Cosmo Towers Owners' Association v. Chennai Metropolitan Water Supply and Sewerage Board & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 18.6.2009CORAMTHE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMARWRIT PETITION NO.5351 OF 2009M.P.NO.1 OF 2009 Cosmo Towers Owners' Associationrep. by its SecretaryM. Prasada Rao... PetitionerVs.

Chennai Metropolitan Water Supply and Sewerage Board rep. by its Managing Director No.1, Pumping Station Road Chennai – 600 002.

The Senior Accounts Officer CMWSSB, Area VIII Office No.9, Muthukrishnan Street T. Nagar, Chennai – 17.

Mr. R. Vinodh Kumaran Nair4. Dr. Chitra Pandian ... RespondentsWrit Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus forbearing thefirst and second respondents from in any way interfering ordisconnecting the water and sewerage connections to the flat buildingknown as "Cosmo Towers" at premises No.11/11A, New No.22, Dr. ThomasRoad, T.Nagar, Chennai-17 under the pretext of non-payment of arrearsof water and sewerage tax and water charges payable by the third and4th respondents in respect of their respective flats in the said flatbuilding. For Petitioner : Mr. N. Nagu SahFor R1 and R2 : Mr. V. ManoharanFor R3 : Mr. G.RM. PalaniappanFor R4 : Mr. P. AnbarasanO R D E RThe prayer in this writ petition is to issue a Writ of Mandamus forbearing the water and sewerage connections to the flatbuilding known as "Cosmo Towers" at premises No.11/11A, New No.22,Dr. Thomas Road, T.Nagar, Chennai-17 under the pretext of non-paymentof arrears of water and sewerage tax and water charges payable by thethird and 4th respondents in respect of their respective flats. https://hcservices.ecourts.gov.in/hcservices/

2. The case of the petitioner Association is that the membersof the petitioner Association had purchased various flats in theresidential flat building known as "Cosmo Towers" at PremisesNo.11/11A, New No.22, Dr.Thomas Road, T.Nagar, Chennai – 17, promotedby M/s. Nair Fincon Limited, now called as M/s.Cosmo FoundationsLimited, represented by its Director, the third respondent herein. The Association is having 30 members registered under the Tamil NaduSocieties Registration Act, 1975 with Registration No.102 of 2002.According to the petitioner, the third respondent made illegalconstructions and some of the flats are retained by him forcommercial purpose, though the flats were promoted for theconstruction of residential flats. The petitioner Association filed asuit in O.S.No.1576 of 2002 before the XI Assistant City Civil Court, Chennai, against the third respondent and prayed for various reliefsincluding the relief of demolition of the illegal construction andfor permanent injunction restraining the use of any flat forcommercial purpose.

3. According to the petitioner, the said suit was decreed andthe third respondent challenged the said judgment and decree byfiling appeal in A.S.No.141 of 2006, which is now pending on the fileof the V Additional City Civil Court, Chennai. The fourth respondentis the owner of flat No.11/1 and it is averred in the affidavit thatthe said flat is used for commercial purpose i.e. for running aclinic, which is in contravention of the bye laws of the Association. The members of the petitioner Association while purchasing the flatshad paid separate deposits for water and sewerage connections torespondents 1 and 2 through their promoter and each of theirrespective flats have been assessed to water and sewerage tax andwater charges. All the members of the petitioner Association hadfully paid their respective water and sewerage tax and water chargespayable upto 31.3.2009 to the first respondent, as such there is noarrears of any tax and charges.

According to the petitioner, officials of respondents 1 and 2 are threatening the petitionerAssociation that they are going to disconnect the water and sewerageconnections for the entire apartments on the ground that respondents3 and 4 are in arrears of water and sewerage tax and water charges inrespect of their flats. The third and fourth respondents are not themembers of the petitioner Association and they are disqualified frombecoming its members due to their commercial activities carried incontravention of the bye laws of the petitioner Association and ifrespondents 3 and 4 are not paying the tax and charges, respondents 1and 2 cannot disconnect the water supply and sewerage connections tothe entire apartments. On the above said pleadings, the above writpetition is filed for issuing a mandamus forbearing the respondents 1and 2 from in any way interfering and disconnecting the water andsewerage connections to the "Cosmo Towers".

