National Consumer Disputes Redressal
Pravin G. Joshi & 3 Ors. vs Sarojini Gangadhar & 3 Ors. on 22 February, 2022
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2522 OF 2013 (Against the Order dated 20/03/2013 in Appeal No. 720/2010 of the State Commission Maharashtra) 1. PRAVIN G. JOSHI & 3 ORS. R/O PLOT NO-29, SHAILESH CO-OP HOUSING SOCIETY LTD. KARVE NAGAR, PUNE - 411 052 MAHARASTRA 2. SANJAY V.WALSANGKAR R/O PLOT NO-29, SHAILESH CO-OP HOUSING SOCIETY LTD. KARVE NAGAR, PUNE - 4110 52 MAHARASTRA 3. BALKRUSHNA H.SARAWADE, R/O PLOT NO-29, SHAILESH CO-OP HOUSING SOCIETY LTD. KARVE NAGAR, PUNE - 4110 52 MAHARASTRA 4. SANJAY G.PARANJAPE, R/O PLOT NO-29, SHAILESH CO-OP HOUSING SOCIETY LTD. KARVE NAGAR, PUNE - 4110 52 MAHARASTRA ...........Petitioner(s) Versus 1. SAROJINI GANGADHAR & 3 ORS. R/O PUSHKARAJ, PLOT NO-10, GANESH HSG SOCIETY KALYAN RASTRA, BHIVANDI, THANE MAHARASTRA 2. M/S GAJANAN CONSTRUCTION , A PARTNERSHIP FIRM, THROUGH ITS SECRETARY, HAVING OFF AT JAYADRI, 10 MUKUND NAGAR, TAPOBHUMI CO OP HSG SOCIETY, PUNE - 411 037 MAHARASTRA 3. SHRI SAMIR PRABHAKAR ACHARYA, ANUBANDH, C-43 PARANJIPE SCHEME BLDG, SATTAWADI , NEAR DANDEKAR BRIDGE, SINGGARH ROAD, PUNE MAHARASTRA 4. SHAILESH CO-OP HSG SCO LTD. THROUGH ITS SECRETARY, HAVING ITS OFFICE AT SHAILESH SABHAGRUHA, S.NO -39/2 & 40/2, SMARTHA PATH,NEAR ALANKAR POLICE STATION, KARVENAGAR, PUNE - 411 052 MAHARASTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT
For the Petitioner : For the Petitioner : Mr. Ankur Gupta, Advocate For the Respondent : For the Respondents : Mr. Rohan S. Darandale, Advocate
Dated : 22 Feb 2022 ORDER
1. Challenge in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), by the Petitioners/Complainants, is to the Common Order dated 20.03.2013, passed by the Maharashtra State Consumer Disputes Redressal Commission, at Mumbai (for short "the State Commission") in First Appeal No. A/10/720, A/10/77 and A/10/1040. By the Impugned Order, the State Commission while dismissing the Appeal No. 720/2010 filed by the Complainants has partly allowed the Appeal Nos. 779 and 1040 of 2010 filed by the Respondent Nos. 1 and 4 respectively.
2. Succinctly put, dispute prevailing between the parties in this case is with respect to use of substantial open space surrounding the Building in question. It is averred that the Petitioners/Complainants have been prevented from using and enjoying the aforesaid open space as the Respondent No. 1 has covered the open space by erecting iron grill.
3. Detailed factual matrix as penned in the Complaint is that the Respondent no 4, Shailesh Co-Operative Housing Society, is a Society registered under the provisions of Maharashtra Co-Operative Societies Act,1960 in the year 1969 (hereinafter referred to as the "Society") and the Petitioners and Respondent No.1 are its Members. The Society is in possession of a piece of land situated at S.No. 39/2 + 40/2, Maharshi Karve Nagar, Pune. The said land was divided into sub-plots and one of the such plots bearing No. 29 admeasuring 338.63 sq. mtrs. was allotted to Respondent no.1, Mrs. Sarojini Gangadhar, on lease for 999 years. The Society also executed a registered Lease Deed in her favour, however, construction was not done by her on the said plot for a long period of time. Subsequently, a Resolution was passed by the Society on 09.11.1986 allowing the plot owners/its Members to construct multi-storied Building on the plots allotted to them. It was also decided by the Society that a Society within Society (to be called new Society) would be formed and each Flat Purchaser would pay ₹10,000/- to the Society for transferring the right, title and interest and as such all the Flat Purchaser would become nominal Members of the Society.
