( 1 ) BY the Court. The appeal is filed against the order dated 9th April 2001 passed by the Id. Judge. Co-operative Court NO. V Mumbai, in dispute No. 543 of 2000 whereby the application for temporary injunction came to be rejected.

( 2 ) THE Appellant was the disputant and the respondents were the opponents in the lower Court. The cause of action for the dispute was as under.

( 3 ) THE Appellant is a member of the respondent No. 1 Co-operative society. The respondent No. 2 is a promoter of the building in which various persons purchased the units. (This is an office/shop premises society at Vashi, new Mumbai ).

( 4 ) IT is a common ground that the respondent No. 2 after acquisition of the plot started development of the same as per the building plan which was sanctioned by the New Town Development Authority (for short the Authority ). The sanctioned plan provided that there would be basement for the building where there would be 16 car parking spaces. It is the case of the appellant that after acquiring the shop they approached the promoter the respondent no. 2, for allotment of car parking spaces in the basement. They respondent no. 2 then allotted 14 car park spaces to the Appellants in 1995 charging them Rs. 7. 50 lac. The amount was paid and then the transaction was recorded in a letter of the respondent No. 2 dated 30th September 1995. The appellants started that they are in occupation of these car parking spaces since then. The respondent No. 1 society was formed in the year 1999. For the first time in October 2000, the society took objection to the Appellants occupying these car park spaces. The society wrote a letter to the appellants that they would allot these spaces to the members. They refused to recognize the transaction between the Appellants and respondent No. 2 about allotment of the spaces in 1995. This stand of the society gave rise to the dispute. The appellants flied the dispute for permanent Injunction to prevent the society from dealing with these disputed car park spaces and from disturbing their occupation/user of the same. The appellants also moved an application for temporary injunction for similar relief.

( 5 ) THE society opposed the application whereas the respondent No. 2 supported the appellants by filing an affidavit. The societys contention was that the respondent No. 2 was not entitled to allot/sell dispose of the disputed car park spaces to the appellants and so the appellants would not get any title to them.

( 6 ) THE Id. Judge of the lower Court after hearing all the parties came to a conclusion that the respondent No. 2 could not have lawfully allotted the disputed car park spaces to the appellants and so rejected the application for temporary injunction. As said above the appeal is filed against that order. The point for consideration before this Court is whether the provisions of Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 [for short MOFA] as well as General Development Control Regulations applicable to Navi Mumbai Prevented the respondent No. 2 from allotting/selling or otherwise disposing of the disputed car park spaces the answer is in affirmative. REASONS

( 7 ) MR. Wagh the Id. Counsel appearing on behalf of the appellants submitted tat there is no express provision in the MOFA as well the D. C. Rules to prevent the respondent No. 2 from dealing with the disputed car park spaces. He also placed reliance on the principle that the respondent No. 2 who was owner of the property could sell the same in whatever manner he wanted subject to restrictions under the law. He then quoted Salmond on Jurisprudence utilizing TWELFTH EDITION by P. J. Fitzgerald. I quote the paragraph which the Id. Counsel placed reliance. the rights of the owner, them can be contrasted with the lesser rights of the possessor and of the encumbrancer. The owners rights are indeterminate and residuary in a way in which these other rights are not. As we have seen, the possessors rights to not extend in time to infinity as do the owners and on the extinction of the possessors rights those of the owner revive. As compared with the rights of an encumbrancer those of the owner are again indeterminate and residuary, but on a different plane. An encumbrancer is on who has a right over the property of another. A may be the owner of Blackacre and B may have an easement of way over it. Here we can see that the interest of B, the encumbrancer, is adverse to the owners rights and limits them. But while this adverse limiting right is of a specific nature, the rights of the owner comprise all those indefinite rights, liberties and powers generally inherent in ownership, except for this one right of the encumbrancer; and should the encumbrancers right be extinguished, the rights of the owner will stretch once more to their previous unlimited extent. This does not mean, however, that an owner whose property is unencumbered has completely unlimited rights. To described someone as an absolute owner of property is to say two things it is to assert that his title to the property is indisputable, and that he has all the rights of ownership allowed by the legal system in question. We have seen that the rights of ownership may be limited by the adverse dominant rights of an encumbrancer or by the rights of the possessor (who is in fact one very special type of encumbrancer ). They may also be limited by special provisions of law such as town and country planning law, which regulates for social purposes the use, which an owner may make of his land. But in addition to being restricted by such specific provisions of public law, an owners rights are restricted by a whole variety of provisions of the ordinary law, according to which various harmful and dangerous types of Conduct qualify as criminal or tortuous the fact that I am the owner of a knife will not entitle me to use it to kill Smith. We may say that an owner is free to use and dispose of his property as the pleases except in so far as he does not infringe his duties to specific encumbrancers, his duties under special regulations concerning the use of property and his general duties under the general laws of the land. "