The petitioner Association also filed an additionalaffidavit dated 11.6.2009 by stating that the fourth respondentresides only at premises bearing Door No.16/3, Lakshmi Colony NorthCresent Road, T.Nagar, Chennai-17 and she is not residing in FlatNo.A1 of "Cosmo Towers" and the said flat No.A1 is used for running https://hcservices.ecourts.gov.in/hcservices/ her clinic, which is a commercial activity. It is also stated thatthe third respondent, who had promoted the apartment, is carrying oncommercial activities in the flats retained by him, by runningvarious businesses.

The fourth respondent has filed a counter affidavit bystating that she is residing at No.11/1, "Cosmo Towers", Dr. ThomasRoad, T.Nagar, Chennai- 600 017 and the said flat was purchased on3.11.2003 by a registered Sale Deed bearing Document No.2522/2003 andas such, she is having undivided interest in the common areas andfacilities provided to the apartment in the building as per Section 6of the Tamil Nadu Apartment Ownership Act, 1994. The fourthrespondent is using the said apartment for residential purpose andfor about two hours, she used to consult poor patients from the saidarea and no consulting fee is collected for such medical consultationand the fourth respondent is having a separate clinic with labfacilities at No.9/5, North Road, West CIT Nagar under the name andstyle of Shri Hospital.

It is specifically stated in the counter affidavit thatonly one room in the flat is used for free consultation for two hoursand as such the building is not used for commercial purpose at all. The petitioner Association objected the fourth respondent in givingfree consultation and also disconnected the water supply to thefourth respondent's apartment on 1.12.2003. The fourth respondentlodged a police complaint on 7.12.2003 and after investigation, thepolice officials warned the petitioner Association and advised not tointerfere with the fourth respondent's peaceful possession and theenjoyment of the apartment. According to the fourth respondent, sheis willing to become a member of the petitioner Association and paythe maintenance charges for using the common facilities and thepetitioner Association refused to admit the fourth respondent as amember of the Association, which is contrary to the provisions of the Tamil Nadu Apartment Ownership Act, 1994. The fourth respondent isbeing harassed, since the water supply was disconnected, the fourthrespondent sent a letter to the Metro Water Board to restore thesupply to her apartment. The Area Engineer, Metro Water also wrote aletter to the petitioner Association to restore the water supply tothe fourth respondent's flat. However, the disconnected water supplyis not restored till date.

The fourth respondent also stated in the counter affidavitthat she never refused to pay the maintenance charges/water chargesand there is no building violation in so far as the fourthrespondent's apartment is concerned and the suit filed by thepetitioner Association, the fourth respondent is not a party and thefourth respondent having not doing any commercial activity, she hasnot violated any of the bye laws. It is further stated in thecounter affidavit that the fourth respondent has paid the arrears ofthe water supply and sewerage fee and charges and there is no defaulton her part, but till date, the water supply connection is notrestored by the petitioner Association to the fourth respondent'sresidential flat, whereby right to get the water is denied by thepetitioner Association. https://hcservices.ecourts.gov.in/hcservices/

It is also stated in the counter affidavit that the Chennai Metropolitan Water Supply and Sewerage Act, 1978 empowers theauthority viz., respondents 1 and 2 to disconnect the water supply tothe building, if the arrears of one of the flat owner in an apartmentis not paid, the petitioner Association can pay the arrears of watercharges and recover the same from the flat owner, who had failed topay the same. Stating the above said facts, the fourth respondentprayed for dismissal of the above writ petition.

The learned counsel for the petitioner Associationsubmitted that respondents 3 and 4 are using their flats forcommercial purposes and therefore, they are not admitted as membersof the petitioner Association and the bye law provides the denial ofmembership, because they are carrying on commercial activities intheir residential premises. The learned counsel for the petitionerAssociation also submitted that respondents 3 and 4 cannot compel thepetitioner Association to admit them as members and by not paying thewater and sewerage tax and charges by respondents 3 and 4,respondents 1 and 2 are attempting to disconnect the water supplyconnection to the entire apartment and the same is illegal andtherefore, the writ petition is filed with the above said prayerforbearing the respondents 1 and 2 from interfering/disconnecting thewater supply to the entire "Cosmo Towers".

The learned counsel for respondents 1 and 2 submittedthat if any one of the flat owner committed default, the sewerage andwater supply connection to a flat can be disconnected and this Courtalso in W.P.No.11461 of 2003, dated 14.7.2005, upheld the power ofrespondents 1 and 2 to disconnect the sewerage connections, if anyone of the flat owner committed default.

