You have to file suit to set aside car parking slot sold to 3 rd flat owner was car parking space is only 105 sq feet contrary to legal requirement t of 135 sq feet 

- As per Supreme Court, Builder has no right to sell parking to apartment-owners, including stilt parking or garages; .the car parking is a part of the society's common area 

- Further, if the buyer -seller agreement mentions car parking as a separate item, or the buyer can produce other evidence of having purchased it, he can challenge the developer, and can get refund legally. 

- Further, a builder has no right to sell stilt parking or open parking, both of which are part of common amenities. , and only the housing society's general body could make the allotment of space to flat occupiers.

- Since, the said parking was allotted to you vide the development agreement , then you have right over the said area which was allotted to you as per the rule of the KMC. 

- You can send a legal notice to the developer to cancel the said allotment in the name of new owner , and if no positive response then file a case before the Court. 

- Further , you can also lodge a complaint before the KMC against the said builder. 

The said parking is not as per rules. Court will not make other member uncomfortable by giving any such order. You need to up question builder about the same and seek resolution 

Dear Sir, 

You may take the legal remedies as thought by you against the person who bought the parking space and also by the person who sold the same. 

In a G+3 building with 3 flats, the approved KMC completion plan (2015) allows only 2 car parking slots. One was allotted to me, and the second sold to another flat owner. In 2017, the developer illegally sold a third parking space (105 sq ft) to the third flat owner, which is not in the approved plan and violates KMC rules (minimum 135 sq ft with independent access).

This third slot blocks my car’s movement and causes daily inconvenience.

Legal Remedies:

• File a civil suit for injunction to stop the use of the illegal parking.

• Complain to KMC for action against deviation from the building plan.

• Seek court declaration to void the part of the sale deed marking the space as car parking.

Conclusion:
The court can prohibit use of the third slot as parking, as it’s against building rules and not in the sanctioned plan.

The builder cannot sell the open space as a parking space to the third owner especially is it is not covered under the construction plan as parking space.

It becomes a common area which will be owned by all the owners of individual units in that complex. 

The builder's act of selling the parking are by a registered sale deed is illegal and invalid. 

The other owners or the affected person can file a suit against the builder for illegally selling the open space as parking area especially when it is not sanctioned in the approved construction plan by KMC and also as the same is obstructing the ingress and egress of your parking area as well as it becomes a major hurdle and disturbance to you causing mental agony every day. 

You can file a suit to declare the sale deed as null and void and mandatory injunction to remove the parking space allotted to the third purchaser with permanent injunction against the builder from selling the same in future too as well as permanent injunction agaisnt the purchaser to restrain him from obstructing or encroaching the open space for any reason that will affect the other owners of the complex.

Simultaneously you can lodge a complaint with the KMC for this gross violation of the approved construction plan against the builder and to take immediate action to remove the same.

You will have to file a suit to challenge the sale of car parking space to the 3rd flat owner 

The challenge would be premised on Two grounds- parking area sold is lesser than the statutory limit and hence not saleable and secondly it obstructs the ingress and egress of the other car owner and further there is no 3rd car parking space reflecting in the sanctioned building plans

Yes, you have strong legal grounds to challenge the purported “sale” and use of the third parking slot in your Kolkata building, especially since it:

• Violates the approved building plan and KMC rules,
• Obstructs your lawful use of parking, and
• Was registered fraudulently as car parking, despite not qualifying under municipal laws.

The sale deed executed in 2017 in favour of the 3rd flat owner, designating a 105 sq ft space as car parking, has no legal validity as a parking space because:

1. It does not exist in the sanctioned building plan approved by the Kolkata Municipal Corporation (KMC).
2. It does not meet the mandatory minimum size of 135 sq ft under the KMC Building Rules.
3. It violates the ingress and egress norms, as your car must be moved to allow access, which is expressly prohibited under the National Building Code and relevant KMC regulations.

