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RTI Activist Jeby Patel Explains Why Builders Cannot Sell Car Parking Space.

6 November 2011 One Comment

RTI Activist Jeby Patel has elaborated on a most common problem faced by people who buy flats and builders try and sell the parking space, along with the guidelines of use of parking space in the CHS.

Below in this article he explains the details along with reference copies of judgements of High Court and Supreme Court on Parking issue in CHS.

First of all please refer Bye Laws No.78 to 85( copy of MCS Bye Laws attached with this email)

There are five types of garages:
1) Open Garage
2) Stilt Garage
3) Closed Garage
4) Podium(Plat for)Garage
5) Under Ground Garage

Can a member hold Parking space/stilts if he has purchased the same?

Answer: Builder has to provide a mandatory parking space to every flat as per the provisions of the Development Control Regulations & Parking space is not counted in F.S.I calculation. Hence, by the same reason and also as per the Mumbai High Court and Supreme Court orders, the Builder is not entitled to sell you that Parking Space.

But if the Builder utilizes part of the limited FSI he holds to build a car parking, then he can sell that to the Flat owner and the same can be retained Bye-law 79, as the said sale is legal in nature.

The allotment of Parking spaces/stilts shall be made by the Committee on the basis of ‘First Come First Served’ for unsold and available parking space.
Answer:

The common parking area/ stilts is the property of the said society as per the said High Court order and also as per the various provisions of DCR & MOFA Act. But, be advised that this common parking area does not include the parking space that is reserved for each flat as per the provisions of DCR.

Hence, this common parking space is the property of the society and the society can allot it on ‘First Come First Serve” basis or in any other manner in accordance to decisions of all the members, within the frame work of the Model Bye-Laws & MCS Act.

Note: The said High Court Order of Nahalchand Laloochand Pvt. Ltd versus Panchali Co-Operative Housing Society Limited was challenged in the Supreme Court of India and the Hon’ble Supreme Court also upheld the Judgment of the Bombay High Court i.e. “Builder cannot sell parking slots in the stilt area as independent flats or garage”

1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION FIRST APPEAL NO. 2182 OF 2007 Nahalchand Laloochand Pvt. Ltd .Appellant Vs. Panchali Co-Operative Housing Society Limited. ..Respondent

2) IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2544 OF 2010 Nahalchand Laloochand Pvt. Ltd. …Appellant Vs. Panchali Co-operative Housing Society Ltd. …Respondent

PARKING CHARGES (Open, Stilt or whatever)

LEGAL & TECHNICAL INTROSPECTION:

1. WHO OWNS THE CHS PARKING SPACE?

a) The CHS “Solely” owns the common spaces (Stilt, Open or whatever)
b) The members DO NOT own the common spaces (Stilt, Open or whatever)
c) Allotment of Parking space is a “Administrative function” and “ONLY & ONLY”
the MC has jurisdiction & is empowered to allot the parking space allotment to its own Registered members
d) The GB is not empowered to decide or allot parking spaces.
e) Registered members include family members and associate members
f) Parking is NOT a Right of the member and at the most can be an extended
humanitarian facility to the CHS members.
g) Tenant’s are Nominal Members AND HAVE NO RIGHTS OF A REGULAR
MEMBER, which includes having NO RIGHTS of parking in the CHS premises.
However, at the discretion of the MC, parking can be an extended humanitarian
facility to the nominal members.
h) Parking area (Stilt, Open or whatever) is not covered under Floor Space Index (FSI) and hence is not saleable, as upheld by the Supreme Court in the case of Nahalchand vs. Panchali CHS.
i) The Idiotic bye-law provision pertaining to Parking “RIGHTS” is a gross
violation of the various BMC & Fire act rules and has got no force of law, in Court of Law.

2. CAN THE MC REFUSE TO ALLOT PARKING SPACES to its members.
a) Parking space limitation (numbers) is decided by the Lay-Out-Plan (LOP) as
sanctioned by the civic body (like BMC)
b) AND under the Development Control rules (DC rules)
c) AND under the Fire Act rules
d) The MC is bound to “NOT” violate the LOP & DC Rules & Fire Act rules,
regarding the way common spaces are to be maintained.
e) IF the MC strictly goes, by all the Laws, then the MC may refuse parking
spaces to ANY & ALL of its CHS members, due to the various parameters of
various Laws.

