| Q.1. |
Whether
the parking of car is an essential service? Whether there are different
provisions under the Maharashtra Rent Control Act, or Maharashtra Ownership
Flat Act or Maharashtra Ownership Apartment Act? |
| Ans. |
Under the Bombay Rent
Act garage could appurtenant to a demise building or it may be let separately
without reference to any other premises. Premises let with garage were
held to be distinct from the premises let without garage. Under old Act
Section 5(8) refer to the definition to the premises. Section 12A of Maharashtra
Ownership Flat Act deals with the problem of essential supply and services.
According to prevailing Control Regulations providing space for parking
cars of flat owners have been made compulsory. The Clause 10 of the Model
Agreement refers to the provision for parking space. Under the Maharashtra
Ownership Flat Act, there is reference to the common areas and facilities
which are specifically referred to in the declaration or lawful amendments,
which may refers to parking space or such other amenities. There is difference
of opinion on this subject. Several Judgements have been delivered on the
subject of 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 service. (Morarji Goculdas
Deoni Trust Vs. Madhav Vithal Kuduva AIR 1983 Bom. 68) The Judgement was
reversed by the Division Bench of Bombay high Court. However, in case of
housing society it was found that some of the promoters or 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
Judgment in Kelpik Co-operative Housing Society where it was found that
the builder deliberately avoid registration of society, it is held that
Builders cannot be allowed to take the advantage of their own wrongs and
deprive the benefits available to the purchasers of the flats. |
| Q.2 |
Whether
the space for parking car was treated as a part of the residential premises?
Whether it is exempted from payment of stamp duty? |
| Ans. |
The problem of parking
has become more difficult than paying tax. Though it is made an obligatory
under the development Control Rules to provide space for parking a car,
yet it has become extremely difficult to do so and members are forced to
keep the cars in compound in open space which is used and kept for the
purpose of play ground or garden. As there is shortage of the middle class
people and lower middle class people there are always likelihood that some
members are having more than one car resulting in shortage of space. This
also results into dispute among members, therefore in order to avoid practical
difficulties the Housing Society should make necessary changes in the Development
Control Rules and provide at least to keep 1 car for 1 flat and originally
till 23.01.1980 the car parking was a part of the residential premises.
However from 24.03.1980 it has become a residential place and which requires
paying the Stamp Duty. In certain case two separate agreements are prepared
one for purchase 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. |
| Q.3. |
What
is mean by basement? |
| Ans. |
The basement cellar means
the lower storey of a building below or partly below the ground level.
Under the Maharashtra Ownership Apartment Act, common areas or facilities
unless otherwise provided in the declaration or lawful amendment, thereto
means (3) the basement, cellar, yards, gardens, parking areas, and storage
spaces. |
| Q.4. |
Whether
the basement is permitted for parking under the provisions of the Municipal
Corporation Act? Whether extra FSI is granted free of charge for allowing
parking Cars in basement? Whether Car can be allowed to park in the compulsory
open space in front of the building, when basement area is not used for
the purpose of parking when it is misused for the purpose of shopping or
some other non-residential purpose and/or for the purpose of residence
of the employees of the society or for the residence of watchman, driver
etc.? |
| Ans. |
When under the approved
plan parking was provided in the basement neither Municipal Authorities
nor the members of the Managing Committee can allow to use the area in
the basement other than for parking. It is noticed that in several building
on the Marine Lines basement parking is allowed to be converted for godown
or for the non-residential purposes and subsequently the vehicles are parked
in the compulsory open space. This is done contrary to the provisions of
the Municipal Corporation Act and the Development Control Rules and the
law of prevention of noise and air pollution. There are several buildings
where basement parking zone is allowed to be used for the purpose of residence
though it was originally for the purpose of parking Motor Cars. If the
Motor Cars are parked in no parking zone, they are allowed to take away.
