Extra Car parking charges/Penalty imposed by Society are “declared illegal”
RWAEVERGREENAPTS Dwarka
Dear All,
For awareness / beneficial to all members, pls go through below recently made judgment on imposed Charges by society for extra car parking “which stand illegal”.
Below is the text version of Judgment and attached are the original copy in PDF
Format for your reference.
Thanks
IN THE COURT OF MR. SC KHATRI, ARBITRATOR APPOINTED BY
THE REGISTRAR OF CO-OPERATIVE SOCIETIES GOVT OF NCT OF DELHI,
B-84 (G.F.) HARI NAGAR, CLOCK TOWER, NEW DELHI-110064
Arb.Case No.73/GH/DR/ARB/2012-13 Dated: 04th March, 2014
In the matter of
Sh. Anup Mittal (HUF)
Through Mr. Anup Mittal, Karta
R/O 561 Kanungo Apartment
71 IP extension, Patparganj,
Delhi- 110092
Claimant
VERSUS
(1). M/S Kanungo CGHS Ltd
Through its Hony Secretary
R/O 71 IP extension, Patparganj,
Delhi- 110092
(2). Mr. JB Goel
President, M/S Kanungo CGHS Ltd
R/O 401 Kanungo Apartment
71 IP extension, Patparganj,
Delhi- 110092
(3). Mr. Ramesh Aggarwal
Hony Secretary, M/S Kanungo CGHS Ltd
R/O 131 Kanungo Apartment
71 IP extension, Patparganj,
Delhi- 110092
(4). Mr. KK Pandey
Treasurer, M/S Kanungo CGHS Ltd
R/O 413 Kanungo Apartment
71 IP extension, Patparganj,
Delhi- 110092
Defendants
AWARD UNDER SECTION 71 OF THE DCS ACT, 2003
1. The present petition has been filed by the Claimant against imposing of “Extra Car Parking Penalty” by the Defendants.
2. The Dy Registrar (Arbitration) had heard the petition U/Sec 70 of the DCS Act, 2003 and has ordered vide his orders dated 30th October, 2013 that the petition deserves to be heard by an Arbitrator and Claim of the Claimant along with reply of the Defendants were forwarded U/Sec 71 for adjudication.
3. Both the parties were issued summons for 24.12.2013. Shri Raminder Singh Sahota, Ld Counsel appeared for the Claimant and Shri. Rajiv Vig, Ld counsel appeared for the Defendants. The Defendants and also the Claimant filed their submissions before me and proceedings were concluded after hearing final arguments cum discussions on 01.03.2014.
BRIEF FACTS OF THE CASE
4. As per Claimant the Society has imposed Extra Car Parking Penalty/Charges through a resolution passed in the general meeting in September, 2005 and it continuing to demand at enhanced charges from the claimant till date in the monthly demand letters. In the last AGM held on 01.10.2012 the general meeting fixed the extra car parking charges as under:-
1st Car – No charges
2nd Car – Charges to be increased from Rs.200/- to Rs.300/- p.m.
3rd Car – Charges to be increased from Rs.700/- to Rs.2500/- p.m.
4th Car – Charges to be increased from Rs.1500/- to Rs.5000/- p.m.
5. The Defendant society in their written submission stated that DDA had allowed and approved the construction of basement in the Defendant society. The space in the basement can accommodate only 209 cars which mean one car parking space for each of 209 members of the Society. The society stated that the Claimant had been paying without any objection or protest all the charges levied by the general body meeting of the society i.e. maintenance, extra car parking charges, electricity charges since 01.10.2005 onwards. The society stated that it has not collected the money illegally. The general body is supreme body to take any decision and it is the decision of the general body meeting and therefore, it should be legally abided by everyone. The Society further stated that, the Claimant is defaulter and has not been paying any maintenance, electricity and car parking from 18.11.2012, therefore, he should not be heard in this case.
