TMI Blog2010 (10) TMI 1233X X X X Extracts X X X X X X X X Extracts X X X X ..... ach garage at ₹ 30,000/-. In view of there being less garages than the applicants, a draw of lots was held on 24.02.1991 and the successful persons were allotted garages. Soon thereafter, one of the members surrendered a car garage which was allotted to the first member on the waiting list since the waiting list was maintained of the members who had not been allotted garages. 2. Flats allotted by DDA and by societies in Delhi were sold on a power of attorney basis in large numbers. This modus was adopted on account of there being restriction on transfer of such flats (or plots) and thus agreement to sell, GPA, SPA, Will etc. were a set of documents which were executed for transfer of such flats/plots. In order to regularize such transfers, a scheme was propounded for conversion of leasehold rights into freehold on payment of certain premium. The premium was 33 per cent larger for flats sold on a power of attorney basis. 3. Some of the members of the Society sold the flats. The car garages were also sold where a member had been allotted such a garage. R-1 to R-4 in WP(C) No. 588/2009 challenged the sale of garages by filing a claim petition under Section 60 of the Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto account is that these garages (which are called by the original claimants as stilt parking) are incidental to the allotment of flats. It is not as if these car parking spaces have been sold as separate spaces, but since the parking spaces were not sufficient in number, matching the number of flats, a draw of lots was held to allot the parking spaces. This is the fairest method and no doubt has been cast on such allotment of parking spaces. The minutes of the Special General Body Meeting held on 24.02.1991 placed before us show the drawing up of a list of 118 successful members and 68 members were placed on the waiting list. The original claimants also did not challenge the same and thus everybody was satisfied with the process of allotment of the garage spaces. 8. The sale of flats through power of attorney basis has not only received judicial recognition but statutory recognition as per Section 91 of the Delhi Cooperative Societies Act, 2003 which reads as under: Special provision for regularisation of occupancy right of persons who have acquired such a right through the instrument of power of attorney or agreement for sale. 91. Any person who has acquired property on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice at this stage that both the Society as well as the other set of petitioners before us do not dispute the fact that there can be no separate sale of these garage spaces to third parties who are not allottees/occupants of the flats. It is thus not permissible for the owners to enjoy garages de hors the enjoyment of their flats. 12. The decision taken to allot these garages was in a General Body Meeting of the Society which is binding on all members including the original claimants, who participated in the meeting. Not only that, the subsequent resolution of a General Body has been brought to our notice albeit after the initial decision of the Appellate Tribunal dated 08.06.2007 when on 30.09.2007 the following resolution was passed. Resolved that in modification to all earlier resolutions on the subject, allotment of covered car and scooter garages be treated on ownership basis with heritable and transferable rights at par with flats. 13. The aforesaid resolution to the extent it is treating the covered car garages as heritable and transferable at par with the flats is thus also collective decision of the members of the Society and binding on all the members. No doubt, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g space (big) - ₹ 7,500/- (iv) covered scooter parking space (small)- ₹ 5,200/- (v) open car parking space - ₹ 7,000/- (e) An annual license fee of ₹ 5/- for covered car parking, ₹ 2/- for covered scooter parking and Re.1/- for open car parking space shall be paid by the members to whom these parking spaces are allotted for each financial year or part thereof on or before 30th April each year. (f) The members, who have been allotted parking space on license basis, shall not transfer this right to any other person or organizations. (emphasis supplied) Learned Counsel, thus, submits by reference to Clause (f) aforesaid that the members who have been allotted parking space on license basis have no right to transfer the same to any other person or organization as per the decision of the GBM. 17. In our considered view, a proper meaning has to be given to this decision and the objective is clear that the restriction on transfer is to any other person or organization . This would imply that a person cannot hold the flat and transfer the car parking space/garage separately and create rights in the same. Third parties who are not members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis is that an occupant who was originally successful in the draw of lots for the garage should be able to transfer the rights of enjoyment of the car parking space along with transfer of the flat when it so occurs. 20. In the end, learned Counsel for the contesting respondents sought to contend that there were some transfers made not to the same person who purchased the flat on a power of attorney basis but to another flat owner in the Society. Such a course of action could have been doubtful but in view of the resolution of the Society passed in the General Body Meeting held on 30.09.2007 to treat the covered garages on ownership basis with heritable and transferable right at par with the flats, no grievance even in that behalf can be made. It is, however, without doubt that the garage space has to go only to a flat owner in the Society and not to any third party who is an outsider. 21. We thus set aside the impugned orders dated 08.06.2007 and 24.03.2008 of the Delhi Cooperative Tribunal making the Rule absolute directing that in case of sale of the flats on power of attorney basis, rights in the car parking can also be transferred but the same cannot be transferred to an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
