Category Archives: Blog

6 Feb

Land Shown As Common Area Belongs To Flat Owners, Builder Cannot Sell It: Madras High Court

Land Shown As Common Area Belongs To Flat Owners, Builder Cannot Sell It: Madras High Court

The Madras HC on 20.01.2023 has observed that when a land is shown as a common area and is developed as a common amenity, it belongs to the flat owners of the building. This was seen in the Case Title: Abbotsbury Owners’ Association v. The Member Secretary W.P.No.5765 of 2020, the matter was presided over by the Coram of The Honourable Mr. Justice R.Subramanian and The Honourable Mr.Justice K.Kumaresh Babu.

FACTS OF THE CASE

Once the land is shown as a common area & common amenity is developed, the land will belong to the owners of such common amenity. If there is a error in the calculation of the (undivided share) UDS, it has got to be corrected by the builder. The builder cannot take upper hand advantage of the error & claim that the purchasers must be liable to pay for the unsold portion of the UDS.

Justice R Subramanian & Justice K Kumaresh Babu therefore disposed of a petition by the flat owners’ resident association by directing the Chennai Metropolitan Development Authority (MDA) to transfer the vacant non-FSI building to the flat owners.

The Chennai Metropolitan Development Authority will forthwith handover the vacant Non-FSI building to the flat owners’ association. The execution of the rectification deeds shall be finished within a period of 3 months from today. (20.01.2023)

The flat owners had pacified that the quarrelled area was shown as a common amenity as a portion of non-FSI construction. Thus, it would belong to the flat owners. The builders had unjustly tried to convey this area to third parties.

The builders nevertheless pacified that since the ownership in the land was not carried in full to the purchasers of the apartments, the flat owners could not claim the ownership of the non-FSI structure.

The court however did not accept this contention. It held that the non- FSI was not salable. Therefore any portage to the third parties was in contravention of planning permission.

The portage of undivided share in the land accompanying Non- FSI block to the respondent no.2 by the respondent no. 3 itself is really irregular & against the sanctioned arrangement permission. The Non-FSI was not salable area and consequently, the sale by the respondent No. 3 to the respondent No. 2 is clearly in contravention of the arrangement permission granted.

The court added that the builder was not a learner and therefore it was highly unlikely to accept the contention of the builder that there had been an inaccuracy in calculation of the undivided share of the land. Therefore, the builders had tried to deceive the buyers by embracing an unjust formula.

The respondent No. 3 is not a novice, it is a prominent builder. The act of the respondent No. 3 throughout the proceedings and the earlier proceedings lead us to conventionally believe that the respondent No .3 had duped the purchasers by embracing an unjust formula for calculating the undivided share in the land.

JUDGEMENT

The court further clench that when the builder itself in previous proceedings had stated that it would reinstate the building to its primary position & make certain that it would be used for Non-FSI uses, it could not go back & claim that they were enabled to use it for other purpose. Thus, the court ordered appropriately and directed for handing over the non-FSI area to the flat owners.

JUDGEMENT REVIEWED BY YAKSHU JINDAL.

3 Feb

Maintenance To Wife Not A Debt, Husband’s Pension Not Exempted From Attachment Towards Payment Of Arrears: Madras High Court

Maintenance To Wife Not A Debt, Husband’s Pension Not Exempted From Attachment Towards Payment Of Arrears: Madras High Court

Madras High Court on 23^rd December 2022, pronounced that maintenance to wife not a debt, husband’s pension not exempted from attachment towards payment of arrears This was seen in the matter of P Amutha v Gunasegaram which is presided over by the of Coram The Honourable Mr. Justice V. Sivagnanam.

FACTS OF THE CASE

The Madras HC has held that the maintenance allowance that is granted to the wife would not come within the scope of debt and thus, the pension of the husband is not exempt from attachment concerning payment of arrears of maintenance.

Pointing up that maintenance is a social fair play to avert penury & vagrancy, Justice V Sivagnanam observed, “Lawful claim due to a woman in distress should not be refused brutally & lawlessly. The moral sense of social justice, the keystone of our constitution will be secured. Consequently, I hold that the maintenance allowance granted to wife cannot be considered as a debt and she is not a creditor. Hence, exemption u/s 11 of the Pension Act 1871 as well as the exemption provided in Sec 60(1) (g) of CPC, cannot be granted to husband.”

