Bombay High Court · Judgment · 27.09.2022
A promoter cannot hand the society’s stilt parking to an outsider
The Bombay High Court refused an injunction to a school that claimed 110 stilt parking spaces in a housing complex under an allotment by the promoter, holding that common areas belong to the flat purchasers, and imposed costs of ₹5 lakh.
Key points
- Stilt parking spaces and open areas are common areas, paid for by the flat purchasers; the promoter cannot sell them or grant their use to a non-member.
- Possession of the spaces since 2010 under the promoter’s allotment was not referable to any legally enforceable right, so no injunction could be granted.
- A clause in the deemed conveyance order did not give the promoter power to allot parking in defiance of the purchasers’ rights. The school’s petition was dismissed with costs of ₹5,00,000.
The facts
A school in Pimpri Waghere, run in a building put up by the same developer, used 110 stilt and podium parking spaces in the neighbouring residential buildings, allotted to it by the developer in March 2010 after flat agreements had been signed but before the societies were formed. The federation of societies obtained deemed conveyance in 2014. The school sued for an injunction to stop the societies from obstructing its use of the parking. The trial court granted a temporary injunction, the District Judge set it aside, and the school filed a writ petition.
What the Court held
The Court upheld the District Judge. Relying on the Supreme Court’s decision in Nahalchand Laloochand, it held that the cost of common areas is recovered from the flat purchasers, so only they have the right to use them; the promoter could not allot them to the school, which was not a member of any of the societies. The school had its own sanctioned covered parking, which it had converted into a hall. The allotment, made before the school was even functional, indicated collusion between the developer and the school. There was no prima facie case, the balance of convenience lay with the residents, and the school would suffer no irreparable loss. Noting years of police complaints and litigation against the residents, the Court dismissed the petition with exemplary costs of ₹5 lakh.
Why it matters
Where a developer has allotted parking or open spaces in a complex to an outsider, this judgment supports the society’s position that such allotments do not create enforceable rights. It was decided at the interim-injunction stage, so the suit itself remained to be tried.
Twenty-page judgment in English. This page summarises the decision for general information; it is not a substitute for the full text and not legal advice. Check whether the decision has since been appealed, modified or overruled.
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