( 8 ) THERE is no and there can not be dispute about what is stated in the above quoted paragraphs. They are the words of the eminent jurist. I would rather lay emphasis the second paragraph. It says that an owner whose property is otherwise unencumbered would still not have completely unlimited rights to it. The Id. Author said that such right would mean two things: to assert that his title to the property is indisputable, and that he has all the rights of ownership allowed by the legal system in question. The Id. Author opined that such right would be limited by special provisions of law such as town and country planning law, which regulates the use of such land.

( 9 ) LET us now take clue from this line of thinking. We have a party, the respondent No. 2 who was absolute owner of the plot in question. He was in possession to use this land in whatever way he wanted. Such use would be again be subject to provisions of Town Planning.

( 10 ) IT is common ground that this area was declared as site for new township and SIDCO was declared New Town Development Authority.

( 11 ) LET us now consider the provisions of Town Planing is applicable to this area. The Maharashtra Regional and Town Planning Act, 1966 is the relevant statute which governed development and use of the land. Under the provisions of this Act various terms such as owner, planning authority, plot, development are defined.

( 12 ) CHAPTER II of the deals with the provisions relating to regional plans. Chapter III deals with the provisions for development plan. Section 22 in Chapter III deals with the contents of the development plan. It says that development plan should generally indicate the manner in which the use of land in the area should be regulated. It should also indicate the manner in which the land would be developed. It further provides that the development plan should provide number of matters such as proposals for allocating the use of land for purposes, such as residential, industrial, commercial, agricultural, recreational etc. Amongst many other matters the development plan should also make provisions including impositions of conditions and restrictions in regard to the open space to be maintained about buildings, parking space and loading and unloading space for any building etc. Section 22 thus makes it very clear that the development plan of every area should state very clearly among other things as to how much open space should be maintained around the building, how much percentage of the plot should be utilized for building. It should also make strict provisions in respect of parking spaces for a building. Chapter IV deals with the control of development and use of land included in Development plans. Section 43 of Chapter IV says that without permission in writing of the planning authority of area no person should be allowed to change user of any land or should be allowed to carry out any development of land. This provision is further fortified by provision in sections 44 and 45. They say how an application should be made for permission for development and how such application should be dealt. Section 159 of the MRTP Act enabled any Regional Board, Planning Authority or development Authority with the previous approval of the State Government to make regulations to carrying the purposes of this Act. In exercise of this power under Section 159 the Development Authority here, the CIDCO made certain regulations, which are called as General Development Control Regulations for Navi Mumbai 1975. It is a common ground that these Development control Regulations are applicable for the building in question. N6w let us understand the scheme of these regulations. The first important regulation is the definition of the "floor space index. " 3. 11 "floor SPACE INDEX" of a plot is the ratio of the gross floor area of all the storeys including the area of walls, mezzanine floors, staircase and lift, of a building on a plot to the total area of the plot. The gross floor space area of a building shall be calculated, as above, excepting that the following shall not be counted towards computation of floor space index. (a) A basement or cellar and area under a building constructed on stilts used as a parking space or recreation space provided where there are no sidewalls on three or more sides of such a space, (b) Electric cabin or sub-stations. Watchmens Both, Pump House. (c) Staircase room and/or lift rooms above the top most storey architectural features, chimneys and elevated tanks of dimensions as permissible under these regulations. (d) Staircase excepting those in an industrial and Service industrial building. (e) Balconies proposed in accordance with Regulation No. 16. 3. 5. (f) Lifts. (g) Association/society office cum letterbox room in Residential and shopping cum Residential as per following norms. Size of society/association Office: no. of Tenements permissible built up area for office (i) Tenements upto 16 20 sq. m. (ii) Tenements more than 16 and upto 15 25 sq. m. (iii) Tenements beyond 150 30 sq. m. Note ; The built-up areas mentioned above are inclusive of Toilet facility.

