[sustran] Re: Important parking ruling by India's Supreme Court

[Karthik Rao-Cavale]

Attaching the fulltext of the judgment. Thanks, Paul, for bringing this to
our attention.

Having read the text, I am mildly discomfited by the idea of parking as a
"common area" - common areas should be areas everyone can use; a lot of
people cannot use parking because they (wisely) don't own cars. Here's my
analysis of the judgment.

-------

The court asks four questions:

"(i) whether stand
alone ‘garage’ or in other words ‘garage’ as an independent unit
by itself is a ‘flat’ within the meaning of Section 2(a-1) of
MOFA; (ii) whether stilt parking space/open parking space of a
building regulated by MOFA is a ‘garage’; (iii) If the answer to
aforesaid questions is in the negative, whether stilt parking
space/open parking space in such building is part of ‘common
areas and facilities’ and (iv) what are the rights of the promoter
vis-à-vis society (of flat purchasers) in respect of open parking
space/s / stilt parking space/s."

It was obvious that the court ruled out considering parking spots as "flats"
- to do so would have violated the particular act under which the housing
complex was registered. The second part is what worries me - a stilt parking
lot is not accepted as a garage simply because there are no walls to protect
a car! (I wonder that our courts are so eager to protect cars and so
reluctant to protect people - otherwise we wouldn't have tolerated so many
homeless people in India) And thus we have the absurd conclusion that stilt
parking is a common area. A ridiculous comparison is made -

"Can a promoter take common
passage/lobbies or say stair case or RG area out of purview of
`common areas and facilities’ by not prescribing or defining the
same in the `common areas’?"

Of course lobbies and stair cases are common areas! Everyone uses them. But
car parking is not common! Cars can't share - didn't you know that?

-----------

But I am not too worried. This judgment essentially hinges on a very
limiting interpretation of the word 'garage' in the MOFA (Maharashtra
Ownership of Flats Act). It does not apply to other states, and it does not
apply to housing complexes registered under other acts (though the number of
MOFA complexes in Mumbai is not small at all). And all it takes to restore
stilt parking to the status of "garage" is a minor amendment in the
Maharashtra legislative assembly that garages don't need walls (and I hope
they will also legislate that humans do need walls - and a roof - but that
is a different story). Given that builders are so heavily represented in our
legislature, I have no doubt that this will be done very very soon.

Even so, the act itself does not allow parking unbundling to the extent that
parking spots can be sold and bought in the open market. It only allows for
these spaces to be sold as a part of another flat (as a garage) for extra
compensation. Real parking unbundling - as I understand it - will need a
major revision to the MOFA.

I hope this helps.

Regards,
karthik

On Wed, Sep 1, 2010 at 9:47 PM, Paul Barter <paulbarter at nus.edu.sg> wrote:

> Yesterday there was an important parking ruling by India's Supreme Court.
>  My question is: Does it outlaw 'parking unbundling'?
>
> India's Supreme Court ruled yesterday that developers cannot sell parking
> spaces as independent real-estate units. The court ruled that parking areas
> are 'common areas and facilities'. This upholds an earlier Bombay High Court
> ruling.
>
> I fear that this ruling may be misunderstood to mean that unbundling of
> parking has been forbidden completely. Some may even claim that charging for
> off-street parking has been outlawed.
>
> But I would argue that India's Supreme Court has ruled out only ONE KIND OF
> UNBUNDLING. It forbids the option of buying and selling parking separately
> as real-estate.
>
> For example, managing parking as 'common areas' is compatible with having a
> system of parking permits for tenants. These can be priced of course.
>  Managing parking as 'common area' is also compatible with deciding to
> charge visitors for parking, which would be most relevant for commercial
> complexes.
>
> See
> http://www.reinventingparking.org/2010/09/important-parking-ruling-by-indias.htmlfor more information.
>
> Any thoughts on this from India? Have I interpreted this ruling and its
> implications correctly?
>
> Paul
>
>
> Paul A. Barter | Assistant Professor
> LKY School of Public Policy | National University of Singapore
> 469C Bukit Timah Road | Singapore 259772
> Tel: +65-6516 3324 | Fax: +65-6778 1020  | paulbarter at nus.edu.sg
> http://www.spp.nus.edu.sg/Faculty_Paul_Barter.aspx
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-- 
karthik <http://vishwakarman.wordpress.com>
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