Case law, Tamil Nadu land law
Appeal No.35 of 2023
The Tamil Nadu Real Estate Appellate Tribunal (Tamil Nadu, Puducherry, Andaman and Nicobar Islands) delivered Appeal No.35 of 2023 on 20 September 2023, partly allowing an appeal by the Army Welfare Housing Organization against an order of the Tamil Nadu Real Estate Regulatory Authority. The Tribunal confirmed the award of interest for delayed possession, but set aside the direction to refund Rs.5,81,377 charged for car parking, while leaving the other parts of the original order intact.
What the case concerns
Appeal No.35 of 2023 arose from the Army Welfare Housing Organization project called Raman Vihar at Anna Nagar, Chinnavedampatti, Coimbatore. An allottee, Col R Ganesan, had booked a luxury apartment on 31 July 2012. The booking letter stated that the apartment was expected to be ready for handover by December 2014, but possession was given only on 29 May 2018, a delay of three years and five months.
The allottee sought interest for delayed possession, refund of Rs.5,81,377 charged for stilt car parking, compensation for rental loss and mental agony, and litigation expenses.
Findings on delayed possession
The Tamil Nadu Real Estate Appellate Tribunal found that the Army Welfare Housing Organization had not provided a valid reason for the delay. The promoter relied on delay in project registration, but the Tribunal noted that the related registration dispute arose only after possession had already been handed over.
The Tribunal therefore confirmed the Tamil Nadu Real Estate Regulatory Authority's direction awarding interest at 10.05 per cent from December 2014 until the date possession was handed over, calculated on the amount paid by the allottee.
Findings on stilt car parking
The Tamil Nadu Real Estate Appellate Tribunal distinguished common areas available to all allottees from limited common areas reserved for particular apartments. It treated stilt parking reserved for certain apartments as a limited common area.
Relying on the Supreme Court judgment in Nahalchand Laloochand Pvt. Ltd. v Panchali Co-operative Housing Society Ltd., the Tribunal held that:
- Stilt parking is part of the building's common areas.
- Stilt parking is not separately sellable as a flat or garage.
- A promoter may charge its cost proportionately according to the carpet area of the apartment.
The Tribunal accepted the promoter's right to charge for car parking and set aside the direction requiring refund of Rs.5,81,377.
Result and practical effect
Appeal No.35 of 2023 was partly allowed. The delayed possession interest remained payable, the car parking refund was cancelled, and the other parts of the Tamil Nadu Real Estate Regulatory Authority's order remained intact, including the award of Rs.25,000 towards litigation expenses. Any connected pending miscellaneous applications were closed.
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Common questions
Did the allottee keep the interest awarded for delayed possession?
Yes. The Tamil Nadu Real Estate Appellate Tribunal confirmed interest at 10.05 per cent from December 2014 until possession was handed over on 29 May 2018, calculated on the amount paid by the allottee.
Was the promoter required to refund the Rs.5,81,377 car parking charge?
No. The Tribunal set aside the direction requiring the Army Welfare Housing Organization to refund Rs.5,81,377 charged for car parking.
Can a promoter separately sell a stilt parking space?
The Tribunal relied on the Supreme Court's finding that stilt parking is part of the common areas and is not separately sellable as a flat or garage. A promoter may charge its cost in proportion to the apartment's carpet area.
Did the Tribunal accept project registration delay as a reason for late possession?
No. The Tribunal found that the registration dispute arose after the apartment had already been handed over and therefore did not accept it as a valid explanation for the delay.
