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2008(5) ALL MR 163
IN THE HIGH COURT OF JUDICATURE AT BOMBA Y
B. H. MARLAPALLE, J.
Nahalchand Laloochand Pvt. Ltd.
V.I.
Panchali Co-op. Hsg. Soc. Ltd.
First Appeal No.2182 of 2007
Decided On: 25th April, 2008.
Parties: Appellant (Nahalchand Laloochand Pvt. Ltd., developer/promoter) filed suit for permanent injunction to restrain respondent (Panchali Co-op. Hsg. Soc. Ltd.) from interfering with possession of 25 stilt parking spaces in building "Panchali". Suit dismissed by trial court; appeal dismissed by High Court. (!) (!) [4000294500002][4000294500017]
Facts: Developer constructed multi-storeyed building with 56 flats and 28 stilt parking spaces per sanctioned plans. Flats sold via agreements; occupation certificate issued 19/8/2002; society registered 8/10/2003. Developer sold 3 parking spaces, retained 25 (enclosed/locked); society allegedly attempted possession. (!) [4000294500002] (!) (!)
Trial Court Issues & Findings (all against appellant): - No absolute right to sell stilt parking spaces. (!) (!) - MOFA and DCR restrict promoter's sale/disposal of parking spaces. (!) (!) (!) (!) - Flat purchasers' undertakings not binding on society, illegal under MOFA/DCR. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) - No forcible possession by society; no injunction entitlement. (!) (!) (!) (!) [4000294500005]
Key Holdings on Appeal: - Parking Obligation: DCR Reg.36 mandates parking spaces for residential tenements (e.g., 1 space per 4 tenements >35 sq.m carpet area). Stilt spaces (unenclosed/covered, FSI-exempt) are compulsory common amenities, not private garages (which count in FSI, taxable). (!) (!) (!) [4000294500011][4000294500012][4000294500016] - Not Sellable by Promoter: Stilt parking ≠ "flat/garage" under MOFA Sec.2(a)/2(c) (!) (!) ; excluded from saleable area. Promoter must disclose common/limited areas (MOFA Sec.3/4), convey land/building to society post-registration (Sec.10/11, Model Form-V Cl.13; Rule 8). (!) (!) (!) (!) (!) (!) (!) [4000294500013][4000294500014] - Undertakings Invalid: Contrary to MOFA Sec.16 (prevails over contracts), DCR; no estoppel against statute. Model agreement deletions (e.g., Cl.3-B/C/D) irrelevant. (!) (!) (!) [4000294500009][4000294500013] - No New Plea: Carpet area argument (flats ≤35 sq.m, no parking needed) rejected; suit based on 535 sq.ft carpet/700 sq.ft built-up; paid-for area exceeds threshold.[4000294500011] - Society's Rights: Post-OC/society registration, parking vests in society as common property; developer loses title.[4000294500014][4000294500016]
Outcome: Appeal dismissed; trial judgment confirmed; costs on appellant. Stay of 4 weeks granted.[4000294500017] (!)
Relevant Provisions: - MOFA: Sec.1(a) "flat" includes garage (!) ; Sec.2(c) "promoter" (!) ; Sec.3(2)(d)/3(m)/4(1A)/10/11/16 (!) (!) (!) (!) (!) (!) . - DCR 1991: Reg.2(47)/(48)/(67) (!) (!) (!) ; Reg.35(2)(f)/36(2)/(5) (!) (!) (!) . - Model Form-V: Cl.2/4/5/11/13/24 (!) (!) (!) (!) (!) (!) . - TPA: Sec.5/53 (!) (!) (!) .
This appeal is directed against the Judgment and Decree passed by the learned Judge of the City Civil Court, Greater Mumbai on 4/4/2007 in S.C. Suit No.1767 of 2004. The said suit was dismissed with costs.
2. The suit was filed by the appellant -company for the following substantial relief:
"That the defendants, office bearers, committee members, members, servants, agents or any other person claiming through them be restrained by an order of permanent injunction of this Hon'ble Court from encroaching upon/trespassing on the suit premises and/or in any manner disturbing/obstructing/interfering with the possession of the plaintiffs in respect of the suit premises i.e. 25 number of parking spaces in the stilt portion of the building by name Panchali, as more particularly shown in the plan annexed at Exhibit "A" hereto, situated at Indraprasta Enclave, N.L. Complex, Anand Nagar, Dahisar (East), Mumbai - 400 068."
3. The plaintiff is a Private Limited Company, representing itself as a developer/ builder/promoter as defined under the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963 (for short the MOFA). It had purchased from the original owners, namely, Anjani Krishna Boritkar and others land bearing CTS Nos.1458 (Pt), 1459 (Pt), 1472 (Pt), 1474 (Pt), 1475 (Pt), 1476 (Pt), 1478 (Pt) and 1482 (Pt) situated in village Dahisar, Taluka Borivali, Mumbai Suburban District and which was declared as excess vacant land by the Additional Collector and Competent Authority (Urban Land Ceiling), Greater Mumbai. The appellant then decided to construct seven multi storeyed buildings and shopping complex on the said land in accordance with the building plans and specification duly approved by the Mumbai Municipal Corporation (the Corporation for short). One of the said seven multi storeyed buildings is by name "Panchali" which has stilt plus seven upper floors having two wings. "A" and "B" with 56 flats (the Building for short). The building has enclosed parking area below the stilt. There are in all 28 stilt parking spaces as per the plans approved by the Corporation. Between February, 2001 to August, 2003, on the basis of the agreements signed between the promoter and the individual flat purchasers, the plaintiff-promoter sold each of the 56 flats and the construction was completed some times in mid 2002. On 19/8/2002 the Corporation issued the occupation certificate. The flat purchasers formed a Co-operative Society, which was registered on or about 8/10/2003 and it was named as "Panchali Co-operative Housing Society". Before the society was registered, three parking spaces were sold and remaining 25 were purportedly in the possession of the plaintiff. It is alleged that on 22/2/2004 the committee members of the society tried to take forcible possession of the remaining 25 parking spaces by breaking open the locks of the appellant. It appears that the plaintiff has enclosed all the parking lots by a collapsible gate/grill door and had locked each one of them. On 2113/2004, even the residents of other buildings also resorted to the similar action. The plaintiff filed police complaints on 11/3/2004 and 22/3/2004 and finally approached the trial court in Civil Suit No. 1767 of 2004 and others. Thus the suit property is 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:-
(a) As per the agreement for sale signed with every flat purchaser, the plaintiff intended to sell either residential flat/stilt parking space/open parking space in the said building on ownership basis.
(b) Each of the flat purchaser had executed a declaration/undertaking at the time of taking over possession of the respective flats in favour of the plaintiff, inter alia to the effect, that each purchaser unconditionally and irrevocably agreed that stilt
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