1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 536 OF 2001 M/s.Nandan Builders & Anr. .. Applicants V/s. Nilkanth K.Sathe & Ors. ..Respondents Ms.Sharvari Shilendra i/b. Mr.P.S.Dani for the Appellants. None for the Respondents. CORAM : R.M.SAVANT, J. DATED : 22ND SEPTEMBER, 2008. P.C. This Second Appeal takes exception to the Judgment and Decree dated 19th June, 1999 passed by the learned 9th Additional District Judge, Pune by which the Judgment and decree dated 31st July 1993 passed by the learned Joint Civil Judge, Junior 2 Division, Pune came to be confirmed. 2. The Appellants are the original Defendant Nos. 1 and 2 in Regular Civil Suit NO.761 of 1991 filed by the Respondents herein seeking a declaration that Defendant Nos. 1 and 2 have no right to sale the parking spaces in building Nos. 2,3,4,5 and 7 at Gopinath Nagar, Kothrud, Pune and also for a permanent injunction against the said Defendant Nos.1 and 2 not to obstruct the peaceful enjoyment of the suit property by the Plaintiffs. It is the case of the Plaintiffs that the parking spaces which are available in the building in question cannot be sold to any person and that they have to be made available to the flat owners as it is an essential amenity for the flat owners and the flat owners have every right to use and utilize the parking spaces shown in the building plans. 3. Both the Courts below on an interpretation 3 of the relevant provisions of the Maharashtra Apartment Ownership Act, 1970 and especially considering the provisions of section 7A(1)(ii) and Rules 16(2)(f)(3) held that parking spaces are a common amenity and have to be made available to the purchasers of flats in the building. Both the Courts below therefore held that the agreements that the flat purchaser i.e. Plaintiff Nos. 1 and 2 permitted Defendant Nos. 1 and 2 to sell the parking spaces was void as it being against the provisions of the said Act and the Rules. Both the Courts below therefore, held that the Plaintiffs were entitled to the declaration and injunction as prayed for. 3. The learned counsel for the Appellants very fairly drew the courts attention to the Judgment of a learned single Judge of this Court reported in 2008 (3) Bombay C.R.Page 727 in the matter of Nahalchand Laloochand Pvt.Ltd. V/s. 4 Panchali Co-Operative Housing Society Ltd., wherein an identical issue as regards the sale of parking spaces in a building constructed by the Appellant therein had come up for consideration, the learned single Judge after considering the relevant provisions of the said Act held that the parking spaces could not be separately sold by the developer and that parking spaces as per Regulation 36 of the Development Control Regulations would have to be provided to the residents. Paragraph 15 of the said Judgment is relevant and is reproduce herein under : “In the instant case when the defendant – Society was registered on 8/10/2003 under Clause 13 of the Model Form of Agreement, the promoter was duty bound within four months from the said date, to transfer to the society his rights, title and interest with the buildings along with land appurtenant thereto in favour of the society. This was not done and instead the Plaintiff-company retained its hold on the stilt parking spaces which were enclosed by fabricated structure and kept under lock and key. This was totally 5 illegal and void ab initio. As noted earlier, 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. mtr. It is not an additional premises/area that he is authorized to sell either to any flat purchaser or to any outsider. It is part and parcel of the Society building and it cannot be a 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 and four months time is provided, if any other period is not mentioned in the agreement, under Clause 13 of the model form of agreement and it is binding on the developer. Hence, 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 will become a property of the society on its registration. Furnishing undertaking by the flat purchasers is an act which is forced upon by the developer and it is commonly known, if the flat purchaser refuses to furnish such an undertaking, he would be informed that the flat is not available for sale. Asking for an undertaking as was sought in the instant case and furnished by the individual flat purchaser is nothing sort of exploitation by the developers and that too by 6 resorting to the methods contrary to the provision of law. As per Rule 8 of the MOFA Rules, the promoter shall submit an application to the Registrar for registration of the Co-Operative Society within four months from the date on which the minimum number of persons required to form such society have taken flats. But this provision is followed in breach invariably by the developers and one hardly comes across an instance where the developer has taken steps as soon as eleven flat purchasers have signed agreements for purchase of the flats. There are instances that even after the occupation certificate is issued by the Corporation and the flat purchasers have occupied the flats, the developers do not take any steps for registration of the Co- Operative Society even for years together and thus hold on to their interests in the property (except the unsold flats/shops or garages), which they are not entitled in law.” 4. In view of the said Judgment of a learned Single Judge of this Court (Supra), in my view, the issue is no more res-integra and is concluded by the said Judgment. 5. The challenge raised in the Second Appeal 7 therefore does not involve any substantial question of law, the Second Appeal is, accordingly, dismissed. [R.M.SAVANT, J.]