2010 (10) TMI 1233 - HC - Indian Laws

Summary

Issues Involved:
1. Legality of the sale of car garages by members of the Society.
2. Rights of purchasers of flats on a power of attorney basis.
3. Transferability of car garages along with flats.
4. Validity of the resolutions passed by the General Body of the Society.

Summary:

1. Legality of the sale of car garages by members of the Society:

The Nav Nirman Cooperative Group Housing Society Ltd. ('the Society') was allotted 4.4 acres of land for constructing residential flats. The Society had 264 members but only 118 covered car garages were available. A draw of lots was held on 24.02.1991 to allot garages. Some members sold their flats and garages. R-1 to R-4 challenged the sale of garages by filing a claim petition u/s 60 of the Delhi Cooperative Societies Act, 1972. The arbitrator dismissed these petitions on 10.06.2004. However, the Delhi Cooperative Tribunal allowed the appeal on 08.06.2007, directing the Society to take legal action against original allottees who sold their garages and to allot them to waitlisted members. The Society's review application was dismissed as time-barred on 24.03.2008.

2. Rights of purchasers of flats on a power of attorney basis:

The sale of flats through power of attorney basis received judicial and statutory recognition as per Section 91 of the Delhi Cooperative Societies Act, 2003. This section allows persons who acquired property through power of attorney or agreement for sale to become members of the cooperative housing society by converting the property from leasehold to freehold and paying the transfer fee.

3. Transferability of car garages along with flats:

The court held that garages are incidental to the allotment of flats and cannot be sold separately. The enjoyment of the garage is incidental to the flat, and purchasers of flats on a power of attorney basis cannot be deprived of the enjoyment of the parking space. The General Body of the Society passed a resolution on 30.09.2007 treating the allotment of covered car and scooter garages on an ownership basis with heritable and transferable rights at par with the flats.

4. Validity of the resolutions passed by the General Body of the Society:

The decision to allot garages was taken in a General Body Meeting, binding on all members. The subsequent resolution on 30.09.2007 to treat covered car garages as heritable and transferable at par with flats is also binding. The court noted that the restriction on transfer is to "any other person or organization," implying that garages cannot be transferred separately from the flats. The court also referenced a Supreme Court judgment, distinguishing it from the present case as it dealt with statutory provisions in Maharashtra and conflicts between promoters and societies.

Conclusion:

The court set aside the impugned orders dated 08.06.2007 and 24.03.2008 of the Delhi Cooperative Tribunal, directing that in case of sale of flats on a power of attorney basis, rights in the car parking can also be transferred but not to an outsider who is not an owner of the flat. The petitions were allowed, leaving the parties to bear their own costs.