RHYME APARTMENT OWNERS ASSOSIATION Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is a registered association representing Nucleus Rhyme apartment owners at Edappally, respondents No.6 is in ownership of an extent of 15.12 ares of property comprised in Survey Nos. 32/4-2, 32/4-1 and 32/4-3 of Edapally North Village. According to the petitioner as per Ext.P2 building permit respondent Nos. 4 to 7 partly completed the construction and handed over the same in the year 2014 to the purchasers. The building having 24 apartments were constructed as per Exts. P1, P3 and P8 NOC issued by the respondents Nos. 2 and 3 and fire and rescue department. Exts. P4 and P5 sale agreements and Exts. P6 and P7 sale deeds are obtained by the apartment owners along with other sale deeds and agreements. The case projected by the petitioner is that, even though as per schedule.B of Ext.P4 agreement the area of property shown is 6.533 ares. The apartment owners are entitled to get benefits provided in other extents of property. After the construction was completed there were remaining properties from the large extent held by the 6th respondent and 6th respondent along with the builders are now attempting to segregate the remaining property and submit plan before the local body in order to carry out other constructions. It is also pointed out that the facilities as is provided under the agreements and the sale deeds are not provided to the apartment owners like car parking recreation area etc. Petitioner also seeks direction for consideration of Ext.P10 representation by the Secretary of the Corporation.

(2.) Detailed counter affidavit is filed by respondents Nos. 4 to 7 and 8 also justifying the circumstances under which, they carried out the construction of the first phase in a portion of the property covered by Exts. P4 and P5 agreements and the corresponding sale deeds. It is also pointed out that, other than the fractional interest provided to the owners of the apartments in schedule B in the respective agreements, the apartment owners are not entitled to claim any further extents of properties included in the large extent of property held by the 6th respondent. It was also decided to give up the 2nd phase and the 6th respondent as of right is entitled to utilize the remaining property.

(3.) I have heard learned counsel for the petitioner and the respective counsel appearing for the respondents and perused the pleadings and documents on record. In accordance with the discussion made above it is clear that, the claim raised by the petitioner is over and above the property divided to the owners of the apartments from among 6.533 ares of property situate in the Survey numbers specified above. If the petitioner and the apartment owners have a claim that the facilities are not provided in accordance with the covenants contained under the agreements executed by and between the parties, it is for the apartment owners or the apartment association to file respective claims against the builders/the owners of the property, in terms of the agreement executed. If the owner of the property is entitled as of right and law to carry out any construction in the rest of the properties, they are entitled to do so without any interference from the apartment owners of the petitioner association, since no right is conferred on them as per agreement executed and the corresponding sale deeds over the remaining properties. Therefore petitioner is also not entitled to seeks consideration of Ext.P10 representation even, since petitioner is enable to establish any right over the remaining property, and further the rights are confined to the fractional/undivided interest in the 'B' schedule property alone.