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NO INDIVIDUAL AGREEMENT TO EXECUTE

BEFORE CC ISSUED BY BMC

 

In the matter of redevelopment, the Developers are required to execute Tripartite Individual Agreement with each of the existing members of the Society in respect of providing new Permanent Alternate Accommodation and get the same registered before the members vacate their flats and hand over the possession of the same to the Developers for redevelopment. This being one of the conditions by default, in the IOD (Intimation of Disapproval) issued by the BMC.

In a historic judgment, the Bombay High Court has set aside a condition imposed by the BMC that the Developer must execute a Permanent Alternate Accommodation Agreement with the existing members of the housing society to get qualified for the issuance of Construction Commencement Certificate (CC) by BMC. The redevelopment of a part of the MIG Colony in Bandra that had remained stalled for the past few years can now go ahead as per the judgment pronounced by the Bombay High Court recently. It was observed that the Section of the Development Control Regulations (DCR) under which the redevelopment was being carried out, did not impose such condition on the Developer.

The Regulation 33(5) of the DCR does not impose under reference to the Condition no.10 viz. execute a registered tripartite agreement of new flat between the Developer, Society as confirming party and the existing members before issuance of the CC by BMC. In contravention to this, the Clause-10 of the IOD had imposed such condition, issued by respondent No.1 i.e. the BMC, without considering the Regulation 33(5) of the DCR under which the redevelopment of the said project was being undertaken.

Way back in October 2010, the MIG Society executed Development Agreement with MIG (Bandra) Realtors and Builders Pvt Ltd, a DB Realty group company. The BMC issued an IOD in September 2013. Around two years later all the 176 members of the buildings vacated their respective premises and handed over keys of their respective premises to the said Society, which passed them on to the Developer for redevelopment, indicating 100 percent consent in favour of the Developer. The BMC, however, refused to let the project go ahead and insisted on execution of Permanent Alternate Accommodation Agreements with the existing members to get the CC issued.

Despite the Developer pointing out to the BMC that the relevant Section of the DCR did not impose such a condition; that this was not a landlord-tenant type redevelopment project and the existing members of the Society were the owners of their flats. However, the BMC disregarded the Developer’s request, forcing them to approach the HC which later ruled in favour of the Developers.

The Court observed that the BMC, by imposing such a condition had acted in an arbitrary manner apart from the condition being illegal and the redevelopment project was inordinately delayed for years causing severe blows on the members of the said Society.

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TDR ON PRIVATE & INTERNAL ROADS 

There’s good news for redevelopment projects located along internal private roads across the suburbs as the Urban Development Department (UDD) of State Government has finally clarified that Transfer of Development Rights (TDR) can be now be issued on both private and internal roads with a width of 9 meters after the BMC delayed issuing TDR for such projects. The hindrance came after the State Government announced a new TDR policy in 2016.  

As we are aware that due to new TDR policy, redevelopment projects located along internal private roads in private layouts across the suburbs were stalled because the BMC had stopped issuing/loading of TDR under new TDR policy for such projects as a result of which, an estimated 500 housing society redevelopment projects were affected for the last few weeks in certain western and eastern suburbs.

The TDR was being issued only for municipal roads, public roads, pre-merger layout roads and road alignments marked by the Brihanmumbai Municipal Corporation (BMC). Most housing societies that were contemplating redevelopment located in Chembur, Ghatkopar, Santacruz, Khar and Juhu, where TDR was not given to such redevelopment projects abutting internal roads and right of ways.

The impediment was the State's new TDR policy introduced last year which did not permit TDR to be loaded on redevelopment projects on internal roads not owned by the BMC. Hence, the BMC refused to allot additional construction permissions in the form of TDR to complete the said projects.

The move of State Government will benefit close to 500 housing societies up for redevelopment which were affected by the earlier decision of barring the issuance of TDR for internal private roads in private layouts. This has now clarified that any private or municipal roads and roads with a width of 9 mtrs can now avail TDR benefits.

TDR is generated and raised under Regulation 34 of the Development Control Rules (DCR). The rule states that a BMC road with a width of 9 mtrs and abutting any structure is issued a TDR. The Developer can use the TDR elsewhere in the city. It is further clarified by UDD that the rule is likely to be further relaxed to 6 mtrs to ease redevelopment of those buildings on BMC roads having width of less than 9 mtrs. A notification in this regard is awaited.

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MEMBER IN HOUSING SOCIETY CANNOT MERGE FLATS WITHOUT BMC PERMISSION

There are numerous examples of resident members in Housing Societies who buy luxurious flats either in new buildings or redeveloped ones which are adjoining ones and for their habitable convenience, merge them in to one flat or if the flats are situated on lower and immediate upper floor, merge them in to a duplex flat by construction in-house stairway connecting both the flats. While the resident members enjoying their stay thereafter never knew that Section 347-C of BMC Act, 1988 prohibits them for such merger without the authority’s prior permission.

