National Consumer Disputes Redressal Commission (NCDRC): While noting whether the flat owners can be prevented from the use of certain common spaces, the Coram of Justice R.K. Agarwal (President) held that under the provisions of the Maharashtra Apartment Ownership Act 1970 and even Maharashtra Ownership Flats (Regulation of the promotion of construction, sale management and transfer) Act, 1963, a Society had to be formed by the builder and the entire building premises including the open space in question was to be transferred to the Society or a legal body for its maintenance and further, as per Section 6 of the MAOA 1970, each flat owner is entitled to an undivided interest in the common areas and the facilities.
Complainants challenged the order of the Maharashtra State Consumer Disputes Redressal Commission under Section 21(b) of the Consumer Protection Act, 1986.
What was the dispute?
Dispute between the parties was with respect to the use of substantial open space surrounding the building.
The complainants were being prevented from using and enjoying the open space as respondent 1 had covered the said space by erecting an iron grill.
Respondent 4 Society had allotted Plot No. 29 in question to respondent 1 on lease. In terms of the resolution passed by the Society allowing its member to construct the multi-storied building on the allotted plot, respondent 1 entered into a Development Agreement with respondent 2 who further transferred his rights of development in favour of respondent 2 Partnership Firm in which respondent 3 was a Partner.
Further, on completion of the building, the completion certificate was obtained. As per the Development Agreement, the flat nos. 1 and 2 at the Ground Floor of the building in question were retained by respondent 1 and flat no’s 3,4, 5 and 6 situated at 1st and 2nd floors were purchased by the complainants executing necessary registered agreements.
Respondent 1 submitted that in the Development Agreement executed with Late Vinayak Shridhar Deshpande, the right of the open space surrounding the Building was not given to him. As per the sale agreement, only staircase and top terrace were to be declared as common space
Analysis, Law and Decision
Coram opined that there was merit in the conclusion arrived at by the District Forum that the rights of the parties with regard to the use of open space surrounding the building in question, were governed by the various provisions of the Maharashtra Ownership Act, 1970 and the respondents were under an obligation to form a Society/legal body to take care of the entire Building Premises.
The above was the reason that during the pendency of the Complaint, respondent 1 executed a Deed of Declaration on 10-01-2005 to bring the property in question under the provisions of the MAOA 1970. Though the said deed of the declaration was not submitted as required under the provisions of the Maharashtra Apartments Ownership Act, 1970.
Whether the open space constitutes as part of the common area and facilities?
As per Section 3(f) of the MAOA, 1970, the open space in question was a part and parcel of the Common Areas and the Flat Owners were within their right to use the same.
Section 2 (e) of the Maharashtra Housing (Regulation and Development) Act, 2012 specifically include any open space around the building in the definition of “Common Areas and Amenities and Facilities”
Further, Coram stated that the Apartment Owner has the right to use the common area and facilities in accordance with the purpose for which they were intended without hindering or encroaching upon the lawful rights of the other apartment owners.
“The Common Area and Facilities remain undivided and no Apartment Owner or any other person shall bring any action for partition or division of any part thereof.”
While citing the decision of Supreme Court in Nahalchand Laloochand (P) Ltd. v. Panchali Cooperative Building Society Ltd., (2010) 9 SCC 536, it was noted that the Builder/Promoter has no right to sell any area of Building except the unsold flats.
Therefore, the District Forum’s decision was restored, and the State Commission’s decision was set aside. [Parvin G. Joshi v. Sarojini Gangadhar, 2022 SCC OnLine NCDRC 34, decided on 22-2-2022]
Advocates before the Commission:
For the Petitioner: Mr. Ankur Gupta, Advocate
For the Respondents: Mr. Rohan S. Darandale, Advocate