applications for putting up new construction. The Tamil Nadu Housing Board, challenging the said orders have come up with the present writ appeals. As stated already, the then Hon'ble First Bench deemed it fit to refer the matter to a larger bench and hence, these appeals are listed before us.

4. The question that arises for consideration is whether such  "No Objection Certificate" has to be obtained from the Tamil Nadu Housing Board before demolition of existing flats and reconstruction of new one. The learned Advocate General strenuously contended that what has been conveyed to the allottees by the Tamil Nadu Housing Board is only the flats and the land appurtenant therein are the land kept in common and have not been conveyed to the allottees.

5. Before dealing with the said question, it would be appropriate to note the covenants in the sale deed between the Tamil Nadu Housing Board and the allottees.

(i) Paragraph 8 of the sale deed dated 13.07.1992 in Writ Appeal No.952 of 2011 reads as follows:

"8. NOW THIS DEED WITNESSETH that in Pursuance of the abovesaid agreement for Sale and in consideration of the sum of Rs.76320/- (Rupees Seventy Six Thousand Three Hundred and Twenty only) only paid by the Purchaser to the Vendor as mentioned in paragraph 6 above, the construction cost of the Flat together with the proportionate cost of land on which the building has been erected the receipt of which the vendor doth hereby acknowledge and of the monthly service, or maintenance charges, hereinafter reserved and of the convenants of the Purchaser hereinafter contained the Vendor does by way of absolute sale hereby Grant, Convey, Transfer and AND ASSIGN unto the Purchaser the individed interest in all that piece of land where the building stands as shown in the plan annexed hereto and thereon coloured red together with the Flat No.4 in the Block No.M.34 in Ms City fully described in the First Schedule hereto."

(ii) The property that has been covered in the sale deed is set out in the first schedule to the sale deed which reads as follows:

"FIRST SCHEDULE  PROPERTY

All that Piece and portion of the flat No.4 in the First floor of the Building in Block No.M.34 erected on the land in T.Survey No.1 part / Block 41 Vrvr village at Besant Nagar in Madras City flat measuring 852 sq.feet and the land being bounded on

                the North by :         Block L-37

                the East by        :        40'  0" Road

                the South by        :        Flat No: M.34/3

                and the West by:        Plots

Within the Sub-Registration District of Adayar and Registration District of Madras."

(iii) With regard to the Easements, Rights and Privileges to the allottees, they are set out in the third schedule to the sale deed which is usefully extracted here under:

THIRD SCHEDULE

"Easements, Rights and Privileges included in the transfer;

1. Full right and liberty for the Purchaser and all persons authorised by the Purchaser (in common with all other persons entitle to the like right) at all times by day or by night and for all purposes to go, pass and repass over and along the forecourt shown on the plan annexed hereto through and along the main entrances of the Building and the passages, landings and staircases leading to the flat.

2. Full right and liberty for the Purchaser and all persons authorised by the Purchaser (in common with all other persons entitled to the like right) with or without motor cars and other vehicles at all time by day or by night for all purposes to go, pass and repass over and along the way shown on the plan annexed hereto.

3. Full right and liberty for the Purchaser and all persons authorised by the Purchaser (in common with all other persons entitled to the like right) to use the fore court and garden shown on the plan annexed hereto and for the purpose of recreation and ( as to the areas marked 'Parking' on the said plan for the parking of private motor-cars and motor-cycles only (but not for the purpose of playing games or for any other purpose); provided that any vehicle parked in the areas marked 'Parking' may only be parked for temporary period not exceeding three hours continuously at any one time.

4. The right (in common, with all other persons entitled to the like right) to use the part of the premises for the purpose of drying clothes.

5. The right (in common, with all other persons entitled to the like right) to use the part of the premises for keeping a dust-pin.

6. The right to subjacent and lateral support and to shelter and protection from the other parts of the building and from the site and roof thereof.

7. The free and uninterrupted passage and running of water and soil and electricity from and to the Flat through the sewers, drains, and water courses, cables, pipes, and wires which now are / or may at any time hereafter be in, under or passing through the Building or any part thereof.

8. The right to the Purchaser with servants, workmen and others at all reasonable times on notice (except in the case of emergency.)

a) to enter into and upon other parts of the Building for the purpose of repairing cleaning, maintaining or renewing any such sewers, drains, watercourses, cables and wires with as little disturbance as possible and making good any damage caused; and

b) to enter into and upon other part of the building for the purpose of repairing maintaining renewing, altering or rebuilding the Flat or any part of the building subjacent or lateral support, shelter or protection to the Flat.

