Evita Co-operative Housing Society Ltd. & Anr. vs The Municipal Corporation Of Greater Mumbai & Ors.

The Petitioner, a Cooperative Housing Society, along with one of the occupant have approached this Court for seeking issuance of a writ in relation to the terrace situated on 30^th floor level of the building ‘Evita’ and for a declaration that the use occupation and possession of the common terrace by the Respondent No.4, be declared as illegal.

Further direction is sought against the Respondents for taking action against the unauthorized use and occupation of the terrace by Respondent No.4 to remove him, his agents, servants and all persons claiming through him from the terrace, which is declared as a ‘Refuge Area”.

Heard learned counsel Ms. Sonal for the Petitioner, who by taking us through the pleadings in the Petition have pointed out that while granting the fire No-Objection Certificate (NOC) by the Mumbai Fire Brigade on 26/03/2004 stipulating fire protection and fire fighting requirements for the construction of subject high rise residential tower building, with basement, ground floor on stilts, first floor podium and floors situated from 2^nd to 29^th floor with a total height of 95.35 mtrs. and when the refuge area of 112.84 sq. mtrs. was carved out and provided at 8^th , 14^th, 20^th and 26^th floor levels each.

The permission also stated that in addition, the terrace floor of the building will be treated as ‘Refuge area’. In the said communication, the fire fighting requirements, are specifically set out. Paragraph 14 of the said communication specifically provide that the layout of the refuge area shall in no case be changed/modified at any time in future and the refuge area shall be provided with railing/ parapet of 1.10 mtrs height on open space and this covered the refuge on 8^th , 14^th , 20^th and 26^th floor. However, as far as the terrace floor which was treated as refuge area, it was required to be compliant with the following conditions:-

In compliance of the aforesaid, when the Developer submitted a compliance report, the Chief Fire Officer, Mumbai Fire Brigade granted its No Objection and allowed the party to occupy and use the high rise residential building, with a clarification that it shall be the responsibility of the occupiers/owners/co-operative society whatever as the case may be, to maintain all the fire protection and fire fighting requirements in good working condition at all times.

However, the Petitioner is aggrieved by the unauthorized use, occupation of the terrace which is situated on 30^th floor of the building which is already declared as a ‘Refuge area’ and it is alleged that Respondent No.4 is in possession of the same. The Petition is accompanied with the specific pleadings to the effect that the outer staircase leading to the terrace has been closed by the Respondent No.4 and there is a internal staircase from which an access is gained on the terrace and the photographs of the terrace as well as the staircase are placed before us to reflect that it is being put to use by Respondent No.4 as its exclusive user by creating a duct and private area.

Responding to the said allegations in the Petition, when the Corporation was directed to clarify the prevailing situation, the Assistant Commissioner of Respondent No.1 Shri Bhaskar V. Kasgikar, has filed an affidavit pursuant to the order passed by this Court on 10/02/2025. In the said affidavit, the deponent has specifically admitted the allegation levelled in the Petition and the affidavit is filed based on the inspection that is conducted on 6/03/2025 in presence of the police and the following work was identified to be an unauthorized work carried by the owner/occupier of the suit flat.

The affidavit persist to state that in the wake of the aforesaid, the notice under Section 53(1) of MRTP Act was issued to the owner/occupier and the said notice was accompanied with a sketch and the description of unauthorized development and the particulars of the same was set out in the schedule as below:-

The notice resulted in the passing of speaking order on 10/08/2025, which reads thus:-

We are informed that against the said order, the Respondent No.4 has approached the City Civil Court through LC Suit No.102020 of 2025 and a Notice of Motion was taken out for grant of interim relief but no relief is granted despite the Notice of Motion being filed on 04/09/2025 i.e. nearly a year after the date on which it was filed.

We have also heard Mr. Pereira learned counsel for the Respondent No.4 and Mr. Tamboly the learned counsel representing the Developer.

It is the specific contention advanced on behalf of the Respondent No. 4 that the agreement entered into by the Developer M/s. Lakeview Developers with Respondent No.4, Mr. Ajit Patel clearly referred that the builders have allotted to the purchasers flat bearing No. 2902/A on the 29^th floor admeasuring 1305 sq. ft of the building known as Evita and the builder undertook to provide to the purchaser additional amenity in the flat equally to terrace area of 1305 sq. ft. for the price of Rs.86,23,875/-. Further relying upon the specific averment in the affidavit filed by the Developer, in paragraph nos.4 ,5 and 9, it is his specific submission that the Developer has clearly stated that what was sold to him was “2902 A.B.C.D along with terrace on top” and he has paid consideration for the same.

