Appeal No.6 of 2023, R.Radhakrishnan v. Malathi Badri and P.N.Badri
The Tamil Nadu Real Estate Appellate Tribunal, covering Tamil Nadu, Puducherry and the Andaman and Nicobar Islands, dismissed Appeal No.6 of 2023 at the admission stage on 24 February 2023. The Tribunal upheld compensation awarded to two allottees after unauthorised flats reduced the approved car parking area and removed the two wheeler parking space.
What the decision does
The Tamil Nadu Real Estate Appellate Tribunal, covering Tamil Nadu, Puducherry and the Andaman and Nicobar Islands, decided Appeal No.6 of 2023 on 24 February 2023. It dismissed the promoter's appeal at the admission stage and upheld the Adjudicating Officer's award of compensation to the allottees for the effects of unauthorised construction.
Property and dispute
The case concerned land in Old T.S.No.16/1 and New T.S.No.16/7, Block 38, Puliyur Village, Egmore Taluk, Chennai District. Permission had been obtained for a two storey building with six residential flats, six covered car parking spaces and six covered two wheeler parking spaces.
The promoter admitted constructing two additional units that departed from the approved plan:
- A residential flat measuring 787 square feet on ground floor space reserved for covered car parking.
- A studio flat on the open terrace.
The allottees said the ground floor construction compressed the car parking area and completely removed the two wheeler parking space. They also alleged that both unauthorised units had been rented out.
Tribunal's findings
The Tamil Nadu Real Estate Appellate Tribunal found no valid ground to admit the promoter's challenge. Its key findings were:
- A buyer's inspection or awareness of unauthorised construction does not prevent the buyer from later objecting to it.
- The promoter could not claim rights over unauthorised construction merely because it existed before the allottees purchased their flat.
- The promoter applied for revised plan approval only after the allottees had complained, and that application was stated to be pending with the CMDA.
- A later settlement deed in favour of the promoter's wife and son could not be relied on to protect the unauthorised construction.
- The reduced parking facilities caused continuing difficulty and prejudiced the allottees' enjoyment rights over the undivided share.
Compensation and practical effect
The Adjudicating Officer had awarded Rs.4,80,000 towards opportunity costs, Rs.1,00,000 for mental agony and Rs.25,000 for legal expenses. The Tribunal held that the opportunity cost compensation was properly awarded.
The appeal was dismissed without costs. After expiry of the appeal time, the Tribunal directed that the promoter's pre conditional deposit of Rs.6,65,539, together with accrued interest, be paid to the respondents. Any connected miscellaneous applications were closed.
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Common questions
Can a flat buyer object to unauthorised construction that was visible when buying the property?
Yes. The Tamil Nadu Real Estate Appellate Tribunal rejected the argument that inspection or prior awareness prevented the allottees from objecting to construction that violated the approved plan.
What parking facilities were affected in this case?
The unauthorised ground floor flat compressed the area reserved for covered car parking and removed the space reserved for two wheeler parking.
Did a pending revised plan application protect the promoter?
No. The Tribunal noted that the promoter applied for revised approval after the complaint had been filed and that the application was stated to remain pending with the CMDA.
What happened to the amount deposited for the appeal?
The Tribunal directed that, after expiry of the appeal time, Rs.6,65,539 deposited by the promoter should be paid to the respondents with the interest accrued on it.