4. The Respondent No.1, owner of Plot No.29, entered into a Development Agreement with one, Late Vinayak Shridhar Deshpande on 29.07.1986 who in turn transferred his rights of development in favour of Respondent No.2 Partnership Firm, M/s Gajanan Construction in which the Respondent No.3 was a Partner. The construction of the Building was completed and the Completion Certificate was obtained on 26.06.1989. The Flat Nos. 1 & 2 at the Ground Floor were retained by the Respondent No.1 while the Flat Nos. 3, 4, 5 and 6 at Ist and 2nd Floors were purchased by the Complainants/Petitioner herein by executing necessary registered Agreements under the provisions of Maharashtra Apartment Ownership Act 1970 (for short, the " MAO Act 1970"). According to the Complainants, it was necessary for the Respondents to convey the said property by forming a new Society or Condominium as per the provisions of MAO Act 1970 for its maintenance, however, they failed to do so despite repeated requests. The Petitioners via legal notice also submitted their grievances, in response to which, Respondent no.1 has stated that it was the responsibility of Late Mr. Vinayak Shridhare Deshpande to convey the property, as the initial Agreement was executed by him. The Complainants again issued rejoinder on 03.02.2004 on which the Respondent No.1 refused to execute the Conveyance Deed. Feeling aggrieved, the Complainants filed Complaint before the District Forum being Consumer Complaint No. 171/2004 seeking directions to the Respondents to form a legal body/condominium of the Flat Holders; convey the plot No.29 in favour of legal body and to refrain from interfering with the legal rights of the Complainants to use the open space. During the pendency of the Complaint, the Respondent no.1 has executed a Deed of Declaration on 10.01.2005 and had brought the Property under the name and style as "Shree Samartha Krupa" under the purview of MAO Act 1970. The Petitioners alleged that the said Deed of Declaration dated 10.01.2005 suffered from some defects, lacunas and hence, it was to be modified in terms of the prayer.
5. The Complaint was contested by the Respondents by filing Written Versions. Respondent no.1, in her Written Statement stated that she is the founder Member of Respondent No.4 Society and a Lease Deed was executed in her favour by Respondent No. 4 in the year 1972 for a period of 999 years. Further, a Development Agreement was executed and Power of Attorney was transferred to one Mr. Vinayak Deshpande on 29.07.1986. However, she denied having knowledge of transfer of Development Rights by said Vinayak Deshpande in favour of Respondent Nos. 2 & 3. She submitted that after completion of the Building on Plot No. 29, she was put in possession of Flat No. 1 & 2 at ground floor on 25.09.1990 and that Mr. Vinayak Deshpande died in the year 1994. The bone of the contentions as submitted by Respondent No.1, was that the Deed of Declaration dated 10.01.2005 should govern all the rights, titles and interest of the parties and that the same is in consonance with the Agreement of Sale obtained by Complainants from the Developer. That only upon receipt of the Sale Agreements, the Respondent No.1 was in a position to execute the Deed of Declaration and thus the rights of the parties to the proceedings were required to be determined in accordance with the Agreement of Sale and the Deed of Declaration. In para 9 of the Deed of Declaration and Clause No.9 of the Agreement to Sale, a specific reference has been made to the Common spaces and that shall continue to be in her possession. She submitted that she was willing to execute the Conveyance Deed of the Apartments subject to limitation of the common space. However, Respondent Nos. 2 & 3 submitted that the Petitioners are entitled to enjoy the undivided share in the common space adjacent to the Building.