Recently such case has been on record that Metropolitan Magistrate's Court, Vile Parle, held a Dahisar resident guilty of merging two flats without procuring the BMC permission. The accused was fined by the Court a sum of Rs.10,000/ for violation of rules. The offence of the said accused came to light through the information sought under RTI that no permission was granted by BMC for the amalgamation of flats, ruled the Metropolitan Magistrate of Vile Parle Court.

The accused admitted that he had indeed merged two flats in May 2010 before receiving the Occupation Certificate (OC). However, he agreed having paid the fine amount and rectified the changes made as he did not want his family to suffer. Section 347(c) of the BMC Act envisages that no alteration can be made to a residential building or plans which have been approved by the BMC. Once the plans are sanctioned and flats are built, any change including setting up a partition, demolishing walls, merging flats or using a residential apartment flat as a warehouse, require the permission of the Civic Chief, according to the lawyers. The text of relevant Section is appended herein:

Section 347-C: No alterations to be made in buildings for human habitation without written permission of Commissioner. "No person shall without the written permission of the BMC Commissioner or otherwise than in conformity with the terms of such permission make any alteration or cause any alteration to be made in an existing building originally constructed for or authorised to be used for human habitation for the purpose of using it or causing human It to be used as a godown warehouse, workshop, workplace, factory, stable or motor garage".

The next door neighbour of accused lodged a complaint with the BMC and also stated that the accused had built a door to connect the drawing rooms of the two flats. Further, without the BMC's prior permission, a bathroom in one of these two flats was turned into a kitchen. However, it was reported that while BMC delayed initiating action against the accused, his neighbour filed a query under the RTI Act which motivated the Corporation to issue a notice to the accused. The BMC lodged a case before the Metropolitan Magistrate when the accused failed to comply with the notice to restore the flats to its original condition.

As per Section 342 of BMC Act, 1988 (amended till date), the following “tenantable repairs”, can be carried out without obtaining permission from the ‘Building and Factory’ Department of local BMC Ward:

• Plastering, painting, pointing of your flat

• Providing guniting to the structural members or walls

• Changing floor tiles

• Repairing WC, bath or washing places

• Repairing or replacing drainage pipes, taps, manholes and other fittings

• Repairing or replacing sanitary, water plumbing or electrical fittings

• Replacing the roof with the same material

• Replacement of existing water-proofing material of the terrace. The only pre-conditions to the renovation work to be done at residences are:

• The original tenantable structure (whether rental or ownership) must be legal, i.e. it is based on the original BMC-approved Building plan.

• Though no BMC permission for the above is required, it is advisable to do so under strict supervision of a registered Architect and/or Structural Engineer.The "tenantable repairs" however shall NOT include the following:

• Replacing or removal of any structure members of load bearing walls.

• Change in horizontal or vertical existing dimensions of the structure.

• Lowering of plinth, foundations or floors.

• Addition or extension of mezzanine floor or loft.

• Flattening of roof or repairing roof with different material

• No merger of tenancies by removal or opening of any walls in between two or more tenancies.

• Changing location of bathroom/WC/kitchen sink, in a way that can cause leakage to residents below.

• Increasing the internal height of the structure.

BMC Notices

Notice issued by BMC under Section 354 is a STOP Work Notice if it feels ongoing work is unlawful. If there is unauthorised construction then BMC can issue a Show-Cause Notice under Section 351. This is NOT a Stop Work Notice – it is issued when work is completed and persons are utilizing the said premises. If the officer is not satisfied with the documents produced, then he has to give them an opportunity to revert the property back to the original legal status after which, the BMC can initiate demolition under Section 488. The party can go to the Civil Court for a stay. Notice under Section 381 is issued by BMC if there is nuisance to other members due to some work done by the resident. For any construction to be legalized; there must be documentary proof (electric bill or property assessment etc.) that the structure existed prior to 1962.

Before starting renovation work on your property, if you are in doubt, it may be safe to take ‘dated’ pictures of the property. However, if you submit a letter to the local BMC office, attaching a copy of the Architect’s proposed plan, you may be requested to forward the same to Building Proposal Department of your Local Municipal Ward for written approval.

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MAJOR IMPORTANT CHANGES IN MCS ACT, RULES AND BYE-LAWS - 2014

Major changes in MSC Act, 1960 viz-a-viz Model Bye Laws of Co-operative Housing Societies and similar changes have been done in all types of Co-operative Societies.

1. Condition for Membership: Applicant to take 10 shares of Rs.50 each as against earlier condition of 5 shares. Bye law No.22 on rights of membership talks about the right to receive the notice of demand from Society if there is increase in minimum contribution of member in share capital.

2. Classification of Active and Non-Active members: Active member:

o He has purchased and/or owns the Flat/Unit in the Society.

o He has attended at least One General Body Meeting within a consecutive period of Five years. (Provided that nothing in this clause shall apply to the member whose absence has been condoned by the General Body of the Society).

o He has at least paid the amount equivalent to Three year of Society Maintenance and Service charges within a consecutive period of Five years.

