You are on page 1of 50

:1:

IN

THE

HIGH COURT APPELLATE APPEAL

OF

JUDICATURE

AT

BOMBAY JURISDICTION 2007

FIRST Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Society Limited.

NO.

2182 ..Appellant

OF

Co-Operative ..Respondent

Housing

Mr. F. E. Devitre, Senior Iyer, Senior Advocate with Mr. Vineet B. Naik i/by M/s. Prakash and Company for appellant. Mr. G.N. Salunke with Mr. S.R. Sharma for respondent.

Advocate with Venkatesh

Ms. Dhond,

Rajani Mr.

CORAM: B.H. MARLAPALLE,J. Reserved on : February 13, 2008. Pronounced on : April 25, 2008.

JUDGMENT:

1. and Civil Decree Court,

This appeal is directed against the Judgment passed Greater by the learned on Judge 4/4/2007 of in the S.C. City Suit

Mumbai

No. 1767 of 2004. The said suit was dismissed with costs.

2.

The suit was filed by the appellant-company

:2:

for the following substantial relief:

"That committee or restrained of trespassing manner with respect of building particularly Exhibit Enclave, (East), the of parking by shown "A" N.L. any by this on

the members, other an Honble the disturbing/ possession the suit in person

defendants, members, claiming of from premises obstructing of premises the the i.e. stilt Panchali, in hereto, Complex, the plan at

office servants, through them

bearers, agents be injunction upon/ in any

order Court suit

permanent encroaching and/or

/interfering plaintiffs 25 portion as annexed of in number the more at Indraprasta Dahisar 068."

spaces name

situated Anand 400

Nagar,

Mumbai

3. representing defined (Regulation management MOFA).

The plaintiff is a Private Limited Company, itself under of and It as the the transfer) had purchased a developer/builder/promoter Maharashtra promotion Act, from of 1963 the Ownership construction, (for short original as Flats sale, the owners,

:3:

namely, bearing (Pt), situated Suburban vacant Authority appellant storeyed land specification Corporation said "Panchali" having Building parking stilt Corporation. the promoter basis in

Anjani CTS 1475 in District land (Urban then buildings

Krishna Nos.1458 (Pt), village and by Land decided and with the 1476

Boritkar (Pt), (Pt), Dahisar, which 1459 1478 Taluka was (Pt), (Pt)

and 1472 and Borivali, declared Collector Mumbai.

others (Pt), 1482

land 1474 (Pt) Mumbai

as and

excess Competent The

Additional Ceiling), to shopping the by for Greater

construct complex on

seven the plans

multi said and Municipal

accordance duly (the

building the Mumbai One is

approved Corporation storeyed has "A" stilt and The the as stilt. per

short). buildings plus "B" seven with building There the 2001 are plans to

of by upper

the name floors

seven

multi which

two for area parking

wings, short). below spaces Between of and the the sold

56 has in approved August signed

flats

(the enclosed

all by 2003, between

28 the on the the the On occupation

February

agreements individual each some of the times flat 56 in

purchasers, flats mid the and 2002.

plaintiff-promoter construction 19/8/2002 was

completed the

Corporation

issued

:4:

certificate. Co-operative 8/10/2003 Housing three purportedly alleged society remaining of enclosed gate/grill 21/3/2004, resorted police finally 1767 of to the all door that tried 25

The Society, and Society". parking in on to parking appellant. the and even the had the spaces the it

flat which was was named Before were possession 22/2/2004 take spaces It parking locked residents action. 11/3/2004 trial others. court the forcible by appears sold of

purchasers registered as the and the committee on

formed or

a about Co-operative

"Panchali society remaining plaintiff. members of was 25

registered, were It of is the the locks has collapsable On also filed and No. is

possession breaking that lots the by one of of other The and in the Civil suit open

the

plaintiff a them. buildings plaintiff 22/3/2004 Suit property

each

similar on the and

complaints approached 2004

Thus

the enclosed car parking spaces in the stilt portion in the building named "Panchali".

4.

In the suit a permanent injunction has been

prayed in respect of the suit parking lots mainly on the following grounds:-

:5:

(a) every to space/open on flat sell

As

per

the

agreement the residential

for plaintiff

sale

signed

with intended parking building basis.

purchaser, either parking space

flat/stilt the said

in

ownership

(b) declaration/undertaking over favour effect, and spaces plan that nature object plaintiff purchaser not in he/she/they plaintiff parking a space be the

Each

of

the at of the

flat the

purchaser time

had of

executed

taking in the

possession of that irrevocably and belonged they to to to the any would the sale open the

respective inter purchaser that spaces to claim that the that he/she/they his/her/their until and from space in the plan they same stilt shown the of alia

flats to

plaintiff, each agreed parking exclusively have same of person, that to premises

unconditionally parking in the plaintiff, whatsoever will by the not the flat shall vehicle unless the or and open that

no and

understands allowed suit has/have stilt as

park

purchased parking shown

:6:

each his/her/their until the

flat

purchaser vehicle

undertaken in the the same

not said is

to

park property from plaintiff.

and

unless

purchased

(c) definition of areas the of

The flat and it

stilt

parking as it is is

space given not like a a

is under part

included Section of the

in

the 2(a)

MOFA and

common garage.

private

5.

