Darlene Carmelita D’ Cruz Vs. Kerala State Housing Board [Kerala High Court, 08-04-2016]

Housing Board – Advocates Offices in Residential Apartments – Whether Commercial Venture – Held, Advocate residing in Apartment and carrying on the Advocates office cannot be termed as a commercial venture – Residence of the professional along with his office in an apartment cannot be termed as a commercial one.


IN THE HIGH COURT OF KERALAAT ERNAKULAM

SHAJI P. CHALY, J.

W.P.(C). No.18844 of 2005

Dated this the 8th day of April, 2016

PETITIONERS

DARLENE CARMELITA D”CRUZ AND ANOTHER

BY ADV. SRI.S.SANTHOSH KUMAR

RESPONDENTS

THE KERALA STATE HOUSING BOARD, REP. BY ITS SECRETARY, SANTHI NAGAR,, THIRUVANANTHAPURAM AND OTHERS

R1 TO 3 BY ADV. SRI.P.C.IYPE, SC, KSHB R 1 & R2 BY ADV. SRI.SERGI JOSEPH THOMAS R7,R11 BY ADV. DR.K.P.KYLASANATHA PILLAY R7,R11 BY ADV. SRI.ARUN.B.VARGHESE R7,R11 BY ADV. SMT.SREEDEVI KYLASANATH R7,R11 BY ADV. SRI.T.P.DEYANANTHAN R7,R11 BY ADV. SRI.JESSEL VINOHAR RODRICKS R5,R6 & R8 BY ADV. SRI.SERGI JOSEPH THOMAS R9 BY ADV. SRI.P.GOPALAKRISHNAN NAIR R1 TO R3 BY ADV. SRI.A.JAYASANKAR, SC KSHB, TVM R1 TO R3 BY ADV. SRI.GEORGE BOBAN, SC, K.S.H.B.

JUDGMENT

This writ petition is filed by the petitioners seeking issuance of a writ of mandamus directing respondents 1 to 3 to take action in order to prevent use of apartments in Chinnakkada Housing Accommodation Scheme, Site II of the Housing Board at Kollam for commercial purposes and to ensure that apartments are used purely for residential purposes and other related relieves.

2. Necessary facts required for the disposal of the writ petition are as follows:

3. Petitioners are owners of flats purchased from the 1 st respondent, in its Housing Accommodation Scheme, Site II at Chinnakkada in Kollam. They are aggrieved by the inaction of the Board in taking action against the use of flats in the housing scheme for purposes not provided under this scheme. The Kerala State Housing Board is a statutory authority created under the

Kerala State Housing Board Act, 1971

hereinafter called the Act, for the execution of housing and improvement schemes in Kerala. In accordance with the powers conferred on the Board under the said statute, it formulated a scheme under Section 42 of the Act, 1971 viz; Chinnakkada Housing Accommodation Scheme, Site – II for the construction of 24 EF-9 type flats. The scheme was sanctioned by the Government as per G.O.(MS) No.38/92/Housing dated 27.7.1992 and notified under Section 55 of the Act, evident from Ext.P1. Shop rooms and commercial buildings with office space mentioned in the notification are situated away from the residential buildings.

4. Board has constructed 4 blocks of multi-storied building. There are 6 apartments in each block. Petitioners purchased flats by executing a sale deed with the 3 rd respondent. First petitioner purchased flat No.EF-9/308 as per registered sale deed No.1147/1/2004 dated 29.3.2004 and 2 nd petitioner purchased flat No.EF-9/207 as per registered sale deed No.651/04 dated 27.2.2004, of S.R.O., Kollam.

5. It is the contention of the petitioners that, they are residing in the said flats along with their families. The flats in the housing scheme are exclusively meant for residential purposes. Sale deeds provide that the flats shall not be used for any purpose other than residential purpose. Likewise clause 19 of the Hire Purchase Agreement in respect of persons who opt for hire purchase also provides that the parties shall not use the building and premises thereto directly or indirectly for any purpose other than the purpose of his own residence.

