Paragraph numbers below are the court’s original numbering, recovered from the source text.
23. Before we analyze Section 2(a-1), if we ask what the term 'flat' means, apart from the statutory definition, the reply must be that though it has no uniform meaning but in its natural and ordinary meaning, 'flat' is a self contained set of premises structurally divided and separately owned for dwelling. Concise Oxford English Dictionary (10th edition, revised) explains 'flat' -a set of rooms comprising an individual place of residence A within a larger building.
24. Webster Comprehensive Dictionary; International edition (Vol. 1) explains 'flat'- 1. a set of rooms on one floor, for the occupancy of a family; apartment. 2. A house containing 8 such flats.
25. In Stroud's Judicial Dictionary (5th edition, Vol. 2), a reference has been made to the observations of Somervell L.J, in Murgatroyd v. Tresarden, 63 T.L.R. 62 and it is stated; the natural meaning of the word 'flat' is a separate self-contained C dwelling.
26. In Words and Phrases, Permanent Edition, (West Publishing Company), Vol. 17, while dealing with the term 'flat' generally, it is stated : "The word 'flat' has no technical, legal meaning, so that a court can pronounce absolutely one way or the other. A building is a 'flat' or not, and, where the testimony is · conflicting, the question is one of fact".
27. Advanced Law Lexicon by P. Ramanatha Aiyar (3rd edition, 2005) explains the term 'flat', in the following way- 'in the ordinary use of the term a flat is a self-contained set of rooms, structurally divided and separately owned or let from the rest of a building, which for the most part consists of other flats F separated in like manner'.
28. Reverting back to the definition of the term 'flat' under Section 2(a-1), for a 'flat' within the meaning of this definition clause, the set of premises has to be a separate and self- contained that forms part of the building which is used or G intended to be used for residence or office, showroom or shop or godown or for carrying on industry or business. Separateness of one premises from another premises physically and also in use or intended use for one of the uses specified in the definition clause containing the necessary H facilities for self-contained accommodation is sine qua non for NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHAL! CO- OPERATIVE HOUSING SOCIETY LTD. [R.M. LODHA, J.] a unit being covered by the definition of 'flat' occurring in Section 2(a-1) which includes an 'apartment'. In other words, it must be a separate unit conforming to the description capable of being used for one of these purposes-namely, residence, office, showroom, shop, godown or for industrial or business purposes. Alternative uses in Section 2(a-1) do expand the ordinary meaning of the term 'flat' but nevertheless such premises that form part of building must be separate and self- contained. A set of premises is called self-contained if it has the following basic amenities available: (a) sanitary; (b) washing, bathing and (c) other conveniences (cooking etc.) for the use c of its occupant/s although as provided in the explanation appended to Section 2(a-1) such provision may be common to two or more sets of premises. The nature of construction and user are important features of this definition clause. A unit or accommodation to fit in the definition of 'flat' must meet twin- test namely: {i) self contained test and (ii) user test. The other predominant characteristic is that it must form part of a building. Crucially, for the relevant premises to be 'flat': It must be a separate and self contained premises; It must form part of building; It must be used or intended to be used for any of the uses namely-residence, office, showroom, shop, godown or for carrying on any industry or business.