The defendant - society filed Written

Statement and opposed the suit on the grounds that,

(a) sell stilt provisions entitled or

the dispose

plaintiff off more the only

has the

no

absolute spaces under the

right in

to the the is

parking

portion, of to

particularly MOFA and sale

plaintiff

flats/shops/garages;

(b) the D.C. Rules 1991 restrict the rights of the promoters to sell parking spaces;

(c) the undertakings allegedly given by the flat purchasers are not binding on the society

:7:

and in any case such an undertaking is contrary to the provisions of the MOFA and, therefore, it requires to be declared as illegal and bad in law;

(d) take spaces entitled for

the forcible and, the

defendant possession therefore, reliefs

society of the

never the

attempted stilt was

to

parking not

plaintiff prayed in

the

suit.

6.

As per the final order passed on 24/7/2006 the

following issues were framed by the trial court and answered accordingly:-

ISSUES (1) Do the plaintiffs prove that they have absolute right to sell/dispose of the parking space under the stilt? (2) Do the provisions of the MOFA restrict the rights of plaintiffs/promoters to sell /dispose of the parking spaces? (3) Do the provisions of the Development Control Rules 1991 restrict the rights of the plaintiffs/promoters to sell/dispose of the parking spaces?

FINDINGS In the negative

In the affirmative

In the affirmative

:8:

(4) Do the Defendants prove that the undertaking given by the respective flat purchasers is not binding upon the Defendants namely the cooperative societies? (5) Do the Defendants prove that the undertaking referred to in paragraph 7 of the Plaint purported to have been executed by the respective flat purchasers are contrary to the provisions of the MOFA and as such illegal? (6) Do the Defendants prove that the undertaking referred to in paragraph 7 of the Plaint are contrary to the D.C. Rules and as such illegal? (7) Do the Plaintiffs prove that the residents of the respective buildings attempted to take possession of the stilt portion with the use of force? (8) Are the Plaintiffs entitled to the reliefs asked in the Plaint? (9) What order?

In the affirmative

In the affirmative

In the affirmative

In the negative

In the negative

As per final order

. furnished decided have by together. been

Issue Nos.4 to 6 deal with the undertaking the purchasers Similarly decided together. and Issue hence Nos. Certain they 1,2 documents have and been 3 were

:9:

brought

on

record

before

the

trial

court

and

the

following documents are relevant for deciding this appeal:-

(a) Exh.-A

: Copy of the agreement dated 27/05/2002. : Letter dated 4/3/05 from the Corporation to the plaintiff. : Undertaking executed by one flat owners.

(b) Exh.-D

(c) Exh.-E

(d) Exh.-F Colly: Sanctioned plan alongwith forwarding letter dated 19/8/02. (e) Exh.-G : Original I.O.D. dated 3/5/1997.

(f) Exh.-H Colly: Original letter dated 27/2/01 alongwith approved amended plan. (g) Exh.-J : Original office copy of the plaintiffs letter dated 26/3/02.

(h) Exh.-M Colly: Affidavit of examination in chief of Rajesh Himatlal - PW 1. (i) Exh.-1 : Affidavit of examination in chief of Hariharan T. Iyer - DW 1. : List of documents along with the copies of original documents.

(j) Exh.-2

(k) Exh.-3 Colly: Copies of tax receipts showing that the Defendants paid municipal taxes. (l) Exh.-4 Colly: Copy of the complaint filed by Defendants society in B.M.C. (m) Exh.-5 : Copy of the complaint filed by the Defendants society against the

:10:

plaintiff in Metropolitan Magistrate Court.

7. challenge would the namely, Development MOFA, to be

Before we deal with the merits in the the order passed to of prescribed Rules the by and by reproduce model the the trial certain form State Regulations and of court, provisions it of

necessary Clauses

agreement, Government, Model

Form-V Control

bye-laws 2001 framed under the Co-operative Societies Act, 1960.

FLAT

Sec.1(a). self-contained intended show-room any garage, building or industry the and to shop or set be

"Flat" of used or

means

a premises

separate used or carrying includes of

and or office, on a a apartment.

for godown

residence, of and part an for

business forming includes

premises

Explanation.-

Notwithstanding

that

provision

:11:

is other sets to

made

for

sanitary, as the separate

washing, to two shall and

bathing or be

or more deemed

conveniences of be premises,

common premises

self-contained;

Promoter

Sec.2(c). constructs or purpose other society includes who different builds or building of persons, or his and persons,

"promoter" causes of selling or other assignees; the the to flats or some to

means be

a constructed

person a for of them

who block the to

apartments or all

company, of and persons, where who includes the

co-operative and person are both;

association

persons term

sell

Sec.3(2)(d) intends flats, to construct

A such

promoter, block shall

who or

constructs building

or of -

(d) and or amenities more lifts)

disclose (including

the

nature the or

of provision to

fixtures, for be

fittings one provided;

provided

:12:

(h) the and terms organisation to to

state organisation which and of persons, take title

in of is

writing, persons to be

the

precise to be

nature

of

constituted and the such or are flats;

passed; governing have the taken

conditions who

Sec. 3(m)(ii)(iii)(iv) -

(m) disclose following

when inter alia

the in

flats the

are

advertised advertisement

for

sale, the namely:-

particulars,

(i) including should the

the

extent area be

of of

the

carpet the shown

area

of

the

flat which

balconies

separately;

(ii) proportionate facilities to intervals be be at

the price which paid by which

price of should the the

of

the the be

flat common shown of flat;

including areas

the and

separately, and thereof the may paid;

purchaser

instalments

:13:

(iii) the

the common

nature, areas

extent

and and

description

of facilities;

(iv) limited common

the

nature, areas

extent and

and facilities

description if

of any.

