Builder to allot the car park on the first come, first served basis without charging any money
anurag kaushik
(Querist) 01 April 2012
This query is : Resolved
A ew days ago I hasd asked the following query?
How does one buy a car parking alongwith flat and what is the document required(Mumbai):
1) will allotment letter from builder be binding on society?
2) Can builder take refundable deposit(not sale) and allot a car park/
3) will 2 be binding on society?
4) shall it be aprt of registered sale deed?
Now I came acrossET(wealth) dt march 26 ewherein one lawyer Mr. Ravi Goenka , Mumbai High Court opined that " builder can allot the car park on the first come, first served basis without charging any money from him".
Is the opinion legally tenable, is society bound to accept such allotment.
ajay sethi
(Expert) 01 April 2012
SC ruling prohibits builders from selling parking area as independent units to flat buyers. SC has ruled that builders cannot sell parking areas in the stilt area as independent units as the same is to be extended as ‘common areas and facilities’ for the owners
while the SC ruling stops builder from selling the parking space, the same is sold under the name of allotment or parking deposit or rights,”
The routine practice is that builders do not charge for parkingand give mere allotment letter for parking slots
In the landmark judgment delivered by the Maharashtra State Co-operative Appellate Court Mumbai in the case of M/s Prakash Auto v/s Aranja Arcade Premises Co-operative Society Ltd. & ors. has prevented the Builders from allotting-selling or otherwise disposing of the disputed car parking spaces. The implications of the above said judgment is that even if the builder sells car parking space in the basement, a co-operative society is entitled to allot the car parking space in the basement to their members on the basis of the resolution passed by the society at its General Body Meeting.
ajay sethi
(Expert) 01 April 2012
Under Section 78 of MOFA Act, The allotment of parking space/ stilts shall be made by the committee on the basis of 'first come first served', for unsold and available parking spaces. However, in case of Parking Space/ stilt allotted by the society, the member shall have no right to sell or transfer the said allotted parking space/ stilt to anybody.
Eligibility for allotment of stilts or parking spaces
82. 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 or the company of which he is the director. If any stilts or parking spaces remain un-allotted 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 stilts/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.
83. In case, the number of vehicles of eligible members are in excess then the available parking space/stilts the managing committee. It allot such parking space /stilts by “lot” on yearly basis
Rajeev Kumar
(Expert) 01 April 2012
Yes Mr. Sethi has replied well and in details with relevant landmark judgements. Nothing left to add further
anurag kaushik
(Querist) 02 April 2012
Essentially that means we can not buy car park from builder
Car Parking
By Adv. Chhaya Khamkar
Types and Definition of parking
Stilt – A pair of poles with foot-rests, enabling the user to walk with feet at a distance above the ground; piles or posts on which a building stands.
Open – Means an area forming an integral part of a site left open to the sky.
Garage – A building for housing a motor vehicle or vehicles. An establishment which sells fuel or which repairs and sells motor vehicles.
Garage
Public – It means a building or portion thereof , designed other than as a private garage, operated for gain, designed and or used for repairing, servicing, hiring, selling or storing or parking motor driven or other vehicles.
a) Parking Rules
Co-operative society can and should frame parking rules. Normally co-operative society should ask for the details of the vehicles to be parked including a certified copy of the RC book should be insisted upon from the member while submitting the application for parking slot After receipt of the above said paper/ documents the society should allot a parking slot. The society may even allot a sticker and/or may even instruct the member that without the parking sticker the vehicle shall not be allowed to be parked in the society compound.
b) Policy of allotment of parking spaces, and stilts
Under Section 78 of MOFA Act, The allotment of parking space/ stilts shall be made by the committee on the basis of ‘first come first served’, for unsold and available parking spaces. However, in case of Parking Space/ stilt allotted by the society, the member shall have no right to sell or transfer the said allotted parking space/ stilt to anybody.
c) Applications for allotment of stilts or parking spaces
Under Section 83 of MOFA Act, 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 this bye-law, as laid down under the Bye laws No.65, shall be followed by the Secretary and the committee of the society.
d) Eligibility for allotment of stilts or parking spaces
Under Section 81 of MOFA Act, A member, having a motor vehicle, will only be eligible to have a stilt or 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. 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 parking space. Such allotment of 2nd or 3rd stilts/ or 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 stilts / or parking space.
Under Section 82 of MOFA Act, In case the numbers of vehicles of eligible members are in excess then the available parking space/ stilts, the Managing Committee shall allot such parking space/stilts by “lot” on yearly basis.