9. The benefit of the restrictians contained in the transfer and leases of the other flats comprised in the Building granted or to be granted.

10. All the above easements, rights and priveleges are subject to and conditional upon the Purchaser's contributing and paying as provided in Clause 13(c) of the Deed and the fifth schedule to this transfer.

11. The right (object to the Purchaser's contributing and paying his proper share to the cost of erection, maintenance and running of the television serial hereafter referred) to such share to be determined by the Vendor to connect a radio or television set in the flat with an aerial erected by or on behalf of the Vendor provided that nothing herein contained shall oblige the Vendor to erect any such aerial.

12. Every internal separating the flat from an adjoining flats shall be a PARTY wall served medially."

(iv) The above covenants in the sale deed executed by the Tamil Nadu Housing Board to the allottees would amply establish that what has been conveyed to the allottees are not only the flats but also the land appurtenant thereto. How common areas have to be utilised by all the allottees have also been set out in the third schedule to the sale deed extracted above. Hence, the contention raised by the learned Advocate General that even after the allotment was made to the allottees in respect of the flats constructed by the Tamil Nadu Housing Board, the land appurtenant / common area have been retained by the Tamil Nadu Housing Board and it has got control over it, may not be correct.

(v) Further, a reading of the entire sale deed will disclose that the Tamil Nadu Housing Board has not retained any portion of the land.

6. The next question that has to be answered is whether the allottees or the subsequent purchasers from the allottees have to obtain "No Objection Certificate" from the Tamil Nadu Housing Board for demolishing the existing superstructure and to put up new construction over therein.

7. (i) Both sides relied on the provisions of The Tamil Nadu Apartment Ownership Act, 1994.

(ii) The Tamil Nadu Apartment Ownership Act, 1994 was enacted with an intention to provide for the ownership of an individual apartment in a building and of an undivided interest in the common areas and facilities appurtenant  to such apartment and to make such apartment and interest heritable and transferable immovable property.

(iii) The purpose for enacting the Act was set out in preamble to the Act which reads as follows:

"WHEREAS with a view to securing that the ownership and control of the material resources of the community are so distributed as to subserve the common good, it is expedient to provide for the ownership of an individual apartment in a building and of an undivided interest in the common areas and facilities appurtenant  to such apartment and to make such apartment and interest heritable and transferable immovable property and to provide for matters connected therewith or incidental thereto"

(iv) Section 2 of the Act contemplates that it shall apply to every apartment constructed before or after the Act. It reads as follows:

"2. Application of this Act.- This Act shall apply to every apartment in a building constructed whether before or after the date of commencement of this Act:

Provided that such building shall contain five or more apartments or three or more floors and construction of such building has been made in accordance with a planning permit and also a building plan duly sanctioned by the Appropriate Authority concerned under the relevant law for the time being in force."

(v) "Common areas and facilities" which is defined in clause (h) of Section 3 of the Act reads as follows:

"3. Definitions.-

(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;"

(vi) The term "property" is defined in clause (q) of Section 3 of the Act which is reproduced hereunder:

"3. Definitions.-

(q) "property" means the land, the buildings, all improvements and structures thereon and all easements, rights and appurtenances belonging thereto."

(vii) Section 4 of the Act provides for transfer of apartment ownership by an individual with undivided interest in the common area and facilities.

(viii) Section 6 contemplates that

(a) each apartment owner is entitled to an undivided interest in the common areas and facilities.

(b) common area and facilities shall not be altered without the consent of all apartment owners.

(c)  common area and facilities shall remain in common and no apartment owner can seek for partition and division of the same.

(d) Maintenance, repairs and replacement of the common areas and facilities, addition and improvements thereof shall be carried out in accordance  with the provisions of Act and byelaws.

(ix) Section 8 of the Act provides that no apartment owner shall add any material structure without consent from other apartment owners. Section 8 is usefully reproduced here under:

"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 hereditament nor shall any apartment owner add any material structure or excavate any additional basement or cellar without previously obtaining the unanimous consent of all the other apartment owners."

(x) Section 12 provides for forming Society or an Association of apartment owners for maintaining common areas and facilities.

