Nahalchand Laloochand Pvt. Ltd. vs Panchali Co-operative Housing Society Ltd.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2010 Supreme(SC) 801

Supreme Court of India
THE HONOURABLE MR. JUSTICE R.M. LODHA & THE HONOURABLE MR. JUSTICE A.K. PATNAIK
Nahalchand Laloochand Pvt. Ltd.
Versus
Panchali Co-operative Housing Society Ltd.
CIVIL APPEAL NO. 2544 OF 2010 WITH CIVIL APPEAL NO. 2545 OF 2010 CIVIL APPEAL NO. 2546 OF 2010 CIVIL APPEAL NO. 2547 OF 2010 CIVIL APPEAL NO. 2548 OF 2010 CIVIL APPEAL NO. 2449 OF 2010 CIVIL APPEAL NO. 2456 OF 2010
Decided on : 31-08-2010

Advocates appeared:
For the Appearing Parties:Pravin K. Samdani, Neeraj Kumar Jain, Senior Advocates, Tanmay Mehta, Kush Chaturvedi (for Vikas Mehta), Mahesh Agarwal, E.C. Agrawala, Rahul Dwarkadas, Gaurav Goel, Ms. Neha Aggarwal, Ms. Deepti, Ms. Pragya, Gaurav Aggarwal (for Mrs. Manik Karanjawala), Umesh Shetty, Nitin Bhardwaj, Pratham Kant, J.N. Solanki, Umang Shankar, Buddy A. Ranganadhan, A.V. Rangam, Praveen Chaturvedi, Ms. Aparna Jha, Advocates.

Headnote:(a) Words and Phrases – Flat – In its natural and ordinary meaning, `flat’ is a self contained set of premises structurally divided and separately owned for dwelling. (Para 23)
       63 T.L.R. 62 – Referred
       (b) Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 – Section 2(a-1) – Flat – Must be a separate unit capable of being used for residence, office, showroom, shop, godown or for industrial or business purposes – Self contained means having basic amenities: (a) sanitary; (b) washing, bathing and (c) other conveniences (cooking etc.) for the use of its occupant/s – A unit or accommodation to fit in the definition of `flat’ must meet twin-test namely: (i) self contained test and (ii) user test. (Para 28)
       (c) Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 – Section 2(a-1) – Flat – Bracketed expression ‘(and includes a garage)’ – Interpretation –Scope of the bracketed phrase has to be seen in the context of the definition given to the word `flat’ being true indication of intent of the legislature – Stand alone `garage’ or, `garage’ as an independent unit by itself – Is not a `flat’. (Para 29)
       AIR 1972 Bombay 343 – Not correct law
       (d) Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 – Section 2(a-1) r/w condition No. 2 Form V of Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Etc.) Rules, 1964 – Open parking space, uncovered and unenclosed, does not tantamount to ‘garage’ – `Garage’ is a place having a roof and walls on three sides – Meaning of ‘garage’ is not affected by a Model Form V appended to the 1964 Rules – Stilted portion or stilt area although usable as parking space, is not garage – Hence not sellable independently as a flat or along with a flat. (Para 35, 36, 37)
       (e) Maharashtra Apartment Ownership Act, 1970 – Section 3(f) – Common areas and facilities – Scheme and object of MOFA – Act not anything contrary to section 3(f) of MAOA – Parking areas (open to sky or Stilted portion) form common areas and facilities. (Para 37)
       (f) Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 – Section 2(a-1) – Right of promoters – To sell only flat within the meaning of section 2(a-1) – Promoters have no right to sell open space or stilted portion – transfer of property Act, 1882 – Section 6 – Constitution of India – Article 300A. (Para 40)
       (2006) 10 SCC 452; (2008) 5 SCC 176; (2008) 4 SCC 144 – Distinguished impliedly
       Facts of the case:
       Nahalchand Laloochand Private Limited is a Private Limited Company. As a promoter, it developd few properties in Anand Nagar, Dahisar (East), Mumbai and entered into agreements for sale of flats with flat purchasers. The flat purchasers are members of Panchali Co-operative Housing Society Ltd.. The promoter filed a suit before the Bombay City Civil Court, Bombay for permanent injunction restraining the Society (defendant) from encroaching upon, trespassing and/or in any manner disturbing, obstructing, interfering with its possession in respect of 25 parking spaces in the stilt portion of the building.
       The trial court dismissed the suit with costs.
       The promoter preferred first appeal before the High Court which was dismissed.
       Finding of the Court:
       There is no infirmity in the impugned judgment.
       Result:
       Appeals dismissed.

