IN RECENT JUDGEMENT OF MUMBAI HIGH COURT ON 25TH APRIL 2008 JUSTICE BH MARLAPALLE HAS RULED THAT BUILDER OR DEVELOPER CANNOT SELL OPEN OR STILT PARKING SPACE, HIGH COURT HAS MADE IT CLEAR THAT AFTER THE OCCUPATION CERTIFICATE IS ISSUED AND SOCIETY IS FORMED AND REGISTERED, THE BUILDING, AS WELL AS STILT PARKING SPACE, OPEN SPACES AND ALL COMMON AMENIETIES BECOME THE PROPERTY OF SOCIETY, NO INDIVIDUAL MEMBER CAN HAVE RIGHT ON THIS COMMON AMENITIES OF SOCIETY, EVEN IF IT IS PURCHASED FROM BUILDER IT IS ILLEGAL. DOWNLOAD JUDGEMENT PDF FILE LINK FROM OFFICIAL MUMBAI HIGH COURT SITE IS AS FOLLOWS :
http://bombayhighcourt.nic.in/data/judgements/2008/CFA1808707.pdf
SUMMARY OF THIS JUDGEMENT WAS ALSO PUBLISHED IN ECONOMIC TIMES ON 1-5-08 ON PAGE NO 3 , FROM THIS SITE I CONGRATULATE CHIEF JUSTICE B.H MARLAPALLE FOR GIVING THIS BOLD JUDGEMENT AGAINST BUILDER LOBBY .
WITH THIS JUDGEMENT COMMON FLAT PURCHASER WILL HAVE FAITH IN JUDICIARY SYSTEM AND WOULD BELIEVE, JUSTICE IS THEIR ALIVE IN OUR COUNTRY, BUT FOR HOW LONG AGAIN LAW MAY BE AMENDED IN FAVOUR OF BUILDER LOBBY BY POLITICIANS. ANOTHER USEFUL LINK OF ECOTIMES
http://economictimes.indiatimes.com/PoliticsNation/Builders_can't_sell_stilt_open_parking_slots_HC/articleshow/3000217.cms
MUMBAI: In a major relief to thousands of flat owners, the Bombay High Court has ruled that builders or developers cannot sell open space in housing societies for parking. Disposing a petition filed by a housing society in Borivali against its developer, the HC has categorically made it clear that once the occupation certificate is issued by the relevant authorities and the society is registered, “the building as well as the stilt parking spaces, open spaces and all common amenities become the property of the society”. The builder/developer ceases to have any title on the same, the court stated.
Justice BH Marlapalle, in a decision delivered on April 25, has even rejected the builder’s claim that flat owners in this case had given an undertaking giving up their claim on the open space. The HC order is significant given the number of similar complaints various consumer bodies and courts receive regularly.
“It has become a practice now where builders charge flat owners for space which otherwise should have come to them as their right,” observed Mumbai Flat-Owners Association president Mahabaleshwar Morje, that has been fighting for flat-owners’ right.
In this case, the said builder at Borivali had locked open space within the stilt with collapsible gates and wanted to sell it to flat-owners in the building for parking. He had kept this open space under lock and key and prevented residents from using it. “This was totally illegal,” the HC stated.
Since the space was covered from three sides, the builder had argued that these are garages and as such he can sell them as separate premises. He had also argued that these ‘garages’ do not form a part of the society’s ‘open space’ which should be made available to the society members.
The HC quoting Development Control Rules dismissed this claim and made it clear that the stilt area, even if it is enclosed, continues to be an open space and since the builder is not paying any separate property tax over it, his claim of it being a garage are not acceptable. “It is not an additional premises / area that he is authorised to sell either to any flat purchaser or to any outsider. It is a part and parcel of the society building and it cannot be a separate premises available for sale,” the court noted.
The HC also rejected the builder’s claim that society members have given an undertaking giving up all rights on any open space while purchasing flats. In a clear term, the Court noted that, “It cannot be presumed that every flat purchaser was in the know of the clauses of the model agreement and its binding nature. The builders tend to encash on this ignorance and seek all sorts of undertakings which are contrary to the provisions DC rules”.
The HC in a definitive term has clarified that “any undertaking furnished by the flat purchasers cannot have a binding effect as it would be contrary to the guarantees available to the flat purchasers under the Act”. The HC rightfully noted that “(such undertakings) is an act which is forced upon by the developer and it is commonly known that if the flat purchaser refuses to furnish such an undertaking, he would be informed that the flat is not available for sale”.
