1. The Complainant Association has submitted in the Complaint that they are the registered Association of persons under the Tamil Nadu Societies Registration Act, 1975 having registration No.SRG/Chennai South/258/2019 on the file of the Registrar of Societies, Chennai South. It is. also stated that.the main object.of the Complainant Association is. to protect the Welfare and interest of the owners of various residential flats situated at Malles Aashira Apartments at Perumbakkam Village.

2. The Complainant Association has stated that the 1* Respondent Promoter had developed a Housing Project namely ‘Malles Aashira’ and this - project is registered with TNRERA under the provisions of the Act vide project registration No.TN/01/Building/0017/2018 dated 09/01/2018. The Complainant Association has further stated that though the project was approved by CMDA vide Planning Permission No.B/Spl.Bldg/485 A to S/2013, the same was subsequently renewed vide Planning Permission No.B/SpI.Bldg/61 A to S/2017. It is further submitted by the Complainant Association that as per the revised planning permission issued by CMDA, the Respondent promoter was permitted to construct 478 Dwelling Units with a shop and stilt+4 floors — 1 Block: Club House comprised in S.No.133/2, 139/2,140/1, 2, 3, 4, 141/1, 2A, 2B, 3A, 3B, 142/1, 143/1, 2A1, 2A2, 2B1, 2B2, 147/3, 148/1B, 2, 3, 150/1B, 2A, 2B2, 3, 151/4B, 239/2A1, 2A2, 3A, 3B, 5 of Nookampalayam Main Road, Perumbakkam Village, Tambaram Taluk, Kancheepuram District. The Complainant Association has also submitted that the planning permission and building approvals granted by the statutory authorities for the project Malles Aashira are exclusively for the purpose of construction of 478 dwelling units in the survey numbers mentioned in the approvals.

3. The Complainant Association has submitted that the Respondent promoter has started selling the flats to the members of Complainant Association from 2014 and executed Agreements for Construction and Sale _ Deeds in favour of the members of the Association. The Respondent promoter has under various Sale Deeds conveyed the Undivided Share of land in favour of all the members out of the total extent of 2,64,566 sq.ft. The Complainant Association has further stated that the Respondent promoter has in the Sale Deed illegally stated to have retained 5,075 sq.ft. of undivided share of land as share in the Club House and have retained the same for the subsequent projects to be promoted by Respondent promoter. Hence, this concept of retaining UDS pertaining to a piece of land in a large extent of land is unknown law of conveyance. The Complainant Association has further stated that the undivided share of land is a share of land forming part of huge extent of land in which several owners have ownership and the UDS cannot be defined by boundaries and hence cannot be earmarked to state that the UDS of the club house is retained by Respondent promoter in the absence of boundary. The Complainant Association has also submitted and made it clear that the Respondent promoter cannot assert that the UDS retained by Respondent promoter is within the specific area of the Club house.

4. Further the Complainant Association has submitted that the Respondent promoter has promoted a project namely ‘MALLES AKANKSSHA’ in the vicinity. And the Approvals for the this project was obtained by Respondent promoter from CMDA and Perumbakkam Panchayat. Akankssha project is also registered with TNRERA bearing registration No.TN/01/Building/0121/2018 dated 12.04.2018. The Complainant Association has also stated that the Respondent promoter has started selling the units in the above project and the purchasers of the units in Akankssha formed an Association namely Malles Akankssha Flat and Villa Owner’s Welfare Association (MAFAVOWA), Perumbakkam. The Complainant has further emphasize that this project Akankssha is a completely different from their project Aashira as these are approved under two different approvals, permissions and permits including completion certificate issued by the Authorities. There is no nexus whatsoever between these projects and hence, conveying UDS of particular project Aashira to other project Akanksha is unknown law of conveyance.

5. It is stated by the Complainant Association that the amenities were handed over to Complainant Association on 05.06.2020 which fact can be seen from Respondent letter dated 05.06.2020. From November 2021, the Respondent has been compelling the Complainant Association to share/give access to the Club House forming part of Complainant Association’s project with the owners of their other project Akankssha, whereas the Club House was an amenity exclusively promised to the 478 flat owners of Aashira Apartments i.e. Complainant Association and the Respondent promoter has conveniently misguided their other project owners into believing that they have access to the Club House. The Complainant further stated that it has come to their knowledge that Respondent promoter has been misrepresenting to the owners of other projects that the Respondent promoter has conveyed UDS of land pertaining to Club House in favour of them and they have a legal right to use,the Club House. It is further submitted by the Complainant Association that the above statement of Respondent promoter to the purchasers of other project is without any legal basis and is nothing but a farce attempt to make the Club House exclusively belonging to Aashira as a common amenity for other projects.

6. The Complainant Association has further submitted that the planning permission and the building permit of other project does not provide for Club House in their project.

7. The Complainant Association has submitted that in the sale deed registered in favour of Phase 1, the Respondent promoter has mentioned that the UDS retained in the club house for subsequent phases. However in sale deed executed to members pertaining to Phase 3 i.e. last phase in Complainant project the same had a mentioned that UDS retained by Respondent promoter for subsequent project. This clearly shows that right from the beginning Respondent promoter had malafide intention to make this Club House common for all Respondent projects which is against the approval and permission granted by the authorities. Also the Complainant Association has submitted that the Respondent promoter’s claim that part of UDS pertaining to the Club House is conveyed to owners of other project is illegal and to that extent the sale deeds are null and void ab initio.

8. The Complainant Association has further stated that under Section 11(f) and Section 17 of the Real Estate (Regulation and Development) Act, 2016 casts a duty upon the promoter to execute a registered conveyance deed in favour of allottees along with the undivided proportionate title in the common area to the Association of the Allottees or the competent authority within three months from date of issue -of completion certificate. Despite the Final Completion Certificate issued by CMDA on 09-09-2019 vide Letter No.EC/S-II/12/12189/2018 for this project, the conveyance deed pertaining to the common amenities are .not executed by Respondent promoter till date in favour of the Complainant Association.

