Our complex in Thane is having 5 bldgs. Each bldg is a separately registered society. It is now 10 years old. An Apex body (not registered as on date) is formed and it manages the common areas of entire complex such as Gardening, Security, Club house and Parking. Apex body registration is under process. Though Apex body is not registered it is functioning smoothly. However from the legal angle whether we can draw a parking policy and implement it without hassle.
Today in the complex members/tenants having four wheelers are parking the vehicles where ever parking space is available either inside or outside the complex. Since the vehicles are increasing day by day Apex body thought of charging “Parking charges” to the residents. However since there is a space constraint it may not be possible to allocate parking slot for each member. In view of this a study was taken. The following points emerged –
- One parking will be allowed to members either in stilt or open area.
- 2nd vehicle & subsequent vehicle of the member to be parked outside.
- Tenant has to park the vehicle outside the complex except where member has allowed to use his stilt. ( what is the legal position of Tenant in this respect) GB approval will be taken.
- Complex will draw a parking layout and parking lot will be painted and numbered.
- Residents to park the vehicles in the marked slot only.
- If the number of vehicle is more than the available slot, then allotment will be done on “Lot” basis only when number of vehicles increases to 10 nos. Allotment will be done on yearly basis. This is subject to GB approval.
- Parking sticker to be affixed on the vehicle and hope we can make it mandatory in order to check unauthorized vehicle in the complex.
A Housing society is nothing but pool of members. Apex body is nothing but representative of members.
Some members feel that since they are owners of the flat the open area belongs to flat owners, Hence they cannot be prohibited from parking vehicle in the open area inside the complex & they will not abide the GB resolution. How this can be tackled and what is the legal position on this?
If the Parking policy is adopted by the GB, where we can get it registered this document and make binding on the members.
Whether Penalty can be levied for failure of following rules by the residents and visitors?
I C Naik
This is an excellent example of community living in complete harmony. Since the Apex body is not registered its bye laws (which would have these parking Rules) are not registered. Bye laws are contracts among the members. They are binding on those who have signed. The members who apply for registration of a cooperative society also sign the bye laws (statutory requirement) and hence they bind themselves to abide by them.
If anybody breaches a bye law (breach of an agreed contract) penal measures (System to levy agreed penalty) are also agreed as part of bye laws, Those who are admitted to membership after registration are required to undertake to abide by the bye laws. Thus without registration of bye laws, in terms of the members’ consent to abide by the same are enforceable. All Contracts are not registered contracts so is the case with bye laws. If there are disputes members can get a solution by an internal arbitration process. If they are not registered then remedies will be by way of suit under Contract Act but on account of multiple number of parties it is very cumbersome. Here a simpler mechanism is to go through short cut of Registrar’s intervention and then cooperative court.
So as long as members agree to follow parking rules and failure is to be sorted out by internal arbitration absence of registration does not matter.
As for common area ownership it is true that flat owners are joint owners but that does not give exclusive right to any one owner and common area is open to access to every member under agreed common rules.
For your satisfaction purposes every society’s GBM can record parking Rules so that every member of the unregistered Apex Society has to follow same set of rules. Breaches could be handled at Apex level but the concerned society also ratifies and takes it on its own record to accord a formal recognition.
The Committee of your Unregistered Apex Society deserves to be congratulated for maintaining an excellent harmony an example of excellence in cooperative living in its own way www.indian cooperative.com wishes you the Best of luck in maintaining the same for years together.