The February 9 judgment said that the only question that arose for consideration was “whether the licensee can enjoy the alloted parking space which is allotted to…the member of the society?” It added, “A car parking space allotted to the owner can be used by the tenant as he has full rights over it.”
“As per Development Control Rules framed under the MRTP Act, 1966, the tenant cannot be denied parking,” stated the judgment in an appeal filed by a member of the south Mumbai society.
The February 9 judgment by appellate court member S S Kakade said, “The society should not discriminate, as parking rules are governed by DC Rules and if the owner is eligible to get parking space, then the tenant should also get the benefit of that space.”
Retired Army Brigadier S S Kadan (68) had appealed against a cooperative court order last year rejecting his plea for interim relief. He had challenged the society’s 2014 car parking policy as “arbitrary and unreasonable”.
When he decided last year to let out his flat, he said the society showed him the 2014 policy that sets out priority for car parking and rejected his request to permit his licensee to park a car in the society premises.
The society has 110 members and 101 parking slots, he said. The society, though, said there were only 70 parking slots for 110 flats.
His counsel, Aditya Chitale and Prathamesh Bhosle, said Kadan purchased a flat in the building in 2006 and was allotted an open-to-sky car parking slot by the society. He sought a declaration that his licensee was entitled to use his open car parking slot in the society premises. He also sought to prevent the society from obstructing such prospective tenants from using his parking space for a temporary period.
The society, through law firm AAK Legal, argued its car parking policy approved by the AGM was fair to all members and “well within the ambit of Bye Law 78 (B), which specifically states that if a society has the right to allot parking, then no other member can transfer or assign it to any other person”.
The society’s counsel said priority to parking space was based on three preferences–first to members not allotted any, second to members who owned a second vehicle and also have one parking, and third is for temporary parking to guests and tenants, provided space is available.
The society admitted the Brigadier’s licensees were allowed car parking till 2014. From then, till 2020, the family occupied it.
The court said the flat owner was only seeking relief to “not to prevent his licensee from enjoying’’ his parking space for a temporary period, “hence the question of non-availability of space as alleged by the society does not arise”.
“The trial court failed to consider that the licensee has the right to enjoy the facilities and amenities attached to the flat, which he/she has taken on a license basis till the license period is over,’’ said the cooperative appeal court judgment, setting aside the trial court order. The judgment also said trial court failed to consider that since September 2020, the society allowed Kadan’s licensee to park her vehicle in the slot on payment of daily charges.
It also said the flat owner has a right to seek inspection of the society records free of cost under the Maharashtra Cooperative Societies Act, and directed the society to allow him such inspection.
The court directed the trial court to decide the dispute over levy of any penalty, other than appropriate parking charges, expeditiously, within eight months.