Co=operative housing society parking rules in mumbai
Ashit Kunder
(Querist) 13 July 2015
This query is : Resolved
Dear Sirs,
ours is a CHS having 2 towers with total 140 members with 3 floors parking space,each flat has been allocated either 1 or 2 parking slots . The builder has mentioned the number of parking slots allotted to each member in the agreement.
There are quite a number of vacant parking slots on each floor but the details of parking slots not specifically allocated to members is available with the MC only and is not being shared,is it not our right to know this?
I have 1 parking slot but have 2 cars can the MC restrict the entry of my 2nd car, is the MC authorised to take decisions without the geneal body approval and discussions
Kishor Mehta
(Expert) 14 July 2015
Sir,
Please refer the parking laws of CHS, which are as under:
Good Luck,
Kishor Mehta
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MODEL BYE – LAWS OF
COOPERATIVE HOUSING SOCIETY - 2014
77a. The Society shall in the General Body meeting frame and adopt Parking Rules to regulate the Parking slots, in accordance with the Act and Rules there under
77b. The allotment of Parking Space shall be made by the Committee on the basis of "First Come First Served", for available parking slots However the Member shall have no right to sell or transfer the Parking Slot allotted by the Society.
77c. No Member shall be entitled to utilize more parking slots than that officially allotted to him by the Society.
78. Where any parking slots have been built or open space in the Society's compound is available for parking of cars, the Society shall number and demarcate the stilts and / or the open space in such a way that no inconvenience would be caused to any of the Members of the Society. The Committee shall ensure that the space is used by the Members for the purpose for which it is allotted to them.
79. A Member having a vehicle will be eligible to have parking slot. Normally no Member shall be eligible for being allotted more than one parking slot. The vehicles may be owned by him or allotted to him by his employer, or the firm of which he is the partner or the company of which he is the director. If any parking slots remain unallotted for want of applicants, additional parking slots may be allotted to such Members who already have a slot allotted to them in normal course. Such allotment of additional parking slots shall be made on year to year basis, provided the same are not required by other Members, who have not been allotted even a single parking slot.
80. In case the number of eligible Members for parking slots is in excess of the available parking slots, then the Managing Committee shall allot parking slots on annual basis by fair and transparent process, in concurrence with the General Body regulations.
81. The Member, desiring to have parking slot, may make an application to the Secretary of the Society giving necessary details. The procedure laid down under the bye-law No. 64 for disposal of applications, shall be followed by the Secretary and the Committee of the Society.
82. Every Member shall pay the for parking charges for the number of slots allotted to him / her at such rate as may be decided by the General Body of the Society at its meeting, irrespective of the fact whether he actually parks his vehicle or
not.
83. Every Member, having a scooter, a motor cycle, or an auto rickshaw shall obtain prior permission of the Committee for parking his vehicle in the compound of the Society and pay the charges fixed by the General Body of the Society at its meeting.
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vswaminathan
(Expert) 15 July 2015
While earnestly joining the learned Expert in wishing you "Good Luck", may nonetheless wish to briefly add:
This is, of course, a matter involving vexing controversies; more so, rightly or wrongly, being kept alive, mainly by vested interests, for reasons readily imaginable. Especially, the reasons might be sensed and realised to be more than obvious , if were closely examined by anyone, particularly a professional endowed with the exemplary faculty of shrewd and agile mind/power to deeply think, with an open mind . As independently viewed , perhaps, the unbiased viewpoints set out in a couple of write-ups published on this website itself, for serving the profound common good in vision, may be found useful and of some help.
As regards the cited new model bye-laws to which your attention has been drawn, personally do not believe that those could be invoked and relied upon, in any event, to transactions gone through and completed prior to the coming into force of the said bye laws. For criticisms, not to be ignored as without substance and merits, on the vital deficiencies and hardships those are potent with, adequate material in the form of articles, comments, etc., available in public domain might have to be looked into, taken a conscious note of and probed into , so as to be of proper guidance in your further pursuing the dispute confronted with, to the end of a possibly successful outcome.
Note: May be, it might prove a long drawn battle in the normal course;unless,in the interim,the issues come to be settled once for all by case law, in proceedings, if any, already pending in courts.
vswaminathan
(Expert) 16 July 2015
Rider:
On the New Model Bye laws, not to oversight, apart from the other useful clues open to view in public domain, the Text of the corresponding related provisions in the Ordinance of 2013,- which was in force until the said Bye laws of 2014 came to substitute the Ordinance and took effect. If so looked into, it will be realized that,in any other possible view of the whole matter,most certainly the Bye laws of 2014 can have no relevance or application to any such case as that of the querist; so as to deny the rightful parking rights as purchased and allotted by the seller, as part of/appurtenant to the Flat sold.
On that premise, even if the Querist were obliged to, -in the event of MC persisting in its present stance, pursue and take the dispute to empowered authorities,- as personally viewed, the issues could be expected to be clinched and settled finally, in his favor,-provided of course sufficiently stressed and fought for,- without being compelled to have recourse to proceedings in court.
Now, over to the group EXPERTS for opinion,if any to the contrary: and to the counsel in practice, whose eminent advice/assistance the Querist may have to seek,for having his grievances resolved successfully.
