LAW vs Case Law on 'FLATS' (MOFA)

PROLOGUE

 

As is, by and large, known, the Constitution of India, the nation’s basic charter, is the supreme law of the land. And all other laws are subordinate to the Constitution; and as such, must be read and interpreted in the light of the constitutional provisions.

The authority to legislate by the Union and States   is as conferred by Article 246 of the Constitution. Of the three independent lists as provided in the Seventh Schedule to the Constitution, List- II comprises the entries over which the State legislatures have the exclusive powers to legislate.

Anyone concerned is expected, rather needs, to be aware, the Constitution itself has, over the recent years, been subjected to drastic amendments; and many are purported to have been made so as to remain in tune mainly with growingly changing socio-economic environments. Even so, in a manner of plain speaking, quite a few of the amendments do not, in public opinion, seem to have been done objectively and with a public-centric approach; instead, happen to have been thrust upon the people, - thereby rendering the age-old and time-recognised-honoured human rights, one being the very basic right namely, – the “right to property”, a laughing stock. Conceptually, though, that is really a bundle of rights, principally comprise the so called ‘ownership’; with all other appended and accompanying rights/interests.

One of the amendments so effected and sticking as a sore thumb /-point is the 44th Amendment(s) of 1978; resulting in drastically decolouring or dubbing what earlier was regarded a ‘fundamental’ right, into a ‘constitutional - or ‘statutory- right. As commented critically by a Researcher in her published Article,- “the amendment bestowed upon the Indian socialist state a licence to indulge in what Fredric Bastiat termed legal plunder. This is one of the classic examples when the law has been perverted in order to make plunder look just and sacred to many consciences.”Whatsoever that means in real life terms to a property holder, in one’s perspective, there could conceivably be no denying that, even so, for understanding and/or construing any provision of an enactment, in proper light, – such as, of state, MOFA herein - none can rightly afford to bypass or side-step the connected overriding provisions and vital implications of the other primary central/state statutes, besides any other, the three time tested ones, - the T P Act, Contract Act, Registration Act.

INTRODUCTION

The case law for study herein is the SC judgment reported @SC on Car Parking. (Nahalchand’s case). The legislation of relevance is the special law of Maharashtra embodied in two enactments, called the Maharashtra Ownership Flats Act, 1963 and the Maharashtra Apartment Ownership Act, 1970. They, in terms, respectively govern the property in the form of ‘units’ of a building, commonly known as ‘Flats’ and ‘Apartments’. For brevity, in the ensuing discussion, they are referred to as MOFA and MAOA.

In the instant case, to support the mutually contradicting stance, both parties have chosen to respectively put up pleas claiming how the relevant provisions of MOFA have to be construed; and differently interpreted.

 

To briefly recap at the outset, so as to serve as a backdrop:

 

A plethora of rules /principles of interpretation have been evolved and enunciated by courts in decided cases over the years to serve as aids for the purpose of construing any statutory provision. That is to ascertain the intention of the law makers, so as to make it effective and accomplish the objective of any enactment. As   there are several of them, court has to, for its purpose of adjudication, select the most appropriate one or more of them not only for a proper understanding of, but also for construing any provision, depending on the type of issue (s), to the end of adjudicating having regard/in accordance with the relevant provisions of the applicable governing enactment. That is easier said than done / doable. In that endeavour, no need to underline, it is the duty and responsibility of counsels for both sides to be of every assistance to courts.

This write-up is intended, and may be, read as a supplement to the earlier write-up published @ Nahalchand's Case (I)

The viewpoints stressed therein, in a nut shell:

The only point of dispute for court to decide and settle was whether the promoter was entitled to be granted the prayer for 'injunction' against the OPs.  Going by an understanding of the arguments advanced, and the reasoning and findings given, the court has to be simply taken to have said "NO". That is, on the ground that the promoter has no such lawful right to retain, for a separate sale, the disputed property, being the 'stilt car parking slots', forming part and parcel of the Common Areas and Facilities” (CAF).  That being so, the court's further observation (Para 40 of the judgment – which reads :  “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'. (FONT supplied) might haveto be regarded merely as an observation in the nature of "obiter dictum"; as distinct from “precedent”

Further that, with due respect to the wisdom of the judiciary, but in no manner offending it, the only way to reconcile the said observation might be to take it to mean that a promoter selling units of a building as ‘flats’, hence governed by MOFA, has “no right to sell separately” any such portion of the building complex, which is necessarily part and parcel of CAF. This is a straight forward and common sense point, readily inferable; hence requiring no long drawn process of reasoning, more so, any interpretation of the law in its legal sense.

Anyone proceeding on a different premise / understanding of the SC case, whether or not based on any legal /expert advice or otherwise,  will be doing so at his own peril; by reason of the prospect of his having to face a lifelong (or even beyond) 'infantile' / 'imbecile' litigation. 

2. To reinforce, though at the cost of repeating:

 

The instant case is one of civil law dispute between the two parties; and only them, none else. The final ruling given is having regard only to the particular facts of the case; and based on the interpretation of the given provisions of the MOFA as canvassed. If rightly viewed, from a legal perspective, in essence, what has been held is that all areas and facilities in a building complex of the kind herein, - meant, by the very nature, for common enjoyment, that is, other than/distinct from the areas of the flats in exclusive possession and enjoyment of the respective takers, in their own individual rights,- do not but constitute part and parcel of the “common areas and facilities”, within the meaning of MOFA. 

To proceed on that premise, if at all, the only other aspect which requires a separate study,- that is independent of / sans the instant case, - is this: What the “limited” area, as envisaged by the law connotes; and, whether promoter has a lawful right to sell to a flat taker, who has paid a price, inclusive or otherwise, the facility of parking his car / vehicle, stilt or open, so that the latter has a right to occupy and enjoy such area, as ‘limited’, to the exclusion of the rest of the flats takers, in the same manner as he has in respect of the exclusive area of his flat.

