Res­i­dents can­not park in com­mon ar­eas of so­ci­eties

Apart­ment own­ers can­not park cars in com­mon ar­eas or in spots not des­ig­nated for park­ing in hous­ing so­ci­eties

HT Estates - - HTESTATES - Su­nil Tyagi

Short­age of park­ing space is a com­mon prob­lem in metropoli­tan cities, es­pe­cially Delhi. Of­ten, the num­ber of cars is more than the num­ber of avail­able car park­ing slots in a hous­ing so­ci­ety. Such prob­lems ex­ist in Delhi. In such a case, it be­comes im­por­tant for the so­ci­ety to reg­u­larise the lim­ited spa­ces for the wel­fare of all mem­bers. The ques­tion that needs to be an­swered is: can so­ci­eties reg­u­larise such park­ing.

The Delhi High Court re­cently dealt with this is­sue in the case of Anup Mit­tal vs M/ s Ka­nungo Co-op­er­a­tive Group Hous­ing So­ci­ety Ltd, de­cided on Jan­uary 27, 2016.

In this case, a plot of land was al­lot­ted to the Ka­nungo Co­op­er­a­tive Group Hous­ing So­ci­ety in 1990 for con­struc­tion of six res­i­den­tial blocks. As per the build­ing plans, the so­ci­ety was per­mit­ted park­ing of 209 cars in the so­ci­ety’s base­ment. After con­struc­tion work was com­pleted, the so­ci­ety started al­lot­ing flats by is­su­ing al­lot­ment let­ters. One clause in the let­ter stated that the so­ci­ety will per­mit mem­bers to oc­cupy one apart­ment along with one car park­ing on li­cence ba­sis.

Thus, each al­lot­tee was per­mit­ted only one car park­ing on li­cence along with an apart­ment. Car park­ing space was also pro­vided in the base­ment as per sanc­tioned plans. How­ever, after al­lot­ment, some res­i­dents started park­ing ad­di­tional cars in the open ar­eas of the so­ci­ety. This re­sulted in protests by other oc­cu­pants.

In or­der to dis­cour­age res­i­dents from park­ing extra cars, the gen­eral body of the so­ci­ety re­solved to levy a car park­ing penalty for extra cars and there­fore passed a res­o­lu­tion to this ef­fect in its an­nual gen­eral meet­ing. The pe­ti­tioner/claimant in this case had been living in the so­ci­ety since 2000 and owned four cars.

Out of the four cars, he would park one car in the al­lot­ted park- ing space in the base­ment and the other three in the open area of the so­ci­ety. In 2012, the pe­ti­tioner stopped pay­ing car park­ing charges payable to the so­ci­ety. In 2013, the pe­ti­tioner raised a dis­pute against the so­ci­ety. He claimed that he has a le­gal right to park his extra three cars in the open area with­out pay­ing the car park­ing charges and thereby chal­lenged the so­ci­ety’s ju­ris­dic­tion to do the same.

This dis­pute was re­ferred to ar­bi­tra­tion. The ar­bi­tra­tor passed an award in favour of the pe­ti­tioner/claimant by hold­ing that the car park charges im­posed by the so­ci­ety were il­le­gal and di­rected the same to be re­funded to the claimant with in­ter­est at 9% per an­num or ad­just­ment in the fu­ture de­mands of the so­ci­ety.

This award was chal­lenged by the so­ci­ety be­fore the Delhi Co­op­er­a­tive Tri­bunal. The tri­bunal set aside the award and held that park­ing space was lim­ited and the so­ci­ety’s gen­eral body was re­quired to take all mea­sures to reg­u­late the lim­ited space for the wel­fare of mem­bers.

The pe­ti­tioner, ag­grieved by the tri­bunal’s or­der, filed a writ pe­ti­tion be­fore the Delhi High Court.

The main is­sue that came up be­fore the court was whether the pe­ti­tioner had an en­force­able le­gal right to park mul­ti­ple cars within the bound­ary of a co­op­er­a­tive so­ci­ety.

The court ob­served that the com­mon ar­eas of the so­ci­ety were meant for use by all mem­bers of the so­ci­ety and could not be ap­pro­pri­ated, even tem­po­rar­ily, by any per­son for the pur­pose of park­ing their ad­di­tional ve­hi­cles. The court also ob­served that circulation space in­clud­ing path­ways in the so­ci­ety had to be kept free and va­cant at all times for se­cu­rity rea­sons and to en­sure ac­cess to emer­gency ve­hi­cles in­clud­ing fire ten­ders, am­bu­lances and po­lice ve­hi­cles. There­fore, the court held that the pe­ti­tioner had no right to park any ve­hi­cle in the com­mon ar­eas. The court also ob­served that the pe­ti­tioner, hav­ing ac­quired ve­hi­cles that he did not need was assert­ing a right to space over which he had no ex­clu­sive right and was thereby en­croach­ing on the rights of oth­ers to use and en­joy the ben­e­fits.

With re­spect to the is­sue re­gard­ing ju­ris­dic­tion of the so­ci­ety to levy extra park­ing charges, the court ob­served that the gen­eral body was em­pow­ered to ap­prove wel­fare schemes, which were for the ben­e­fit of its mem­bers and their fam­i­lies.

Based on the above ob­ser­va­tions, the court dis­missed the pe­ti­tion and di­rected the pe­ti­tioner to pay costs. This judg­ment passed by the Delhi High Court clar­i­fies that mem­bers in a so­ci­ety can­not park their cars at unau­tho­rised places or com­mon ar­eas. The mem­bers can park their cars only at the park­ing place des­ig­nated by the so­ci­ety.

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