( 13 ) THE Regulation No. 16 provided that development of buildings for various lands uses should be governed by the certain regulations. The Regulation No. 17 independently deals with open spaces around buildings. This regulation provides minimum compulsory open space that is required to be left around a building. The Regulation No. 18 deals with car parking, loading and unloading. This regulation provides certain area that is 2. 50 M x 4. 7 M to be the standard car parking space. This regulation further provides that car park space should be shown clearly on the site plan along with the manoeurving space. This regulation then gives particulars of minimum number of car parking spaces per square meter to be provided for various land uses. [various land uses are hotels and Lodging Houses, Educational Institution, Institutional, Assembly, business, Mercantile and Storage. ] in present case the building is constructed on the land which is utilized for business. For such land use the regulation provides one car park space for 100 S. M. Indeed the respondent No. 2 who developed the building provided at least, 16 car parking spaces in the basement. The Development Control regulations have defined basement of a building as lower storeys of a building below or partly below ground level. A mention of basement is also made in the definition of the term floor index. I have quoted the entire definition above. The underlined clause a lays a rule that if the basement of a building is utilized in a particular fashion as car park then the such basement construction will not be considered as construction for the purpose of F. S. I, calculation. This provision makes it clear that legislature has made specific concession for promoter/developer of a building if he provided car park spaces in basement of cellar area. In my view the legislature has encouraged user of such area for such purpose.

( 14 ) IN any case in this the car park spaces are provided in the basement of this building. The respondent No. 2 made the provision because he is bound to make such arrangement on the plot while developing and constructing the building.

( 15 ) LET us now consider the provisions of the Maharashtra Ownership flats (Regulation of the Promotion of Construction, Sale, Management and transfer) Act, 1963. [for short MOFA. ] This Act was passed by the legislature partly because it was brought to the notice of the State Government that, consequent on the acute shortage of housing in the several areas of the State of Maharashtra, sundry abuses, malpractices and difficulties relating to the promotion of the construction of, and the sale and management and transfer of fiats taken on ownership basis existed and were increasing. (I am giving this reason from the preamble of the ). In this Act the term flat is defined as under. 2. Definitions, In this Act, unless the context otherwise requires, (a) "flat" means a separate and self-contained set of premises used or intended to be used for residence, or office, show-room or shop or godown or for carrying on any industry or business and includes a garage, the premises forming part of a building and includes an apartment. 2. (c) "promoter" means a person who constructs or causes to be constructed a block or building of flats; or apartments for the purpose of selling some or all of them to other persons, or to a company, Co-operative Society or other association of persons, and includes his assignees; and where the person who builds and the person who sells are different persons, the term includes both;

( 16 ) THERE is no dispute about the fact that the respondent No. 2 answers the description of term promoter used in this Act. It must therefore follow that the respondent No. 2 has to construct this building of flats / shops / industrial units/offices and has to sell them to other persons. This would means that though the respondent No. 2 would be able to construct in the building staircases, stilts, passages, staircase landings, lobbies and terraces he is not permitted to sell them to others. As said above the provisions of this act are made with a view to stop malpractices, abuses of the promoters of building that were noticed hitherto by the legislation. So Section 3 gives the list of the liabilities of a promoter. Section 4 makes it compulsory for a promoter to enter into a registered agreement for sale of flats before he could accept any payment. Section 5 requires a promoter to maintain a separate account of sums taken as advance and is considered to be trustee of the sum. Section 6 compels a promoter to pay out goings of the property till property is conveyed to the flat purchasers organization. Sections 7, 8 and 9 make other provisions to bind the promoter to his duty further. Section 10 compels the promoter to take steps for formation of Co-operative Society or Company of the flat purchasers immediately after minimum number of persons required to form society or company have taken flats. Section 11 then compels the promoter to convey his title to the property to the organization of persons. Section 12 gives the list of general liability of a flat taker. These are not many all he has to do is to pay the price at proper time and pay proportionate shares of municipal taxes etc. Section 13 defined offices by promoter. Certain rules under this Act were made and were made applicable to State in 1964. Rule 5 provided that "the promoter shall before accepting any advance payment or deposit, enter into an agreement with the flat purchaser in Form V. In our case such agreement was entered into between the appellant on one side and the respondent No. 2 on the other in respect of unit No. 1 on 13th August 1994. The agreement Is on record.