An Analysis of SC Judgment

3.1.The factual matrix as per narration in the SC Judgment is reproduced below:

The facts:

2. Few important questions of law arise in this group of appeals. It will be convenient to formulate the questions after we set out the material facts and the contentions of the parties. The narration of brief facts from S.C. Suit No. 1767 of 2004 will suffice for consideration of these appeals. Nahalchand Laloochand Private Limited is a Private Limited Company. As a promoter, it developed few properties in Anand Nagar, Dahisar (East), Mumbai and entered into agreements for sale of flats with flat purchasers. The flat purchasers are members of Panchali Co-operative Housing Society Ltd. (for short, `the Society'). The promoter filed a suit before the Bombay City Civil Court, Bombay for permanent injunction restraining the Society (defendant) from encroaching upon, trespassing and/or in any manner disturbing, obstructing, interfering with its possession in respect of 25 parking spaces in the stilt portion of the building. The promoter set up the case in the plaint that under the agreements for sale it has sold flats in its building and each flat purchaser has right in respect of the flat sold to him and to no other portion. It was averred in the plaint that each flat purchaser has executed a declaration/undertaking in its favour to the effect that stilt parking spaces/open parking spaces shown in the plan exclusively belong to the promoter and that the declarant has no objection to the sale of such spaces by it. The defendant (Society) traversed the claim and set up the plea that the promoter has no right to sell or dispose of spaces in the stilt portion and that the undertakings given by the flat purchasers are not binding being contrary to law and based on such undertakings, the promoter has not acquired any right to sell stilt parking spaces. >

3.2. For ready reference and appreciation, certain portions of the operative part of the Judgment, as selected for the present purpose (UPPERCASE/ITALICS supplied), are set out below; while specific comments are inset, other detailed comments are being separately furnished later:

A) The summary of findings of the High Court as given in the SC judgment (with BIG FONT supplied):

While dismissing the appeal, THE HIGH COURT RECORDED THE FOLLOWING FINDINGS:

The carpet area of any of the 56 flats/tenements in Panchali building is not less than 35 sq. mtrs.

The parking space enclosed or unenclosed, covered or open cannot be a `building'.

IT IS COMPULSORY REQUIREMENT TO PROVIDE FOR PARKING SPACES UNDER DCR.

IT IS OBLIGATORY ON THE PART OF THE PROMOTER TO FOLLOW THE DCR. THE AGREEMENT SIGNED UNDER MOFA BETWEEN THE DEVELOPER AND THE FLAT PURCHASER MUST BE IN CONFORMITY WITH THE MODEL FORM OF AGREEMENT (FORM V) PRESCRIBED BY THE STATE GOVERNMENT.

THE MODEL AGREEMENT DOES NOT CONTEMPLATE THE FLAT PURCHASERS TO SEPARATELY PURCHASE THE STILT PARKING SPACES.

The rights arising from the agreement signed under the MOFA between the promoter and the flat purchasers cannot be diluted by any contract or an undertaking to the contrary. The undertakings contrary to DCR will not be binding either on the flat purchasers or the Society.

The stilt parking space is a common parking area available and THE DEVELOPER IS OBLIGED TO PROVIDE THE SAME UNDER THE DCR WHEN THE CARPET AREA OF THE FLAT IS 350 SQ. METERS IT IS NOT AN ADDITIONAL PREMISES/AREA THAT HE IS AUTHORIZED TO SELL EITHER TO FLAT PURCHASER OR ANY OUTSIDER. IT IS PART AND PARCEL OF THE SOCIETY BUILDING AND IT CANNOT BE SEPARATE PREMISES AVAILABLE FOR SALE.As soon as the Corporation issues the occupation certificate and the Society is registered, the building as well as the stilt parking spaces, open spaces and all common amenities become the property of the Society.

The stilt parking spaces cannot be put on sale by the developer as he ceases to have any title on the same as soon as the occupation certificate is issued by the Corporation and it becomes the property of the society on its registration.

THE STILT PARKING SPACES CANNOT BE TERMED AS `OPEN/COVERED GARAGES' AND CLAUSE 2 OF THE MODEL AGREEMENT-FORM V PROVIDES FOR SALE OF COVERED/OPEN GARAGE IN ADDITION TO THE FLAT/SHOP.

IT IS IMMATERIAL IF THE PURCHASE AGREEMENT DOES NOT INCLUDE STILT CAR PARKING SPACES IN THE COMMON AREA OF AMENITIES. The stilt car parking spaces is part of the common amenities and IT CANNOT BE TREATED TO BE A SEPARATE PREMISES/ GARAGE WHICH COULD BE SOLD BY THE DEVELOPER TO ANY OF THE MEMBERS OF THE SOCIETY OR AN OUTSIDER.

Under MOFA, the developer's right is restricted to the extent of disposal of flats, shops and/or garages, which means that any premises which is included in the Flat Space Index (FSI) can be sold by the developer/promoter. The stilt parking space is not included in the FSI nor is it assessable for the Corporation taxes.

B)  OBSERVATIONS, FINDINGS, AND OPINION OF SC:

12. In view of the contentions outlined above, the questions that arise for consideration are:

(i) WHETHER STAND ALONE `GARAGE' OR IN OTHER WORDS `GARAGE' AS AN INDEPENDENT UNIT BY ITSELF IS A `FLAT' WITHIN THE MEANING OF SECTION 2(A-1) OF MOFA;

(ii) WHETHER STILT PARKING SPACE/OPEN PARKING SPACE OF A BUILDING REGULATED BY MOFA IS A `GARAGE';

(III) IF THE ANSWER TO AFORESAID QUESTIONS IS IN THE NEGATIVE, WHETHER STILT PARKING SPACE/OPEN PARKING SPACE IN SUCH BUILDING IS PART OF `COMMON AREAS AND FACILITIES' AND (IV) WHAT ARE THE RIGHTS OF THE PROMOTER VIS-`-VIS SOCIETY (OF FLAT PURCHASERS) IN RESPECT OF OPEN PARKING SPACE/S / STILT PARKING SPACE/S.

13. All these questions have to be considered in the light of statutory provisions. At this stage we notice some of the provisions of MOFA. As regards other statutory provisions, we shall refer to them wherever necessary.

Thus seen, the main focus has been on the provisions of MOFA. However, the proposition thrown up, as may be noted from the analytical study attempted herein, for an incisive consideration, is this: - The two enactments, for the reasons brought out, are prima facie not self -contained / -sufficient codes; and therefore, must be read together, as mutually interlinked /complementary; not on a standalone basis. 

