Supreme Court of India · Judgment · 31.08.2010
A builder cannot sell stilt parking spaces
The Supreme Court held that under MOFA a promoter can sell only flats; stilt parking spaces are part of the common areas, are neither a “flat” nor attached to one, and pass to the society with the land and building.
Key points
- Under MOFA, the promoter has no right to sell stilt parking spaces; they are neither a “flat” nor appurtenant to a flat.
- Stilt parking is part of the common areas and facilities, which go to the society with the land and building.
- Declarations or undertakings taken from flat buyers accepting the builder’s right to sell parking are not binding on them or the society.
- The promoter’s only remaining right is to sell unsold flats.
The facts
A promoter in Dahisar (East), Mumbai claimed 25 stilt parking spaces in the building of Panchali Co-operative Housing Society, relying on declarations signed by flat buyers that the parking belonged to the promoter. It sued to stop the society from interfering. The Bombay High Court ruled against the promoter, who appealed.
What the Court held
The Court examined MOFA’s scheme: the promoter must disclose the common areas and facilities, form the society, and convey the land and building to it. A stilt is not a “garage” within the meaning of a flat, and a stilt parking space is not a flat or part of one. MOFA restricts the promoter’s rights: the promoter may sell only flats; everything else — including the stilt parking spaces — forms part of the common areas that must be conveyed to the society. Accepting the promoter’s argument would allow indirect exploitation of flat buyers, which MOFA was enacted to prevent. The undertakings signed by buyers did not bind them or the society. The appeals were dismissed.
Why it matters
This is the leading authority against builders selling stilt or open parking in MOFA projects. Allotment of such parking is a matter for the society, under its bye-laws and parking rules. (Garages and covered parking in projects governed by RERA raise separate questions; see the Bombay High Court’s parking library.)
22-page judgment in English. This page summarises the decision for general information; it is not a substitute for the full text and not legal advice. Check whether the decision has since been appealed, modified or overruled.
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