As per Section 3(f) of the MAOA, 1970, the open space in question was a part and parcel of the Common Areas and the Flat Owners were within their right to use the same.

2)Apartment Owner has the right to use the common area and facilities in accordance with the purpose for which they were intended without hindering or encroaching upon the lawful rights of the other apartment owners.

3)under the provisions of the Maharashtra Apartment Ownership Act 1970 and even Maharashtra Ownership Flats (Regulation of the promotion of construction, sale management and transfer) Act, 1963, a Society had to be formed by the builder and the entire building premises including the open space in question was to be transferred to the Society or a legal body for its maintenance and further, as per Section 6 of the MAOA 1970, each flat owner is entitled to an undivided interest in the common areas and the facilities.

4) file complaint against st builder before consumer forum 

5) seek orders that terrace form part of common areas and builder cannot retain terrace rights as mentioned in deed of declaration 

Act of builder is wrong and illegal. In fact in super area of flat, proportionate common area like stairs, lift, etc are included so builder on sale builder cannot claim ownership in respect of open areas. It is clarified that though roof on top can be retained by builder but builder is bound to provided tank etc on roof. 

It’s automatically comes to society once society is formed. You can seek conveyance in the same to get the rights from builder 

The clause, “Terrace or any open parking/stairs space which is not included in the saleable area,” is invalid and not enforceable under RERA and judgment of SC in Nahalchan and Laloochand’s case. You can assert your rights on terrace and parking, if he resists you can obtain declaration  and injunction against him from Court.

 - A terrace is a common area of a residential apartment which is for the enjoyment and benefit of all its owners.. 

-  Hence, the builder does not have the legal right to kept an area which is shared by all owners/members of the apartment , and he cannot claim ownership of the terrace and deter other owners from using the same. 

- Further, no construction works can be carried out on the terrace without the consent of all co-owners of the building.

- Further, the builder even cannot put up a permanent structure on a common property or put the common property for any exclusive use.

- Hence, you can lodge a compliant before the Consumer forum against the builder after sending a legal notice for the same. 

A terrace or a rooftop is part of the common area in a residential society. As is with all common areas, a terrace is to be used and enjoyed by all its members. 

According to Section 4 (1A), (iii), (viii), (x) and Section 10(1) of Maharashtra Ownership Flats Act, 1963, the builder/developer has no right to sell the terrace.

The builder is obliged to transfer all the common areas including the terrace to the society that has been formed 

Owning or occupying the terrace of a society building is not permitted by law and if any body does that it is totally illegal. The law and BMC rules are amply unambiguous and clear in this regard

A terrace or rooftop is a common area of in a residential society which is for the enjoyment and benefit of all its members. Although it has been seen that many developers resort to selling or giving exclusive terrace rights on payment, the practice is illegal.

You are legally protected that the terrace is the part of the society's common areas to which all the members of the society has a right. 

If majority of flat owners want society to be formed you would need court orders to direct registrar to cancel deed of declaration issued by builder 

Issue notice to the building  notifying the builder and competent authority about the formation and registration of AOA would be without prejudice to any other right, claim or interest of the AOA against the builder which may come into the knowledge of the AOA within two years from the date of the registration of AOA, and also for another two years in case of apartments which are handed over to the apartment owners post-registration of the AOA.

Even though the conveyance deed contained that the terrace rights have been retained by the builder, he has no rights over the terrace especially after a lapse of 29 years of completion of construction.

Therefore you can file a suit for declaration to declare that the terrace is the part of the Apartment owners association  by impleading the builder as a respondent and seek relief through court.

Terrace is only for installation of water tank and other utility services and the same is not part of sold flat while common area is meant for use of all occupants for ingress and outgrows purpose, parking, lift, installation of fire extinguisher etc and are part of flat and without open common area flat cannot be enjoyed. While describing flat area the same are described in super area, covered area, carpet area. In super area open common area are incorporated. In respect of roof or terrace the same can be retained by Developer and if in future developer raise any construction of floor over and above terrace then Developer is bound to make proper arrangement of shifting of water tanks, antena, water etc. 

Dear client,  

If the builder has retained ownership rights over the terrace, it means that they still legally own that part of the property, even though you may have purchased the flats. If you and the other flat members want to demolish the building and take control of the terrace, you will need to take legal action to acquire ownership rights over it.

One option is to negotiate with the builder to purchase the terrace from them. This may involve paying them a fair market value for the space. However, if the builder is unwilling to sell, you may need to take legal action to acquire the terrace.

You could consult a real estate lawyer who can guide you through the legal process of acquiring ownership rights over the terrace. This may involve filing a case in the appropriate court and presenting evidence to prove that the builder does not have any valid claim to the terrace.

It's important to note that the process of acquiring ownership rights over the terrace can be complex and time-consuming, and may involve significant legal expenses. Therefore, it's advisable to consult with a legal expert and carefully consider all your options before taking any action.

It can’t be treated as restricted area when mentioned in the agreement. It’s a common area