MAHARASHTRA OWNERSHIP PLATS ACT (MOPA)

Source: The Hindu

Context

The question of whether stilt parking slots are equivalent to "garage area" and the use of the areas allocated for these by promoters for other purposes has been a recurring issue.

Nahalchad Laloochand & CO. Ltd Vs Panchali Co-operative Housing Society Ltd.

1. Whether a stand-alone 'garage' is a 'flat' within the meaning of Section 2 (a-1) of MOFA
2. Whether stilt parking space or open parking space of a building regulated by MOFA is a 'garage'.
3. If the answer to the aforesaid questions is in the negative, then the question was whether stilt parking spaces or open parking spaces in such a building are part of 'common areas and facilities and
4. What are the rights of the promoter vis-a-vis the society ( of flat purchasers) concerning open parking spaces or stilt parking spaces?

All these questions were considered in the light of statutory provisions in this judgment.

What constitutes a "flat" under MOFA?

It means that even if there is a sanitary, washing or bathing facility shared between two sets of premises, each set of premises is deemed to be separate.

Court rule

• The Court, interpreting the phrase and including garage said that it must be read with the set of premises and not with the uses.
• It also observed that the statutory definition of the 'flat' should be interpreted by taking into consideration the legislature's intent and the statute's context.
• If 'garage' was intended by the legislature to be a 'flat' within the meaning of Section 2(a-1).
• It could have been conveniently conveyed by the use of the expression "or garage" after the word "business" in the same breath.
• The bracketed phrase is rather indicative of the legislative intention to include a 'garage' as an accessory or attachment to a flat which satisfies the ingredients of Section 2(a-1).

SC Rule on Stilt Parking Spaces

• The SC again determined that stilt parking spaces are not garages.
• It said that the term 'garage' has not been defined in MOFA and therefore, the SC interpreted the term 'garage' as used in Section2(a-1) in a general sense or as a flat purchaser of ordinary prudence would think of that term.
• A garage is a place having a roof and walls on three sides. It does not include an unenclosed or uncovered parking space.
• It means the words covered or open garage cannot override the true meaning of the term garage in Section 2 (a-1).
• None of the provisions of MOFA regards an open garage as connoting a flat or an appurtenant or attachment to a flat.
• It would be impossible for an ordinary person to think that buying an open-to-sky flat with space for parking motor vehicles is a garage.
• There is no uniform definition of a garage but certainly, every parking space for motor vehicles is not one.
• A roofless erection could not be described as a garage.

About the third contention is stilt parking spaces part of the common area or facility?

• The Supreme Court questioned the view taken by the High Court.
• The Supreme Court took the definition under Section 3 (f) of MOFA which defines common areas and facilities.
• The court expressed the view that in case the open or stilt parking space is treated as part of common areas.
• Every flat purchaser will have to bear the proportionate cost for the same although he may not be interested in such a parking space.
• Moreover, it is not necessary that all flat purchasers must use all common areas and facilities.
• Third,  the relevant test is whether such part of the building is normally in common use.
• The court relied on the same viewpoint that an open-to-the-sky parking area or stilted portion usable as parking space is not a garage and therefore, not sellable independently as a flat or along with a flat.
• The MOFA mandates the promoter to describe common areas and facilities in the advertisement.
• If a promoter does not fully disclose the common areas and facilities he does so at his peril.
• Stilt parking spaces would not cease to be part of common areas and facilities merely because the promoter has not described the same as such in the advertisement and agreement with the flat purchaser.

Rights of a promoter vis-a-vis the society concerning stilt parking spaces

• 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.
• The Supreme Court said that this argument cannot be accepted as it had already denied this contention that stilt parking space is not covered by the term garage much less a flat that is part of common areas.
• In its opinion, the Supreme Court found that MOFA restricts the rights of the promoter in a building or block being constructed to provide apartments.
• The promoter has no right to sell any portion of a building which is not a flat within the meaning of Section 2 (a-1).
• The promoter has no right to sell stilt parking spaces as these are neither flats nor appurtenant or accessories or attachments to a flat.
• The resulting judgement rejected all the contentions and arguments of a real estate development company that was going to sell garages or stilt parking areas as separate flats to owners who intend to use them as parking facilities.