THE MAHARASHTRA OWNERSHIP OF FLATS (REGULATION OF THE PROMOTION OF CONSTRUCTION, SALE, MANAGEMENT AND TRANSFER) (AMENDMENT) ACT, 1963.

1. Short title, [extent and commencement]. - (1) This Act may be called the Maharashtra Ownership Flats (Regulation of the Promotion of construction, Sale, Management and transfer) Act, 1963.

            (2) It extends to the whole of the State of Maharashtra.

            (3) This section shall come into force at once; and the remaining provisions of this Act shall come into force [in such areas, and on such dates as the State Government may, by notification in the Official Gazette, Appoint and different dates may be appointed for different areas.]

NOTES

v     The Act is for the whole of Maharashtra but the application of the various provisions contained in several chapters of the Act come into effect and/or are applicable to an area in Maharashtra which the State Government notifies in an Official gazette as set out in sub-section (3) of section 1.

v     This section is a definition section and as per rules of interpretation has to be taken for the purposes of determining the meanings of the expressions so defined. The definitions may be of mandatory nature when expressions like “shall” and/or “when” means is used will be exhaustive and/or when “includes” is used, the meaning gets extended. In interpreting the provisions contained in the Act have to be determined in terms of the definition clause pertaining to the subject matter and have to be accordingly interpreted. Rules of interpretation have to be applied when such occasion arise. This being so, the definition clause assumes significance as it determines the universe of discourse of the expressions used in the Act.

Subject to the above and other rules of interpretation, the definition clauses have to be interpreted by giving them the natural meaning as expressed. See AIR 2006 (3) S.C. 1459.

v     Stilt parking space – Whether can be separately sold by developer – Dispute about – Ownership of parking space in stilt area of building – Developer sold some spaces to some flat owners and retained 25 spaces for himself to be sold as per his choice –Society taking over forcible possession in some cases alleging developer could not retain spaces for him even though in every agreement of sale of flats it was specifically provided that flat owners will have no right or claim over parking places in stilt area of building – Lower Court dismissed suit of plaintiff for payment injunction against society from interfering with his possession of these parking places that have been enclosed by fabricated structure and locked by plaintiff – developer- Matter in appeal against lower Court decision – On ground that enclosed parking space is a ‘private garage’ as per Regulation 2(47) and he has right to retain and dispose of same separately – Held, open parking space is excluded from F.S.I. as per Regulation 35(2)(f) but enclosed one as per Regulation 36(5)(b)(i) is counted for F.S.I. and is chargeable to property tax. In instant case stilt parking places were unenclosed but covered. Regulation 36 provides that wherever a property is developed parking spaces as per scale laid down, there will have to be provided. Under DCR Regulation 36(2) for 56 flats (as case here) 28 parking spaces have to be provided for. Further section 3(2) of Ownership Flats Act provides that a developer in his advertisement has to disclose all fixtures, amenities as common facilities and precise nature of organization of persons to be constituted and to which title has to be transferred. Section 16 of Ownership Flats Act further provides that provisions in Act will be in addition to provisions of Transfer of Property Act. Agreement has to be in Model Form provided in Maharashtra Ownership Flats Act, but herein Clauses 3-B, 3-C and 3-D of model agreement have been deleted while signing it. When such are requirements of law any undertaking furnished by a purchaser cannot have binding effect on him as it would be contrary to guarantees available to purchasers. Further there cannot be any estoppel against a statute. Herein when building and land were transferred to society developers was duty bound to disclose all amenities and transfer all rights within 4 months to society. Herein Plaintiff Company retained stilt parking places to it by enclosing same with fabricated structure. This was totally illegal and voids ab-initio as stilt parking space was available as a common space for use of as members of society. Forced undertaking not to claim right to this space is not valid. Transfer of Property Act also does not permit part of society’s property i.e. enclosed stilt places will be sold to third parties or even members of society. Further as per Regulation 36(5) location of a parking place has been fixed. Whereas location of a garage is provided for and Regulation 38(8)(ii) stipulates that garage may be located at side or rear of building but at a distance of 7.5 meters. Defendant society is therefore, right in asserting that impugned parking spaces area a common amenity and cannot be treated as garage which can be sold by developer. Developer right to sell is restricted to extent of disposal of flats i.e. space which is included in F.S.I. Sale of some such spaces even before society was registered or occupation certificate were issued by Municipal Corporation is illegal and that by itself cannot be a reason to contend that same can be transferred notwithstanding undertakings by flat purchasers. Nahalchand Laloochand Pvt. Ltd v/s Panchali Co-operative Housing Society Limited 2008(3) Bom.C.R. 727 

******