06. After due appreciation of the facts and the evidence adduced by the parties, the District Forum came to the conclusion that execution of the Deed of Declaration dated 10.01.2005 by the Respondent No.1 to bring the property in question to the provisions of MAO Act 1970, itself substantiate that the provisions of said Act were applicable to the Property and therefore, the rights of the parties were also required to be determined under the provisions of MAO Act 1970. The District Forum has held as under:-
" One cannot give an undue importance to the contents of declaration and agreement of sale. There are two modes by which the rights and liability of the parties to the contract are determined. Firstly, it is determined by the act of the parties and secondly can be determined or settled by operation of law. In the instant case an undue emphasis is placed on the contents of the declaration and agreement to sale. At the same time the provisions of operation of law is safely ignored by the Opponents. The rights and liabilities can also be created by operation of law. Concept of statutory tenant is now duly recognized and protected under the Statute. The same was unknown to us prior to coming into force of the Rent Act. Thus, we find that rights and liabilities of the parties can also be conveniently considered in accordance with provisions of Act of 1970. Section 6 of the Act provides the manner in which the share of an apartment owner can be ascertained. Each Complainant is therefore entitled to undivided interest in the common areas and the facilities. Such percentage shall have to be computed by taking as basis value of the apartment in relation to the value of the property. That percentage shall reflect limited common area and facilities. The percentage expressed in the declaration is subject to the act of the parties to the contract. We, therefore find that the complainants are deprived of enjoying the common areas as substantial open space as already retained by the Opponent No.1 in her exclusive possession to the detriment of the interest of the Complainants. Suitable modification to the Deed of Declaration is, therefore inevitable. There are two cases on which the Learned Advocate for the Complainant has placed reliance. One of them is unreported judgment decided by the Hon'ble State Commission in First Appeal No. 628/2005 decided on 15th April 2007. The directions were given by the District Forum to execute final convenience as per the Agreement of Sale. There are certain terms and conditions in that Agreement of Sale out of which Clause Numbers 32 and 37 of the Agreement of Sale are relevant for our purpose. By Clause number 32 the Builder therein had retained the ownership of terrace with him and also it is specifically mentioned in Clause Number 32 that the purchaser shall not acquire any right in terrace of the entire Building and future FSI. It is also stated in Clause number 32 that in case of additional FSI/Built up area is available for the said plot in future and after formation of organization, the organization can construct and use the additional FSI/Built up area of the plot by paying ₹150/- per square feet to the owners/buyers as a royalty for newly constructed area. The explanatory note No.1 in form V inter-alia provides that Clause 1 to 13 and 22 of the model form of Agreement shall be statutory and mandatory according to the provisions of the Act and these rules shall be retained in each and every individual agreement/s executed between the Promoter and Flat Purchaser. Any departure or variation from these statutory and mandatory conditions, being violative and ultra vires of the provisions of the Maharashtra Ownership Flat (Regulation of the Promotion of Construction, Sales, Management and Transfer) Act 1963 will not be binding and enforceable upon the parties, such conditions being void ab initio. Consequently, therefore, the aforesaid Clause 32 of the Agreement of Sale between that Builder and Flat Purchaser war declared ab initio void. Similarly in respect of the residual FSI it was found that the Builder was required to submit Z form to the Registrar of Cooperative Society. Such Z form was submitted by that Builder to the Registrar of Co-operative Society. An assurance was given by that Builder that he will not retain any right, title, or interest in the property belonging to the Society. It shall be transferred to the Society within the time limit prescribed under Maharashtra Ownership Flat Act 1963. That Clause Number 37 is found contrary to the Clause Number 18 of form Z. Obviously the direction of the Forum below to execute the conveyance in favour of the Society as per the terms and conditions of the Agreement of Sale was found contrary to mandate of law. The Order was accordingly modified.
25. The other case relied upon by the Complainants is reported in 2008 (3) Bom. CR 727 between Nehalchand Laloochand Private Limited versus Panchali Co-operative Housing Society. The Complainant Company in that case had retained stilt parking space to itself by enclosing fabricated structure and lock. That was found to be totally illegal and void ab initio as stilt parking space was available in common parking space for use of Members of Society. The relevant Clause mentioned in the Agreement of Sale executed in favour of the Flat Purchaser was struck down by the Hon'ble High Court as ab-initio void.
