Whether continuous failure to obtain an occupancy certificate amounts to deficiency of service?

Based on these provisions, it is evident that there was an obligation on the Respondent to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided. The Respondent has time and again failed to provide the occupancy certificate to the Appellant society. For this reason, a complaint was instituted in 1998 by the Appellant against the Respondent. The NCDRC on 20 August 2014 directed the Respondent to obtain the certificate within a period of four months. Further, the NCDRC also imposed a penalty for any the delay in obtaining the occupancy certificate beyond these 4 months. Since 2014 till date, the Respondent has failed to provide the occupancy certificate. Owing to the failure of the Respondent to obtain the certificate, there has been a direct impact on the members of the Appellant in terms of the payment of higher taxes and water charges to the municipal authority. This continuous failure to obtain an occupancy certificate is a breach of the obligations imposed on the Respondent under the MOFA and amounts to a continuing wrong. The Appellants therefore, are entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation. {Para 18}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4000 of 2019

Samruddhi Co-operative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud and A.S. Bopanna, JJ.

Author:Dr. D.Y. Chandrachud, J.

Decided On: 11.01.2022

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Distinction between basement parking,parking area and garage

BASEMENT PARKING

19. The next question which arises for consideration is as to whether the basement parking

provided by the developer for the allottees qualifies as a garage or it qualifies as the basement or

parking areas, which are included in the definition of common areas and facilities in Delhi

Apartments Ownership Act. It is stated in a Note submitted by the Developer on parking that this

is a three level basement parking, which affords full protection and shelter to the car not only from

the top but also from the three sides and is equipped with security cameras and manned by

security personnel inside the basement, outside the basement and on the gates of the Complex and

therefore, the aforesaid place is much superior to a standalone garage, which is either open from

the front or is protected only by a lock. It was submitted on behalf of the complainants that to an

ordinary person a garage would mean a place, which is provided to a particular allottee, to the

exclusion of all others and which can be individually locked by him in order to ensure the

protection and safety of his vehicle. Both the parties have relied upon the decision of the Hon’ble

Supreme Court in Nahalchand Laloochand P. Ltd Vs. Panchali Co-Op. Housing Society Ltd.

(2010) 9 SCC 536 , in support of their respective submissions.

20. In Nahalchand (supra), the developer had provided stilt parking spaces / open parkings and

had declared that the said parking would belong exclusively to them. The question which arises

for consideration before the Hon’ble Supreme Court were as to (i) whether the standalone garage

provided by the developer as an independent unit by itself was a flat, (ii) whether stilt parking

space / open parking space of a building regulated by MoFA is a garage and (iii) whether the stilt

parking space / open parking in such a building is part of common areas and facilities. Having

examined the aforesaid questions in the light of the provisions of Maharashtra Ownership of Flat

Act (MOFA) and Development Control Regulation (DCR), the Hon’ble Supreme Court inter-alia

held as under:

“ 41. It is clear to us that stand alone “garage” or in other words “garage” as an

independent unit by itself is not a “flat” within the meaning of Section 2(a-1).

48. What is contemplated by a “garage” in Section 2(a-1) is a place having a roof and

walls on the three sides. It does not include an unenclosed or uncovered parking space.

51. For the purposes of MOFA, and particularly Section 2(a-I), 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.

56. 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.

57. 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 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.

58. Then it was submitted that if a 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 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.”

21. The following position emerges from the decision of the Hon’ble Supreme Court in

Nahalchand (supra):

a) The standalone garage is not a flat

b) Every space for parking motor vehicle is not a garage.

c) For the purpose of MoFA, the term “Garage” must be considered as would be

understood by a flat purchaser and

d) A garage must have a roof and wall on three sides.

22. As noted earlier, the basement is included in the definition of common areas and facilities

given in Section 3(j) of the Delhi Apartments Ownership Act. The parking areas are also

expressly included in the definition of common areas and facilities. The basements would mean

every basement provided in a multi-storeyed building irrespective of the use to which the

basement is put. Delhi Apartments Ownership Act does not exclude, from the purview of the

term common areas and facilities, a basement, which is used for car parking. Likewise, parking

areas, irrespective of whether such areas are open or covered, whether they are provided on the

surface or in the stilt area or in the basement would be a part of the common areas and facilities in

relation to a multi-storeyed building. A basement does not lose its character as such, merely on

account of use to which it is put. Similarly, a parking area is an area meant for parking of the

vehicles, wherever such areas may be located. As far as the term ‘garage’ used in Section 3(c) of

