I, Dr Nimeesh Shah from Mumbai owe debt of gratitude when I read through first part of change of user article in Indian cooperatives.com on judgment for change of user. Would be happy to have it in simple language I can comprehend
My story is as follows
I had procured a residential premises in Dombivli (E) for use as ophthalmology day care center with small operation theater in 2007 ,as per no objection certificate from society managing committee for commercial use as clinic mentioned above Electric bills , property tax ,yearly Maintenance to society are all paid for commercial usage change of user process with town planning department of kalyan dombivli municipal corporation least yield results in spite of best protocols & efforts in place by me I have leased the premises to another doctor friend for clinic use for personal reasons since 4 years
Can I look forward to your expert guidance as per judiciary judgement from high court & society by laws on
#Do I need to procure change of user from muncipal corporation ,Kdmc,Maharashtra inspite of having Noc from society managing committee
# what will be the status( Residential or Commercial) of this premises when I am reassigned the place post redevelopment,as & when
# whether I can sale this as commercial premises in spite of residential sale agreement with seller in place
I C Naik
Apparently you have come across my following posts on following URL.
https://www.indiancooperative.com/cooperative-coffee-shop/implications-in-case-of-user-change-of-a-flat-in-maha/ April 17, 2015
https://www.indiancooperative.com/cooperative-coffee-shop/chs-converting-a-residential-flat-to-commercial/ April 25, 2015
https://www.indiancooperative.com/cooperative-coffee-shop/re-visiting-chs-user-change-post-march-s-c-order/ May 04, 2015
I agree that it is a complex issue and it is a real task to put in a simple way. Complexities have been equally aggravated by the Authorities and shortage of space. All the three posts referred to above need to be gone in to with a lot of patience to really grasp the issue.
In the context of the facts of your “opthalmology day care center with small operation theater” I will try to dissect “the user change issue” a fresh.
The dissections revolve round the Builder, Civic Authorities (all are same) namely BMC in above cases, the registered bye-laws , the managing committee’s prerogative, the Supreme Court of India.
In Bye-Laws membership application and flat allotment letter are relevant and in case of Civic Authorities Town Planning Regulations and building plan approval are relevant. The Supreme Cort’s latest judgment post 97th Constitutional Amendment. The managing committee is in the centre but has not been in focus and that was a focal point in S C ORDERS. So complexities are imminent.
The Builder has to have a documented approval of user of the building. Town Planning Rules lays down user guidelines and if it is permissible therein, the BMC can approve user plan of the building in whole or in part. An user change can only be allowed if Town Planning Rules provided for it. So this is almost a starting point.
It cannot be ruled out that town planning department of kalyan dombivli municipal corporation have no powers to let a building or a flat therein to put to a specific commercial use for example “opthalmology day care center with small operation theater” They may be hesitant to decline.
In Dadar Awanti’s case the BMC allowed to construct the Clinic in recognition of a imminent change as per the Draft Town Planning Rules which actually became operative after the BMC Chief allowed construction of Clinic in residential building. The society successfully resisted it but only in the Apex Court. Even the Bombay High Court also failed to see it correctly.
When I pressed on the issue of by-passing the managing committee (also by Hon. S C ) it was because, once having quashed the BMC Chief’s order of approval to such clinic, the S C observed that the concerned members may approach BMC for such approval a fresh now that the Rules have undergone the changes. But the fact that the change was not allowed by the society was ignored even in the S C order.
In all these proceedings the fact “that it is the CHS who owns / maintains the Building and its user is always subject to regulation under the Bye-Laws and the managing committee is the custodian there of never came up. The members are a kind of tenants in special having a transferable interest to occupy the flat and participate in the use of common areas and facilities in uniform manner. User Change is not alright of a member even if BMC Chief were to allow.
BMC Chief is also a custodian of Town Planning Regulations but not by ignoring the legislative enactment where in the Committee is given specific powers. The managing committee is the regulator. In your case you have honoured that fully. The managing committee being responsible for all actions of the society, is bound by town planning regulations and any change in any part of the building is requested for by any member as aforesaid it needs to be previewed and cleared as to whether it was indeed permissible under Town Planning Rules which clearance is given by Civic Authorities.
Membership application carries an undertaking of the applicant for membership that no change in the user of the flat will be made without the prior approval of the Committee. Here in your case the society management has failed in its duty. Your leasing it for 4 years was also subject to prior approval of the managing committee. If not done is also a serious breach of Bye-Laws. If town planning did not take up your request for user change which I hope was initiated by the society and not by you as a member directly the managing committee ought not have allowed you to make a change. Who knows if you paid correct property tax? Yet another serious matter!