( 17 ) LET us now understand as to which provision of the above mentioned town planning laws and to what extent prevents the respondent No. 2 from selling allotting or other dealing with car park spaces independent of the flats/in this case the unit. As said above the definition of the term promoter takes away such liberty. It restricts sale of any thing other flat.

( 18 ) MR. Wagh argued that being the owner of the property the respondent no. 2 could not only sell flats in this building but could sell and deal with whatever that can be sold and otherwise dealt with. In his opinion a car park space is independently a saleable item.

( 19 ) THE basis for this argument is (1) that there is no restriction in the provisions of MOFA or for that matter the provision of other laws discussed above to prevent the promoter/developer from selling/transferring car park spaces. That these laws mainly dealt with the manner in which the land can be used and can be developed. They do not take away or extinguish the rights of an owner. (2) Having regard to the drafting of the Form V one can specifically conclude that besides flats/units in a building developed under the MOFA the promoter can even sell or covered garage/car parking space. Let us now consider both these arguments separately. Indeed the laws discussed certainly would not take away the owners right to the property. They do not extinguish such right. But at the same time they would restrict such rights to certain extent. An owner would not enjoy what is prohibited because of the operation of these laws though he is absolute owner. A promoter can sell a only a flat and whatever is defined as flat. I have already quote the definition of the term flat. As per the definition a promoter can also sell a garage.

( 20 ) THE term garage is not defined in MOFA. It is neither defined in the mrtp Act. question is what does legislature meant by the term "garage" when they drafted the clause. The dictionary meaning of the term garage is as follows building for keeping vehicle. [i am utilizing little Oxford Dictionary for this purpose. ] General meaning of the term garage specifically indicates that there would be a building for keeping vehicles in it. The term building is generally a structure having four walls, a door and a roof, So the garage is such building which has provision for walls and roof and a door which can be locked. This meaning of this term is probably understood while legislature drafted the definition.

( 21 ) LET us now consider the provisions of GDCR. It does not define the word "garage. " But by defining term floor space index, which is quoted above. They made it clear that if car park space is provided In basement the area would not be considered to calculate FSI of the building. This provision also make it clear that such car park arrangement should be provide walls to separate one car park space from other. There is no locking up of door permissible for such car park space. This kind of arrangement cannot be equated with the term garage, as we understood above. In that sense in this building there is no garage constructed at all. What is provided here is covered car park space. As against this had the promoter constructed proper lock-up garages in this building, such construction would have consumed FSI and then such garage would have answered the term garage used in the definition of the term flat. Mr. Wagh also argued that the car park spaces are numbered and are independent units unlike a staircase or passages. He said such numbered spaces are independent salable units. This argument cannot be accepted because the reason mentioned above. Though a space is numbered it still cannot be sold because it is not proper garage as understood by the definition. So a car parking space in the basement cannot be sold in the light of the Section 2 of MOFA.