14. THE DEFINITION OF `FLAT' IN SECTION 2(a-1) IS MOST VITAL AND DURING COURSE OF ARGUMENTS IT HAS BEEN RIGHTLY SAID THAT MEANING OF THE WORD `FLAT' IS THE ACTUAL FULCRUM OF MOFA. SECTION 2(A-1) READS THUS:

In the same vein the other arguments of either parties, it might be noted, have been set out, and considered mainly having regard to the statutory definitions of the other words/expressions used in the statute namely, ‘common areas’, ‘garage’,

As may be readily inferred, simply following upon the lines of arguments of both sides, the court appears to have confined itself, in considering the point of and settling the private dispute, with the main focus, as urged, merely on interpretation of the statutory definitions of the words / expressions under reference.

18. Section 10 casts duty upon the promoter to take steps for formation of co-operative society or company, as the case may be. The said provision reads as follows:

S.10. (1) As soon as a minimum number of persons required to form a Co-operative society or a company have taken flats, the promoter shall within the prescribed period submit an application to the Registrar for registration of the organization of persons who take the flats as a co-operative society or, as the case may be, as a company; and the promoter shall join, in respect of the flats which have not been taken, in such application for membership of a co-operative society or as the case may be, of a company. Nothing in this section shall affect the right of the promoter to dispose of the remaining flats in accordance with the provisions of this Act.

Provided that,….

Provided further that,

19. There is also obligation cast upon promoter to execute the documents of title and CONVEY TO THE CO-OPERATIVE SOCIETY OR THE COMPANY OR AN ASSOCIATION OF FLAT PURCHASERS/APARTMENT OWNERS,RIGHT, TITLE AND INTEREST IN THE LAND AND BUILDING BY VIRTUE OF SECTION11 which reads thus:

S.11.  (1) A promoter shall take all necessary steps to complete his title and convey to the organization of persons, WHO TAKE FLATS, WHICH IS REGISTERED EITHER AS A CO-OPERATIVE SOCIETY OR AS A COMPANY AS AFORESAID, OR TO AN ASSOCIATION OF FLAT TAKERS OR APARTMENT OWNERS HIS RIGHT, TITLE AND INTEREST IN THE LAND AND BUILDING, AND EXECUTE ALL RELEVANT DOCUMENTS THEREFOR IN ACCORDANCE WITH THE AGREEMENT EXECUTED UNDER SECTION 4 and if no period for the execution of the conveyance is agreed upon, he shall execute the conveyance within the prescribed period and also deliver all documents of title relating to the property which may be in his possession or power.

The specially marked words “IN ACCORDANCE WITH THE AGREEMENT EXECUTED UNDER SECTION 4” are so crucial, as requiring to be given the due importance; ought not to be glossed over. That is, one would urge, necessary, for a proper understanding and appreciation of the purport and import of Section 11. And, if so done, it is bound to be realised that, the final conveyance to the registered society (or company or association) as envisaged, would be of the entire property (land and building) in the complex; but that should/could only be, subject to, not only the exclusive rights to the ‘flat’, so also the proportionate right / interest in the common areas and facilities (though undivided), but not excluding but including the right to such part of them as demarked “limited”, and passed on, “as appurtenant thereto”, to individual flat taker(s), as per the terms spelt out in the “agreement to sell” respectively entered into.

Also needs to be specially noted that, Section 11, in terms, covers / applies to ‘apartments’ as well, albeit ‘apartments’ are, generally speaking, governed by the separate enactment i.e. MAOA. Further that, in the MAOA itself there is no provision to cover the mandate of “final conveyance”; for which, therefore, one has to necessarily turn to and take into consideration what is provided in, besides MOFA, the rules framed there under (Rules 8 and 9). Similar such clinching clues are to be found in both the enactments, elsewhere as well. Most significant of all is, - clause 25 of FORM V, prescribed for MOFA, which reads: “This Agreement shall always be subject to the provisions of the Maharashtra Apartment Ownership Act, and the rules…”

20. Section 16 of MOFA provides that the provisions contained therein are IN ADDITION TO THE PROVISIONS OF THE T. P. ACTand shall take effect notwithstanding anything to the contrary contained in the contract.

By necessary implication, (a) for a proper understanding / construing the implication of the provisions of MOFA, the related provisions of the TP Act ought to be kept in view, and given due weight age; and (b) though not so spelt out,- so also, besides any other, of the related / connected provisions of the Contract Act, Registration Act.

Re: question nos. (i) and (ii):

(A) WHAT IS `FLAT'?

21. FOR PROPER CONSIDERATION OF QUESTIONS (I) AND (II) AS AFORE-REFERRED, IT IS OF CONSIDERABLE IMPORTANCE TO ASCERTAIN THE IMPORT AND MEANING OF THE TERM `FLAT' DEFINED IN SECTION 2(A-1) ....

(B) WHETHER STILT PARKING SPACE IS A GARAGE?

30. THE NEXT QUESTION IS, WHETHER STILT PARKING SPACE IN A BUILDING REGULATED BY MOFA IS A `GARAGE'. THE TERM `GARAGE' HAS NOT BEEN DEFINED IN MOFA AND, THEREFORE, WE NEED TO FIRST FIND OUT WHAT IS THE EXTENT AND SCOPE OF THAT TERM IN SECTION 2(A-1). THE GENERAL TERM `GARAGE' IS APPROPRIATED IN ENGLISH FROM THE FRENCH LANGUAGE AND MEANS

34. The relevant portion of condition No. 2, Form v appended to 1964 rules reads as under:

THE FLAT PURCHASER HEREBY AGREES TO PURCHASE FROM THE PROMOTER AND THE PROMOTER HEREBY AGREES TO SELL to the Flat Purchaser one flat No. .......... of the Type .......... of carpet area admeasuring .......... sq. meters (which is inclusive of the area of balconies) on .......... floor as shown in the Floor plan thereof hereto annexed and marked Annexure D/Shop No. .......... /covered/open Garage No. .......... in the .......... Building (hereinafter referred to as the Flat;) FOR THE PRICE OF RS. ..........INCLUDING RS. .......... BEING THE PROPORTIONATE PRICE OF THE COMMON AREAS AND FACILITIES APPURTENANT TO THE PREMISES, THE NATURE EXTENT AND DESCRIPTION OF THE COMMON/LIMITED COMMON AREAS AND FACILITIES/LIMITED COMMON AREAS AND FACILITIES WHICH ARE MORE PARTICULARLY DESCRIBED IN THE SECOND SCHEDULE hereunder written. The Flat Purchasers hereby agrees to pay to that Promoter balance amount of purchase price of Rs. .......... (Rupees .......... ...............) having been paid to the Promoter on or before the execution of his agreement in the following manner;

35. WE DO NOT PERCEIVE ANY FORCE IN THE ARGUMENT THAT OPEN PARKING SPACE TANTAMOUNTS TO A `GARAGE' WITHIN THE MEANING OF SECTION 2(a-1) READ WITH CONDITION NO. 2,  FORM V, OF 1964 RULES. CAN A PERSON BUYING A FLAT FOR RESIDENCE OR ONE OF THE USES MENTIONED IN SECTION 2(a-1) REALLY THINK THAT OPEN TO THE SKY OR OPEN SPACE FOR PARKING MOTOR VEHICLES IS A GARAGE? WE DO NOT THINK SO....

