case against discriminatory car parking charges

BEFORE THE REGISTRAR OF CO-OPERATIVE SOCIETIES, NCT, NEW DELHI

Arbitration Case No.18 of 2013

In the matter of:

Raminder Singh Sahota

S/O Sh. Amar Singh

B-404 Lovely Home CGHS Ltd

Plot-5, Sec-5, Dwarka, New Delhi – 110 075

Plaintiff

Versus

M/S Lovely Home CGHS Ltd

(through its Hony Secretary)

Mr. Rajiv Chopra

A-304 Lovely Home CGHS Ltd, Plot-5,

Sec-5, Dwarka, New Delhi – 110 075

 

Defendant

 APPLICATION OF PLAINTIFF FOR DECISION U/SEC 71 OF THE DCS ACT, 2003 FOR THE DISPUTE ALREADY DEEMED AS REFERRED.

IT MAY PLEASE BE

 

  1. That, M/S Lovely Home CGHS Ltd (R.No.1354 G.H.) (here-in-after called “the Society”) is formed by 107 members. The Society after taking pre-fixed amounts had allotted 107 HIG/MIG flats to its members. The Society after taking pre-fixed amounts has also allotted 26 Reserved Car Parking Space (here-in-after called “Reserved Car Space”) on First Come first Served basis to its members. The Plaintiff is one of the member (No.173) and Allottee of 1 Car Space of the Society. Another member and allottee of Car Space has also joined the Plaintiff and his authority letter is attached as Annexure-I. The Managing Committee is collecting money from the members through Demand Letter of the Society. Therefore, the Society is a Defendant and names & address of Managing Committee are attached as Annexure-II, as they are jointly responsible under Rule 101 of the DCS Rules, 2007.

 

  1. That, the Society had invited applications for allotment of Car Space in a prescribed application specifying certain terms & conditions and a copy of the same is attached as Annexure-III. The Society, on receipt of pre-fixed amount made allotment of Car Space specifying certain terms & conditions, to the applicant members through Allotment Letter and a copy of the same is attached as Annexure-IV.

 

  1. That, the Cost of HIG flat paid by the Plaintiff was Rs.13,33,000/- and present market price of the same is approx Rs.1,60,00,000/-. The cost for the Car Space paid by the Plaintiff was Rs.65,000/- and the present market price on the same ratio of the Reserved Car Parking space comes to approx Rs.7,80,000/-. The Society had already included the compensation for share of other members in the Common Space allotted and Maintenance of Car Space for ever. Therefore, the cost of the Car Space had already been kept very high. This was the only reason that 3 Car Spaces were still vacant when the Allotment of Car Space was made by the Society in 2004 under the signature of the Plaintiff, being the Hony Secretary of the Defendant, at that time. The Non-allottee of Car Space are 81 and allottee of Car Space are only 26. The Non-Allottee of Car Space have become Zealous of the Allottees of Car Space and therefore, having majority, have taken the laws into their hands and have threatened to make investment of Allottees of Car space of Rs.7,80,000/- to near zero.

 

THE CAUSE OF ACTION NOT BARRED BY LIMITATION

 

  1. That, Managing Committee issued a Circular dated 04.01.2012 without approval of General meeting (Annexure-V) and started demanding car space maintenance charges w.e.f. 01.01.2012. The cause of action arose while demand of “Car Parking Maintenance” charges was raised by the Society and is continuing. A copy last bill of the Society is (Annexure-VI).

 

 

SERVICE OF LEGAL NOTICE AND REPLY OF DEFENDANT

 

  1. That, strong objections were raised by Plaintiff & other Allottee AND thereafter a Legal Notice was also served. Copy of the same is attached as (Annexure-VII). The Defendant has replied to objections and has also replied to the Legal Notice to RCS vide their letter dated 13th September, 2012 & the same is attached as (Annexure-VIII).

 

 

DISPUTE IS DEEMED AS ADMITTED U/SEC 70(3) OF DCS ACT.

 

  1. That, the dispute in question has not been resolved within the stipulated period of 90 days U/Sec 70 & 129 of the DCS Act, 2003. Therefore, the dispute may be deemed to have been admitted U/Sec 70 and it may now be referred to “Arbitrator” for decision U/Sec 71 of the DCS Act, 2003.

 

FEE FOR REFERENCE OF DISPUTE U/SEC 71 OF THE ACT

  1. That, filing fee and process fee U/R 84 of the DCS Rules, 2007 has been paid in the account of “Settlement & Executive Service Expenses Fund” and its receipt is attached as (Annexure-IX).

 

 

VERSION OF THE PLAINTIFF

 

  1. That, the Managing Committee, has imposed charges in the following manner:-

 

Where the Car is Parked

Allottee of space

Non Allottee of space

Car in Reserved Space

NIL

No Applicable

1st Car in Common Space

100/200

NIL

2nd Car in Common Space

1000

200

3rd Car in Common Space

1000

1000

 

The Managing Committee has counted one Car parked in the Reserved Car Space as if it has been parked in the Common Space. To create confusion in the minds of every one, it collects Rs.100/- if the 1st car is parked under stilt and Rs.200/- if the 1st Car is parked outside the stilt, to make it visible as if they are giving concessions to Allottees of Car Space. In fact, no such provision exists in any law of the land. The fact is that, the managing committee is collecting car parking maintenance charges from Allottees by putting wrongful loss to the Allottees and giving wrongful gain to the 107 members.

