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Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     02 September 2010

Builders have no right to sell stilt parking: SC

Builders have no right to sell stilt parking:  SC
(reproduced from  "Times of India", Mumbai Edition, 02-09-2010, page no. 02)


New Delhi: The Supreme Court has ruled that builders/promoters cannot sell parking areas as independent units or flats as the same is to be extended as “common areas and facilities” for the owners. A bench of Justices R M Lodha and A K Patnaik in a judgment rejected the argument of a real estate development company that they are entitled to sell garages/stilt parking areas as separate flats to owners who intend to use it as parking facilities.


   “If a promoter does not fully disclose the common areas and facilities, he does so at his own peril. Stilt parking spaces would not cease to be part of common areas and facilities merely because the promoter has not described the same as such in the advertisement and agreement with the flat purchaser. The promoter has no right to sell any portion of such building which is not a ‘flat’ within the meaning of Section 2(A-1) and the entire land and building has to be conveyed to the organization. The only right that remains with the promoter is to sell unsold flats.’’


   “It is, thus, clear that the promoter has no right to sell stilt parking spaces as these are neither flats nor apartments or attachment to a flat,’’ Justice Lodha writing the judgment said.


   The SC passed the judgment while dismissing the appeal of the promoter, Nahalchand Laloochand Pvt Ltd, challenging the Bombay high court’s ruling that under the MOFA (Maharashtra Ownership Flats Act) a builder cannot sell parking slots in the stilt area as independent flats or garage. The apex court accepted the argument of the flat owners of Panchali Co-operative Society in Dahisar (E) that even if they had entered into any prior agreement or contract with the builder that they would not lay any claim on the parking areas, the same would not have any legal sanctity.


   It brushed aside the claim of the promoter that by treating open/stilt parking space as part of common areas, every flat purchaser will have to bear proportionate cost for the same although he may not be interested in such parking space at all.


   “As a matter of fact, so far as the promoter is concerned, he is not put to any prejudice financially by treating open parking space/stilt parking space as part of common areas since he is entitled to charge a price for the common areas and facilities from each flat purchaser in proportion to the carpet area of the flat,” the apex court said.



Learning

 18 Replies

Adv Archana Deshmukh (Practicing Advocate)     02 September 2010

Useful information

Sameer Sharma (Advocate)     02 September 2010

The ruling could bring relief to lakhs of flat-owners in different housing societies in Mumbai engaged in a tug of war with the builders over sale of such space as parking lots.
 

R.Ranganathan (Director)     02 September 2010

yes. this will have a far fletching significance since many builders sell flats and common areas and also sell separately these stilt spaces, thus making illegal gains in one and the same area i.e. through common areas and then as stilt spaces. Only the purchasers were loosers. Now the Purchasers will gain something out of this.

1 Like

Vaibhav Bhole (NA)     02 September 2010

As per new Bye law No. 78 (a), "member may hold parking space/stilt if he has purchased the same and he shall have a right to sell the same to transferee or other eligible member of the same society."  Thus the new provision recognises the sale of car parking space by the builder.  This provision is contradictory to this latest judgement. By this provision, the purpose of this latest judgement cannot be achieved. In order to give effect to this judgement, I believe that the Bye law No. 78 (a) needs to be deleted/ repealed immediately.

krishnarajpr (n/a)     02 September 2010

Dear Seniors,

whether this SC judgement is useful in Tamil Nadu as there is no specific statute as you have in Mumbai on flat promoters.

 

Regards,

Krishnaraj P R


(Guest)

Very Good info,Builders are selling flats on the basis of super area which does not make anything clear to the purchaser,that also should be banned ,they should be allowed to sell the flats only on the basis of carpet area only.

1 Like

R.Ranganathan (Director)     03 September 2010

Mr. Vaibhav Bhole, Now that the SC has passed a Judgement, the society's bye-laws will become infructuous and cannot be acted upon. No need of deletion and/or repealing the same. It is nullified and the society cannot act as per the rules. If the society acts as per the rule then it will be against the Judgement and can be challenged in the court of law.

N. K. Bansal (Advocate)     03 September 2010

Please let us know the case law in which this judgement is given, if available with anyone. 

Bharatkumar (ADVOCATE )     03 September 2010

Thanks for information,  please give me date of judgement.

R.Ranganathan (Director)     03 September 2010

copied from indiakannon.org

Judgement dated 31.08.2010 in the matter of Nahalchand Laloochand P. Ltd., and others

 

wallya (avp)     14 September 2010

Dear All,

The building owner at the time of selling the flats had alloted parking premises against a certain fee. The spciety was handed over to the members about an year ago. The new management committee is just not willing to revoke that allotment and continues to support the members that have been alloted the space. This is bringing huge dissat to almost 40% of the owners who do have car parking.

 

I would like to fight this out anmd help my fellow members get justice since they have paid for this area while buying the flat. I am forunate to have one stilt parking but I would like to fight for others.

 

Please let me know if anyone of  you would be interested in helping me out here including fighting this in the court if required?? Will be really glad.

yakdrs (senior management)     02 December 2010

I have bought a flat in an underconstruction property about 3 years back, the builder/developer has allocated a stilt parking space and has simultaneously charged a price for the same which has been paid two years back.

Now as per the SC verdict for the car parking space, what is my status about the money paid to the builder ? Do I have a right to ask for refund?...

Please advise/reply.

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     03 December 2010

‘Refund parking space charge’
(reproduced from Hindustan Times, Mumbai Edition dated 03-12-2010, page 05)

 

LEGALLY BINDING Builders must provide parking without additional charge, says consumer commission in Powai case.

 

The state consumer watch dog has ruled that builders must provide parking space without charging additional amount from flat buyers.    The Maharashtra State Consumer Disputes Redressal Commission, whose order is legally binding, recently directed a developer to refund the  money he had charged for parking spaces and allowed compensation of Rs 10,000 for failing to execute the deed of an apartment in favour of its buyers.

“As per civic rules, builders must provide free parking space to flat buyers,” said the bench comprising the commission’s president, Justice (Retd) SB Mhase ,and members PNKashalkar and SP Lale.

 

The builder in this case,S Seetharama Iyer, was not allowed to collect Rs 10,000 as parking charges from flat buyers and was asked to refund the amount.  The developer was also ordered to pay Rs5,000 to the complainants,  Dr Siddhartha Sengupta and Sunita Nair,residents of Ganesh Bhuvan at Powai.   Iyer was given a month to pay the amounts and execute the deed.  They said that Iyer had agreed to provide three parking spaces to them, one each for the flats they purchased.  However, he later sold one of the parking spaces to somebody else.  Sengupta told Hindustan Times: “I knew I was not required to pay for the parking space. The builder made my life hell.” 
 

Vijay (Manager)     03 December 2010

I would like to know about, if i have already purchase the stilt parking, then wht shoud i do? I have got the possession of flat and parking.


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