the Delhi Apartment Ownership Act is concerned, this in my opinion, contemplates a covered

space, which is provided for the exclusive use of a particular apartment owner and the other

apartments owner have no right in such a space, which necessarily needs to have roof and covered

atleast on three sides. To an ordinary apartment owner, a garage means a place where he can

safely park his vehicle under his own lock and key, to the complete exclusion of the other

apartment owners, though such garage need not necessarily be adjacent to the building in which

the apartment is located. The basement used for a parking the cars, in my opinion, does not

qualify as a garage since an individual allottee cannot put his own lock and key on it and despite

the security provided at the entrance of the basement and elsewhere in the building, it cannot be as

safe as an individual garage which can be locked by its allottee. If a standalone garage is

provided to an allottee, there is hardly any scope for an outsider accessing the said garage unless,

he breaks the locks put by the allottee on the garage. On the other hand, a basement used for car

parking of a large number of allottees is accessible to all of them and therefore, does not ensure

security and safety of the level available in a standalone.

23. It is true that nothing in law prevented the developer form charging the cost of the club area

and basement parking from the allottees, who were to pay on the basis of the super area which

included not only the apartment area but also the common area of the building. But, having not

done that, the developer cannot be allowed to charge separately from the allottees for the club area

and the basements used for car parking. In Nahalchand (supra), the Hon’ble Supreme Court,

while observing that the promotor is not put to any prejudice financially by treating open parking

space / standalone parking spaces as part of the common areas since he is entitled to charge for the

same, held that if a promotor does not fully disclose the common areas and facilities he does so at

his own peril. It was further observed that the standalone parking space would not cease to be a

part of the common areas and facilities, merely because the promotor has not described the same

as such in the advertisement or agreement with the flat purchaser. Since, the developer herein, did

not include the club area and the basement designated for car parking, amongst the common areas

and facilities of the building at its own peril and must necessarily bear the consequences of the

such an act on its part. The developer cannot be allowed to charge for the common areas and

facilities which he deliberately did not include as a part of the said areas and facilities.

24. It was also submitted on behalf of the developer that had the club area and basement parking

been included while determining the sale price of the apartments, the cost to the allottees would

have been much higher. Even if that is so, the law did not permit the developer from excluding

the said areas, while determining the price of the apartment on the basis of its super area

comprising the apartment area as well as the common area.

25. For the reasons stated hereinabove, I hold that the developer is not entitled to recover the

charges for the club area and car parking from the allottees. The club Area and the Basement

Parking being common to all the allottees, it would be for the Association of Apartment Owners

to regulate use by the allottees.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

CONSUMER CASE NO. 351 OF 2015

CAPITAL GREENS FLAT BUYER ASSOCIATEION  Vs  DLF UNIVERSAL LIMITED & ANR.

BEFORE:

HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER

Dated: 3-1-2020

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When a party can approach court even though there was arbitration clause in agreement?

The presence of an arbitration clause with regard to a dispute which is found to be non-arbitrable cannot deprive the plaintiffs of their right to approach the Civil Court. A somewhat similar question arose in M/s. National Seeds Co-operative Limited (supra). In the context of provisions of Seeds Act, 1966 as well as the Consumer Protection Act, 1986 it was held that the remedy of arbitration was not only the remedy available. It was an optional remedy and the aggrieved person could either seek reference to an arbitrator or file a complaint under the Consumer Protection Act, 1986. It was observed that if the aggrieved person opts for the remedy of arbitration then it could be said that he cannot subsequently file a complaint before the Consumer Forum. However, he could not be denied relief by invoking provisions of Section 8 of the Act of 1996. Similarly, in Sukanya Hoarding Pvt. Ltd. (supra), it was held that bifurcation of the cause of action or the subject matter of the suit has not been intended as bifurcation of a suit in two parts, one to be decided by the arbitral tribunal and the other to be decided by the Civil Court would delay the proceedings. If the prayers in the suit are perused, it can be seen that all the reliefs cannot be adjudicated by the arbitrator and it is only the Civil Court which would have jurisdiction to consider the grant of such relief.

12. It is thus found that the reliefs sought by the plaintiffs were in the nature of reliefs in rem and therefore, the disputes between the plaintiffs and the defendant were non-arbitrable. In the light of aforesaid law, the plaintiffs cannot be compelled to approach the Arbitrator nor can they be bound by Clause No. 19 of the byelaws. Moreover, as per the scheme of the Act of 1970 it does not appear to be intention of the legislature to require the parties to resolve the disputes through arbitration. There is also no statutory requirement for incorporation of an arbitration clause in the Deed of Declaration or Deed of Apartments as per the provisions of the Act of 1970. In the light of aforesaid, the decisions relied upon by the learned Counsel for the defendant do not support his contentions.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 863 of 2015

Decided On: 03.05.2018

 Sharad Vs  Hemantkumar

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2018(5) MHLJ 191

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How to ascertain court fees payable under Maharashtra Ownership of Flats Act?