The motorcars, which are parked in the compound of the housing society,
which are excess in number, can be taken a way by the police or prevention
of the pollution authority. |
| Q.5. |
Whether
members of the Managing Committee be held accountable for allowing to misuse
the compulsory open space for excessive parking within the compulsory open
space? |
| Ans. |
The Members of the Managing
Committee are required to run the business and management according to
the provisions of Maharashtra Co-operative Societies Act, 1960, rules there
under and bye-laws of the Society read with provisions of Development Control
Rules. The Members of Managing Committee cannot allow the basement to be
used for the purpose of non-residential purpose i.e. godown, shops etc.
and/or for giving it to employees of the society for the purpose of residence.
Members of the Managing Committee cannot allow the compulsory open space,
which is required to be used by children for the purpose of playing or
for the purpose of garden. The Members of Managing Committee will be held
responsible for taking any decision, which is contrary to the law or rules
there under. |
| Q.6. |
What
is the difference between close parking, stilt parking and open parking? |
| Ans. |
Close parking is permitted
on the basis of area of the plot of land and availability of Floor Space
Index as provided under Development Control Rules. The Development Control
Rule 30 referring to parking spaces. It states as under :- The Rule further
refers to quantitative requirement 4 wheel auto vehicles as specifically
referred in Table 15. Part A refers to Malabar Hill, Cumballa Hill and
other parking area. Part B refers to the rest of the Island city area and
extended suburByelaw The said table also refers to Educational Assembly
and Meeting Hall, Auditorium, Semi and Government Offices, mercantile industrial
storage hospital and medical institutions, cinema and theatre and shopping,
stadium and clubs etc. 4 refers to transport vehicles. Clause 5 refers
to parking space. Clause 6 refers to theatres and Assembly Halls, Clause
7 refers to common parking space. The Problem of parking space is much
more acute and complicated as it differs from locality to locality and
for the purpose of and nature of user the sudden growth of motor cars and
shortage of land for parking as created unprecedented 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 unprecedented growth of housing in Island of Bombay. |
| Q.7. |
Whether
Model Agreement is required for purchasing the flat? Whether it is includes
provisions for purchasing the garage or parking space? Whether there can
be separate agreement for the purchase of flat or industrial estate and
another for purchase of garage or purchase of parking space? |
| Ans. |
The Condition No.10 state
that "It is expressly agreed between the Promoter/s and the Purchaser/s
that the said premises shall be utilized for residential purpose and the
garages/parking space shall be used only for parking vehicle belonging
to the Purchaser/s agree not to change user of the said premises without
prior consent in writing of the Promoters which the Promoters will be entitled
to refuse if they deem fit and any unauthorized change of the user of the
said premises by the Purchaser/s in the event shall not be entitled to
any right under or arising out of this agreement. |
| Q.8. |
Whether
a driver who is convicted of criminal offences can be allowed to work as
a driver on the vehicles parked in the compound of the society or removed
from the member of the society? |
| Ans. |
Under section 22 of Maharashtra
Co-operative Societies Act, 1960, no person shall be admitted as a member
unless he satisfies the terms and conditions mentioned under the said section.
Person who is not having the sound mind or a person or a person who is
convicted for a period of more than 6 months is disqualified from being
a member. The same analogy if the driver is convicted for more than period
of 6 months may be prevented from working as a driver in respect of the
vehicle used by the member of the society. |
| Q.9. |
How
the allotment of parking space is made under Model Bye-laws? |
| Ans. |
The allotment of parking
spaces/stilts shall be made by the Committee on the basis of "First Come
First Served". (Byelaw No.79) No member shall be entitled to utilize more
parking spaces/stilts than what is allotted to him by the Committee. (Byelaw
No.80) |
| Q.10. |
What
precaution should be taken to see that parking space is not misused? |
| Ans. |
Where any stilts have
been built or open space in the society's compound is available for parking
of cars, the society shall number the stilts or the open space in such
a way that no inconvenience would be caused to any of the members of the
Society. The Committee shall ensure that the space is used by the members
for the purpose for which it is allotted to them. (Byelaw No.81) |
| Q.11. |
What
are the provisions when more than one parking space is allotted or when
allotment is allowed by employer? |
| Ans. |
A member having a motor
vehicle will only be eligible to have stilt or a parking space. No member
shall normally be eligible for being allotted more than one stilt or a
parking space for parking the car owned by him or allotted to him by his
employer, or the firm of which he is the partner or the company of which
he is the director. If any stilts or parking spaces remain unallotted for
want of applicants for allotment, a second or third stilt or parking space
may be allotted to the same member who has earlier been allotted the stilt
or the parking space. Such allotment of 2nd or 3rd stilt/parking space
shall be made on year to year basis provided the same is not required by
another member, who is not allotted even a single stilt/parking space.