Sec.4(1A)(a)(iii)(iv).

(1A) sub-section particulars to copies (b),such of

The (1) as

agreement shall specified

to contain in

be inter clause shall (a); be

prescribed alia

and the and

agreement the

there documents

attached in

the clause

specified

(a) particulars -

(iii) the extent of the carpet area of the flat including the area of the balconies which should be shown separately;

(iv)

the

price

of

the

flat

including

the

:14:

proportionate facilities to intervals paid; be

price which paid at by

of should the which

the be purchaser instalments

common shown of flat; thereof

areas

and separately, and may the be

Sec. persons society promoter submit registration who or, as take the an of or shall

10 required a

(1)

to

As

soon

as form

minimum a flats,

number

of

Co-operative the period for persons society and the the flats application or Nothing as in the flats this in Act.

company within application the flats may join, been be, in as

have the to the

taken prescribed

Registrar of

organisation a as a respect taken, co-operative a company. the the right in

the case shall

Co-operative company; of

promoter which for the this promoter accordance have

not of may

such society

membership case section to with

a be, shall of

affect of

of

dispose the

remaining of

provisions

(2) buildings is

If

any

property or

consisting to

of be

building

or

constructed

constructed

:15:

and provisions Ownership registering Act Registrar Co-operative and form in then

the

promoter of Act, Declaration the as Societies such cases, the

submits

such

property

to

the

Maharashtra by as provided shall in Act, it shall not the 1960, be or executing by inform

Apartment and that the Maharashtra accordingly; lawful to company.

1970,

promoter defined

any

co-operative

society

Sec. steps organisation is or registered as a of right, to of

11. complete

A his

promoter title who as as takers a

shall and take

take convey

all

necessary to the which society to an owners

persons, either company flat title and and execute accordance

flats,

co-operative or apartment in relevant the land

aforesaid, or

association his building, therefor executed the upon, the documents

interest all with 4 the and

and

documents the agreement period is for agreed within all property

in under execution he prescribed of

section of shall

if

no

conveyance the conveyance also to the

execute period title and

deliver

relating

:16:

which

may

be

in

his

possession

or

power.

Sec.16.- The provisions of this Act, except where otherwise provided, shall be in addition to the provisions of the Transfer of Property Act, 1882, and shall take effect

notwithstanding anything to the contrary contained in any contract.

Clauses FORM-V.

of

the

model

form

of

agreement,

Clause purchase hereby Flat of (which on hereto ...../ .......Building Flat") Rs........ for Floor from agrees No. carpet is

2:

The the to sell ........ area inclusive as shown and open (herein

Flat

Purchaser and Flat of the ...... the area floor

hereby the Purchaser Type

agrees

to

Promoter the

Promoter one ............. sq.metres of balconies) thereof No. the "the including

admeasuring of in marked Garage referred price of the

the

plan D/shop in as

annexed covered/

Annexure No....... to Rs.........

the being

proportionate

price

of

:17:

the the description and described written....

common premises, of facilities in

area the the which the

and

facilities nature,

appurtenant extent common

to and areas

common/limited are Second more

particularly hereunder

Schedule

Clause the the that been any floor promoter furnish particulars the while has other floor such said to no Floor said part utilised purpose space

4 Space land of

The Index

Promoter

hereby in

declares respect only

that of and has for said the shall detailed of case Promoter

available sq.mtrs.

is the by

..... said the

floor Promoter In been

space

index

elsewhere case the by

whatsoever. index elsewhere, the in floor flat respect space the any or index, space floor property then index has

utilised the Promoter all such by land index way of him. the

then purchaser of index said

the utilisation In

developing utilised land space floor

space by the shall

of

any floating of by

particulars be disclose

:18:

the residual layout promoter Whereas residual the

Promoter F.A.R. not till after F.A.R.

to

the (F.S.I)

Flat in be the

Purchaser. plot or to the the be society available

The the the society. the to society.

consumed the

will

available of

registration registration (F.S.I) of shall

Clause an of that of event assignment of a the agent the he flat before of said

5 of

In the

case

the

Promoter

is

acting

as Owner agrees

vendor/Lessor/Original the Promoter handing purchaser of the to said be a land formed in on "the full of as his title the said Society"/ and to if or land in by hereby over and in

land, shall, to the

before flat

possession any conveyance/ favour the the land the true the any, claim and

execution lease of body

corporate of to referred Company"), of land the as any be

purchasers building (hereinafter Limited disclosure said including of any

flats/shops/garages constructed to as make nature well right, in or

encumbrances, title, over the interest said

party

:19:

shall said that Promoter marketable

as land the

far is

as free

practicable from all

ensure

that

the and the and

encumbrances Owner clear

Vendor/Lessor/Original has/have title on of the Promoter in absolute, the lease execution of of

of the the

a said said Company.