(xi) Section 13 of the Act provides for framing of bye-laws of such Society or Association formed as per Section 12 of the Act. As per clause (2) of Section 13, the bye-laws shall provide for the following matters, namely,

the percentage of the votes which shall constitute the quorum;

the maintenance, repairs and replacement of the common areas and facilities and the limited common areas and facilities and payment thereof;

the appointment and removal of persons employed for the maintenance, repairs and replacement of the common areas and facilities and the limited common areas and facilities;

the restrictions on the requirements respecting the use and maintenance of the apartments and the use of the common areas and facilities and the limited common areas and facilities not set forth in the Deed of Apartment, as are designed to prevent unreasonable interference with the use of their respective apartments and of the common areas and facilities and the limited common areas and facilities by the several apartment owners;

the terms and conditions subject to which transfer of any apartment and percentage of undivided interest in the common areas and facilities and the limited common areas and facilities of such apartments may be effected;

(xii) Section 16 of the Act contemplates that the apartment owners shall own in common the undivided interest in the property in the event of damage or if the same is destroyed in entirety  or in part, and if Society or Association has not taken any repair or reconstruct or rebuild the property. Section 16 of the Act is reproduced here under:

"16. Disposition of property on destruction or damage.- Where in the event of the property, either in the entirety or in part being damaged or destroyed and the Society or the Association of Apartment Owners has not undertaken to repair, reconstruct  or rebuild within a period of ninety days or such further period as may be specified by the Competent Authority from the date of damage or destruction,-

(a) the property shall be deemed to be owned in common by all the Apartment owners in the same percentage as the percentage of the undivided interest specified in the Deed of Apartment;

(b) the undivided interest in the property owned in common which shall appertain to each Apartment Owners shall be the percentage of the undivided interest previously owned by such owner in the common areas and facilities and the limited common areas and facilities;"

(xiii) Section 17 of the Act provides for an action by Society or Association relating to common area and facilities, which is usefully extracted here under:

"17. Action by Society or Association of Apartment Owners on behalf of the Apartment Owners.- Without limiting the rights of any Apartment Owner, action may be brought by the Society or the Association of Apartment Owners on behalf of any Apartment Owner as his respective interest may appear; with respect to any cause of action relating to the common areas and facilities and the limited common areas and facilities of more than one apartment."

(xiv) Section 18 of the Act provides for the right of the Society or Association to maintain repair or replace any of the common areas and facilities and the said provision is reproduced here under:

"18. Right of Society or Association of Apartment Owners to maintain, repair and replace any of the common areas and facilities, etc.- The Society or the Association of Apartment Owners shall have the irrevocable right to be exercised by its Secretary or by any other person authorised in this behalf by the Committee to have access to every apartment from time to time during reasonable hours as may be necessary for the maintenance, repairs and replacement of any of the common areas and facilities and the limited common areas and facilities therein or accessible from such apartment or for making emergency repairs therein necessary to prevent damage to the common areas and facilities and the limited common areas and facilities or to another apartment or apartments."

(xv) Clause (1) of Section 19 of the Act deals with the sharing of common profits and expenses in common areas and facilities and the same is reproduced here under:

"19. Common profits and expenses.- (1) The common profits shall be distributed among and the common expenses shall be charged to, the apartment owners according to the percentage of the undivided interest of the apartment owners in the common areas and facilities specified in the Deed of Apartment."

(xvi) Thus various provisions of the Act extracted above clearly stipulates that

(1) The apartment owners shall form a Society or Association,

(a) with the object to maintain all common areas and facilities, to provide amenities in the common interest of all apartment owners;

(b) to maintain, repair and replacement of common areas and facilities.

(c) to impose restrictions regarding the usage and maintenance of apartments and the use of the common areas and facilities.

(d) to frame terms and conditions for transfer of any apartment and percentage of undivided interest in common areas and facilities.

(e) to take action relating to common areas and facilities.

2. The percentage of the undivided interest of each apartment owner in the common areas and facilities shall not be altered without the consent of all the apartment owners and in accordance with the provisions of the Act and the bye-laws.

3. In case of destruction or damage to the apartment and if the society or Association fails to carry out the repair or reconstruct or rebuild the same, the property shall be owned in common by all apartment owners in the same percentage as specified in the deed of the apartment.

8. Thus, a reading  of the various provisions of the Act clearly demonstrate that the Society or the Association formed under the Act alone is in control over the common areas and facilities available in the apartments and it alone shall deal with the same. It can also frame rules and regulations for transfer of any apartment and percentage of undivided interest in the common areas and facilities. The preamble of the Act which is extracted above clearly spells out that the Act is enacted to provide for ownership of an individual apartment in a building, undivided interest in common areas and facilities pertaining to the transfer of apartment.

9. While that being so, it cannot be urged, still, on behalf of the Tamil Nadu Housing Board that it has got control over the apartments put up by it and the common areas available for the apartment owners. Even assuming that the Tamil Nadu Housing Board has retained its power, even after selling the individual apartments, the provisions of the  Tamil Nadu Apartment Ownership Act, 1994 will prevail over and above the rights of the  Tamil Nadu Housing Board, if any.

