Common areas cannot be sold by the Builder/Promoter but the Co-operative Society can regulate such spaces to allow parking to the members of the society.

The Supreme Court in Nahalchand Laloochand Private Limited v. Panchali Cooperative Housing Society Limited held as under :

“The question then is as to whether the stilted portion or stilt area of building is a garage under MOFA. A stilt area is a space above the ground and below the first floor having columns that support the first floor and the building. It may be usable as a parking space but we do not think that for the purposes of MOFA, such portion could be treated as garage. Selling car parking separately illegal in housing co-operative societies in West Bengal and Kolkata has already been decided by the Hon’ble Supreme Court of India. To learn more, you should consult one the best property lawyer in West Bengal who can guide you if such disputes arise in your housing society.

….The promoter has no right to sell any portion of such building which is not a “flat” within the meaning of Section 2(a-1) and the entire land and building has to be conveyed to the organisation; the only right which remains with the promoter is to sell unsold flats. It is, thus, clear that the promoter has no right to sell “stilt parking space” as these are neither a “flat” nor appurtenant or attachment to a “flat”.”

But we have already held that `stilt parking space’ is not covered by the term `garage’ much less a `flat’ and that it is part of `common areas’. As a necessary corollary to the answers given by us to question nos. (i) to (iii), it must be held that stilt parking space/s being part of `common areas’ of the building developed by the promoter, the only right that the
promoter has, is to charge the cost thereof in proportion to the carpet area of the flat from each flat purchaser. Such stilt parking space being neither `flat’ under Section 2(a-1) nor `garage’ within the meaning of that provision is not sellable at all.

The promoter has no right to sell any portion of such building which is not `flat’ within the meaning of Section 2(a-1) and the entire land and building has to be conveyed to the organisation; the only right remains with the (2008) 4 SCC 144 promoter is to sell unsold flats. It is, thus, clear that the promoter has no right to sell `stilt parking spaces’ as these are neither `flat’ nor appurtenant or attachment to a `flat’.

Stilt parking or open parking of any building has to be regulated by a co-operative housing society when formed and under its bye-laws. General Body of a co-operative housing society has got every right to dispose of or to make an arrangement of parking of the vehicles of the members/flat-occupiers by laying a policy to that effect in its general body meeting and the Managing Committee of such co-operative housing society has to carry out the directions given in this behalf by the general body of the society.

The Bombay High Court held in M/S. M. Mamotra Associates vs Cooperative Societies Act on 3 January, 2013 (2010) 9 SCC 536 that:

Clause (21) reads as under –

“21. The Buyer of the respective Flats shall be entitled to use and occupy their respective flats only and will not claim any rights in the terraces, staircase, open spaces, compound, parking places, stilts, Garages, etc.”

From this it is clear that the claimant was fully aware of the fact that what he could sell to the new flat purchasers was only the flats and nothing else. Moreover, stilt car parking space is an immovable property and if at all it is to be sold, it is to be sold by the registered Agreement, as required under the provisions of the Transfer of Property Act. No such agreement has been produced by the Claimants. This was obviously because he was fully aware that he has no right to sell the stilt car parking spaces.

For more details contact one of the best property lawyers in West Bengal here.