: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 Hon’ble 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

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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

a

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

The defendant . Rules 1991 restrict the rights of the promoters to sell parking spaces. 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.:6: each his/her/their until the flat purchaser vehicle undertaken in the the same not said is to park property from plaintiff. private 5. of to particularly MOFA and sale plaintiff flats/shops/garages. (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. (b) the D. (c) the undertakings allegedly given by the flat purchasers are not binding on the society .C.society filed Written Statement and opposed the suit on the grounds that.

(d) take spaces entitled for the forcible and. therefore. 6.:7: and in any case such an undertaking is contrary to the provisions of the MOFA and. the defendant possession therefore. 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 . it requires to be declared as illegal and bad in law. reliefs - society of the never the attempted stilt was to parking not plaintiff prayed in the suit.

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

Iyer .D.-4 Colly: Copy of the complaint filed by Defendants society in B. (j) Exh. (g) Exh.-G : Original I.-E (d) Exh.-3 Colly: Copies of tax receipts showing that the Defendants paid municipal taxes.-D (c) Exh.-M Colly: Affidavit of examination in chief of Rajesh Himatlal . : Letter dated 4/3/05 from the Corporation to the plaintiff. (e) Exh. (f) Exh.-1 : Affidavit of examination in chief of Hariharan T. (h) Exh. (m) Exh. : Undertaking executed by one flat owners.-F Colly: Sanctioned plan alongwith forwarding letter dated 19/8/02.:9: brought on record before the trial court and the following documents are relevant for deciding this appeal:- (a) Exh.C.PW 1.DW 1.O. (l) Exh. (i) Exh. : List of documents along with the copies of original documents.-2 (k) Exh.-A : Copy of the agreement dated 27/05/2002.-H Colly: Original letter dated 27/2/01 alongwith approved amended plan. dated 3/5/1997.-5 : Copy of the complaint filed by the Defendants society against the .M.-J : Original office copy of the plaintiff’s letter dated 26/3/02. (b) Exh.

Model Form-V Control bye-laws 2001 framed under the Co-operative Societies Act. challenge would the namely. FLAT Sec.1(a). provisions it of necessary Clauses agreement. Government. of and part an for business forming includes premises Explanation. 1960.:10: plaintiff in Metropolitan Magistrate Court. 7. self-contained intended show-room any garage. 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.- Notwithstanding that provision . on a a apartment. Development MOFA. 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. for godown residence.

to two shall and bathing or be or more deemed conveniences of be premises.:11: is other sets to made for sanitary. constructs or purpose other society includes who different builds or building of persons. as the separate washing.3(2)(d) intends flats. or his and persons.2(c). common premises self-contained. to construct - A such promoter. "promoter" causes of selling or other assignees. Promoter Sec. for be fittings one provided. provided . where who includes the co-operative and person are both. block shall who or constructs building or of - (d) and or amenities more lifts) disclose (including the nature the or of provision to fixtures. association persons term sell Sec. the the to flats or some to means be a constructed person a for of them who block the to apartments or all a company. of and persons.

persons to be the precise to be nature of constituted and the such or are flats. (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. purchaser instalments . (i) including should the the extent area be of of the carpet the shown area of the flat which balconies separately.:12: (h) the and terms organisation to to state organisation which and of persons. passed. governing have the taken conditions who Sec. take title in of is writing. 3(m)(ii)(iii)(iv) - (m) disclose following when inter alia the in flats the are advertised advertisement for sale. including areas the and separately. the namely:- particulars. and thereof the may paid.

(iv) limited common the nature. (1A) sub-section particulars to copies (b).:13: (iii) the the common nature.4(1A)(a)(iii)(iv). areas extent and and facilities description if of any. (iv) the price of the flat including the . 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.such of The (1) as agreement shall specified to contain in be inter clause shall (a). Sec. areas extent and and description of facilities.

been be. persons society promoter submit registration who or. 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 . and may the be Sec. be price which paid at by of should the which the be purchaser instalments common shown of flat. thereof areas and separately. as take the an of or shall 10 required a (1) to As soon as form a minimum a flats. of promoter which for the this promoter accordance have not of may such society membership case section to with a be. in as have the to the taken prescribed Registrar of organisation a as a respect taken. the the right in the case shall Co-operative company.:14: proportionate facilities to intervals paid. number of Co-operative the period for persons society and the the flats application or Nothing as in the flats this in Act. co-operative a company. company within application the flats may join.

promoter defined any co-operative society Sec. the submits such property to the Maharashtra by as provided shall in Act. Declaration the as Societies such cases. 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. it shall not the 1960. 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 . be or executing by inform Apartment and that the Maharashtra accordingly. steps organisation is or registered as a of right. to of 11. therefor executed the upon. 1970.:15: and provisions Ownership registering Act Registrar Co-operative and form in then the promoter of Act. co-operative or apartment in relevant the land aforesaid. either company flat title and and execute accordance flats. lawful to company. or association his building.