IMPORTANT LINKS:http://www.indiankanoon.org/doc/1359331/
http://advocatekamalkumarpandey.wordpress.com/2008/05/08/builders-cant-sell-stilt-open-parking-slots-hc/
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14 comments:
thankyou very much u had soled my problem,,,,thanx needs some more infomation frm ur side how can i get? plz mail me bye
hope 4 response frm ur side
I am living in flat in an apartment 7 years old in Mumbai suburb.
We have a garden and open space in the society.
The flat owners have formed a co-operative society.
Our building in very adjoining to a highway.
Since some years an another builder whose plot lies behind our building’s plot was pressuring us to give him a passage from within our society’s open space.
Our society plot lies between the highway and the other builders plot.
The other builder’s entry to his plot was from a place which was away from the highway.
So to increase the price of flats by showing that his upcoming building lies next to the highway, he wanted way from within our society for which we refused readily.
So he contacted the builder of our building.
Now after 7 years our builder has quitely sold the garden and much of the open space to the other builder. He has also broken the society walls to make passage for the new builder.
Our builder claims he is doing all this as per the law since the society’s land, the garden and open space in the society is under his name and so he has the rights to sell these to anyone anytime.
We have filed a case in the court.
Any idea how to tackle this issue?
dear sir,
1)can you please tell me what is the implication--or the legal stand--when the society--after its formation has sold open parking lots? is that not against the same law? can we file a case against the society for selling open parking?
2) can the open parking lots --sold by the builder --be rolled back? and the ownership of the peope who havbe bought it from the builder--and the society--cancelled?
hoping for a reply
WE SHOULD UNITE AND FIGHT AGAINST THIS UNJUSTICE DONE BY THE BUILDER TO THE COMMON MAN AND CREATING UNREST IN THE SOCIETY.
ANSWER TO THE TONY QUESTION WHETHER PARKING SOLD BY THE BUILDER CAN BE ROLLED BACK ?
yes definately it can be rolled back by filing a case against the builder in co-operative for violating the rules of MOFA
IF SOCIETY HAS SOLD PARKING LOTS THEN IT IS IN THE FAVOUR OF ALL THE MEMBERS OF SOCIETY BECAUSE SOCIETY WILL GET THE FUND WHICH WILL REMAIN WITH SOCIETY FOR ITS FUTERE EXPENSES BUT PARKING PURCHASED FROM BUILDER WILL NOT BE BENIFITTED BY ANY WAY TO THE SOCIETY BECAUSE ONLY BUILDER WILL PROFIT FROM IT AND EACH AND EVERY MEMBER WILL BE AT LOSS BECAUSE BUILDER IS SELLING COMMON EMINITIES OF ALL THE MEMBERS
SOCIETY SELLING THE PARKING IS ILLEGAL BUT IF SOCIETY WILL NOT SELL BUILDER WILL SELL THE PARKING SO TO CLEAR THE CONFUSION ALL THE MEMBERS SHOULD STAND AGAINST THE BUILDER AND SHOULD NOT PURCHASE PARKING FROM THE BUILDER
This blog is really help me a lot. thank for posting this usefull information.
Here are some more tips on how to choose your car parking space in India.
http://www.indianrealestatefordummies.com/2011/06/open-and-covered-car-parking-spaces-in.html
I am so glad to view this informative blog. Thanks for the sharing....
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Hi
As i m residing in a new society from 2009
Which consist 15 members and there were only 8 parking lots and any car more than 8 cant be accomodate in comoiund. All 8 lits were alloted from time of formation of society.
In past some members given application for parking lots for cars but were rejected due to non availabikity of space.
Now from last one month one of the member who is not
Having parking lot bought a car and parked in the compound which causing inconvenience by blocking other cars way and some cars cannot be moved without moving other cars which is anuisance.
Any talking to that member gone to vain and he is bother to care society committee rules.and threaten to go to pokice.
Now whats the option, rules to society to deal this problem.
Vasant. Andheri
having parking lot and
Dear sir i live in a flat in ghaziabad. I didnt opt parking when i booked the flat. Because builder was charging very high price and now he is asking tripple of that amount. as i have possession of the flat but have no parking. So i want to know that i can calim for a parking space from builder/society as i have no space to park my car. but i have legal possession of flat.
Wow!!! Honestly speaking you are really a great writer. What I required I got it. Thank you so much...
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