10. In this connection, it will be useful to consider Section 25 of the Act which provides that this Act will override other laws. Section 25 of the Act is usefully extracted here under:

"25. Act to override other laws.- (1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom, usage or agreement or decree or order of a Court, Tribunal or other Authority.

(2) Save as otherwise provided in sub-section (1), the provisions of this Act, shall be in addition to and not in derogation of, any other law for the time being in force."

11. Mr.P.S.Raman, the learned Senior Counsel appearing for one of the allottees relied on Section 11 of the Transfer of Property Act, 1882 and contended that once absolute right has been conferred on the property, no rider can be put to the enjoyment of the property. Section 11 of the Act is thus reproduced here under:

"11. Restriction repugnant to interest created.- Where, on a transfer of property, an interest therein is created absolutely in favour of the any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction."

In the case on hand, the Tamil Nadu Housing Board has executed sale deed in favour of the allottees not only in respect of the flats, but also the land appurtenant thereto. Even with regard to the common areas, the same vest with the Society or an Association formed by the allottees. Further, it has been found that the  Tamil Nadu Housing Board has not retained any right even over the common area. In such circumstances, Section 11 of the Transfer of Property Act comes to the rescue of the allottees. Therefore, in our considered view, even if condition has been imposed in the sale deed, Section 11 of the  Transfer of Property Act will come into play which will be in support of the allottees.

12. (i) Mr.Sankaran, the learned counsel appearing for one of the respondents in W.A.No.783 of 2011 relied on the No Objection Certificate issued to one R.Ganesan and others for demolishing the existing building and to reconstruct new apartments. While according permission for issuance of No Objection, conditions have been imposed which is set out in the annexure therein which is reproduced here under:-

                                        ANNEXURE

CONDITIONS:

1) The planning permission should be obtained from the local body (i.e. CMDA and Corporation) and the construction activities should be taken up after/as per the approval of local body.

2) a) The title of land, its boundary and extent has to be confirmed by the local body.

b) in case of any dispute between the original allottees and subsequent purchasers the TNHB will not take any responsibility.

3) The CMDA is the authority for permitting the eligible construction activities as per the D.C.R and the Tamil Nadu Housing Board will not object such activities, if they are accommodated within the boundary of undivided share of land pertaining to this block as shown in the enclosed orientation sketch, to be presented to CMDA.

4) If any changed are required in the proposed building design, it is subject to the approval of CMDA.

5) The proposed building, car park, open spaces and other service amenities should be accommodated (as per the DCR of CMDA) within the boundary of undivided share of land pertaining to this block, without affecting the adjacent blocks.

6) If any dispute arises between the petitioners and Association and other allottees, in respect of construction of new building, the Tamil Nadu Housing Board will not take any responsibility.

However, the matter was directed to be placed before the Board for approval for issuance of No Objection Certificate to them.

(ii) As rightly contended by the learned counsel appearing for the allottees, the above permission has been granted by the Chairman stipulating certain conditions wherein, the Tamil Nadu Housing Board has made it very clear that if any dispute arose between the original allottees and the subsequent purchasers regarding the putting up of new construction, the Tamil Nadu Housing Board will not take any responsibility.  Further, it has made clear therein that the CMDA is the authority for permitting the eligible construction activities as per the D.C.R and the Tamil Nadu Housing Board will not object such activities as long as the same is within the boundary of undivided share of land pertaining to the said block, wherein the demolition and construction are sought to be made. Further, the conditions stipulates that if any changes are required in the proposed building design, it is subject to the approval of the CMDA. The said proposal sent by the Chairman,  Tamil Nadu Housing Board for approval of the demolition of the existing flats and construction of new flats will amply establish that the  Tamil Nadu Housing Board do not want  to enter into the dispute pertaining to demolition of the existing structure and putting up new structure. It also made it very clear that as long as the construction are made within the boundary of the undivided share of land pertaining to the block where the demolition and reconstruction are made, the  Tamil Nadu Housing Board will have no say over the matter. It has further made it very clear that the CMDA is the authority for permitting the eligible construction activities as per the rules made by it.

(iii) By pointing out the conditions while according permission for issuance of "No Objection Certificate", the learned counsel appearing for one of the respondents in W.A.No.783 of 2011 contended that the Tamil Nadu Housing Board will have no say either at the time of demolition of the existing structure or at the time of putting up new one. The Tamil Nadu Housing Board has made it very clear that it will not take any responsibility, if any dispute arises while putting up construction of a new building. It also made it very clear that if any changes are required in the proposed building design, it is subject to the approval of the CMDA. This strengthens the case of the respondents that "No Objection Certificate" need not be obtained from the  Tamil Nadu Housing Board, either for demolition of the existing structure or for putting up new construction.