The learned counsel for the fourth respondent submittedthat the fourth respondent being the owner of the residential flatviz., Flat No.11/1, "Cosmo Towers" purchased through a registeredSale Deed in document No.2522/2003, dated 3.11.2003 is entitled toenjoy the facilities of common area provided to the apartment and thepetitioner Association is bound to admit the fourth respondent as amember of the Association and denial of admission as a member of thepetitioner Association is in violation of the Tamil Nadu ApartmentOwnership Act, 1994, Rules and the By-Laws. The disconnection ofwater supply is deprivation of her fundamental right guaranteedunder Article 21 of the Constitution of India, which guarantees rightto livelihood, which includes getting water for her livelihood.

The learned counsel further submitted that the buildingis used only as a residential premises and no commercial activity iscarried on except doing consultation as a Doctor for two hourswithout collecting any charges from the poor people and the fourthrespondent is having a clinic at Door No.9/5, North Road, West CITNagar and therefore, the fourth respondent need not conduct theclinic in the residential flat and the gas connection given to thefourth respondent on 9.12.2003 is produced as a proof of residence. https://hcservices.ecourts.gov.in/hcservices/

From the above stated pleadings, the points arise forconsideration in this case are;i) Whether the petitioner Association can deny admission ofrespondent 3 and 4 as members of the petitioner Association eventhough they are having ownership of apartments in the very same"Cosmo Towers"?ii) Whether the petitioner Association is vested with a rightto disconnect the water supply to the fourth respondent's apartment?iii) Whether the writ petition is maintainable againstrespondents 1 and 2 on non payment of water and sewerage tax andcharges by any of the flat owner in "Cosmo Towers"?Issue No.1:- Whether the petitioner Association can deny admission ofrespondent 3 and 4 as members of the petitioner Association eventhough they are having ownership of apartments in the very same"Cosmo Towers"?14. It is the case of the petitioner Association as well asthe respondents 3 and 4 that respondents 3 and 4 are having ownershipflats in "Cosmo Towers" situated in premises No. 11/1, "CosmoTowers", Dr.Thomas Road, T.Nagar, Chennai- 600 017. The respondents 3and 4, being owners of their respective flats, have got a right overthe common area since they are having undivided share in theapartment premises.

The contention of the petitioner Association is that thethird respondent is using his flat for commercial purpose and thefourth respondent is using her flat as a clinic and doing commercialactivity and therefore, they are not admitted as members of thepetitioner Association and consequently, the petitioner Associationhas disconnected the water supply given to the flats owned byrespondents 3 and 4. The fourth respondent has stated her willingnessto be admitted as a member of the petitioner Association andexpressed her willingness to pay the maintenance charges and alsopaid the metro water and sewerage tax and charges. But, no suchwillingness is expressed by the third respondent before this Court. The fourth respondent also stated that she is not running clinic inthe flat as she is having a separate clinic at No.9/5, North Road, West CIT Nagar in the name and style of "Shri Hospital" and in the"Cosmo Towers" flat, she used to consult the poor patients for abouttwo hours in a single room free of cost and the same cannot betreated as a commercial activity and the fourth respondent isresiding in the said flat.

The rights and liabilities of flat owners in an apartmentis governed under the Tamil Nadu Apartment Ownership Act, 1994 (inshort " the Act") which came into force on and from 7.4.1997. Thesaid Act covers all the apartments constructed, whether before orafter the commencement of the Act which contains five or moreapartments or three or more floors and constructed in accordance withthe planning permission duly sanctioned by the appropriate authority. https://hcservices.ecourts.gov.in/hcservices/

Apartment owner is defined under Section 3 (c) of the Act, which reads as follows:-" "apartment owner" means the person or persons owning anapartment and an undivided interest in the common areas andfacilities or the limited common areas and facilities in thepercentage specified in the Deed of Apartment and includesan outright purchaser or a hire purchase allottee of suchapartment and undivided interest. "

The Association of the apartment owners is also definedunder Section 3(d) of the Act. "Common area and facilities aredefined under Section 3(h) of the Act, which includes water supply, sewerage and drainage connections and the installations of centralservices such as power, light, gas, hot and cold water, heating, refrigeration, air-conditioning and incinerating [3(h)(5)].

