Common terrace
Querist :
Anonymous
(Querist) 19 January 2012
This query is : Resolved
A COMMON TERRACE HAVING TWO DUPLEX UNITS ON THE TERRACE AND THE SET BACKS LEFT ON THE TWO UNITS FOR WHICH THE TWO UNITS OWNERS DONT HAVE NO TITLE BE KNOWN AS OPEN TERRACE OR OPEN BALCONIES.
Raj Kumar Makkad
(Expert) 19 January 2012
It shall be called as open terrace but this query relates with architect rather with lawyers.
Devajyoti Barman
(Expert) 19 January 2012
What ever is it called what is problem anyway?
Nothing is there in the name so far as title is concerned.
Deepak Nair
(Expert) 19 January 2012
academic and unrelated query.
ajay sethi
(Expert) 19 January 2012
yes academic query
M/s. Y-not legal services
(Expert) 19 January 2012
dont know why our experts hurt the innocent author..
dear author., be cool. you can use your open terrace in the evening time for relax walk. just take a sight by standing on your balconies..
-tom-
prabhakar singh
(Expert) 19 January 2012
I failed to understand all that was here unless I read Tom's answer.Spicy query it was.
V R SHROFF
(Expert) 19 January 2012
All answers ok, Enjoy common terrace, have a nice spicy recipe with red hot masala and cups of tea?? coffee, at evening tea party
Relax,
Have Sunset view c evening tea party.
Best Places in the World have no title.
It becomes honey moon corners, or tourist spots.
Querist :
Anonymous
(Querist) 19 January 2012
THE QUESTION HAS ARRISED BECAUSE ON THE TERRACE THERE ARE TWO DUPLEX UNITS BUILT ILLEGALLY AND SOLD.
LATTER THE TWO WERE REGULARIZED THROUGH REGULARIZASTION SCHEME ANNOUNCED BY THE CORPORATION.
FROM THE OPEN TERRACE THERE IS AN OPEN SPACE LEFT AS SET BACK ON THE SOUTH, WEST AND NORTH OF THE TWO UNITS SOMEWHERE AROUND 500 SQUARE FEET.
ONE OF THE FLAT OWNERS CLAIMING IT TO BE PART OF THEIR DUPLEX HOUSE BALCONIES CLAIMING RIGHTS TO IT HAS EXTENDED HER DUPLEX HOUSE BY ENCLOSING 275 SQUARE FEET ON THE SOUTH AND WEST SIDE OF THEIR UNIT.
FIRST ON A COMPLAINT BY SOME UNIT OWNERS TO THE CORPORATION, THE CORPORATION AT FIRST TREATED THE COMPLAINT AS ENCLOSING THE OPEN BALCONIES UNAUTHORISED AND ILLEGALLY.
IN THE COURTS OF HIGH COURT AND CITY CIVIL COURTS ALSO IT WAS BEING ARGUED AS ENCLOSING OF OPEN BALCONIES.
WHEN THE CMA FOR STAY OF DEMOLITION MADE BY THE UNIT OWNER AGAINST THE MUNCIPAL CORPORATION WAS DISMISSED, THE CORPORATION ISSUED A NOTICE AS THE CMA HAS BEEN DISMISSED YOU ARE HEREBY ASKED TO REMOVE THE UNAUTHORIZED CONSTRUCTION MADE IN THE 'COMMON AREA'.
SO, I AM ELICITING EXPERTS OPINION WHETHER THE AREA IN QUESTION IS AN OPEN TERRACE OR AN OPEN BALCONY AS CLAIMED BY THE OWNER WHO HAS EXTENDED HER FLAT.
Advocate. Arunagiri
(Expert) 19 January 2012
What is the area mentioned in the sale deed of your flat and their flat? They can not use beyond that limit.
Querist :
Anonymous
(Querist) 19 January 2012
OUR FLAT IS IN THE GROUND FLOOR AND THE AREA MENTIONED IN THE SALE DEED FOR OUR FLAT IS 1000 SQUARE FEET AND IT IS IN THE GROUND FLOOR AND THE AREA SHOWN IN THEIR FLAT IS 1100 SQUARE FEET IN SECOND FLOOR AND 825 FEET IN THIRD FLOOR.
