A.
Dear Client,
Please go through the following:
Nahalchand Laloochand V. Panchali, The Most Misused Precedent By Litigants BY: DR. V.V.L.N. SASTRY25 FEB 2017 3:50 PM
In a 2010 judgment, in the case of Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd. [AIR 2010 SC 3607], a real estate company presented the argument that it is correct to sell stilt parking areas or garages as separate individual entities just like a flat, to those who do not own flats in the building and wish to use such entities as parking places. The Hon’ble Supreme Court judges- Justice A.K. Patnaik and Justice R. M. Lodha however,rejected this argument while stating that such independent units or flats cannot be sold to outsiders by builders/promoters since these areas are to be for a price to the purchasers of flats and the builder/promoter can only charge as towards common areas and facilities from each flat owner in proportion to the carpet area of the flat. The judgement however, is being misconstrued by flat owners who have not purchased parking prior to the Supreme Court’s judgement of 2010. And they are in a bid to usurp the parking places purchased by co-flat owners who have paid huge amounts to the builders towards such places.Such flat owners who have not opted for purchasing parking places(hereinafter referred to as litigants)in turn, are creating problems for their co-flat owners by misinterpreting the judgement, which is to say, “even those who did not purchase parking area along with their flat are seeking a parking place by invoking this precedent.” This however, is unjust to the parking purchasers who have shelled out huge amounts to the builders to secure parking places. The argument from such litigants wanting to misuse this judgement is that, those who have paid heavy amounts towards the purchase of parking places, have done so at their own risk and have to forego their rights to such parking places. It is pertinent to note that such litigants are fully aware that they have not paid to the builder any amount towards purchase of parking place while negotiating the purchase of a flat with the builder. It would also be relevant to state here that builders have sold such parking places at very high rates to the purchasers of such places along with flats. The only defense for these litigants is the verdict on Nahalchand Laloochand v. Panchali by Supreme Court in the year 2010. This precedent is misused as the lower courts are not getting into the merits of this precedent, circumstances, premises, and case related obiterdicta. Hence, litigants are trying to invoke this precedent with retrospective effect, which in all likelihood, is poised to create multiple litigations and blur the exact position of the law.
The universal applicability of the Supreme Court judgement would come into question as the laws have been amended subsequently by the legislature in Maharashtra. The Confederation of Real Estate Developers’ Association of India (CREDAI), Pune branch, said that though the Supreme Court has made it categorically clear that “stilt parking/open parking” cannot be sold as it does not fall under the definition of ‘flat’ or ‘garage’, it has also stated that the builder can charge for stilt parking/open parking under common area and facilities separately and give preferential treatment to such payers. The entire ruling of Nahalchand Laloochand v. Panchaliis based upon the meaning of the word "garage". According to the Hon’ble Supreme Court, the area closed by three sides and above used for parking is a garage. This logic puts stilt area enclosed by less than three sides or not at all enclosed in a different footing than the area covered by three sides. Moreover, in Nahalchand Laloochand v. Panchali, the builder sold the parking spaces as independent units to outsiders not belonging to the building, hence, the judgement needs to be seen in its obiterdicta from the said perspective rather than generalizing the same.
Shanti Ranjan Behera
Advocate
Posted On 31-Dec-2018
Kolkata
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