Is gated development hindering town planning? What is ‘close proximity’ in the case of a liquor shop that comes up in your neighbourhood? Can a clinic be permitted in a residential apartment? Will the loss of original deed diminish the property’s value? Can the Electricity Board erect poles in any land without the consent of the owner? When can a private passage be converted into a public street? Do flat owners have equal right to common area? What are to be considered when buying property in spouse’s name?
These are some of the questions that find answers in a new book by C. H. Gopinatha Rao, ‘Case Laws on Flats, Registration and Taxation’ (www.sitaraman.com). The purchase or sale of an immovable property involves many procedures in the areas of legal, technical and taxation, requiring therefore the services of various professionals to complete the transaction in a hassle-free manner, the author notes. To interact with the professionals in a meaningful way, it is desirable to have some background knowledge of the various property-related procedures, he advises.
The value of the book is in the concise discussion of many topics of interest to property owners and users, with helpful citation of decided cases. Take, for instance, the Cosmo Towers verdict of June 2009, which was about the right of flat-owners’ association to disconnect the water supply to any flat in the same complex.
The case involved a flat-owners’ association in T. Nagar having 30 members registered under the Tamil Nadu Societies Registration Act. Two of the flats were being used for commercial purposes in contravention of the approved plan, and the owners of these flats were not admitted as members of the Association and water supply given to the two flats was disconnected.
“As one of the flat-owners did not pay the water and sewerage tax, the CMWSSB (Chennai Metropolitan Water Supply and Sewerage Board) threatened to disconnect the services to the complex. A writ petition was filed by the Association for forbearing the CMWSSB from disconnecting the water and sewerage connections to the complex,” reads the narrative.
The counsel for non-member flat-owner submitted that the owner purchased the flat through a registered sale deed and is entitled to enjoy the facilities of common area provided to the apartment. The counsel argued that the denial of admission to the flat-owner in the Association was a violation of the Tamil Nadu Apartment Ownership Act, 1994, Rules and the bylaws. And that ‘the disconnection of water supply was a deprivation of fundamental right guaranteed under Article 21 of the Constitution of India,’ which states that no person shall be deprived of his life or personal liberty except according to procedure established by law.
After hearing the rival submissions, the Court said that the non-member flat-owner was entitled to get the water supply, which is obtained through the common connection to the apartment by Metro Water. “The petitioner Association can only demand maintenance charges for supplying the water within the premises after it is drawn and collected in a common tank. The action of the petitioner Association in disconnecting the water supply to the non-member flat is also illegal as it is an interference in enjoying the common facility.”
Moving from water to a different liquid, an instructive decision is of the Allahabad High Court in State of Uttar Pradesh vs Manoj Kumar Dwivedi and others (2008). It was about a public interest petition with the grievance that liquor shops had been opened in purely residential areas in breach of the provisions of the U. P. Excise Rules.
One of the rules stipulated that no shop or sub-shop for vending of country liquor, foreign liquor and bhang shall be opened in the close proximity to a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazaar or a residential colony. Interpreting ‘close proximity,’ the Court was of the view that 100 m (or 300 ft approximately) would be a just measure.
Useful reference material, to gain a grounding in property issues.