9. It is further submitted by the Complainant Association that the Respondent promoter has left an outstanding of Electricity bill to the tune | of Rs.3,36,440/- and the same needs to be paid with penalty to the EB Department.

10. The Complainant Association has further submitted that the access road to Sewage Treatment Plant through C-Block was not provided by Respondent promoter in good shape which developed malfunction and the same had to be repaired which the Complainant requested to repair the same but Respondent promoter did not come forward to repair the same. Therefore, the Complainant had no other choice except to repair the same collecting funds from the owners. The Complainant has further averred that the Respondent promoter has declined to settle an amount of Rs.2,00,000/- for the repair work in the STP.

11. The Complainant Association has further alleged that the Respondent at the time of obtaining approval from CMDA and Local Panchayat showed water source to the project from a 30 feet open well and it is only based on the above source of water the approval for construction was granted.

12. The Complainant Association has prayed for the following reliefs in the Complaint.

A) To direct the Respondent to execute Conveyance Deed for the club house and common amenities in favour of the client Association.

B) To direct the Respondent not to represent club house situated in Complainant project as common amenity to purchasers of other projects.

C) To direct the Respondent to pay sum of Rs.3,66,440/- (with applicable interest from Feb. 2022) being penalty levied by the Electricity Board Department, Tambaram Revenue Branch.

D) To direct the Respondent to pay a sum of Rs.2,00,000/- towards repair of access road to the Sewage Treatment Plant which expense incurred by the Complainant.

E) To direct the Respondent to complete all the pending repair works committed to be completed vide Respondent letter dated 05.06.2020.

F) To direct the Respondent to replace Genset exhaust pipeline with permanent structure near D3 & C Block and club house.

G) To direct the Respondent to hand over following documents to the Complainant Association.

1. Original of parent documents

2. CMDA approved plan including club house

3. Approved Construction Plan

4. Completion Certificate

5. NOC from the Fire Department

6. NOC from the Electrical Inspector

7. Clearance to operate elevators

8. Property Insurance Document (if any)

9. As-built Drawings of the Electrical Wiring including Earthing Points, single line diagram (SLD’s)

10. As-built drawings of the water piping, fire piping

11. As-built drawing of sewage collection sump including bar screen details

12. As-built STP drawing & certification by Architect/Pollution Control Board

13. Environmental Clearance

14. Approval/Permission to operate STP obtained from TNPCB

15. Waste disposal system with approval from Pollution Control Board

16. AMC Documents — Lift, Generator, Transformer, stabilizer, fire Safety unit

17. Invoices and Warranties for all assets — pumps, lift, generator, transformer, AC, GYM equipment, fire alarm, pump unit

18. Details and certificates of fire extinguisher and fire hose and pipes

19. As built drawings of rainwater harvesting

20. Payment Record for Taxes towards property, construction and maintenance with the original bills

21. Payment Record for City/Municipality water supply, drainage connection, common area electricity

22. Record of all collections made from the owners (except purchase related)

23. Car parking allocation records

H To direct the Respondent to vacate the site office situated within the club house of the Complainant project.

I To direct the Respondent to pay cost of this litigation .

J To pass any other reliefs as this Office may deem fit and appropriate.

K To direct the Respondent to allow water supply from 30 feet well.

13. In the Counter Affidavit, the Respondent Promoter has submitted that they have conceived and proposed to develop a Complex consisting of Residential/Commercial/Vila in several blocks of building in a phased manner over a period of time at its property situated at Nookampalayam Main Road, Perumpakkam Village, Now Sholinganallur Taluk, Kanchipuram District. As stage 1 of the development, the Respondent obtained approval for developing a part of the larger extent of land named as “Malles Aashira” and further as stage II of the development, in the contiguous lands the Respondent obtained approvals and developed “Malles Akankssha”, in a phased manner. It is further submitted by the Respondent that the Club House was conceived, planned and built to provide the same as a common amenity to the allottees of both developments and the contractual documents evidence the same.

14. The Respondent Promoter has further submitted that the Malles Aashira project consisted residential apartment blocks and the Malles Akankssha consisted residential apartment and villas. The Club House was for: the benefit of the allottees of both Malles Aashira and Malles Akankssha. The Respondent has submitted that it was on this basis, the Clause extracted in Contraction Agreement and Sale Deed was agreed upon with the allottees of Malles Aashira. Therefore, the reliefs sought for by the Complainant Association in this regard shall not be maintainable.

15. Further, the Respondent Promoter has submitted that as and when the blocks in the complex were completed in phased manner, the same was handed over to the allottees. The Club House was part of the approval obtained for the project “Malles Aashira” — Stage I development. Merely because the approval for construction of Club House is obtained under the stage 1 development, it does not automatically entitle the allottees of Malles Aashira to claim exclusive rights, title and possession. The rights, title, use and possession are governed by the contractual _ documents as entered and agreed between the Promoter and the Allottees. .the Respondent Promoter has also submitted that right from the inception it has been planned, proposed, agreed and documented that the amenities of Club House shall be common for both the developments. The Allottees of Aashira has always been aware and well informed of the said common rights of Club House.

16. The Respondent Promoter has further submitted that to support and assure the common rights and title, the proportionate undivided share of land pertaining to the Club House was conveyed in favour of the Allottees of both developments. It is also stated by the Respondent Promoter that both “Malles Aashira” and “Malles Akanssha” are ccontiguous/adjacent to each other, wherein the Club House is common to be shared among the residents in “Malles Aashira” and “Malles Akanssha.

17. Further the Respondent Promoter has submitted that after securing necessary planning permission from CMDA, Panchayat and building permission from the competent authority, the Respondent has constructed 478 dwelling units (apartments) with a commercial space having Stilt + 4 floors in the name and style of “Malles Aashira” and constructed 96 dwelling units & 63 Villas in the name and style of Malles Akanssha. The Respondent Promoter has submitted that the Akankssha project has been approved as a Layout and each plot has got individual Planning Permit and the Ashira project development was commenced during 2014 and the Phase I was completed during the year 2016 and Phase II & Phase III in the year 2018. It is further submitted by the Respondent that the completed units were handed over in favour of the purchasers/allottees and the allottees have formed the Association which is the Complainant herein. The common amenities and facilities and maintenance were also handed over to the complainant association according to the terms in the Handing over Agreement dated 05.06.2020. The Respondent has duly completed the development of the subsequent project over the property measuring 4 Acres 34.23 Cents which are contiguous to the lands of the Aashira project. The said project development was carried out in the name and style of “Malles Akanssha”. The said development consists of the said 64 numbers of Villas and 96 numbers of Apartments.

