Illegal encroachment to install gate on stair

771 votes

In India, the roof/terrace rights of a third floor (or any top floor) in a builder-constructed building depend entirely on what is written in the registered Sale Deed and the sanctioned building plan. Physical proximity does not automatically grant ownership. Indian courts (including the Supreme Court and various High Courts) look at the following legal principles to determine who owns the roof: 1. The Registered Sale Deed is Final If Exclusive Rights are Mentioned: If the builder explicitly transferred the exclusive roof/terrace rights to the third-floor owner in their registered Sale Deed, that owner holds the legal right to the terrace. If the Deed is Silent: If the document does not mention who owns the roof, it is legally deemed a common area. This means all floor owners (Ground, First, Second, Third) have an equal shared right to use it.

Advocate Rajeev Kumar LawRato

898 votes

If the staircase is a common area and the gate installed by the third-floor owner obstructs your lawful access to the terrace/common water tank or other common utilities, you may approach the competent Civil Court by filing a suit for declaration, permanent injunction and mandatory injunction

Advocate Pooja Patel LawRato

686 votes

First, you have to see in your sale deed, and the sanctioned building plan to confirm whether the staircase and access to the roof are common. After seeing the documents, if your right of access is established, you can issue a legal notice asking the third-floor owner to remove the obstruction or provide proper access to the roof. If does not comply, you can file a civil case seeking removal of the gate and an injunction against any future obstruction.

Advocate Nikhil Karwal LawRato

996 votes

If the staircase/area leading to the roof is a common area and your sale deed or other title documents give you a right to access and use the roof, the builder/owner cannot ordinarily obstruct that access by installing a gate merely on his own. However, you should not forcibly remove or break the gate, as this may create a separate dispute or criminal complaint. The appropriate remedy is to first send a legal notice demanding removal of the obstruction and restoration of access. If the gate is not removed, you can approach the competent Civil Court seeking mandatory injunction for removal of the gate and permanent injunction restraining further obstruction. An application under Order XXXIX Rules 1 & 2 CPC can also be filed for urgent interim protection, particularly if access to the roof is required for maintenance of water tanks, electricity equipment, repairs, etc. You should preserve your sale deed, sanctioned plan/building documents, photographs/videos of the gate, previous complaints and proof of your roof rights. If the gate or construction is also unauthorised under municipal/building regulations, an appropriate complaint can additionally be made to the concerned municipal authority. The crucial issue will be whether your registered documents establish your right of access to the roof and whether the staircase/portion where the gate has been installed is a common area.

Advocate Kawaljit Singh Bhatia LawRato

830 votes

This is a civil case and police will not help in such cases. You need to file a Permanent Injunction suit before the competent court to remove the gate or to give keys to such a gate to access the terrace. Or you can initially send them a legal notice.

Advocate Gurpreet Kaur LawRato