Adv. Lalit K. Jhunjhunwala (Lawyer) 24 June 2009

Maharashtra Ownership of Flats Act

1. Recently there was a judgement of Supreme Court that the Builder can not claim the money taken on account of Society Formation and MSEB Electricty Meter Deposite and he should refund the same to the Society/Buyer after deducting the actual expenses incured by the builder on the formation of Society and getting MSEB Meter. Can I get the eaxct Citation please?

2. Does Builder have right ot Sale Covered Parking Area? if yes under what provision and what is the percentage of covered parking arear which he must keep for the purpose of Common Parking and Visitor Parking.

3. Does Builder have right ot Sell Open Parking Slots? if Yes under what provision and If no what is the case law/ provision.

4. Can builder sell open space of the scheme as garden to the individual Flat Purchasers? if no, what is the provision? Case Law? what is the remedy available agaist it?

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4 Replies

nilesh chawda (tax consultants) 25 June 2009

please refer the decision of the Maharastra co-op Appellate court in case of "Prakash Auto " reported in C.T.J. on the issue of validity of stilt parking space by the builder.

komel (self employed) 08 July 2009

7 floor and 14 flats but the builder and relatives owns 60% and we are only 40% and it has been almost 24 years the building his made and not formed society and conveyance is not done.in the agreement it is clearly mentioned about formation of society.Please let em know how u can help or act on our behalf we need serious results

thanx

komel kerawalla

00919821600500

komelk@hotmail.com

Mangesh law_student (Service) 02 September 2009


		"

It was clear judgement given by Bombay high court that builder can not sell / dispose open spaces,stilt parking spaces. This judgement have been given on number of sections of MOFA like 22,23. Also this deceision is based on Transfer of property act, D.C.Rules. Please refer the citation for the Nahalchand Laloochand pvt.ltd v/s Panchali Co-Operative Housing Society case.

The builder in this case have lost the case and filed suit in Supreme court, but we are sure SC will give judgement in favor of flat owners as SC also can not go out of law. It's clearly written in law that open spaces,parking spaces can not be sell. Stilt area is not calculated in FSI so builder can not sell it.

By the was in which case you are referring SC verdict about claim over money taken for Society Formation and MSEB, please do inform.

Thanks,

Mangesh

Makarand Bakore (Advocate) 09 January 2011

Originally posted by :Mangesh Nalawade
"	Dear friends, The Supreme Court has upheld that order of the Bombay High Court and held that parking spaces cannot be sold by the builder. They are a part of the common areas and the cost of that land has to be charged to all the flat-owners in proportion to their carpet area. (Nahalchand Laloochand P.Ltd. vs Panchali Co-Op.Hng.Sty - JT 2010 (9) SC 414: 2010 AIR SCW 5549). In para. 34 of the aforesaid judgement the Hon'ble Supreme Court held that: "34. We have now come to the last question namely-- what are the rights of a promoter vis-a-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." (The complete order is available at : Nahalchand Laloochand P.Ltd. vs Panchali Co-Op.Hng.Sty.Ltd. on 31 August, 2010) The Hindu reported this judgement: https://hindu.com/2010/09/02/stories/2010090263011200.htm Cheers, Makarand " It was clear judgement given by Bombay high court that builder can not sell / dispose open spaces,stilt parking spaces. This judgement have been given on number of sections of MOFA like 22,23. Also this deceision is based on Transfer of property act, D.C.Rules. Please refer the citation for the Nahalchand Laloochand pvt.ltd v/s Panchali Co-Operative Housing Society case. The builder in this case have lost the case and filed suit in Supreme court, but we are sure SC will give judgement in favor of flat owners as SC also can not go out of law. It's clearly written in law that open spaces,parking spaces can not be sell. Stilt area is not calculated in FSI so builder can not sell it. By the was in which case you are referring SC verdict about claim over money taken for Society Formation and MSEB, please do inform. Thanks, Mangesh	"