The court allowed a criminal revision petition filed by the wife revoking the order of the Judicial Magistrate Tambaram in which the Magistrate court had dismissed a petition for attachment of pension for arrears of maintenance & for future maintenance. The magistrate had observed that there is a bar u/s 60(1) (g) of the CPC.

The wife had filed a maintenance petition in 1990 in which Rs. 500 was ordered as maintenance. This amount was later increased to Rs 4000 in 2013. The respondent-husband, who was working as a barber in the Indian Military, had failed to pay maintenance & there were arrears of Rs 1,19,000. Since the husband was ex-service man, the wife had moved the petition for attaching his pension account.

The petitioner, relying upon the decision of the Bombay HC in Bhagwat v. Radhika argued that the maintenance allowance cannot be considered as a debt & thus the exemption under Sec 60 of the CPC & Sec 11 of the Pension Act 1871 is not applicable.

The respondent-husband objected to the submission & contended that the exemption under CPC & the Pension Act is applicable to maintenance allowance also.

The court noted that the Bombay HC in Bhagwat’s case had clearly held that the maintenance allowance could not be considered a debt & that she is not a creditor. This observation has been followed by the Gujarat HC also.

The court further noted that if the pension was to be exempted from attachment towards maintenance, it would defeat the very purpose & affect the divorced woman’s interest as she would be unable to claim any maintenance once the husband retires. Such elucidation wouldn’t only affect the measure of social fair play for securing women but would adversely affect justice, it said.

JUDGEMENT

Thus, the court set aside the impugned order & directed the Judicial Magistrate to take appropriate actions for collecting the arrears of maintenance from the pension of the respondent-husband by attachment.

JUDGEMENT REVIEWED BY YAKSHU JINDAL.

3 Feb

Court Seeks Governments Response on Plea Seeking Gender Neutral Toilets across State: Madras High Court

Court Seeks Governments Response on Plea Seeking Gender Neutral Toilets across State: Madras High Court

The Madras HC has directed the State to respond to a plea seeking gender impartial public toilets across educational institutes, at bus stops, railway stations, airports & such other public places. and also directed the State counsel to seek instructions & respond to the petition in a week. This was seen in the matter of Case Title: Fred Rogers v. The Chief Secretary & others, Case No: WP 2499 of 2023 presided over by the bench of Acting Chief Justice T Raja & Justice Bharatha Chakravarthy.

FACTS OF THE CASE

The court was hearing a plea filed by transgender person. The petitioner claimed that though transgender persons in the state are given the choice to choose toilets of their own identified gender, in real life they are harassed- verbally, physically & sometimes sexually, incase they try to use the same.

Advocate Arun Kasi, appearing for the petitioner, presented that gender impartial toilets will not only help the gender non-confirming. Non-binary, queer & other communities but will also help the disabled children/parent who need help of others (sometimes from opposite genders) for using the toilets.

The petitioner also presented that such gender impartial toilets would encourage broad & remove the stigma surrounding gender non- conformity. It was argued that providing public toilets to all members of the society is one of the duties of the govt.

Finding the prayers to be reasonable, the court asked the State why relevant steps are not being taken to take on this issue. To this, the State responded that raising gender impartial toilets would require time. However, the State also said that it is not against the idea.

JUDGEMENT

The court then propsed that till the time gender impartial washrooms are rasied, some of the existing public toilets could be transform into gender impartial toilets.

“We do not have a gender impartial toilet even in our HC premises. While such toilets must be raised, in the meantime, if some of the existing public toilets are reserved to be used only by trans persons, their problem can be solved,” the court noted. The court adjourned the matter by a week directing the State counsel to seek instructions.

JUDGEMENT REVIEWED BY YAKSHU JINDAL.

3 Feb

A valid tender would remain valid even if corruption charges are found against officers of Tender Scrutiny Committee: Karnataka High Court