Car parking voes
K P Ashok
(Querist) 07 November 2014
This query is : Resolved
I live in a Co-operative society in Kalyan,Maharashtra.
Our society has 417 flats. There are 81 stilt car parking slots. Apart from this there are 101 parking sheds constructed in open areas within the premises.
The builder has allotted the above parking slots to members vide a simple letter. There is no separate agreement/registration.
Now, there are already more than 200 cars in our society and a few more gets added periodically. Me and many other car owners(we do not have any allotment from the builder) park our vehicles either insider the premises(open areas)or outside the gates when there is no space vacant inside. So, at any point of time, there are 65 cars parked in open areas(not sheds/stilts) inside the premises and almost an equal number outside the gates.
1. Is the builder allotted parking slots legally "owned" by those members?
2. The society had called an SGM right after the formation of our society(2009) and passed a resolution to the effect that the builder allotted slots will stay. Is this legal?
3.Can we approach the Co-operative court and get these allotments cancelled and have the society allot the same in rotation?
4. We are also ready to construct Multi-level parking system inside the premises. In that case, should not all the members equally contribute towards it cost OR can the members holding builder allotted parking decline to contribute?
Please provide direction to solve this issue.
Thank you
Kind Regards
Ashok
ajay sethi
(Expert) 07 November 2014
allottment made by builder is not binding on society . it can cancel car parking slots alloted by builder and allot car parking slots by drawing of lots . if society refuses to take action move cooperative court to challenge allotment of slots by builder and ratification by AGM
ajay sethi
(Expert) 07 November 2014
you cna also move consumer forum for necessary reliefs
K P Ashok
(Querist) 07 November 2014
Thank you Mr Sethi; we are planning to move court if the society does not do anything constructive soon. A detailed advise quoting relevant laws will be appreciated.
Regards
Ashok
K P Ashok
(Querist) 08 November 2014
Is it a given that the Co-operative court will cancel the builder allotted parking slots and instruct the society to allot it on rotation? Is this the blanket law or under what conditions the court can decide to let the builder allotments stay? Note: there is no Agreement/registration for the builder allotted slots. Please respond.
ajay sethi
(Expert) 08 November 2014
read bye laws adopted by society . it contains detailed provisions regarding allotment of car parking slots to members . it mentions that where there are more applicants than number of slots allottment should be by drawing of lots
K P Ashok
(Querist) 08 November 2014
Thank you Mr Sethi. Will come back if any further information is sought.
Kind Regards
Ashok
Sudhir Kumar, Advocate
(Expert) 08 November 2014
please do not take even a single step without reading bye laws.
K P Ashok
(Querist) 08 November 2014
Hi Mr Sudhir,
The bye laws are very clear and we have read it. We are soon giving a collective petition to the society and following it up with a legal notice and finally approaching court to get the bye-laws implemented. Our society is in a deep slumber on this matter
Kishor Mehta
(Expert) 08 November 2014
Sir,
The CHS car parking rules for your ready reference:
"78 The allotment of Parking Space/Stilts shall be made by the Committee on the basis of “First Come First Served”, for available parking spaces. However in case of Parking Space/stilts allotted by the Society, the member shall have no right to sell or transfer the said allotted parking space/stilts, to anybody.
79. No member may be entitled to utilise more parking spaces/stilts than what is allotted to him by the Committee.
80. Where any stilts have been built or open space in the society's compound is available for parking of cars, the society shall number the stilts 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.
81. A member, having a motor vehicle, will only be eligible to have stilts or a parking space. No member shall normally be eligible for being allotted more than one stilt or a parking space for parking the car owned by him or allotted to him by his employer, or the firm of which he is the partner of the company of which he is the director. If any stilts or parking spaces remain unallotted for want of applicants for allotment, a second or third stilt or parking space may be allotted to the same member who has earlier been allotted the stilt or the parking space. Such allotment of 2nd or 3rd stilt/parking space shall be made on year to year basis, provided the same is not required by another member, who is not allotted even a single stilt/parking space.
82. In case the number of vehicles of eligible members is in excess then the available parking space/stilts, the managing committee shall allot such parking space/stilts by 'lot' on yearly basis.