conveyance/assignment land by

favour

Society/Limited

Clause Flat be or used any

11 part for

The thereof

Flat or purpose

Purchaser permit of

shall the

use same

the to

residence/office/ on use the purpose any garage of own

showroom/shop/godown industry or keeping vehicle. or parking or business. space

for

carrying He only for the Flat shall the

parking

Purchasers

Clause by shall, the cause and between within Society to

13

the four

Unless

it

is

otherwise hereto

agreed the

to Promoter of aforesaid

parties months of

registration as Society

or be

Limited transferred

Company, to the

or

:20:

Limited interest Owner/Promoter aliquot the necessary lease may said Limited conveyance/ keeping Agreement. of be

Company of

all

the

right, the

title

and

the

Vendor/Lessor/Original owners in the with the of as the or such in of this

and/or part building/s conveyance/ the permitted in as said by of by the

the said obtaining/ and land the of case lease and or (or to

land or

together executing assignment the extent and Society may shall provisions be be

authorities) such

building Company,

favour the of terms

assignment with the

Clause 24 - IT IS ALSO UNDERSTOOD AND AGREED BY AND BETWEEN THE PARTIES hereto that the terrace space in front of or adjacent to the terrace flats in the said building, if any, shall belong exclusively to the respective purchaser or the terrace flat and such terrace spaces are intended for the exclusive use of the respective terrace Flat Purchaser. The said terrace shall not be enclosed by the Flat Purchaser till the permission in writing is

:21:

obtained from the concerned local authority and the Promoter or the Society, or as the case may be, the Limited Company.

. Act, read as under:-

Sections 5 and 53 of the Transfer of Property

5."Transfer of property" defined.- In the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and "to transfer property" is to perform such act.

. company whether herein time property bodies or

In

this

section or or

"living body not,

person" of but law to

includes

association

individuals, nothing for the of or individuals.

incorporated contained being to or in shall

affect relating companies, of

any

force by

transfer

associations

:22:

53.Fraudulent immovable or be defeated delay voidable property the at

transfer.made

(1) with or

Every intent the of any

transfer to transferor creditor

of defeat shall so delayed.

creditors the option or

. Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration.

. Nothing in this sub-section shall affect any law for the time being in force relating to insolvency.

. include not avoid been creditors instituted of, a applied a made of on

suit

instituted

by whether of

creditor he his that or has

(which or

term has to has the be benefit

decree-holder for transfer with on intent the behalf all

execution the to

decree) it delay shall

ground defeat transferor

of,

or the

for

the

creditors.

(2)

Every

transfer

of

immovable

property

made

:23:

without subsequent option

consideration transferee of

with shall

intent be such

to voidable

defraud at

a the

transferee.

. transfer deemed defraud transfer to by for

For made have reason

the without been

purposes

of

this

sub-section, shall

no be

consideration made only that with

intent a

to

subsequent made.

consideration

was

8. notification published for Greater

The Government of Maharashtra by its dated the 20/2/1991 Development Bombay, 1991. Control Regulation has sanctioned Regulations No.2 and (DCR) defines

certain terms and the relevant of those for the present consideration are reproduced as under:-

2(7) spaces, grounds, supply, public conveniences. works parks,

"Amenity"

means recreational water lighting, other

roads,

streets, grounds,

open play electric drainage,

gardens, street and

supply, sewerage, utilities, services

and

:24:

2(11) constructed any or walls enclosing space, chemicals. purpose, not, etc., or tanks

"Building" with whether and any used includes -

means materials for

a whatsoever human foundation,

structure, for habitation plinth, wall or of

verandas, intended to

balconies, enclose for any

any land storage

constructed

2(13) "Built-up area" means the area covered by a building on all floors including cantilevered portion, if any, but excepting the areas excluded specifically under these Regulations.

2(15) area by exempted these the from

"Carpet a or floor

area"

means

the excluding

net

usable that

floor covered

within walls

building any space

other index

areas

specifically computation in

Regulations.

2(31) building not

"External

wall" a

means party

an wall

outer even

wall

of

being

though

:25:

adjoining means space a

wall wall of

of abutting

another on an any

building

and

also open building.

interior

2(47) portion parking thereof

"Garage-Private" designed of

means and

a used

building for

or

a the vehicles.

2(48) portion private and/or selling other or thereof,

"Garage-Public" designed operated for storing or

means other for

a than gain,

building as

or a designed hiring, or vehicles.

garage, used

repairing, parking

servicing, motor-driven

2(64) integral part of

"Open a

space" site

means left

an open

area to

forming the

an sky.

2(67) unenclosed size be street egress served or to by

"Parking covered park a alley or vehicles.

space"

means open

an area

enclosed sufficient spaces them ingress with

or in shall a or vehicles.

Parking connecting permitting

driveway and of

:26:

2(91) unit with

"Tenement" a kitchen,

means or

an a

independent cooking

dwelling alcove.

Regulations 35 (2) and 36 read as under:-

35. Floor Space Index Computation- (1) ...

(2) Exclusion from FSI computation - The following shall not be counted towards FSI:-

(a) ....... (b) ....... (c) ....... (d) ....... (e) .......

(f) Area of unenclosed but covered parking spaces as provided in clause (b) (i) of sub-regulation (5) of Regulation 36.