6. It is contended that Regulation 6(1) of Kerala State Housing Board (Formation of Allottees Associations) Regulations, 2000, hereinafter called Regulations, also provides that all apartments in the housing scheme shall be used purely for residential purposes. In spite of the specific stipulation in the sale deed, hire purchase agreement and in the regulations, many of the allottees of flats have let out their flats for using it for commercial purposes to various persons. It is the specific contention of the petitioners that, there are godowns, offices, sales outlet etc. etc. functioning in the housing complex, that 14 flats are now being used for commercial purposes. The details of the flats used for commercial purposes are as follows:

Flat Allottee Lessee Purpose for which the flat is put to use.
104 S. Thulasidharan M/s.Bright Auto spares  Pvt. Ltd. Godown-cum-office
105 Ike Thomas ANERT Office-cum-godown
106 P.N.Narayana Pillai Speed & Safe Courier Service Office
107 Viswambaran M/s.Rajkumar & Company (Contractors & Engineers) Office
108 M.Pulomaja Devi M/s.Rajkumar & Company (Contractors) Office
201 N.Anirudhan M/s.Girish & Associates (Architects) Office
203 Kunjoojamma Baby Civil Asst. Engineer’s Office, BSNL Office
204 Soosamma Mathew Chits & Financing Co. Office
205 Beena Bhai Ajaykumar & Co.  (Chartered Accountants) Office
206 D.Jalajamani M/s.Pioneer Sales Corpn. (Dealing in surgical Instruments) Sales Outlet cum-godown
207 Deepu M/s.Vortex (Contractors & Engineers) Office
302 Youseff Kunju M/s.Bharath Tours & Travels Office
305 Mathew Kurian Computer Distribution Firm Office & Training Centre
306 K.J.Thomas M/s.Venad Computers Office & Computer Training Centre

7. Therefore, the petitioners contend that the user of the housing premises for commercial purposes is causing much nuisance and inconvenience to the residents of other flats, that as early as in 2000, some of the allottees had issued notice to Housing Board requesting to take action against the allottees, who let out the premises for commercial purposes in violation of covenants in the sale deed as well as Regulations. When the Board did not initiate any action in the matter, one of the allottees filed O.P.No.28612/2000 before this court seeking direction to the 1 st respondent to initiate action against the allottees who used the flats allotted to them for commercial purposes. This Court in CMP No.48246/2000 directed respondents 1 to 3 to see that flats are not used for any purpose other than that is mentioned under the scheme and that clause 19 of the agreement is not violated. The said order is produced as Ext.P4. It is the specific contention of the petitioners that they have purchased the flats in the housing scheme fully believing that it will provide sufficient security and privacy of a housing complex. The inaction in the part of the respondents in not taking any action to prevent letting out of apartments for commercial purposes is a violation of the condition in the sale deed as well as in the Regulation. It is under the aforementioned circumstances, petitioners have approached this Court seeking to ventilate their grievance by issuing appropriate direction to respondents 1 to 3 to remove the commercial activities carried on in the aforesaid Housing Scheme premises.

8. Respondents 1 to 3 filed counter affidavit refuting the contentions and allegations contained in the writ petition. It is admitted by the said respondents that petitioners are owners of the flats under the Housing Scheme. It is also contended by the Board that there is no agreement of sale executed with the petitioners as the flats have been sold to them in auction, that hire purchase agreement for sale of property has been executed only between the allottees and the Board. However the Board admitted that Clause 19 of the Hire Purchase Agreement (Ext.P3) specifies that the allottee shall not use the building and premises directly or indirectly for any purpose other than the purpose of his own residence. It is also contended that the allottee is entitled to get more houses than one but that will not in any manner enables the allottee to violate clause 19 of the aforesaid agreement and that the allottees are not entitled to start or continue any commercial activities in the flats under the Housing Scheme.

