Metrowater, sewerage connections are common benefit that all apartment owners are entitled to, say judges

Can a flat owners association disconnect the water supply to an apartment in a complex?

This is a commonly asked question.

The matter came up before the Madras High Court in the case of Cosmo Towers Owners' Association Vs Chennai Metropolitan Water Supply and Sewerage Board and others (2009). The court ruled on June 18, 2009 in the case pertaining to a flat owners association at T Nagar with 30 members, registered under the Tamil Nadu Societies Registration Act, in which two of the flats were being used for commercial purposes in contravention of the approved plan.

The owners of the two flats were not admitted as members of the association and water supply to them was disconnected.

As one of flat owners had not paid the water and sewerage tax, the CMWSSB threatened to disconnect services to the complex.

A writ petition was filed by the Association to prevent the CMWSSB from disconnecting the connections. Counsel for CMWSSB submitted that if any one of the flat owners had defaulted, the sewerage and water supply connection to the complex could be disconnected.

The High Court in a judgment dated July 14, 2005, had upheld the power of the Board to disconnect sewerage connections, if any flat owner committed default.

Counsel for the non-member flat owner submitted that the owner purchased the flat through a registered sale deed and was entitled to enjoy the facilities of common areas provided to the apartment. Also, that the petitioner association was bound to admit the owner as a member of the association and denial of admission was in violation of the Tamil Nadu Apartment Ownership Act, 1994, Rules and the By-Laws.

The disconnection of water supply was a deprivation of the fundamental right to livelihood guaranteed under Article 21 of the Constitution.

The Court, after hearing the rival arguments, observed that the society/association was formed for the benefit of all apartment owners and each one was entitled to enjoy all common facilities.

The Metrowater and sewerage connection was given in common to the apartments as per the Chennai Metropolitan Water Supply and Sewerage Act, 1978 and therefore a common benefit.

The petitioner association was also created and registered under the statutory provision and therefore, it was bound to follow all the provisions of the said Act, Rules and Model By-Laws.

The action of the petitioner association in disconnecting the water supply to the non-member flat was illegal as it was an interference in enjoying the common facility. The owner was willing to pay the maintenance charges as a member of the petitioner Association.

If any flat owner was not paying the tax (common water supply connection being given as per the Chennai Metropolitan Water Supply and Sewerage Act, 1978), it was open to the association to pay the same and demand the same from the defaulting member in accordance with law, provided under Section 20 of the Act.

Section 20 of the TN Ownership Flat Act reads as follows:

Common expenses to be charged on property.-

All sums assessed by the society or the Association of Apartment owners as the share of the common expenses chargeable to any apartment shall, subject to the prior claim, if any, -

(i) of the Government in respect of land revenue or any money recoverable as land revenue,

(ii) of any municipality or other local authority in respect of tax or other assessment, and

(iii) of the mortgage, in respect of all sums unpaid, constitute a charge on such apartment.

The Court held that the petitioner Association was not entitled to file the writ petition praying for mandamus forbearing the CMWSSB from interfering or disconnecting the water and sewerage connection given to complex.

The prayer sought in the writ petition was contrary to the above statutory provisions and was not maintainable.

It made clear that this order shall not be construed as approving the violation of any rule by the two non-member flat owners and if there was any statutory violation/Building Rules, it wasopen to the petitioner to take up the matter.