Parking in cooperative housing society, or CHS, is a contentious issue for seller and flat owner who buy such space from the developer, despite a clear cut judgement from the Supreme Court. One would do well to remember that no agreement or declaration executed can override the law of the land
Nahalchnad Laloochand Pvt Ltd Vs Panchali Co-operative Housing Society (CHS) is a story of greed and excesses. Twenty five stilt car parking spaces in a building were sold by the builder to rank outsiders. Flats purchasers in the building eventually formed a society; and started obstructing the use of these parking spaces by the outsiders. Finally, the builder knocked on the doors of the City Civil Court for a permanent injunction against the Society, restraining it from distributing, in any manner, the possession of the car parking spaces. His suit was dismissed with costs. The matter then went to the Bombay High Court which, on 25 April 2008, left the builder red-faced. Yet, he did not relent and went all the way to the Supreme Court, for he was convinced that he had taken all the necessary consents and the flat purchasers could not go back on their word. Along the way, two others joined the torch bearer, as the ultimate judgement would affect their rights too.
How could the courts not grant a simple injunction against the miscreants? Not only in their respective ‘Agreements to Sell’ had the flat purchasers concurred to such sale of parking spaces by the builder but also given separate declarations to that effect. A true labyrinth of statutes, case laws, hair splitting over definitions, ensued. Provisions of Maharashtra Ownership of Flats Act, 1963 (MOFA), Maharashtra Apartment Ownership Act, 1970 (MAOA), the Development Control Regulations (DCR) promulgated under Maharashtra Regional and Town Planning Act (MRTPA), were pressed before the apex court and well reasoned out by it.
We all know that builders are entitled to sell a ‘flat’. So, at first, it was contented that stilt car parking space was a ‘flat’ as defined under MOFA. This ridiculous contention was, of course, rubbished by the Court. Eloquently the Supreme Court further concluded, “we find no justifiable reason to exclude parking areas (open to the sky or stilted portion) from the purview of ‘common areas and facilities’ under MOFA”. ............... “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’.”
But this does not mean that everything else, other than a flat, is a freebie. The correct interpretation being that builders cannot independently sell to outsiders common areas and facilities nor can they extract additional sums from the purchasers for purported sale of such common areas and facilities; the price stated in the Agreement to Sell as per the provisions of MOFA being inclusive of the proportionate price of the common areas and facilities.
The practice on the part of builders of separately selling common areas and facilities has been time and again decried by both the Bombay High Court as well as the Supreme Court. On the same premises common terrace, compound and garden cannot be sold separately by builders.
Whatever appeals to common sense and falls within the four corners of equity, justice and good conscience, is invariably the law of the land. We have a written constitution and any legislation not in harmony with its basic features can be stricken down. One would do well to remember that no Agreement or declaration executed can override the law of the land. You cannot be forced to ‘contract out’ of what is rightfully yours.
Buyers on the lookout for hand-outs should learn that there is no such thing as a free lunch and builders, on the other hand, should try not to swindle money by selling thin air. After all, avarice too is a sin, a sin, a sin.
Those seeking help or advice on CHS issues can contact Moneylife Foundation’s Legal Resource Centre (LRC) ( http://moneylife.in/lrc.html )
(Divya Malcolm is a senior associate with Kochhar & Co. The views expressed are her own and not to be construed as legal advice)
ED investigation officer has sought contempt action against the Subrata Roy and two journalists working for Sahara India news channel for allegedly interfering with the investigation of the 2G spectrum case
The Supreme Court while ruling that the plea against Subrata Roy for allegedly interfering with the probe in 2G scam is maintainable issued a contempt notice to the Sahara chief and his two employees.
A Bench comprising Justices GS Singhvi and KS Radhakrishnan issued notice to Roy and his two employees, who were working with his news channel, seeking their response on why probe be not initiated against them.
The court passed the order on a petition filed by Enforcement Directorate’s (ED) Investigating Officer (IO) Rajeshwar Singh, who is probing the multi-crore scam, alleging that the two journalists—Upendra Rai and Subodh Jain—had threatened and blackmailed him.
Rajeshwar Singh in his petition has sought contempt action against Roy and the two scribes for allegedly interfering with the investigation of the 2G spectrum case.
On 6 May 2011, the apex court had said prima facie it was of the view that an attempt was made to interfere with the investigation conducted by Singh in what has been described as 2G spectrum scam case and related matters.
The Bench had also banned Sahara India news network and its sister concerns from publishing and broadcasting any story or programme relating to Singh in response to 25 questions sent by Subodh Jain to ED official.
Jain had sent 25 questions to Singh seeking his reply to them. Some of the questions were personal in nature.
The court had observed that this was an attempt to blackmail Singh as it was done after Sahara India chief was served with summons by the ED to appear before it in connection with the investigation into the 2G scam.
The summons were issued under the provisions of the Prevention of Money Laundering Act.
The apex court had earlier restrained Roy from leaving the country and also restrained him from selling any of the properties of the Sahara Group.
The court had said its order for handing over title deeds of group’s properties worth Rs20,000 crore to SEBI was not followed in “letter and spirit”.
Global environment is benign, just now. Local environment is not
It’s been five years...