29. In the discussion made above, we have not referred to the bracketed portion namely – '(and includes a garage)' so far. What is the meaning and significance of this bracketed portion? On technical linguistic basis, the bracketed phrase can only attach to the word preceding it. That may not be happy construction nor such construction by reading bracketed portion '(and includes a garage)' with the preceding word 'business' appropriately reflects the meaning of the phrase. The scope of A the bracketed phrase has to be seen in the context of the definition given to the word 'flat' which is true indication of intent of the legislature. It was suggested by learned senior counsel and counsel for the promoters that the phrase 'and includes a garage' must be read with the 'set of premises' and not with B the user. This does not appear to be a correct reading of the expression. We are not persuaded to accept such construction. We think that statutory definition of 'flat' must be construed keeping in view the intent of the legislature and the context of the statute and, seen thus, the phrase, 'and includes a garage' c in the bracket does not bring in 'garage' by itself within the meaning of word 'flat'. If stand alone 'garage' (or a garage by itself) were intended by the legislature to be a ·'flat' within the meaning of Section 2(a-1), that could have been conveniently conveyed by use of the expression 'or garage' after the word 'business' in the same breath as preceding uses. The bracketed phrase is rather indicative of the legislative intention to include a 'garage' as appurtenant or attachment to a flat. which satisfies the ingredients of Section 2(a-1). To this extent Mr. Pravin K. Samdani is right in his submission. It is clear tO us that stand alone 'garage' or in other words 'garage' as an E independent unit by itself is not a 'flat' within the meaning of Section 2(a-1) and we answer question (i) in the negative. The judgment of Bombay High Court in Dr. K.R. Agarwal Vs. Balkrishna3 to the extent the expression 'or garage' has been read after the word 'godown' in para 5 (clause 2) of the report F does not state the correct legal position in what we have already said above. (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 H 3. AIR 1972 BOMBAY 343. NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHAL! CO- OPERATIVE HOUSING SOCIETY LTD. [R.M. LODHA, J.] from the French language and means 'keeping under cover' or ·a place for keeping' of wagons as well as automobiles. Concise Oxford English Dictionary (10th edition, revised) explains 'garage'- 1 a building for housing a motor vehicle or vehicles. 2 an establishment which sells fuel or which repairs and sells motor vehicles.
31. Webster Comprehensive Dictionary, International edition (Vol. 1) explains the word 'garage'-a building in which motor vehicles are stored and cared for.
32. Words and Phrases, Permanent Edition, (West Publishing Company), Vol. 17, states that 'garage' generally is a station in which motorcars can be sheltered, stored, repaired, cleaned, and made ready for use; it is also place for private storage for motorcars; stable for motor cars.
33. The OCR define two expressions 'garage-private' and 'garage-public' in Regulations 2(47) and 2(48) respectively. According to these Regulations, 'garage-private' means a building or a portion thereof designed and used for the parking of vehicles and 'garage-public' means a building or portion thereof designed other than as a private garage, operated for gain, designed and/or used for repairing, serving, hiring, selling or storing or parking motor-drive· or other vehicles. In our view, we must give to the word 'garage' occurring in Section 2(a-1) a meaning that general public or for that matter a flat purchaser of ordinary prudence would give to that word or understand by that word. Learned senior counsel Mr. Sunil Gupta referred to Barnett and Block1 wherein Atkinson, J. stated as follows: "Now what is a garage? No evidence was given to suggest or prove that the word "garage" in the trade had got any special meaning, and it was agreed to take four dictionary definitions set out in the agreed statement of facts. The four definitions were these. From the SHORTER OXFORD DICTIONARY: '"A building for the stg_rage or refitting of motor vehicles." From the NEW CENTURY c DICTIONARY : "A building for sheltering, cleaning or repairing motor vehicles. To put or keep in a garage." From the NEW STANDARD DICTIONARY: "A building for stabling or storing of motor vehicles of all kinds." From NUTIAL'S STANDARD DICTIONARY: "A storehouse for motor vehicles." Those are four definitions from leading dictionaries all containing at any rate one word in common, and that is "building." As there is no evidence as to how the general public understand the word "garage," I suppose one is entitled to use one's own knowledge. I am inclined to think that ordinary man in the street does regard a garage as connoting some sort of a building; how far he would go I do not know. I do not know whether he would think that there should be a wall all round it, or whether it would be sufficient if there were three sides walled in and a roof. I have one in mind where there is a row of sheds without any protection in front, which are commonly spoken of as "garages," but I am going to apply here the test suggested by counsel for the insured. He said "A garage is a place where one can get reasonable protection and shelter for a car." Can I say that you are getting reasonable protection and shelter for a car, if there is nothing to protect the car from above – if there is no roof of any sort? I think the ordinary man, as counsel for the insurers suggested, who took a house with a garage, if he came and found merely an open shed without any roof, would think he had been swindled, however high the walls might be. I cannot think that one is entitled to say that it is adequate or reasonable protection or shelter if there is no roof; but this is worse than that, though I agree that the walls are very good here. Wherever you put a car in this yard, in addition to there being no shelter from above, there will be no shelter on two sides. That seems to me to be really conclusive." He, thus, submitted that even a place with merely a roof may H well be a 'garage'. By placing reliance on condition No. 2 in NAHALCHAND LALOOCHAND PVf. LTD. v. PANCHAL! CO- OPERATIVE HOUSING SOCIETY LTD. [R.M. LODHA, J.] Form V of 1964 Rules, learned senior counsel submitted that for the purposes of MOFA, even an open parking space is tantamount to a 'garage'.
