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Shruti Desai

VIOLATION OF THE COPYRIGHT ACT IS A CRIMINAL OFFENSE? IS IT A BAILABLE OFFENSE?

December 23, 2022

What is Copyright and when it becomes a criminal offense? To understand this question, we must know the legal provisions. COPYRIGHT ACT 1957 WHAT IS COPYRIGHT? Meaning of said term is given under Section 14 of the Act. [14. Meaning of Copyright.— For the purposes of this Act, “copyright” means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:— (a) in the case of a literary, dramatic or musical work, not being a computer programme,— (i) to reproduce the work in any material form including the storing of it in any medium by electronic means; (ii) to issue copies of the work to the public not being copies already in circulation; (iii) to perform the work in public, or communicate it to the public; (iv) to make any cinematograph film or sound recording in respect of the work; (v) to make any translation of the work; (vi) to make any adaptation of the work; (vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi); (b) in the case of a computer programme,— (i) to do any of the acts specified in clause (a); 1 [(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme: Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.] (c) in the case of an artistic work,— 2 [(i) to reproduce the work in any material form including— (A) the storing of it in any medium by electronic or other means; or (B) depiction in three-dimensions of a two-dimensional work; or (C) depiction in two-dimensions of a three-dimensional work;] (ii) to communicate the work to the public; (iii) to issue copies of the work to the public not being copies already in circulation; (iv) to include the work in any cinematograph film; (v) to make any adaptation of the work; (vi) to do in relation to adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv); (d) in the case of a cinematograph film,— [(i) to make a copy of the film, including— (A) a photograph of any image forming part thereof; or (B) storing of it in any medium by electronic or other means;] [(ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the film;] iii) to communicate the film to the public; (e) in the case of a sound recording,— (i) to make any other sound recording embodying it 1 [including storing of it in any medium by electronic or other means]; [(ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the sound recording;] (iii) to communicate the sound recording to the public. Offence […]

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COLLEGIUM AND CONSTITUENT ASSEMBLY -PITH AND SUBSTANCE CONFLICT OR DEVIATION?

December 19, 2022

Nowadays Collegium is a topic of debate. It’s a system where the Committee of Justices of Higher Courts sanctions and recommends an appointment of an Advocate/Justice of the High Court to a higher bench or apex bench of the Judiciary. Which is under criticism. At present Collegium is a system that makes the appointment and recommends names to the President and Government of India.  However, as a matter of academic interest let us see the background of this issue. To draft the Constitution, a Constituent Assembly was constituted. In the said assembly the topic or article on the appointment of Judges to the higher judiciary amendments was discussed at length. Copy each of Part-1 and Part -2 of the Collegium discussion given below in the link. The following are the relevant resolutions. Proceedings before Constituent Assembly Mr. President: The question is: “That for clause (2) of article 103 the following be substituted:- ‘Every Judges of the Supreme Court shall be appointed by the President by warrant under his hand and seal and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge, other than the Chief Justice, the Chief Justice of India shall always be consulted.’” The amendment was negatived. “That in clause (4) of article 103, for the words ‘supported by not less than two-thirds of the members present and voting has been presented to the president by both Houses of Parliament ‘ the words ‘by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President’ be substituted.” The amendment was adopted. Provision of Constitution: An evolution: Provision of Constitution : Establishment and constitution of Supreme Court.—(1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than [seven] other Judges. (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal [on the recommendation of the National Judicial Appointments Commission referred to in article 124A]2  and shall hold office until he attains the age of sixty-five years: 3.[* * * * *] 4 [Provided that]— (a) a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office in the manner provided in clause (4). 5 [(2A) The age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide.] (3) A person shall not be qualified for appointment as a Judge of the Supreme Court, unless he is a citizen of India and— (a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or (b) has been for at least ten years an advocate of a High Court or of two or more such Courts […]

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PREVAILING LAW RELATING TO THE TRANSFER AND TRANSMISSION OF SHARES ON THE DEATH OF A MEMBER  SHORTCOMINGS