In perceiving as aforesaid, Paragraph 11 of FORM V, the second of two sentences therein, which reads, -“He SHALL USE THE GARAGE OR PARKING SPACE only for propose of for keeping or parking the Flat purchaser’s own vehicle”-has apparently been lost sight of; that mentions “parking space”, in addition to “garage”.

37. THE HIGH COURT HAS HELD THAT THE STILT CAR PARKING SPACES ARE PART OF THE COMMON AMENITIES. IS THE HIGH COURT RIGHT IN ITS VIEW? MOFA DOES NOT DEFINE NOR does IT EXPLAIN `COMMON AREAS AND FACILITIES' THOUGH THE SAID PHRASE IS USED AT VARIOUS PLACES IN THAT ACT. Mr. Pravin K. Samdani, LEARNED SENIOR COUNSEL FOR MAHARASHTRA CHAMBER OF HOUSING INDUSTRY SUBMITTED THAT FOLLOWING COULD BE TERMED AS PART OF THE `COMMON AREAS':

The aforesaid list as suggested by the learned senior counsel, in our opinion, is not exhaustive. IT MAY NOT BE OUT OF PLACE TO REFER TO SECTION 3(f) OF MAOA WHICH DEFINES `COMMON AREAS AND FACILITIES' AS FOLLOWS:

3. “Definitions – In this Act, unless the context otherwise requires,-“*

*(IN THE JUDGMENT THE opening WORDS, IN INVERTED   COMMAS, ALBEIT CRUCIAL requiring to be focussed on, NOT FOUND)

(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) ...

(3) the basements, cellars, yards, gardens, PARKING AREAS and storage spaces;

(4) to (7)..... 

(8) all other parts of the property necessary or convenient to its existence, maintenance and safety, or normally in common use;

……….

IT IS TRUE THAT INTERPRETATION CLAUSE OR LEGISLATIVE DEFINITION IN A PARTICULAR STATUTE IS MEANT FOR THE PURPOSES OF THAT STATUTE ONLY AND SUCH LEGISLATIVE DEFINITION SHOULD NOT CONTROL OTHER STATUTES. BUT THE PARTS OF THE PROPERTY STATED IN CLAUSES (2), (3) AND (6) OF SECTION 3(f) AS PART OF `COMMON AREAS AND FACILITIES' FOR THE PURPOSES OF MAOA ARE WHAT IS GENERALLY UNDERSTOOD BY THE EXPRESSION `COMMON AREAS AND FACILITIES'. THIS IS FORTIFIED BY THE FACT THAT THE AREAS WHICH ACCORDING TO THE LEARNED SENIOR COUNSEL COULD BE TERMED AS `COMMON AREAS' IN A BUILDING REGULATED BY MOFA ARE SUBSTANTIALLY INCLUDED IN AFORE NOTICED CLAUSES OF SECTION 3(f) OF MAOA. LOOKING TO THE SCHEME AND OBJECT OF MOFA, AND THERE BEING NO INDICATION TO THE CONTRARY, 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.

38. IT WAS ARGUED THAT UNDER MOFA IT IS FOR THE PROMOTER TO PRESCRIBE AND DEFINE AT THE OUTSET THE `COMMON AREAS' AND UNLESS IT IS SO DONE BY THE PROMOTER, THE PARKING AREA CANNOT BE TERMED AS PART OF `COMMON AREAS'. WE ARE QUITE UNABLE TO ACCEPT THIS SUBMISSION.....

IF A PROMOTER DOES NOT FULLY DISCLOSE THE COMMON AREAS AND FACILITIES HE DOES SO AT HIS OWN 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. ALTHOUGH THERE IS SOME MERIT IN THE CONTENTION OF THE APPELLANT THAT HIGH COURT ERRED IN PLACING RELIANCE ON THE TWO ASPECTS--NAMELY, THAT THE AREA OF STILT PARKING SPACE IS NOT INCLUDED IN THE FSI AND SUCH AREA IS NOT ASSESSABLE TO THE CORPORATION TAXES - IN REACHING THE CONCLUSION THAT STILT PARKING SPACE IS PART OF `COMMON AREAS' BUT IN OUR VIEW EVEN IF THESE TWO ASPECTS ARE EXCLUDED, IN WHAT WE HAVE DISCUSSED ABOVE STILT PARKING SPACE/OPEN PARKING SPACE OF A BUILDING REGULATED BY MOFA IS NOTHING BUT A PART OF `COMMON AREAS' ...

39. WE HAVE NOW COME TO THE LAST QUESTION NAMELY-- WHAT ARE THE RIGHTS OF A PROMOTER VIS-`-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.

40. MOFA WAS ENACTED BY THE MAHARASHTRA LEGISLATURE AS IT WAS FOUND THAT BUILDERS/DEVELOPERS/PROMOTERS WERE INDULGING INMALPRACTICES 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. & Ors..4, Karnataka State Financial Corporation v. N. Narasimahaiah & Ors. and Bhikhubhai Vithlabhai Patel & Ors., v. State of Gujarat & Anr., 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'.

The case law cited, on a quick reading, does not appear to be of any direct relevance or of real help to support the arguments. Be that as it may, as is seen, the court itself has not considered necessary, hence not considered the case law cited.

Concerning the view the court has taken, as borne out in the last sentence of paragraph 40. , that reads, -  “ 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”,-  read, - besides other detailed comments herein later,-  the inset comments under earlier paragraphs 19 and 20 of the judgment.

41. In view of the above, it is not at all necessary to deal with the factual submissions advanced by Mr. Tanmaya Mehta. Having regard to the answer to question No. (iv), the finding of the High Court that undertakings are neither binding on the flat purchasers nor the society also warrants no interference.

UQ

NOTE: To make it clear, while reproduced above are only some portions on a selective basis, it is recommended, being necessary, to mindfully read the whole of the Judgment for an independent study and understanding.

