• Parking allotments done by builder

Dear sir. I reside in a building where oc is not yet recieved but still builder has issued us a possession letter.  Now builder is disposing off parking lots to those who are paying money for it. He is not providing any reciept of it but issuing alottment letters. And he says it is as per bye laws guidance (first come first serve basis). The management is with builder. Society is not yet formed. Builder is restricting to use parking spaces whoever have not paid money. He is not ready to give reciept of parking selling nor executing any agreement for it. I have plan copy recieved through RTI. It gives statement of parking as per flat carpet area. Now whoever have bought parking space and having mere allotment letter from builder are claiming parking spaces. I have following questions,
1) Can builder allot parking space on permanent basis? Can members having allotment letter enjoy parking spaces permanently?
2) Can society dissolve parking spaces once formed, alloted by builder and carry out fresh allotments without partiality?
3) How to deal with this situation? 
4) If parking spaces can be dissolved by society then what will happen to people who have paid money to builder and not having reciept of it? 
Please guide.
Asked 1 year ago in Property Law from Mumbai, Maharashtra
Religion: Hindu
1) builder has no powers to sell car parking slots 

2)hence he is not accepting payments by cheque nor giving any receipts   for payment received for car parking slots 

3) on formation of society it can frame parking policy and allot car parking slots by drawing of lots as provided in the bye laws 

4) those who paid money to the builder will be left in the lurch as they cannot seek refund from builder as there is no proof of cash payment made 
Ajay Sethi
Advocate, Mumbai
23237 Answers
1219 Consultations
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1) Can builder allot parking space on permanent basis? Can members having allotment letter enjoy parking spaces permanently?

Selling of parking spaces is illegal as it is outside the "apartment" definition. However the developer are in these malpractices to sell the parking. They issue allotment letter to the person who has paid them the parking charges. Yes once the person has paid / received allotment letter he can enjoy the parking permanently as it is alloted to the specific apartment number.
 
2) Can society dissolve parking spaces once formed, alloted by builder and carry out fresh allotments without partiality?

No, once the parkings are alloted they can not be dissolved as the parking space number will be mentioned on the Registration documents of the apartment. 

3) How to deal with this situation? 

File a consumer complaint , criminal complaint , complaint with CCI for malpractices of the developer
 
4) If parking spaces can be dissolved by society then what will happen to people who have paid money to builder and not having reciept of it? 

Can not be dissolved 
Atulay Nehra
Advocate, Noida
435 Answers
15 Consultations
4.7 on 5.0
1) builder is protecting himself against any future claims of any made by flat purchasers 

2) though he has sold car parking slots and received money In cash he has not given any receipt or executed any agreement to show it was against sale of parking slots 

3) The builder is aware that Supreme court has held that parking slots form part of common areas and cannot be sold by builder 

4) if there are shortage of parking slots society can set aside allotment made by builder and allot slots by drawing of lots 
Ajay Sethi
Advocate, Mumbai
23237 Answers
1219 Consultations
5.0 on 5.0
Yes, MOFA states that - but if the Allotment no of the parking space is mentioned in the Registry / Agreement then challenging the allotment will be a task , however if the there are not written detail of the allotment provided. You can complain of such practice to the Development authority , alongside you can file a criminal case for selling / alloting parking space illegally. You can also file a complaint for mal practices at the CCI. 
Atulay Nehra
Advocate, Noida
435 Answers
15 Consultations
4.7 on 5.0
1. The possession cannot be delivered till such time that OC has been obtained. 

2. The parking spaces can only be allotted and not sold. Allotment done on first come first serve basis is not illegal. The members having allotment letters are entitled to a parking space on permanent basis.

3. Parking spaces allotted by the builder cannot be dissolved by the society. The society will have to seek a declaration of illegality of the allotment from the court.

4. Before fresh allotments can be done the allotments already done would have to be cancelled by the court.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
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So under such circumstances can society cancel previously alloted parking spaces done by builder and do fresh allotments? 
Yes, once a society is formed, it can make the rules accordingly and can re-allot the parking space to the flat owners as per rules.  The allotment letter issued by the builder is not binding on the society to make byelaws in this regard.  Parking space cannot be sold by the builder, it is a common space belonging to the society and only society candecideaboutits allotment generally it isfirstcum first served basis or on draw of lots basis to its members alone and not for the tenants. 