34. The relevant portion of condition No. 2, Form V appended to 1964 Rules reads as under: "2. 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 Annexures D/S hop 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 uefore the execution of his agreement in the following manner."
35. We do not perceive any force in the argument that open parking spac~ tantamounts to a 'garage' within the meaning of Sectiorf2(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. The word 'garage' may not have uniform connotation but definitely every space for parking motor vehicles is not a garage. A roofless erection could not be described a garage. What is contemplated by a 'garage' in Section 2(a-1) is a place having a roof and walls on three sides. A It does not include an unenclosed or uncovered parking space. It is true that in condition No. 2, Form V the words 'covered/ open garage' have been used but, in our view, the word 'open' used in the Model Form V cannot override the true meaning of term 'garage' in Section 2(a-1). As a matter of fact, none of B the provisions of MOFA regards 'open garage' connoting 'flat' or an appurtenant/attachment to a flat. We do not think undue importance should be given to word 'open' which has loosely been used in condition No. 2, Form V. The true meaning of the term 'garage' in Section 2(a-1), we think, is not affected by a c Model Form V appended to the 1964 Rules.
36. The question then is as to whether the stilted portion or stilt area of a building is a garage under MOFA. A stilt area is a space above the ground and below the first floor having columns that support the first floor and the building. It may be D usable as a parking space but we do not think that for the purposes of MOFA, such portion could be treated as garage. It was argued that the test accepted by Atkinson, J: in Barnett & Block1-that a garage is a place where one can get reasonable protection and shelter for a car-is satisfied by stilt E car parking space and such space is a garage. We are unable to agree. The test accepted by Atkinson, J. in Barnett and Block1 also does not support this argument. Even as per that test a place having roof but offering no shelter or protection on two sides cannot be a garage. It is worth repeating what F Atkinson,J. said, ' …. I am inclined to think that the ordinary man in the street does regard a garage as connoting some sort of building; how far he would go I do not know. I do not know whether he would think that there should be a wall all round it, or whether it would be sufficient if there were three sides walled G in and a roof. I have one in mind where there is row of sheds without any protection in front, which are commonly spoken of as "garages".' Atkinson,J. applied the test of 'reasonable protection and shelter for car' as was suggested by the counsel for the insurer while construing the term 'garage' in a policy of H insurance. For the purposes of MOFA, and particularly Section NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHAL! CO- OPERATIVE HOUSING SOCIETY LTD. [R.M. LODHA, J.] 2(a-1), the term 'garage' must be considered as would be understood by a flat purchaser and such person would contemplate garage which has a roof and wall on three sides. Our answer to question No. (ii) is, therefore, no. Re: question no. (iii) – Whether stilt parking spaces are part of 'common areas and facilities'?