(UPPER CASE/Italics supplied)

4. OWN INEPENDENT OBSERVATIONS and  VIEWPOINTS:

A) Facts as narrated are not seen to cover or provide any clue on the following:

(a) Whether as per approved plan, ‘stilt parking’ and ‘open parking’ had been demarcated?

(b) Whether in the agreement (s) for sale with flat takers those were disclosed, so also the price there for, either as part of lump sum or separately, and charged for and collected from the flats takers?

(c) Whether there were sale deeds executed and registered? If so, how the provision for car parking, both stilt and open, and consideration there for were disclosed?

(d) Whether the 25 stilt car parking slots retained by the promoter were the surplus remaining; that is, excluding those covered (as queried) in (b) and (c) above?

(e) Whether the promoter had any unsold flats left with it, after the CHS was formed and registered?

(f) Whether the formal conveyance as mandated by Section 11 of the MOFA has been duly effected? If answer is ‘yes’, did the promoter have any unsold flats even then? 

Note: Had the aforesaid and any other further relevant facts been gone into, in details, and brought on record, that could have been of immense assistance for firstly the lower courts, to adjudicate the point of dispute in proper light and better perspective.

B) Interpretation of MOFA

The commentary and cited case law in the popular text book published by Law Book House (2003 Edn.) on MOFA, etc., are of guidance. At pgs. Xli, xlii, the case law summed up under the topic head, - GARAGE USED FOR OTHER THAN PARKING CAR,provides useful information. None of those old court cases have been cited in the instant case or even referred; hence the judicial view taken in the past, especially on the import or significance of the concepts such as, ‘common areas’ and garage’ seems to have been over sighted.

Similarly, no notice is seen to have been taken of some of the other useful information available. Particularly, those are on the history and historical developments of the state legislation on ‘flats’. One believes that, those could have thrown more light, so as to assist the court in adjudicating the dispute in the instant case in all its ramifications. To be precise, as one sees, had it been so stressed, the court would possibly have been persuaded to veer round to the view that after all, the two enactments, MOFA and MAOA, though prima facie  are separate , not really so but would have be necessarily read together, not in isolation, for certain practical purposes. For example, in the instant case, for a proper constriction and understanding of the true import of the terms such as ‘limited’ common areas- of which special definition is found in MAOA, but not in MOFA. 

To dilate:

At page 10 of the book -

i)   In the very nomenclature of the enactment, the word ‘ownership’ is used.

The first limb of the preamble to the MOFA (1963) reads:

WHEREAS, it has been brought to the notice of the State Government that, consequent on the acute shortage of housing in the several areas of the State... sundry abuses,  malpractices, and difficulties relating to the promotion of the construction of, and the sale and management and transfer OF FLATS TAKEN ON OWNERSHIP BASIS exist and or increasing. 

The third limb reads:

AND WHEREAS, it is now expedient after considering the recommendations and suggestions made ... to make provision during the period of such shortage of housing for the regulation ...., OF FLATSON OWNERSHIP BASIS.... 

ii)  At page 15 of the book, read the commentary on case law on – Whether Flat can be attached and sold in execution of a decree?

 

It is to be noted that, earlier, there was a controversy on the point of issue, and in the absence of a clear cut provision in MOFA, the dispute had to be resolved by adverting to the (though connected but strictly extraneous) provisions of the State Co-op. Societies Act, etc., and settled through a long drawn process of reasoning. Incidentally, even after the 1986 retroactive amendment of the definition of “Flat” (section 2 (a)), to include ‘an apartment’, no specific provision has been made enabling the flat holder to mortgage and obtain home loan. In other words, for obtaining home loan, a flat holder has to necessarily rely on the specific provision in the other enactment namely, MAOA. No need to add that, such is the position that has come to be/ is being accepted and followed all along for the granting of home loans by lending institutions also to ‘flat holders’, not only to ‘apartment purchasers’. Incidentally, that such is the position has been recognised also for tax purposes. The reference is to, among others, the allowance of tax incentives in respect of home loan, also to ‘flat holder’. That is very much intended may be seen from the several provisions of the I T Act; for example, see the comprehensive language of section 269 UA, intended to cover both types of units, i.e. flats, besides apartments.    

At page 151 of the book, the expert commentary, in the same vein, reads:

Prior to 1970 it was felt that on account of shortage of lands in urban areas the majority of...could not think in terms of owning houses on individual basis. True, there was an ever-growing tendency to construct multi-storeyed flats, apartments, and the like on ownership basis but persons purchasing.... did not have a marketable title thereto and could not obtain any loan by mortgaging such flats, felt necessary to legislate.... The above Act was thereforepassed to provide for the ownership of an individual apartment in a building and to make such apartment heritable and transferable property, and to provide for matters connected with the said purposes.>

To be noted: The above narrated legislative history goes to explain that, the basic objective was to vest purchasers of both flats and apartments with ‘ownership rights’, alike.

ON THE CONCEPT OF, - “COMMON AREAS AND FACILITIES”

As specially defined in MOFA, the term “common areas and facilities”, of course, means and includes, - the land on which the building stands, and all other wedded but common areas or facilities; which again is an expression specially defined, as to mean and include certain items specified. However, should one have to go by a strict and narrow view, as has been done in the instant case, then that would inevitably lead to a strikingly piquant /bizarre situation. In that, all those other facilities known to be provided by promoter’s as agreed with flat takers but not found a mention, e.g. swimming pool, club house, and the like, or those compulsorily required to be provided as per the mandates of local regulations e.g. so called, - ‘Rain Water Harvesting’, Sewerage Treatment Plant’ and the like, though physically located outside of the flat, would be left uncovered by the concept of “common areas and facilities” as defined. Albeit, those also are, taken into account for pricing, and required to be available to the flat takers, for common use and enjoyment,- for the purposes for which they are intended or required.

Another aspect that has not been argued, hence left unconsidered by court (s) is this:

Statutory interpretation by Francis Bennion, 2nd Edn., section 288, with the heading “presumption that updating construction to be given” states one of the rules thus (page 617):

It is presumed that parliament intends the court to apply to an ongoing act a construction that continuously updates its wording to allow for changes since the act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of the enactment, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law. 