36. developed or

Parking

spaces.redeveloped,

Wherever parking

property spaces

is at

:27:

the be existing

scale provided.

laid

down When

in additions the

these are

Regulations made new with to

shall an parking reference

building, will additional of apply building where be space

requirements to whole not the

reckoned only but the this use and

not concession is

to

the shall changed.

(1) General Space Requirements.- (i) Types.The parking spaces mentioned below include parking spaces in basements or on a floor supported by stilts, or on upper floors, covered or uncovered spaces in the plot and lock-up garages.

(ii) of shown parking

Size

of

Parking to be

Space.provided

The shall

minimum be

sizes as below:-

spaces

(a) Motor vehicle (b) Scooter, Motor-cycle (c) Bicycle

2.5 m x 5.5 m. 3 sq.m. 1.4 3.75 m. x 7.5 m. sq.m.

(d) Transport Vehicle

:28:

(iii) Marking of Parking Spaces - Parking spaces shall be paved and clearly marked for different types of vehicles.

(iv) ...... (v) ......

(2) Quantitative Requirements - Four wheeled auto-vehicles. - Parking spaces for four wheeled auto vehicles shall be provided as in Table 15 below, any fractional space of more than half resulting from the ratios in column (3) thereof being rounded off upward to the nearest integer.

1. Residential - (B) In the rest of the Island City area, Suburbs and Extended Suburbs:

(a) sq.m.

tenements

having

carpet

area

above

35 each.

(b) sq.m. but

tenements not

with

carpet 70

area sq.m.

exceeding

45 each.

exceeding

:29:

(c) sq.m.

tenement

with

carpet

area

exceeding

70

(5) The parking

Parking

Spaces.spaces

Where may

to be

be

accommodatedprovided -

(a) within floors; its

underneath stilted

the portion,

building, or

in on

basements upper

(b) in the side and rear open spaces, but not in the amenity open spaces, if -

(i) they are unenclosed but uncovered except as provided in (d) below;

(ii) they do not consume more than 50 percent of the open space;

(iii) building manocuverability is

minimum kept

distance free of of

of

3.0 parking

m. for

around

the proper

vehicles;

:30:

(iv) boundary in

they case

are of

atleast

7.5

m.

from covered

the

road garages;

detached

(v) of the

the Chief high

parking Fire

layouts Officer rise in

meet the

the

requirements case of special

multi-storeyed, buildings.

and

(c) compulsory stipulated 26, above may if are be

in side in other

residential and rear 2 under

zone,

beyond open

the spaces Regulation

sub-regulation conditions Here unenclosed

of sub-rule parking covered

(b) space space.

satisfied. an

the

(d) .......

38. Plinth.-

Requirements

of

parts

of

buildings

(1) ..........

(i) Main Building.- ..........

(ii) Interior court-yards, covered parking spaces and garages. - These shall be raised

:31:

at least 15 cm above the surrounding ground level and shall be satisfactorily drained.

9.

P.W.

1 - Rajesh

Himatlal, in his

cross-examination before the trial court, admitted as under:-

"The not say or referred whether super

reference therein it built is is up. for as

of

700 carpet

sq.ft. area. therein The

in

Exh. I as

is cannot up of

referred

built

reference area 1/5/2002 of

Rs.10,29,700/flat 31/5/2002..........

700 from

sq.ft.

the to

applicable

The clause Exh.A area not area. respect a no.3-A refers of

amount of to 535 carpet There of is price sq.ft.

of

Rs.10,29,700/agreement mentioned referred It refers of parking in in to dated

referred

in

27/5/2002 The 3-B built is up in area..........

Exh.K. clause

area. no stilt

consumption

F.S.I.

Clause

no.3-B,

3-C

and

3-D

are

deleted,

as

:32:

agreement mentioned

is

in in

respect

of

sale clause

of

flat 3-A.......

Undertaking paper. Exh."E" have incorrect never advocate....... It was not to appeared is

is not purchased signed say

executed registered. by me in

on

a The my

proper stamp name. It of notary

stamp paper I is Exh.E or

Exh."E" that the

undertaking. deponent

before

It parking shown

is space

true is in

that required

as

per to

clause be the

6-C kept

of open

Exh.J as plan".

10.

D.W. 1 - Shri Hariharan T. Iyer, the

Secretary of the respondent - society, in his cross-examination, admitted as under:-

"I defendant-society got completely

have in of

purchased May my 2002. flat. in

my In The

flat June

in 2002

the I was 2002.........

possession

building

constructed

May,

:33:

Since month take May, for possession

I making

wanted

some

time

of

approximately I could month

a not of 2002.

balance my flat

payment, in the

of

I had signed a written undertaking in favour of the developer. It is true that I have not challenged undertaking signed by me, as I do not know the contents thereof. I am secretary of the defendant-society from

October/November, 2003.............

The executed the purchasers was I by flat

plaintiff

disclosed in by but read of all including till one the plaint. this

the suit. the copy

undertaking All flat of it when had by is not by of the

purchasers executed annexed I have copy of

undertakings were not

annexed. received the copy flat to to flat

undertaking We executed It we have

received the correct decided the

undertakings myself. today, undertaking

purchasers say that, challenge purchasers,

executed members

who

are

:34:

defendant

society.