In the present case, as stated above, the specific performance of the agreement, which the petitioner is claiming, is executed under the provisions of Sections 3 and 4 of the MOFA Act. Thus, by this suit, the petitioner is seeking the compliance of the obligation cast upon the respondent under the said Act. Therefore, it being a suit for compliance of statutory obligation, the valuation made by the petitioner on notional valuation under Section 6(iv) (j) of the Bombay Court Fees Act, is required to be held as just.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 483 of 2017

Decided On: 09.01.2018

 Kiran Suresh Bhagiya Vs.  Kakade Construction Co. Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: (2018) 2 MHLJ 446

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When owner of property can be said to be promoter under MOFA Act?

There is one more dimension to the matter.  As indicated
above, it is the owners, who had obtained the IOD and commencement
certificate   from   the   MCGM   and   it   is   through   the   medium   of   the
Respondent   No.   1   that   they   have   commenced   and   completed   the
construction.  Therefore, in terms of Section 2(c) of the MOFA, which
takes within its sweep the person who has caused the construction to be
the Promoter, the owners can be said to be the Promoters, as they have
admittedly caused the construction.   It is therefore their obligation to
see to it that the Society is conveyed what it is entitled to in terms of the
agreement entered into with the flat purchasers by the Respondent No.
1, which, in the instant case is the right to get a lease in its favour.  In

my view, since the owners having abdicated their obligation under the
MOFA   of   conveying   the   property   to   the   Society,   the   Competent
Authority has rightly intervened in the matter by passing the impugned
order.     In   my   view,   the   impugned   order   granting   the   deemed
conveyance has therefore to be construed in the context of the rights
the Developer had i.e. the right to get a lease from the owners.  Hence,
the impugned order cannot be faulted with on the ground that the
operative part of the order is vague or ambiguous.
IN  THE  HIGH  COURT  OF  JUDICATURE  AT  BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9116 OF 2013
Farhat Co­op Housing Society Ltd 
versus
1) M/s. Malkani Enterprises 
CORAM :­ R. M. SAVANT, J.

Pronounced on  :­ SEPTEMBER 23, 2014
Citation:2016 (3) ALLMR210

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Whether territorial jurisdiction of court can be decided on basis of convenience of parties?

 It   is   undoubtedly   true   that   the   place   where   the
property is situate would be relevant in determining the territorial
jurisdiction.     That   the   Magistrate   in   Thane   has   territorial
jurisdiction to entertain the complaint can be more obviously seen,
and the facts conferring territorial jurisdiction upon the Magistrate
in   Mumbai,   may   not   be   so   obvious   and   need   greater
contemplation.     However,   that   would   not   mean   that   the
complainant should be forced to select a forum, which may not be
convenient to him.  Territorial Jurisdiction is actually a matter of
convenience.     The   law   does   not   treat   the   lack   of   territorial
jurisdiction on par with lack of jurisdiction arising on account of
other factors such as incompetency of the Court with respect to thesubject matter of the dispute etc.   Section 462 of the Code is
indicative of this principle.  Under section 407 of the Code, cases
can   be   transferred   even   to   the   Courts   which   lack   territorial
jurisdiction provided such transferee Courts are in other respect
competent to inquire into or try the offences in question.  Thus,
the territorial jurisdiction is a matter of convenience, and where
expedient, convenient or necessary, a case can be transferred to a
Court not having territorial jurisdiction.   Certainly, this will not
justify the proceeding with a complaint by a Magistrate who lacks
territorial   jurisdiction,   but   the   relevant   provisions   have   been
mentioned to emphasize that lack of territorial jurisdiction is not
such a vital factor as the lack of jurisdiction arising out of some
other factor such as inability or incompetency of the Court to dealwith the subject matter of the dispute.   In the instant case, the
parties are from Mumbai.  Their registered offices are at Mumbai.
It is not that it would be more convenient for any of the parties to
have the case tried before a Magistrate in Thane – atleast it has
not been suggested. 
28 When in this background, the fact that the agreement
between the parties was entered into at Mumbai is taken into
consideration, it is not possible to hold that the  Magistrate  at
Mumbai would have no jurisdiction to entertain the complaint and
try  the   alleged  offences.    At  the   cost  of  repetition,  it  may  be
observed that executing an agreement is the very basis of the
promoter   –   purchaser   relationship   and   is   an   intricate   and
inseparable part of the general liabilities of a promoter.  When the
violation of such general liabilities is alleged, which violations are
alleged to be amounting to an offence punishable under section 13
of MOFA, it cannot be said that the act of executing the agreement
is not an integral part of the alleged offence.  Therefore, the Court
within whose local jurisdiction the agreement was entered into,
would have territorial jurisdiction to try an offence punishable
under section 13 of MOFA, irrespective of the place where the

