Intepretation of sc judgement about car parking

Vague query.What do you mean by stating inter alia that "Is it going to be void-ab-initio?"

Show the documents to your lawyer. Supreme Court judgment is binding and no further interpretatio can be done.

Dear sir,

I will elaborate more from my understanding.

If the allotment s are made by any builder prior to the judgement date (i.e. 31-Aug-2010), now as on today can we conclude that all those allotments made are of void in nature. i.e. those allotments are invalid?

OR this judgement is applicable from 31-Aug-2010. only?

Seenu

 the rule of retrospectivity is the norm. This means that when a law is declared invalid, then it is deemed to be invalid from the date law had come into existence or the date on which it was enacted. Thus, the rule of retrospective operation of a decision or pronouncement of a court, which is also one of the indispensable features of a precedent, confirms to the declaratory character of a precedent. This, in essence, is what is meant by Balckstonian principle wherein he says that judges do not make law, but only declare the law. Thus, we see that the decalraratory theory supports retroactive operation of a precedent.

Dear Ramachari sir,

Thanks for understanding my query and providing simple and good technical explanation on this.

In summary I understand that this law is applicable from 31-Aug-2010 and nothing affects to allotments made prior to this date.

Thanks again!

Seenu

The Supreme Court judgment has been discussed under several posts in this Forum and I have given my humble opinion there also. The learned advocates here have spoken about generalities, not necessarily specific to this case.

A court judgment cannot be interpreted either from the title given in newspapers or even from the title given above the judgment. No judgment can be universal. It can be applied only to similar cases and the similarity itself will have to established. It will also depend on the laws of the State. For instance the Supreme Court judgment was with respect to a case in Maharashtra. In Mumbai there are what are called Development Control Rules to be complied with. If Karnataka does not have such Rules a decision in a Karnataka case can be different.

The case which went on appeal by a builder before the Supreme Court was like this.

A builder constructed a building and sold individual flats to individuals as is usually done. The building had stilted as well as open areas. In each deed of sale he had introduced a declaration by the purchaser  that the car parking slots are not included in the sale and that the builder could sell it to anyone at his discretion.

In due course all flats were sold and a society also was formed and registered. After that the builder tried to sell individual parking slots to which the Society objected. The Society said that all common areas under the stilt and in the open areas belonged to the Society and that it was the prerogative of the Society to allot them to individual members as per the Model Bye-laws in Maharashtra.

For me it is obvious that the manner in which the builder proceeded was wrong. When the builder lost his case in Bombay High Court and went on appeal to the Supreme Court, many other Societies with similar cases were allowed to join as co-respondents by the Supreme Court. However the Supreme Court judgment does not narrate the other cases and hence the public cannot know what exactly were the other cases.

If a builder constructs a building clearly marks in the plans the flats as well as the parking slots, has additional parking slots after  satisfying  the requirement as per the DCR and gets approval of competent authority I see no reason why he cannot sell the parking slots along with the flats. One purchases accommodation because one wants a residence from which one cannot be evicted. If one owns a car and if one wants a parking slot for his car from which he cannot be evicted he must able to go in search of a Society where he can buy the parking slot also.

There are many Tuglakian laws in this country.  An example is the Model Bye-laws in Maharashtra. Under the bye-laws Societies will allot parking slots to its members on a rental basis. If the number of cars exceed the number of available parking slots, members to whom parking slots have to be allotted will be decided by taking lots and the allotment will be for one year at a time. In Mumbai many buildings are located in such areas where there will be no parking space outside the compound of the building. Now suppose in my Society when I joined if all parking slots were occupied I will have to wait at least for one year to try my luck to purchase a car. If I am lucky I will get a slot in next year's lottery. But if I am not lucky after another one year of parking I will have to sell my car.

Lastly Bye-law No. 78(b) of the Model Bye-laws 2013 of Maharashta reads as follows:

The allotment of the Parking Space shall be made by the Committee on the basis of "First come First Served" for unsold and available parking spaces.

Thus by implication the bye-laws recognize that parking slots could be sold.

The Supreme Court judgment is specific and does not place a blanket ban on sale or owning of parking slots.

Dr. Ramani's explanation to the query is meaningful, appreciable and acceptable.  Hope this will clear the querist's doubts in this regard.  Dr. Ramani is right that the supreme court ruling in this regard is not universal and may not be applicable to all and sundry.  It is a judgment on that case, any similar case can adopt the ruling in its favor for seeking relief on that line but not everyone who has a different issue in this regard.  Moreover, the querist is seeking opinion to a case which is prior to the said judgment. Thus before taking a decision on the basis of the impugned judgment application of mind will be appreciated.

I have posted my views on this SC judgment under several posts here. But this is the first time that a learned advocate agrees with my views.

The Supreme Court judgment was on an appeal from Maharashtra. The judgment lists several Acts and Rules. All are Maharashtra Acts and Rules. The judgment quotes several Sections and Rules from the list,  gives their interpretation and comes to the conclusion. It is the prerogative of the parliament and State  assemblies to make laws. Courts step in only when there is an ambiguity or something unsaid  in the enacted law or when it is unconstitutional. The queerest here is from Karnataka. Maharashtra laws will not apply in his case. One should have a look at Karnataka laws. There are several SC judgments where the court has settled disputes on ownership of parking lots all over the country.

Dear Dr.Ramani sir,

One take away in this discussion - especially in this area of apartments is how they vary from state to state and the interpretation should be only from that context, which is very helpful for many of readers including me.

Thanks all for your time

Seenu

The main problem in the Maharashtra case was the manner in which the builder proceede to sell the parking lots. Mapractices are common in the residential building construction industry. The builder gets approval for his plans from the authorities. Afterwards he wants to make more money. He makes unauthorised alterations. He tries to sell every nook and corner of the poperty. In the case of parking lots it is important that it should be in an orderly manner, they should not cause obstruction to other car owners as well as others. The right of way should not be blocked. The building as a whole should have sufficient open space. If all the factors are taken into consideration and approvals are obtained in the very beginning there will be no problem anywhere in the country.

If there is a Supreme Court decision the lower courts are afraid of touching it even with a barge pole. One will have again to go up to Supreme Court not only for similar cases, but even for not so similar cases.