26 It is no doubt true that aforesaid two cases are under the provisions of Maharashtra Ownership Flat Act 1963. But by and large principles enunciated therein are equally applicable to the provisions of the Act of 1970. The concept of dual ownership is created under both enactments. Legal Organization or body is required to be formed. That body becomes owner of the entire building excepting the apartment of unit purchased by the Flat Owners. The rest of the area namely open space common area is retained by the Flat Purchasers to the extent to their percentage in that open space. We, therefore, find that there is no difficulty in borrowing principles enunciated in the aforesaid two cases to the Flats of the present case. The Complainants are in majority. They are 2/3 whereas the Opponent No. 1 can occupy the open space to the extent of 1/3 share. It is true that on execution of deed of apartment in favour of the Complainants the opponent's right to retain the lease hold over the plot is likely to come to an end. But that cannot be the problem inasmuch as it will happen not by act of parties but by operation of law. We, therefore, find that complaint will have to be allowed. Suitable directions will have to be given to the opponent to execute the necessary amendment to the deed of declaration bearing in mind the percentage of the Complainants together at two third, as per the provisions of Section 6 (1) of the Act of 1970."
07. Accordingly, the District Forum directed as under:-
The Complaint is hereby allowed in part.
The opponent No.1 is hereby directed to execute the Deed of Apartment in favour of each of the complainants within three months from the date of receipt of copy of this order by her;
The said Deed of Apartment shall be in accordance with sanction plan submitted before the local authority and shall be in consonance with provision of Section 6(1) of Maharashtra Ownership Act, 1970;
The said Deed of Apartment shall be also counter signed by the opponent Nos. 2 and 3 in their capacity as builder and developer and by the opponent No. 4 in its capacity as owner of the plot."
8. Aggrieved, Petitioners preferred Appeal No. A/10/720 while the Respondent No.1 and Respondent No.4 filed separate Appeals Nos. A/10/779 and A/10/1040 respectively before the State Commission.
09. Upholding the contention of the Respondent No.1 that common areas do not include the open space surrounding the Building in question and that the said area was exclusively retained by her when the Development Agreement was executed with Late Mr. Vinayak Deshpande, the State Commission, vide Common Order dated 20.03.2013, dismissed the First Appeal preferred by the Petitioners and partly allowed the Appeals filed by the Respondent No.1 and 4. It was held by the State Commission as under:-
"14. Referring to the provisions of the Maharashtra Apartment Ownership Act, 1970 and even for that purpose the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (hereinafter referred to as the "MOFA" for the sake of brevity) once these common areas which are available to the Complainants as the Apartment-Owners are clearly defined and their respective shares therein is also further defined as per the Development Agreement dated 29.07.1986 and in the Agreements with the Complainants, and since the declaration dated 10.01.2005 is not contrary to it, we find, it cannot be alleged that there is any breach of statutory or contractual obligations on the part of the builder/developer, now on part of the Opponent No.1, Smt. Sarojini Gandadhar Kulkarni who steps into the shoes of Late Mr. Vinayak Deshpande, the promoter/builder.
