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2022 Supreme(Bom) 956
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sandeep K. Shinde, J.
Goel Ganga Foundation – Petitioner
Versus
Federation of Swarganga Co.op. Society Limited and Ors. – Respondents
Writ Petition No. 2523 of 2022
Decided On : 27-09-2022
Advocate Appeared:
For the Petitioner:Mr. Girish Godbole, Senior Advocate a/w. Mr. Saket Mone a/w. Mr. Shrey Shah i/b. Vidhii Partners
For the Respondent:Mr. Ranjeet Thorat, Senior Advocate i/b. Mr. Prashant Darandale for Ms. Aksha Hudda i/b. Hudda and Associates
Stilt parking spaces are part of common areas and can only be used by flat purchasers, not by third parties. Actions that cause inconvenience and nuisance to others may be considered an abuse of process of law.
Headnote:
MOFA - Dispute over stilt parking spaces - Maharashtra Ownership of Flats Act, 1963 - Section 2(c), Section 3(f) - The court discussed the rights of the promoter over stilt parking spaces and common areas, the exclusive rights of flat purchasers, and the legal enforceability of the allotment of parking spaces to the plaintiffs. The court emphasized that stilt parking spaces are part of common areas and can only be used by flat purchasers, not by third parties. The court also highlighted the abuse of process of law by the plaintiffs and the promoter in depriving the defendants of their rights over the common spaces.
Fact of the Case:
The plaintiffs, a school, sought injunction against the defendants to use stilt parking spaces. The trial court temporarily restrained the defendants, but the order was set aside by the district judge. The plaintiffs claimed the exclusive right to use 110 stilt parking spaces, while the defendants argued that the allotment was illegal and caused nuisance.
Finding of the Court:
The court found that the plaintiffs did not have legally enforceable rights over the parking spaces and had not made out a prima facie case. It also noted that the plaintiffs' actions caused inconvenience and nuisance to the defendants, and the allotment of parking spaces was an abuse of process of law.
Issues: Dispute over the use of stilt parking spaces, legal enforceability of the allotment, abuse of process of law, inconvenience caused to the defendants.
Ratio Decidendi: Stilt parking spaces are part of common areas and can only be used by flat purchasers. The plaintiffs did not have legally enforceable rights over the parking spaces, and their actions caused inconvenience and nuisance to the defendants.
Final Decision: The writ petition was dismissed, and the plaintiffs were ordered to pay exemplary costs to the defendants. The request for interim relief was rejected.
JUDGMENT :
Maharashtra Ownership of Flats (Regulation of Promotion, Construction Sale, Management and Transfer) Act, 1963 (“MOFA” for short)was enacted by the Maharashtra Legislature, as it was found that builders/developers/promoters were indulging into malpractices in the sale and transfer of flats and flat purchasers who were being exploited.
2. Here, is the case where Developer-defendant no.14, has given complete go-by to the object of the MOFA, by all possible means at his command.
3. Appellants-Plaintiffs run and manages international school. It instituted suit simplicitor for injunction. Pending suit, Trial Court vide order dated 18th July 2019, temporarily restrained defendants 1 to 13, their members, from blocking the entry gate and obstructing Plaintiff School, its employees, and visitors from parking their vehicles in the parking lots and further restrained from disturbing peaceful possession of the plaintiffs over 110 stilt parking spaces, more particularly set-out in Annexure-A to the plaint.
4. In Misc. Civil Appeal No. 327/2019 vide order dated 31st March, 2021, learned District Judge set aside order of temporary injunction and thereby rejected the application, for temporary injunction, moved by the plaintiffs. That order is challenged in this petition. For the sake of brevity, hereinafter the appellants and respondents shall be referred as per their original nomenclature as “plaintiffs” and “defendants”.
5. Facts essential for decision of this petition, are as under :
Plaintiffs, a Company limited by a guarantee, run “Goyal Ganga International School”, upto 12th standard, in the premises consisting of ground plus five floors, area admeasuring 37,711 sq.ft., plus covered parking area 4820 sq.ft, on the land Survey No.174-A (pt), 175-A (pt), 176-A (pt) and 177-A (pt) situated at Pimpri Waghire, within the limits of Municipal Corporation (hereinafter called “the School building” for short).
6. The school building was constructed by, M/s. Goyal Ganga Constructions-defendant no.14, who, vide leave and license agreement dated 30th September, 2014, granted license to Plaintiffs-School, to use the said building, for five years, from April, 2014 to March, 2019 at license fee Rs.45/-per sq.ft, per month.
7. Plaintiffs is Company limited by guarantee; of which Shri. Jayprakash Sitaram Goyal is/was one of the Directors; whereas M/s. Goyal Ganga Constructions-defendant no.14 is a firm of which, Mr. Ameet Jayprakash Goyal is a partner. Thus, plaintiffs and defendant no.14 are closely held family managed entities.
8. Evidently, M/s. Goyal Ganga Constructions-defendant no.14, is a 'Promoter', within the meaning of Section 2(c) of the Ownership Flats Act, 1962.
9. The Land Survey No.174-A(pt), 175-1 (pt), 176-A (pt), 177-A (pt) at Village-Pimpri, Pune falling under the residential zone under development plan of Pimpri-Chinchwad was owned by Rathi Trust and other co-owners (hereinafter called “the said lands”). These lands were developed by the Promoter-defendant no.14, by implementing two schemes viz; (i) Swar Ganga Complex Scheme and (ii)Ganga Sky Scheme. The Promoter constructed twelve buildings in “Swar Ganga Complex; of following description.
(i) Eight buildings, each seven storied - 'A' Building (Residential)
(ii) Three buildings, each of seven storied - 'B' Building (Residential)
(iii) One commercial building consist of nine shops.
(iv) One bungalow; in a layout- sanctioned by the Planning Authority.
10. The Promoter has also constructed School building on amenity plot, of a layout, which is distinct and stand alone building, in use and occupied by the School.
11. In Buildings “A” and “B” (12 buildings in all) 304 Flats were constructed and sold out to individuals by Promoter-Defendant No.14, by executing individual agreements in the year 2005-06 or around, subject to provisions of Maharashtra Ownership Flats Acts.
12. In 1st January, 2011 flat purchasers formed and registered 12 societies under the Maharashtra Co-operative Societies Ac