18. The Respondent Promoter has further stated that the entire premise of the Complaint is based on suppression and distorted facts as though the Club House executively belongs to Malles Aashira only and the Complainant Association has suppressed the Construction Agreement entered between the Allottees and the Respondent.

19. It is also submitted by the Respondent Promoter that the Club House was for the common benefit for residence of both ‘Malles Aashira’ and ‘Malles Akanssha’. In the Agreement entered between the Respondent and the allottes of the Malles Aashira, it is categorically stated that the Club House shall enure to the benefit of the flat owners of the subsequent phase to be launched by the Developer in the adjoining contiguous lands. Thus, the allottees were made aware of the fact that the big Club House with huge expenses is not exclusive to the allottees of Malles Aashira, but shall be enjoyed in common with the owners of the subsequent phases to be constructed by the Respondent. The Clauses in the construction agreement are extracted and stated by the Respondent Promoter as under.

“7. The Allottee has been duly notified that the common luxuries amenities like air-conditioned gym, indoor games facility, swimming pool, children play area and multipurpose hall etc., being provided in the club house to be constructed over the said property shall inure to the benefit of the owners of the subsequent phase to be launched by the developer in the adjoining contiguous lands. The Allottee confirms that the Club House provided in the said land is not exclusive to Aashira but the same shall be enjoyed in common with the owners of the subsequent phase”.

The said provisions clearly recorded in the agreements were suppressed by the complainant and distorting the same the complaint has been filed. The Allottees as well as the complainant’s association were fully aware and knowledgeable of the said provisions and the rights of use of the club house by the alottees of the subsequent development.

20. The Respondent Promoter has also stated that the handing over agreement dated 05.06.2020 also evidences that common rights of Club House.

21. It is further submitted by the Respondent Promoter that as per the handing over Agreement dated 05.06.2020, the full handover process of Club House will be completed only after handover of Malles Akankssha until then one set of Club House keys will be with Malles Construction Pvt. Ltd. as representative of Malles Akankssha project owners to ensure their share.

22. The Respondent Promoter has further submitted that the handing over Agreement dated 05.06.2020 also states that Malles Construction Pvt. Ltd. will hand over one set of Club House key to Malles Akankssha after the formation of Malles Akankssha registered Association as per the Agreement. In the meanwhile, Malles Akankssha occupants shall be permitted to access and use the Club House and OSR area and the applicable charges of usage shall be levied and collected at par market conditions from such occupants till such time Malles Akankssha Association is formed and a decision taken by both the association/bodies on the terms. of use. The Complainant had categorically agreed to the same and as an afterthought, the Complainant is claiming exclusive right and possession over the Club House. The Respondent Promoter has extracted the relevant Clauses as under.

“9. The full handover process of club house will be completed only after hand over of Malles Akankssha until then one set of club house keys will be with Malles Constructions (P) Ltd. as representative of Malles Akankssha Project owners to ensure their share.

10. Malles Constructions (P) Ltd will hand over one set of club house key to Malles Akankssha after the formation of Malls Akankssha registered association as per the agreement.

11. In the meanwhile, Malles Akankssha occupants shall be permitted to access and use the Club house and OSR area and the applicable charges of usage shall be levied and collected at par market conditions from such occupants till such time Malles Akankssha Association is formed and a decision taken by both the associations/bodies on the terms of use.

12. It is advised that the club house and OSR (Gifted to Panchayat) maintenance should be maintained in a separate account for better understanding as the same are common for Malles Akankssha purchasers/members.

13. While taking lease from the respective department regarding OSR area the same should cover both the project Malles Aashira & Malles Akankssha Association.

14. Malles Aashira & Malles Akankssha bifurcation of club house maintenance expenses shall be calculated as per the proportionate UDS share towards the club house for the respective developments. Due to non-availability of technical staff and architects we can’t arrive it. After normal and regular functioning of work resume we will submit the same”.

23. The Respondent Promoter has further submitted that on 26.10.2021, the Members of the Complainant (Aashira) and Akanshaa had a joint meeting with the Respondent and the meeting was cordial and the terms as discussed were recorded and acknowledged by the parties on 26.10.2021. The Complainant has once again categorically confirmed and acknowledged that rights of the allottees of Akankssha with respect to sharing of common facilities like Club House and OSR. The members of both developments mutually agreed to form a common body to administer the facilities of Club House and suppressing the same the present complaint is filed.

24. The Respondent Promoter has further submitted that the Complainant has with malafide intention changed all the Locks, keys and access cards for the Club House in order to ensure that the allottees of ‘Malles Akankssha’ are denied access to the Club. House. The Complainant are in breach of the undertaking given in the handing over of amenities Agreement dated 05.06.2020 as well as the terms of the contractual agreements.

25. The Respondent Promoter has further stated that as admitted in para 3 of the Complaint, the Sale Deeds and the Construction Agreement were executed since 2014 and that the allottees are aware of the fact that UDS was retained by the Respondent for the purpose of Club House which was also subsequently conveyed in favour of the allottees of Akankssha. However, the same was never challenged prior to the present Complaint in the year 2022. The same is barred by limitation and it is a matter of fact that the common rights and title of Club House was agreed and recorded and the same were not in dispute all these years.

26. The Respondent Promoter has also stated the key features of the Club House that the Club House is having a total built up area of about 30,000 sq ft. consisting of Stilt + 4 floors constructed over the land area of 12,875 sq.ft. Comprised in parts of survey numbers 142/1, 148/2, 148/3 and 150/2A of Perumbakkam Village and having the amenities like airconditioned gym, indoor games facility, swimming pool, children play area and multipurpose hall etc. The Respondent has envisaged the said club house to cater about 800 residential units as the same shall be used and enjoyed in common by the allottees of Aashira as well as the Allottees of the subsequent development carried out by the Respondent (Akankssha).

