Supreme Court verdict says  After OC is issued and society Supreme Court verdict says After OC is issued and society

Consumer Protection »Posted 15 Feb 2011

legal questionSir/Madam

September 2010 which says: the stilt parking is part and parcel of the society and it cannot be separate premises available for sale. As soon as the Corporation issues the occupation certificate and the society is registered, the building as well as the stilt parking spaces, open spaces and all common amenities become the property of the Society.
Violations in our society:
1- Builder has illegally sold a number of left over stilt parking to few members after more than a year when the society was registered, which is in violation of the Hon: Supreme Court verdict further clarifies: that the builder ceases to have any title on the stilt parking as soon as the occupation certificate is issued by the Corporation, it becomes the property of the society on registration.
2- Monthly maintenance bill clearly shows that our society is not recovering any property tax from member’s having stilt parking or outside parking.
Stilt parking:

• There are in all 72 stilt parking. Two belong to the society office.
• Out of 70 stilt parking 31 members are having 31 stilts, i.e. one each and 6 stilts are smaller in size and good only for parking scooters/motor bikes/ bicycles. Members of these stilts are suffering using and paying for outside parking as well for stilt parking.
• 16 members (members as one family in 1 or 2 BHK) are having 33 stilt parking and few having one or no vehicle and they have deliberately kept the stilt unused for several years, but don’t have the spirit to allow others to park temporarily and few continue to earn by renting it out for several years.
• Stilt parking cannot be used for storage purposes; but few stilt parking is used for storing furniture which is totally against the insurance policy as well against the byelaws.

Outside parking: 21 vehicles are parked in open to sky as outside parking.

Details of income by the society:

• Total income from 70 stilt Parking = 70 x 50 = Rs 3500/-.
(Vehicles in the stilt parking are safe and secured)
• Total income from 20 vehicles parking outside = 20 x 250 = Rs 5000/-.
(Vehicles are exposed to sun/heat/heavy rain/rust/dust/scratches/shit of the birds and security threat etc.)

• From the above calculations the fact is established that outside parking with merely 21 vehicles are paying Rs 1500/- per month more as compared to 70 stilt parking.

Luckily one member in the outside parking was given an exception of paying at Rs 50/- per month at par with the stilt parking, on a fixed deposit of Rs 20,000/- refundable without interest with an absurd excuse that it was decided during the amnesty period announced only once.

The proposal to give such facility to more members was placed before the present committee during the previous General body meeting, but the committee out right rejected.

The society is biased in doing justice with members parking vehicles outside.

Co-Operative Court Judgment: Our society conceded to the verdict given by the Co-Op Court to reduce the transfer fee from Rs 55000/- to Rs 25000/- and refunded approximately Rs 6 lacs i.e. Rs 30,000/- each to more than 20 affected members, as well refunded the excess recovered from flats on Leave & Licensee at Rs 1000/- (1 BHK) and Rs 1500/- (2 BHK) per month and reduced to approx. RS 57/- and Rs 63/- respectively.

To justify our stand:

We herby place the following proposal to the Managing Committee to resolve the issue amicably without confrontation.

1- Now the society should act in reverse and start collecting at Rs 50/- per month from vehicles parked as outside parking as a result refund the unjust excess collected and charge Rs 250/- per month from stilt parking.

2- The society should accommodate maximum number of vehicles now parked outside in the unused and rented stilt parking.

3- The members cannot rent out the stilt parking.

• The Hon: Supreme Court has set a precedent and even the General body cannot overrule the judgment but have to implement it in its totality in the larger interest of the society.

The committee members have signed the bond and shall be jointly and severally liable under section 138 of the byelaws for making any loss, which the society may suffer because of their negligence or omission to perform any of the duties and functions cast on them.
Note: The brief of the verdict and the copy of the Hon: Supreme Court Judgment is enclosed h/w for ready reference. Members can visit official web site of www. Supreme Court of India clicks Judgment/Civil case in Appeal of 2544 of 2010.
Yours sincerely:

legal answer from lawyer E00002056 The Honble SC held that\" It is, thus, clear that the
promoter has no right to sell ‘stilt parking spaces’ as these are
neither ‘flat’ nor appurtenant or attachment to a ‘flat’.\"

In view of the above clear finding of the SC the entire common area including the sold stilt parking spaces, belongs to all the flat owners.So the sale of stilt parking area by the promoter is null and void. The common parking spaces should be equitably allotted to all the members of the society.
Hence you have a good case against the managing committee. The society similarly has a good case against the bogus owners of stilt parking spaces as their purchase is void and they could not claim a valid title.
The bye law of the society provides that\" The committee members who have signed the bond shall be jointly and severally liable (under section 138 of the bye laws) for making any loss, which the society may suffer because of their negligence or omission to perform any of the duties and functions cast on them.\"
In view of the above bye law the committee is liable for action by any member for not having proceeded to reclaim the title to illegally sold stilt parking spaces by the promoter.

Finally your proposal placed before the committee is very fair and reasonable.


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