13. (i) Mr.Mohan, the learned counsel appearing for some of the respondents in W.A.No.784 of 2011, relied on the covenants in the sale deed executed by the Tamil Nadu Housing Board in favour of  one K.S.Kalyanasundaram, one of the respondent in the said appeal which is extracted here under:

        "11. The Vendor hereby further covenants with the Purchaser as follows:-

        (i) ...

        (ii) ...

        (iii) …

(iv) That the Vendor, as already agreed between the parties, agrees to vest the land on which the Building consisting of the flat described in the First Schedule hereunder is contained to a Housing Co-operative Society as and when such a Society is formed by the owners of all the flats and it is hereby agreed to by both the parties that such Co-operative Society shall held the land jointly on behalf of all its members to protect their rights and privileges."

(ii) By relying on the said clause in the sale deed, the learned counsel contended that as soon as the  Tamil Nadu Housing Board execute the sale deed in favour of the allottees, a housing co-operative society shall be formed by the allottees and the land on which the building consisting of the flats is raised shall vest with the society and the society shall held the land jointly on behalf of all its members to protect their rights and privileges. Therefore, according to him, the land do not vest with the  Tamil Nadu Housing Board after the same is sold in favour of the allottees.

(iii) The learned counsel further contended that after the sale of the flats and the land appurtenant there to, the Rules framed under The Tamil Nadu Apartment Ownership Rules,  1997 alone will prevail. Much emphasis was placed on Rule 17 of the said rules which is extracted here under:-

"17. That the undivided interest in the general and / or restricted common areas and facilities shall not be separated from the apartment to which it appertains and shall be deemed conveyed or encumbered with the apartment even though such interest is not expressly mentioned or described in the conveyance or other instrument."

(iv) The above extracted Rule would amply establish that the undivided interest over the common areas cannot be separated from the apartment and shall be deemed to have been conveyed along with the apartment, even assuming that such interest is not expressly mentioned or described in the conveyance. The said Rule further strengthens the case of the flat owners and the contention raised on behalf of the  Tamil Nadu Housing Board that the common areas vest with the  Tamil Nadu Housing Board and hence, it shall be approached for getting "No Objection Certificate" in the event demolition of the existing flats and construction of new flats therein, cannot hold good.

(v) The learned counsel also relied on the judgment reported in (2005) 3 Supreme Court Cases 91, R & M Trust vs. Koramangala Residents Vigilance Group and Others. That is the case where one Koramangala Residents Vigilance Group has filed a Public Interest petition challenging the building license issued for construction of multi-storeyed/multi-apartments at Koramangala Layout, Bangalore on the ground that it is illegal, void and prayed for quashing of the license and direction to demolish the building already constructed on the site.

That is the case where the learned Single Judge of the Karnataka High Court held that the license granted to the appellant who was the fourth respondent in the writ petition are contrary to law, but however felt that the writ petition suffered from latches and delay and therefore, dismissed the writ petition. After the same, writ appeal has been filed by the Association. The Division Bench wherein the writ appeal was filed, concluded that the view taken by the learned Single Judge that the license granted in favour of the respondents 4 and 5 in the writ petition is contrary to law and liable to be quashed was right but however disagreed with the finding of the learned Single Judge that the writ petition suffered from delay and latches. Thus, the appeal was allowed. Aggrieved over the said order, Special Leave Petition was filed before the Hon'ble Apex Court and the leave was granted. The Hon'ble Apex Court in such circumstances held that looking to the scheme of the Act, the Rules and the terms and conditions of the lease-cum-sale agreement, it transpires that once an allotment is made to the lessee and he makes all payments and fulfils all conditions of the agreement, then at the end of the stipulated period of ten years outright agreement of sale shall be executed by the lessor/vendor with the lessee/purchaser and the lessee will have absolute right. The lease agreement also says that during the currency of the lease, the lessee/purchaser shall abide by the terms and conditions of the lease. The only condition that he will construct only one dwelling house is contained in condition 4 of the lease-cum-sale agreement and so long as the full rights are not transferred to the lessee-purchaser, this condition would survive and, after the sale is made, this condition will no longer survive and conditions contained in absolute sale deed will govern. If the lessee or his successor wants to raise a construction, then the provisions of the Karnataka Municipal Corporation Act will come into play and he has to obtain prior sanction for construction of the building. As soon as the permission is granted by the Corporation, then he is to abide by those conditions along with the condition laid down in the absolute sale deed.

