As seen in Part 11 of this article, there are a plethora of ambiguities surrounding parking spaces which become obvious when the governing statutes are read together. Briefly, the relevant statutes provide as under:
| Statute | Definition of "common areas" | Control of common areas |
| MOFA2 | Includes all parking spaces except garages as per the interpretation given in Nahalchand Laloochand | Given to the Co-operative Housing Society (CHS) under Section 11 of MOFA |
| RERA3 | Includes open parking spaces, excludes garages and covered parking spaces (as well as stilts4) under Section 2(n) of RERA. | Given to the Co-operative society under Section 17 of RERA. |
| 2021 RERA Notification5 | Doesn't give a definition for common areas, however states that open parking spaces cannot be sold for monetary consideration while covered parking spaces and garages can be sold so. This clause hence follows the definition of RERA. | Under the parent act, RERA, the control of common areas is transferred to CHS. However, all parking spaces, whether within the definition of common area or not, are to be allotted to individual flats by the Promoter and thereby to the flat allottees. This is hence in violation of RERA to the extent of open parking spaces. |
Evidently the position of parking spaces being part of common areas has evolved with each statutory advancement. However, as seen in Part 1 of this article, despite the altered definitions of common areas, the entire domain of parking spaces is still kept within the purview of the CHS control by virtue of Model Bye Laws6. The same is also the general trend of practice.
With respect to open parking spaces, it is settled that as the law stands today, the CHS has the highest control since the same form a part of common areas. However, the control exercised by the CHS with respect to garages and covered parking spaces (which include stilt parking spaces) is uncertain since control of these areas has not been statutorily handed over to the CHS under RERA. Several such ambiguities have gone unaddressed, and at times were further complicated by the addition of statutory or regulatory provisions regarding parking spaces. Part 1 explored the contradictions in statutes governing parking spaces and the ambiguities arising therefrom. In our quest to understand how much further we need to go in bringing clarity and fairness to the norms surrounding parking spaces, this part 2 of the article goes further to understand the gaps in the arena.
When it comes to the specifications of the parking spaces, it is pertinent to take note of the Development Control & Promotion Regulation, 2034 (DCPR)7. Rule 44(2) thereunder specifies the minimum number of parking spaces to be provided by the Promoter vis-à-vis the number and area of flats. For instance, it states that where there are 4 tenements having a carpet area of upto 45 sq. m. each, the Promoter is obligated to make a minimum of one parking space available for the 4 tenements. However, it remains unclear as to how the Promoter would decide to allot the one parking space amongst the multiple allottees of the tenements. It is noteworthy that, unlike the Model-Bye laws, no mention of first come first serve rule for allotment of parking spaces has been made under the DCPR. If it is assumed that the one willing to pay the price would get the benefit of being allotted the parking space, then foreseeably this is only a bidding war waiting to happen.
Further, as seen in Part 1 of this Article, the Promoter is supposed to allot parking spaces to the allottees by virtue of the 2021 Notification brought out by MahaRERA. This further substantiates the belief amongst flat buyers that a payment to the Promoter for a parking space will ensure that they are properly allotted the same.
However, the flat owners are usually in for an unpleasant surprise when they are allotted a parking space either under the DCPR Rules or by paying a handsome amount to the Promoter believing the Promoter to have the authority to allot parking spaces under RERA. While the flat purchaser receives an official allotment of parking spaces by the builder/promoter, the CHS once formed, takes over the control of all the parking spaces and reallots the same, as per its regulations. A layman, hence, believing in the authority of the Promoter/builder to allot parking spaces, pays his hard-earned money, only to be faced with legal ambiguities and uncertainties at a later stage.
Last but not least, the Government of Maharashtra has found one more opportunity to further grow its wealth. Despite the complete and obvious ambiguities in the status of the parking spaces, as well as the lingering question of whether the parking spaces allotted by the Promoter under the MahaRERA Notification can be taken over by the CHS at a later stage; the car parking allotments are stamped along with the stamp duty applied on the conveyance of the flat under Article 25(b) of Maharashtra Stamp Act, 1958. The Government treasury has hence thought it fit to add further burden on the flat purchasers, before addressing these glaring ambiguities.
What is perhaps possibly further enraging to the public is the undoing done by the Notification. The Notification inter alia provides that,
"Garage and/or covered parking space when sold/allotted for monetary consideration, the type, numbers and size as well as the place where such garage or covered parking space is situated should be mentioned in the Agreement for Sale being entered into and the plan showing the exact location / allotment along with the particulars as aforesaid should be annexed to the Agreement for Sale"
Whereas the Nahalchand Laloochand judgement8 established that the parking spaces are not saleable by the Promoters for monetary consideration and thereby solving a multitude of disputes regarding the same, the Notification going contrary to the established position effectively permits the sale of covered parking spaces and garages for monetary consideration.
Arguably, this Notification has come as a way of regulating the sale of parking spaces being engaged in by the Promoters despite the Nahalchand judgement. However, the fact remains that this step has gone partially against the much-welcomed Supreme Court judgement which has also found support in the recent Goel Ganga9 judgement passed by the Bombay High Court.
It is undoubted that it would require special attention from the legislature and the executive of the state to resolve and bring clarity to the issues and ambiguities surrounding parking spaces. It is not sufficient to bring in standalone clarificatory statutory or regulatory provisions. It is pertinent to review the existing and the new additions in the statutory realm surrounding parking spaces in consonance with each other. More than the lack of guiding principles, it is the lack of coherence which plagues the vehicle owners of the city looking to have an assured space for their vehicles.
Originally published by Bar & Bench.
Footnotes
1. https://www.barandbench.com/law-firms/view-point/parking-spaces-the-conundrum (last accessed 23 May 2023).
2. Maharashtra Ownership of Flats Act, 1963.
3. Real Estate (Regulation and Development) Act, 2016.
4. "Covered parking space" as defined under Maharashtra Real Estate (Regulation and Development) (Registration of real estate projects, Registration of real estate agents, rates of interests and disclosures on website) Rules, 2017 (the Rules) Notification No REA 2016/CR No 79/DVP dated 20 April 2017.
5. https://maharera.mahaonline.gov.in/Upload/PDF/circular%2036.pdf , Circular 36 of 2021 passed by MAHARASHTRA REAL ESTATE RIGULATORY AUTHORITY (last accessed 10 April 2023).
6. Model Bye Laws brought in by the Maharashtra State under the Maharashtra Co-operative Societies Act, 1960.
7. Rule 44(2) of DCPR lays down the quantitative requirements of the number of parking spaces with respect to the number of tenements.
8. Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd., AIR2010SC3607.
9. Writ Petition 2523 of 2022, Bombay High Court.
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