Query of V K S Anand

In a CHS in Navi Mumbai (nerul) , on request by a member a parking slot was allocated to a member 8 years ago when no other member had a car to park. he made a roof cover for his car at a specific place.

Now since there are other members who own cars and no space available in the society, can he be de-allocated and keep the entire space open for all to park on first come first served basis?

General body with enough quorum (aggrieved member was absent in the meeting in spite of having given notice well in advance) , had passed to remove the structure to clear the hindrance for open parking to all.  Kindly advise if this decision is legal, or what recourse to be taken.  this member is non-co-operative &quarrelsome.

I C Naik

Parking places are to be managed in accordance with provisions in Bye-Laws.  So try to understand the Bye-Laws relevant  numbers being 78-85 (assuming your CHS registered its Bye-Laws as per Model 2001). It appears the developer did not sell any parking. The One allocated 8 years ago is covered by Bye-Law No 78(b) as  “there are other members who own cars and no space available in the society”

Bye-Law No  82 reads:

82. In case the number of vehicles of eligible members are  in excess of the available parking spaces/stilts, the Managing Committee shall allot such parking spaces/stiltsby ‘lot’ on yearly basis.

In addition to direction to demolish the structure as per resolution of the general body meeting, immediately the Committee should take following steps:

1. Invite applications for parking spaces by other car owners as required under Bye-Law No 83.
2. Mark Parking space numbers ensuring that no inconvenience would be caused to any of the members of the Society as mandated under Bye-Law No 80.
3. Notify number of parking spaces available including allotted ones and Number of applications received (General body meeting not required).
4. Clarify    that all parking will be allotted every year by “lot” system and first allotment will start only after the structure is demolished and parking spaces are numbered.

Simultaneously consider undertaking following process:

A member has been allocated a space for parking his car in open area of the society. He has a temporary privilege to park his car in the area marked as a open parking slot. Closed parking slots are possible only if there are stilts. So the member has taken step which is not with in his right as a member. Open space is under jurisdiction of the Committee. And accessible to all members in uniform manner. No one can claim exclusivity. What this member has done is an encroachment cum trespass as that space is blocked for entry of other members. General body meeting has a right to direct removal of the structure.  It is presumed that  no permission was obtained for setting up the structure,  either of the society or the civic authorities whose approval is necessary for any construction in the area under its jurisdiction.  Civic Authrities may also be requested to demolish the stracture.

Under Bye-Law No 166 general body meeting has power to fix rates of penalties for beach of Bye-Laws. The Bye-Laws prohibit members to make any alteration in flat without prior approval of the Committee. One may argue that parking space is not a flat. Let it be understood clearly that the parking space is allowed to be occupied by a member temporarily  to park his car and that is not comparable to the right of occupancy  of the flat which carries right to transfer it to other persons approved by the Committee .Parking space cannot be so transferred, it goes back under committee’s authority. Structure over open parking space is blocking the open space otherwise available to ply the vehicles, when car is not parked. So constructing structure is a very serious offence and has to be treated quite seriously.

Though Bye-Laws are not laws its power through majority decision is really underestimated. There is a simple provision in the MCS Act 1960 vide Sub-Section 1 of Section 35. Your CHS has to use that power. It reads as under:

Section 35 – Expulsion of members

( 1) A society may, by resolution passed¹[by a majority of not less than three-fourths] of the members entitled to vote who are present at a general meeting held for the purpose expel a member for acts which are detrimental to the interest or proper working of the society:

Provided that, no resolution shall be valid, unless the member concerned is given opportunity of representing his case to the general body, and no resolution shall be effective unless it is approved by the Registrar.

This power has been recognized under registered bye-laws at Number 52 reading as under: The cases of expulsion from the membership of the society shall be dealt with in the manner provided under Section 35 of the Act, read with Rules 28 and 29 of the Rules.

Procedure for expulsion of members:-

1. Any member of a society or the committee itself can propose a resolution for expulsion of any member.
2. The consideration of such resolution shall be included in the agenda for the next general body meeting.
3. A notice thereof shall be given to the member against whom such resolution is proposed to be brought, calling upon him to be present at the general meeting.
4. Meeting must not be  held earlier than a period of one month from the date of such notice.
5. Ask the member to show cause against proposed expulsion.
6. After hearing the member,if present, or after taking into consideration any written representation which he might have sent, the general body of members shall proceed to consider the resolution.
7. Resolution will require in its favour more than 3 times the number of votes cast against the resolution.
8. A resolution so passed is to be sent to the Dy. Registrar  of the Ward along with application,
9. The Registrar may consider the resolution and after due inquiry and giving reasonable opportunity of being heard to such member give his decision within ninety days from the date of receipt of application and communicate the same to the society and the member concerned.
10. The resolution shall be effective from the date of such approval.
11. Where the Committee decides that expulsion from membership should also involve forfeiture of the shares, it shall make necessary reference to the proposed forfeiture of the Shares in the notice of the general body meeting to be issued as aforesaid.