Case Law Details
The Supreme Court has upheld that order of the Bombay High Court and held that parking spaces cannot be sold by the builder. They are a part of the common areas and the cost of that land has to be charged to all the flat-owners in proportion to their carpet area. (Nahalchand Laloochand P.Ltd. vs Panchali Co-operative Housing Society Ltd. – JT 2010 (9) SC 414: 2010 AIR SCW 5549).
In para. 34 of the aforesaid judgement the Hon’ble Supreme Court held that:
“34. We have now come to the last question namely– what are the rights of a promoter vis-a-vis society (of flat purchasers) in respect of stilt parking space/s. It was argued that the right of the promoter to dispose of the stilt parking space is a matter falling within the domain of the promoter’s contractual, legal and fundamental right and such right is not affected. This argument is founded on the premise, firstly, that stilt parking space is a `flat’ by itself within the meaning of Section 2(a-1) and in the alternative that it is not part of `common areas’. But we have already held that `stilt parking space’ is not covered by the term `garage’ much less a `flat’ and that it is part of `common areas’. As a necessary corollary to the answers given by us to question nos. (i) to (iii), it must be held that stilt parking space/s being part of `common areas’ of the building developed by the promoter, the only right that the promoter has, is to charge the cost thereof in proportion to the carpet area of the flat from each flat purchaser. Such stilt parking space being neither `flat’ under Section 2(a-1) nor `garage’ within the meaning of that provision is not sellable at all.”
(The complete order is as follows}
IN THE SUPREME COURT OF INDIA
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Promoter sold out some car parking to the owners after demolished the commercial spaces shown in the car parking areas, but as it was not disclosed to the owners at the time of registration,now they are facing problem as it has not shown as a car parking spaces I the CC plan. what they can do? Can Promoter sell any such commercial spaces in the housing complex
I have purchased 2bhk flat of 78+ sq. mtrs. built-up area with 1 balcony from the builder alongwith allotment of 1 covered parking on first come first served basis in 2006. Out of 48 flats in our Society 12 flats of 70+ sq.mtrs. built up area and remaining 36 1bhk flats less than 55 sq. mtrs area. Society registered in 2008. Now I want to sell my flat alongwith allotted parking area. Society is not permitting to transfer my allotted parking slot to transferee. Shall I approach court to settle the dispute?
In our society there are total 21 flats and parking slots are 6. 3 members claim that they have parking slots alloted (purchased) by builder and belonging to them so that they can transfer / sale the parking slots. They are paying half of the parking charges since one of them is managing committee member and looking after accounts and preparing maintenance bill. There is no such AGM decision of paying half parking charges. They are also forcing to other members who did not purchase the parking slot to pay certain amount to the Society as Security Deposit which they will not pay. Can they take such decision on the part of majority and which is against judgment of Hon’ble Supreme Court? Can we file the caveat against the committee members? It is kind request to guide on this matter.
At MegaTrade Commercial Complex in Ahmedabad developed by Arvind Infrastructures Ltd. and have sold Basement Car Parking to few Unit Purchasers in this 4 Storied Building and the Company is not allowing other Office Owners to park their Car/s in the basement parking space. Is it not against SC judgement ? What is the remedy available to unit owners ?
Hi, After reading this it is clear that promoter can’t sell parking space separately but I’m also facing the same problem. The promoter is selling the parking space. I have already paid for it but want to challenge the illegitimate sell. How can I challenge? Is there any loophole through which promoters are charging for parking space separately?
Contact No.: 9555713490
west bengal
Can a builder sale parking area of a commercial building which is a part of a development project includes adjucent residential appartment buildings?
Sir, request your guidance. Can a builder sell stilt parking of “H” wing to “I” wing member. Here the society of “H” wing and “I” wing both society will be formed separately and independent societies.
Builder has constructed F,G,H (representing proposed one society) and I wings one single separate society. All the building are having OC for F G H OC date is 2012 and I wing oc Date is 2015.
Sir, Can builder do this.