:16: which may be in his possession or power. Clause purchase hereby Flat of (which on hereto .... area inclusive as shown and open (herein Flat Purchaser and Flat of the .. for Floor from agrees No... and shall take effect notwithstanding anything to the contrary contained in any contract.. of the model form of agreement...../ .The provisions of this Act..... the "the including admeasuring of in marked Garage referred price of the the plan D/shop in as annexed covered/ Annexure No.Building Flat") Rs. Clauses FORM-V..metres of balconies) thereof No.... the area floor hereby the Purchaser Type agrees to Promoter the Promoter one .......... except where otherwise provided... Sec... the being proportionate price of . carpet is 2: The the to sell .. 1882.......... to Rs........16...... sq... shall be in addition to the provisions of the Transfer of Property Act.

common premises. space floor property then index has utilised the Promoter all such by land index way of him.. the in floor flat respect space the any or index. index elsewhere.:17: the the description and described written. 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.. 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 .. of facilities in area the the which the and facilities nature..mtrs. said the floor Promoter In been space index elsewhere case the by whatsoever.. is the by ...

:18: the residual layout promoter Whereas residual the Promoter F. not till after F. in or encumbrances.R. shall. to the before flat possession any conveyance/ favour the the land the true the any. consumed the will available of registration registration (F.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. plot or to the the be society available The the the society.A. to the (F.S. 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.I) Flat in be the Purchaser.R. claim and execution lease of body corporate of to referred Company"). the to society.A. title. over the interest said party .S.

to the or . 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. or parking or business. space for carrying He only for the Flat shall the parking Purchaser’s Clause by shall.: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. 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. the lease execution of of of the the a said said Company.

if any.: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. The said terrace shall not be enclosed by the Flat Purchaser till the permission in writing is . 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.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. favour the of terms assignment with the Clause 24 .

or as the case may be. the Limited Company.In the following sections "transfer of property" means an act by which a living person conveys property."Transfer of property" defined. of any force by transfer associations . to one or more other living persons. incorporated contained being to or in shall affect relating companies. read as under:- Sections 5 and 53 of the Transfer of Property 5.. company whether herein time property bodies or In this section or or "living body not. . Act. and "to transfer property" is to perform such act.:21: obtained from the concerned local authority and the Promoter or the Society. person" of but law to includes a association individuals. . nothing for the of or individuals. in present or in future. or to himself and one or more other living persons.

: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. a applied a made of on A suit instituted by whether of a 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. 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. (2) Every transfer of immovable property made . include not avoid been creditors instituted of. . or the for the creditors. .

1991. other roads. sewerage. works parks. supply. street and supply. gardens. services and .:23: without subsequent option consideration transferee of with shall intent be such to voidable defraud at a the transferee. consideration was 8. grounds. notification published for Greater The Government of Maharashtra by its dated the 20/2/1991 Development Bombay. 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. streets. open play electric drainage. "Amenity" means recreational water lighting.2 and (DCR) defines certain terms and the relevant of those for the present consideration are reproduced as under:- 2(7) spaces. utilities. public conveniences. grounds. Control Regulation has sanctioned Regulations No. .

if any. purpose. 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. etc.. structure. or tanks "Building" with whether and any used includes - means materials for a whatsoever human foundation. 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. intended to balconies. but excepting the areas excluded specifically under these Regulations.:24: 2(11) constructed any or walls enclosing space. not. 2(31) building not "External wall" a means party an wall outer even wall of a being though . chemicals. for habitation plinth. wall or of verandas.

garage. parking servicing. "Garage-Public" designed operated for storing or means other for a than gain. interior 2(47) portion parking thereof "Garage-Private" designed of means and a used building for or a the vehicles. Parking connecting permitting driveway and of . or vehicles.:25: adjoining means space a a wall wall of of abutting another on an any building and also open building. space" means open an area enclosed sufficient spaces them ingress with or in shall a or vehicles. 2(48) portion private and/or selling other or thereof. 2(67) unenclosed size be street egress served or to by "Parking covered park a alley or vehicles. used repairing. building as or a designed hiring. motor-driven 2(64) integral part of "Open a space" site means left an open area to forming the an sky.