Non-Active member:

o A member who is not an ‘Active Member’ shall be the 'Non–Active Member'.

o Society shall classify the members as ‘Active’ or Non – Active’ member at the close of every financial year.

o Society shall communicate to every Non–Active member about his classification within a period of 30 days from 31st March of every year as prescribed under these Bye Laws as per Appendix

o If a question of a member being Active or Non – Active arises, an appeal shall lie to the Dy. Registrar within a period of 60 days from the date of communication of such classification.

o The 'Non-Active' member can be reclassified as 'Active Member' if he satisfies the conditions laid down under Byelaw no. 22(B) (1).

3. Associate Member Definition: Ownership in the property individually or jointly with others is must and whose name does not stand first in the Share Certificate.

4. Co-operative Education and Training to Members, Committee Members, Officers And Employees.

5. Education and Training fund of Rs.10 per member per month to be collected as against Rs.3 per member per annum and such fund to be used to impart training to the members through the notified Training Institutes.

6. Sinking fund can be utilized by the Society and no permission of the Registrar is needed. General body permission however, is must.

7. NOC of Society for transfer of flat or property is not required. However, MCS Rule 24 and Bye Law No.38 on transfer of shares and interest want the transferring member to give 15 days’ notice to the Society of his intention to do so along with the consent of the transferee member.

8. Elections of Managing Committee must be notified six months in advance and to be held under the supervision of the newly constituted State Co-operative Election Authority (SCEA) Sec.73 CB.

9. Casual vacancy in Managing Committee to be informed to Election Authority and Co-option is not allowed.

10. Disqualification of Managing Committee and its members- Sec.77-A & 78.

11. Strength of Management committee and Reservation of seats for Women and for members of SC, ST and OBC Category with Expert and Functional Directors appointment possible subject to conditions.-Sec.73AAA & Bye Law No.113.

12. Last date for conducting AGM is 30' Sept every year as against 14’ Aug.

13. Appointment of Auditors , their Remuneration, Rights and Responsibilities, Removal etc.-Auditor should be a panel auditor and maximum appointment for consecutive three years and maximum 20 audits excluding for Societies with paid capital of less than Rs.1lac. Additional responsibility to file FIR if misappropriation etc is noticed -Special & Specific Reports to be filed with Registrar by the auditor- Sec.81/ MCS Rules -69/Bye Law No.150-152

14. Cash expenses limit Rs.1500/- as against Rs.4500/-in Bye laws.-Bye Law No.144/ MCS Rule -107D.

15. Cash in Hand at the close of the day limit increased from Rs.300 to Rs.5000/-Bye Law No.143/MCS Rule -107C.

16. Encroachment of common areas by members to be charged at 5 times the monthly maintenance charges for the period of such encroachment.-Bye Law No.168.

17. Applicability and adoption of accounting standards prescribed by State Government and by ICAI-Sec.81 & notification dtd.29th Oct.2014 regarding the audit fees include the applicability of accounting standards and standards on auditing also.

18. Filing of Annual Mandatory Returns with the Registrar.-Sec.79 (1A) & 79(1B).

19. Penalties prescribed for various offenses and consolidated penalty for all defaults to be Rs.5000/-maximum in any financial year.

20. Concept of Emergency Planning Scheme and Fire Safety Audit introducing Bye Law N0.75. The Maharashtra Fire Prevention and Life Safety Measures Rules, 2009 has made it mandatory for building owners and residents to conduct half - yearly fire safety audits and submits the report to the Fire Department. As per the directive of Directorate of Maharashtra Fire Services, the safety audit has to be conducted by the “Licensed Agency" approved by them.

21. Structural Audit: once in 5 yrs for Bldg ageing 15-30 years and once in 3 years if Bldg ageing more than 30 year by BMC approved Structural Engineers.

22. One time limit for repairs and maintenance expenses Managing Committee can decide is Rs.1 lac Max.-else General Body permission must.

23. Cheques should be signed by Secretary and Chairman/Treasurer and same with the vouchers.

24. Mandatory filing of Annual Returns and auditor’s appointment should be insisted for.

25. Security Bond for holding cash from the employee and officer 500 and 1000 respectively if Paid up Capital is less than 1.50 lakhs and Rs.1000 & 2000 if it is more than 1.50 lakhs MCS Rule-107B.

26. The word "Administrator" has been removed and now the term is "Authorized Officer"

27. Audit Rectification Memo needs to be submitted to Registrar in ‘O’ Form within 3 months from the date of the audit report and even auditor has to give remarks on that penalty for Society of Rs.5000 u/s 147 Introduction of Sec.146 offences and 147 which talks about penalties

28.Dismissal of Managing Committee if the election due date is not intimated or mandatory returns are not filed, non submission of audit rectification report, not holding AGM or SGM as required under law, disobeying the notifications and order of the Government and Registrar etc.

29.Copy of Bye laws, list of members to be kept open for inspection to public free of charge.

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