Indian Kanoon - Search engine for Indian Law

39. By referring to aforesaid provisions of the said Act, it has been contended by the plaintiffs that plaintiff has right over the roofs / terrace being common area and therefore, in terms of both Sections Suit No. 181/2016 B­40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 18 of 30 3(j)(ii), 4(4)(a), and 11 defendants have no right to encroach upon the same.

40. Counsel for defendant has disputed the claim of the plaintiff and has argued that the aforesaid provisions are of no help to the plaintiff. He has further contended that aforesaid provisions and particularly the "common facilities and area" as defined U/s 3(j)(ii) does not ipso facto confirms right, title or interest over the roof/terrace. It only explains the meaning of the terms. He had further contended that even if it is taken that the term 'roof' is included in the 'common area and facilities' it does not convey the meaning that there cannot be any further addition of floor on the existing roof. He contends that even if a floor comes into existence on the existing roof, the roof of the new floor will become the common area, if at all it is considered so and therefore defendant no. 1 to 6 cannot be said to have no right to sell the terrace to the defendant no. 7 and 8. He had further drawn attention of the court to Section 3(q) of the Act where the expression "limited common areas and facilities" have been defined to mean "those common areas and facilities which are designated in writing by the promoter before the allotment, sell or other transfers of any apartment as reserved for use of certain apartment or apartments to the exclusion of other apartments", to contend that the Act gives power to the promoter or builder to reserve certain areas exclusively for certain apartment or to the exclusion of other apartments. He further contended that if certain area or facilities could be reserved for one apartment or other apartments to the exclusion of all other apartment, why such area and faculties cannot be reserved for itself. He contended that the clause 18 of the allotment letter whereby builder/promoter has reserved unto itself Suit No. 181/2016 B­40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 19 of 30 the terrace right, is perfectly legal even in accordance with the provisions of Delhi Apartment Ownership Act, 1986.

43. The entitlement of the apartment owner in respect of undivided interest in the common area and facilities has been qualified by the expression "as may be specified in the Deed of Apartment". Thus, the owner of the apartment shall be entitled to such percentage of undivided interest (in the common area and facilities) as may be specified in the Deed of Apartment. The meaning of said qualification is that the builder/promoter will mention what are the common facilities and areas which are being demarcated for common use and such demarcation will be mentioned in the Deed of Apartment.

44. In terms of section 13 of the Act the deed of apartment inter alia must contain a description of the common area and facilities and the percentage of undivided interest appertaining to the apartment in the common areas and facilities and it shall also contain description of limited common areas and facilities. If Section 3(j)(ii) is read with section 13(1)(vi) it leaves no doubt that common areas and facilities as defined in section 3(j) do not become the common areas automatically in all cases otherwise, section 13 (1) (6) would not have asked for mentioning of description of common areas and facilities in the Deed of Suit No. 181/2016 B­40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 21 of 30 Apartment. So, in the present case, to say that the roof/terrace is common area in view of section 3 (j)(ii) is not sustainable unless it is specifically described by the promoter or builder as common areas and facilities.

"After considering the submissions made by learned counsel for the parties and examining the provisions of the Delhi Ownership of Apartments Act, this Court is of the considered view that the Act certainly creates valuable rights in respect of the "common areas and facilities" in multi­storeyed building in favour of the Suit No. 181/2016 B­40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 22 of 30 apartment owners so that they may enjoy their portions comfortably, but these rights are controlled by and are subject to the provisions of Section 4(3) of the Act which entitles the promoter/builder of a multi­storeyed building to specify common areas which is wishes to transfer to the flat owners. It entitles him to earmark different common areas and facilities for different occupants in the building so that different groups of the flat owners in different parts of the building may enjoy separate "common areas and facilities" without interference from other occupants of the building. This can be done by the promoter/builder of the building by incorporating appropriate Clauses regarding common areas in the Deeds of Apartments executed in favour of the purchasers of the flats in terms of Section 4(3) of the Act. Had the Legislature intended not to permit, the promoter / builder of a building to earmark or apportion such areas Section 4(3) of the Act would have simply stated that every person who becomes entitled to the exclusive ownership and possession of an apartment under sub­section (1) or sub­section (2) of Section 4 of the Act shall become entitled to undivided interest in all the common areas and facilities in the building and there was no need to use the words "as may be specified in the Deed of Apartment". A purchaser of the Apartment may opt out of the deal in case he finds that common areas and facilities required by him are not being provided to him by the promoter. Learned counsel for the defendants rightly contends that the roof in question still remains exclusively with defendant No. 1 in as much as Clause 11(a) of the Agreement between the parties specifically provides that the promotees shall continue to have a right to make additions or put up additional structure etc. as may be permitted by the local authorities on the terrace of the complex and the terrace and parapet walls shall continue to be the property of the promoter who shall be entitled to use the same for any purpose whatsoever.