Section 5 of the Act deals with the ownership ofapartments, which states that each apartment owner shall be entitledto the exclusive ownership and possession of his apartment inaccordance with the Deed of Apartment executed and registered inaccordance with the provisions of the Act. 20. The Common areas and facilities are entitled to be usedas a common area by all apartment owners in accordance with thepurpose for which they are intended without hindering or encroachingupon the lawful rights of the other apartment owners. Every apartmentowner shall comply strictly with the bye-laws and with the covenants, conditions and restrictions set forth in the Deed of Apartment inrelation to his apartment. If there is a breach of bye-laws, actionmay be initiated against such apartment owner to recover sums due, for damages or injunctive relief or both maintainable by the societyor the Association of Apartment Owners or, in a proper case by theaggrieved apartment owner.

Chapter IV of the Act deals with the society orassociation of apartment owners, its bye-laws and functions.

Section 12 of the Act mandates the formation of anassociation or society which shall be registered either under the Tamil Nadu Co-operative Societies Act, 1983 or under the Tamil NaduSocieties Registration Act, 1975 with an object to maintain allcommon areas and facilities and to provide such amenities as may benecessary in the common interest of all the apartment owners and todo such other things which are considered incidental or conducive tothe attainment of the objects specified in the bye-laws. As perSection 13, bye-laws shall be framed and filed before the competentauthority and model buy-laws are also mentioned in the annexure tothe Tamil Nadu Apartment Ownership Rules, 1997.

The Members of the Association is also explained in Clause 5 of the Model By-Law, which reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "5. Members of Association.- (1) All persons who havepurchased apartments and executed a deed of apartment, shallautomatically be the members of the Association and will paythe entrance fee of one-rupee. Each apartment owner shallreceive a copy of the by-laws on payment of one rupee. (2) Upon the sale, bequest or transfer of apartment, the purchaser of the apartment or the grantee or legatee orthe transferee shall automatically become the member of the Association and shall be admitted as member on payment ofthe entrance fee of one rupee. From the above narrated provisions, it is evident that thesociety/association has to be formed for the benefit of all theapartment owners and every owner is entitled to become a memberautomatically and entitled to enjoy all common facilities. The metrowater and sewerage connection is given in common to the apartments asper the Chennai Metropolitan Water Supply and Sewerage Act, 1978 andit is a common benefit given to all apartment owners.

The object of enacting the Tamil Nadu Apartment OwnershipAct, Rules and Model By-law for the formation and maintenance ofapartments is to promote harmony among the owners of apartments andshare the common facilities without any hindrance to others. Thepetitioner Association is also created and registered under thestatutory provision and therefore, it is bound to follow all theprovisions of the said Act, Rules and Model By-Laws.

Section 23 of the Act clearly states that the Act is tobe binding on apartment owners, tenants etc., which reads asfollows:-" 23. Act to be binding on apartment owners, tenants, etc.-(1) All apartment owners, tenants of such owners, employeesof apartment owners or tenants, or any other person whomay, in any manner, use the property or any part thereof towhich this Act applies, shall be subject to the provisionof this Act and the bye-laws and the rules made thereunder. (2) All agreements, decisions and determinationslawfully made by the society or the Association of Apartment owners, as the case may be, in accordance withthe provisions of this Act or the bye-laws shall be deemedto be binding on all apartment owners. "

Section 25 of the Act further states that the Act is tooverride other laws, which reads as follows:-25. Act to override other laws.- (1) The provisions of this Act shall have effect notwithstanding anything inconsistenttherewith contained in any other law for the time being inforce or any custom, usage or agreement or decree or orderof a court, tribunal or other authority. https://hcservices.ecourts.gov.in/hcservices/ (2) Save as otherwise provided in sub-section (1),the provisions of this Act, shall be in addition to, and notin derogation of, any other law for the time being in force.

From the above referred sections, particularly Sections23 and 25 of the Act, it is beyond doubt that the Tamil NaduApartment Ownership Act, 1994, is binding on the petitioner and allflat owners. The By-Law framed by the petitioner Association canoperate only subject to the provisions of the Act, Rules and the Model By-Laws.