3. WHAT IS THE TYPICAL PARKING CHARGES LEVIED BY CHS?
a) Only the First Registered member / Associate member may attend GB
meetings, Propose & Second the agenda resolutions, for the rules applicable to
themselves.
b) The Nominal member CANNOT attend GB meetings or Propose or Second or
Resolve or vote which includes Parking charges.
c) Parking charges may be determined amongst the General Body members, directing the MC to implement the GB directions.
d) Parking “charges” are not equivalent to Parking “penalty” for violations of
Parking spaces & usages.
e) Parking charges may be from 10/- to 10,000/- or anything per vehicle, per
month, BUT as decided by the GB, BUT this is again applicable “ONLY” to
Registered members including his family members and associate members.
f) Nominal member is not a registered member. Hence parking charges do not
apply to him. Hence Parking space can be denied to Nominal members, even
if parking space is allotted to registered members including his family members
and associate members, since Parking space is not a right granted to the
registered members.

5. RESPONSIBILITY OF PARKING SPACES.
a) The MC is responsible for the upkeep & safety of the Parking spaces and for
the safety of the members Parked vehicles.
b) By law, the MC cannot say “Parking at owners risk”. This is invalid under the
Law.
c) The member who parks his vehicle with the permission of the MC and pays
Parking charges, can file Civil Cases, Criminal Cases and Consumer Court
cases, against the CHS, for ANY “Negligence & Deficiency” in parking facility,
vehicle damages etc….
d) The MC is liable to provide Common area lights, Security services to the
CHS common areas, Sweeper charges to the parking area, path-way repair &
maintenance etc…

6. CAN PARKING DEPOSIT BE COLLECTED?
a) Parking space is a Common area and Deposit for Parking space cannot be
collected, even if passed by the GB.
b) However, by Law there are no restrictions as yet, on Parking Deposit, but
subject to mutual consent by ALL members.
c) Deposit means refundable, interest free, or whatever.

7. HOW TO ALLOT PARKING SPACES
a) Depending on the number of lawful Parking spaces (under BMC rules) and
number of member vehicles, Parking space may be tentatively allotted on yearly Rotation usage system, which depends on cyclic First Apply First Allotment system.
b) More than one parking space may not be allotted to a member IF other
members parking requirements are not fulfilled.

8. PENALTY ON PARKING OFFENCES (Open, Stilt or whatever):

a) Penalty is a “Fine” for violations of the CHS rules & conditions “AND”
resolutions passed in the GB directing the MC to implement the GB directions
applicable to them.
b) Penalty amount may be Pre-fixed and decided by the GB.
c) However, by virtue of elections and the Indemnity Bond u/s 73, the MC has
been granted discretionary powers to levy Penalty for “any other violations” by
the CHS Members, Staff, etc…. Such Penalty amount can be spontaneously
decided & implemented by the MC without taking the GB approval.
d) In case of dispute of Penalty amount levied by the MC, the member may
approach the local Ward Deputy Registrar of Coop, for redressal of his
grievances.
As per New Model Bye Laws (as amended in 2009) Bye Law No.166: The
general body meeting, after considering the say of the member and after giving
him hearing, may levy penalty at the rate fixed by the meeting of the general
body of the society but not more than Rs.1000.

***
With help from Mr.Dilip Shah, Senior Counselor for redevelopment

Parking_High_Court_Judgment_Car_Parking_-_FIRST_APPEAL_NO._2182_OF_2007(2)

Parking_Supreme_Court_Parking_Space_Judgement_-_CIVIL_APPEAL_NO._2544_OF_2010

MAHARASHTRA_CO-OPERATIVE_HOUSING_SOCIETIES_BYE_LAWS

One Comment »

  • Samir said:

    Good article clears the air on many ambiguous matters.
    Thanks Jeby