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Parking issues in mumbai housing societies

Page no : 4

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     04 August 2014

Dear Shri Kishor Mehta:

I did not make any personal comments. I made an observations on your posts here at different times. In one place you mentioned that a builder cannot sell parking slots and in another place you referred  to parking slots held by members with transferable rights. 

Now you that MCS Act, 1960 bars a builder from selling parking slots and that member comes to hold a parking slot sold to him by the Society. I shall be grateful if you can give me the Section No. in the MCS Act, 1960 which says that a builder cannot sell parking lots. Also I would like to know which law permits a Society to sell one plot to one member and give on monthly rent another slot to another member.

Shri Joy Burman:

Yours is a fit case for the consumer court. Any immovable property sold by the builder within the Society premises will be subject to stamp duty and registration. You can complain to the Consumer Court for declaring the sales void. What the builder does is an Unfair Trade Practice under the CPA 1986.

Kishor Mehta (CEO)     04 August 2014

Dr. MPS Ramani PhD,

Sir,

[1] The Builder can not sell parking spaces:

Please refer the following judgments which unambiguously establish that builder can not sell parking spaces.

(a) Co-operative Appellate Court, Mumbai. (A.O No. 86 of 2001. March 4, 2002)

(b) THE SUPREME COURT OF INDIA, CIVIL APPELLATE JURISDICTION, CIVIL APPEAL NO. 2544 OF 2010

[2] The parking regulations for a CHS are as under..

Co-Operative Housing Society Bye-Laws about car parking 

78(a) Member may hold parking space/ stilt if he is allotted the same, and he shall have a right to transfer the same to transferee or other eligible member of the same society. (here

(b) 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. 

Good Luck,
Kishor Mehta

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     05 August 2014

Under bye-law No.78(a) Member may hold parking space/ stilt if he is allotted the same, and he shall have a right to transfer the same to transferee or other eligible member of the same society.

(b)---------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.

Who allots the parking space under 78(a)?  It cannot be the Society, because 78(b) says parking space allotted by the Society are not transferable.

Kishor Mehta (CEO)     05 August 2014

Sir,

The MCS Bye-Laws are made for CHS and all CHS in Maharashtra are governed by these Bye-Laws, and Bye-Law nos. 78(a) & 78(b) are part of the MCS Bye-Laws, naturally the Society only can allot or agree to transfer the parking spaces.

On a casual reading the meaning of the two Bye-Laws appear to be at cross purpose and needs to be further explained, and hopefully shall be further discussed and explained whenever a precedent is set by a test case in a court of Law.  

However it is established in no uncertain terms the the builder/developer can not sell or allot the parking spaces. 

Good Luck,

Kishor Mehta

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     07 August 2014

The bye-laws refer to two types of parking lots. Ones which are pre-owned even before the bye-laws came into force and others which are allotted to members on a non-transferable basis. The common areas which include the latter are owned by the Society with no transferable rights. In other words the Society can allot them but not sell them to members.

The Supreme court judgment was dismissing an appeal by a builder. He kept back the parking lots while selling the flats to the members. Also he included a statement in his agreement with each member that he would be free to sell the parking lots separately. He tried to sell the lots after the Society was formed to which the latter objected. The builder went to court from the lowest up to the Supreme Court. His case was rejected at every stage. In its judgment the Supreme Court extensively refers to Maharashtra laws and Rules. There is no law or rule which categorically states that a builder cannot sell a parking lot. In the particular case the way the builder went about disqualified him from selling the parking lots.

The bye-laws do not talk about pre-earmarked parking lots. They are open spaces or under stilts, where the Society can mark parking lots and allot to members. The places can be kept vacant for the general enjoyment of members also.

It is the dharma of the builder to construct and sell residential and commercial spaces. Why does a person want to buy any of these spaces? He wants a place where he will have inalienable right to reside or to carry on his commercial activity. He may have a car for which he may want to have a place where he will have inalienable right to park, not subject whims and fancies of the MC of the Society. He will go in search of such a building where he can get such a space. It is the dharma of the builder to aim at making available such parking spaces. If he takes this into account he can construct buildings with exclusive parking lots to all or some flats, and at the same time satisfy the requirement of all Laws, Rules and Regulations. He can put up such a plan for the approval of competent authorities. If the authorities do not approve he can go to court. He should not go to court the way the builder referred to above did.

