Common Areas cannot be converted into parking areas on the insistence of a society resident #indianlaws

Parking in the common area, would not convert such areas into parking areas. Such circulation and common areas are meant for the utilisation by all and cannot be appropriated, even temporarily by any person for the purposes of parking their vehicles.

It was held as essential to ensure that the circulation space, in the nature of path ways in the society is kept free and vacant at all point of time for the security of the members of the society to ensure access to emergency vehicles including fire tenders, ambulances and police vehicles at all points of time. The court further held that General Body is empowered to approve welfare schemes which are for the benefit of the members of the society as well as their families. It is in the welfare of all occupants in the society that free access unobstructed by parked vehicles is available to emergency vehicles to their flats. The sanctioned building plan permits parking only for one car per flat. The levy of penalty for bringing in extra vehicles has to be considered a welfare scheme for the benefit of the members of the society and their families and covered under the powers of the General Body within the stipulations contained in the statute and the Rules.

Issues of Parking within the society complex is becoming a growing issue of concern everywhere. Instant matter is a live example where one resident, permitted to have only one car parking started using common open place to park his number of other vehicles.

As the factual matrix unfolds, as per the allotment letter given to allottee of flat in the concerned housing society, each allottee, as per the sanctioned plan was to be permitted to have only one car parking as a license, that too in the basement and nothing beyond. Petitioner, in the instant petition was fully aware right from the beginning that so far as car parking in the society was concerned, he had a bare license to use only one parking space in the basement of the building and no other right at all. As apparent from the facts, with the passage of time, after allotment, members of the society started acquiring additional cars, which they parked on peripheral roads causing inconvenience to other occupants. Some residents started permitting even non-residents/relatives to park cars in the society, a gated complex. This caused such a nuisance and obstruction that on an occasion of a mishap when there was a fire in one of the flats, the fire tenders could not reach the fire because of such parking of vehicles in the circulation. Compelled by protests and quarrels over such illegal parking, the General Body of the society considered measures to discourage such parking of extra cars.

To control the above situation, the Society after conducting several meetings finally came out with a decision imposing charges on using multiple parking spaces. This was opposed on the ground that society cannot impose charges like these.

Court framed a very basic question for adjudication i.e. “Whether the petitioner has an enforceable legal right to park, multiple cars within the boundary of a cooperative society?”

The court observed that it is trite that a person must establish a legal enforceable right when he seeks adjudication before a court or legal forum to maintain a lis. For the purposes of maintaining the present challenge, the petitioner therefore, must first and foremost establish a legal right to park cars within the precincts of the cooperative society. The occasion for the society to take any measures to discourage parking of the cars would then not arise. There would be no occasion to impose the measures which were decided by the General Body of the Society in the General Body meetings.

The society had shown that the members of the society were permitted a bare licence (as a licensee simplicitor) to park a single vehicle in the basement, which licence is attached to the allotted flat. The petitioner was clearly not authorised by the society to park multiple cars within the boundary of the society.

It was further noted that merely because the petitioner, and others like him, may insist on parking in the common area, would not convert such areas into parking areas. Such circulation and common areas are meant for the utilisation by all and cannot be appropriated, even temporarily by any person for the purposes of parking their vehicles.

Common areas are intended for common use only meant for the utilisation by all members and no one member can appropriate the same to his personal use, even temporarily as for the purposes of parking of additional cars.

The lives of the residents of the complex ought to be given primacy over the safety of the vehicles. Therefore, the stilted area can be permitted to be put to use only in such a manner that in the event of an emergency/disaster whether, manmade or natural, the same does not adversely affect the security of the residents. Any obstruction to the free ingress/egress of vehicles, particularly, the vehicles of the Fire Department meant to undertake rescue operation in case of any emergency, is thus impermissible. Having regard to the fact that the water pipelines with necessary gate-valves go through the parking space, any obstruction of the said space would be disastrous as the same would delay access to the water pipelines and thus adversely affect the fire fighting operation to be undertaken in case of an emergency. Similarly, other rescue operations would also be hindered if the stilted area is permitted to be enclosed.

It was held as essential to ensure that the circulation space, in the nature of path ways in the society is kept free and vacant at all point of time for the security of the members of the society to ensure access to emergency vehicles including fire tenders, ambulances and police vehicles at all points of time. The petitioner has no right to park any vehicle or cause any obstruction in the common areas for this reason as well. The measures taken by the society to discourage this practice cannot be faulted.

The court further held that General Body is empowered to approve welfare schemes which are for the benefit of the members of the society as well as their families.

All measures to ensure the entitlement of the members of the society and their family members to a healthy environment and benign ecosystem as well as equal benefit of all common spaces in the society are purely in their best interest. It is also in the welfare of all occupants in the society that free access unobstructed by parked vehicles is available to emergency vehicles to their flats. The sanctioned building plan permits parking only for one car per flat. The levy of penalty for bringing in extra vehicles has to be considered a welfare scheme for the benefit of the members of the society and their families and covered under the powers of the General Body within the stipulations contained in the statute and the Rules.

The petitioner cannot block any of the peripheral roads or the roads within the society by parking vehicles. The same is in violation of the sanctioned building plan.

[Anup Mittal (HUF) vs. M/s. Kanungo Cooperative Group Housing Society Ltd. & Ors.]

(Delhi HC, 27.01.2016)

W.P. (C) 8219/2015 & CM No.17255/2015