Judgement Key Points

No, the provided legal document does not reference or contain any subsequent judgments similar to the core issues addressed, such as the definition of 'flat' under Section 2(a-1) of MOFA, the status of stilt or open parking spaces as garages, or their classification as common areas and facilities. (!) (!) (!) (!) (!) (!) (!) (!) (!) The document itself is a 2010 Supreme Court decision analyzing promoter rights, parking spaces, and MOFA provisions, with references only to prior decisions or statutes like the Constitution, MOFA, MAOA, DCR, and TP Act. (!) (!) (!) (!) (!) (!) (!) No later case law is cited or discussed within it. (!) [1000488010040]

Judgment :-

R.M. Lodha, J.

Of these seven appeals which arise from the judgment dated April 25, 2008 passed by the High Court of Judicature at Bombay (Appellate Jurisdiction), five are at the instance of the original plaintiff and the other two are by the parties, who were not parties to the proceedings before the High Court or the trial court but they are aggrieved by the findings recorded by the High Court as they claim that these findings are affecting their rights.

The facts:

2. Few important questions of law arise in this group of appeals. It will be convenient to formulate the questions after we set out the material facts and the contentions of the parties. The narration of brief facts from S.C. Suit No. 1767 of 2004 will suffice for consideration of these appeals. Nahalchand Laloochand Private Limited is a Private Limited Company. As a promoter, it developd few properties in Anand Nagar, Dahisar (East), Mumbai and entered into agreements for sale of flats with flat purchasers. The flat purchasers are members of Panchali Co-operative Housing Society Ltd. (for short, `the Society'). The promoter filed a suit before the Bombay City Civil Court, Bombay for permanent injunction restraining the Society (defendant) from encroaching upon, trespassing and/or in any manner disturbing, obstructing, interfering with its possession in respect of 25 parking spaces in the stilt portion of the building. The promoter set up the case in the plaint that under the agreements for sale it has sold flats in its building and each flat purchaser has right in respect of the flat sold to him and to no other portion. It was averred in the plaint that each flat purchaser has executed a declaration/undertaking in its favour to the effect that stilt parking spaces/open parking spaces shown in the plan exclusively belong to the promoter and that the declarant has no objection to the sale of such spaces by it. The defendant (Society) traversed the claim and set up the plea that the promoter has no right to sell or dispose of spaces in the stilt portion and that the undertakings given by the flat purchasers are not binding being contrary to law and based on such undertakings, the promoter has not acquired any right to sell stilt parking spaces.

3. The parties let in evidence (oral as well as documentary) in support of their respective case.

4. On April 4, 2007, the Presiding Judge, City Civil Court, Greater Bombay dismissed the suit with costs.

5. The promoter preferred first appeal before the High Court which was dismissed on April 25, 2008.

6. For brevity, we shall describe Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 as `MOFA', Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Etc.) Rules, 1964 as `1964 Rules', Development Control Regulations for Greater Bombay, 1991 as `DCR', Maharashtra Apartment Ownership Act, 1970 as `MAOA', The Maharashtra Regional and Town Planning Act, 1966 as `MRTP Act' and Transfer of Property Act as `T.P. Act'.

The summary of findings recording by the High Court:

7. While dismissing the appeal, the High Court recorded the following findings :

7 The carpet area of any of the 56 flats/tenements in Panchali building is not less than 35 sq. mtrs.

7 The parking space either enclosed or unenclosed, covered or open cannot be a `building'.

7 It is compulsory requirement to provide for parking spaces under DCR.

7 It is obligatory on the part of the promoter to follow the DCR. The agreement signed under MOFA between the developer and the flat purchaser must be in conformity with the model form of agreement (Form V) prescribed by the State Government.

7 The model agreement does not contemplate the flat purchasers to separately purchase the stilt parking spaces.

7 The rights arising from the agreement signed under the MOFA between the promoter and the flat purchasers cannot be diluted by any contract or an undertaking to the contrary. The unde

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2010 Supreme(SC) 801

Cases Referred (3)