6. The Claimant stressed that the decisions of the AGM are bound to be within the framework of the laws of the land. The general meeting is not above the law. In the present decisions of the society, the decision is against the Main Objects stated in the Bye Laws of the Society and they are also against the DCS Act, 2003 and the DCS Rules, 2007. The Claimant has submitted that the Defendants have imposed Car Parking Penalty/Charges illegally. The Defendants have been increasing and demanding the charges every month and threatening to recover through legal means provided under the DCS Act, 2003. The claimant has alleged that the Defendants are not a legislature, executive and judiciary to frame laws and then recover from the Claimant and then also impose a penalty. The Defendants are bound by Constitution of India, the DCS Act, 2003, the DCS Rules, 2007 and Bye Laws of the Society registered with the Registrar of Co-operative Societies at New Delhi. None of these laws permit the Defendants to impose extra car parking charges penalty or charges on the claimant for parking his cars in the common space of the Society.
7. During the course of proceeding on 24.12.2013, the Claimant was directed to produce the membership certificate and Respondent was directed to submit Bye Laws of the society and break of Car Parking Penalty / Charges, month wise and expenses made by it on Car Parking and any other document they wish to file in support of their defence. The claimant filed all the documents but the Defendants did not file the directed information on 06.01.2014, 08.02.2014, 15.02.2014 and 01.03.2014 and due to this reason the Society has waived their rights to produce say anything as per Arbitration & Conciliation Act, 1996.
8. During the course of Arguments and also the submissions the Claimant produced the Bye Laws of the society in which the Defendants are to confine themselves to Sub para (vi) and (vii) of the Main objects of the Society. The claimant further argued that Defendants are to provide common maintenance & facilities charges only and that too they are required to estimate the expense in budget and then get it approved from the General Meeting. The Claimant further stressed that under Rule 89(7) of DCS Rules, 2007 the cost of maintenance, repair and replenishment in the common areas and facilities shall be apportioned amongst the members, the power of attorney holders and holders of conveyance deed whoever may be having occupancy rights of the plot or flat or garage etc. The claimant further stressed that under Rule 106 of the DCS Rules, 2007 the management of co-operative housing complex by the co-operative housing societies, the maintenance charges is one fund and one cannot divide the work of employees or security guards toward which function of security or caretaking the expense is being made. Even the Defendant Society could not file the total amount collected from the members and expenses made by them on extra car parking penalty. Secondly, the Common Parking & garages is included in the maintenance charges as specified under Sub Para (xx) of Rule 106(5) of the DCS Rules, 2007.
9. The claimant further stressed that the Defendant Society has not even replied on account of Car Parking Penalty Charges to the application of the Claimant U/Sec 139(1) and Rule 165(1) of the DCS Rules, 2007 till date.
10. The claimant further stressed that the Defendant Society is co-operative group housing society and not a business generating income society. The claimant provided a document under which one month income only from car parking has been to the tune of Rs.1 Lac and demanded to summon the records of the society to scrutinize the records. However since the Society did not provide any documents and has waived their right, it is taken that the claim of the claimant is correct in all respects.
After going through all the submissions and hearing arguments of both the parties I, hereby conclude that:
(A) The Car Parking Penalty/Charges imposed by the Society are illegal and therefore voidable. The Defendant Society is directed to revoke all the Car Parking Penalty/Charges imposed on the Claimant and they are to return the charges collected from the Claimant within 30 days or adjust these in further demands of the society.
(B) The Defendant Society is further directed to pay interest at the rate at of 9% on all extra car parking penalty/charges collected from the Claimant, within 30 days or adjust these in further demands of the Society.
(C) The Defendant Society has to pay litigation charges of Rs.11,000/- to the claimant within 30 days.
Given under my hand and seal on this 4th day of March, 2014.
SC KHATRI
ARBITRATOR
Saha, Santanu 1. (NSN - IN/Noida)
Dear All,
Great sharing !
We will follow the same.
Please , we need to step forward for water problem now.
Thank You
Santanu
Flat-19.
Category :- C
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RWAEVERGREENAPTS Dwarka
From: RWAEVERGREENAPTS Dwarka <rwaeverg...@gmail.com>
Date: Wed, Aug 20, 2014 at 5:49 PM
Subject: [Evergreen RWA] Extra Car parking charges/Penalty imposed by Society are "declared illegal"
Viren
Can you please send me your phone number?
I stay in flat 147.
