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By Legal Bureau

“ It is pertinent to note that parking spaces are mentioned in clause 22 of the Maharashtra Ownership Flats Act along with words open space, lobbies and staircase giving clear indication that these spaces are also common amenities. This also indicates that car park spaces do not have independent status. Clause numbers 22 and 23 could not have given the promoter/ developer right to deal with the open spaces, car park spaces lobbies and staircase. Such property would remain the property of the promoter/ developer, but he would keep the property as trustee and convey the same at the earliest to an association formed by the purchaser of flats. This is legal obligation of the promoter/developer under section 11 of the Maharashtra Ownership Flats Act, “Observed Shri V N Nirgude, President of the Maharashtra State Co-operative Appellate Court, Mumbai while dismissing an appeal filed by a member of Arenja Arcade Premises Co-operative Society Ltd. Navi Mumbai, against the judgement of the lower Court, rejecting the application of the appellant for temporary injunction against the Society.

The facts of the case are as follows:

The appellant M/s. Prakash Auto was the disputant and the respondents were the opponents in the lower Court. The cause of action for the dispute was as under:

The Appellant is a member of the Respondent No.1, Arenja Co-operative Society Ltd., Vashi, Navi Mumbai and Respondent No. 2, M/s. Shabi Construction Company, is a Promoter of the building in which various persons purchased the units.

The sanctioned plan provided that there would be a basement for the building, where there would be 16 car parking spaces. It was the case of the Appellant that acquiring the shops, the shopkeepers approached the promoter (Respondent no.2) for allotment of car parking spaces in the basement and allotted 14 car spaces to them in 1995 charging certain amount. The Appellants stated that they have been in occupation of these car parking spaces since then. The Respondent No.1, the Society was formed in the year 1999. For the first time in October 2000, the society took objection to the Appellants occupying these car park spaces. The society refused to recognise the transaction between the Appellants and Respondent No.2 about ‘allotment’ of the spaces in 1995. This stand of the society gave rise to the dispute. The appellants filed the dispute for permanent injunction to prevent the society from dealing with these disputed car park spaces and from disturbing their occupants/ user of the same. The Appellants also moved an application for temporary injunction for similar relief.

The society opposed the application whereas the Respondent No.2 supported the Appellants by filing an affidavit. The society’s contention was that the Respondent No.2 was not entitled to allot/sell/dispose of the disputed car park spaces to the Appellants and so the Appellants would not get any title to them.

The judgement of Co-operative No. V, Mumbai who heard the parties came to a conclusion that the Respondent No.2 (The Developers) could not have lawfully allotted the disputed car park spaces to the Appellants and so rejected the application for temporary injunction. So the Appellants went into the appeal against that order.

After hearing the arguments of both the parties, the President of the Appellate Court observed that though the Respondent No.2 was the owner of the building, he was unable to deal with the covered parking spaces provided in the basement, such restriction on his ownership right is put by the provisions of the Maharashtra Ownership Flats Act. The promoter has to deal with the property subject to these restrictions. In the opinion of the president, such restrictions would certainly not cause loss to him. He could take into account this restriction while calculating price of the flats of the units. The president referred to the plea of the Appellants counsel that clauses 22 and 23 of the agreement dated 13th August 1994, that the flat purchasers should not have any claim in respect of open car space, lobbies,, staircase etc., and such area would remain property of the promoter until the building was transferred to a co-operative society or limited company as the case may be. These clauses further provided that the promoter should be at liberty to sell assign or otherwise deal with their interests in the said plot and building subject to the rights of the purchasers under this agreement. The president was of the view that these two clauses did give an indication that promoter would control the sale of open space, car park space, lobbies, staircases etc., until the property is conveyed to the society or a company. The president admitted that the open space, parking space, lobbies, staircase are common amenities which are married to a building. He also admitted that the purchasers of the flat can not have exclusive ownership of such common amenities. He pointed out that in fact promoter is prevented from doing so under Section 23 of the said Act, which makes it clear that the promoter would be able to deal with such common amenities subject to rights of purchasers of flats, whose right can not be hampered by putting any of the open spaces, staircase, etc. According to the president it was pertinent to note that parking spaces are mentioned in clause 22 along with words open space, lobbies and staircase giving clear indication that this spaces are also common amenities. This also indicates that car park spaces do no have independent status. Clause 22 and 23 could not have given the respondent No.2, right to deal with open space, car park spaces, lobbies and staircase. Though, such space would remain the property of the promoter/developer, he would keep the property as trustee and convey the same at the earliest to an association formed by the purchaser of the flats. This is his legal obligation under section 11 of the Maharashtra Ownership Flats Act.

With this observation, the Appellate Court dismissed the appeal of the Appellant (M/s. Prakash Auto, Appellant Vs.1.) Arenja Arcade Premises Co-operative Society (2) M/s. Shabi Construction Co.- Respondents ( A.O No. 86 of 2001. March 4, 2002).