November 14, 2022

 This  blog comes in wake of a judgment I came across of the Bombay High Court in the matter of  Karan Vishnu Khandelwal Omdham Cooperative Housing Society Ltd. Vs Deputy Registrar -K-West In this matter facts of the case were as under: Mannalal Surajmal Khandelwal (deceased) was owner of a flat no.1 and by virtue thereof, was entitled to share certificate. The deceased during his lifetime registered a nomination in the name of Petitioner- his grandson. The nomination was acknowledged by the managing committee of the society in it’s meeting held on and made an entry in the nomination register. Mr. Mannalal Khandelwal died intestate on 20thJanuary, 2011, leaving behind, Rajendra Mannalal Khandelwal (Son- Respondent No.2); Krishnakumar Mannalal Khandelwal (Son); and Petitioner- son of Vishnu Mannalal Khandelwal (predeceased son of deceased). That upon demise of Mannalal Surajmal Khandelwal, Respondent No.2 – Rajendra M. Khandelwal, made an application to the society, inter alia, seeking transfer of membership and the share certificate in his name. Along with the application, he submitted a No Objection cum Declaration’ and indemnity bond made and executed by Krishnakumar Mannalal Khandelwal. This way, the Respondent No.2 claimed 2/3rdshare and interest in the flat and sought transfer of proportionate interest in flat and claimed membership. The application was rejected by the society on 8thAugust, 2018. Whereafter, the Respondent No.2 preferred an appeal under section 23 (2) of the Maharashtra Societies Act (‘MCS Act’ for short), being Appeal No. 09 of 2019 before the Deputy Registrar. The Petitioner sought intervention in the said appeal. The Intervention was allowed. The Deputy Registrar vide order dated 8thFebruary, 2021 allowed the appeal and held that since the Respondent No.2 has acquired 2/3rdright in flat No.1, to that extent, his interest be noted in the society record. In consequence, the Deputy Registrar acknowledged 2/3rdundivided right of the Respondent No.2 and 1/3rdundivided right of the Petitioner in flat No.1 and directed to make entries in the society records. In revision, the Divisional Joint Registrar upheld the order of the Deputy Registrar and dismissed the revision application of the Petitioner. Feeling aggrieved by that order, the Petitioner has filed this petition. MATTER BEFORE BOMBAY HIGH COURT WHEN ERROR OF LAW OCCURRED The matter when came up before the Bombay High Court, the court observed that Registrar passed the impugned order in haste may be at the behest of respondent No.2. Therefore, the impugned order not only suffers from gross irregularity being passed in breach of principles of natural justice but also against the law, and therefore, deserves to be quashed and set aside. While passing the Judgement Bombay High Court relied upon Indrani Wahi Vs. Registrar of Co-operative Societies (Civil Appeal 4930/2006), held that the cooperative society was bound by nomination made by the deceased and it was bound to transfer the shares to the nominee While passing the Judgment Hon’ble Court it relied upon the provisions of Section 154-B(2) of Maharashtra Cooperative Societies (Amendment) Act, 2019. In any event, by. It reads under:     “154-13. On the death of a Member of a society, the society shall transfer share, right, title and interest in […]

