Due to shortage of space and improper planning, there are many disputes between residents for Car Parking in Cooperative Housing Societies. In this article, we will talk about the Laws, Rules and regulations regarding Car Parking in Cooperative housing Societies
Many times the Builders treat the open space available in housing societies as if it is their personal property and try to exploit Flat buyers. The classic instances of the same are –
a) Sale of open terrace.
b) Sale of garden area.
c) Sale of car parking.
When a Flat buyer purchases a Flat, he pays money not only for the four corners of the Flat but also for the entire right, title and interest of the premises and also for the common areas and amenities attached to the premises. The flat buyer therefore can look up to the following laws, rules and regulations regarding the parking issues in a Co-operative Housing Society:-
[A] Under Maharashtra Ownership of Flats act (MOFA), section 3 sub-section 2 clause (m) provides that
When the flats are advertised for sale, disclose inter-alia in the advertisement the following particulars, namely:–
(i) the extent of the carpet area of the flat including the area of the balconies which should be shown separately;
(ii) the price of the flat including the proportionate price of the common areas and facilities which should be shown separately, to be paid by the buyer of flat; and the intervals at which the installments thereof may be paid;
(iii) the nature, extent and description of the common areas and facilities; and
(iv) the nature, extent and description of limited common areas and facilities, if any;] [(n) sell flats on the basis of the carpet area only: provided that, the promoter may separately charge for the common areas and facilities in proportion to the carpet area of the flat.]
Under Section 10 (1) of Maharashtra Ownership of Flats act (MOFA) –
As soon as a minimum number of persons required to form a Co-operative society or a company have taken flats, the promoter shall within the prescribed period submit an application to the Registrar for registration of the organization of persons who take the flats as a Cooperative society or, as the case may be, as a company; and the promoter shall join, in respect of the flats which have not been taken, in such application for membership of a co-operative society or as the case may be, of a company. Nothing in this section shall affect the right of the promoter to dispose of the remaining flats in accordance with the provisions of the act.
Explanation: The above section means that the promoter can only charge price for the flat and the common areas and facilities at the time of selling the flats. Once society is registered the builder does not remain the owner thereof and the society can deal with the open space n common area of the building as it deem fit. 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. (see Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-operative Housing Society Ltd).
Section 10 also means that the promoter as soon as the minimum number of persons are required to form a society have take flats, he shall submit an application to the registrar to form a cooperative housing society within the prescribed period.
[B] Rule 36 of Development Control Regulations provides that,
Wherever a property is developed or redeveloped, parking spaces at the scale laid down in these Regulations shall be provided. When additions are made to an existing building the new parking requirements will be reckoned with reference to the additional space only and not to the whole of building but this concession shall not apply where the use is changed.
Explanation: The above regulation means that every flat owner must be granted a parking space according to the scale laid down in DCR rules. As per Development Control Rule, every flat buyer, the carpet area of whose flat is exceeding 70 sq.meters is entitled to get one car parking space.
[C] As per Maharashtra Co-operative Society’s act 1960,
As per the clauses of the model form agreement;
- Clause 11 -The Flat buyer shall use the Flat or any part thereof or permit the same to be used for purpose of residence/office/ showroom/shop/godown for carrying on any industry or business. He shall use the garage or parking space only for the purpose of keeping or parking the Flat buyer’s own vehicle.
- Clause 13 -Unless it is otherwise agreed to by and between the parties hereto the Promoter shall, within four months of registration of the Society or Limited Company, as aforesaid cause to be transferred to the Society or Limited Company all the right, title and the interest of the Vendor/Lessor/Original Owner/Promoter and/or the owners in the aliquot part of the said land together with the building/s by obtaining/ or executing the necessary conveyance/ and or assignment of lease of the said land (or to the extent as may be permitted by the authorities) and the said building in favour of such Society or Limited Company, as the case may be such conveyance/ assignment of lease shall be in keeping with the terms and provisions of this Agreement.
- Clause 24 – It is also understood and agreed by and between the parties hereto that the terrace space in front of or adjacent to the terrace flats in the said building, if any, shall belong exclusively to the respective buyer or the terrace flat and such terrace spaces are intended for the exclusive use of the respective terrace Flat buyer. The said terrace shall not be enclosed by the Flat buyer till the permission in writing is obtained from the concerned local authority and the Promoter or the Society, or as the case may be, the Limited Company.
The above clause 11 states that once the sale is done the flat purchases is solely entitled to use the flat purchased and use the common area and amenities as per his will.
Clause 13 makes it obligatory for the promoter to transfer all the right, title and interests in the name of the society or company formed within four months of its formation.
Clause 24 states that the terrace area belongs to the one purchasing it, or to the terrace flat owner, but the terrace flat owner cannot enclose the terrace area until the permission is obtained it writing from the concerned local authority, promoter or the society/company
Furthermore, Article 300A provides that Persons not to be deprived of property save by authority of law. – No person shall be deprived of his property save by authority of law.
The constitution provides right of property as a constitutional right. Thus any person who is deprived of his property save by authority of law can approach the high court for violation of his right.
Now lets see a few Judgements decided on the parking issue:-
[A] IN THE SUPREME COURT OF INDIA (Decided On: 31.08.2010)
Appellants: Nahalchand Laloochand Pvt. Ltd.
Respondent: Panchali Co-operative Housing Society Ltd.
Court Held, MOFA restricted rights of Promoter in block or building constructed for flats or to be constructed for flats to which that Act applied – Promoter had no right to sell any portion of such building which was not ‘flat’ within meaning of Section 2(a-1) of Act and entire land and building had to be conveyed to organization – However, Promoter was left with only right to sell unsold flats – Thus, Promoter had no right to sell ‘stilt parking spaces’ as these were neither ‘flat’ nor appurtenant or attachment to flat.
Thus Supreme Court dismissed the appeal by the promoter and held the promoter has no right on the stilt/ open parking of the society once the society is formed. The society has the right to deal with the parking spaces after the society is formed.
[B] IN THE HIGH COURT OF BOMBAY (Decided On: 24.03.2011)
Appellants: Prabhu Kunj Co-op. Hsg Soc. Ltd.
Respondent: Maharashtra State Co-operative Appellate Court & Ors.
Judge remarked as per the decision of SC in Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-operative Housing Society Ltd that the society could not have sold the parking slots to the individual members but left the final decision on the trial court. Suit is still pending.
[C] STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI
Mrs.Jyoti Ramesh Agrawal,
Mr.Yashodeep Ramesh Agrawal, …..Appellant(s)
Silver Riddhi Siddhi CHS Ltd., Through its Secretary Mr.Sonpal Singh Saini………Respondent
Court held Cooperative housing Societies under Maharashtra cooperative societies act bound to allot parking space to all the members on uniformly and the respondent/opponent society is directed to allot one car parking space to complainants from the common space available in the premises of the building. If no common space is available in the premises of the society for giving to complainants for their car parking then society should take decision for allotting car parking space to complainants by lot on year to year basis.
We at SN Legal, Advocates & Solicitor, are equipped in helping and resolving Car Parking Cooperative housing Societies and all other matters pertaining to Housing Societies for our clients. Please contact us for consultation.