• Illegally constructed third floor owner wants to construct more

I moved to 1st floor of 136.5 Sq. Meters to builder constructed floor building with ground floor(without parking) and 1st & 2nd floor with different owners on each floor in 2008 but in 2008 Builder sold the terrace which was above 2nd floor to another person who constructed the third floor(don't know with legal formalities or not) in 2010. Now the question is whether they have the ownership/right of terrace or not? because now the 3rd floor owner wants to construct the Fourth floor, please advice as soon as possible as they are big time rowdy people and preparing for construct.
Asked 2 years ago in Property Law from New Delhi, Delhi
1) thrid floor owner cannot construct on terrace without the consent of other co owners 

2) the reason being terrace forms part of the common area  . 

3)In the case of Bihari Lal Jalan vs DDA  ( Civil Writ No. 2034 of 1992) the High Court of Delhi vide judgment dated 18th February, 2003 has held that the terrace is a common portion and does not belong to the top floor owner. The Court has held as under:

“ Common areas or common portions must remain common to all the allottees  and can not be grabbed by any particular allottee or group of allottees for their exclusive use. In so far as exclusive use of the top portions by the top floor owners is concerned, we feel that the top terrace is a common portion as described in the DDA Regulations of 1968 and the use of the same is not exclusive to the top flat owner. “
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
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1) if the third floor owner seeks to carry on further construction on terrace without consent of other co owners you have to move court and obtain stay against further construction 

2)The MPD-2021, which came into effect in 2007, allowed residents to construct third floor (ground plus three floors) and the height restriction was raised to 15 metres from 12 metres.

3) it is advisable to consult local architect familiar with local bye laws for carrying out additional construction
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
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1. Terrace forms a part of the common area. No construction whatsoever can be carried out on the terrace without the consent of the other co-owners. 

2. If any construction is commenced or you apprehend that construction may be started without the consent of other co-owners then you may move to court to seek an immediate stay order against the construction.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
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A. All the Co owners are having exclusive ownership and possession over the common area, hence the builder has no right to alienate for the construction of any building. 

B. The apartment owner gets an absolute right to use the common areas and facilities in accordance with the purposes for which they are intended without any hindrance and to resist all attempts of other apartment-owners to interfere, diminish, or partition the common areas and facilities appurtenant to his apartment.

C. The apartment owner gets entitled to a specified percentage of undivided interest in the common areas and facilities appurtenant to such an apartment.

D. All the Co owners can approach the court by seeking an injuction order against the same.
B.T. Ravi
Advocate, Bangalore
736 Answers
30 Consultations
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1. The third floor owner was sold the right to make construction on the terrace of the 2nd floor and not thereafter,

2. The terrace of the 3rd floor belongs to all flat owners being he common area,

3. Check from the Municipality whether any plan has been constructed for the said additional construction or not,

4.If not file an application before the Municipality to demolish whatever has been illegally constructed thereupon.
Krishna Kishore Ganguly
Advocate, Kolkata
12112 Answers
231 Consultations
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1. If the said construction is being carried out without obtaining the construction plan sanctioned by the local Municipality which will certainly asjk for consent of other flat owners of the said building, then lodge a police compaint against such illegal construction and file an application before the Municipality against such construction and also to  demolish whatever has been constructed,

2. If you fild no action, file a Writ Petition before tghe local high Court against the inaction of police and the Municipality praying for relief,

3. This will be the quickest action in addition to filing for injunction before the civil court.
Krishna Kishore Ganguly
Advocate, Kolkata
12112 Answers
231 Consultations
5.0 on 5.0

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