Paragraph 9 of the affidavit is strongly relied upon by the learned counsel for Respondent No.4, to submit that he is entitled for exclusive use of the terrace and the said paragraph reads thus:-

Contesting the aforesaid submission, Mr. Tamboly appearing for the Developer would invite our attention to the Agreement for Sale, which is a registered document, and according to him, the very first covenant of the agreement indicate that the promoters had agreed to sale and the purchasers are agreed to purchase the premises admeasuring 1305 sq. ft (built-up area which is inclusive the area of the balcony) for the price of Rs. 43,39,125/- being the proportionate price of the common area and facilities appurtenant to the said premises as shown in the typical floor of flat. According to Mr. Tamboly, as far as the common amenities are concerned, the agreement clearly specifies that the purchaser will enjoy undivided interest and enjoy the common areas and facilities appurtenant to the said premises agreed to be sold as set out in second schedule. In any case, it is the submission of Mr. Tamboly that there is an arbitration going on between Respondent No.4 and the Developer and that is the different subject matter, which has nothing to do with the action which the Society is intending to implement based upon the speaking order passed by the Corporation, as what is occupied by the Respondent No.4, is the refuge area, which all the time is expected to be kept open with all the requirements to be ensured in the refuge area to deal with emergencies on its occurrence.

In the wake of the entire conspectus of the matter, we note that in the affidavit the Developer has adopted a specific stand and the Respondent No.4 is harping upon the said stand, but we are conscious of the fact that arbitration proceedings are ongoing between them and we are not aware as to what is the impression given to the Respondent No.4 by the Developer as it is a specific argument of the learned counsel representing Respondent No.4 that an internal staircase, which is seen in the photographs was already constructed by the Developer himself and he has not taken any steps. He harps on the impression given to him that even the terrace is sold to him and according to the learned counsel he has paid consideration in that regard to the Developer. In any case, we do not intend to get into the same but at present, we must only note that if the terrace is declared as a refuge area and if the Fire Department has imposed a condition that it shall act as a refuge area and comply with the stipulation like the entrance doors of the refuge areas painted with “REFUGE AREA IN CASE OF EMERGENCY”, provision of adequate drinking water facilities as well as adequate emergency lighting facility connected to the electric circuits of staircase, corridor/passage etc., and if this was the condition for grant of Occupation Certificate by the fire department then this facility must be in place. The occupation of the building itself was permitted subject to the undertaking given by the Developer that he has ensured compliance of all the requirements but we really wonder whether any inspection was taken out of the building to ensure that the facilities have been maintained. In any case, now since the Society has expressed apprehension and from the photographs, it is evidently clear that the entry on the terrace is blocked and the only access available on the terrace, which is declared as a refuge area is through an internal staircase, which is constructed through Flat No 2902 A and for this purpose finding it to be unauthorized the Corporation has issued a notice and even had passed a speaking order. The aggrieved party Respondent No.4 has already knocked the doors of the competent court, but has not yet obtained any stay.

In such circumstances, we are of the view that it is high time that the Corporation proceed ahead with the action based on the speaking order dated 10/08/2025, which is passed after issuance of notice to Respondent No.4 and on consideration of the response of Respondent No.4 and by following due process of law if the speaking order is passed, then it must be immediately given effect. As far as the dispute between the Developer and the Respondent No.4 is concerned, we have not touched or pronounced upon the entitlement of either party in the said proceedings. We direct the Corporation to immediately proceed with the implementation of the order dated 10/08/2025, as we are informed that there is no stay granted.

Worth it note that if the Corporation find that the refuge area is not only on the terrace but on the other floor, which is earmarked by the fire department is not compliant with the specifications set out by the fire department in its communication dated 26/03/2024 while granting the NOC stipulating fire protection and fire fighting requirements in construction of the high rise building, the Corporation is at liberty to bring to the notice of the fire department which shall be then competent to take appropriate action, which may even extend to withdrawal of the Occupation Certificate.

It is a contention of Respondent No.4 that the flats on various floors also have enclosed the duct and we expect the Corporation to carry out an inspection in this regard and if according to the Corporation it is an illegality or an unauthorized structure, we direct Corporation to initiate action.

As far as the staircase is concerned, the learned counsel for the Respondent No.4 has vehemently asserted that it is provided by the Developer, but Mr. Tamboly specifically deny. From the photographs placed before us the staircase leads to the terrace and we have an objection about the terrace being put to exclusive use by Respondent No.4, but on an inspection being carried out before taking action for implementation of the speaking order, if Respondent No.4 close the access to the terrace and chose to keep the staircase as an architectural marvel in his own flat, we direct that the Corporation shall permit it to be retained, if it do not cause harm to the remaining structure.

We also clarify that Corporation shall ensure that the common door which has been closed providing access to the terrace shall be opened.

With the above direction, the Writ Petition is made absolute.