All the members are flat purchasers of the defendant society. ......

It is flat. built municipality flat by occupied any of the the up mentioned

is

true is area area has

that

in super

my

agreement, built in up my flat. each

no area

where of

it my is far, every

what The

mentioned of not my assessed The in The save in and their

agreement So and taxes of are for are the not the

separately. members by other them. taxes, flat

property respect members except

paid flats paying area

respective

occupation.

It executed society by

is

true the

that developer till

there in

is favour

no of

conveyance the today".

11. in this Appeal are,

The main issues that arise for consideration

(a)

Whether the plaintiff-company has the

:35:

right to sell the suit parking spaces separately to anyone including the members of the defendant-Society in view of the provisions of the MOFA, the model agreement prescribed by the State Government under the same and the Development Control Regulations, 1991; and

(b)

Whether the defendant-Society is

estopped from challenging the action of the plaintiff-company for sale of the suit parking spaces on account of the undertakings furnished by its members / flat purchasers.

12. made taken effect provide of upto scheme that Sq.mtrs., if the the 35 of by up

At the outset let me deal with the submission the for that suit carpet sq.mtrs. Regulation the one carpet parking area the the parking area learned first Senior time in Counsel this was per flat submission of the has the being is DCR tenements to be is the less based which above provided which appeal not DCR has and to been the to view or the states 35 for

plaintiff-company spaces of each This 36(2) of space as

required in than on

:36:

four sq.mtrs. will In tenement case tenements sq.mtrs. of in that sq.ft. dated 535 area. 350 defendant sq.ft. that would the be it sought

tenements but have case must the carpet in or the his the area 27/5/2002. sq.ft. The sq.ft. The between be different area 400 be to be one the

and less

if than

the 70 spaced area

carpet sq.mtrs.,

area two by

exceeds

45 tenements

parking carpet have area Panchali upto 35 one of

provided exceeds space. of not The Rajesh the less 70

the sq.mtrs., In 56 than the flats

builder. each instant / 35 Director 1) admitted

parking any is

building sq.mtrs. Shri before of flat

Managing Himatlal Court was in the is will be for the area not (PW

plaintiff-company depositions consideration of the He referred area and society of

the

trial

Rs.10,29,700/as mentioned states clause sq.mtrs. the for a that 3(b)

700 agreement of carpet approximately of of the 700 conceded area, i.e. there if may imagination case was plaintiff

further in 35 admittedly

members total area fairly built up cent up

have learned

paid Senior area 15 sq.ft., and by Thus

Counsel and to the no a this totally appeal 20

the of is sq.ft. 700

carpet about 350

per built

carpet around can

area of

stretch new by

sq.f.t. made out

in

the

:37:

trial with is have 350 on sq.ft. plea and

company Court, on

and

if

such

a the

plea same the that area, cent. carpet

was

taken could

up have Even the area suit each sq.ft.

before been otherwise flat would has flat

the dealt it

obviously the basis to 700 50 that the the cannot the built plaintiff be of

evidence. when carpet The area is company, of 700

far-fetched paid sq.ft. the for i.e. basis and of it

state sq.ft. per

purchasers be proceeded is This must 535 new fail

up -

area

therefore, despite the

considered

articulations

sought to be made in the Written Submissions made before this Court.

13. parking entitled way open members defines unenclosed park "Garrage-Private" thereof designed of space of space to

It is the plaintiffs case that the stilt is dispose sale and or the it it common society. space" or As means and a used building for the which open a off cannot garage as be and, a therefore, separate to be premises a to of enclosed in size it is by common the DCR or to 2(47) a of portion vehicles.

treated area

parking

available 2(67) an sufficient

Regulation means area per

"Parking covered vehicles.

Regulation or parking

:38:

Surely unenclosed, is excluded the Similarly property to unenclosed clause In unenclosed structure enclosed. developed laid When new reference whole where requirement 36. spaces the the area a also

the covered

parking or that as a as the tax. but per

space open the cannot area DCR is in parking DCR 35(2)(f) parking

either be of a parking

enclosed building. space But in is not area provided Regulation spaces a sought a at be building reckoned and shall is spaces a under of instant not not to to property the the charged

or It is admittedly FSI. to charged of in 36. were fabricated be is scale provided. the with the apply compulsory DCR parking case,

admitted FSI for garage tax,

from

35(2)(f). counted the space states space (5) stilt parking by DCR is that as of

garage defined stilt

property

covered of

(b)(i) instant but the

sub-regulation case the

covered. parking DCR or 36 spaces states

However, were that parking Regulations to will space this an be only

wherever spaces shall existing

redeveloped, in are requirements these made

down additions parking to of

the building use to is

additional but changed. provide for of set

concession Thus parking DCR it

Under has

clause also been

(ii)

36(1), and in

size the

out

:39:

as required under DCR 36(2) for 56 flats, 28 parking spaces (unenclosed but covered) have been provided.