(Byelaw No.82) Every member, who has been allotted the stilt or the parking
space shall be required to pay the parking charges at such rate as may
be decided by the general body of the society at its meeting irrespective
of the fact whether he actually parks his motor vehicle or not. Where a
member has been allotted more than one stilt/parking space, he shall pay
parking charges in respect of every such stilt or parking space. (Byelaw
No.84) |
| Q.12. |
Is
it necessary to take permission before parking vehicle in the compound
of the Society? |
| Ans. |
Every member having a
scooter a motor cycle, or an auto rickshaw shall obtain prior permission
of the Committee for parking his vehicle in the compound of the society
on payment of charges, fixed by the general body of the Society at its
meeting. (Byelaw No.85) |
| Q.13. |
What
are the modifications made in the new model bye-laws under the Co-operative
Societies Act ? |
| Ans. |
(a) Bye-law No.78 is
the new bye-law 78(A), which refer to the policy of allotment of parking
places and yield. The new bye-law is divided into 2 parts 78(A), 78(B)
referring to addition for unsold and available parties. (b) Bye-law No.79
is the old Bye-law No 80 in which words are added "or which he has purchased".
It appears intention is to protect parking spaces if the flat (flat owner)
has purchased it on from the builder. (c) Bye-law No.80 is the old Bye-law
No 81 and Bye-law No.81 is the old Bye-law No. 82. Bye-law No.82 is the
new bye-law, which refers to the provisions of parking for excess vehicles
than the available parking spaces by "lot' on yearly basis. Note : There
is difference of opinion in respect of amendment of this bye-law as it
is said that compulsory open space is reserved for play ground, garden
or such other purpose cannot be sold, it would result in violation of Municipal
Corporation Act and FSI and it will also result in noise and air pollution. |
| Q.14. |
Approximately
how many motorcars are in City of Mumbai? Is it possible to prevent non
commercial vehicles from parking in the compound of the Society with a
view to avoid pollution? |
| Ans. |
Approximately more than
2 lacs flat owners who own vehicles in City of Mumbai. In posh locality
most of the housing societies every member having more than one motorcar
which is used by their wife, son, daughter and other members of family.
The problem of parking is more difficult than problem of buying a flat.
Overcrowding of cars creates noise and air pollution. Suitable amendments
should be made, as there is misuse of compulsory open space. |
| Q.15. |
What
are the provisions in respect of parking spaces and halting stations under
Motor Vehicle Act, 1939. |
| Ans. |
The Section only enables
or empowers the authority concerned in consultation with the local authority
having jurisdiction in the area, to determine the parking places or halting
stations at which motor vehicles may stand either indefinitely or for a
specified period of time. It is however, not a statutory obligation in
the sense that the Legislature commands the authority to provide parking
places and carries no penalty if this is not done. Municipal authority
has no power to fix fees to be paid by public service vehicles for use
declared as a motor stand or halting places. The RTA alone can prescribe
such fees under R.134(b) of the Raj. Motor Vehicles Rules (4). |
| Q.16. |
Is
it true that no person is allowed to park a Motor Car in Japan unless NOC
(No Objection Certificate) is obtained from the Managing Committee of the
Co-operative Society or such other body? |
| Ans. |
In order to avoid overcrowding
of Motor Cars within the compound of the building of the Society, it is
stated that NOC from the Society is required to be obtained before purchasing
a Car in order to avoid disputes. |
| Q.17. |
What
are the provisions regarding the parking of vehicles in USA? Whether the
tenant is required to pay the separate parking charges or whether it is
included in the rent? Whether separate charges are levied for parking the
cars? |
| Ans. |
Laws relating to the
compulsory open space and parking are strictly followed. Motorcars are
not allowed to be parked in compulsory open space, if there is breach of
the rules the driving license is confiscated. |