By Mahabaleshwar N. Morje,
Advocate – High Court – Mumbai
To have a Car has become necessity. It is no more status symbols the problem of car parking has become very difficult question in the City of Mumbai. The number of cars are increasing day by day. Whether it is parking on the public road or at public places car in the compounds of housing societies, the question is assuming a greater dimension day by day.
Some of the important questions of fact and law are as under:
1. Whether tenant under the Rent Act has the right to park his car within the compound of the building ?
2. Whether a member of a Co-operative Housing Society has a right to park his car within the compound of the Housing Society?
3. Whether a purchaser of the flat has the right to park the car in the compound of the Society before registration of the Society and execution of conveyance is the favour of societies?
4. Whether an owner of an Industrial gala has the right to park his car or truck or other vehicles within the compound of Industrial Estate/Gala?
5. Whether the parking of car has considered as an essential services under Bombay Rent Act or under Maharashtra Ownership Flat Act?
6. Whether the garage or parking space treated as non-residential premises and
additional taxes or stamp duty are required to be paid?
The building bye-laws and development control rules for the Municipal corporation for 1888 refers to the various provisions regarding the parking spaces. It refers to what way the parking space can be provided to the residential as well as to the lodging establishment, touring home, hotels with accommodation to educational institutional assembly government and semi government private building and mercantile and industrial storage , etc. However, this article refers only to the residential premises as states below:-
The parking space is broadly divided into two areas, i.e. posh areas and other areas. The posh areas includes Malbar Hill, Cumballa Hill, Reclamation area, including reclamation of Juhu, Vile-Parle, Sasoon Dock and Napeansea area and rest of the city area, suburb and extended suburb.
Each off street space provided for Motor Vehicles shall not be less than 25mX5m area and for scooters and cycles the parking spaces provided shall not be less than 3sq.m and 1.4sq.m respectively.
For building of difference occupancies off-street space for parking of vehicles shall be provided.
According to the Municipal bye-law No. 36A which refers to the parking has stipulated that parking space should have minimum size of 18′ long and b’ in width. When the plans are approved or sanctioned under the building regulations, the building regulations, the builders are required to leave certain space for purpose of plat ground, garden , etc. However, there are no definite guidelines for allowing parking space.
Societies in Mumbai can be divided into two groups. Societies of posh localities and other localities. The people from posh localities sometimes hold more than one car and in such cases the Society may pass resolution allowing, the first car to park on a charge of Rs. 50/- and the second car on payment of Rs. 150/- and the third car by paying a compensation of Rs. 300/- . The question arises is not the recovery of money but whether they have such necessary open space for permitting under the Bombay Municipal Bye-Laws. If large the space for garden, play ground etc. and instruction where there is fire brigade engine.
Model Bye-Laws Under Co-operative Societies Act:
Clause VIII of Model Bye-Law 71 of Co-operative Societies refers to car parking charges. It states that the rate fixed by the General Body of the Society under the Bye-Law No. 86 and the car parking charges may be decided accordingly. It must be noted that the General Body has right to allow space for car parking which will be subject to the Bye-Laws and Development Control Rules. The Society cannot allow any number of cars if it is not permitted under the special Bye-law and the Development Control Rules.
It must be noted that originally the residential flats were exempted from the payment of stamp duty under the co-operative societies. Subsequently, the notification which came into force on 30th March 1980 garages were excluded from the exemption of stamp duty. Mow, further change has taken place as per the notification dated 17th March 1988 issued by the Department of co-operative. Further question will be about the payment of additional municipal taxes. Garages are of two types open garages and closed garages.
It has been unfortunately noticed that every other the plans are submitted approved and sanctioned allowing the parking area and however, subsequently it has converted into shops contrary to the approved plan. Therefore, precaution should be taken that there was no misuse of the premises for the parking. The bye-laws are nothing but to ensure an orderly management in the interest of the members. One of the important principle of the Co-operative housing society is better management and better living. The members of the society are charged a minimum of Rs. 50/- for parking space normally. The society cannot afford to allow two or more parking plot. This is in order to payment encouraging members bringing more than one car. It also encroaches the parking spaces of others, as well as free access to the members within the compound of the society. This is being indoor management. It is generally decided on certain compensation. However, in fact, if the municipal authorities objected then the society cannot allow more than one parking space parking spaces are permitted under the municipal bye-laws and under the Development Control Rules.
In view of the judgement of the Division Bench of the Bombay High Court which takes the view that the tenant has no right to park the car without the permission of the landlord. In case of the co-operative societies which are duly registered the question would be whether the society can present the purchaser of the flats from parking the car within the compound without the permission of the society, Obviously, all these facts will be required on the basis of Resolution of the General Body as states in Bye-laws No. 71 Sub clause (a).
Several Judgments have been delivered on the subject of the right of car parking Justice G.N. Vaidya has taken a view that if the tenant is having a car, he has right to park within the compound of the building if the car is shown as essential services. The judgement was reversed by the division Branch of Bombay high court. However, in case of housing society it was found that some of the promoters of builders deliberately avoid the registration of the society with a view to retain the control on the property of the proposed society. Some times it is found that the space which is shown for garage close or open, subsequently converted into business premises and purchasers are denied of right of parking the car. The division bench of the Bombay high court has also delivered the judgement Kelpik Co-operative Housing Society where it was found that the builder deliberately avoid registration of society, it is held that Builder cannot be allowed to take the advantage of their own wrongs and deprive the benefits available to the purchasers of the flats.
Justice R.A. Jaghirdhar in one of the judgements – right of the purchaser of the flat to park the car within the compound of the society,. Recently an appeal against order of the judgement delivered by the Judge of the City Court came up of admission and interim relief before Lordship Justice M. L. Dudhat where the builder has failed and neglected to register the co-operative Housing Society though he had put into them possession of the flat about 10 years and some of the members were parking the car for last several years. The builder filed a suit for restraining the purchaser from parking the car within the compound. Counter notice of motion was taken out by the purchaser restraining the builder from preventing her to park the car and status quo was granted. Finally notice of motion was decided in favour of builder and Landlord M.L. Dudhat Justice has admitted the appeal and granted the injunction against the builder restraining from objection the car parking.
The problem of parking has become more difficult than paying tax. Though it is made an obligatory under the development Control Rules to provided a car for parking it has become extremely difficult to do and members are forced to keep the cars in compound open space which is used and kept for the purchase of playground or garden. As there is short of the middle class people and lower middle class people, age of space which will result dispute among members to practical difficulties and therefore Housing Society should made necessary changes in the Development Control Rules and provide at least to keep 1 car for 1 flat and originally till 23-1-80 the car parking was a part of the residential premises. However from 24-3-80 it has become a residential place and which requires to pay the Stamp Duty and in Certain case two separate agreements are prepared one for purchaser of flat and another for purchase of car parking space. In order to avoid any dispute necessary amendments should be made in Development Control Rules. The Development Control Rules 30 referring to parking spaces. It states as under :-
The Problem of parking space is much more acute and complicated as it differs from locality and for the purpose of and nature of user the sudden growth of motor card and shortage of land for parking as created unprecedental problems for not having to the management of the housing societies municipal corporation and government etc. The answer to problems to be found on the basis of sudden unprecedental growth of housing in island of Bombay.
By Mahabaleshwar N. Morje,