Building terrace must be open to all residents: Bombay High Court
Sep 30, 2013
Source : The Times of India


MUMBAI: No resident can be allowed to obstruct the BMC’s move to ensure access to the building’s terrace to all residents and for emergencies, the Bombay high court has ruled.A division bench of Justices S C Dharmadhikari and Gautam Patel dismissed a petition filed by a resident of a building in Grant Road who had challenged the notices issued by the municipal corporation.

The judges also imposed a fine of Rs 50,000 on the flat owner for making false statements and misleading the court that the builder had sold the terrace attached to the seventh floor flat to her.“Such parties cannot be given any discretionary and equitable relief, much less [allowed] to obstruct a public body from performing the statutory duties and ensuring that there is free access to all persons to an area called terrace and, particularly, to take care of any emergent situation,” said the judges, adding, “the petitioner wants to usurp this area in the garb of challenging this notice when she has failed to point out her entitlement to the terrace”.

The court was irked over what it called a “suppression of material and facts” and termed it a “gross abuse of the process of the court”.The petitioner Tasneem Dhariwala, who resided on the seventh floor of Amrutulla Lane at Grant Road, had challenged the notice issued by the BMC under section 54 of the Maharashtra Regional and Town Planning Act. The corporation had said that the grill that barred access to the terrace was unauthorized and sought its removal.

The petitioner claimed that the developer who had constructed the building in 2004, had sold the terrace flat to her in 2005 and furnished allotment letters. Advocate Trupti Puranik, counsel for the BMC, denied her claim and said that as per the plans the terrace was not meant for the exclusive use of the flat owner.

The court pointed to the sale agreement between the developer and the flat purchaser which did not mention any sale of the terrace area. The petitioner’s lawyers then relied on the consent terms in the court case against the builder to show that they were entitled to exclusive access to the terrace.

The judges however said that mere consent terms were not enough in the absence of any sale agreement. “We do not find any document or deeds executed conferring any title in the terrace as claimed by the petitioners,” the judges said. “We find that while challenging the notices (issued by the BMC) parties like the petitioner are bold enough to make false statements,” the court said while slapping a fine on the petitioner.


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