Floor Space Index Computation.... (c) . means or an a independent cooking dwelling alcove. 36...... ...(1) .....The following shall not be counted towards FSI:- (a) ......redeveloped. (b) . developed or Parking spaces... Wherever parking a property spaces is at .... (e) ..... (f) Area of unenclosed but covered parking spaces as provided in clause (b) (i) of sub-regulation (5) of Regulation 36. Regulations 35 (2) and 36 read as under:- 35. (2) Exclusion from FSI computation ..:26: 2(91) unit with "Tenement" a kitchen... (d) ..

5 m.. or on upper floors.m.5 m x 5.75 m.5 m. sq.4 3. 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.(i) Types.The parking spaces mentioned below include parking spaces in basements or on a floor supported by stilts. (1) General Space Requirements. x 7. 3 sq. 1.provided The shall minimum be sizes as below:- spaces (a) Motor vehicle (b) Scooter.m. (ii) of shown parking Size of Parking to be Space. Motor-cycle (c) Bicycle 2.:27: the be existing scale provided. (d) Transport Vehicle . covered or uncovered spaces in the plot and lock-up garages.

(b) sq. .m.. (2) Quantitative Requirements . (iv) .:28: (iii) Marking of Parking Spaces . but 2 tenements not with carpet 70 area sq. 1. exceeding .. (v) ...Parking spaces shall be paved and clearly marked for different types of vehicles.m. any fractional space of more than half resulting from the ratios in column (3) thereof being rounded off upward to the nearest integer...m.Parking spaces for four wheeled auto vehicles shall be provided as in Table 15 below.. exceeding 45 each. Suburbs and Extended Suburbs: (a) sq. 4 tenements having carpet area above 35 each.(B) In the rest of the Island City area...Four wheeled auto-vehicles.. Residential .

its underneath stilted the portion. building. 1 tenement with carpet area exceeding 70 (5) The parking Parking Spaces.0 parking m.:29: (c) sq.m. but not in the amenity open spaces. or in on basements upper (b) in the side and rear open spaces. (ii) they do not consume more than 50 percent of the open space. (iii) building manocuverability is a minimum kept distance free of of of 3.spaces Where may to be be accommodatedprovided - (a) within floors. if - (i) they are unenclosed but uncovered except as provided in (d) below. for around the proper vehicles. .

buildings...- Requirements of parts of buildings - (1) . beyond open the spaces Regulation sub-regulation conditions Here unenclosed of sub-rule parking covered (b) space space. (i) Main Building... satisfied.. from covered the road garages...... above may if are be in side in other a residential and rear 2 under zone..These shall be raised ...5 m.. 38.. detached (v) of the the Chief high parking Fire layouts Officer rise in meet the the requirements case of special multi-storeyed. an the (d) ... covered parking spaces and garages.... (ii) Interior court-yards... Plinth...:30: (iv) boundary in they case are of atleast 7. ... and (c) compulsory stipulated 26.

29.. 700 from sq. Exh.. the to applicable The clause Exh..700/flat 31/5/2002.W.29...3-A refers of amount of to 535 carpet There of is price sq.. as .ft.ft..3-B. therein The in Exh.. in his cross-examination before the trial court. 1 . 3-C and 3-D are deleted.. area.I.Rajesh Himatlal... 9.700/agreement mentioned referred It refers of parking in in to dated referred in 27/5/2002 The 3-B built is up in area. Clause no.K.. I as K is cannot up of referred built reference area 1/5/2002 of Rs. respect a no.. P.10...A area not area.S. of Rs.:31: at least 15 cm above the surrounding ground level and shall be satisfactorily drained.10. no stilt consumption F.... clause area.ft. for as of 700 carpet sq. admitted as under:- "The not say or referred whether super reference therein it built is is up.

Shri Hariharan T. flat...society.. the Secretary of the respondent . Undertaking paper.. Exh. . 1 . D... possession building constructed May. in his cross-examination. 10."E" have incorrect never advocate. by me in on a The my proper stamp name..... in my In The flat June in 2002 the I was 2002....... admitted as under:- "I defendant-society got completely have in of purchased May my 2002.. Iyer.:32: agreement mentioned is in in respect of sale clause of a flat 3-A. It of notary stamp paper I is Exh.W..."E" that the undertaking. It was not to appeared is is not purchased signed say executed registered.E or Exh..J as plan". deponent before It parking shown is space true is in that required as per to clause be the 6-C kept of open Exh.