KEY NOTE: Last but not least,in the ultimate analysis, in one's firm conviction, it could be validly argued and successfully urged that any Bye law framed under/for the purpose of the Co-op Societies Act, which is inconsistent/not in consonance with the scheme/spirit of the provisions of the Flats ( < which, in terms,is inclusive of / covers Apartments) Act, necessarily to be read together with the Apartments Act, cannot have any overriding effect over the said Acts,so as to be applied in a manner adverse to the lawful rights of purchaser.
Kishor Mehta
(Expert) 16 July 2015
Sir,
Hereunder is a copy of the judgement of Hon.Bombay High Court in the matter of selling of parking spaces by the builder, this is self explanatory, incidently the Hon. Supreme Court has also voiced its consent in this judgement.
Good Luck,
Kishor Mehta
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TUESDAY, SEPTEMBER 2, 2008
CAR PARKING PROBLEM AND RECENT MUMBAI HIGH COURT JUDGEMENT IN FAVOUR OF HOUSING SOCITIES
IN RECENT JUDGEMENT OF MUMBAI HIGH COURT ON 25TH APRIL 2008 JUSTICE BH MARLAPALLE HAS RULED THAT BUILDER OR DEVELOPER CANNOT SELL OPEN OR STILT PARKING SPACE, HIGH COURT HAS MADE IT CLEAR THAT AFTER THE OCCUPATION CERTIFICATE IS ISSUED AND SOCIETY IS FORMED AND REGISTERED, THE BUILDING, AS WELL AS STILT PARKING SPACE, OPEN SPACES AND ALL COMMON AMENIETIES BECOME THE PROPERTY OF SOCIETY, NO INDIVIDUAL MEMBER CAN HAVE RIGHT ON THIS COMMON AMENITIES OF SOCIETY, EVEN IF IT IS PURCHASED FROM BUILDER IT IS ILLEGAL. DOWNLOAD JUDGEMENT PDF FILE LINK FROM OFFICIAL MUMBAI HIGH COURT SITE IS AS FOLLOWS :
http://bombayhighcourt.nic.in/data/judgements/2008/CFA1808707.pdf
SUMMARY OF THIS JUDGEMENT WAS ALSO PUBLISHED IN ECONOMIC TIMES ON 1-5-08 ON PAGE NO 3 , FROM THIS SITE I CONGRATULATE CHIEF JUSTICE B.H MARLAPALLE FOR GIVING THIS BOLD JUDGEMENT AGAINST BUILDER LOBBY .
WITH THIS JUDGEMENT COMMON FLAT PURCHASER WILL HAVE FAITH IN JUDICIARY SYSTEM AND WOULD BELIEVE, JUSTICE IS THEIR ALIVE IN OUR COUNTRY, BUT FOR HOW LONG AGAIN LAW MAY BE AMENDED IN FAVOUR OF BUILDER LOBBY BY POLITICIANS. ANOTHER USEFUL LINK OF ECOTIMES
http://economictimes.indiatimes.com/PoliticsNation/Builders_can't_sell_stilt_open_parking_slots_HC/articleshow/3000217.cms
MUMBAI: In a major relief to thousands of flat owners, the Bombay High Court has ruled that builders or developers cannot sell open space in housing societies for parking. Disposing a petition filed by a housing society in Borivali against its developer, the HC has categorically made it clear that once the occupation certificate is issued by the relevant authorities and the society is registered, “the building as well as the stilt parking spaces, open spaces and all common amenities become the property of the society”. The builder/developer ceases to have any title on the same, the court stated.
Justice BH Marlapalle, in a decision delivered on April 25, has even rejected the builder’s claim that flat owners in this case had given an undertaking giving up their claim on the open space. The HC order is significant given the number of similar complaints various consumer bodies and courts receive regularly.
“It has become a practice now where builders charge flat owners for space which otherwise should have come to them as their right,” observed Mumbai Flat-Owners Association president Mahabaleshwar Morje, that has been fighting for flat-owners’ right.
In this case, the said builder at Borivali had locked open space within the stilt with collapsible gates and wanted to sell it to flat-owners in the building for parking. He had kept this open space under lock and key and prevented residents from using it. “This was totally illegal,” the HC stated.
Since the space was covered from three sides, the builder had argued that these are garages and as such he can sell them as separate premises. He had also argued that these ‘garages’ do not form a part of the society’s ‘open space’ which should be made available to the society members.
The HC quoting Development Control Rules dismissed this claim and made it clear that the stilt area, even if it is enclosed, continues to be an open space, his claim of it being a garage are not acceptable. “It is not an additional premises / area that he is authorised to sell either to any flat purchaser or to any outsider. It is a part and parcel of the society building and it cannot be separate premises available for sale,” the court noted.
The HC also rejected the builder’s claim that society members have given an undertaking giving up all rights on any open space while purchasing flats. In a clear term, the Court noted that, “It cannot be presumed that every flat purchaser was in the know of the clauses of the model agreement and its binding nature. The builders tend to encash on this ignorance and seek all sorts of undertakings which are contrary to the provisions DC rules”.
The HC in a definitive term has clarified that “any undertaking furnished by the flat purchasers cannot have a binding effect as it would be contrary to the guarantees available to the flat purchasers under the Act”. The HC rightfully noted that “(such undertakings) is an act which is forced upon by the developer and it is commonly known that if the flat purchaser refuses to furnish such an undertaking, he would be informed that the flat is not available for sale”.
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Ashit Kunder
(Querist) 16 July 2015
Dear Sir,
Thanks for your reply,this will be helpful during the AGM to be held in the last week of August.Will surely contact you in case of any difficulty.Thanks once again.