14. promoter, building fixtures, provided, organisation title governing or for the balconies nature, facilities, limited Section out the / 4(1), purchasers in agreement promoter the are sale, carpet is of

Section 3(2) of the MOFA states that a who flats, and writing persons to such to be constructs shall amenities the to passed, be and of when the flat be of or intends disclose provided precise constituted the person, the flats terms to the or nature and and who are the the area separately, common and any. which provided between As promoter form. per and As the for the areas description As are have construct nature to of to a of be the which conditions taken advertised extent of of the the and of per set in builder Section flat per

fittings in of

organisation take flats, in of should the

disclose area

advertisement including shown the extent if

which extent and and common 4 of Section that and

description the areas MOFA 3 is the are to flat between in the nature, and all

facilities, these required be to

particulars be

signed purchasers. the

agreement shall be

prescribed

:40:

Section necessary the interest relevant which the the to and shall builder. society Clause is is 13 be plot

11 steps organisation in

of

the to of

MOFA, complete persons land and title possession states out not the the to the limit Rule 8

a his his

promoter title

shall and right, and

take convey title execute

all to and all property

the documents of in

building relating or that

to power. the

the Clause residual will of the the not society, to of Rules, FSI be

may Model or the

be

his

of in

Agreement the promoter after lay till

consumed registration

available society it the the 1964. it the of be all the the the MOFA otherwise of take

whereas

registration society for of the and

of

available The fixed of time under the agreed shall, to

registration MOFA that the or cause Company of and/or 16 of where to 1882, the and the

Model by

Agreement and four

states between

unless parties,

otherwise

promoter the transferred right, title society

within or Limited Society and owner

months Company, or Limited interest / Promoter Section except

registration to

to

the

the

Vendor/Lessor/Origianl owners states provided, the in that shall Transfer of the

aliquot its be

part. provisions, in

addition Act,

provisions shall

Property

:41:

effect contained these arising between diluted contrary. Corporation, promoter under purchaser agreement The purchasers covered In Court agreement (Exh.A) cannot the binding ignorance contrary know be the that said the must to

notwithstanding in provisions, from the by When it is follow MOFA be V) in the promoter any the any contract. it is

anything Thus very clear signed the or an are on and flat

to on that under

the the

contrary touchstone the the cannot to by of of rights MOFA be the the the signed the form flat of

agreement and contract plans obligatory the between conformity prescribed agreement separately

purchasers undertaking sanctioned the the part agreement and model State contemplate the

DCR the

developer with by the the not

(Form model to parking instant

Government. the flat but spaces. the the trial model agreement It in and on which the its this are model

does purchase

enclosed stilt parking before of the flat purchaser. was

spaces case Clauses

i.e. the 3-B, deleted PW-1 3-C while and

the

admitted 3-D signing and flat model to

were between

the presumed

developer that of builders sorts of every the

purchaser agreement encash

of nature. and to

the

clauses The

tend of MOFA,

seek the

all provisions

undertakings DCR and

:42:

agreement. undertaking have guarantees MOFA. well-known held flat MOFA that a

When furnished binding

such

is by as it the

the the

requirement flat be

of purchasers contrary

law,

any cannot

effect to is

would flat

to under

the the as is rightly

available There and, the

purchasers the

no therefore,

estoppel the

against trial

statute Court

individual were illegal.

undertakings contrary They to were the

furnished

by

the of to the

purchasers and were

provisions also contrary

DCR. Consequently, such undertakings will not be binding either on the flat purchasers of the Society.

15. Society the bound transfer interests appurtenant was retained were lock initio. and not its was Model within to

In the instant case when the defendant registered Form four the the in and hold by key. As noted on of on 8/10/2003 Agreement, months society buildings favour instead the of the stilt structure totally the the from his along the society. spaces kept and parking void space under promoter the said rights, with Clause was date, title 13 of duty to and land This company which under ab is

with thereto done

plaintiff parking and illegal stilt

enclosed

fabricated This was earlier,

:43:

a obliged carpet additional sell It cannot soon certificate building spaces the other clause binding spaces ceases occupation and registration. purchasers developer purchaser would

common to area of

parking provide the

area the flat / any parcel

available same is area flat of under 350 that purchaser the

and the

the DCR It is or to

developer when is not

is the an to outsider. it As occupation the open of any under it is parking

sq.mtr. he

premises either is part be as and as and society period 13 on cannot to have certificate it will become Furnishing is and refuses be informed an it to of all and is the the be any a the the well to and

authorised any and sale.

Society available issues is

building for the registered,

separate

premises

Corporation society as the stilt

parking become the

spaces, property if

common four not model

amenities months time

is in

provided, the

mentioned form of

agreement, and stilt developer as as

agreement the the same by of the by forced known, an is not

developer. put on title is a sale on

Hence by the issued property undertaking

he the Corporation

as the

soon

society the upon if undertaking,

on

its flat

act is

which

is

by the

the flat he for

commonly furnish such flat

that

the

available

:44:

sale. instant purchaser developers contrary the application Co-operative on form provision developers where flat the occupation and developers the thus the the which to

Asking case is and the

for and nothing that

an

undertaking furnished sort too of by law. promoter for four number of taken in hardly breach comes taken of by

as the

was

sought individual by the Rule submit of the required But by an soon as 8

in

the flat the methods of an the date to this the instance eleven of the

exploitation resorting As to per shall registration months persons flats. invariably across as for that by even the the for years in from

provisions Rules, the

MOFA to

the Society the

Registrar within

minimum have

such is and

society followed one developer have There certificate flat do

has signed are is

steps agreements

purchasers flats.

purchase after

instances issued have any even

Corporation flats, the of and property

purchasers not take Society to

occupied steps for interests

registration together the

Co-operative hold on

their

(except the unsold flats/shops or garages), which they are not entitled in law.