2003....:33: Since month take May.. The executed the purchasers was I by flat plaintiff disclosed in by but read of all including till one the plaint. undertaking purchasers say that.. 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. 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.. challenge purchasers.. I am secretary of the defendant-society from October/November. executed members who are . received the copy flat to to flat undertaking We executed It we have received the correct decided the undertakings myself.. today. as I do not know the contents thereof.. for possession I making wanted some time of approximately I could month a not of 2002. balance my flat payment...

built municipality flat by occupied any of the the up mentioned is true is area area has that in super my agreement. It is flat. .. members by other them. flat property respect members except paid flats paying area respective occupation. in this Appeal are. built in up my flat.. each no area where of it my is far. 11. All the members are flat purchasers of the defendant society.:34: defendant society.. taxes. 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. It executed society by is true the that developer till there in is favour no of conveyance the today"... The main issues that arise for consideration (a) Whether the plaintiff-company has the .

12. made taken effect provide of upto scheme that Sq. the model agreement prescribed by the State Government under the same and the Development Control Regulations.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 . 1991.: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. 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.

of not The Rajesh the less 70 the sq. 350 defendant sq. i.mtrs. area two by exceeds 45 tenements parking carpet have area Panchali upto 35 one of provided exceeds space.e. 700 carpet about 350 per built carpet around can area of stretch new by sq.f.ft.. The sq.mtrs.mtrs.ft.700/as mentioned states clause sq.ft. The between be different area 400 be to be one the and less if than the 70 spaced area carpet sq.mtrs.mtrs.ft.. made out in the . and by Thus Counsel and to the no a this totally appeal 20 the of is sq. 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.. 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. dated 535 area.:36: four sq.ft.t. In 56 than the flats builder. will In tenement case tenements sq. the for a that 3(b) 700 agreement of carpet approximately of of the 700 conceded area.ft. of in that sq.29.10. each instant / 35 Director 1) admitted parking any is building sq.mtrs. sq. that would the be it sought tenements but have case must the carpet in or the his the area 27/5/2002.

e. on and if such a the plea same the that area.ft. cent. Regulation or parking . of 700 far-fetched paid sq.ft. the for i. treated area parking available 2(67) an sufficient Regulation means area per "Parking covered vehicles.ft. when carpet The area is company. space" or As means and a used building for the which open a off cannot garage as be and. 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. basis and of it state sq. 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. parking entitled way open members defines unenclosed park "Garrage-Private" thereof designed of space of space to It is the plaintiff’s case that the stilt is dispose sale and or the it it common society. 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.:37: trial with is have 350 on sq. carpet was taken could up have Even the area suit each sq. plea and company Court.ft.

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. were that parking Regulations to will space this an be only wherever spaces shall existing redeveloped. but per space open the cannot area DCR is in parking DCR 35(2)(f) parking either be of a parking enclosed building. and in size the out . were fabricated be is scale provided. the with the apply compulsory DCR parking case. spaces the the area a also the covered parking or that as a as the tax. admitted FSI for garage tax.:38: Surely unenclosed. parking DCR or 36 spaces states However. to charged of in 36. is excluded the Similarly property to unenclosed clause In unenclosed structure enclosed. from 35(2)(f). in are requirements these made down additions parking to of the building use to is additional but changed. developed laid When new reference whole where requirement 36. provide for of set concession Thus parking DCR it Under has clause also been (ii) 36(1). 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.

which provided between As promoter form.:39: as required under DCR 36(2) for 56 flats. the flats terms to the or nature and and who are the the area separately. and all facilities. purchasers in agreement promoter the are sale. facilities. and writing persons to such to be constructs shall amenities the to passed. limited Section out the / 4(1). provided. common and any. 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. carpet is of Section 3(2) of the MOFA states that a who flats. building fixtures. 28 parking spaces (unenclosed but covered) have been provided. these required be to particulars be signed purchasers. 14. the agreement shall be prescribed . promoter. organisation title governing or for the balconies nature. 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. be and of when the flat be of or intends disclose provided precise constituted the person.

the the Clause residual will of the the not society. to registration MOFA that the or cause Company of and/or 16 of where to 1882. the in that shall Transfer of the aliquot its be part. and take convey title execute all to and all property the documents of in building relating or that to power. the and the Model by Agreement and four states between unless parties. complete persons land and title possession states out not the the to the limit Rule 8 a his his promoter title shall and right. provisions. in addition Act. FSI be may Model or the be his 4 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. or Limited interest / Promoter Section except registration to to the the Vendor/Lessor/Origianl owners states provided. otherwise promoter the transferred right. society Clause is is 13 be plot 11 steps organisation in of the to of MOFA. provisions shall Property . to of Rules. title society within or Limited Society and owner months Company.:40: Section necessary the interest relevant which the the to and shall builder.