( 22 ) MR. Wagh argued that the car park space can not be equated with common access, staircase etc. According to him these are common amenities. According to him car park spaces are not common amenities. But considering the scheme of MOFA it is clear that this argument is incorrect. Let us consider the second leg of argument of Mr. Wagh. He pointed out the following clauses of the standard agreement mentioned in Form V under the rules of MOFA. The Flat Purchaser hereby agrees to purchase from the Promoter and the Promoter hereby agrees to sell to the Flat Purchaser one flat No. . . . . . . . . of the Type. . . . . . . . . . . . . . . . . . . . . . . . . . . . . of carpet area admeasuring. . . . . . . . . sq. metres (Which is inclusive of the area of balconies) on. . . . . . . . . . Floor as shown in the floor plan thereof hereto annexed and marked Annexures d/shop No. . . . . . . . . . /covered/open Garage No. . . . . . . in the. . . . . . . . . Building (hereinafter referred to as "the Flat") for the price of Rs. . . . . . including rs. . . . . being the proportionate price of the common areas and facilities appurtenant to the premises, the nature, extent and description of the common/limited common areas and facilities/limited common area and facilities, which are more particularly described in the Second Schedule hereunder written. The Flat Purchaser hereby agrees to pay to that promoter balance amount of purchase price of Rs. (Rupees. . . . .) having been paid to the Promoter on or before the execution of this agreement in the following manner: on plain reading of this clause one gets an impression that promoter can either sell a flat, or shop or "open garage" or "covered garage" in a building to a purchaser for a price. This clause creates impression that such covered or open garage could have a number. Mr. Wagh in view of this clause argued that the legislature did not intend to prevent the promoter from selling a covered or open garage. In my view, this argument is very myopic interpretation of this clause. This clause will not take away what is drafted in the. This clause would not even permit something, which is prevented by the provisions of the act. I have already mentioned above that the term "flat" includes various other things. The term also Included "garage. " The term garage cannot certainly mean "open garage. " Can there be an open garage The word open suggests a place with no roof a place open to sky. A space marked for parking in open can not be regarded as garage as is understood by the definition of term flat. So open space reserved for parking car can not be sold at all and so can not find place in the standard agreement. The words "covered garage" suggest a space for parking car with a roof above such as under stilt. This term is not utilized here to mean a "lock-up garage," which consumes FSI. In this clause the words covered/open are inserted to clause the word is used without any additive and adjective such as open or covered. There was no need to us such adjectives to the word garage because the word has a definite meaning. As said above it means an enclosure having walls, roof and door with lock-up arrangement and which would consume FSI. If we do not read the words "covered" "open" in this clause [and we are not permitted to read them here]; then what we get is in consonance with the definition of term flat Section 2 of MOFA. In my view these two words distort the meaning and interpretation of the definition clause. I am not inclined to go into the question whether the insertion is innocent etc. But it is clear that these two words can be used in many other cases and are being used in this case to enable the promoter to sell what he could not have sold. It seems that the legislature has not noticed these two words and understood their effect. I am inclined to bring to their notice the mischief of these two words so that they would take steps to correct the Form V agreement. Needless to say, if these words are removed the promoters make stop the mischief of selling something which they are not entitled to sell and the purchasers of flat would save lacs of rupees.

( 23 ) THE question is whether car park spaces provided in the basement is common amenity. The answer is in affirmative because they are not independent lock-up garages. In view of the above discussion, though the respondent No. 2 was the owner of the building he was unable to deal with the covered car parking spaces provided in the basement. Such restriction on his ownership right are put by the provisions of the above mentioned laws. Ore particularly the definitions of the terms promoter and flat. Subject to these restrictions he has to deal with this property. In my view such restriction would certainly not cause loss to him. He would take into account this restriction while calculating price of the flats or units. Mr. Wagh then pointed out Clauses 22 and 23 of the agreement dated 13th August 1994. These clauses provided that flat purchasers should not have any claim in respect of open car park spaces lobbies, staircase etc. and such area would remain property of the promoter until the building was transferred to a Co-op. Society or Limited Company as the case may be. They further provide that the promoter should be at liberty to sell, assign or otherwise deal with their interests in the said plot and building subject to the rights of the purchasers under this agreement. These two clauses do give an indication that promoter would control the sell open space, car park space, lobbies, staircase etc. until the property is conveyed to the society or a company. As said above, the open space, parking spaces lobbies, staircase are common amenities married to a building. No doubt the purchasers of a flat cannot have exclusive ownership of such open space etc. But at the same time the promoter would also not be able to deal with such common amenities. In fact he is prevented from doing so because of Section 2 of MOFA. The Clause 23 makes it clear that the promoter would be able to deal with such common amenities subject to rights of purchasers of flats. Now the purchasers have right to use these amenities in common. Such right of the flat purchasers cannot be hampered by putting any of the purchasers [individually] in possession of any of the open spaces, staircase etc. It is also pertinent to note that parking spaces are mentioned in the Clause 22 along with words open space, lobbies, and staircase giving clear indication that these spaces are also common amenities. This also indicates that car park spaces do not have independent status. Clause 22 and 23 could not have been given the respondent No. 2 right to deal with the open space, car park spaces lobbies, and staircase. Such space would remain the property of the promoter/developer. But he would keep the property as trustee and convey the same at the earliest to an association formed by the purchaser of the flats. That is his legal obligation under Section 11 of MOFA.

( 24 ) THE Appeal is dismissed. A copy of this judgment be sent to the Principal secretary Law and Judiciary to place it before the Government. Appeal dismissed.