The contention of the learned counsel for the petitioneris that the by-laws of the petitioner Association gives discretion tothe association to permit or not to permit any apartment owner tobecome a member, cannot be accepted as the same is contrary to the Act, Rules and model by-laws and in view of the fact that only onesociety/association can be formed for an apartment and everyapartment owner automatically becomes a member of that Society/association. Thus, the action of the petitioner Associationin not permitting the respondents 3 and 4 to become members, who arealso apartment owners of "Cosmo Towers" is illegal and it is astatutory violation. Issue No.2 : Whether the petitioner Association is vested with aright to disconnect the water supply to the fourth respondent'sapartment?29. The fourth respondent being the owner of her flat isentitled to get the water supply which is supplied through the commonwater supply connection to the apartment by the metro water. Thepetitioner Association can only demand maintenance charges forsupplying the water within the premises after it is drawn andcollected in a common tank. The action of the petitioner Associationin disconnecting the water supply to the fourth respondent's flat isalso illegal as it is an interference in enjoying the commonfacility. The fourth respondent is willing to pay the maintenancecharges as a member of the petitioner Association. The fourthrespondent also paid the metro water and sewerage tax and charges andtherefore, there is no justification to deny water supply to thefourth respondent by the petitioner Association.

In so far as the third respondent is concerned, he isalso bound to pay the water supply and drainage fee and water supplycharges to the metro water. If the third respondent is not paying thesame, common water supply connection being given as per the ChennaiMetropolitan Water Supply and Sewerage Act, 1978, it is open to thepetitioner to pay the same and demand from the third respondent. Ifthe third respondent is not paying the same, it is open to thepetitioner Association to act in accordance with law, which is alsoprovided under Section 20 of the Act. Section 20 of the Act reads asfollows:-" 20. Common expenses to be charged on property.- All sumsassessed by the society or the Association of Apartment https://hcservices.ecourts.gov.in/hcservices/ owners as the share of the common expenses chargeable toany apartment shall, subject to the prior claim, if any, -(i) of the Government in respect of land revenue orany money recoverable as land revenue, (ii) of any municipality or other local authorityin respect of tax or other assessment, and(iii) of the mortgage, in respect of all sumsunpaid, constitute a charge on such apartment.

On an analysis of the Act and Rules, I am of the firmview that the petitioner is not entitled to disconnect the watersupply given to the fourth respondent or to the third respondent andit can only take steps to recover the amount payable to the metrowater from the third and fourth respondents, if the same is not paidby them. Issue No.3:- Whether the writ petition is maintainable againstrespondents 1 and 2 on non payment of water and sewerage tax andcharges by any of the flat owner in "Cosmo Towers"?32. Section 42 of the Chennai Metropolitan Water Supply and Sewerage Act, 1978 deals with water supply system. Section 49 dealswith power to cut off water supply. Section 49(1)(i) states that ifthe owner or occupier fails to pay within due time any money due tothe Board under this Act, or any regulation or other instruments madethereunder, the water supply can be cut off. The respondents 1 and 2having vested with statutory right to cut off water supply.33. The petitioner Association is not entitled to file thewrit petition praying for mandamus forbearing the respondents 1 and 2from interfering or disconnecting the water and sewerage connectiongiven to "Cosmo Towers". The prayer sought for in the writ petitionis contrary to the above statutory provisions and the same is not atall maintainable. It is made clear that this order shall not beconstrued as approving the violation of any rule by the respondents 3and 4 and if there is any statutory violation/Building Rules, it isopen to the petitioner to agitate its rights in the pending matter aswell as before the appropriate authority or forum. There is no merits in the writ petition and the same isdismissed with the above observation. No costs. Connectedmiscellaneous petition is also dismissed. Sd/- Asst. Registrar / True Copy / Sub. Asst Registrar kb https://hcservices.ecourts.gov.in/hcservices/ To1. The Managing Director, Chennai Metropolitan Water Supply and Sewerage Board No.1, Pumping Station Road, Chennai – 600 002.2. The Senior Accounts Officer, CMWSSB, Area VIII Office, No.9, Muthukrishnan Street, T. Nagar, Chennai – 17.+ 1 cc to M/s.N.Nagu Sah, Advocate, SR.24662+ 1 cc to Mr.G.Rm.Palaniappan, Advocate, SR.24397+ 1 cc to M/s.V.Manoharan, Advocate, SR.24082+ 1 cc to M/s.P.Anbarasan, Advocate, SR.24120W.P.NO.5351 OF 2009 &M.P.No.1 of 2009BVR(CO)EM/26.6