15. Development Agreement dated 29.07.1986 is a primary document which needs to be looked into as to ascertain what was agreed with the Promoter/Developer, namely, Mr. Vinayak Deshpande in respect of development and construction of the building in which the apartments sold to the Complainants are situated. Said Development Agreement categorically made it clear that development rights to construct the building, Shri Samartha Krupa" which consists of two apartments on each floor, viz, the ground floor, the first floor and the second floor were only given to Late Mr. Vinayak Deshpande. Garrage with attached toilet situated in one corner of the plot and the surrounding open space of the proposed building are exclusively retained for herself by the Opponent No.1, Smt. Sarojini Gangadhar Kulkarni. Only access road to the said building was given from said open space. The Promoter/Developer late Mr. Vinayak Deshpande was to give ground floor two apartments to the Opponent No.1, Smt. Sarojini Gangadhar Kulkarni and he had right only to sell apartments (flats) situated on the first floor and the second floor of the building which are now recognized and described as apartments being No.101, 102, 201 ad 202 and which are sold to the Complainants, Mr. Pravin G. Joshi and others as per their respective Agreements. Clause (04) on internal page (03) and Condition No. (09) on internal page (05) of the Development Agreement dated 29.07.1986 clearly stipulates accordingly. In this background, we have to look into the respective agreements with each one of the Complainants. As submitted, these are similar agreements entered into with the Complainants and a copy of one such agreements dated 12.10.1987 entered into with the Complainant No.1, Mr. Pravin Joshi is placed on the record supra. In the said agreement, the firm floated by Late Mr. Vinayak Deshpande, namely, the Opponent No.1, M/s. Gajanan Construction is shown as the Contractor/Builder and as a "Vendor" who agreed to sell Flats/Apartments to the Complainant Mr. Pravin Joshi. Opponent No.1, Smt. Sarojini Gangadhar Kulkarni who is a "Lessee" of the Plot No. 29 on which the Building was to be constructed was shown as the "Consenting Party". Specific reference is made therein while explaining source of authority of the "Vender" to the Development Agreement dated 29.07.1986, supra. As to description of the Flat/Apartment agreed to be sold, it is specifically mentioned as Flat No.3 as shown in red ink in the map attached. Further, referring to its clause (07) to (09), particularly Clause No. (09), it is revealed that the common areas in relation to each Flat does not extend by any stretch of imagination to surrounding open space from the Plot No.29 of the Building "Shri Samartha Krupta" and the garage situated in one of its corners except the approach road from the colony road to the building. As per Clause (09), only the stair cases and the terrace of the Building are described as "common area". Under the circumstances, per-se, since the property is now submitted to the provisions of the Act, the declaration made on 10.01.2005 by the Opponent No.1, Smt. Sarojini Gangadhar Kulkarni cannot be faulted with. Thus, the claim of the Complainants to surrounding open area except for the approach road to the building and the four two wheeler parking spaces described as per the said declaration, is devoid of any substance and they perhaps cannot complaint that the Promoter/Builder and for the purpose, the Opponent No.1, Smt. Sarojini Gangadhar Kulkarni committed deficiency in service by not allowing them to use said open space surrounding the plot. We do not subscribe to the reasoning given by the Forum covering these aspects may, inference tried to be drawn covering these issues were perverse since not supported by the documents and the provisions of the law. Therefore, the directions given as per impugned order subject to modification as per final order, are to be read in the light of the reasoning given by us."
10. Accordingly, the State Commission modified the order of the District Forum as under:-
"1) Appeal No. 720 of 2010 filed by the Complainants stands dismissed.
2) Appeal No. 779 of 2010 filed by the Opponent No.1, Smt. Sarojini Gangadhar Kulkarni and Appeal No. 1040 of 2010 filed by the Opponent No.4, Shailesh Co-Operative Housing Society Ltd. are partly allowed.
3) In the operative part of the impugned order dated 23.06.2010 in place of paragraphs (2) (3) and (4) substitute the following:-
"Opponent No.1, Smt. Sarojini Gangadhar Kulkarni to execute the Deed of Apartments in respect of the Apartments of each one of the Complainants as per the provisions of Section 12(1) of the Maharashtra Apartment Ownership Act, 1970 within a period of four months from today (i.e. the decision of the Appeal).
The Opponent No.2 firm duly represented by its partner, Opponent No.3, Mr. Samir Prabhakar Acharya do countersign those declarations.
The Opponent No.4 Society shall also countersign it in their capacity as a "Superior Landlord".
4. Except for these modifications, impugned order dated 23.06.2021 is not disturbed."
11. Hence, the present Revision Petition has been filed by the Complainants/Petitioners.
12. At the outset, I would like to mention here that during the proceedings, the Respondent No.1, Sarojini Gangadhar has expired and her legal representatives, namely, Dr. Ajit G. Kulkarni, Dr. Abhay G. Kulkarni and Dr. Atul G. Kulkarni, have been brought on record. However, no amended memo of parties has been filed by the parties.