e) Car Parking Slots
Sale of car parking slots is a controversial matter. It would be of interest to note that the definition of flat in the model bye-laws includes a godown but does not include an open car parking space. It is an open secret that builder sale open car parking. Conflicting judgments have been given by courts on matter related to car parking. In the landmark judgment delivered by the Maharashtra State Co-operative Appellate Court Mumbai in the case of M/s Prakash Auto v/s Aranja Arcade Premises Co-operative Society Ltd. & ors. has prevented the Builders from allotting-selling or otherwise disposing of the disputed car parking spaces. The implications of the above said judgment is that even if the builder sells car parking space in the basement, a co-operative society is entitled to allot the car parking space in the basement to their members on the basis of the resolution passed by the society at its General Body Meeting. Now no builder can sell parking space under stilts separately, the Bombay High Court has ruled in re- Nahalchand Laloochand Pvt. Ltd., that a stilt parking space is a common parking space available to members of the housing society and not an additional premises or space available for the builder or developer to sale either to any member of the society or any outsider and further clarified that even under DC rules the developers had to provide car parking spaces, wherever carpet area of the flat is more than 35 sq meter and estoppal do not work against statutory provisions. Apart from this fact the court has also considered the definition of flat under Maharashtra Ownership of Flats Act, which includes open and parking spaces in area if the flat wherever area is counted as super-built up.
f) Parking Space
Means and enclosed or unenclosed covered or open area sufficient in size to park vehicles. Parking space shall be served by a driveway connecting them with a street or alley and permitting ingress or egress of vehicles.
Under Section 80 of MOFA Act, marking of parking spaces or stilts is the way that no inconvenience would be caused to any of the member of the society. 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 stilt or the open space for the purpose of no disputes caused between the members of the society. As per the Development Control Regulations it is necessary 10% car parking space should be kept for the visitors.
Under Section 79 of MOFA Act, the restrictions are given on use of car parking and stilt parking that ‘No member shall be entitled to utilize more parking spaces / stilts than what is allotted to him by the committee, or which he has purchased’.
As per the Development Control Regulations for Greater Mumbai 1991, one parking space for every 8 sq. mtr. Of the floor area up to 800 sq mtrs. and one parking space for every additional 160 sq. mtrs. Of area is required to be provided. For hotels one parking space for every 60 sq. mtrs. Of the floor area is required to be provided. For Grade I Restaurant, one parking space for every 25 sq. mtrs of area of the restaurant, including hall, dining room, pantry and bar must be provided. For the Grade II and Grade III hotels, the requirement is one parking space for every 80 sq. mtrs of the areas.
g) Parking Charges
Under Section 84 of the MOFA Act, Every member who has 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. The Society can recover different rates for different types of vehicles. The General body of the Society can definitely fix up the charges for the 2nd and 3rd car etc. Therefore, the member will have to pay the parking charges for a particular month irrespective of the fact that he has parked the vehicle for a few days. 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.
h) Commercial use of Garage
Garage allotted for car parking cannot be used for commercial purpose except with the permission from the Bombay Municipal Corporation. At the time of the construction of garages an undertaking has to be given to the Municipal Corporation that they will be used only for car parking. If Society use car parking for commercial purpose it breaches under Co-operative Laws there is also violation of the Bombay Municipal Corporation Rules. Garage allotted for car parking are exempted from the F.S.I Calculations. However, if there is extra FSI or the benefits of TDR are available to the said property then such garages used for Car Parking can be regularized for commercial activities.
i) Stilt Parking
No member can cover a parking stilt; it is open space. It needs to be emphasized that while submitting the plans certain areas are shown as open space and parking stilt is normally shown as open space. The open spaces are not included in FSI calculations.
j) Criminal case against the builder
Many times builder gives false promises to the flat purchasers and also does not comply with their statutory obligations as are stipulated in the MOFA (The Maharashtra Ownership Flats Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963. In such circumstances the options available to the flat purchasers/ society include filing a complaint in the Consumer Court as well as initiating criminal action before the criminal court against the Builder. Even selling away the car parking is one of the offences under the MOFA Act. The society can bring Criminal complaint against such Builder under various sections of Indian Penal Code.
Guest
(Expert) 04 April 2012
Dear Anurag,
buying a car park on payment and allotment of car park without cost by the builder and making parking rules by society are three different things.
It is not the question whether you buy or not buy, but if parking sold by the builder by charging a price that is illegal and he is liable to make refund.
Now the question arises, if the builder has already allotted car park on first come first basis before the formation of society, where does the question arises for the society to cancel that car parking, even on framing of parking rules. The society is therefore bound to accept such allotment. The same allotment can be ratified by the society and the rest of the vacant parking lots can be allotted by the society after framing of parking rules.
anurag kaushik
(Querist) 04 April 2012
Dear Mr. Dhingra,
Hats Off to you.
This is very convincing, but if society cancels allotment later, can we go for legal recourse.
Guest
(Expert) 04 April 2012
Dear Anurag,
Definitely, you have the right to approach the court of law, if the allotment is cancelled by the society without any valid reason and the society is formed later than the allotment of car parking by the builder.
anurag kaushik
(Querist) 04 April 2012
Dear Mr. Dhingra,
Thanks once again.
This is my third query with same subject, I think this was the answer I was seeking.
In fact this is a common probem all flat buyers in mumbai face.
ajay sethi
(Expert) 04 April 2012
if builder has alloted car parking space there is no bar on society from reshuffling the car parking spaces . for instance if there are 20 open car parking slots available . 30 members in society . after formation of society it can reshuffle car parking slots . if applicants are more ,the orginal allottes cannot challenge right of society which is provided under byelaws to allot the slots . the original allottees are not the owners of car parking slots . they have only been given right to park the vehicles .