property is situate. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.830 OF 2014
Dhirajlal P. Desai .. Petitioner
Versus
The State of Maharashtra & ors .. Respondents


   CORAM :   ABHAY M. THIPSAY, J.
ORDER PRONOUNCED     :    3rd SEPTEMBER, 2015
Citation:2016 ALLMR(CRI)2331

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How to determine jurisdiction of court if offences is committed by promotor under MOFA Act?

MOFA is a social legislation.   It has been enacted,
inter alia, to curb the malpractices in the construction and sale of
flats taken on ownership basis, and is aimed at regulating of the
promotion of the construction, sale, management and transfer of
flats taken on ownership basis.   It casts several liabilities on a
promoter which arise upon execution of a written agreement of
the purchase of a flat between the promoter and the purchaser.
The execution of an agreement between the promoter and the
purchaser is the very basis of the liabilities and responsibilities that
are cast upon a promoter by MOFA.  In such a situation, when a
particular violation/s or contravention/s of the provisions of MOFA
which cannot be satisfactorily determined as having taken place 'in
a particular legal area' takes place, such contraventions  must be
treated as having taken place in the area  where the agreement
between the promoter and the purchaser has been entered into
and executed.
When in this background, the fact that the agreement
between the parties was entered into at Mumbai is taken into
consideration, it is not possible to hold that the  Magistrate  at
Mumbai would have no jurisdiction to entertain the complaint and
try  the   alleged  offences.    At  the   cost  of  repetition,  it  may  be
observed that executing an agreement is the very basis of the
promoter   –   purchaser   relationship   and   is   an   intricate   and
inseparable part of the general liabilities of a promoter.  When the
violation of such general liabilities is alleged, which violations are
alleged to be amounting to an offence punishable under section 13
of MOFA, it cannot be said that the act of executing the agreement
is not an integral part of the alleged offence.  Therefore, the Court
within whose local jurisdiction the agreement was entered into,
would have territorial jurisdiction to try an offence punishable
under section 13 of MOFA, irrespective of the place where the
property is situate. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.830 OF 2014
Dhirajlal P. Desai .. Petitioner
Versus
The State of Maharashtra & ors .. Respondents
­­­

­­­
   CORAM :   ABHAY M. THIPSAY, J.

ORDER PRONOUNCED     :    3rd SEPTEMBER, 2015
Citation:2016 ALLMR(CRI)2331
­­­

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When owner of property can be said to promoter as per Maharashtra Ownership Flats Act 1963?

There is one more dimension to the matter.  As indicated
above, it is the owners, who had obtained the IOD and commencement
certificate   from   the   MCGM   and   it   is   through   the   medium   of   the
Respondent   No.   1   that   they   have   commenced   and   completed   the
construction.  Therefore, in terms of Section 2(c) of the MOFA, which
takes within its sweep the person who has caused the construction to be
the Promoter, the owners can be said to be the Promoters, as they have
admittedly caused the construction.   It is therefore their obligation to
see to it that the Society is conveyed what it is entitled to in terms of the
agreement entered into with the flat purchasers by the Respondent No.
1, which, in the instant case is the right to get a lease in its favour.  In

my view, since the owners having abdicated their obligation under the
MOFA   of   conveying   the   property   to   the   Society,   the   Competent
Authority has rightly intervened in the matter by passing the impugned
order.     In   my   view,   the   impugned   order   granting   the   deemed
conveyance has therefore to be construed in the context of the rights
the Developer had i.e. the right to get a lease from the owners.  Hence,
the impugned order cannot be faulted with on the ground that the
operative part of the order is vague or ambiguous.

IN  THE  HIGH  COURT  OF  JUDICATURE  AT  BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9116 OF 2013
Farhat Co­op Housing Society Ltd 
versus
M/s. Malkani Enterprises 

CORAM :­ R. M. SAVANT, J.

Pronounced on  :­ SEPTEMBER 23, 2014
Citation;2016(3) ALLMR210

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