It is observed that in some cooperative housing societies, the terraces have been purchased by the resident which was purportedly sold by the developers, also in some of the societies; top floor flat owners have claimed their right/ownership in connivance with the members of the Managing Committee. Well whether it’s purchased or claimed the right on terrace/parking in connivance with the office bearers, the legal position is absolutely clear that no open space including terrace and or parking can be sold as it is termed as “Common Area / Space”.
In accordance with the provisions of the Maharashtra Ownership Flats Regulation of Promotion of Construction, Sale, Management and Transfer Act 1963 commonly known as MOFA, developers/builders in our opinion have no right to sell the open car parking as well as the open terrace. It has been held in Ferena Co-operative Housing Society Ltd., V/s. Miss Synthia Lobo that interest in the car parking is independent of the interest which a member has in the flat occupied by him. The member does not have a transferable interest but only a restrictive interest in the parking space allotted to him. It has also been held in Ramagiri Keshavlal Virani V/s. Walkeshwar Triveni Co-operative Hsg. Ltd., that the builder cannot dispose of the terrace to one of the purchasers of the flat. It has been held in Shakari Nagar H.H.C.H.S Ltd., V/s. Shri J.G. Sharma that no member has an absolute right on the open space detrimental to the common interest of other members. The view in this regard is clear that ground floor occupants of a building cannot exclude other members of the said building from the user of the open space around it on the basis that it is only meant for him an apartment and not for others. As per the provisions of the Indian Registration Act 1908 subject to the exemptions the sale, purchases of immovable property as well as right, little and interest in the immovable property above Rs.100/- should be compulsorily registered. Such type of documents for sale of terrace/parking by the builder/developers is normally not registered.
It is also to be noted that in the approved plan of the building/society 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. This means that all the members of the society have an equal right & share on the terrace and on the parking and one single member cannot enjoy that right exclusively. Therefore, the builder has no right to sell the terrace/parking 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 meant 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) an (iii), (viii), (x) and section 10(1), the builder has absolutely no right or authority to sell terrace. In fact, none of the provisions, individually or collectively, authorize the builder or any other entity including the society, to sell a terrace and or parking including the stilt parking of the building.
In a landmark judgment 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 judgment saying, “For all these reasons, I have no alternative but to hold that judgments of the trial court, as well as the 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. Prayers for the stay of operation of this order is rejected.