Dear Sir,
It is very clear according to the Hon’ble Supreme Court Decision that builder can not sale the parking space in the co-operative society. In our society there are total 180 flats and parking slots are near about 120. Persons who occupied these parking slots claim that they have parking slots alloted by builder. Some of the members of society bring the Hon’ble Supreme Court decision to their notice till they want to a decision in AGM that whatever allotment from builder is their life time allotment. Can they take such decision on the part of majority and which is against judgment of Hon’ble Supreme Court? Can we file the caveat against the committee members? It is kind request to guide on this matter.
Kindly let me know , in M.P. , is there any act / rule that builder can not sell Car Parking in apartment.
If yes , act / rule pertains to which deptt and act detail.
Flat purchased in 2007 , legal action can be initiated now.
Sir,
Ours is the same case as above but the developer has approached us to provide him with the open space in front of our building as the land to be developed had no road leading to it.As at that time we were parking ourn cars in the open space mentioned above he agreed to provide us with stilt parking spaces in the newly constructed buildings.this was accordingly done in good faith and the building was constructed.We have given an NOC but till date not registered the land in the builders name.
Now after completion of the building the promoter in keeping with his promise and with the power of authority granted by the original owners of the land have registered stilt car parking space in our name but the flat owners are not letting us enter the complex.
In view of the above I would like to know what is the position of our garages as this was not outright sale but in lieu of land given to builder.
Hi,
Can you advise me if the Supreme Court judgement also applies to the sale of Parking, by a Condominium to its members
ie. is a Condominium allowed to sell or lease open Parking space in its premises, to any of its members. Does the MAOA allow for this ?
Regards
Deepak
I have purchased a flat in new construction where it was verbally promised that they will provide us with the parking at the time of possession, but now at the time of possession the builder has backed out and says that the parking is now not available.
But as per supreme court orders there has to be car parking for every flat in the building.
So please guide us on this issue.
Ref. “Mere execution of development agreement not amounts to transfer” (Del)
Following added Comment posted on above HC decision, it be noted, is related and of relevance herein:
HC says: “The said question therefore cannot be said to be a question of law, leave aside, the substantial question of law. The appeals are therefore found to be without merit and as such, stand dismissed.”
No doubt, as held in decided court cases (see the commentary in Palkhivala’s Text Book, on the topic of “Inference of Law, Fact, or Mixed (question of) Law and Fact”, u/s 256 of IT Act), – it is not always easy to distinguish between questions of fact and questions of law, or mixed questions.
Nonetheless, courts cannot afford to, rather ought not, bypass, unwittingly or otherwise, but desirably need to be focussed on the other valid principles of guidance laid down in those old HL and PC decisions (-as per the footnotes there under, no recent case has been cited; – does that mean, Indian courts have had no occasion at all in the past decades to consider them !).
One such point for useful guidance, as narrated therein, is that, – “the court must guard against the attempt which is often made to secure for a finding on a mixed question of law, and fact the unavailability which belongs only to a finding on a question of pure fact” (- though this narration is not happily worded, the import seems to be quite clear; however, for clarity, one may read the HL’s decisions cited).
IN the reported SC case in re. Nahalchand (the dispute has been on car parking in a building complex of ‘Flats’);That is a case in which anyone or more of the above referred principles could possibly have been brought up for due consideration by court(s), but not seen to have been done so.
Hi, We have just received a letter of demand from our builder in Noida asking for making a payment of Rs 2 lacs for car parking, kindly let us know whether the same can be challenged.
Garage in a society is unique unit or included with a unit of flat purchased
Sir, I have read complete article with an intention to find answers to some questions which relate to a case in relation to my property (in dispute now).
However there are still some of those questions which i would like you to answer and thus clarify:
1) When a promoter has not stated in Sale deed of flats that common space comprises VAcant Covered space in the ground floor and added to it, in the map attached to the deed it has been clearly Marked that the Flat owners had bought Stilt CAr parking space (open space) [Different from closed space].
Would it imply that the flat owners have a legal title over the cover space as well?
2) Is the promoter entitled to sell the covered space located in ground floor to any outsider?
Sir please answer to me and tell me how can i discuss entire case of mine with you for a better understanding.
My Contact no is: 9051483649
I am from KOlkata.