With that in focus, if one were to test the interpretation (as urged, -and accepted by court) of the word ’garage’, the only inference possible is that for a proper construction, what ought to be borne in mind are these: Any such concept as ‘garage’ keeps on changing over the years. Going by natural presumption, the word ‘garage’ has been used in the 1963 enactment, as that was the type  of facility for car parking known at that point in time and in vogue. But it is only in course of time later, over the years, the new ideas of having for car parking, -stilts, underground parking, even the lately known high / multi level car parking, have come in vogue. In view thereof, if the above rule of construction were to be followed, then, in today’s context, even though the same term ‘garage’ has continued to be used, it must be given a new meaning, as to accommodate or yield to take within its ambit also the new kinds of later innovations; that is, besides stilt, also the others as afore said. Further, the words “appurtenant to flat” have no small significance but must be given the meaning as intended and warranted; that has not been done in the instant case. Incidentally, in MAOA, CAF, as per the inclusive definition per sec. 3 (f), means, -“PARKING AREAS”.  Further, to pin point, sec 3 (n), in terms, defines “limited common areas and facilities’; and, as elsewhere (in more than one context), provided, if so designated in the Declaration filed by promoter in Form ‘A’, the said limited areas should be treated as “reserved for use of certain apartment or apartments to the exclusion of  te other apartments”.

In fact, as said earlier herein, the court itself has observed to the effect that the meaning as assigned in MOAO to the concepts dealt with cannot be simply ignored. Another reason, as canvassed, even if to take a common sense view, both the Acts must be read together, for the purpose of construing the meaning of ‘limited common area’. If so done, one submits, that demarcated stilt car parking area(s) will automatically come within the scope of the said term; hence, to be covered/included in FORM V. That is, same as in/no different from the recitals to be included in the deed of apartment / conveyance to apartment purchaser under MAOA.

No need to add and pinpoint that, to hold otherwise, that would have the patently unintended or unwarranted consequence. That is, result in denying / depriving flat takers the unquestionable fundamental rights to transfer, inherit, mortgage, so on, of the flat so also the undivided interest in the CAF , not excluding the ‘limited’ area as sold in terms of FORM V ; that would fly in the face of the very objective of the MOFA, also of the allied enactment, MAOA, so much so result in a ridiculous situation.

For similar reasoning, even if ‘flat’ were to be taken requiring to be construed so strictly as argued and accepted, as to exclude ‘stilt car parking’, there seems to be nothing in MOFA in support. On the contrary, for reasoning advanced herein, the stilt car parking slots, it can be validly and quite forcefully argued, must be given the same meaning as under MAOA and regarded as “limited common area” also under MOFA. If so done, what must inevitably follow is that flat taker, same way as apartment taker, has a lawful right for an exclusive occupation and enjoyment of the assigned slot(s) out of the common areas exclusively for his parking.Following through such reasoning, the view that promoter has no right to sell, or if done for a price that will be illegal,- as heard to being opined, mindlessly in one’s perception, even by experts in legal circles, -is bound to fall like a pack of cards. This is no different from, but supported by the same logic, or reasoning behind that flat taker is regarded to have an inherent right to mortgage and obtain home loan, so on, of the property , in its entirety, sold by promoter and purchased, for a price, by its taker. Also that, any such term in MOFA, not specifically  covered in the definition section, ought to, for all practical purposes, be widely construed. To be so done, keeping in focus the most fundamental rule of all; namely the clinching rule of “purposive interpretation”, -which if simply understood, merely means that it must be such an interpretation as to serve or sub serve  eventually the purpose  or the object of accomplishing the legislative intent behind. 

For the above purpose, to take a narrow view, - that is MOFA and MAOA are two entirely independent enactments,- would make a non sense of , and offend, the very wisdom or objective of the legislation or legislative intent behind. It is to be observed that, certain observations in the instant case itself,- read closely  paragraph 37 (the concluding lines therein) of the judgment, - the SC, as may be inferred, is inclined / leaning towards such a line of reasoning as canvassed above; but, regrettably though, has stopped short of pursuing it any further.

“Question of law”

In the first place, in one’s perception, a fundamental point (poser) that arises for an analytical study is this: Does the matter necessarily involve a ‘question of law’, so as to require a long drawn process of reasoning, -as is seen to have been resorted to, - for arriving at a convincingly judicious answer? To put it differently, is it not preferable to adopt a different line of reasoning, but which in comparison entails no complicity, if that would lead to same conclusion as of now. That is, for the court to decide, the promoter’s contested action in retaining the stilt car parking slots, with intent to sell separately, is unlawful, not being in accordance with the governing law; hence, its prayer for an order of injunction against the OPs cannot be granted but should be rejected.

To be precise, had the OPs put up their case on such different grounds and advanced arguments accordingly, as suggested herein, the court’s decision would still have been the same and in their favour. For that matter, possibly, the dispute would not have had to be taken up to court.

To add:

A) According to the scheme of the provisions as embodied in MOFA, sale of a flat is required to be made for a price as agreed with flat taker. As clearly spelt out in Section 4, the written “agreement for sale” there under should be in the prescribed form. The form so prescribed is FORM V (inserted by G.N. of 10-4-1987, w.e.f. 13-4-1987).

B) Section 4 (1A) lays down what all are the particulars which the prescribed ‘agreement’ for sale taken “on ownership basis” should inter alia include. As specified in clause (a) therein, the particulars the agreement should contain,among others, are, -

(iv) the price of the flat including the proportionate price of the common areas and facilities which should be shown separately, to be paid by the purchaser of flat; ..”     

(v) the precise nature of the organisation to be constituted of the persons who have taken flats or are to take the flats;

(vi) the nature, extent and description of the common areas and facilities;

(vii) the nature, extent and description of LIMITED , COMMON AREAS AND FACILITIES, IF ANY;

(viii) percentage of undivided interest in the limited common areas and facilities if any, APPERTAINING TO THE FLAT AGREED TO BE SOLD;

(b) (This enumerates copies of documents requiring to be attached to the agreement for sale in FORM V)....

The foregoing are mandatory provisions; hence, are required to be mindfully read, and harmoniously and strictly construed. If so done, so far as one could see, the promoter will be within his lawful right only if it /he effects sale of any facility, - to be precise any special type of car parking, such as stilt car parking as in the instant case, - in terms / pursuance of the same document – i.e. the agreement for sale (FORM V) entered into for effecting the sale of ‘flat’ as such. To put it differently, if promoter does not do so or does it any differently, as in contemplation in the instant case, it / he will be exposing self to legal action, of every conceivable sort in general, more so on the ground of having committed an ‘offence’ as envisaged in inter alia, section 13 and 14 of MOFA itself. So prefer to leave it as is, following the same wisdom implied in the SC‘s related cryptic observations in a related context of the Judgment.