13. I have heard the learned Counsel for the parties at some length and have also gone through the material available on record.
14. Learned Counsel appearing on behalf of the Petitioners strenuously urged that the term "surrounding open space" or "Common Areas and facilities" as defined in Section 3(f) of the Ownership Flats and Apartments Laws in Maharashtra 1970, means the common area (facility) having common road around the Building, Common Parking (as per the Municipal Corporation approved Plan), Common Drainage and Tape Water Lines, essential for common use of all the Apartment Owners. He further submitted that the Section 6 of the MOA 1970 expressly provides that each apartment owner shall have undivided interest in such common areas and facilities and that Plans of the Building submitted to the Municipal Corporation do not demarcate such "Surrounding Open Space" to the exclusive right of the Respondent No.1. He also pleaded that the Deed of Declaration has to be in conformity with legal provisions and the original Building Plans submitted for approval. It is contended that the Conveyance Deed is to be executed with respect to the total land which was shown during submission of plans to the Municipal Corporation and not as per the Deed of Declaration. The Deed of Declaration was executed unilaterally and arbitrarily after 15 years of the completion of the Building and especially during the pendency of the Complaint before the District Forum. Finally, he submitted that the cost of Flat paid includes the costs of land and as such the Landlord or the Builder cannot retain the surrounding land space in his/her exclusive rights.
15. As against this, Learned Counsel appearing for the Respondent No.1 has supported the well-reasoned Order passed by the State Commission. As noted above, the Respondent No.2 to 4 had already been delated from the array of the parties.
16. Having bestowed my anxious consideration to the facts of the case and the submissions made by the parties, I am of the opinion that the admitted facts of the case are that the Respondent No.4 Society had allotted the Plot No.29 in question to the Respondent No.1 on lease. In terms of the Resolution passed by the Society on 09.11.1986 allowing its Member to construct the multi-storied building on the allotted plot, the Respondent No.1 entered into a Development Agreement with the Respondent No.2, Late Vinayak Shridhar Deshpande on 29.07.1986 who further transferred his rights of development in favour of Respondent No.2 Partnership Firm, M/s Gajanan Construction in which the Respondent No.3 was a Partner. On completion of the Building on the Plot No.29, the Completion Certificate was obtained on 26.06.1989. As per the Development Agreement dated 29.07.1986, the Flat Nos. 1 & 2 at the Ground Floor of the Building in question were retained by the Respondent No.1 and the Flat Nos. 3, 4, 5 and 6 situated at Ist and 2nd Floors of the Building were purchased by the Complainants/Petitioner herein by executing necessary registered Agreements under the provisions of MAO Act 1970".
17. It is the stand of the Respondent No.1 that in the Development Agreement executed with Late Vinayak Shridhar Deshpande, the right of the open space surrounding the Building was not given to him and this fact has also been taken care of in paragraph 9 of the Agreement to Sale executed by him with the Flat Purchasers. As per the paragraph 9 of the Agreement to Sale, only stair case and top terrace will declared the common space. The paragraph 9 of the Agreement to Sale executed with one of the Flat Purchasers is reproduced as under:-
"9. That the Purchaser shall have no claim, save and except in respect of the said Flat and second Floor terrace and all the open spaces, will remains the exclusive property of the Vendor, staircase and top terrace will remain common."
18. It is further pleaded that the Deed of Declaration executed on 10.01.2005 by the Respondent No.1 is also in consonance with the aforesaid terms and conditions of the Development Agreement dated 29.08.1986 and the Agreement to Sale executed with the Flat Purchasers of the Building.
19. As against this, the bone of contentions of the Learned Counsel for the Complainants/Petitioners is that under the provisions of the MOA, 1970 and even Maharasthra Ownership Flats (Regulation of the promotion of construction, sale management and transfer) Act, 1963, a Society was to be formed by the Respondent No.2 & 3 and the entire building premises including the open space in question was to be transferred to the Society or a legal body for its maintenance and further, as per Section 6 of the MAOA 1970, each flat owner/Complainant is entitled to undivided interest in the common areas and the facilities. Such percentage shall have to be computed by taking a basis value of the apartment in regulation to the value of the Property.