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The chair

MAHARASHTRA CO-OPERATIVE SOCIETY ACT LACUNAE ABUSE  OF POWER AN ANALYSIS AND SUGGESTIONS

October 5, 2022

“Nearly all men can stand adversity, but if you want to test a men’s character, give him power.” Said Abraham Lincoln This aptly applies to the Managing Committee of a society. Once the power comes neighbor becomes your Master. There are many incidents where the committee manipulates bills and contracts, and even in redevelopment cases three honorary office bearers Secretary, Chairman, and Treasurer have weightage in the finalization of the deal. We see litigations and stalling of projects of a housing society. Human tendency is such that they think of self-gain, instead of taking care and executing responsibilities that they have taken with utmost care and truthfulness. Corrupt minds see financial benefits in every deal. They forget that while doing this they prejudice the property and interests of other flat members. Election: 1 With the new election rules, an election is held similarly to the way in which how elections are held in any Assembly and Parliament. Cartel is formed and elections are won. It has killed the neighborhood’s love, respect, and honor. One family and one flat provision are also violated royally. Even if distant relatives or cousins have a cartel. This creates a monopoly in management. Suggestion: Like Multi Co-operative society, provide that same member or any other joint member from one flat cannot contest the consecutive election. The flat owners/member must take a break or drop out from the next election to give an opportunity to other flat owners/members. So, after serving for 5 years the said member/flat owner cannot contest election for immediate subsequent another term. This will reduce the monopoly of a few flat owners and their families, and their friends. For the convenience of the readers and lawmakers reproduced below is the provision of the Multi-State Cooperative Societies Act,2002 below which restricts reelection after two terms. Prohibition to hold the office of chairperson or president or vice chairperson or vice president in certain cases (1) No member of a board shall be eligible to be elected as the chairperson or president or vice-chairperson or vice-president of a multi-state cooperative society if such member is a Minister in the Central Government or a State Government. (2) No member of a board shall be eligible to be elected as the chairperson or president of a multi-state cooperative society, after he has held the office as such during two consecutive terms, whether full or part: Provided that a member who has ceased to hold the office of the chairperson or president continuously for one full term shall again be eligible for election to the office as such. Explanation:- where any member holding the office of the chairperson or president at the commencement of this Act is against elected to that office after such commencement, he shall for the purpose of this section, be deemed to have held office for one term before such election. Proposed Suggestion : A similar principle must be applied to the housing society. A.2 A Managing Committee was disqualified for 5 years, and an administrator was appointed. Managing Committee manages to suppress the facts from members of the society and manages that the […]

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LAW GOVERNING DIVORCE BY MUTUAL CONSENT AND THE CONSTITUTIONAL  PROVISION

September 22, 2022

MARRIAGES ARE DECIDED IN HEAVEN BUT LIVED ON EARTH Introduction: Couples are so eager to get married but are not ready to accept duties and responsibilities. The problem starts from here. Marriage is the foundation of a healthy society. A fractured family gives a fractured and weak society. It gives an insecure future to the nation. Families spend lakhs and crores on the wedding with branded dresses, pre-wedding shoots, food, and ornaments but don’t focus on the spiritual and social aspects of marriage. So once the film of a wedding is over, couples enter the world of reality and find it difficult to manage their relationship with each other and with other family members. From divorce they give an insecure future to their kid if any, and to themselves. Their family members too. As laws in India are such people avoid staying together in fear of criminal prosecution, which is evidently misused in the majority of cases on advice to get divorce and alimony. As per data compiled by the National Crime Records Bureau (NCRB) in the report Crime in India 2020 about 5% of the cases under Section 498A were found to be false. The outcome is couples prefer to leave the country and settle abroad and seniors land in old age homes. These are serious dangers to society. So, should divorce by Mutual Consent be instant? Should six months cooling period be waived? If Yes,  on what terms? If No, then why? The issue involved: A Constitution Bench of the Supreme Court will start hearing on 28th September,  to consider the extent of its powers under Article 142 of the Constitution of India, 1950, to dissolve the marriage. The 5-Judge Bench headed by Justice S.K. Kaul and comprising Justices Sanjiv Khanna, AS Oka, Vikram Nath, and JK Maheshwari was of the opinion that the real issue is the exercise of power under Article 142 when there is an irretrievable breakdown of marriage, but one party is not consenting to divorce. Shilpa Shailesh vs Varun Sreenivasan The Constitution Bench reference originates from a Transfer petition, wherein pursuant to the settlement, the parties had sought appropriate order of the Court to dissolve their marriage, and the same was granted by the Apex Court on the following grounds – there has been an irretrievable breakdown of the marriage between the parties; the parties are consenting to divorce; requiring the parties to go to the jurisdictional family court to invoke the provisions of the Hindu Marriage Act, 1955 to seek a decree of divorce would be a lengthy process and that, the Family Courts in the country are already burdened with a huge volume of similar litigation. Dictum: Man is a social animal. He cannot live in isolation. To carry forward the human race a sacred institution is created by the name of marriage to have progeny. Who will continue the family tradition, language, dialect, culture, food habits, etcetera. In Hindus, marriage is a sacred institution and not contractual. It carries the sanctity of an institution namely marriage. What is important is to carry forward the family legacy too. Divorce was an […]

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SUCCESSION, TRANSFER, AND TRANSMISSION OF SHARES IN SOCIETY DIED INTESTATE BUT LEFT NOMINATION