Be that as it may, now, looking into the successive  judgments of HC and SC, it is obvious that both courts  have proceeded on same lines; that is, inferably, toeing the lines with, and /or  conceding / to following upon the lines of arguments as advanced by both sides - on the premise that there are “questions of law” requiring adjudication. And, for that purpose, as urged, that an interpretation of certain words/expressions used in MOFA has to be embarked on/ gone through.

C) At this juncture, the under mentioned aspects, as commonly understood, and put in a language for a layperson to easily make out, are essentially required to be borne in mind:

According to well settled and largely followed principles / rules, as elicited in a plethora of case law:

Not all questions are to be regarded as ‘questions of law’, particularly as requiring a judicial interpretation.  But only any question on which the position in law is not clear, or not clear enough to decide single-mindedly and firmly affirm, and hold that there is only one view possible which could be intelligently and judiciously (in its profound sense) held out. And more so, without having to go through a long drawn argumentative process and reasoning. In short, an appeal ought not to be entertained unless the court is satisfied that, legally but strictly speaking, there is no scope for holding a contrary view or a better one at that to please the eyes of law.

In the instant case, counsels are seen to have gone on, so to say, to convince the court on the merits or otherwise of own independent arguments. In doing so, they are seen to have harped on mainly the statutory definitions of the words, - ‘flat’, ‘common areas and facilities’, ‘garage’, so on.

In doing so, however, it is noted that, court’s attention has not been drawn to, besides others, -hence not considered by the court(s) –the following intricate facets:

(a) The opening words of section 2 of the MOFA, which reads, -

“Definitions. – In this Act, UNLESS THE CONTEXT OTHERWISE REQUIRES, - “

(b) The principle of interpretation that has been receiving more and more attention of courts, in recent times, graphically described as, “UPDATING CONSTRUCTION”.

The said principles, in a manner of urging, may have to be construed to be an extension of the other rules of interpretation enunciated by courts in decided cases, commonly to aid ascertainment of so called “Contextual Meaning”.

Those and the other appropriate rules of interpretation could have been summoned for assisting/useful guidance, in the exercise of interpretation gone through; which, however, has not been done in the course of arguments by both the sides.

As is imagined, perhaps, had the foregoing been argued and relied upon, the court would have been convinced that the correct position in law is readily decipherable, even without having to go through the long drawn process of reasoning as urged by the parties.

In the Judgment, the main observations refer to the mandatory provisions of section 10 and section 11 of MOFA. Those provisions, if closely read and incisively understood, are sure to have been noted to be clarificatory and self-sufficient enough for concluding that the promoter’s action in retaining some stilt parking slots, with intent to sell separately, that is outside of and after execution and registration of the “agreements to sell” is in any case, a misguided action / misadventure, and clearly in contravention of the scheme of the provisions of sections 11 and 12 of MOFA. To be precise, the point sought to be made is. even as per a plain and straight forward reading of only sections 11 and 12, on a standalone basis, the point of dispute would have come to be settled no differently than now. That is, without having had to go through the painful long drawn process of “interpretation” resorted to, of the words/ expressions namely, ‘flat”, “garage” and “common areas and facilities” and “limited” “common areas and facilities”.   

On the aspect of principles of interpretation to be borne in mind, what are categorised as External Aids are of the utmost importance. ‘Legislative History and Background’ is one of them, to be taken as of significant relevance herein.

As lucidly summed up in text books:

The legislative history of a statute could be traced and considered to understanding its scope. Held permissible for ascertaining the evil sought to be remedied.

Further, to sustain the presumption of constitutionality, consideration may be had even to matters of common knowledge, the history of the times and every conceivable state of facts existing at the time of legislation. Therefore, due importance must be given to the legislative history, context and background.

It is permissible to look into the Statement of Objects and Reasons of the Bill for the purpose of appreciating the background and the antecedent factual matrix leading to the legislation. Also, for finding out the intention of the legislature and to interpret and determine the true scope of the provision, provided of course, there be ambiguity in a genuine sense.

The words and expressions  defined in one statute as judicially interpreted do afford a guide to the construction  of same words or expressions used in another , should both statutes are pari materia legislations or it is specifically provided in one statute  to give the same meaning to the words as defined in another statute.

Had these been kept in focus, as would have been ideally expected, and brought up in the course of the proceedings, as one sees it, there could have been no justification for the dispute to have been settled in better light?

SC in re. PODAR CEMENT

This write-up herein might not be complete without drawing attention to the earlier one attempted in this series, and posted @LAW and ('vs'?) CASE LAW On “FLATS” – A Critical Study -TaxGuru. That represents a case study of the SC judgmentdelivered in re CIT vs Podar Cement Ltd. (reported on this website @Owner vs  Beneficial Owner- of Flats  ; also in 226 ITR 625). In which, the concept of “PRECEDENT”, having regard to the factual matrix of that case, has been specially brought out in detail, which is of a direct relevance herein as well.

Some of the other aspects covered / viewpoints shared in that article, with particular reference to the same property holder’s rights in flats as in the instant case, would be of common relevance.

 

That is a case in which, as distinct from the instant case, the predominant issue concerned a dispute between the Revenue and taxpayer, Nonetheless, what needs to be pinpointed/noted is that, the apex court, in dealing with the connected aspect, of the rights of a holder of flats in a building complex, has followed a diagonally opposite line of reasoning, as distinct from the instant case. For a useful hint, in that case,- the ruling is to the effect that the most essential criterion of all, underlying the concept of “ownership”, so as to satisfy the acid test of “ownership”, the pre-requisites,- to quote from the judgment – are mainly these:

 

“(a) The power of enjoyment (e.g., the determination of the use to which the res is to be put, the power to deal with produce as he pleases, the power to destroy);

(b) possession which includes the right to exclude others;

(c) power to alienate inter vivos, or to charge as security;

(d) power to leave the res by will.

The Judgment further reads: “One of the most important of these powers is the right to exclude others. The property right is essentially a guarantee of the exclusion of other persons from the use or handling of the thing…But every owner does not possess all the rights set out above—a particular owner’s powers may be restricted by law or by an agreement he has made with another. (refer to G.W. Paton on Jurisprudence, 4th edn., pp. 517-18)”

 

For getting a full grip of the ratio of the said court decision, so as to appreciate why the ruling in that case is not reconcilable but prima facie contradicts the ruling in the instant case, it is strongly suggested, may be read, in full.