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 it explains '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': 15% Recreation Ground (RG) Area; Recreational facilities and/or club house on above · RG Areas; Society Office; Security guards cabin; Common passage/lobbies; Stair case; Lift; Terraces over the roof of the building; Landings on each floor; Columns and beams of the building Playgrounds, if any. According to him, the following could be part of 'Limited Common Areas': Separate lift attached to a particular flat and/ or certain number of flats; Terrace attached to a flat; Servants toilet on each floor, meant for the user of the flats on that particular floor; C 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(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) the foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stair- ways,· fire-escapes and entrances and exits of t he buildings; (3) the basements, cellars, yards, gardens, parking areas and storage spaces; (4) the premises for the lodging of janitors or persons employed for the management of the property; (5) installations of central services, such as power, light, gas, hot and cold water, heating, refrigeration, air conditioning and incinerating; (6) the elevators, tanks, pumps, motors, fans, compressors, ducts and in general all apparatus and NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHAL! CO- OPERATIVE HOUSING SOCIETY LTD. [RM. LODHA, J.] installations existing for common use; (7) such community and commercial facilities as may be provided for in the Declaration; and (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 c 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 aforenoticed 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. Can a promoter take common passage/lobbies or say stair case or RG area out of purview of ·common areas and facilities' by not prescribing or defining the same in the 'common areas'? If the answer to this question is in negative, which it has to be, this argument must fail. It was also submitted that by treating open/stilt parking space as part of 'common areas', every flat purchaser will have to bear proportionate cost for the same although he may not be interested in such parking space at all. We do not think such A consideration is relevant for the consideration of term 'common areas and facilities' in MOFA. It is not necessary that all flat purchasers must actually use 'common areas and facilities' in its entirety. The relevant test is whether such part of the building is normally in common use. Then it was submitted that if a B parking space is sold to a flat purchaser, it is to the exclusion of other flat purchasers and, therefore, logically also it cannot be part of 'common areas'. This submission is founded on ·. assumption that parking space (open/covered) is a 'garage' and sellable along with the flat. We have, however, held in our c discussion above that open to the sky parking area or stilted portion usable as parking space is not 'garage' within the meaning of Section 2(a-1) and, therefore, not sellable independently as a flat or along with a flat. As a matter of fact, insofar as the promoter is concerned, he is not put to any 0 prejudice financially by treating open parking space/stilt parking space as part of 'common areas' since he is entitled to charge price for the common areas and facilities from each flat purchaser in proportion to the carpet area of the flat. MOFA mandates the promoter to describe 'common areas and facilities' in the advertisement as well as the 'agreement' with E the flat purchaser and the promoter is also required to indicate the price of the flat including the proportionate price of the 'common areas and facilities'. 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 F 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 t.vo aspects-namely, that the area of G 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 H space of a building regulated by MOFA is nothing but a part of NAHALCHAND LALOOCHAND PVT LTD. v. PANCHAL! CO- OPERATIVE HOUSING SOCIETY LTD. [R.M. LODHA, J.] 'common areas' and, accordingly, we answer question no. (iii) in the affirmative. Re: question no. (iv) – what are the rights of a promoter vis-a-vis society in respect of stilt parking spaces?
39. 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.
40. MOFA was enacted by the Maharashtra Legislature as it was found that builders/developers/promoters were indulging in malpractices 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 A 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 B 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 c 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 0 Constitution, the right of the promoter to transfer parking spaces is not at all restricted. Relying upon the decisions of this Court in /CIC/ Bank Ltd. v. S/DCO Leathers Ltd. & Ors .. 4, Kamataka State Financial Corporation v. N. Narasimahaiah & Ors. 5 and Bhikhubhai Vithlabhai Patel & Ors., v. State Of Gujarat & Anr. 6, he submitted that the provisions contained in MOFA must be E 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 F 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 G purchasers would continue to be exploited indirectly by the promoters. In our opinion, MOFA does restrict the rights of the 4. (2006) 10 sec 452. 5. (2008) 5 sec 116. H 6. (2008) 4 sec 144. NAHALCHAND LALOOCHAND PVT. LTD. v. PANCHAL! CO- OPERATIVE HOUSING SOCIETY LTD. [RM. LODHA, J.] 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'.
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.
42. These appeals, accordingly, fail a_nd are dismissed with no order as to costs. N.J. Appeal dismissed.