Harkiran Motto (xyz) 09 June 2011

Bombay High Court judgement of Nahalchand Laloochand Pvt. Lt

In its judgement Bombay High Court in the case of Nahalchand Laloochand Pvt. Ltd, ruled that a builder cannot sell parking slots in the stilt area as indepedent flats or garage whereas Bye-law 79 of the Co-operative Housing Society says that [a] Member may hold Parking space/stilts if hehas purchased the same...........[b]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.......I wish your esteemed view and clarification regarding the conflinct between the above mentioned judgement and the Bye-laws and which should prevail.

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Praveen Singh (Lawyer) 11 June 2011

The Judgement has been upheld by the Hon'ble Supreme Court also. The judgement is based upon interpretation of Maharashtra Ownership of Flats Act and clearly states that Parking can not be sold. It makes an exception that Parking can be sold if it is a separate covered parking for a vehicle which in most of the flats is not constructed in the manner as contemplated by the Court.

In your case the Supreme Court judgement would prevail over bye-laws of the Society as per Article 141 of the Constitution, however, you merely can not claim by citing the judgement.

It is advisable that relying on the judgement you file a declaratory Suit praying the parking to be declared as a common amenity.

In the aftermath the members who have purchased may file a suit for compensation before the Court or complaint before the Consumer forum/Commission against the builder for fraudulently charging an amount for amenity which can not be sold.