(vi) Paragraph 19 and 21 of the judgment referred above are usefully extracted here under:

"19. The conditions which have been set out in the lease agreement and which is relevant for our purpose is condition 4. Condition 4 has already been reproduced above which provides that lessee / purchaser shall not subdivide the property or construct more than one dwelling house. Condition 12 says that if the lessee / purchaser has performed all the conditions mentioned herein and committed no breach thereof the lessor / vendor shall, at the end of ten years referred to in clause 1, sell the property to the lessee / purchaser and all attendant expenses in connection with such sale such as stamp duty, registration charges, etc., shall be borne by the lessee / purchaser. Condition 13 says that on complying with the terms and conditions of this agreement in the manner stated above but not otherwise the lessor / vendor shall be obliged to execute the sale deed in favour of the lessee / purchaser. Therefore, looking to the scheme of the Act, the Rules and the terms and conditions of the lease-cum-sale agreement, it transpires that once an allotment is made to the lessee and he makes all payments then after the payment the lessor / vendor shall at the end of ten years sell the property to the lessee / purchaser and the lessee / purchaser will get the sale deed registered. Therefore, if all the conditions of the lease agreement are fulfilled, at the end of the stipulated period of ten years, then outright agreement of sale shall be executed by the lessor / vendor with the lessee / purchaser and the lessee will have absolute right. The lease agreement also says that during the currency of the lease, the lessee / purchaser shall abide by the terms and conditions of the lease. As per condition 17(7) reproduced above, the lessee / purchaser shall not alienate the property during the period of tenancy. Once all the payments have been fulfilled by the lessee, then the land is registered in favour of the lessee by the lessor and the lessee becomes absolute owner of the land. So long as the building is not constructed under condition 4 of the agreement, the lessee is neither entitled to alienate the property under condition 17(7), nor shall he subdivide the property or construct more than one dwelling house on it. These restrictions are there so long as the complete sale agreement is not executed under condition 12 of the lease-cum-sale agreement. As soon as the lease agreement is executed confirming full title to the lessee, then the conditions of the  lease-cum-sale agreement come to an end and the lessee acquires full right to deal with the said property in accordance with the Act and the Rules bearing on the subject. After acquiring this full right the lessee has right to alienate the property or whenever either the lessee or his successor wants to construct a building thereon he can do so in accordance with the provisions of law. Condition 4 of the lease agreement was only to survive so  long as the lessee continued to be a lessee as his rights of lessee are restricted i.e. he cannot alienate the property nor can he subdivide the property and he has to construct one dwelling house. The moment the  lease-cum-sale agreement is executed after following the conditions of the lease as laid down, then there is no further hurdle or condition like not to construct multi-storeyed building or multi-dwelling house. The only condition that he will construct only one dwelling house is contained in condition 4 of the  lease-cum-sale agreement and so long as the full rights are not transferred to the lessee-purchaser, this condition would survive and, after the sale is made, this condition will no longer survive and conditions contained in absolute sale deed will govern. If the lessee or his successor wants to raise a construction, then the provisions of the Karnataka Municipal Corporation Act will come into play and he has to obtain prior sanction for construction of the building. As soon as the permission is granted by the Corporation, then he is to abide by those conditions along with the condition laid down in the absolute sale deed.

20. …

21. Learned counsel for the respondents has tried to raise certain objections that in the final agreement the expression "apartment" has been used which shows that there cannot be more than one dwelling house. We regret to say that this interpretation does not bear out in the face of the language used in clause 2 of the final agreement which says that the building to be constructed shall be used wholly for human habitation and shall not include any apartments to the building whether attached thereto or not for shop or warehouse or manufacturing purposes but that does not make out a case for prohibition of raising of the multi-storeyed building. Once the Municipal Corporation has permitted to raise construction more than three floors then this condition for construction will hold good and they are not contrary to any of the provisions of the Act. Section 505 of the Karnataka Municipal Corporation Act, 1976 only says that the Corporation shall exercise power in conformity with the provisions of the Karnataka Town and Country planning Act, 1961. Therefore, the Corporation at the time of granting permission has to keep in mind the provisions of the  Karnataka Town and Country planning Act, 1961. But we have not been able to find any provisions of the  Karnataka Municipal Corporation Act or the Karnataka Town and Country planning Act, 1961 where any ceiling has been applied on the construction of the multi-storeyed building. Therefore, we do not find that the Municipal Corporation has committed any illegality in granting permission to the appellant for raising construction up to third floor."

