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1978 Supreme(Bom) 38
IN THE HIGH COURT OF BOMBAY
V.S. Deshmukh M.L. Pendse, JJ.
M.S. Muthanna.... Petitioner.
Versus
Parvati M. Heble (Mrs.) others.... Respondents.
Special Civil Application No. 2576 of 1971, decided on 7-3-1978.
Advocates appeared :
Dr. B.R. Naik, for petitioner.
A.M. Salik, A.G.P., for respondents Nos. 2 3.
D.R. Dhanuka, M.A. Rane with H.B. Gandhi, Bhaishankar Kanga and Girdharlal Co., for respond ent No. 5. Rest Served.
A member of a co-operative housing society does not have the right to construct unauthorized structures on the common property of the society.
Headnote:
CO-OPERATIVE HOUSING SOCIETY - DISPUTE BETWEEN MEMBER AND SOCIETY - JURISDICTION OF TRIBUNALS - CONSTRUCTION OF SHEDS AND WALLS ON OPEN TERRACE - OWNERSHIP OF TERRACE GARDEN - MUNICIPAL PERMISSION - INTERPRETATION OF MUNICIPAL CIRCULAR - VALIDITY OF CONSTRUCTION - ENCROACHMENT - REMOVAL OF CONSTRUCTION.
Fact of the Case:
The petitioner, a member of the respondent society, constructed two sheds and walls on the open terrace of his flat. The society objected to the construction and sought its removal. The petitioner claimed that he had obtained permission from the builders and the Municipality for the construction. The dispute was referred to an Officer on Special Duty and later to the Maharashtra State Co-operative Tribunal, both of which held that the petitioner had no right to cover the open terrace.
Finding of the Court:
The court held that the open terrace was not a part of the petitioner's flat and that he had no right to construct the sheds and walls. The court also held that the petitioner had not obtained the necessary permission from the Municipality for the construction. The court further held that the construction was an encroachment on the society's property and that it should be removed.
Issues: 1. Whether the open terrace was a part of the petitioner's flat? 2. Whether the petitioner had the right to construct the sheds and walls? 3. Whether the petitioner had obtained the necessary permission from the Municipality for the construction? 4. Whether the construction was an encroachment on the society's property?
Ratio Decidendi: 1. The court held that the open terrace was not a part of the petitioner's flat based on the following: - The terrace was a set back for the building as a whole and not a part of any individual flat. - The petitioner had not produced any documentary evidence to show that he had any right to the terrace. - The petitioner's representation to the Municipality that the terrace was entirely open on all sides except for the top contradicted his claim that the builders had already constructed walls on the terrace. 2. The court held that the petitioner did not have the right to construct the sheds and walls based on the following: - The terrace was not a part of the petitioner's flat. - The petitioner had not obtained the necessary permission from the Municipality for the construction. - The construction was an encroachment on the society's property. 3. The court held that the petitioner had not obtained the necessary permission from the Municipality for the construction based on the following: - The petitioner's representation to the Municipality that the terrace was entirely open on all sides except for the top contradicted his claim that he had obtained permission from the Municipality to cover the terrace. - The petitioner had not produced any documentary evidence to show that he had obtained permission from the Municipality. 4. The court held that the construction was an encroachment on the society's property based on the following: - The terrace was not a part of the petitioner's flat. - The petitioner had not obtained the necessary permission from the Municipality for the construction.
Final Decision: The court dismissed the petition and directed the petitioner to pay the costs of the respondent society.
2. The dispute raised by the Society was referred to an Officer on Special Duty which was concluded in favour of the society. The petitioner filed an appeal before the Maharashtra State Co-operative Tribunal, Bombay which was also dismissed. Being aggrieved, the petitioner has filed the petition.
3. The Western Building Corporation, who were the builders, constructed a building on the Nepean Sea Road consisting of the ground floor and 2 upper floors. The builders sold individual flats to various purchasers on the basis of an agreement which stipulated that ultimately either a company or a co-operative society will be formed. This was ultimately done when the respondent No. 5 society was registered in February of 1966. Various purchasers have become members of the society and a conveyance was executed in favour of the society but is awaiting registration. The actual behaviour of the parties, however, is to treat the society as the legal entity and the legal owner of the entire building and the members thereof as allotees of the flats being tenant-owners or tenant-occupiers. There is no dispute that the petitioner is a purchaser of flat No. 12-A on the first floor of this building. The plot on which the building is constructed lies to the west of the Nepean Sea Road. The entrance is on the main Nepean Sea Road. The southern as well as the western part of the plot opens up directly to sea. Due to the peculiar situation and the width of the plot, the Corporation permitted garages to be constructed on the ground floor but on the top of the garages a set back is given. Accordingly, the main building commences where the set back of the first floor ends, which set back has been described in these proceedings as the "Terrace Garden". Admittedly, this terrace has mozaic flooring with a parapet wall at the end. The parapet wall is to prevent entry from the southern side of the plot which opens to east.
4. A sketch map of the building relating to the first floor is on record of this petition a Ex. G (page 123). A look at the map will make it clear that out of the 4 flats on the first floor, the petitioners flat seems to be second from the Nepean Sea road side. At the southern end of the flat, there is a living room ending with a balcony and flower bed. In a portion of it, the flat ends at the bath room. Beyond the bath room and the flower he lies the open terrace described as "Terrace Garden". It appears that the petitioner, after purchasing the flat on 24th May, 1965, constructed, in due course, two separate covers on the open space. One is a cover on a very small portion in front of the bath room extending upto and in line with the flower bed on the south. Beyond this line the entire terrace garden measuring about 600 sq. feet. This terrace garden is also covered with asbestos cement sheets at the top with two parallel walls running from the eastern and the western ends of the flat. These north-south walls cover the entire terrace garden and reach upto the parapet wall. These walls do not actually touch the roof which is slanting one. There is a small gap on the southern roof with a clearance of about 1½ at the northern end. The photographs of this portion produced before the Maharashtra State Co-operative Tribunal give a clear idea of the portion covered and the nature of the construction.
5. It may now be very briefly noted that after the Society was formed in February, 1966, the conveyance was executed and lodged for registration on 14th June, 1967. From this point of time, the Society began briefing itself as the owner of the entire premises and an objection was raised within a month thereafter by writing a letter to the petitioner. The Society pointed out that two open spaces which formed part of the terrace garden have been covered by the petitioner un