20. Having considered the rival contentions of the parties, I am of the considered opinion that there is merit in the conclusion arrived at by the District Forum that the rights of the parties with regard to use of open space surrounding the Building in question, are governed by the various provisions of the Maharashtra Ownership Act, 1970 and the Respondents were under an obligation to form a Society/legal body to take care of the entire Building Premises. This was the reason that during the pendency of the Complaint, the Respondent No.1 executed a Deed of Declaration on 10.01.2005 to bring the property in question under the provisions of the MAOA 1970. However, as recorded in the Order dated 12.12.2019 passed by this Commission, the said Deed of Declaration dated 10.01.2005 was not submitted to the Competent Authorities as required under the provisions of Maharashtra Apartments Ownership Act, 1970.
21. Now, the question which arises for consideration is as to whether the open space constitutes a part of the common area and facilities. Section 3 (f) of the MAOA, 1970 defines the "common area and facilities as under:-
" 3(f) "common areas and facilities", unless otherwise provided in the Declaration or lawful amendments, thereto means:-
(1) the land on which the building is located; (2) the foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stair-ways, fire-escapes and entrances and exits of the buildings; (3) the basements, cellars, yards, gardens, parking areas and storage spaces; (4) the premises for the lodging of janitors or persons employed for the management of the property; (5) installations of central services, such as power, light, gas, hot and cold water, heating, refrigeration, air conditioning and incinerating; (6) the elevators, tanks, pumps, motors, fans, compressors, ducts and in general all apparatus and installations existing for common use;
(7) such community and commercial facilities as may be provided for in the Declaration; and (8) all other parts of the property necessary or convenient to its existence, maintenance and safety, or normally in common use
22. Further, Section 2(e) of the Maharashtra Housing (Regulation and Development) Act, 2012 which has repealed the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, defines the "common areas and amenities and facilities of a layout" as under:-
"(e) "common areas and amenities and facilities of a layout" means the areas, amenities and facilities intended for common use of apartment owners in a layout and includes park, recreational ground, play ground, open space, path, pathway, alleyway or garden located outside the area of any building or buildings, street lights, securities, water and electric supply, sewerage, drainage, public works, fire fight systems and works, water tanks, other utilities and services, and the like, provided or to be provided by the Promoter within the layout but shall not including parking space or garages;
23. From the afore-extracted definitions of the "Common areas and facilities", it is quite clear that the open space in question in the present case is also a part and parcel of the Common Areas and the Flat Owners are within their right to use the same in terms of the provisions of the MAOA, 1970 as well as the erstwhile the Maharasthra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act 1963 (repealed by the Maharashtra Housing (Regulation and Development) Act, 2012). Section 2 (e) of the Maharashtra Housing (Regulation and Development) Act, 2012 specifically include any open space around the building in the definition of "Common Areas and Amenities and Facilities". Even as per MAOA, 1970, all other parts of the Property necessary or convenient to its existence, maintenance and safety, or normally in common use is covered under the definition of Common Areas and the Facilities. As noted above, in the open space, the Flat Owners have been given the passage to approach to the road and a pump is also installed therein for the purpose of lifting water to over-head tank. There is also a garage along with attached toilet on the open ground of the Building. Hence, the each Apartment Owner has the right to use the common area and facilities in accordance with the purpose for which they are intended without hindering or encroaching upon the lawful rights of the other Apartment Owners. The Common Area and Facilities remain undivided and no Apartment Owner or any other person shall bring any action for partition or division of any part thereof.