(vii) The Hon'ble Apex Court thus held once an allotment is made to the lessee and he makes all payment and fulfils all conditions of the agreement, the lessee/purchaser will have absolute right and the terms and conditions of the lease will exist till the full rights are not transferred to the lessee/purchaser and once the sale is made, the conditions therein will no longer survive. The only requirement as per the said judgment of the Hon'ble Apex Court is that the provisions of the Karnataka Municipal Corporation Act will come into play and sanction has to be obtained from the Corporation for construction of the building. The said judgment in our considered view is squarely applicable to the case on hand.

14. (i) Mr.V.Raghavachari, the learned counsel who supports the case of the  Tamil Nadu Housing Board submitted that the scheme has been framed by the Government, funded by the Government and approved by the Government. Therefore, according to him, the conditions imposed in the sale deed shall be binding on all and if any demolition of the existing structure are sought to be made and new construction are sought to be put up, the  Tamil Nadu Housing Board will have a say over the same. He relied on Sections 37, 39 to 47, 49, 54 and 56 of the Tamil Nadu State Housing Board Act, 1961. In our considered view, none of the provisions of the said Act envisages on the rights of the allottees or the subsequent purchasers from the allottees to put up new apartment after demolition of all apartments and on the common area.

(ii) That apart, We have already held that the Tamil Nadu Apartment Ownership Act, 1994 will alone prevail over the  Tamil Nadu State Housing Board Act, 1961, in view of Section 25 of the  Tamil Nadu Apartment Ownership Act, 1994 which was extracted above. Hence, the argument made by  Mr.V.Raghavachari will have to be rejected.

15. Thus the reading of the various provisions of The Tamil Nadu Apartment Ownership Act, 1994, the covenants in the sale deed executed by the Tamil Nadu Housing Board in favour of the allottees will amply establish that the Tamil Nadu Housing Board having not retained any right over the land appurtenant to the flats or common area, the question of obtaining No Objection Certificate from the  Tamil Nadu Housing Board will not arise. In such circumstances, the allottees of the flats, after execution of the sale deed in their favour have got every right to demolish the existing building and construct new apartment blocks. Even if additional dwelling units are constructed and sold to the third parties, the Tamil Nadu Housing Board cannot lay any claim over such additional construction. As long as the construction are within the parameters of the rules of the CMDA, in our considered view, the  Tamil Nadu Housing Board have got not say, even if additional dwelling units are constructed after demolishing the existing flats. As stated already, the  Tamil Nadu Housing Board looses its rights as soon as it executes sale deed in respect of the flats, appurtenant land and even in the areas earmarked for the common enjoyment of the flat owners. The common area has to be enjoyed in common by the flat owners. If a consensus is arrived at by all the flat owners, they can utilize the common land also to put up construction without No Objection Certificate from the  Tamil Nadu Housing Board. As stated already, the construction shall comply with the requirements of the rules and regulations of the CMDA. Even assuming that there are restrictive covenants in the sale deed executed by the  Tamil Nadu Housing Board in favour of the allottees, the violation of the same cannot be questioned by the  Tamil Nadu Housing Board, since as stated already, as soon as the  Tamil Nadu Housing Board executes sale deed in favour of the allottees, it looses all its rights on the property and it cannot any more question the action of the allottees by saying that the allottees have violated the conditions enumerated in the sale deed.

16. Though, the land have been acquired from the public by invoking the provisions of the Land Acquisition Act, on the ground that the lands are required for public purpose, the public purpose ends with the construction of the Housing Board flats and handing over the same to the allottees, after execution of the sale deed.

17. The various provisions of  The Tamil Nadu Apartment Ownership Act, 1994 which was extracted above deals with the common areas and who shall have the right to maintain common areas and utilisation of the same. At the risk of repetition, it has to be pointed out that Section 13 of the Act provides for framing of bye-laws of the Society or Association by the flat owners not only for maintenance and repairs of existing  flats but also for "replacement of common areas". The Society or Association so formed shall take action relating to "common areas and facilities". Right of the Society or Association to maintain, repair and replacement of common areas is provided under Section 18 of the Act. Thus the Act takes care of the common areas and facilities. Therefore, the Tamil Nadu Housing Board may not have any right over the common areas.

18. Thus, after elaborately considering the facts and circumstances of the case, relevant provisions and the case laws, we answer the reference in the following manner.

Reference i:

Whether the allottees of flats in a Scheme evolved and implemented by the Housing Board, after execution of sale deeds in their favour by the Housing Board would be entitled to demolish the building and construct a new apartment complex with additional dwelling units and sell such additional dwelling units to third parties without obtaining no objection certificate from the Housing Board.