My interest in law is because for me law is a science. In the case of law also we should think logically from certain fundamentals and from first principles. Just as scientists have fora where they debate scientific matters, lawyer's fora should debate laws and judgments including Supreme Court judgments. There are occasions when even Supreme Court has done blunders. By discussing threadbare in lawyer's fora and other such platforms only we can improve the quality of justice in this country.

Kishor Mehta (CEO)     07 August 2014

Sir,

I absolutely agree with your views, but as I understand it one is supposed to offer his suggestions in accordance with the current applicability and practice of Laws and relevant Judgments of Courts.

Good Luck,

Kishor Mehta

PREM KUMAR (EX. DGM(E&T))     04 October 2014

Dear Sir, I am resident of Rushi Heights Cooperative Housing Society located in Malad(E). The builder Mukul Developers has sold out the CAR PARKINGS in open common area and basement. My self has purchased the flat and was asked to pay hefty amount for the car parking by Builder which I have refused to pay. I approached the RHCHS for providing me CAR parking in the open common area in the premises. Now RHCHS is asking a deposit of RS.7.5 Lakhs for the same. Builder has allotted more than one car parkings to several members of the society before handing over to RHCHS. I am asking for a single Car parking for which I am entitled. Please guide me to get my mandatory CAR parking as per my right. Thanks, Prem Kumar

Kishor Mehta (CEO)     04 October 2014

Sir,

[1] The builder can not allot or sale parking spaces.

[2] Please refer CHS parking regulations and request for a parking space for your vehicle, in writing, to the Managing Committee in accordance with the regulations, if the Managing Committee fails to follow or refuses to follow the regulations, please refer the matter to the Sub-Registrar of CHS of your area.

The CHS parking Bye-Laws are as under:

Co-Operative Housing Society Bye-Laws about car parking

78(a) Member may hold parking space/ stilt if he is allotted the same, and he shall have a right to transfer the same to transferee or other eligible member of the same society.

78(b) 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

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     04 October 2014

What the builder is doing and what your CHS is doing are both against law. A builder can sell a parking lot only after he satisfies all the requirement of Development Control Rules, he has shown in his plans the lots as saleable parking lots and has got the approval of competent authorities. If the builder has violated these you can go to the consumer court. The Society can allot parking lots in accordance with the bye-laws. They can neither sell nor collect deposits for the allotment. Consumer courts are entertaining complaints against Societies also. Otherwise you can complain to the Registrar of Co-operative Societies. But he is lethargic. You can go to the Co-operative Court without informing the Society and get immediate injunction against the Society form allotting parking lots and cancellation of allotments already made pending disposal of the case.

Hemal ganatra (Proprietor)     26 January 2015

Refer judgement of yogesh shah consumer court South Mumbai 115 of 2012. 

Do not pay any money to builder or society. Society cannot collect deposited for parkingand not particularly interest free.

please make both builder as well society party. One bad news is that even if you succeed and then society does not cooperate then the toughest part is execution . Also please not a flat includes a stilt open parking but does not include a garage. Only garages can be sold. Stilt and open cannot be sold. Even if you are not allotted you are deemed allotted if parkings are eequivalent or more than flats as it a part and parcel of your flat though it is not physically attached to your flat. In my opinion you can claim compensation if your neighbor having same size of your flat is holding two  or more parking and you are denied the same and in my opinion all the members who hold two or more parking subject to other conditions shall be made party if flat are less then parking  space.

Mangesh C Sannake (A C E )     04 March 2015

We have parking issue in our society...as certain members claim parking saying they had bought parking from builder. 

Begin chairman of society I informed them...that buying parking from builder is illegal....got reply from one our member who purchased parking  from builder that.....

Mah Housing Act, 2012 (notified in 2014) wherein Section 9(2) provides for allocation of Parking Space. Further, the parking space is excluded from the definition of Common Space/Area and amenities.

There are total 18 Flat and only 4 to 5 parkings....How can builder sell parking lot...and that also 2 parkings to one of the member....so now 3 members are parking and rest how to park outside...how to solve this parking issue....as we have to go for conveyance of society and landlord of building is refusing to sign...as builder had not alloted any parking space to landlord...for redevelopment.

