2010 (8) TMI 816 - SC - Indian Laws

Whether stand alone garage or in other words garage as an independent unit by itself is a flat within the meaning of Section 2(a-1) of MOFA? - Held that - Stand alone garage or in other words garage as an independent unit by itself is not a flat within the meaning of Section 2(a-1) and we answer question (i) in the negative. Whether stilt parking space/open parking space of a building regulated by MOFA is a garage ? - Held that - For the purposes of MOFA, and particularly Section 2(a-1), the term garage must be considered as would be understood by a flat purchaser and such person would contemplate garage which has a roof and wall on three sides. Our answer to question No. (ii) is, therefore, no. Whether stilt parking spaces are part of common areas and facilities ? - Held that - Although there is some merit in the contention of the appellant that High Court erred in placing reliance on the two aspects namely, that the area of stilt parking space is not included in the FSI and such area is not assessable to the corporation taxes - in reaching the conclusion that stilt parking space is part of common areas but in our view even if these two aspects are excluded, in what we have discussed above stilt parking space/open parking space of a building regulated by MOFA is nothing but a part of common areas and, accordingly, we answer question no. (iii) in the affirmative. What are the rights of the promoter vis- -vis society (of flat purchasers) in respect of open parking space/s / stilt parking space/s? - Held that - As a necessary corollary to the answers given by us to question nos. (i) to (iii), it must be held that stilt parking space/s being part of common areas of the building developed by the promoter, the only right that the promoter has, is to charge the cost thereof in proportion to the carpet area of the flat from each flat purchaser. Such stilt parking space being neither flat under Section 2(a-1) nor garage within the meaning of that provision is not sellable at all.

Issues Involved:
1. Whether a stand-alone 'garage' is a 'flat' within the meaning of Section 2(a-1) of MOFA.
2. Whether stilt parking space/open parking space is a 'garage'.
3. Whether stilt parking space/open parking space is part of 'common areas and facilities'.
4. Rights of the promoter vis-`a-vis society in respect of stilt parking spaces.

Detailed Analysis:

1. Whether a Stand-Alone 'Garage' is a 'Flat' within the Meaning of Section 2(a-1) of MOFA:
The court examined the definition of 'flat' under Section 2(a-1) of MOFA, which includes a separate and self-contained set of premises used for residence, office, showroom, shop, godown, or for carrying on any industry or business (and includes a garage). The court concluded that the term 'flat' must be a separate unit conforming to the description capable of being used for one of these purposes. The bracketed phrase '(and includes a garage)' does not bring in 'garage' by itself within the meaning of the word 'flat'. The court stated that if a stand-alone 'garage' were intended to be a 'flat', it would have been explicitly mentioned. Therefore, a stand-alone 'garage' is not a 'flat' within the meaning of Section 2(a-1) of MOFA.

2. Whether Stilt Parking Space/Open Parking Space is a 'Garage':
The court noted that the term 'garage' is not defined in MOFA and referred to various dictionary definitions and legal interpretations. A 'garage' generally means a building for housing a motor vehicle or vehicles. The court concluded that an open parking space does not qualify as a 'garage' within the meaning of Section 2(a-1). A 'garage' must have a roof and walls on three sides. The court held that stilt parking spaces, which are open on multiple sides, do not meet this definition and therefore cannot be considered 'garages'.

3. Whether Stilt Parking Space/Open Parking Space is Part of 'Common Areas and Facilities':
The court referred to the definition of 'common areas and facilities' under Section 3(f) of the Maharashtra Apartment Ownership Act (MAOA), which includes parking areas. The court found no justifiable reason to exclude parking areas from the purview of 'common areas and facilities' under MOFA. The court rejected the argument that the promoter could exclude parking spaces from 'common areas' by not prescribing them as such. The court concluded that stilt parking spaces are part of 'common areas and facilities' under MOFA.

4. Rights of the Promoter vis-`a-vis Society in Respect of Stilt Parking Spaces:
The court held that since stilt parking spaces are part of 'common areas', the promoter has no right to sell them independently. The only right the promoter has is to charge the cost of common areas in proportion to the carpet area of the flat from each flat purchaser. The court emphasized that MOFA restricts the rights of the promoter in the building constructed for flats, and the entire land and building must be conveyed to the organization of flat purchasers. The promoter cannot sell 'stilt parking spaces' as they are not 'flats' nor appurtenant or attachment to a 'flat'.

Conclusion:
The appeals were dismissed, affirming that stilt parking spaces are part of the common areas and cannot be sold independently by the promoter. The court upheld the High Court's finding that such undertakings by flat purchasers are not binding.

← Previous Next →