• Parking policy

Sir 
My registered society based in Mumbai refuses to allot me parking saying that all parking spaces are full . 
1. Many members are holding more than 2 parking spaces .
2. On saying that one member has to have one parking they say that they HAVE PURCHASED parking from builder and hence the parking belongs to them . 
3. On researching internet FAQ's on parking policy , they refuse to accept Nihalchand SUPREME court judgement saying that facts of case are different and instead quote Sun Engineering case on Jurisprudence 
4. They say since the agreement with builder for flat is not void so therefore parking along with it purchased in agreement is not void . 

Please could you kindly say me a remedy to it . And what are the chances of it standing in court of law that can i be given parking space
Asked 1 year ago in Property Law from Mumbai, Maharashtra
Religion: Hindu
1) have   you made application in writing for allotment of car parking space? 

2) how many car parking slots are there in society and how many members ? 

3) how was allottment of parking slots done by society? 

4) when was car parking space purchased by members from builders? 

5) as per bye laws if there are more members than car parking slots allotment has to be done by drawing of lots on annual basis 

6) you can move consumer forum against the society for failure to follow the bye laws and for allotment of car parking slots 

7) in the alternative move cooperative court  against the society
Ajay Sethi
Advocate, Mumbai
23107 Answers
1213 Consultations
5.0 on 5.0
1) builder has no powers to sell car parking slots .

2) it forms part of the common area for benefit of all members . 

3) second parking slot can be allotted by society only if there is surplus of parking slots . 

4) it is not necessary for you to buy slot from members at unreasonable prices

5) if society is refusing to allot you car parking sot you have no option but to go to court   to direct society to allot car parking slot by drawing of lots as provided in the bye laws 

Ajay Sethi
Advocate, Mumbai
23107 Answers
1213 Consultations
5.0 on 5.0
1. It is true that facts of every case are different, but it has been settled now that parking space cannot be sold.

2. The remedy available to you is to move the civil court against the society to challenge the sale of parking slots and to seek specific court directions to it to give you parking space.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
1. The Maharashtra co operative society rules are being misinterpreted by them. First come first serve basis does not suffer from legal vice but the allotment of more than one parking space to a member is illegal.

2. If an act is silent on an issue then it has to be assigned an interpretation which advances the course of justice.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
Parking spaces have often been a matter of prime concern for several apartment complexes. Often there are some disputes like allocation of spaces or the fee structures. In recent times, developers and builders charge anywhere in between Rs. 2 lakhs to Rs. 15 lakhs for dedicated parking spots, but you must know that a builder is not authorized to sell parking spaces as individual real estate units.
According to the “Apartment Act” in most states, car parking is a part of the society’s common areas. Since the purchase of parking slots has been deemed illegal, the transaction to purchase would become null and void. Once the housing society is registered, it becomes the owner of all the common spaces of the apartment complex including the parking spots.
A builder has to provide a certain number of parking spaces basis the number of units of houses. As per a mandate from the High Court of Mumbai, the builder is not allowed to sell parking spaces outside the FSI consumed. This has been confirmed by the Supreme Court of India too.
Parking spaces are common spaces which belong to the housing society. Allotment of the same is at their discretion and the same can be done by means of First Come, First Serve or however the managing committee deems fit.
The apartment complex “Solely” owns the common spaces (Stilt or Open)
The members DO NOT own these spaces
Allotment of Parking space is a “Administrative function” and the Managing Committee as well as General Body are empowered to allot the parking space to its own registered members.
Parking area (Stilt, Open or whatever) is not covered under Floor Space Index (FSI) and hence is not saleable.
The bye-law provision pertaining to Parking “RIGHTS” is a gross violation of the various BMC & Fire act rules and has got no force of law, in Court of Law.
Parking space number is decided basis the Lay-Out Plan (LOP) as approved by the civic body (BMC). It is also under the Development Control Rules and under the Fire Act rules. The managing committee has to adhere to these and basis that allot parking spaces.
Parking spaces are common areas and hence deposit cannot be collected even if it is passed in the General Body Meeting. MCS Rule 39 restricts these rights of society to raise funds.

The above are the rules still in force on the subject query.  Besides this, if the society is not initiating the action to facilitate the aggrieved members of the society, it can be taken up legally by first issuing notice, then approach appropriate court of law seeking relief and remedy. 
T Kalaiselvan
Advocate, Vellore
13915 Answers
127 Consultations
5.0 on 5.0
1) the slots were admittedly sold by builder on 2005 wherein it was illegal for builder to sell parking slots 

2) the provisions of Maharashtra act 2012 would only have prospective effect 

3) it would not legalise parking spots sold by builder in 2005 

4) also there are detailed guidelines for allotment of parking slots in bye laws adopted by the society 

5) obtain copy of bye las adopted by society and confront the society with its provisions 

6) you have good case on merits 
Ajay Sethi
Advocate, Mumbai
23107 Answers
1213 Consultations
5.0 on 5.0
1)  MAHARASHTRA HOUSING ACT 2012 where in they say that it has replaced MOFA act and thereby parking do not form part of common areas 
Yes under the above act, the parking space do not fall under common areas, this act was enacted n th year 2014 by the State government of Maharashtra applicable only in Maharashtra.

Section 9(2)(a) (v & vi) of the referred act states that 
(v) the total price of the flat including the proportionate price of the limited common areas and facilities and parking spaces which should be shown separately, to be paid by the purchaser of flat; and the intervals at which  instalments thereof may be paid;
(vi) allotment of fixed parking space to the flat purchaser :
Provided that, no parking spaces shall be allotted in minimum open space;


2) Along with agreements parking can be purchased. 
They there by give me a  copy of Maharashtra housing act and also news article
As per the provisions given above, it is true hat the parking space can be purchased by the flat purchaser.



3) Housing Act at odds with SC order on parking spaces | The Indian Express - http://indianexpress.com/article/cities/mumbai/housing-act-at-odds-with-sc-order-on-parking-spaces/
The MOFA didn’t lay down anything in particular on the issue of parking. Developers are anyway known to take money in black for parking spaces. At least with the new law making it mandatory to specify the amount of money taken for parking spaces in the agreement, it will be more transparent.” 


4) they also say in a city like mumbai every builder charges lakhs of Rs for parking , why nothing has happened and also they ready to go till high court as law in their favour
This is the place where they misinterpret  law.  Law has regulate this issue now which was not the situation earlier, let them go to court.


5) now if i go to court as advised , what are the chances of me winning .  Do i stand a chance against   them in court of law .  And how long would it take . Now i just want a single parking at reasonable rates .
Though you stand less chance to win, you can still give a fight so that the pressure may bring them down to negotiations. 
T Kalaiselvan
Advocate, Vellore
13915 Answers
127 Consultations
5.0 on 5.0

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