 

  1. That, out of the Total Common Space, the Society planned and allotted 26 Car Space after receiving pre-fixed amount on certain terms and conditions. Therefore, out of Total Common Space now it is Reserved Car Space and Common Space. The Reserved Car Space gives exclusive & heritable rights to 26 Car Space Allottees but the Common Space gives un-divided & heritable rights to 107 members of the Society. Therefore, car parked in the allotted Car Space cannot be considered as car parked in the Common Space.

 

(Total Common Space – Reserved Car Space = Common Space)

  1.  That, Rule 89(7) and Rule 102(2) of the DCS Rules, 2007 clarifies that the maintenance charges are to be based on the membership and not on any other criteria of the kind. The said rule has clarified only one exception of flats on rental basis. Therefore, the Managing Committee cannot impose different charges for parking Cars in the Common Space on the basis of Allottee or Non-Allottee of Reserved Car Parking Space.

 

  1.  That, all charges imposed vide Circular dated 4th January, 2012 are illegal as they are not approved by the General Meeting. This has violated not only the bye laws of the Society but also the DCS Act, 2003 & the DCS Rules, 2007.

 

 

THE VERSION OF DEFENDANT

 

  1.  That, there is no reserved car space in the Society. All is common space. The Society is empowered to impose discriminatory charges as it is appreciated by many others (non-allottee of car space). The managing committee can impose and collect any charges without approval of general meeting.

 

  1.  That as per decision of Bombay High Court, Common Space cannot be sold or allotted. So there is no Reserved Car Space. Therefore the Managing Committee can impose the charges as it is wished by them, and majority is supporting and have appreciated their decision.

 

 

WHY THE DISPUTE AROSE; 10 YEARS AFTER ALLOTTMENT

 

  1.  That, recently the demand for car space has steeply increased. Non of the member of managing committee is having Reserved Car Space. So with their selfish wisdom they conspired with other Non-Allottee of car space and issued the circular imposing Car Parking Charges to put wrongful loss to Allottee of car space and for the wrongful gain to Non-Allottee.

 

 

COMMENTS ON REPLY OF SOCIETY TO LEGAL NOTICE

 

  1. 15.                 That, Para 1 of the Society reply to RCS dated 13.09.2012, it says that “Even if we presume that a parking space was reserved for him, mere such reservation and parking permission does not confer ownership rights on him as claimed by the complainant”

 

But, Sec 76 (2) of the DCS Act, 2003 entitles the members to hold allotted flat and plot or space with such title and interest and Sec 76(4) constitutes that it is a heritable and transferable right of immovable property, within the meaning of any law. Secondly, It is the term of the Society, on receipt of prefixed amount in application form and allotment letter that maintenance shall be done by the Society in the Reserved Car Parking. That does not convert it back to Common Space from Reserved Space. Thirdly, the dispute is over imposing financial charges by the Society, there is no decision of High Court of Bombay on imposition of financial charges or maintenance charges.

 

  1.  That, Para 2 of the Society reply to RCS dated 13.09.2012, the Society writes “Yes, the present MC after taking charge in mid September, 2011, in the right earnest has taken a conscious decision to impose “Car Parking Maintenance Levy” as decided in its MC meeting held on 4th November, 2011, after due deliberations on the agenda pertaining to this.” For correct appraisal of it, may we refer to Circular No. CIR/2011-14/002 dated 4th January, 2012 sent to all the members.

 

 

But, Section 93(1) of the DCS Act, 2003 on management of co-operative housing complex by co-operative societies, entitles the Managing Committee to impose such charges, only after getting the budget approved from the general meeting. Secondly, Rule 89(7) & Rule 102(2) of the DCS Rules, 2007, do not allow even the General body to impose financial charges discriminately as imposed by this Managing Committee.

 

NEED FOR IMMEDIATE INERLOCUTORY ORDERS U/SEC 71(5)

 

  1.  That, personal discussions with President, Vice President & Hony Secretary, letters of objections to Society and legal notice to the Defendant has not brought any change in the wisdom the Managing Committee of the Society. The Defendant has already replied to the Legal Notice to the RCS.

 

  1.  That, last General Meeting was held in August, 2011 and the Managing Committee did not hold general meeting even on representation made by 1/5th members of the Society. Copy attached (Annexure-IX)

 

  1.  That, representations made to RCS on Car Parking etc. etc. and also to hold general meeting signed by 1/5th members of the Society, have also proved a futile exercise. Copy attached (Annexure-X)

 

  1.  That, bills are being raised by the Society every month. The offence will continue to be committed, if injunction is not made. Therefore, in the interest of justice and equity during the proceedings of arbitration, Interlocutory Orders U/Sec 71(5) should be awarded stopping the Society to Charge Car Parking maintenance from Reserved Car Parking Space Allottees, till the final decision is awarded by the Hon’ble Arbitrator.

 

PRAYER

The Plaintiffs prays

(A)        That, the Society be ordered to stop making demands as per circular dated 04.01.2012 and refund the collected amount with interest.

(B)        That, the Society be ordered to adhere to the Bye Laws of the Society, the DCS Act, 2003 and DCS Rules, 2007,  in future.

(C)        That, the Cost of the suit and expenses of Plaintiff may be ordered to be recovered from the Managing Committee or Defendant.

(D)        That, Pass any other order in favour of the Plaintiff and against the Defendants in the interest of natural principles of equity and justice.

Plaintiff

 VERIFICATION

 Verified at New Delhi this  23rd day of April, 2013, that the contents of above Plaint are true to the best of my information and knowledge believed to be true.

 Plaintiff

1 Comment

  • Vinod says:

    Hi i am vinod like to know if i am a power of attorney holder and aggrement to sell holder and i have not transfered my share certificate can society mc give me no objection certificate so that i can get the flat free hold afer paying all dues from dda

    View Comment

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