27. The Respondent Promoter has further submitted that as it is clearly recorded in the construction agreement of Aashira, the rights and title, sharing, enjoyment and usage regarding. the said club house has also been duly provided in the construction agreements of the said project “Malles Akankssha”. Thus, proper legal rights, interest and title over the said Club House have been provided by the Respondent in favour of both the said developments. Also the Respondent Promoter has submitted that 5075 sq.ft. of UDS pertaining to the Club House area has been lawfully conveyed in favour of the allottees of “Malles Akankssha”. The total land area pertaining to the Club House is 12875 sq.ft. The UDS area of 4156 sq.ft. was conveyed in favour of the allottees of Aashira. The construction agreements evidence the said sale and conveyance of UDS in favour of both the developments, proportionate to their respective built up areas.

28. The Respondent Promoter has further submitted that as regards para 5 of the complaint, the connected documents relating to the statutory approvals have been handed over. The repair works have been completed | and the premises were handed in proper condition and there is no further pending work to be delivered by the Respondent.

29. The Respondent Promoter has further stated that the 1500 sq.ft. of built up area located in the stilt floor as retained by the Respondent does not form part of the saleable area or common area of Aashira development and the same shall be retained by the Respondent. The Respondent Promoter has already conveyed the UDS relating to common areas as evidenced vide the transaction documents of Akankssha.

30. The Respondent has also submitted that the Complainant has suppressed the fact that the main source of water is 13 dedicated bore-wells provided by the Respondent for Aashira development and the . well connection is not the main source of water. Though the construction agreement refers to the Well regarding the source of water, subsequently the Respondent has provided 13 bore-wells dedicated to the project of Aashira and the same has been the main source of water. The Respondent Promoter has also submitted that the said Well is located in the plot owned and retained by the Respondent and the same was not conveyed to any allottee or for the development. Well is situated in the Plot owned by the Respondent of Akankssha development and therefore, considering the subsequent developments, the Respondent has submitted that the water connection from the Well is not required further to the development and hence, the Respondent prefers to reserve and retain their rights and maintain the Well and the complainant cannot compel the Respondent to provide the water connection from the Well.

31. In the Rejoinder filed by the Complainant Association, it has been submitted that the word ‘subsequent phase’ should not be confused and used interchangeably with ‘subsequent projects’. Therefore, Malles Akankssha is not a subsequent phase of Malles Aashira. The allottees of Malles Aashira are aware and only conform to the fact that the Club House would be used by the allottees of subsequent phases of Malles Aashira. The Complainant Association has further submitted that the Respondent may launch 100 other projects, to expect that this same Club House will be used for all such projects of the Respondent is absurd and untenable.

32. It is also submitted by the Complainant Association that the Club House stands on the UDS of the members of the Complainant Association and this is unfair trade practice adopted by the Respondent promoter to illegally enrich themselves by cheating their existing and future customers. The Complainant Association has further submitted that in this regime of TNRERA such unethical practice should not be encouraged and the same would defeat the interest of the home buyers. The Complainant Association has further submitted that the Hon’ble Apex Court in Ireo Grace Realtech Pyt. Ltd. vs Abhishek Kanna & others reported in AIR 2021 SC 437 [LQ/SC/2021/16 ;] has ‘clearly held that the Construction Agreements, Buyers Agreement, etc., containing Clauses which are one-sided have no validity in the eyes of law and would constitute unfair trade practice. Therefore, the Complainant has submitted that the Promoter cannot make their purchaser party to an agreement which contains one-sided Clauses which are beneficial for the interest of the promoter.

33. The Complainant Association has also stated that in the sale deed registered in favour of allottees of Phase-I, the Respondent had mentioned that the UDS retained in the Club House was for subsequent phases. However in the sale deed executed to the allottees of Phase 3 (last phase), the Respondent had mentioned that the UDS retained by Respondents in the Club House is for subsequent projects.

34. The Complainant Association has also submitted that the Club House was constructed in a portion of land comprising in the following S.Nos.142/1, 148/2, 148/3, 150/2A to the extent of 1.44 acres and these S.Nos.142/1, 148/2, 148/3, 150/2A are a part and parcel of Malles Aashira. It is further submitted by the Complainant Association that the illegal . conveyance of part and parcel of UDS belonging to allottees of .Malles Aashira in S.Nos. 142/1, 148/2, 148/3, 150/2A to extent of 1.44 acres towards the allottees of Malles Akankssha has caused irreparable loss to all the allottees as it was conveyed according to the whims and fancies of the Respondent Promoter.

35. The Complainant Association has submitted that the Club House is also physically situated within the project of Aashira and it is the vehement stand of the Complainant Association that the Club House cannot be shared with the allottees of Aakansha or any future projects of Malles as it is already conveyed to the members of the Complainant Association.

36. It is further submitted by the Complainant Association that there was clear duress on the erstwhile authorized signatory of the Complainant Association to sign the letter to ensure that there was handing over keys without any conflict.

37. The Complainant Association has further stated that it is untrue to state that the well connection is not the main source of water, per contra the Well has been shown as one of the water bodies providing water for the entire project and based on the same finding the approvals have been sought for from different authorities. Before giving the approvals, the authorities confirm that the water is available for the proposed number of flats and expected number of residents. Having obtained the approvals based on the Well, and now claiming that the borewells are sufficient for satisfying the needs of residents is unfair on the part of the Respondent Promoter.

38. In.the Counter Affidavit filed by the impleaded 2" Respondent, it has been submitted that they represent through their President Mr.S.Krishna Kumar, S/o.Sathyavageeswara, aged 46 years for the Malles Akankssha Flat and Villa Owners Welfare Association. They further ‘submitted that ‘their Association is registered under the Tamil Nadu Societies Act vide Registration No.SRG/Chennai South/397/2022. The 2"! Respondent Association has also filed a resolution authorizing him to file the above counter affidavit in this complaint.