:45:

16. Transfer the property to of that activity entire Greater requirements Rules Having the flat of prevent parking the or be the the and of

Section 5 read with Section 53-A of the Property to the either to Act, contend enclosed third Regulation Regulations development of and the if work the there 1882 that stilt parties No.1(2) apply in any also part does of parking or of to area to not the spaces the the the under DCR permit Societys are members states building the of the other prevail. 1(2) by of the requirements not the and debar or stilt any

developer viz. sold

Society. said

jurisdiction Bombay of

Municipal is and a those

Corporation conflict of shall Regulation furnished between any

Regulations the this

Bye-laws, to the has and Society are the the

Regulations of

regards DCR, purchasers DCRs the spaces

scheme

undertaking to said from property

admittedly surrender undertaking claiming of to

the will that

the

society

of them cannot be offered for sale by the developer at any time.

17.

As per the DCR No.36(5) the location of the

parking spaces has been fixed and the relevant

:46:

provisions read as under:

"The parking spaces may be provided -

(a) within floors." its

underneath stilted

the portion

building, or

in on

basements upper

Whereas DCR located from at any

the

location

of stipulates or rear, if states the

the that but not

garage the at within that "garage" open or on parking but of the of not for

as garage least the 7.5

stipulated may m.

under be away The of detached

No.38(8)(ii) its access side

road,

building. the purpose a of the floor shelter for is one of

Explanation this ground or building, mechanically repairs. reason the the Form its stilt to on

therebelow Regulation, floor the and structure ground intended controlled Thus reject parking on support to sell the the spaces Clause of

term in floor for vehicles location the

means space upper or

plot a of their more that of -

garage the The Model that garages

contentions are 2 the / of garages. the

appellant reliance Agreement it is

appellant V right in

contention covered

recognises also

open

:47:

misplaced. as Agreement garage immaterial stilt amenities. noted Municipal comply is addressed issuance letter Sr.No.6 "surrounding which clear spaces. in is treated be society part to sold or its are that of under deals open the to the car in open / Form

The covered V

stilt

parking and for flat

spaces Clause sale / 2 of

cannot of the

be

termed Model / It open is include of as the to "J"

garages provides to the purchase spaces

covered shop. does not

addition if parking The DCR and the

agreement in to plans upon of the as Engineer certificate and "Conditions the the

common provide car approved the DCR. noted

areas parkings by developer Exhibit

obliges the call

hereinabove Corporation with the letter the

requirements dated

26/3/2002 Executive

hereinabove praying for said comply" regarding terraces" makes car is it

occupation the with spaces, to be spaces the that common separate Developer outsider. caption

in to

the

condition spaces and It from Society car and / of parking it garage the sought cannot which members to be also

parking kept are defendant the stilt open.

required open Therefore, contentions of be by to a the an the

different -

parking right spaces be could of the argued

amenities premises to It any was

:48:

that right could "premises" Section the be Property

the to be

MOFA retain no does 16 of Act, addition Act, the premises dispute not

expressly which on this.

recognises remain

the unsold. However, the

promoters There word spaces". of shall of effect in flat by are, been Oxford set high of above before to spaces the was plans MOFA of means can be

include states where the

"stilt that otherwise of shall

parking the provisions provided, the Transfer take contained by are hit and has per of it was developer the is the the

MOFA except to

said in

provisions and to the

1882 anything

notwithstanding any purchasers the therefore, rightly Dictionary posts the the effect included approved the disposal that any that ground trial that in by contract. and provisions illegal held the support or Court the the the

contrary furnished builder the initio As one that MOFA as

The relied of and by the word a upon

undertakings by 16 void trial "stilt" the of ab Court. means so No the of

Section

building water. by area saleable

evidence /

placed

builder stilt area Corporation. restricted and/or

parking as per Under to garages, in the the

the the extent

Municipal right flats, is shops which is

developers of

which FSI

premises

included

:49:

sold stilt it disposal developer issued illegal developer are

by parking assessable of

the

developer space for three is the

/ not

promoter. included

The in

area the taxes. spaces certificate is a reason parking by FSI

of nor

the is Hence

Corporation parking the occupation or cannot these could be thereafter be stilt

stilt

by

the was

even by and to its the that

before

Corporation by contend which itself that

per for

se the spaces sale,

property

transferred

notwithstanding the undertakings executed by the flat purchasers.

18. reasoned Judge not same of call is

In the premises, I am satisfied that the well judgment the for required and City any to Civil interference be in order Court, in fact passed Great this by er appeal the Mumbai and Hence learned does the this

confirmed.

appeal must fail and the same is hereby dismissed with costs. Interim order stands vacated.

(B.H.MARLAPALLE,J.)

:50:

. operation has appearing of been for

Mr. Naik made an oral application to stay the this opposed the order by for Mr. societies. twelve weeks. Salunke, The the operation This learned of prayer counsel this

order is stayed for a period of four weeks from today.

25/4/2008

(B.H. MARLAPALLE,J)