Legal Opinion on Parking

Name of Society: Oasis CHS Co-op Hsg. Society Ltd.

(Regd. No. MUM/HSG/TC/9244/2005-06)

Name of Developer: M/s. Sheth Developers Pvt.Ltd.

Case History

  • As per the approved Stilt and Typical Floor Plan CE/4694/BPES/AT of Bldg No. 5 pertaining to Oasis CHSand approved by SE(BP)ES T/W of BMC on 31.12.2003. The approved plan has a Parking Area Statement reproduced as under:

Carpet Area / No. of Flats / Reqd. Parking / Prop. Parking
35.00 to 45.00 sqm / 16 nos. / 04 nos. / -
45.00 to 70.00 sqm / 32 nos. / 16 nos. / -
AREA ABOVE 70sqm / 16 nos. / 16 nos. / -
FOR VISITORS 10% / - / 3.6 nos.
(say 4 no.) / -
TOTAL / 64 nos. / 40 nos. / 40 nos.
  • At the time of society formation the developer did not handed over the number of parking as per the approved plan, though this was highlighted by the members to the chief promoter This has been recorded in minutes of the 1st AGM of society formation.
  • Knowing well the above issue is yet not settled , post the 1st AGM, members agreed to form a the society and keep having a dialogue with the developer to get this issue resolved amicably.
  • The society through the MC has engaged in both verbal and written communication with the developer till date. However the developer has time and again reiterated that the same will be done as and when the conveyance is done, which yet not happened..
  • The society is 7 years old as on date
  • Before society formation the Developer allotted parking stilts i.e. 19 nos of stilts not following the above ratio as per the approved plan and handed over an allotment letter to all allot tees for a sum of Rs. 5000/- which is mentioned in the letter and paid to the developer and not accounted in the society accounts. While the members who have the allotment mention that that have paid larger sum.
  • The society comprises of 16 flats of - 3 BHK flats as per theplan. However the builder/developer executed a 2 sale agreement deed at the time of purchase therebycreating doubt amongst other members on the actual status of the said flat size.
  • Post handover of papers to the society. The approved plan of BMC clearly showed the 3 BHK as a single flat and the electric meter provided was also ONE. Additionally, the Membership fee handover to the society by the Chief Promoter was for 64 flats. Thus the allotment done by the developer rightfully denied the rights of 3 members having 3 BHK flats.
  • Post the 1st AGM the MC based on the powers vested to it earmarked certain open parking and certain un-allotted stilts which were excluded by BMC at the time of assessment as numbered parking (on account of the size and /or approach to an utility i.e. Fire Duct / Electricity Meter Room/ etc/.) proposed in the AGM to allot the same for parking & to resolve the issue as much as possible and also ensuring that to abide by the original BMC sanction(DCR ) and adopted Model Society Byelaw No.78 and the resolution passed wasunanimously.
  • As mandated the allotment was done as one time allotment as mandated in the AGM with the allotment letter clearly specifying that the member shall have no right to sell or transfer the said allotted Parking Space/Stilts to anybody. The Resolution passed in the AGM and the process followed was done keeping in mind the co-operative spirit and though the sanction plan clearly indicated the rights of the 3 BHK flat owner, they too followed the process and paid the deposit.
  • Needless to mention the process followed by the MC was as per the Resolutionand laid down process. The Managing Committed has not only followed the bye laws of the Society but also ensured to follow The Development Control Regulation for Greater Mumbai, 1991 knowing well that the Jurisdiction of these Regulations apply to all building activity and development work in areas under the entire jurisdiction of the Municipal Corporation of Greater Bombay (based on which the Building plan was sanctionedby BMC) and that if there is a conflict between the requirements of these regulation and those of any other rules or byelaws, these regulation shall prevail. Thereby ensuring that whatever anomalies the builder had done pre society formation was overcome.
  • Members who got allotment in the open space paid the Deposit and parking Charges while those who got the stilts, additionally shared the tax component.
  • The developer is yet to handover 21 parking as per the plan post considering the 19 stilts parking

Issue :

  • The Conveyance of the society is yet to happen.
  • The Developer is yet to handover the said parking as per the plan
  • Certain Members are now demanding rotational allotment of parking and have asked for revoking the earlier resolution that was passed only with respect to the allotment done by the MC. While there are a set of members who are of the view that incase the resolution is going to be reviewed then the entire allotment needs to be revoked and allotments done as per the sanction plan of the building.

Opinion:

  • Based on the various cases laws and judgments addressing the issue what is the most practical approach.
  • What is the stand that the MC take in light of the above