39. The 2™ Respondent has further stated that the 1* Respondent in the Complaint is a Promoter who had developed a housing scheme consists of ‘Malles Aashira’ and ‘Malles Akankssha’ residential units, which are in a single project and located in a single piece of land developed as a phased manner. The 2" Respondent has further stated that a Club House has been constructed, which is meant to be utilized by all the residential units in all phases including “Malles Akankssha and Aashira” in common and to be shared among both the residents in ‘Malles-Aashira’ and ‘MallesAkankssha’. The Club House was for the common benefit of all residents of ‘Malles-Aashira’ and ‘Malles-Akankssha’. Further it is submitted by the 2™ Respondent that the 1% Respondent has executed a Sale Deed conveying Undivided Share (UDS) in favour of the Allottees of ‘Malles Akankssha’, wherein the Club House, indoor Play Area are to be constructed and likewise, the Construction Agreement entered with the Allottees in ‘Malles-Akankssha’ provides for Club House and the same has been clearly mentioned in the handing over of amenities letter dated 05.06.2020.

40. The 2™ Respondent has also stated that the present Complaint has been filed by the Complainant Association seeking for various reliefs against the 1° Respondent herein and also seeking for a direction to direct the 1% Respondent to execute Conveyance Deed for the Club House and common amenities in favour of the Complainant Association and not to represent Club House as common amenity to the purchasers of other project. On the other hand, the 1% Respondent has already transferred UDS with respect to the Club House to the allottees of ‘Malles-Akankssha’ and the Complainant Association is also aware of the same, however, they have willfully suppressed the same in the above Complaint. Therefore, the complaint is not maintainable and it is liable to be dismissed in limine. The 2™ Respondent has also submitted that having entered into a construction agreement and also the sale deed with such a covenant, the Complainant is not entitled to file this complaint. Further, the Handing over for Amenities letter given by the 1% Respondent to the Complainant and the. same was accepted by the Complainant herein dated 05.06.2020 states that the full handover process of Club House will be completed only after hand over of “Malles-Akankssha” until then one set of Club House keys will be with Malles Construction Pvt. Ltd. as representative of Malles Akankssha project owners to ensure their share. It also stated that Malles Construction Ltd. will hand over one set of Club House key to Malles Akankssha after the formation of Malles Akankssha registered Association as per the agreement. In the meanwhile, the occupants of Malles Akankssha shall be permitted to have access and use the Club House and other amenities and the applicable charges of usage shall be levied and collected at par with the market conditions, from such occupants till such time. Malles-Akankssha Association is formed and a decision is taken by both the Association/bodies on the terms of use and the Complainant had categorically agreed to the same however, as an afterthought is claiming exclusive right and possession over the Club House by filling the present Complaint. In the past three years, the allottees of the Malles-Akankssha Association have not been allowed and permitted to use the Club House facilities.

41. The 2™ Respondent has also stated that they even paid for the Club House and other common facilities while buying their flats and still they are waiting outside the Club House with their children longing to use the facilities of the Club House. Further it is submitted by the 2" Respondent that it is clear from the brochures, Construction Agreement and sale deed that the Complainant knew the fact that the Club House was for the benefit of both the residents of ‘Malles Aashira’ and ‘Malles Akankssha’ from the initial stage of purchasing the flats i.e from marketing stage.

42. The 2™ Respondent has also submitted that the Builder had embarked on an advertisement-spree and resorted to sell the residential units in both the complex together, in other words, the prospective buyers were called upon to purchase the residential units, either in ‘Malles Akankssha and Malle Aashira’. The marketing for sale of these residential units were resorted to by the same marketing personnel. In the brochure for sale of the projects, the Club House was prominently mentioned as common amenities for the both Malles Akankssha and Malle Aashira. Therefore, the 2" Respondent has submitted that the residential units were treated as a single project having different names to identify different life style homes and not treated as separate projects and, rather, they were marketed and intended to be sold to prospective buyers, who may evince interest, to either purchase a unit in Malles Akankssha or in Malle Aashira. It is further submitted by the 2" Respondent that the proposed purchasers were informed that the Club House is common for both Malies Akankssha an Malle Aashira and an unit purchased by a buyer in Malles Akankssha and Malle Aashira will have common access to, and have an assertable right to use the Club House and other amenities without any restriction. It is with this assurance that the residential units in Malles Akankssha and Malle Aashira were sold.

43. The 2™ Respondent has further submitted that the buyers who evinced interest to purchase a unit in this housing scheme during construction, those buyers were shown the proposed units in both Malles Akankssha and Malle Aashira. Further, the proposed buyers were informed that the Club House is common and it is meant to be used by the purchasers of the unit either in Malles Akankssha and Malle Aashira. The construction of all the residential Blocks was commenced almost at the same period of time line, which is evident from the date of registration with TNRERA for the both phases. The date of registration number of ‘Malles Aashira’ is 09.01.2018. And the date of registration for Malles Akankssha is 12.04.2018.

44, The 2™ Respondent has also stated that the Complainant, 1* Respondent and the 2" Respondent have had various meetings and agreed that the bifurcation of Club House’s maintenance as per the conditions mentioned in the ‘handing over of the amenities’ letter dated 05.06.2020, and made a conclusion as shall be shared at by the allottees of ‘Malles Aashira’ and Malles Akanssha’ at 70:30 ratio proportionate to the UDS held by the ‘allottees of ‘Malles Aashira’ and Malles Akanssha’ with respect to the Club House. The Complainant also assured and promised not to restrain the members of the 2™ Respondent herein as a right in the Club House proportionate to the UDS held by them. However, contrary to such promise and assurance, the Complainant has filed the present complaint.

