This is a very common dispute. Most of the time Committee decides on whims and fancies. Which is not permissible. If any untoward incident like a fire happens Managing Committee shall be liable for culpability.
To start the discussion first we must know the provisions of Byelaws.
When Terrace is a common area as per the official plan and agreement with promoter builders it’s a joint and several ownerships. Every society especially as we are discussing housing society is governed by Model Byelaws. They are framed under the provisions of the Maharashtra Cooperative Society Act,1960 which is a Central Act.
Now let us see the provisions of the model bye-laws.
3 xxi. "Open terraces" means terraces which are otherwise not in the
exclusive possession of any of the Members.
3 xxii "Common Areas and Facilities" means
a. the land on which the building is located;
b. the foundations, columns, girders, beams, supports, main walls,
roofs, halls, corridors, lobbies, stair-ways, lifts / escalators , fire
escapes and entrances and exits of the building;
c. the basements, cellars, yards, gardens, parking areas undemarcated / demarcated parking slots, and storage spaces;
d. the premises for the lodging of janitors or persons employed for
the management of the property;
e. installations of central services such as power, light, gas, water
storage and water heating, water harvesting, pump houses,
refrigeration, air conditioning, generators, roof top solar devices,
common antennas and mass communication and data sharing
devices,
f. the elevators, tanks, pumps, motors, fans, compressors, ducts
and in general all apparatus and installations existing for
common use;
g. such community and commercial facilities as may have been
provided for;
h. all other parts of the property necessary or convenient to its
existence, maintenance and safety or normally in common use;
Under Bylaw 67 (a) (xiv) members are paying for the maintenance of terrace being a common facility.
What society can do is to, regulate permission to use for functions under bye-law 168.
Now moving further a law has been passed in Maharashtra namely the Prevention of Fire and Life Safety Measure Act,2016. Under this law, it’s owner’s responsibility to keep up fire safety measures.
In a matter before the division bench Once a person agrees to the sale/ purchase of a floor in a property, they bind themselves to joint access to common areas, its use and enjoyment by way of such an agreement. Any obstruction caused that results in deprivation of essential amenities that is water, electricity etc.
cannot be permitted and requires immediate intervention to rectify the situation as they have direct bearing on right to life of a human”
In yet another case of Tasneem Dhariwala Bombay High Court Division Bench of Justice S.C Dhamadhikari and Justice Gautam Patel in identical facts held, 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". No resident can be allowed to obstruct the BMC's move to ensure access to the building's terrace for all residents and for emergencies, the Bombay High Court has ruled.
DISCONNECTION OF COMMON FACILITIES AND LEGAL CONSTITUTIONAL AND CRIMINAL LIABILITY OF MANAGING COMMITTEE. REMEDY TO MEMBERS
CONCLUSIVE NOTES:
Most housing societies’ Managing Committee members act like landlords and owners. This creates a wide rift.
In Venus Co-operative Housing Society Ltd. v. Dr. J.Y. Detwani reported in 2004(5) Mh.L.J. 197 = 2003(3) All. M.R. 570. Bombay High Court held that even General Body cannot pass high-handed resolutions even if it has the majority.
REMEDY AVAILABLE TO MEMBERS:
First, try to persuade the committee to not to lock the terrace which is common. If they are still arrogant members jointly and severally lodge a complaint with MCGM, Fire Brigade, the complaint to Registrar, and an FIR.
SHRUTI DESAI
26TH MAY 2022
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