Kerala High Court: The bench comprising of Justice Shaji P. Chaly, allowed the writ petition and issued a mandamus directing the Kerala State Housing Board and others to ensure that various flats constructed under a housing scheme for residential purposes at the Chinnakkada Housing Accomodation Scheme Site II of the Housing Board, Kollam, are not being used for other commercial purposes.

The Housing scheme in question was meant for residential purposes. Further, Clause 19 of the Hire Purchase Agreement for those who opted for hire purchase also restricted use to residential purposes as does Regulation 6 (1) of the Kerala State Housing Board (Formation of Allottees Associations) Regulations, 2000). Nevertheless, various flats in the complex for being used as offices, godowns, training centres etc. Earlier alottees had raised the issue with the Board, whose inaction triggered O.P. No. 28612/2000 before the same court, wherein respondents 1 to 3 had been directed to see that flats were not used for any purpose other than those mentioned under the scheme and clause 19 of the Hire Purchase Agreement.

This Court characterized as undeniable  fact that owners and representatives-in-interest would be bound to obey the restrictive clause, and the housing scheme. The Court noted R.K. Mittal v. State of Uttar Pradesh  (2012) 2 SCC 232, wherein the Supreme Court held that a scheme which comprised a master plan and zoning plan specified as residential by the allotment by the Delhi Development Authority under the Industrial Development Area Act of 1976, must be implemented strictly.

The Court thereby held the Respondents bound to ensure the residential character of the flats and remove all commercial ventures within a period of three months, excepting an advocate who resided and maintained his office in the same flat because it is  not exactly constituting a commercial venture.  [Darelene Carmelita D’Cruz v. Kerala State Housing Board, 2016 SCC OnLine Ker 5341, decided 08-04-2016]

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