45. It is further stated by the 2"° Respondent that the Construction Agreement, Sale Deed and Brochures clearly state that the Common Luxurious Amenities like Air-conditioned Gym, Indoor Games facility, Swimming Pool, Children’s Play Area, Multipurpose Hall, etc., are being provided in the Club House and other amenities are not exclusive for the owners of the present phase, but shall be in common with owners in subsequent phases to be launched by the Developer in adjoining contiguous lands. When Promoter Malles Construction Pvt. Ltd. the 1% Respondent in this complaint was maintaining the Club House i.e., before handing over to Aashira Association, “Akankssha” residents (2™ Respondent) were allowed to use the Club House.

46. It is also submitted by the 2" Respondent-that no prejudice is going to be caused to the Complainant as the Club House is constructed in a built up area of 30,000 sq.ft. in Stilt plus 4 floors constructed over the land area of 18,303 sq.ft having gym, indoor games, shuttle court, swimming pool, children play area, multipurpose hall, which can accommodate more than 800 families including the allottees of ‘Malles Aashira” and “Malles Akanssha”. The present families are only 631 in all phases. The 2™ Respondent Association is agreeable to pay proportionate maintenance charges and in such circumstances, unless the Allottees of Malles Akanssha are permitted to use the Club House, irreparable loss and hardship will be caused to them.

47. The 2™ Respondent has further submitted that the present complaint was filed by contending that the projects are different projects altogether and therefore, the members of the 2" Respondent Association cannot claim any right in the Club House and such a statement is contrary to the covenant contained in the Construction Agreement, as well as the Sale Deeds executed in favour of the members of the 2™ Respondent Association. The recitals in the Construction Agreement and sale deeds would belie the claim made in the Complaint. The 2" Respondent states that in fact, both the phases have been undertaken by the same Builder, in a phased manner, in a single piece of land. While one life style concept is ‘Malles Akanssha’ relates to construction of low rising (Stilt plus two-four flats only) apartment complex with UDS and individual Villas with divided share of land and the other life style concept is “Malles Aashira’ relates to high rising apartment complex (Stilt plus four) as a group development with UDS. These versatile life style concepts cater to the affordability and convenience of each individual home seeker. It is also stated by the 2"! Respondent that even though the builder could apply for all the Villas, low rising apartment complex, and. high rising apartment group . development complex in a single planning permission approval, the existing Government norms will not permit it and therefore, the planning permissions were applied into two parts of planning approval and consequently approval was given separately. While so, it cannot be gainsaid that both the projects are different projects.

48. The 2™ Respondent has further submitted that the planning permission is not the one and only document to determine a project as a single project and two projects but the other factors and features are also to be taken into consideration to ascertain whether it is a single project or a multiple projects, such as housing scheme, proximity and nexus of the blocks and units, sharing the common basic services, subdivision of plots, time line of projects, brochures, pamphlets, promises given by the promoter, UDS sharing, Construction Agreement, sale deed, handing over procedures etc.

49. Therefore, the 2™ Respondent has stated that based on the above parameters considered in this case, it must be held that the residential units in question has been devised and conceived as a single project by the promoter and the amenities thereof have to be permitted to be used by all in common.

50. The 2™ Respondent has further submitted that the ‘Malles Aashira’ and ‘Akankssha’ are in a single housing scheme based on the sharing of the basic utility services. As drinking water is one of the basic and essential amenities needed for survival, for the past four years is being shared by ‘Malles Akankssha’ the 2" Respondent with ‘Malles Aashira’ Complainant herein and the said perennial water source is an open well which is physically located in ‘Malles Akankssha’ the 2" Respondent. As water is a prime source for the livelihood of the ‘Malles Aashira’ flat Owners, and it was clearly mentioned in the ‘Handing over of amenities’ Letter dated on 05.06.2020 as “Open wel! sharing agreement will be entered between Malles Aashira and Akankssha after the Akankssha Association is formed” Therefore, as per the condition stated in the “Handing over of amenities” letter dated on 05.06.2020, the 2™ Respondent Malles Akankssha has never prevented supply of drinking water to the Complainant Association till date. This would stand testimony to the fact that both “Aashira and Akankssha” are integrated and inter twined with each other in several aspects.

51. In the Rejoinder to the Counter of the 2" Respondent, the Complainant Association has submitted that it is the vehement contention of the Complainant that the nd Respondent project i.e. Malles Akankshaa is a distinct project and there is no nexus between Malles Aashira and Malles Akankshaa. The Complainant Association has further furnished the following tabular statement stating that it can be inferred from the tabular column that the Aashira and Akankssha are two distinct projects built on different lands, approved by different authorities and constructed on different timelines.

52. The Complainant Association has also submitted that the Construction Agreement entered between the 1% and 2™ Respondent is not binding on the Complainant and that the letter dated 05.06.2020 was oppressive, wholly one-sided against the allottees of Complainant Association at every step and was also against the law of conveyance. The Complainant has also stated that the communication letter dated 05.06.2020 is not an undertaking as misrepresented by the 2™ Respondent and is merely an interim arrangement communicated by the Builder to the Complainant Association. The conveyance of UDS pertaining to the Club House by the 1* Respondent Builder to the 2" Respondent is unlawful and amounts to double conveyance.

53. It is denied by the Complainant Association that the Complainant was aware that the Club House is a common facility, the Brochures provided by the 1* Respondent Promoter did not disclose the same and hence the 2" Respondent is put to strict proof regarding their averments stated in para 11 of their Counter Affidavit.

54. Further the Complainant Association has stated that it is untrue to state that the Club House can accommodate more than 800 families as the same is designed to accommodate only 500 families housed in the Complainant project as approved by CMDA. It makes no sense for the allottees of the Complainant Association to have purchased the property if the Club House is meant to be shared with future projects of the 1 Respondent Builder.

55. The Complainant Association has cited the ruling of the Hon’ble Madras High Court in Abbotsbury Owners’ Association Vs. The Member Secretary, CMDA and Ors. wherein it has been held that once the land is shown as a common area and the common facility is developed, the land will belong to the owners of such common facility.

