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 THE PROBLEMS OF CAR PARKING 
BY 
MAHABALESHWAR N. MORJE 

    To  have  a  Car has become necessity. It  is  no  more status symbols. the problem of car parking has become a  very difficult question in the City of Bombay. The numbers of cars are  increasing  day  by day. Whether it is  parking  on  the public road or at public places or 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:
 
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?
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?
Q.3 What is mean by basement?
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.?
Q.5 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 ?
Q.6 What is the difference between close parking, stilt parking and open parking?
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?
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?
Q.9 How the allotment of parking space is made under Model Bye-laws?
Q.10 What precaution should be taken to see that parking space is not misused?
Q.11 What are the provisions when more than one parking space is allotted or when allotment is allowed by  employer?
Q.12 Is it necessary to take permission before parking vehicle in the compound of the Society?
Q.13 What are the modifications made in the new model bye-laws under the Co-operative Societies Act ?
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?
Q.15 What are the provisions in respect of parking spaces and halting stations under Motor Vehicle Act, 1939.
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?
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?

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.



    In case, one need further guidance please contact the Secretary, Flat Owners Association, at the address given below:

(MAHABALESHWAR MORJE)

Gen. Secretary.


23, Hamam Street, 3rd Floor , Above Quality Machine Tools , Fort , Mumbai - 400 023
Tel : +91-22-22650284/22657291 , Fax: +91-22-22657291
© Copyright 2002, The Flat Owner's Association, Mumbai.
Updated On 27th March 2002