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. promoter under purchaser agreement The purchasers covered In Court agreement (Exh. the 3-B. seek the all provisions undertakings DCR and . the flat but spaces.:41: effect contained these arising between diluted contrary. Corporation. 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. 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. was spaces case Clauses i.e.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. and to the clauses The tend of MOFA.

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.:42: agreement. months society buildings favour instead the of the stilt structure totally the the from his along the society. any cannot effect to is would flat to under the the as is rightly available There and. undertaking have guarantees MOFA. As noted on of on 8/10/2003 Agreement. estoppel the against trial statute Court individual were illegal. . 15. such undertakings will not be binding either on the flat purchasers of the Society. the purchasers the no therefore. undertakings contrary They to were the furnished by the of to the purchasers and were provisions also contrary DCR. spaces kept and parking void space under promoter the said rights. Consequently. 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. with Clause was date. and not its was Model within to In the instant case when the defendant registered Form four the the in and hold by key. Society the bound transfer interests appurtenant was retained were lock initio.

on its flat act is which is by the the flat he for commonly furnish such flat that the available . and stilt developer as as agreement the the same by of the by forced known. put on title is a sale on Hence by the issued property undertaking he the Corporation as the soon society the upon if undertaking. an is not developer. property if common four not model amenities months time is in provided. separate premises Corporation society as the stilt parking become the spaces. 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. the mentioned form of agreement. Society available issues is building for the registered.mtr. it As occupation the open of any under it is parking sq.:43: a obliged carpet additional sell It cannot soon certificate building spaces the other clause binding spaces ceases occupation and registration. 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.

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. 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. 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. purchase after instances issued have any even Corporation flats.:44: sale. invariably across as for that by even the the for years in from provisions Rules. . which they are not entitled in law. 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).

sold Society. to the has and Society are the the Regulations of regards DCR. 1(2) by of the requirements not the and debar or stilt any developer viz.36(5) the location of the parking spaces has been fixed and the relevant . 17.1(2) apply in any also part does of parking or of to area to not the spaces the the the under DCR permit Society’s are members states building the of the other prevail.: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. 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. contend enclosed third Regulation Regulations development of and the if work the there 1882 that stilt parties No. said jurisdiction Bombay of Municipal is and a those Corporation conflict of shall Regulation furnished between any Regulations the this Bye-laws. As per the DCR No.

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. or in on basements upper Whereas DCR located from at any the location of stipulates or rear." its underneath stilted the portion building. the appellant reliance Agreement it is appellant V right in contention covered recognises also open . building. reason the the Form its stilt to on therebelow Regulation.38(8)(ii) its access side road. 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. the purpose a of the floor shelter for is one of Explanation this ground or building.:46: provisions read as under: "The parking spaces may be provided - (a) within floors. under be away The of detached No. mechanically repairs.

to be spaces the that common separate Developer outsider. contentions of be by to a the an the different - parking right spaces be could of the argued amenities premises to It any was . 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.6 "surrounding which clear spaces. 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.No. 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. as Agreement garage immaterial stilt amenities.:47: misplaced. 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 Municipal comply is addressed issuance letter Sr. required open Therefore.

However. the premises dispute not expressly which on this. by area saleable evidence / placed builder stilt area Corporation. rightly Dictionary posts the the effect included approved the disposal that any that ground trial that in by contract. of shall of effect in flat by are. recognises remain the unsold.:48: that right could "premises" Section the be Property the to be MOFA retain no does 16 of Act. is shops which is developer’s of which FSI premises included . 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. restricted and/or parking as per Under to garages. the promoter’s There word spaces". addition Act. means so No the of Section building water. in the the the the extent Municipal right flats. 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. 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.

Interim order stands vacated. 18.:49: sold stilt it disposal developer issued illegal developer are by parking assessable of the developer space for three is the / not promoter. property transferred notwithstanding the undertakings executed by the flat purchasers.H.MARLAPALLE.) . in fact passed Great this by er appeal the Mumbai and Hence learned does the this confirmed. 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.J. reasoned Judge not same of call is In the premises. appeal must fail and the same is hereby dismissed with costs. (B. I am satisfied that the well judgment the for required and City any to Civil interference be in order Court. included The in area the taxes.

H. MARLAPALLE. Salunke. 25/4/2008 (B. Naik made an oral application to stay the this opposed the order by for Mr. The the operation This learned of prayer counsel this order is stayed for a period of four weeks from today.:50: . societies.J) . operation has appearing of been for Mr. twelve weeks.

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