9 June 2021
Often when units are given on leave and license basis to tenants, Co-operative Housing Society’s (CHS) prior approval is obtained, or intimation is provided, whichever is prevalent as per the bye-laws of the CHS. CHS’s however refrain from letting owners give their tenants a right to park in the car parking space appurtenant to such unit, to enable the CHS to rotate the car parking slots among its members only.
In an order passed by the Maharashtra State Co-operative Appellate Court (MSCAC), in the case of Brig. Shivender S. Kadan (Appellant) v. New Miramar Co-operative Housing Society Limited (Respondent) (NMCHS), the issue of allotment of car parking spaces to prospective tenants was discussed and appropriate orders were passed.
In the said case, the Appellant is the owner of a unit and a car parking space in NMCHS and since he is not resident in Mumbai and travels frequently, he has let out his premises on leave and license basis. However, NMCHS, in its replies to the case, has responded by stating that they have a policy of only letting members occupy car parking spaces and not their prospective tenants who essentially are not members of NMCHS. The Respondent claims that this policy was formulated in the Annual General Meeting of NMCHS in 2014, however, previously tenants were permitted to park in member parking slots. Further, NMCHS contended that the Appellant on behalf of the licensee is prima facie challenging a policy that has already been approved by a majority of votes in 2014. The trial court in its observation of the car parking policy approved by NMCHS made the following observation: “right of licensee to use the car parking is inferior in quality and lesser in gravity than any member in the society. The members are owners and shareholders being preferred to enjoy car parking space excluding rights of 3rd person”, hence the Appellant’s claim was dismissed.
The Appellant’s appeal questions the legality of the order passed by the trial court on the question as to whether “car parking allotted to members by the society is transferrable or not?”, being dissatisfied with the order, the Appellant challenged the trial court’s order before MSCAC. An err in understanding the issue on the part of the trial court was that the Appellant sought to transfer (to the licensee) the car parking space allotted to him , although it was the Appellant’s case that mere use of car parking space (by a licensee under a leave and license agreement) does not tantamount to a transfer and is only a temporary right to utilize the parking space.
MSCAC vide its order has considered that the trial court has misconstrued the use of car parking space viz a viz a transfer, which cannot be undertaken in favour of a licensee and hence has set aside the trial court’s order. Further, MSCAC has held that the provisions under law are clear and Development Control Rules framed under Maharashtra Regional and Town Planning Act, 1966 (Act) provides that tenant cannot be denied parking space. MSCAC has held that “car parking space allotted to owner can be used by tenant as he has full rights over it. Society should not discriminate, as car parking rules are framed under DC Rules and if the owner is eligible to get car parking space, then the tenant should also get the benefit of that space.”
Under the Act, “amenity” is defined under Clause 2 (2), which includes “roads, streets, open spaces, parks, recreational grounds, playgrounds, sports complex, parade grounds, gardens, markets, parking lots, primary and secondary schools and colleges and polytechnics, clinics, dispensaries and hospitals, water supply, electricity supply, street lighting, sewerage, drainage, public works and includes other utilities, services and conveniences”. Hence, it is already established that parking is a facility attached to the flat, therefore, a tenant is eligible for all the benefits the owner is eligible for. Any person residing in a CHS is entitled to all amenities attached to the flat. Per the leave and license arrangement between the Appellant and the licensee, it is clear that the licensee is entitled to enjoy all the benefits attached to the flat during the license term.
MSCAC has held that claims such as payment of daily parking fee charges, charged to the licensee, require more detailed review of documents and policies/by-laws of NMCHS. Although, an interim order has been passed that NMCHS, its servants, its agents, or persons claiming through them are temporarily restrained from preventing the Appellant and his licensee from using and enjoying the allotted car parking space until there is a final resolution to the dispute herein.
The case herein resolves the position with a distinct view on the existing issue of use of car parking spaces by tenants in the city as many CHS’s continue to cause varied impediments on this issue due to scarcity of available car parking slots.
For further information, please contact:
Kaveri Verma, Partner, Cyril Amarchand Mangaldas
kaveri.varma@cyrilshroff.com