56. It is submitted by the Complainant Association that the Well and the Club House are envisaged in the CMDA Approved Layout of the Complainant development and the Well is not an exclusive amenity of the 2™ Respondent and that the 2" Respondent Association by no means is doing any free service or favour to the Complainant Association by sharing the Well water. The 2" Respondent also arrives at an illogical conclusion that the Projects Aashira’ and ‘Akankssha’ one and the same as the water from the Well is shared. Hence, the averments contained in Para 17 & 18 of its Counter Affidavit are silly, irrational and have no legal bearing.

57. In Reply to the Rejoinder filed by the Complainant Association, the 2" Respondent has submitted that the Complainant has sought for a direction to the 1% Respondent to execute conveyance deed for the Club House and common amenities in favour of their (Complainant) Association, and not to represent the Club House situated in the Complainant project as common amenity to purchasers of other projects. The 2" Respondent has stated that it makes it clear that the reliefs sought by the complainant that such a relief is intended to prevent and/or restrain the proposed future purchasers of this housing scheme to be from asserting any right in the Club House and common amenities. On the other hand, the members of this 2" Respondent Association are present co-owners of the Club House have already purchased the Undivided Share of land pertaining to the Club House and other common amenities while they purchasing their flats in ‘Malles Akankssha’ and they are having the legal rights over the Club House and the common amenities provided thereof.

58. Further the 2" Respondent has submitted that the Complainant himself had enclosed the copy of minutes of the emergency general meeting (EGM) 2022 of the Malles Aashira owners welfare Association held on 07.08.2022 in their Complaint dated 16.08.2022 as page No 41. In this minutes of the EG meeting, it was specifically recorded in that minutes in para 5(3) about the elaborate deliberations, discussions and decision on the access of the members of the 2™ Respondent to the Club House with or without the maintenance payment, and it was resolved by -the Complainant’s Association members by a unanimous decision as not to allow the members of the 2" Respondent to the Club House until they (Complainant's Association) get the response for their legal notice from the 1* Respondent Promoter (Malles Construction). The aforesaid minutes amply makes it clear that the members’ of Complainant’s Association acknowledge and accept the legal rights of 2" Respondent’s members (Malles Akankshaa) in access and common ownership over the Club House and the discussion at the EGM of the Complainant's Association was only about the collection of maintenance payment of Club House from the 2™¢ Respondent.

59. The 2™ Respondent has further submitted that the different approvals given by the regulatory body namely CMDA as_ group development and individual plots has nothing to do with the claim of the Complainant, in as much as both the phases were developed by the 1* Respondent himself. The Club House may be physically situated within Aashira but it has got nothing to do with the claim of the Complainant when water is being supplied from the lands within the project titled Akankssha.

60. The 2" Respondent has further submitted that in the rejoinder the Complainant has stated that they were forced to sign the letter dated 05.06.2020 drafted by the 1* Respondent Promoter through coercion and it was further stated that the signatory of the said letter was not authorized by the Complainant. The 2" Respondent has also submitted that in Index No.8 of the Complaint dated 16.08.2022 filed by the Complainant, in page No.44 and 47 of the Complaint, a legal notice dated 12.08.2022 sent to 1* Respondent is enclosed by the Complainant Association themselves. In that legal notice, the very same person the Honorary Secretary of the Complainant Association has stated in para No.5 about the letter dated 05.06.2020 and with the support of this letter dated 05.06.20220 so many various demands have been made by the Honorary Secretary of the Complainant Association to the 1* Respondent Promoter to furnish the Planning approval by CMDA etc. In para No.15, demand was made with respect to open Well sharing with the support of the letter dated 05.06.2020. If really the letter dated 05.06.2020 was obtained by coercion, as alleged, it would not have been referred to in the subsequent legal notice dated 12.08.2022 sent by the same Honorary Secretary of the Complainant Association. Further, within five days of sending the legal notice dated 12.08.2022, the instant Complaint has been filed before this Authority in which the same letter dated 05.06.2020 was enclosed by the Complainant Association and the 2" Respondent was omitted to be arrayed as a party, wantonly.

61, It is further stated by the 2™ Respondent that the Complainant conveniently suppressed a fact before this Authority about a letter dated 26.10.2021 (page No.125 in the list of documents filed by the 1 Respondent) given by the Complainant Association to the Respondent Builder in their letter head which after 1 year from the handing over amenities letter dated 05.06.2020. In this letter they acknowledged the rights of 2"° Respondent over the Club House and other common amenities, and the Complainant giving assurance to form a common body comprising of complainant association and 2" Respondent Association to administer the Club House and common amenities.

62. It is also submitted by the 2™ Respondent that the Malles Akankssha (Dwellings of the 2" Respondent) is very well connected to the other parts of this housing scheme by the 40 feet road. The 40 feet road gifted to CMDA connects all the parts of this housing scheme and forms part of the scheme. The construction of the housing scheme and the 40 feet road are accordance with the approval granted by the various planning authorities and as like ‘C’ building the ‘Malles Akankssha (Dwellings of the 2"° Respondent) forms part of this housing scheme,

63. The 2" Respondent has finally submitted that when the Complainant Association claim the ‘rights of usage’ in the perennial water source which located in side of the 2" Respondent’s premises how they can restrain the 2" Respondent's rights of usage in other common amenities and Club house.

64. This Authority has examined the Complaint filed by the Complainant Association of Allottees of Malles Aashira real estate project, the Counter Affidavit fi led by the 1* Respondent Promoter, the Counter Affidavit filed by the impleaded 2" Respondent Association of Allottees of Malles Akankssha real estate project, Rejoinder filed by the Complainant Association, the Reply to the Rejoinder filed by the 2™ Respondent Association, arguments and written submission of arguments carefully.

65. This Complaint has been filed by the Malles Aashira Owners Welfare Association which is the Association of Allottees for Malles Aashira real estate project.

66. The Malles Aashira real estate project consists of various blocks consisting residential apartments and the Club House. This real estate project has been constructed as per the Planning Permission approved by CMDA vide Planning Permission No.B/Spl.Bldg./485 A to S/2013, Planning Permit No.8563 dated 26.12.2013 with further renewal of Planning Permission approved by CMDA in 2017.

67. This real estate project has 478 apartments and the Club House within the boundaries of the site of the approved plan.

