Please refer the ruling of the Apex Court on the subject “sale of parking slots by the builders “
This ruling may create problems rather than solving the issue as the said judgment is not clear on certain possibilities .
The ruling has discussed various provisions of MOFA and the DC Rules. The Apex Court has mainly discussed the meaning of the word “garage” in the MOFA .The court has opined that stilt parking can not be termed as GARAGE because in common parlance a garage has to be a parking place covered by three sides and the top . The opinion expressed by the court appears to be not properly reasoned. The court differentiates between a slot covered by three sides and a slot not covered by sides at all. This can not be the intention of the legislature as any constructed area covered by three sides becomes a shop and falls in the main definition of flat and the extended definition ( bracketed) need not be applied to such shops . Moreover this area is calculated as FSI/FAR. Therefore the contemplation of the court that to become a GARAGE the area is required to be covered by three sides and top is wrong as in such cases the area becomes shop and can be used for any non-prohibited use including parking of vehicle and would not have become the bone of contention at all. Secondly the court has not considered the eventuality of multi vehicle parking slot in the stilt or in the basement area which may have been covered by three sides and thus qualify for the word garage under MOFA (as interpreted by the Apex Court) .Such area is also not included in FSI and thus is at par with the normal stilt area .Therefore the distinction made by the Court appears to be not properly reasoned. Further to add this if we consider the case of a composite society of flats and row-houses {covered by the same provisions of MOFA } then exclusive use/allotment of a porch physically attached to the row house would be contra to this ruling, as even the porch being not covered by three sides does not qualify as GARAGE and therefore becomes common area. If the bundling is allowed on the ground of physical attachment then it would mean that only ground floor flats can be bundled with the parking area which definitely can not be the intention of the law makers .
Further the ruling is not practical. It is needless to mention here that all covered parking slots may not be identical and the maneuvering of the vehicle depends mainly on the dimensions and the location of the slot. In other words the choice of the make of the vehicle depends upon the prior determination of stilt parking allotment. Therefore the allotment has to be determined and bundled with at the time of purchase of the flat and can not be left open to the mercy of the envious neighbors who are always at majority.
Apex Court has not considered the case of commercial premises built under MOFA /MAOA and rented out to or purchased by establishments such as banks, hospitals, insurance etc. The nature of there activity is such that a certain slot of confirmed parking is just essential for running it and in the cities like Thane,Kalyan and New Mumbai most of the buildings are built and titled under MOFA /MAOA.
Now the most important thing is that the model bye-laws prescribed for the co-operative societies wherein a sale/purchase of parking place to a member is recognized expressly. Though the bye-laws are optional and enactment prevails over the bye-laws it can reasonably be construed that the bye-laws are based upon common parlance needed in the day to day affairs of the society and at least in this case the legislative intention and the understanding of the common flat purchaser has to be according to the common parlance as held by the court in para 36 of this ruling.
The Apex Court has not considered the case where the majority of the flats are of such measurement that parking is not mandatory under the DC Rules but few bigger flats or the shops in the same building need it under the said DC Rules. In such cases if the parking slot is not bundled with such bigger flats or the shops then the very logic behind the said provision of the DC Rules is not met. Similarly the case of multi storied stilt parking at the level of flat is not considered at all by the court .If the same logic is extended to such cases then even allotment of this parking to the specific member would become impossible.
The court is silent over the applicability of this ruling to the cases where the stilt area is already sold /allotted to flat purchaser or to the original land owner towards the consideration long back and the instrument is duly registered and stamped on the total consideration. In such case since the promoter has not included the cost of the common parking area on all the flat purchaser proportionately the same can not be recovered by him now as hit by time bar and the purchaser of the stilt area may ask for refund as the transaction becomes void.
In many societies flats are leased out to companies along with parking area as an attachment to the flat. If this order is enforced then such bundling would not be legal. It is interesting to know that a flat along with such parking space is being offered on rent through advertisement on internet in the society(NYAY SAGAR CHS ,BKC) where the honorable judge who gave this verdict is a co-member. In the same building it is seen that the stilt parking slots are allotted to the different members and are bundled with the flats. Not only that but a commercial premises is bundled with two parking slots exclusively. Though it could not be ascertained that the flat owned by the honorable judge is bundled with the parking slot or not but in either the case the honorable judge becomes interested person and therefore should have refrained himself from giving the judgment and the matter should have been placed before a judge who does not have property in a building constructed under MOFA /MAOA and with stilt parking.
Considering the ambiguity and the non -practical outcome of the order and the fact that the order is based upon the meaning of the word “flat” and “garage” under MOFA the same is required to be amended or clarified expressly with retrospective effect by bringing the covered parking slots at par with terrace attached to the flat as “appurtenant or attachment” falling under the limited common area and thus saleable along with flat only.
