Roof right includes construction right also in a multi owners building in delhi
P K TRIPATHI
(Querist) 06 October 2014
This query is : Resolved
In Dilshad Colony, Delhi there is a plot for which map was sanctioned by the then Municipal Corporation of Delhi (MCD) to construct a kothi upto the second floor for residential purpose. But shape of a building has been given by the owner of the plot who was a builder who constructed a building on it in 2004 comprising of 20 flats at four floors as Ground Floor, First Floor, Second Floor and Third Floor. However, the builder has adopted the fraudulent tactics who used second floor in the sale deed for its third floor i.e. top floor and sold all the flats of each floor of the building amongst the 20 owners.
At the time of construction of this building, its base or foundation was made keeping in view the level of this building upto top floor. The material used by the builder is also not upto the mark and hence if any extra load by way of constructing another floor at roof is made, this building will not be able to bear such extra load rather would collapse.
In this building roof right has been given to the owners of top floor i.e. Second Floor as mentioned in the sale deed while actually it is third floor. It is understood that roof right is only for its use and not for any unauthorized and illegal construction on it. If roof is used by the respective owners of top floor in any manner, except unauthorized and illegal construction, there is no problem but in case if any of the owners of top floor is constructing another floor at roof above their respective flat in any manner, the life of building will deteriorate which burden will come not only on the owners of top floor but also on all of us. By doing so the life of building will come to an end before its due date without none of the fault of other owners, except the owners of top floor which will be unjustified with the other owners.
In October, 2013 one of the owner of top floor of this building has started illegal construction on the roof above his flat for which he was requested not to do so to save life of the building and was also requested that if like you, the other owners of top floor will construct another illegal floor, in such circumstances how the owners of other floors will access their water tank etc and then it was categorically stated by the said owner that “it is yours problem and not mine, all of you think how to access your water tank etc., I will definitely construct on roof being roof right given to me, do whatever you all are intending and I will make it built by other owners of top floor as well.”
Thereafter various complaints were made to the RWA, concerned SHO and Local Municipal Authority so that at initial stage it could be stopped. In response to the complaints, a demolition team from office of the MCD has visited at the said premises who physically contacted the owners of top floor as they were available on that time while complainants could not be contacted physically due to not present and also the demolition team did not bothered themselves to contact family members of the complainants to solve their genuine grievances. The said demolition team could not demolish the illegal construction also as they have not found any violation of bye laws of the MCD according to them as that time only walls were made and orally opined via telecom :
1. That temporary construction on roof of the building is permissible as per their bye laws and owners of top floor having roof right may do so.
2. That first right on roof is of the owners of top floor and second right on roof is of the other owners of the building as per their bye laws.
3. That owners of top floor may also fix the iron gate on the roof above their respective flat for security purpose but the owners of top floor will not prevent other owners of the building to visit on roof for maintenance work etc as per their bye laws. In case, if the so fixed iron gate is locked, the such owner of the top floor will provide its key to the other owners below their flats or the affected owners.
4. That as per master plan of Delhi, building upto the height of 15 meters can be constructed and there is no need to get NOC from other floor owners while constructing another floor on the roof.
However, neither any written report was given to the complainants by the demolition team nor reply of the complaints have been furnished by the MCD. At initial stage the matter was placed before the Municipal Authority for proper action but the said authority instead of taking appropriate action on the complaint for benefit of all the owners of building, has encouraged the owners of top floor for illegal construction and MCD have left other owners of the building at mercy of the owners of top floor for their legal right to visit on roof for various maintenance work. It may be noted that after making complaints, the owner of top floor who started illegal construction, has stopped the same due to fear and was aware that he is doing wrong. But after visit of the demolition team, the said owner of the top floor has illegally constructed another floor overnight which walls have been made with brick, cement and other required materials alongwith pucca roof which amounts to permanent construction and will never come under purview of the temporary construction. The other owners of top floor have also fixed the iron gate with lock at the entry point of their respective roof and some of them have made proper walls as well. Thus the other owners of the building except owners of the top floor have been deprived from visit at roof for various maintenance work. There was no need to fix separate iron gate with lock by each of the owners of top floor as one iron gate has already been fixed at the space where staircase of the building ends and it is fixed since very inception for security purpose by consent of all the owners of the building.
It is further submitted that a person who is sole owner of a plot, may do anything as per his/her wish as he/she is sole responsible for any activities or wrong doings the plot under reference is a group housing (multi owners building) which share has been divided amongst the 20 owners and hence only the owners of top floor cannot take any decision to worsen life of the building, create problem to other owners irrespective of their so called roof right and also cannot stop other owners to visit on the roof for various maintenance work like maintenance of their water tanks, TV antenna etc. For this cause, other owners of the building are not supposed to beg the owners of top floor as it is our fundamental right to have water, ventilation etc without interference of any of the owners.
The owners of the top floor have already been compensated of having been the owners of top floor as the builder has offered lesser sale prices for them in comparison to the flats of other floors. I have booked my flat when the construction of this building was going on and the builder has fixed the sale price for the flats of ground floor much higher than other floors, then lesser price for the flats of first floor, then lesser price for the flats of second floor and then least price for the flats of third floor i.e. top floor in comparison to the flats of other floor of this building.
Needless to mention here that builder has constructed the building upto the maximum height and violated the prevailing rules/bye laws of that time. However, in case if any rule or guidelines have been framed later on which prescribed the limit of building upto the height of 15 meters, that rule cannot be applied here as subsequent rules take place from the date of its notification and not with retrospective effect. Apart from that it is a group housing (multi owners building) and not a building of sole owner. Hence, statement of the demolition team about construction upto the height of 15 meters in the instant case is not justified.
The building constructed by a private builder cannot be compared with the building of Delhi Development Authority (DDA) as in case of the DDA's building new construction take place from the ground level which strong foundation is made and all the owners of each floor get benefit of that by making rooms, balcony etc. In case of the building constructed by the private builders it is not possible to get benefit by all the owners and only the owners of the top floor is shifting burden of life of the building amongst all the owners and worsening life of building by constructing another illegal floor and interfering in peaceful life of the other owners and now the MCD has also joined such owners by encouraging them to do so.
Also there is no problem to borne the expenses for maintenance of the roof of this building by all the owners, if the roof is easily accessible by all of us and free from any illegal construction.
Considering the facts and circumstance as explained above, I want to know the legal rights in this regards as to :
1. Whether the builder is authorized to sale right of the roof in a multi owners building.
2. Whether any rule made after construction of this building can take its retrospective effect and applicable in this case also.
3. Whether owners of the top floor having roof right is authorized to construct another illegal floor.
4. Whether owners of the top floor having roof right is authorized to worsen life of the building.
5. Whether owners of the top floor having roof right is authorized to put our lives on danger.
6. Whether owners of the top floor having roof right is authorized to prevent us from visiting on the roof for various activities.
7. Whether MCD being nodal agency can encourage the owners of the top floor having roof right to construct another floor on roof without consent of the other owners and to protect the legal right of the other owners of the building.
10. Whether MCD is authorized to left us at mercy and begging to the owners of the top floor for our legal right.
11. Whether in the building wherein multi owners are there, only the owners of the top floor is authorized to enjoy the roof and construct on it.
T. Kalaiselvan, Advocate
(Expert) 11 October 2014
Too lengthy query to answer properly after a patient reading, better contact a local lawyer and take his advise based on the facts and merits on your side.