83. The member, desiring to have a stilt or a parking space, may make an application to the Secretary of the Society giving necessary details. The procedure for disposal of applications for permission under the bye-law, as laid down under the bye-law No. 65, shall be followed by the Secretary and the committee of the Society.
84. Every member, who has been allotted the stilt or the parking space shall be required to pay the parking charges 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 motor vehicle or not. Where a member has been allotted more than one stilt/ parking space, he shall pay parking charges in respect of every such stilt or parking space, as decided by the General Body Meeting.
85. 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."
Good Luck,
Kishor Mehta
T. Kalaiselvan, Advocate
(Expert) 13 November 2014
The elaborate explanation given by expert Mr. Kishore Mehta would have been more informative and useful to the author who by now might have been enlightened about next course of action in this regard.
K P Ashok
(Querist) 14 November 2014
Yes Mr Metha. Thank you. The experts are doing a great service.
K P Ashok
(Querist) 27 November 2014
Dear Sirs.
I am back with a question connected with the above car parking issue.
I have found out that the occupants(allotted by the builder, vide a letter) of the Stilt parking slots are also paying the municipal tax(property) for the parking area. The Municipal Corporation is raising the bills for the property tax against those flat numbers who have been allotted the stilts.
However, there is no separate agreement or stamp duty paid for these Stilts and there is neither a proof of money paid to the builder.
So, does this make the allotment of the stilts by the builder perpetual to the occupants OR it is still void?
Please respond at your earliest convenience.
Thank you
Kind Regards
Ashok
Kishor Mehta
(Expert) 27 November 2014
Sir,
[1] It has been established that the builder/developer can not sale/allot any stilt or open parking space in a society building. Allotment of stilt or open parking space is the prerogative of the society after registration.
[2] MCGM raises property tax on stilts in a society, and payment of this property tax alongwith the payment of parking charges levied by the society is the responsibility of the user/allottee. Such payment does not confer any perpetual rights on the user/allottee/s.
[3] It is an error on the part of the MCGM to have raised property tax bills for the stilt parking spaces in individual name In absence of any valid proof of ownership, you may successfully challenge the same.
Good Luck,
Kishor Mehta
K P Ashok
(Querist) 27 November 2014
Thank you very much Mr Mehta. I truly appreciate your valuable advise.
Kind Regards
Ashok
K P Ashok
(Querist) 02 December 2014
Dear Sirs,
With regards to the above issue, I request a clarification about some clauses in the Agreement of Sale. There are 58 clauses in the same and I am copying the relevant(regarding Stilts and Garages and Open spaces).
#23. All basements, open spaces, stilt, Car parking spaces and open/covered Garage in the compound of the buildings which are proposed presently and/or which may be proposed in future will belong to and owned by the PROMOTERS/BUILDERS only and they will have sole and exclusive rights and authority to alienate or dispose of the same such terms and conditions as they may like to any person or party and receive and appropriate the consideration received therefore and the FLAT PURCHASER will have no objection to the same and the FLAT PURCHASER do hereby consent to what is stated above.
#29. The stilts, basement & garage portion if any, shall belong to the PROMOTERS/BUILDERS who alone have the right to deal with or dispose off the same. The person/s to whom the stilts portion may be sold or disposed off will be admitted as members to the co-operative society/societies or the limited company/companies or the condominium/s of apartment owners as the case may be and they will not be entitled to use the same for shopping or commercial or any other purpose and the FLAT PURCHASER confirm that he as no objection to and shall not dispute the same at any time hereafter.
#44. It is clearly understood and agreed by and between the parties hereto that the Promoters shall have the unqualified and unfettered right to sell on ownership basis to anyone of their choice the Stilt, garage, garden in the compound and the terrace above the top floor of the said building subject to necessary means of access to be permitted for such purpose so as to reach the water tank. The Purchaser/occupant of such stilt, garage, terrace or garden shall be entitled to make use of the same for the purpose whatsoever,as permissible by the law.
All flat owners in the building have signed these agreements. Please note that(though of no consequence now) the builder had refused to show a copy of the agreement before purchasing the flat.
Now, does this mean that we have waived off our rights to demand equal rights to the parking spaces inside our society ?