24. At this juncture, I think it is a fit case to place reliance upon the decision of the Hon'ble Supreme Court in the case Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Cooperative Housing Socieity Ltd. - (2010) 9 SCC 536 upon which the Complainants/Petitioners have also placed reliance before the District Forum. In the said case, the Promoter/Developer has retained the stilt parking space to itself by enclosing fabricated structure and lock. The Hon'ble Apex Court while dealing with the question of right of the Flat owners on the said so called garage, has held as under:-
"39. We have now come to the last question namely--
What are the rights of a promoter vis-à-vis society (of flat purchasers) in respect of stilt parking space/s. It was argued that the right of the promoter to dispose of the stilt parking space is a matter falling within the domain of the promoter's contractual, legal and fundamental right and such right is not affected. This argument is founded on the premise, firstly, that stilt parking space is a `flat' by itself within the meaning of Section 2(a-1) and in the alternative that it is not part of `common areas'. But we have already held that `stilt parking space' is not covered by the term `garage' much less a `flat' and that it is part of `common areas'.
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.
MOFA was enacted by the Maharashtra Legislature as it was found that builders/developers/promoters were indulging in malpractices in the sale and transfer of flats and the flat purchasers were being exploited. The effect of MOFA may be summarized as follows. First, every promoter who constructs or intends to construct block or building of flats in the area to which MOFA applies has to strictly adhere to the provisions contained therein, i.e., inter alia, he has to make full and true disclosure of the nature of his title to the land on which the flats are constructed and also make disclosure in respect of the extent of the carpet area of the flat and the nature, extent and description of the common areas and facilities when the flats are advertised for sale. Secondly, the particulars which are set out in Section 4(1A) (a) (i) to (x) have to be incorporated in the agreement with the flat purchaser. Thirdly, the promoter has to apply to the Registrar for registration of the organization (co-operative society or company or condominium) as soon as minimum number of persons required to form such organization have taken flats. As regards unsold flats, the promoter has to join such organization although his right to dispose of unsold flats remains unaffected. Fourthly, and more importantly, the promoter has to take all necessary steps to complete his title and convey to the organization his right, title and interest in the land and building and execute all relevant documents accordingly.
It was argued by Mr. Tanmaya Mehta, learned Counsel for the promoter that in view of the provisions of MOFA, Section 6 of T.P. Act and Article 300A of the Constitution, the right of the promoter to transfer parking spaces is not at all restricted. Relying upon the decisions of this Court in ICICI Bank Ltd. v. SIDCO Leathers Ltd. and Ors.: (2006) 10 SCC 452, Karnataka State Financial Corporation v. N. Narasimahaiah and Ors. (2008) 5 SCC 176 and Bhikhubhai Vithlabhai Patel and Ors.v. State of Gujarat and Anr.: (2008) 4 SCC 144, he submitted that the provisions contained in MOFA must be construed strictly and there is no provision either express or by necessary implication in MOFA restricting the sale of stilt or open parking spaces. Mr. Sunil Gupta also argued that promoter continues to have contractual, legal and fundamental right to dispose of the stilt/open parking space in the manner in which he proposes and his consumers accept.
We think this argument does not bear detailed examination. Suffice it to say that if the argument of learned senior counsel and counsel for promoter is accepted, the mischief with which MOFA is obviously intended to deal with would remain unabated and flat purchasers would continue to be exploited indirectly by the promoters. In our opinion, MOFA does restrict the rights of the promoter in the block or building constructed for flats or to be constructed for flats to which that Act applies. The promoter has no right to sell any portion of such building which is not `flat' within the meaning of Section 2(a-1) and the entire land and building has to be conveyed to the organisation; the only right remains with the promoter is to sell unsold flats. It is, thus, clear that the promoter has no right to sell `stilt parking spaces' as these are neither `flat' nor appurtenant or attachment to a `flat'."
25. A bare perusal of the aforesaid judgment would reveal that the Builder/Promoter has no right to sell any area of Building except the unsold flats. In the present case also, the Respondent No.1 who has entered into the shoes of the Respondent No.2, has no right on the open space area. Consequently, the impugned order passed by the State Commission is set aside and the Order passed by the District Forum is restored.
26. The Revision Petition is disposed of in above terms and in view of the peculiar facts of the case, the parties are left to bear their respective costs.
......................J R.K. AGRAWAL PRESIDENT