National Consumer Redressal Forum has stated that basement parking, in spite of all security, does not qualify as a garage. Justice Jain, who was presiding over the case involving numerous complaints from homebuyers of DLF Universal Limited’s project “DLF Capital Greens”, stated that, “A basement does not lose its character as such, merely on account of use to which it is put. Similarly, a parking area is an area meant for parking of vehicles, wherever such areas may be located… the basement used for parking the cars, in my opinion, does not qualify as a garage since an individual allottee cannot put his own lock and key on It and despite the security provided at the entrance of the basement and elsewhere in the building, it cannot be as safe as an individual garage which can be locked by its allottee.”

Besides ruling delay in the project, the buyers also objected to exclusion of facilities such as club house and basement parking from common areas. The Developer stated that it is a three level basement parking, which affords full protection and shelter to the car not only from the top but also from the three sides and is equipped with security cameras and manned by security personnel inside the basement, outside the basement and on the gates of the Complex and therefore, is much superior to a standalone garage, which is either open from the front or is protected only by a lock.

Both DLF and the complainants relied upon the decision of the Supreme Court in Nahalchand P. Ltd vs. Panchali Co-op Housing Society Ltd in which case the developer had provided stilt parking space/ open parking and had declared that the said parking would belong exclusively to home owners.

Justice Jain also pointed out that as per the decision of the apex court in Nahalchand, a) the standalone garage is not a flat, b) every space for parking motor vehicle is not a garage, c) for the purpose of the Maharashtra Ownership of Flat Act (MoFA), the term ‘garage’ must be considered as would be understood by a flat purchaser and d) a garage must have a roof and wall on three sides.

Justice Jain stated, “… the basement is included in the definition of common areas and facilities given in Section 3(j) of the Delhi Apartments Ownership Act. The parking areas are also expressly included in the definition of common areas and facilities. Delhi Apartments Ownership Act does not exclude, from the purview of the term common areas and facilities, a basement, which is used for car parking. As far as the term ‘garage’ used in Section 3 ( c) of the Delhi Apartment Ownership Act is concerned, this in my opinion, contemplates a covered space, which is provided for the exclusive use of a particular apartment owner and the other apartment owners have no right in such a space, which necessarily needs to have roof and covered at least on three sides. The developer cannot be allowed to charge for the common areas and facilities which he deliberately did not include as a part of the said areas and facilities.

On Club charges, also, the Commission held that since a club is meant primarily for providing sports and recreational facilities to its members, it would form part of the common areas and facilities under the Delhi Apartments Ownership act.

Link to judgment: Capital Greens Flat Buyer Association v. DLF Universal Ltd.

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