Attached File : 879512097 mah housing act 2012 (2).pdf downloaded: 81 times

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     05 March 2015

Please let me know in which year your building was constructed and occupied. In the Maharashtra Housing Act ownership of parking space is only implied and not expressed/ Are you in Mumbai? I am attaching herewith a copy of the Development Control Rules. Please give the carpet area of each flat. You can yourself check whether the builder has complied with the DCR. It appears not at all likely. Hence the Builder could not have sold the parking lots. It was illegal. You can give notice to the owners of parking lots asking them to surrender the parking lots to the Society as the sale was illegal as the builder had not followed the DCR. Even otherwise principles of equity demand that parking lots cannot be sold under the situation prevailing in your Society. If they do not comply you can go to court. You will win the case.

Joy Burman (Art Director)     02 April 2015

Dear Sir

I have bought a 1BHK flat from a reputed builder at Thane and I am having similar issues with the builder regarding parking space. I am aware about the Supreme courts judgment about the restriction on selling of parking. Therefore I approached to the builder for a stilt parking space which is empty but he has turned down my requisition saying all the stilt parking is been sold out and only 'Hydraulic Stack Parking' is available @ cost of Rs. 4 Lac. Currently our complex is not society registered and maintained by the builder solely.

The builder is influencing it's new customers by saying that he wont let park any vehicle inside the complex who didn't bought parking and forcing many of them to pay 4 lac additional without any paper-work for allotment of a parking space. In spite of the Supreme Court’s verdict.

Sir I have zero knowledge of legal affairs and I would like to ask you following questions:

1)    If selling of Parking space is illegal then how the builder is still asking money for parking allotment from his customer?

2)    Since I don’t have affordability of buying a parking space @ 4 lac, does that allow him to stop entering and not allow my car to park inside the complex?

3)    Since the parking space will own by Housing Society after registration, what about the members who have already paid money and got allotment? Do they have to surrender their parking to the CHS once its registered irrespective of payment to the builder?

4)    Does the Mah Housing Act, 2012 (notified in 2014) wherein Section 9(2) really allows the builder to sell parking?

I will be obliged for your reply and guidance.

Also there is no attachment of Development Control Rules (DCR). Could you please re-attach.

 

Kind regards

Joy Burman

Hemal ganatra (Proprietor)     02 April 2015

Builder cannot sell parking space. Immediately file a civil suit on builder and please specify the available unsold parking lots to be allotted to you. Also please make society/ proposed society/owners party to the suit so that when the outcome comes in your favour the society cannot at anytime in future object the same. Please make unity and inform all owners who have purchased th same that if they have paid by cheque that are entitle to full refund  in consumers forum. If others members are not cooperating please make all the members party to the suit and apply for injunction preventing builder from alloting/ dealing in any manner or selling parking. Also please note only garages which are constructed by untilising FSI only can be sold.

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     04 April 2015

Under the law when a certain minimum number of flats are sold the builder must compulsorily apply for formation of a Co-operative Housing Society or other type of Association with purchasers of flats already sold as members and himself as member for the unsold flats. There is no clear law as to whether a builder can sell or not any parking space. The Supreme Court judgment was with respect to a particular case and, if at all, it will be applicable only to exactly similar case. Under the Development Control Rules (DCR) a certain number of parking lots are to be provided in proportion to the number of flats. One parking lot has to be provided for each flat above 70 sq.M. One parking lot for a number flats together have to be provided for smaller flats. Further a certain number of parking lots have to be set aside for visitors. Mostly DCR are not followed by builders. But if parking lots as required under DCR have been satisfied and there are additional parking lots available (a highly unlikely situation) such additional lots can be sold. This is my interpretation. As the builder has not applied for formation of a Society, it is very difficult to act. But you can go to Consumer Court complaining that the builder is resorting to Unfair Trade Practices. If a Society is formed during the pendency of the consumer case, you must implead the Society also as an Opposite Party. Also the builder should not be absolved of his liabilities. Going to civil court can drag on the case for years. Pending disposal of your case, you must ask for interim cancellation of all sales of parking lots, so that you are not put to inconvenience.

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