Stilt Parking Spaces in Indian Real Estate Law

Stilt Parking Spaces in Indian Real Estate Law: Doctrinal Foundations, Judicial Trends, and Regulatory Challenges

Abstract

Stilt parking spaces—areas located at ground level yet structurally integrated into multi-storeyed buildings—pose intricate questions at the intersection of property, consumer, and planning laws in India. This article critically examines the statutory regime, leading jurisprudence, and policy implications governing stilt parking, with particular emphasis on the Supreme Court’s landmark ruling in Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd.[1] and its subsequent judicial and legislative reverberations under the Real Estate (Regulation and Development) Act, 2016 (“RERA”) and municipal bye-laws.

Introduction

Urban densification has rendered parking an acute urban planning concern. Developers often seek to monetise every square metre, including stilt areas. Purchasers, conversely, regard such areas as common amenities integral to habitability and safety. The resulting tension necessitates a coherent legal position balancing proprietary entitlements with consumer welfare. This article interrogates whether stilt parking constitutes (a) an independent immovable property capable of conveyance, (b) a “garage” within the meaning of apartment ownership statutes, or (c) a component of common areas that inure to all flat purchasers.

Legislative Framework

Maharashtra Ownership of Flats Act, 1963 (“MOFA”)

Section 2(a-1) defines “flat” to mean “a separate and self-contained set of premises … including a garage (but not any parking space lacking adequate shelter)”. The Act mandates disclosure of “common areas and facilities” (s.3) and restricts the promoter’s right of disposition to those components recognised as flats, shops, or garages (s.4).

Real Estate (Regulation and Development) Act, 2016 (“RERA”)

Sections 2(n) & 2(y) respectively define “common areas” and “garage”, echoing MOFA’s consumer-protective rationale. Section 18 fortifies purchasers’ remedies for defective title or delayed possession, while s.61 authorises penalties for contravention. RERA thus institutionalises regulatory oversight but does not expressly redefine the status of stilt parking, leaving earlier judicial pronouncements salient.

Municipal and Building Bye-laws

The Delhi Building Bye-laws, 2016 recognise “stilt floor” as a non-habitable storey meant primarily for parking, exempt from Floor Area Ratio (“FAR”) yet counted towards height[2]. Similar provisions exist in Maharashtra Development Control Regulations and in state-specific planning codes. These technical norms inform, but do not by themselves resolve, proprietary questions.

Judicial Evolution

1. The Watershed: Nahalchand Laloochand

The Supreme Court held that:

  • Stilt parking is not a “flat” nor a “garage” under s.2(a-1) MOFA because it lacks walls on three sides and therefore fails the “reasonable protection and shelter” test adopted from Barnett & Block v. National Parcels Insurance[3].
  • Such spaces form part of common areas; the promoter’s only entitlement is to charge proportionate cost but not to sell them independently[1].
  • Any contrary undertakings extracted from purchasers are void as being opposed to the statute’s public-policy objective of preventing “promoter malpractices”.

2. Post-Nahalchand Clarifications

The Bombay High Court in Goel Ganga Foundation v. Federation of Swarganga Co-op. Soc. Ltd.[4] reiterated that licensees or non-members cannot claim exclusive stilt parking rights, branding such allotments ultra vires MOFA. Similarly, Suvarnayug CHSL v. Chunawala[5] invalidated contractual clauses attempting to convey stilt spaces.

3. Consumer Law Perspective

In Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan[6], the Supreme Court foregrounded the doctrine of unequal bargaining power, striking down one-sided clauses in apartment buyer agreements. Although the dispute centred on delay and refund, the ratio fortifies the view that clauses enabling paid allocation of stilt parking are susceptible to being declared “unfair trade practices” under the Consumer Protection Act, 1986 (now CPA 2019).

4. Constitutional Scrutiny under RERA

The Bombay High Court in Neelkamal Realtors v. Union of India[7] upheld RERA’s consumer-oriented architecture, save for a minor infirmity concerning tribunal composition. The court’s affirmation of regulatory controls indirectly consolidates judicial intolerance toward monetisation of common amenities, including stilt areas.