68. The Construction of Block-A —Stilt Floor plus 4 floors (residential + commercial) with 14 dwelling units and Block-B — Stilt Floor plus 4 floors with 48 dwelling units in this real estate project has been registered with this Authority vide Registration No.TN/01/Building/0017/2018 dated 09.01.2018. The commercial Block is the Club House in this real estate project.

69. As this real estate project is registered with this Authority, this real estate project is governed by the provisions of the Real Estate (Regulation and Development) Act, 2016.

70. As per Section 2(n)(vii) of the Act, common areas mean all community and commercial facilities as provided in this real estate project. Therefore, the Club House in this real estate project is very much a common area of this real estate project.

71. As per Section 11(4)(a), the Promoter shall “be responsible for all obligations, responsibilities and functions under the provisions of this No ee , till the conveyance of all. the apartments to the allottees, or the common areas to the association of Allottees ........2....... ” Also as per Section 17(1) of the Act “the Promoter shall execute a registered conveyance deed in. favour of the Allottees along with the undivided proportionate title in the common areas to the Association of Allottees.

72. As the Club House is located within the boundaries of the site approved for this real estate project, this Club House is the common area for the Malles Aashira real estate project.

73. Therefore, as per Section 11(4)(a) read with Section 17(1) of the Act, the 1* Respondent Promoter is bound to convey the undivided share of land of the Club House to the Complainant Association which is the Association of Allottees for Malles Aashira real estate project.

74, Malles Akankssha real estate project which is a separate real estate project which has villas and flats and this real estate project is entirely outside the boundaries of the Malles Aashira real estate project and hence the Allottees of Malles Akankssha real estate project cannot have any legal claim over the common areas of Malles Aashira real estate project including the Club House which is constructed in the common area within the Malles Aashira real estate project. Also the entire undivided share of land on which this real estate project is constructed can only be conveyed as undivided share of land to the Allottees along with the undivided proportionate title in the common areas to the Association of Allottees of this real estate project as per Section 11(4)(a) read with Section 17(1) of the Act.

75. Therefore, the 1* Respondent Promoter has no right whatsoever to retain any particular extent of land within the real estate project for itself.

76. Accordingly the retention of certain specific extent of land within the Malles Aashira real estate project by the 1* Respondent Promoter and conveyance of specific extent of undivided share of land relating to the Club House located in Malles Aashira real estate project to the Allottees of Malles Akankssha real estate project is in contravention of Section 11(4)(a) and Section 17(1) of the Act and accordingly any Recital or Clauses retaining specific extent of land in the real estate project by the 1 Respondent Promoter in the Sale Deed and Construction Agreement and conveyance of specific extent of undivided share of land relating to Club House to the Allottees of Malles Akankssha real estate project which is outside the Malles Aashira real estate project are null and void.

77. As-far as the Malles Aashira real estate project is concerned, the Allottees of Malles Akankssha real estate project are non Allottees and third parties. Therefore, they have no legal rights under the Real Estate (Regulation and Development) Act, 2016 in respect of the common areas in general and the Club House in particular of Malles Aashira real estate project.

78. Similarly, the other documents like handing over and taking over letter dated 05.06.2020, are also null and void in so far as the use of Club House located within the Malles Aashira project by the Allottees of Malles Akankssha real estate project is concerned.

79. Therefore, this Authority directs the 1% Respondent Promoter to execute conveyance deed for the Club House and the common areas in the Malles Aashira real estate project in favour of the Complainant Association which is the Association of Allottees for this real estate project.

80. The Authority also directs the 1* Respondent Promoter not to represent the Club House situated in Malles Aashira real estate project as common amenities to the Allottees of other real estate project including Malles Akankssha real estate project.

81. Regarding the prayer to direct the 1 Respondent Promoter to pay a sum of Rs.3,66,440/- being the penalty levied by the TANGEDCO, the Complainant Association has not substantiated with documentary evidence that this amount is due to be paid by the 1 Respondent Promoter before taking over of the common areas by the Complainant Association. Therefore, this prayer is rejected.

82. Regarding the prayer to direct the 1° Respondent Promoter to pay a sum of Rs.2,00,000/- towards repair of access road to the Sewage Treatment Plant which is the expenditure incurred by the Complainant Association, the Authority finds that this prayer has also not been substantiated with documentary evidence that the 1 Respondent Promoter is responsible for the same and that this expenditure is incurred by the Complainant Association before the handing over of the common areas to the Complainant Association by the 1* Respondent Promoter. Therefore this prayer is also rejected.

83. Regarding the prayer to direct the 1* Respondent Promoter to complete ‘all the pending repair works committed to be completed vide Respondent Promoter's letter dated 05.06.2020 (page No.103 to 107 of the typed set documents filed by the Respondent Promoter), the Authority directs the 1" Respondent Promoter to complete the pending works committed to be completed by the 1* Respondent Promoter under serial No.3, 4 &5 of this letter. This shall be done before 31.03.2024.

84. Regarding the prayer to direct the Respondent Promoter to replace the Genset exhaust pipeline with permanent structure near D3 & C Block and Club House, the Authority directs the Respondent Promoter to provide the same before 31.03.2024, if not done already.

85. Regarding the prayer to direct the Respondent Promoter to handover various documents to the Complainant Association, this Authority directs the Respondent Promoter to provide the original of the parent documents for title of this real estate project, CMDA approved plan including the Club House, approved construction plan, Completion Certificate, NOC from Fire Service Department, Electrical Inspector and various clearances and drawings mentioned from serial No.7 to 23 in the prayer ‘G’ of the Complaint before 31.03.2024, if not done already.

86. Regarding the prayer to direct the Respondent Promoter to vacate the site office situated within the Club House of this real estate project, this Authority has already held that the Respondent Promoter has no right whatsoever in respect of common areas this real estate project including the Club House which is also the common area of this real estate project. Therefore, this Authority directs the Respondent Promoter to . vacate the site office situated within the Club House of this real estate project before 31.03.2024.

87. With the above findings and directions, this Complaint is disposed of.