 

EPILOGUE

 

For underlining and driving home effectively certain related humane aspects, it may be, not out of context but, appropriate to share the outstanding wisdom of a legal luminary, - a great thinker and humanist of our times, all rolled into one,- behind the following quotes:

 

LAWYERS, PRESS, JUDICIARY

 

Lawyers

  

In a vast democracy like India, many citizens are bound to be undimensional.  But no lawyer has any excuse for being undimensional.  By his learning and equipment and by his professional competence he is better qualified than the rest of the citizenry to take an active part in the making of laws and their formulation of public policies. He would be failing his country if he did not do his duty. The lawyer has to act as a catalyst. The responsibilities which today lie on the shoulders of the lawyers are far greater than at any time in world history.

We produce lawyers who seem lost without case law to support their propositions.  The average lawyer, who finds himself without a precedent to cite, is like a tycoon without balance sheet, jazzman without a trumpet, a gossip without a club.

A lawyer with a well furnished mind alone can be truly a counsellor at law; he alone can, not merely look up precedents, but guide his client along the path of wisdom, even of generosities which may appear irrelevancies to the preoccupied client. In the hands of such a lawyer, the law represents the application of reason to noble and purposeful ends.

 

Man has been defined as a rational animal. But you cannot live in India without being constantly reminded that this definition was given to man by man himself in a characteristic moment of self-adulation.

 

In the last..decades, we have taken plenty of wrong turns at the crossroads , misused time, taken gold for dross and dross for gold; however, would like to reaffirm my unquenchable confidence in the long-term future of India.

 

To faithfully follow upon and continue to live with the same spirit and pessimistic(optimistic!) outlook, in the context herein, one may wish to simply add, -may be, it is, frankly speaking, not but too late in the day to even realise the gravity of the obtaining scenario; but that is not to say, by any yardstick used for measuring time, it may not be late for everyone concerned to wake up to the realities all around only to think of and striving own best for bringing about a change / improvement for a better tomorrow (!).

 

The New York State Legislature passed a major Piece of consumer legislation in 1977 to ensure that laws affecting common people would be “plain- language laws”. Attempt to likewise cure our laws of their incredible fuzziness is more than overdue, by decades.

 

There can be no excellence in the law without excellence in lawyers.

 

JUDICIARY

 

Quoting Pathak J, from a landmark SC Judgment, observed:

The responsibility fixed on the court is serious one. And there is no need to warn that this power ...can have grave consequences if the content of its potential is not truly appreciated and realized by those who wield it. Whenever a Court breaks new ground, the development and recognition of new rights is often accompanied by the birth of problems surfacing also for the first time..... UQ

Source: ‘Memorial’ lecture delivered on the subject of SC’s judgment in “the Judges’ case”

 

PRESS

 

The Press must make a sharp distinction between a story, the publication of which is dictated by public interests, and a story which is entirely sleazy ad sensational. Not only has the right but also duty to expose the truth fully.

 

(TO add: In any event, the Press has a basic duty not to give undue publicity or unduly project and propagate anything, the nuisances of which even a law expert may have no competence to be reasonably sure on or explain satisfactorily if questioned, - as to what is “the truth”, or attendant misconception)

 

Unfortunately, the 1980s has been a degraded decade- even progressions like the legal, accountancy and medical professions, have become commercialized. The same evil has afflicted journalism. Professions have sunk to the lower level of business. We are living in times when professional or business ethics sounds like an oxymoron, a contradiction like a hot ice –cube or a tiny giant.  Today the main idea of most newspapers, journals or magazines is to maximise readership, regardless of the higher values which ought to animate journalism.>

 

In a lighter vein, a reading of above leaves one, even though not normally used to or has a fancy to exaggerate or eulogize, with an irresistible  urge to visualize or admire the tax gatherers’ exemplary forethought in giving no different status to the two, - professionals and businessmen. Reference is to the long-range vision and wisdom in framing and bringing to taxation even as long back as in 1922, income of both under the same head, - old section 10 (1) (new section 28) of  IT Act.

The above are quotes from the memorable published articles and speeches, of legal legend, Palkhivala, a widely acclaimed scholar par excellence, with the backing of his erudite knowledge, also lifelong exposure and practical experience in the field of law practice.

 

(Source: WE, THE PEOPLE and We, the Nation; the two books are worthwhile to be read not once but times over as one will do of the Bible, the Bhagavad Geeta, or the like)

 

These are being shared in the fervent hope that may serve, as intended, the purpose of inciting, inducing, or provoking the others to appreciate, and try and imbibe the righteous spirit and public-centric approach.

 

Tail Piece:

To end with an optimistic note:-

No doubt, as things stand as of now, there appears to be no scope for hoping, in the foreseeable future, any positive or sincere move forward from the men in governance, either in the states or at the centre, towards a change in the overall scenario, for the better.

In the interim, the only hope on hopes that could provide some solace is that, the Judiciary, noted and commended of late for its pro-activism, may not waver in its endeavours but think of and come to the rescue, by providing some relief/bring succour to the thus far victimised buying community - purchasers /owners of flats or apartments. What is immediately called for is the realisation by the judiciary of the need for construing the extant state enactments (governing the construction and sale of multi-storeyed buildings / ‘units’ thereof), not only of Maharashtra but of every other State, in such a manner as to, not to resort to a technical or hyper technical approach, with the sole aim of bringing home justice to the investing public. As said herein before, that could be attempted and accomplished, to begin with, by construing the enactment (s) in a cohesive manner; that is, as legislation for saving and protecting the lawful rights of the investing people spoken of herein. May be, desirably do so, suo motu; say, by treating the matter as one deserving to be taken on and tackled as if it were a PIL. Alternatively, do so on the very next occasion the court is called upon to opine in the matter.   

Disclaimer: The foregoing brief analysis is intended to convey own thoughts and viewpoints, based on an independent study of the covered limited aspects. Welcome to share, should anyone, especially a competent law expert in field practice, entertain any doubt or has a better view to offer after an independent study, so as to serve the objective of common good.  

 

 V. Swaminathan B.Sc., B.L., FCA   

 

vswaminathan 
on 28 February 2014
Published in Property Law
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