Query of Bhumik Shah

I want to know that Can Society’s Managing Committee Cancel Parkings of Builders Unsold Flats & allot to other Flat Owners?

After resolving in the SGM that all Parking Spaces (Open or Stilt) will be allotted by MC as per the Bye Laws.

Kindly note in our Society:

Builder has allotted One Parking to each Flat on first come first serve basis & have issued Allotment of Parking.

Conveyance is not done in favour of the Society yet.

Builder is paying Maintenance Dues also of his Unsold Flats.

I C Naik

RESPONSE

1. Salute to your Builder  for paying maintenance for unsold flats”
2. Bye Law No 78 (b)  “The allotment of parking  spaces/stilts shall be made by the committee on the basis of “ First come First Served” for unsold and available parking spaces.” However in case of Parking Spaces/stilts allotted by the society, the member shall have no right to sell or transfer the said Parking Spaces/stilts to anybody.  “
3. “Parking Selling”  is not a concept in housing societies. It is a common area belonging to all members and at best can be allotted from time to time. But the Commissioner for Co-operation and Registrar of Cooperative Societies  has given credibility in favour of builders as we can surmise from the above  bye-law.
4. General body meeting cannot pass a resolution which contravenes any bye-law. In passing resolution to empower Committee to allot all parking including those Builders has allotted to flat purchasers the Society has passed a resolution in contravention of bye-law extracted above.
5.  Unless the above bye-law is amended to delete the words “for unsold and available parking spaces” the resolution of the Special general body meeting is ultarvires of bye-laws .
6. It is true that  the Supreme Court of India  dismissed the appeal of the promoter  Nahalchand Laloochand Pvt Ltd, who challenged the Bombay high court’s ruling that under the Maharashtra Ownership Flats Act 1963 a builder cannot sell parking slots in the stilt area as independent flats or garages.
7. In the Model bye-laws Parkings Sold by Builder are recognized by  the Commissioner for Co-operation and Registrar of Cooperative Societies; for example, the SC gave the afore said judgment in 2010 and  after that Model bye-laws 2014 has been released. It’s Bye Law No 78(b) reads as: The allotment of Parking Space shall be made by the Committee on the basis of “First Come First Served”, for available parking slots. However the Member shall have no right to sell or transfer the Parking Slot allotted by the Society.
8. The hidden meaning is the same as that as per Bye Law No 78(b) (Of earlier Model)   as quoted above. Removal of the phrase ‘for unsold and’ can be read in “available”. Also embargo on sale of parking allotted by the Society indicates Parking purchased from builder can be sold.
9.  The Society is expected to admit parking allotment paper as conferring right to use/sale the parking bought from the builder as per Bye Law No 78(b).

Action:

You can file a dispute application u/s 91 of the MCS Act 1960 against the Society as also the management committee and Chairman Secretary –all of them. The complaint is Resolution of the general body meeting has violated Bye Law No 78(b).

You prepare a factual letter and walk in to the Office of the Cooperative Court and show your paper to the Registrar of the Court and request for hearing of the matter in the Court. Some Court procedures will be explained to you which is not complicated at all. You should present the matter personally and do not hire a lawyer.