Even if the developer registered a sale deed calling the area “car parking”, a sale deed cannot legalize something that is illegal under municipal law or that violates an approved completion certificate. Municipal law overrides private agreements where public safety, planning, and building regulations are concerned.

You can seek revocation or cancellation of the portion of the sale deed that falsely identifies the area as “car parking” by filing a civil suit under Section 31 or 34 of the Specific Relief Act and/or Section 39 of the Transfer of Property Act for injunction and declaration. You can also file a petition under Article 226 before the Calcutta High Court to:

• Direct KMC to enforce building plan compliance,
• Declare the 3rd parking sale invalid,
• Restrain the 3rd flat owner from parking or using the space as a parking area.

You should also file a complaint to the KMC Building Department, stating that the area registered as car parking violates the sanctioned plan and the minimum norms, and obstructs your parking. KMC can issue a notice under Section 401A of the KMC Act and even impose penalties or revoke the completion certificate if misuse continues.

Additionally, you may approach the Consumer Forum under the Consumer Protection Act if the parking obstruction affects your rightful enjoyment of your purchased property. Obstruction of ingress and egress to your parking space amounts to deficiency in service and unfair trade practice by the developer.

The court can absolutely prohibit the 3rd flat owner from using the space as a car parking, despite the registered sale deed, if it finds that:

• The space violates municipal regulations,
• The sale was done with suppression of building norms,
• Your lawful use of the common or exclusive parking area is being illegally hindered.

In summary, you can pursue multiple remedies:

1. Civil suit for injunction, declaration, and cancellation of illegal portion of the sale deed;
2. Writ petition before Calcutta High Court for directions to KMC and enforcement of building laws;
3. Complaint to KMC Building Department under the KMC Act;
4. Consumer complaint for obstruction and loss of peaceful possession.

In case you need my assistance in the matter I can be contacted on 

Regards,

YUGANSHU SHARMA

SYS LAW OFFICES

Question 1: Legality of the parking space and remedies.  

Dear Client,

• Whether the sale deed of the impugned parking slot that stands in violation of the KMC building rules, be revoked?

Yes. The said parking slot stands in contravention of the Kolkata Municipal Corporation Act, 1980 and the KMC building Rules. Generally, any deviation from the norms prescribes by these statutes would be categorized as unauthorized construction. According to Section 400 of the KMC Act, 1980, no person shall construct or carry on construction or development work otherwise than in conformity with the sanctioned plan. Furthermore, Rule 155(2) of the KMC Building Rules mandate that no part of the building or premises shall be used in a manner inconsistent with the sanctioned plan approved by the corporation. Assuming that only the 2 parking slots have been included in the approved completion plan, the sale of the third parking slot is not recognized by the KMC. In addition to this, this parking slot’s proportions also fails to abide by the statutory requirements. As per the KMC building rules, each parking slot should measure at least 2.5m x 5.4m (135 sq ft.), and each slot must be independently accessible without obstruction.

Irrespective of whether the sale deed for the 3rd parking slot is executed or not, override the municipal law. In Simanapalli Krishnamma Vs. Rongali Suranna and Ors., the Madras High Court has reaffirmed the principle that mere registration cannot operate to validate a transaction, which is not legally enforceable. Thus, the sale deed of the impugned parking slot can be challenged and declared void.

Legal principle: Section 400 of the Kolkata Municipal Corporation Act of 1980. Rule 155(2) of KMC Building Rules.

• Can the court issue an order prohibiting the buyer of the 3rd parking slot from using the slot, despite the registration of the sale deed?

Yes. As discussed in the earlier question, the parking slot fails to meet the statutory standards prescribed. The registration of the sale deed merely confirms the execution of the document, and not the lawfulness of the parking slot. The court can provide you relief by way of issuing injunction. A permanent injunction issued under Section 38 of the Specific Relief Act, 1963, will restrain the new buyer from directly using the property. A mandatory injunction under Section 39 of the Act directly removes or discontinues any unauthorized structure or use in the disputed property.

 I hope this answer helps. In case of future queries, please feel free to contact us. Thank you.