NOW BY ENCROACHING THE OPEN TERRACE THEIR THIRD FLOOR IS ALSO 1100 I.E, 2200 SQUARE FEET.
Advocate. Arunagiri
(Expert) 19 January 2012
If the open terrace is a common area to all, If the common area / open terrace is having a common entrance, you can prevent them, to use the common area for their exclusive usage.
Querist :
Anonymous
(Querist) 19 January 2012
I AM UNDER THE IMPRESSION A TERRACE IS COMMON TO ALL RESIDENTS OF THE COMPLEX AS NO ONE HOLDS THE RIGHTS IN PARTICULAR TO THE AREA AND THE PARTICULAR PORTION UNDER DISPUTE IS HAVING AN OPENING FROM THE SECOND DUPLEX UNIT AND CAN BE ENJOYED BY ALL WHO WISH TO
BY ENCROACHING THE SAID AREA DOES IT NOT COME UNDER INFRINGEMENT OF OTHER RESIDENTS/ OWNERS.
IF ONE DOES NOT USE A PORTION OF THE COMMON AREA WILL HE LOOSE THE RIGHTS TO IT?
Advocate. Arunagiri
(Expert) 19 January 2012
IF ONE DOES NOT USE A PORTION OF THE COMMON AREA WILL HE LOOSE THE RIGHTS TO IT?
He will not loose his rights.
It is the normal practice of the flat owners, to share the common area, unofficially. For example the ground floor, occupant may have the access to the common area in the ground floor, he may plant trees and plants. He may have more area in the ground floor. Like wise the upper floor occupant is having the access to the open terrace, he will be given a liberty to use the open terrace.
Only when the occupant, erects a permanent construction, you can raise objection. Otherwise you will loose your peace of mind, along with your neighbour.
Querist :
Anonymous
(Querist) 20 January 2012
THE ISSUE HAS ARISED JUST BECAUSE THE OCCUPANT HAS ERECTED A PERMANENT STRUCTURE BY ENCLOSING A PORTION OF THE COMMON TERRACE.
Advocate. Arunagiri
(Expert) 20 January 2012
You can send notice to them, raising objection for the erection of permanent structure.
Send a complaint to the Town Planning authorities.
If there is no response, go for a civil suit, adding the Town planning authority as a party.
Querist :
Anonymous
(Querist) 20 January 2012
Sir,
We applied for stay in high court and got it, but as the construction was going we filed a cc which is pending.
The party approached civil court against corporation and obtained stay, which was latter vacated.
The party then approached the addl. chief judge in cma and again obtained a stay and this was also vacated.
Now the party filed a crp in the high court which is pending for the past six months.
Advocate. Arunagiri
(Expert) 20 January 2012
What is the current status of the stay granted by the High Court?
Whether the town planning authorities are included as a party in the case initiated by you?
ajay sethi
(Expert) 20 January 2012
terrace is free from FSI . buildercannot sell open terrace . you have good case on merits .
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 judgements 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.
girish shringi
(Expert) 20 January 2012
Experts have discussed it very nicely.
It is the court's power which way to divert,there is no perfect scientific rule behind it.
Recently Gujarat High Court has given divided ruling on LOKAYUKTA.
Querist :
Anonymous
(Querist) 20 January 2012
Sir,
At first the party filed an OS before Junior Judgde, City Civil Courts in June 2010, against the Corporation and obtained a stay; which was latter vacated in July 2010.
Then in a CMA before Addl Chief Judge they got stay against the Corporation in July 2010, whcih was also dismissed in July 2011.
In August 2011 they were granted an Interim Injuction in a CRP in the High Court, which is still pending.
In October 2011 they also filed a WP which is also pending.
In March 2010, we obtained in a WP an order for stay of construction where we made the Corporation a party to it.
Even after the stay of construction was wired to them, they continued the construction which was reported to the Corporation, as the Corporation did not take any action against our written complaints we filed a CC making the Corporation also a party.