September 6, 2022

SUCCESSION, TRANSFER, AND TRANSMISSION OF SHARES IN SOCIETY A peculiar case came up. The deceased a Hindu was a sole member of society. It was his self-acquired property. He dies suddenly without leaving a WILL. But the wife is a nominee. Out of wedlock, they have only one daughter who is major and unmarried. Wife applies for transmission of shares as per nomination. Shares are transferred by the society without any endorsement that it’s transferred in trust as a nominee or get succession certificate. Now this widow, gifts 50% share to her daughter. This happens when parties prepare documents without consulting a lawyer to save money on professional charges. I am saying this because the daughter has by succession 50% right in the property as a member died intestate without leaving a WILL. There was no need of executing the Deed of Gift. The twist is the case comes now, she applies for endorsement and transfer of 50% share ( which is otherwise there under the law) to the society. After several years Society takes opinion and now seeks a Succession Certificate. How far society is justified? We must first refer to bye-laws If there is a single nominee and if he demands payment of the value of Shares and interest of the deceased Member, in the capital/property of the Society, the Society shall acquire the same and pay him the value thereof as provided under the bye-law No.63. If, however, there are more nominees than one and if they demand payment of the value of the shares and interest of the deceased Member in the capital/property of the Society, the Society shall acquire the same and pay them value thereof as provided under the bye-law referred to above in the proportion mentioned in the nomination form. If no proportion is mentioned in the nomination form, the payment shall be in equal proportion. Bye-law 135 (v). The managing committee of the Society shall take necessary precautions to see that no injustice is done to any widow in the cooperative housing Society after the death of a Member before transferring the flat in her name. In such cases, Society shall verify the nomination form duly submitted by the deceased Member or succession certificate /heirship certificate obtained from the Civil Court under the Indian Succession Act 1925 or Will of the deceased Member duly probated by the Civil Court through the executor of the will. After verifying and taking legal guidance Society then only can take appropriate action within the time limit to avoid further legal complications. This procedure can be followed in all cases after the death of a Society Member Section 30 of Maharashtra Cooperative Societies Act, 1960 provides that: Section 30 – Transfer of interest on the death of a member (1) On the death of a member of a society, the society shall transfer the share or interest of the deceased member to a person or persons nominated in accordance with the rules, or, if no person has been so nominated to such person as may appear to the committee to be the heir or legal representative of […]

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CAN THE COURT RESTRAIN THE ELECTION COMMISSION TO DISCHARGE ITS CONSTITUTIONAL DUTIES WHEN THE HEARING OF THE MATTER IS NOT OVER? DOES IT AMOUNT TO ENCROACHMENT IN THE TERRITORY OF AN INDEPENDENT CONSTITUTIONAL BODY? MAHARASHTRA SHIV SENA SPLIT AND CONSTITUTIONAL BENCH

August 24, 2022

“Of course, inasmuch as the power of altering every feature of the Constitution remains elsewhere politically, the Constitution is neither the ultimate ‘‘political’’ sovereign nor a legally unalterable and absolute sovereign. All constitutional and ‘‘legal’’ sovereigns are necessarily restrained and limited sovereigns. I thought and still think that such a working theory should be acceptable to lawyers, particularly as the dignitaries of State, including Judges of superior Courts, and all the legislators, who have to take oaths prescribed by the Third Schedule of our Constitution, swear ‘‘allegiance’’ to the Constitution as though the documents itself is a personal Ruler. This accords with our own ancient notions of the law as ‘‘The King of Kings’’ and the majesty of all that it stands for: The Rightfulness of the Ends as well as of the means.” Kesvananda Bharti’s case (AIR 1973 SC 1461) The Supreme Court on Tuesday referred to a Constitution Bench the petitions filed by the rival groups of Shiv Sena in relation to the political development in State of Maharashtra.  This is Breaking News today. Several questions are before Supreme Court which will now constitute five Judges Bench. I will not touch the same. But can Court by its order restrain any constitutional independent body from discharging its function under the constitution for which it is constituted? First, let us see relevant provisions. Part XV of the Constitution provides for elections. Superintendence, direction and control of elections to be vested in an Election Commission.—(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution 1*** shall be vested in a Commission (referred to in this Constitution as the Election Commission). (2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. (3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission. (4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1). (5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine: Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the […]