Please advise as we need clarity on this issue before we knock the court's door.
Thank you
Kind Regards
Ashok
Kishor Mehta
(Expert) 02 December 2014
Sir,
Please refer the judgement of "Supreme Court of India in the case of Nahalchand Laloochand P.Ltd vs Panchali Co-Op.Hng.Sty.Ltd on 31 August, 2010" This is self explanatory. Hereunder is the essence of the order:
"7 It is compulsory requirement to provide for parking spaces under DCR.
7 It is obligatory on the part of the promoter to follow the DCR. The agreement signed under MOFA between the developer and the flat purchaser must be in conformity with the model form of agreement (Form V) prescribed by the State Government.
7 The model agreement does not contemplate the flat purchasers to separately purchase the stilt parking spaces.
7 The rights arising from the agreement signed under the MOFA between the promoter and the flat purchasers cannot be diluted by any contract or an undertaking to the contrary. The undertakings contrary to DCR will not be binding either on the flat purchasers or the Society. 7 The stilt parking space is a common parking area available and the developer is obliged to provide the same under the DCR when the carpet area of the flat is 350 sq. meters It is not an additional premises/area that he is authorized to sell either to flat purchaser or any outsider. It is part and parcel of the Society building and it cannot be a separate premises available for sale. As soon as the Corporation issues the occupation certificate 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.
7 The stilt parking spaces cannot be put on sale by the developer as he ceases to have any title on the same as soon as the occupation certificate is issued by the Corporation and it becomes the property of the society on its registration. 7 The stilt parking spaces cannot be termed as `open/covered garages' and Clause 2 of the Model Agreement--Form V provides for sale of covered/open garage in addition to the flat/shop. 7 It is immaterial if the purchase agreement does not include stilt car parking spaces in the common area of amenities. The stilt car parking spaces is part of the common amenities and it cannot be treated to be a separate premises/garage which could be sold by the developer to any of the members of the society or an outsider.
7 Under MOFA, the developer's right is restricted to the extent of disposal of flats, shops and/or garages, which means that any premises which is included in the Flat Space Index (FSI) can be sold by the developer/promoter. The stilt parking space is not included in the FSI nor it is assessable for the Corporation taxes"
Good Luck,
Kishor Mehta
K P Ashok
(Querist) 02 December 2014
Hello Mr Mehta
Thank you so much for the detailed explanation. I have downloaded the Supreme Court judgement mentioned by you and another judgement of the Bombay High court in a similar matter-both judgements explicitly refer to the point explained by you.
I will keep you posted on the progress of this matter.
Kind Regards
Ashok
K P Ashok
(Querist) 06 December 2014
Hello Sirs
A quick question on the above car parking issue.
Can we,the aggrieved members of the CHS file a Writ of Mandamus to ensure that the Management Committee implements the established laws regarding Car Parking?
Regards
Ashok
K P Ashok
(Querist) 20 April 2016
Hello Sirs
This is an update on the above issue.
On the advise form this forum, we have lodged a dispute in the local Co-operative court against the Secretary and Chairman of our society regarding their unwillingness to implement the law regarding car parking in our Society.
The dispute was filed in August 2015. The timeline as below:
1. Aug 2015 - Initial filing and court notice to opposing party.
2. October 2015 - Opposing party sought time to file reply.
3. Nov 2015 - Opposing party sought time to file reply.
4. Dec 2015 - Opposing party filed their reply.
5. January 2016 - Date for framing issues. set next date.
6. April 2016 - Date for framing issues. set next date.
7- July 2016 - Dont know what will happen???
Now, Our lawyer has shown no indication of any action he can take to expedite the trial and obviously we wish to do the same.
Please advise on any legal remedy available to us to get the attention of the court to frame the issues and begin the trail ASAP.
Thank you
Kind Regards
Ashok
Kishor Mehta
(Expert) 21 April 2016
Sir,
The Maharashtra CHS Bye-Laws are very clear and the judgments of Hon. Bombay High Court and Hon.Supreme Court are very specific and explicit.
However the forming of issues shall depend on the matter of your plaint and the issues that your advocate has raised in the plaint.
Good Luck,
Kishor Mehta