9. It is also contended that the Regulation (Ext.R1(b)) has been framed by the Board for the purpose of maintenance of common amenities and matters incidental thereto in a housing scheme with Clause 20 as a specific provision which reads that “the Allottees Association shall be converted into Owner’s Association after the issue of sale deed to all the allottees.”. Thereupon it is contended that petitioners have not accepted the K.S.H.B Regulation 2000 and no Allottees Association has been formed on the basis of Regulation 2000 and therefore, the provisions in the K.S.H.B Regulation 2000 does not apply to the petitioners or the residents in the scheme. That apart it is contended that the persons included in the list, have denied the use of their flats for non-residential purposes. That on inspection it is found that Flat Nos.201, 108, 205 and detenue 307 are occupied by residential and professional purpose. Flat No.107 is occupied by 4 individuals who use the flat for their residential purpose. Flat Nos.203, 105 and 306 are occupied and used as office by BSNL, ANERT and MPEDA respectively. It is the contention of the respondents that the flats are used as offices without causing any disturbance to the residents in the scheme area. That apart it is contended that the Board has not made any irregular allotments. It is also contended that pursuant to the interim direction issued by this court in O.P.No.28612/2000, the owners of the flats have been informed that the flat should not be used for non-residential purpose, that the Board has carried out the advertisement of the housing scheme by showing the specific nature and purpose of the scheme and therefore, the Board has not committed anything in violation of the provisions of the Act and the attendant regulations. However the Board in its counter has admitted that the flats have been sold to the petitioners and others incorporating the condition that the apartments shall not be used for any purpose other than residential purpose and the said condition has been emphasized in the sale deed specifically. It is also the contention of the Board that the petitioners have not brought to the notice of the Board any illegal occupancy of tenants or owners carrying on commercial activities.

10. Apart from all these contentions, Board has undertaken in its counter that it will take action against the allottees who have violated the above conditions on the basis of the judgment in this petition. The persons who were alleged to have let out the flats for commercial activities or carrying on commercial activities are impleaded as respondents 5 to 13 and the K.S.H.B. Allottees Association is impleaded as additional 4 th respondent. Even though notice was served on all the additional respondents, only the 11th respondent has filed a counter. The 11th respondent has contended that due to her poor health conditions she is forced to live in her family house at Chathannoor. She has rented out her apartment No.EF-9 to the Managing Director, BSNL, evident from Ext.RII(a). It is also contended that the lease is for a period of 5 years from 01.08.2003 and the same will expire in 2008. Anyhow the learned counsel appearing for the 11th respondent has submitted that after the lease period is over in the year 2008, 11th respondent has not let out the flat to anyone else. Learned counsel appearing for respondents 5, 8 and 12 denied the allegations and statements contained in the petition concerning them and it is submitted that the 5 th respondent has sold the apartment and the 8 th respondent is using his apartment as staff quarters. That apart it is also contended that the 12 th respondent is a lawyer by profession and he is using the apartment as residence-cum-office. Thrust of the contention of the said respondents is that after the residential apartments are sold to the respective owners, the Housing Board has no manner of control over them and they are at liberty to use the same for any purpose irrespective of the prohibition contained in the sale deed after the sale of the apartment against its user and the said clause is a void one. Therefore, counsel contended that the petitioners have no manner of locus standi to approach this court seeking the said relieves. It is also contended that the prayers sought for in the Writ Petition are not sustainable, in a proceeding under Article 226 of the Constitution of India.

11. Heard learned counsel for the petitioners, learned Standing Counsel for respondents 1 to 3 and learned counsel appearing for other party respondents as specified above.

12. Primary question remains to be considered is whether the petitioners are entitled to seek any relieves as sought for in the writ petition and whether respondents 1 to 3 are still retaining any power after the sale of the apartments to the owners in order to control the activities carried on in the said apartments. Reference to certain provisions of the Kerala State Housing Board Act, 1971 may help this court to arrive at a right conclusion. The Act is introduced as follows: