Can Terrace in society be sold?

By Legal Bureau

It has been reported that in some co-op housing societies, terraces have purportedly been sold by the developers, also in some societies, top floor flat owners have claimed ownership of terraces, with the connivance of office bearers. Whatever the case may be, the position is absolutely clear that no open spaces including terrace can be sold as it is termed as common area.
The terrace is also shown as open space and is not included in FSI calculations and member/s of the society cannot even cover the terrace. Further the builder has no right to sell the terrace to a member and deprive the other member of the open space rights as shown in Mumbai Municipal Corporations record. As per the law open spaces including terrace are ment for the benefit of all the members who are entitled to the benefit under the plan and no single individual can appropriate any part of the same. As per the Maharashtra Ownership Flats Act 1963, section 4(1A) a (iii), (viii), (x) and section 10(1), the builder have absolutely no right or authority to sell terrace. In fact none of the provisions, individually or collectively, authorise the builder or any other entity including the society, to sell a terrace of the building.
When the BMC passes the building construction plans the terrace is not calculated in FSI calculations as it is for all the members of the society . The law and BMC regulations are quite clear in this matter that the terrace of the society building can not be sold, and is absolutely meant for the benefit of all the members of the society.
In a landmark judgement given on this matter, Mr Justice D G Deshpande of Mumbai High Court, on writ petition No. 4577 of 1985, decided on 5-7-1999 in the matter of Smt. Ramagauri Keshavlal Virani V/s Om Walkeshwar Triveni Co-op housing society Ltd & others. The learned judge passed the judgement saying, for all these reasons, I have no alternative but to hold that judgement of the Trial Court as well as Appellate Court do not require any interference. Lastly, it was argued by Mr. Naik that since two bedrooms have the opening on the terrace, security of the flat of the petitioner should be maintained. Mr. Deodhar appearing for the respondent No. 1 has given an assurance that nothing will be done by the society to endanger the security of the flat of the petitioner. This will, however, not prevent the society in exercising its right over the terrace. Hence, petition dismissed. Rule discharged. Stay vacated. No order as to costs. Prayer for stay of operation of this order is rejected.

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