2010 (10) TMI 1233

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....tions were invited from the members on 26.06.1990 estimating the cost of each garage at Rs. 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 sal....

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..... 7. In our considered view, the first aspect which must be taken into 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 at....

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....ower of attorney basis can be deprived of the enjoyment of the parking space. 11. We may notice 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 th....

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.... space (big) - Rs. 30,000/- (ii) covered car parking space (small) - Rs. 26,250/- (iii) covered scooter parking space (big) - Rs. 7,500/- (iv) covered scooter parking space (small)- Rs. 5,200/- (v) open car parking space - Rs. 7,000/- (e) An annual license fee of Rs. 5/- for covered car parking, Rs. 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 ....