CO-OPERATIVE SOCIETIES ACT
Q: CAN HOUSING SOCIETIES FRAME THEIR OWN LAWS?
A: Recently, we heard of this new law in our society wherein every pet owner had to pay a certain amount in order to keep a pet. We got various queries if this was valid. Legal experts believe that housing societies can frame their own laws. However these laws have to be based on the guidelines framed under the Co-operative Societies Act.
For example, if the housing society has made a rule, stating that tenants need to pay Rs.x in order to keep a pet, then they have every right to enforce it. However, if a tenant believes that a certain rule or charge levied is wrong, then the tenant can ask the society to SPECIFY THE SECTION OF THE MODEL BYE-LAWS OF THE COOPERATIVE HOUSING SOCIETY ACT UNDER WHICH IT HAS BEEN CHARGED. If the society has come up with a rule or charge that the society cannot legally impose, then the tenant can take it further to the court.
Q: DOES A PROMOTER HAVE THE RIGHT TO SELL OR DISPOSE OF STILT PARKING SPACE TO OUTSIDERS, OTHER THAN THE FLAT OWNERS?
A: In a recent case (Nahalchand Laloochand P.Ltd’s case) the promoter set up the case in the plaint that under the agreements for sale it has sold flats in its building and each flat purchaser has right in respect of the flat sold to him and to no other portion. The defendant (Society) traversed the claim and set up the plea that the promoter has no right to sell or dispose of spaces in the stilt portion and that the undertakings given by the flat purchasers are not binding being contrary to law and based on such undertakings, the promoter has not acquired any right to sell stilt parking spaces.
The following was concluded by the Supreme Court: The promoter has no right to sell any portion of such building which is not `flat’ within the meaning of Section 2(a-1) of MOFA and the entire land and building has to be conveyed to the organisation; the only right remains with the promoter is to sell unsold flats. 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’.
The following were the findings of the court in the case:
1.The parking space enclosed or unenclosed, covered or open cannot be a `building’.
2.It is compulsory requirement to provide for parking spaces under DCR.
3.It is obligatory on the part of the promoter to follow the DCR. The agreement signed under MOFA between the developer and the flat purchaser must be in conformity with the model form of agreement (Form V) prescribed by the State Government.
4.The model agreement does not contemplate the flat purchasers to separately purchase the stilt parking spaces.
5.The rights arising from the agreement signed under the MOFA between the promoter and the flat purchasers cannot be diluted by any contract or an undertaking to the contrary. The undertakings contrary to DCR will not be binding either on the flat purchasers or the Society.
6.The stilt parking space is a common parking area available and the developer is obliged to provide the same under the DCR when the carpet area of the flat is 350 sq. meters It is not an additional premises/area that he is authorized to sell either to flat purchaser or any outsider. It is part and parcel of the Society building and it cannot be a 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.
7.The stilt parking spaces cannot be put on sale by the developer as he ceases to have any title on the same as soon as the occupation certificate is issued by the Corporation and it becomes the property of the society on its registration.
8.The stilt parking spaces cannot be termed as `open/covered garages’ and Clause 2 of the Model Agreement–Form V provides for sale of covered/open garage in addition to the flat/shop.
9.It is immaterial if the purchase agreement does not include stilt car parking spaces in the common area of amenities. The stilt car parking spaces is part of the common amenities and it cannot be treated to be a separate premises/garage which could be sold by the developer to any of the members of the society or an outsider.
10.Under MOFA, the developer’s right is restricted to the extent of disposal of flats, shops and/or garages, which means that any premises which is included in the Flat Space Index (FSI) can be sold by the developer/promoter. The stilt parking space is not included in the FSI nor it is assessable for the Corporation taxes.