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Automated Cars, Electric Cars, Accident and Liability: Indian Laws

July 21, 2022

Autopilot aeroplane, the autopilot engine pulls the entire train. Surprising isn’t it! No human as a driver yet it flies, runs on the track, and even flies. Yes, with artificial intelligence this is possible. It’s already implemented. But today we will discuss only automated cars. Laws governing it and the liability in case of an accident. Tesla is likely to hit the roads in India. It’s an automated car. When it’s going to be part of our normal life, we must know what provisions of the law will be applicable to the crimes. In general Motor Vehicle Act, of 1988 is applicable to vehicles, licenses, crimes,  accidents, etc. relating to vehicles on roads. We will limit today’s discussion to the area of accidents by self-driven automated cars. What are the laws which govern accidents by automated cars? First, we will see legal provisions under the Indian Penal code: Accident in doing a lawful act.—Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. Illustration A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if there was no want of proper caution on the part of A, his act is excusable and not an offence. Section 279 in The Indian Penal CodeRash driving or riding on a public way.—Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with im­prisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Is offence cognizable under S279? The offence punishable under section 279 of IPC is a cognizable offence where the police have a right to arrest a person for an offence without a warrant, but such offences are bailable in nature and are triable by the Magistrate who is having the authority over the area wherein such offence has been committed. Now, what happens when an automated car meets with an accident? India: Motor Vehicle Act 1988 does not provide for an automated car. However, Section 2(9) says “driver” includes, in relation to a motor vehicle which is drawn by another motor vehicle, the person who acts as a steersman of the drawn vehicle. It means the person on the steering wheel is a driver and is an inclusive definition. But there is no provision for automated drivers. What is the difference between a vehicle and a motor vehicle? Vehicle means an Eligible Vehicle purchased by You being the vehicle specified on the certificate of insurance. Motor Vehicles means motor vehicles, tractors, trailers and other like property, whether or not the title thereto is governed by a certificate of title or ownership but does not include any vehicle or car operated on a rail or rails wither on or off […]

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GOVERNOR’S POWER TO CALL A SPECIAL ASSEMBLY MEETING FOR A FLOOR TEST :   Case Study Maharashtra Crisis:

June 29, 2022

Before going for a detailed discussion let us see Constitutional Provision related to the Governor in calling a Floor Test Article 174: Sessions of the State Legislature, prorogation, and dissolution (1) The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session (2) The Governor may from time to time (a) Prorogue the House or either House; (b) dissolve the Legislative Assembly  Right of the Governor to address and send messages to the House or Houses (1) The Governor may address the Legislative Assembly or, in the case of a State having a Legislative Council, either House of the Legislature of the State, or both Houses assembled together, and may for that purpose require the attendance of members (2) The Governor may sent messages to the House or Houses of the Legislature of the State, whether with respect to a Bill then pending in the Legislature or otherwise, and a House to which any message is so sent shall with all convenient dispatch consider any matter required by the message to be taken into consideration Council of Ministers to aid and advise Governor (1) There shall be a council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion (2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion (3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court Note : Article 174 of the Constitution authorizes the Governor to summon, dissolve and prorogue the state legislative assembly. Article 174(2)(b) of the Constitution gives powers to the Governor to dissolve the Assembly on the aid and advice of the cabinet. The Governor can implement his own discretion when the advice comes from a Chief Minister whose majority could be in doubt. Under Article 175(2), the Governor can summon the House and call for a floor test to prove whether the government has the numbers.  Though the Governor can exercise the above only as per Article 163 of the Constitution which says that the Governor acts on the aid and advice of the Council of Ministers headed by the Chief Minister. When the House is in session, it is the Speaker who can call for a floor test. But when the Assembly is not in […]

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CAN THE COOPERATIVE SOCIETY COMMITTEE BLOCK ACCESS TO THE COMMON TERRACE?

May 26, 2022

 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 the 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 the 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 are water, electricity etc. cannot be permitted and requires immediate intervention to rectify the situation as they have a direct bearing on the right to life of a human” All residents must have access to common areas’ | Delhi News – Times of India (indiatimes.com) 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 […]

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