Regards
Viren
From: RWAEVERGREENAPTS Dwarka
Sent: 10/9/2014 7:11 PM
To: rwaevergreenapts
Subject: Fwd: [Evergreen RWA] Extra Car parking charges/Penalty imposed bySociety are "declared illegal"
anil
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arul....@gmail.com
1)Maintenance charges 1000per month (no AGM approval)
2)Lift maintenance charges (though lift is under one year warranty)
3) Additional car charges ( court verdict is very clear )
Arul prakash
162
Viren
Except for car parking charges.
I guess we need to believe that society cant be managed in just 700rs maintenance also lift is under warranty but it runs on electricity.
Its my thought if somebody has more calculative thoughts then I am open to follow.
Regards
Viren
Saha, Santanu 1. (NSN - IN/Noida)
Hi All,
Seriously we have to implement some proper management.
I think, mismanagement is too much.
Water is a big problem over here, long run it may be a health issue for our children.
I think, we should keep separate summer pump water/ MCD water. So that we can issue salty water for washing purpose and MCD water for taking bath other purpose.
We also can discuss with DJB in dwarka ,as we are entitled for two tanker also , which can add up with MCD water.
Thanks
Santanu
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Sanjeev Thakral
Viren
Regards
Viren
RWAEVERGREENAPTS Dwarka
Viren,
First and foremost, you have to understand the governance & define system by RCS for our residential places, where no one come up with any “X” amount and expect from well educated people to starting paying against the charges without have clarity on the process to follow. Even the person with basic knowledge knows that under the DCS act, no one liable to pay any charges against any services till the time it have approved in AGM.
You must be aware that our current management was even denied to initiate the AGM by RCS with the fact that they are running ILLEGALLY forgot about having the approval on any charges. On the top they are demanding on those charges which is even denied by Govt Authorities.
If you understand the current situation then except from General Maintenance we shouldn't be pay any single paisa or neither they have rights to ask money against any services.
In regards to your point of open discussion on charges, which is none other than a AGM and that will only be performed with those people who have authorized to operate the society functions.
Please keep watching this space and will share more judgments for your kind reference to stay in line with stated guidelines.
Kind Regards,
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Viren
I don't deny your idea and am 100% ready to follow the rules. I am sure you are more aware of rules than me.
What my concern is most of the members are not realizing that facilities need expenses. This we have observed when society lifts were in progress. People were not getting agreed about the expense of lift.
Again I am with you and other members and ready to follow as per RWA but we need to understand the funds limitation and facilities we want to avail.
Regards
Viren
arul....@gmail.com
Arul
Saha, Santanu 1. (NSN - IN/Noida)
Hi All,
Why not we fix up a meeting & make list of all the challenges.
We can start with this simple task.
Virenji, could you please organize the same on coming Saturday.
Thanks
Santanu
jayaraman-165
RWAEVERGREENAPTS Dwarka
Hello Viren & All,
Thanks for your active participant on raising many points which defiantly required resolutions to have better services for each of us and also help in lifting the awful face of society.
We people do understand the importance of charges right amount against the services for better living life. But it’s equally importance for each of us to give the funds to those people who are authorized to manage the accounts and provide corresponding evidence against the said charges.
Viren, If you put yourself in Management shoes then technically there are no action which can’t be planned in advance and have in agreement before rather than come up their own with any amount. It’s responsibility of management to encourage and route all activities under the guidelines by RCS which they ignoring because they himself knows that they are operating ILLEGALLY and hence a reason keeping all rules aside they just sending the demand letters and more importantly some of our educated people have started paying as well.
They don’t bother to put outstanding list twice in a week on notice board but on the another hand keeping all LEGAL NOTICES / COMPLAINTS received for them in secure drawer. They have found that there is no clear opposition unity in society and people don’t have time to talk on authenticity of current team and happy to pay the money whenever asked. This atmosphere suites them and sorry to say but in today situation we have made our minds to think and seeing the things in the way management want to show us (seeing the things from their eyes).
We have a ROOT issue in current situation which needs to be sort out as earliest. All others things will be on track once we have new team on board who will have the rights to drive our funds in agreement with evergreen stakeholders.
Thanks & Regards,
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