 I have heard that MOFA act says that builder can not handle or dispose off any open space other than flats as open space belongs to society.
You have rightly heard of it.   The relevant portion of the rule of the referred act is reproduced below for your information which will clearly convince you about the question you have posted here:

4 Notwithstanding anything contained in any other law, a promoter who intends to construct or constructs a block or building of flats, all or some of which are to be taken or are taken on ownership basis, shall, before, he accepts any sum of money as advance payment or deposit, which shall not be more than 20 per cent. of the sale  price enter into a written agreement for sale with eaC:1of such personswho are to take or have taken such flats,  and the agreement shall be registered XVI the Registration Act, 1908(hereinafter in this section referred to as "  the of . Registration Act ")] "'rand such agreement shall be in the prescribed form.]. 1908,
. . .'
. 5[(1A) The agre~eent to be prescrIbed and sub-sectIOn (1) shall contain inter alia the particulars as specified  in cluase (a) ; and to such agreement there shall be attached the copies of the documents specified in clause:  (b).(a) particulars.- .  (i) iftl1e building is to be constructed, the liability of the promoter to construct it according to  the plans and specifications approved by the local authority where.such approval is required under any law for  the time being in force
(Ii) the date by which the possession of the fiat is to be handed ovcito t~c
purchaser; .
(ui) the extent of the carpet area of the fiat including the area of the balconks
. which should be shown separately; '. .
(iv) the price of the flat including the proportionate price of the common
areas and facilities which should be shown separately, to be paid by the pur"
~haser of flat; and the intervals at which instalments thereof may be paid;
(v) the precise nature of the organisation to be cons.tituted of the persons who have taken or are to take the flats; ..,
(vi) the nature, extent and description of limited common areas and facilities; .. . .
(vii) the nature, extent and description of limited common areas and facilities,
W~; . . .
(viii) percentage of undivided interest in the common areas and facilities
appertainingto the flat agreedto be sold; . .. ,
, (ix) stat~ment of the use of which tlle flat is intend~d and restriction of its
use, if any;
(x) percentage of undivided interests in the limited common areas and
facilities, if any, appertaining to the flat agreed to be sold ;
(b) copies of documents,~
(i) the certificate by an Attornery-at-Iaw ~r Advocate under clause (a) of
sub-section (2) of section 3 ; .
(ii) Property Card or extract of Village Forms VI ()r VII and XJJ or any
other relevant revenue record showing the nature of the title of the promoter.
to the land on which the fiats are constructed or are to be constructed;
(iii) the plans and specifications of the flat as approved by tbeconccrned
local authority. ]. .
1[(2) Any agree~ent for sale entered into under sub-section(J) shall be prese~ted
by tbepromoter or. by any other person competent .to do so. under section 32 of
the Registration Act, at the proper registration office for registration, within the
time allowed under sections 23 to 26 (both inclusive)of the said Act and execution
thereof shall be admitted before the registring officer by the person executing the
document or his rept:esentative, assign or agent as laid down in sections 34 and
35 of the said Act also within, the time aforesaid: .
Provided that.wbere any agreement for sale is entered into, or is purported,
to be entered into, under sub-section(I), at any time before the commencementof
,the Maharashtra. Ownership Flats (Regulation of the promotiori of con~tructioriJ
Mah.sale, management and"transfer) ,(Amenc;1mentand Validating' Provisions) Act.'
Vof 1983,and such agreement was not presented for registr~tiori<?rwas presented for'
1984.registration but its executionwas not admitted beforethe registration officerby the . person concerned, before the commencementof the said Act, t})eil.such document
may be presented at the proper registrationofficefor r~gistration,and its execution
may be admitted, by any of the .persons concerned referred to' abci,vein this sub. "section, on or before the 31stDecember 1984,and theregisteriilg officershall accept
"sUchdocument for registration, and register it under the Registration Act as if it . were presented, and its executionwas admitted, within the time laid down in the
. RegistrationAct:.. ",' ',':


The builder cannot utilise the floor space index as per his desire. 
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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