Answer:

In view of the discussions made above, We hold that the allottees of the flats in a scheme implemented by the Tamil Nadu Housing Board, after execution of the sale deed in their favour by the Tamil Nadu Housing Board are entitled to demolish the existing the superstructure and put up new apartment blocks with additional dwelling units and sell the same to the third parties without obtaining No Objection Certificate from the Tamil Nadu Housing Board, as long as the construction are within the parameters of the rules and regulations of the CMDA.

Reference ii:

Whether the restrictive covenants contained in the deed of sale executed by the Housing Board in favour of the allottee would bind the allottee or his successor in interest and by virtue of which whether the allottee shall be required to keep the common areas as such without claiming any exclusive right over the same.

Answer:

The restrictive covenants in the sale deed executed by the Tamil Nadu Housing Board in favour of the allottees will not prevent the allottees or the subsequent purchasers from the allottees, in utilising the common areas, so long as the Society or Association which have been formed by the allottees gives consent for the same and no doubt, that the construction are within the parameters of the rules and regulations of the CMDA

Reference iii:

Whether the Housing Board is justified in contending that such restrictive covenants are valid and enforceable in the light of the fact that the land on which the apartment complex had been constructed, had been acquired from the public by invoking the provisions of the Land Acquisition Act on the ground that the lands are required for a public purpose.

Answer:

Though, the land have been acquired from the public by invoking the provisions of the Land Acquisition Act, on the ground that the lands are required for public purpose, the public purpose ends with the construction of the Housing Board flats and handing over the same to the allottees after execution of the sale deed. When once the scheme is implemented, the Housing Board looses its rights and the scheme does not come into play.

Reference iv:

Whether if all the allottees in an apartment complex join together and decide to pull down the existing structure and raise new construction by increasing the number of dwelling units/flats by putting to use the land area which was initially earmarked as common area and required to be retained as such in the covenants contained in the deed of sale.

Answer:

Some areas have been earmarked for the common enjoyment of the flat owners. The common areas have to be enjoyed in common by the flat owners and if a consensus is arrived at by all the flat owners, they can utilize the common land also to put up construction without  No Objection Certificate from the Tamil Nadu Housing Board. The various provisions extracted from the Tamil Nadu Apartment Ownership Act, 1994 will amply establish that if all the allottees who have formed the society or association decides to pull up the existing structure and raise a new construction with additional dwelling units even in the common areas, they can do so, provided such construction is in consonance with the rules and regulations of the CMDA.

Reference v:

Whether the allottees by joining together decide to demolish the apartment complex and construct a new apartment complex with larger built up area without increasing the number of dwelling units, would still be required to obtain no objection certificate from the Housing Board.

Answer:

The answer for reference no.4 could be the answer for this reference also. If there can be an increase in the number of dwelling units / flats, equally new apartment blocks with larger built up area can also be put up, subject to the approval of all the allottees who have joined together to start a society or an association and if it is not in violative of the  rules and regulations of the CMDA.

Reference vi:

Whether the Housing Board has power to levy charges at the rate of 10% of the market value on the additional floor/eligible FSI and whether such power is traceable to any Act, Rule or Regulation and what is the basis of such levy/demand.

Answer:

As regards this reference, even the learned Advocate General fairly submitted that there is no rules which permit the Tamil Nadu Housing Board to collect 10% of the market value after registration of the sale deed by the Tamil Nadu Housing Board in favour of the allottees. While so, there is no rhyme or reason for the  Tamil Nadu Housing Board to insist for 10% of the market value for issuance of No Objection Certificate. When the  Tamil Nadu Housing Board need not be approached for obtaining No Objection Certificate for demolition of the existing flats and putting up new construction, the collection of charges at the rate of 10% of the market value on the additional floor area / eligible FSI  which is not traceable to any Act or Rules cannot be levied.

19. However, We may add that the allottees or the subsequent purchasers  from the allottees shall not convert the residential blocks into commercial one. Further, there cannot be any demolition of the existing flats and construction of new flats without concurrence or acceptance of  all the allottees or the subsequent purchasers of the said block where there is a proposal to demolish the existing superstructure and put up new construction.

20. With the above directions, the issues referred before us are answered accordingly.         The Writ Appeals filed by the Tamil Nadu Housing Board therefore fails and are dismissed. Consequently, all the connected miscellaneous petitions are closed. However, no order as to costs.

In view of the order passed in W.A.Nos.783 of 2011 and etc., batch, all the condone delay petitions are closed.

pgp