By Adv. Vinod C. Sampat
1. Since the inception of Maharashtra Ownership Flats Act, the Builders have treated the open space as if it is their personal property and have tried to exploit Flat purchasers. The classic instances of the same are –
a) Sale of open terrace.
b) Sale of garden area.
c) Sale of car parking.
2. The nomenclature given in Agreement has not legal relevance. When a Flat purchaser is purchasing a Flat, he is paying money not only for the four corners of the Flat but also he is paying for the entire right, title and interest of the premises and also for the common areas and amenities appurtenant to the premises. This view has been up-held by the Government and specifically the Model Agreement has been enacted, which is part and parcel of Maharashtra Ownership Flats Act.
3. With a view that Co-operative Societies / legal entities get conveyance, the Note- 2 of the Model Agreement Form-V categorically stipulates that each and every owner is having right, title and interest in the property, namely, a person whose name is standing in the Property Card as well as all subsequent owners should be joined as a Confirming Party to the Agreement. The Builders with ulterior motive do not include the names of the earlier owners to the Agreement. Strangely, even banks sanction loan in spite of such blatant violations of the laws of the land.
4. Now let us analyze the circumstances where the Builder has allotted car parking space to a Flat purchaser by executing Letter of Allotment and/or Sale Deed. I have no hesitation in saying that pursuant to the judgment delivered by the Hon’ble Supreme Court as well as the Hon’ble High Courts in a number of cases, including but not restricted to the landmark judgment of Bombay High Court in the case of Nahalchand Laloochand Pvt. Ltd. V/s. Panchali Co-operative Housing Society Limited (Appeal no. 2182 of 2007), the open space belong to the Society. In fact for sale of car parking space criminal action can be initiated against the Builder. This has been up-held by the Sessions Court in the case of Surenkumar B. Shetty v/s. The State of Maharashtra, Godrej & Boyce Mfg. Co. Ltd. and Others (Revision Application no. 474 of 2009 in CC no. 60 / MISC 2007). The gist of the observations of the Hon’ble Judge in the Sessions Court are as under :-
- The Builder cannot sell any immovable property without registration Sale Deed and still retail right, title and interest therein to be transferred to the Society. Once society is registered the builder does not remain the owner thereof and therefore. Purchaser of parking slot without Registration Deed is no owner in the eyes of law and society may decline to take cognizance of his clam of purchase.
- Law is not supposed to bow down to the terms of the agreement but agreements are supposed to follow the law and contain requisite recital according to law. Any transgression by the agreement is not acceptable by law and court should not therefore base their conclusion on the basis of such agreements. When section 3 of MOFA act requires that Builder should specify and disclose nature of fixtures, fittings and amenities provided or to be provided it include the provision for parking ass required by rule 36 of DCR Rules. As such, this ought to have been mentioned in the agreement being a sort of amenity and that too mandated by law. When respondents accepted money and allotted parking sloths separately nothing more is required more to show that the amenity was not disclosed in the agreement or Advertisement and as such, the Act also comes u/s 3 of MOFA ACT.
- Needless to say, that applicant need not mention any specific provision. It is court, which has to decide on the basis of averments and allegations as to offence under which provision of which provision of law is made out and issue process under the relevant law. When the allegations are disclosing commission of offence u/s 3 of MOFA Act there is no point and force in the submissions of the Learned Advocate. By accepting Rs 35,000/- etc. for allotment of parking space, which otherwise the respondents where bound to provide in agreement of Sale of flat, itself, makes out a clear case of breach of section 4 of MOFA ACT.
- Thus, the dispute raised by applicant was not civil dispute but it was dispute of breach of specific penal enactment and therefore criminal court has also jurisdiction. It is not a case of breach of agreement. The promotor committed a gross error by not providing the parking space and not reciting the same in the agreement of Sale of flat, and by clandestinely accepting the amount for the facility for which they were bound to provide under law. Therefore, the observations of learned Magistrate the dispute is of civil nature exhibits non-application of mind. Even otherwise, in some commercial transaction the liability may arise in the nature of civil as well as criminal liability cognizable by both the courts and can go hand in hand, as they are not alternate to each other
9. Civil case as well as criminal case can go hand in hand. Action should be initiated against the Builder as per the provisions of Sec. 3, 4, 5, 13, 13-A and 14 of Maharashtra Ownership Flats Act.
10. Now let us examine the situations. What should be done by the Co-operative Society if a Builder has sold / allotted car parking space to a Flat purchaser. In my opinion the same is not worth the paper on which it is printed. The Commissioner for Co-operation has earlier recognized the rights of the car parking space purchaser by incorporating the rights of the allottee of the car parking space in the Bye-laws. However, subsequent to the amendment made in the Bye-laws, by Order dated 03/01/2011 of the Commissioner for Co-operation the said Bye-law has been withdrawn. In view thereof, the purchaser / allottee of the said car parking space has no legal rights and the Society is free to allot car parking space to its members in uniform manner.
11. There are instances when more than one car parking space is acquired by one Flat purchaser. In my view there has to be a uniform policy by the Society as regards the allotment of car parking. Only after one car parking space made available to all members of the Society, the question of allotting the second car parking space arises. As per Regulation-36, Table-15, mandatory provisions have to be kept for visitor’s car parking space. The right approach for an aggrieved person is to approach the Co-operative Court where a Co-operative Society is in existence and seek relief against the Society and all the Flat purchasers, who have been allotted car parking space. Simultaneously, criminal action can also be initiated against the Office Bearers of the Society as well as against the Builder for having allotted car parking space to some set of people.
12. Another option available to the member of the Co-operative Society is to approach the Consumer Forum for deficiency of service and unfair trade practice. To conclude, I would say that the settled position of law is that Builder cannot sell / allot car parking space. Even if say sale / allotment of car parking space, the Society can re-allot the said space to its members by having uniform policy without discrimination amongst the members.
(Author is a Panel writer of Accommodation Times and has written more than 1000 Articles on Co-operative Societies besides authoring more than 75 books on property related matters).