Sale of car parking slots is a very controversial matter especially in a city like Mumbai. It is quite shocking to note that the definition of a flat in the model bye-laws includes a
Godown / Garage but does not include an open car parking space. It is high time that Government amends these bye-laws and introduces the word ‘Open Parking’ in this definition. This is important because parking is now becoming the most important criteria for a buyer and the cost is now beyond reach of the middle-class and soon it would become a dream for the middleclass .
What are the various judgements on Parking?
In the landmark judgment delivered by the Maharashtra State Co-operative Appellate Court Mumbai in the case of M/s Prakash Auto v/s Aranja Arcade Premises Co-operative Society Ltd. & ors. has prevented the Builders from selling or otherwise disposing of the disputed car parking spaces. The implications of the above said judgment is that even if the builder sells car parking space in the basement, a co-operative society is entitled to allot the car parking space in the basement to their members on the basis of the resolution passed by the society at its General Body Meeting.
Now no builder can sell parking space under stilts separately, the Bombay High Court has ruled in re-Nahalchand Laloochand Pvt. Ltd., that a stilt parking space is a common parking space available to members of the housing society and not an additional premises or space available for the builder or developer to sale either to any member of the society or any outsider and further clarified that even under DC rules the developers had to provide car parking spaces, wherever carpet area of the flat is more than 35 sq meter and estoppal do not work against statutory provisions. Apart from this fact the court has also considered the definition of flat under Maharashtra Ownership of Flats Act, which includes open and parking spaces in area if the flat wherever area is counted as superbuilt up.
In a recent case of an argument of a real estate development company that they are entitled to sell garages or stilt parking areas as separate flats to owners who intend to use it as parking facilities , a bench of Justices A K Patnaik and R M Lodha of Supreme Court, ruled that builders or promoters cannot sell parking areas as independent units or flats as these areas are to be extended as “common areas and facilities” for the owners.
The court passed the judgment while dismissing the appeal of the promoter, Nahalchand Laloochand Pvt Ltd, who challenged the Bombay high court’s ruling that under the MOFA (Maharashtra Ownership Flats Act) a builder cannot sell parking slots in the stilt area as independent flats or garages. The apex court accepted the argument of the flat owners of Panchali Co-operative Society in Dahisar (E) that even if they had entered into any prior agreement or contract with the builder that they would not lay any claim on the parking areas, the same would not have any legal sanctity .
The court also disclaimed the appeal of the promoter that by treating these parking spaces as common areas, every flat purchaser in any case will have to bear proportionate cost for the same even if he may not be interested in such parking space at all.
Justice Lodha wrote in the judgment that the promoter has no right to sell any portion of such building which is not a ‘flat’ within the meaning of Section 2(A-1 ) and the entire land and building has to be conveyed to the organization . The only right that remains with the promoter is to sell unsold flats. Thus, it is clear that the promoter has no right to sell stilt parking spaces as these are neither flats nor apartments or attachments to a flat.
It is necessary for a promoter to fully disclose the common areas and facilities . Stilt parking spaces are usually not described as the part of the common areas. The same as such does not appear in the advertisement and agreement with the flat purchaser.