DO TENANTS HAVE "PARKING RIGHTS" IN COOPERATIVE SOCIETY? - YES

Whether a tenant is entitled to enjoy car parking facility in a cooperative society, if provided for in the tenancy agreement?

 

Yes – Recently adjudicated by the Maharashtra State Co-Op Appellate Court in A.O.No 31/2020 in the matter of Brig. Shivender S. Kadan - vs - New Miramar Co-operative Housing Society Ltd.

 

Appeal arising out order passed on 05/11/2020 by the Ld Judge, Co-operative Court No.I, Mumbai in Dispute No.123/20201, against the Owner Brig. Kadan wherein the tenant was disallowed to use the car parking facility in the cooperative premises.

 

FACTS 


The petitioner/Appellant/Owner is a member and owner of flat No.12-B3 in the society. He purchased the said flat in 2006. Society has allotted him open to sky car parking in the society. 


Since 2006 till 2014 the said flat was let out on leave and license basis and the licensee of the said flat was being used/enjoyed car parking space allotted to the Owner. In 2014, the said flat was occupied by the daughter of the Owner for two years. She was also used/enjoyed the car parking space allotted to the Owner. Thereafter the Owner was residing in the suit flat and was enjoying the parking space allotted to him. In 2020 again the Owner has decided to let out the said flat on leave and license basis and accordingly let out the said flat by executing a registered leave and license agreement dtd. 29/09/2020. Society issued bill for the period from Oct to Dec. 2020 and charged non-occupancy as well as parking charges to the Owner. The licensee inducted as per leave and license agreement dtd. 29/09/2020 is enjoying the car parking allotted to the Owner and the society has charged the parking charges on daily basis and issued a bill to that effect to the Owner for the period 01/01/2012 to 31/03/2021 (in advance). In 2014 the society has adopted the parking policy in the AGM.  

 

In order to substantiate the grounds, Ld. Counsel for the Owner argued that eligibility of parking is qua membership and cannot transfer the parking right in favour of the licensee. The right is given only to enjoy the parking space for a temporary period i.e. license period. Society has charged non-occupancy as well as the parking charges from the Owner for the period October to December, 2020. The society has also charged non-occupancy as well as parking charges under the head of "Extra Daily Parking Charges" for the period 01/01/2021 to 31/03/2021 (in advance) to the Owner. He therefore submitted that the society has allowed the licensee of the Owner to park her vehicle in the compound of the society by charging extra daily parking charges. The bills on which he has relied upon has issued after adopting the car parking policy in the year 2014. The Trial Court failed to consider this aspect and rejected the application which is not legal and correct and hence the order impugned is liable to be set aside. According to him Vehicle Parking Policy adopted by the society is contrary to the provisions of bye-laws.

 

HELD:


The Trial Court mis-construed that the Owner is transferring his right in the parking space allotted to him to his licensee. 


The Trial Court failed to consider that the licensee has right to enjoy the facilities and amenities attached to the flat which he/she has taken on license basis till the license period is over. 


The Trial Court failed to consider as per the terms No.(1) of the license agreement dtd. 28/09/2020 executed between the Owner and the licensee is entitled to enjoy the parking space allotted to the Owner. 


The society has not taken any objection to the said condition. On the contrary the licensee is residing the suit premises as per the said agreement and is enjoying all the facility provided to the said flat.  


The Society, its servants, agents, or persons claiming through the society is hereby temporarily restrained from preventing the disputant and his licensee to use and to enjoy the parking space allotted to the disputant till final decision of the dispute.

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