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2010 (8) TMI 816 - SC - Indian LawsWhether stand alone ‘garage’ or in other words ‘garage’ as an independent unit by itself is a ‘flat’ within the meaning of Section 2(a-1) of MOFA? - Held 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) and we answer question (i) in the negative. Whether stilt parking space/open parking space of a building regulated by MOFA is a ‘garage’? - Held that:- For the purposes of MOFA, and particularly Section 2(a-1), 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. Our answer to question No. (ii) is, therefore, no. Whether stilt parking spaces are part of `common areas and facilities’? - Held that:- Although there is some merit in the contention of the appellant that High Court erred in placing reliance on the two aspects—namely, that the area of stilt parking space is not included in the FSI and such area is not assessable to the corporation taxes - in reaching the conclusion that stilt parking space is part of ‘common areas’ but in our view even if these two aspects are excluded, in what we have discussed above stilt parking space/open parking space of a building regulated by MOFA is nothing but a part of ‘common areas’ and, accordingly, we answer question no. (iii) in the affirmative. What are the rights of the promoter vis-à-vis society (of flat purchasers) in respect of open parking space/s / stilt parking space/s? - Held that:- As a necessary corollary to the answers given by us to question nos. (i) to (iii), it must be held that stilt parking space/s being part of ‘common areas’ of the building developed by the promoter, the only right that the promoter has, is to charge the cost thereof in proportion to the carpet area of the flat from each flat purchaser. Such stilt parking space being neither ‘flat’ under Section 2(a-1) nor ‘garage’ within the meaning of that provision is not sellable at all.
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