Analytical Issues

A. Classification as Common Areas

The jurisprudence coalesces around a functional test: spaces required for ingress, egress, or parking—absent structural enclosure—are inherently communal. The promoter’s residual proprietary interest terminates upon conveyance of the first flat and certainly upon formation of the co-operative society (s.11 MOFA; s.17 RERA). Attempts to carve out stilt spaces for exclusive sale thus collide with the in re policy of both statutes.

B. Transferability and Section 6, Transfer of Property Act, 1882

While property rights are generally alienable (s.6 TPA), statutory restrictions prevail. The Supreme Court in Unity Mall Premises Co-op. Soc. Ltd. v. Vasai Virar Municipal Corporation recently reaffirmed that MOFA’s consumer safeguards override the promoter’s residual property claims, rejecting arguments predicated on Article 300A of the Constitution[8].

C. Interplay with Planning Norms

Municipal bye-laws treat stilt floors as non-habitable service areas exempt from FAR. If developers convert or sell these spaces, the change of use violates both the sanctioned plan and planning regulations, exposing them to penal action (e.g., s.52 Maharashtra Regional and Town Planning Act, 1966). Courts have invoked this planning rationale to buttress findings of illegality in private covenants purporting to alienate stilt parking[4].

D. Consumer Protection and Unfair Contract Terms

Paid allocation of stilt parking is often embedded in boilerplate agreements drafted by promoters, raising issues under Section 2(46) CPA 2019 (“unfair contract”). The ratio in Pioneer Urban indicates that such clauses may be struck down even absent statutory violation if they impose exorbitant charges or restrict remedies.

E. Enforcement Challenges

Despite clear precedents, enforcement remains inconsistent. Co-operative societies may lack resources to litigate, and regulatory authorities may hesitate to prosecute developers post-completion. RERA’s adjudicatory machinery (ss.71–72) offers a forum for swift redress, but divergent state rules on “common areas” can generate interpretive uncertainty.

Policy Considerations and Reform Proposals

  • Uniform Statutory Definition: Harmonising MOFA, RERA, and municipal regulations to expressly include “stilt and open parking” within common areas would pre-empt contractual mischief.
  • Dedicated Appellate Guidance: Given divergent High Court dicta on ancillary issues (e.g., licensing of stilt areas to commercial entities), a clarificatory ruling by the Supreme Court or binding circular by the Union Ministry of Housing could enhance doctrinal certainty.
  • Strengthened Regulatory Oversight: Municipal corporations should condition occupancy certificates on the developer’s undertaking not to alienate stilt parking, with violations triggering revocation.
  • Consumer Awareness: Statutorily mandated model agreements (e.g., MOFA Form-V) should highlight in bold text that stilt spaces are non-saleable.

Conclusion

A decade after Nahalchand, the core principle that stilt parking belongs to the collective ownership of apartment purchasers remains resilient, fortified by consumer-protection jurisprudence and planning regulations. Yet persistent instances of contractual circumvention reveal an enforcement deficit. Bridging this gap demands a concerted effort—judicial, legislative, and administrative—to translate doctrinal clarity into on-ground compliance, thereby ensuring that urban parking infrastructure serves collective, not private, interests.

Footnotes

  1. Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd., (2010) 9 SCC 536.
  2. Vikas Singh v. Govt. of NCT of Delhi, Supreme Court, 2022 (interpreting Delhi Building Bye-laws, 2016).
  3. Barnett & Block v. National Parcels Insurance Co., (1942) 1 All ER 221.
  4. Goel Ganga Foundation v. Federation of Swarganga Co-op. Society Ltd., 2022 SCC OnLine Bom 2975.
  5. Suvarnayug CHSL v. Abrar Muhammed Umar Chunawala, 2019 (4) RCR (Civ) 198 (Bom HC).
  6. Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan, (2019) 5 SCC 725.
  7. Neelkamal Realtors Suburban Pvt. Ltd. v. Union of India, 2017 SCC OnLine Bom 9302.
  8. Unity Mall Premises Co-op. Soc. Ltd. v. Vasai Virar Municipal Corporation & Ors., 2023 SCC OnLine Bom (9 Nov 2023).