Vijay Trimbak Gokhale
First of all let me thank you profusely for yeomen service you are doing to needy persons by giving them legal advice.
I have a following query and would earnestly request you to please enlighten me on this. A person was staying in a rented premises viz.a two room block on rent in a house owned by some owner. That was in 1950-80 or so.
Subsequently the owner decided to develop the property and this tenant moved out of the rented place and eventually came back in a flat given by the developer somewhere around 1985 or so.
At the time of moving out he has not entered into any agreement with developer in good faith because he knew the developer well. But the developer had written to the then municipal authorities, while seeking their permission for development that this tenant was staying along with other tenants in the building to be demolished. He has a copy of this.
The developer builder has since been absconding and not traceable and all communication sent on his last known address comes back with remarks “addressee does not stay at that place”.
After the development was completed, society was formed in 1987. He was made a member and he has a share certificate in his name and he has been regularly paying maintenance and other dues of society regularly and there is no default at all till date.
The conveyance is not yet done.
Society wants to go for redevelopment now.
1. Now can this member be deprived of redevelopment because he does not have agreement?
2. What are remedial steps to regularize the ownership of flat and entitlement to redevelopment?
3. Is there any SC judgment which supports/protects the rights of such owner of a flat who does not have agreement with original developer but he is member of society as mentioned above.
I C Naik
The State Government has issued directions for redevelopment of older properties of cooperative societies under Section 79(A) of Maharashtra Co-operative Societies Act 1960 to all the Co-operative Housing Societies in the State of Maharashtra. These directions are having the effect of provisions of the M. C. S. Act 1960.
The relevant directions for reaching answer to the case under reference are as under suggesting that the member’s rights are protected despite the deficiency pointed out in the query.
1. Agreement to be entered into with Developer:-
Subject to the terms and conditions approved by General Body Meeting of the Society, an agreement should be entered into with the Developer within one month under guidance from the Architect / Project Management Consultant.
2. There should be particulars of the existing flats with carpet area of the flats occupied by each of the member of the buildings. The area of the plot as per the ‘Property Register Card’ should be mentioned. The total estimated FSI area that can be constructed by utilizing TDR on the plot should be mentioned. The agreement should clearly mention the carpet area, including the additional area which will be made available to the members in the new building.
3. Rights of those who are in possession of the flats will remain unaffected.
4.After receipt of Occupation Certificate, flats in the redeveloped building should as far as possible be allotted as per present conditions floor-wise and if it becomes necessary to allot flats by drawing lots, on completion of construction, Developer should make arrangement drawing lots, and at that time flats should be allotted in the presence of Registrar’s representative and this process be recorded by video shooting.
5.Building plans sanctioned by the Municipal Corporation / Competent Authority should be put up before the General Body Meeting for information and if any member wants copies of approved documents, he should submit application for the same to the Society and it will be binding on the Committee to furnish the information by charging necessary fee.
6. The drafts of all the relevant documents pertaining to the redevelopment process must be circulated to all members well in advance and the objections, suggestions and modifications if any, must be discussed in the Special General Body Meetings including recording proper minutes of each meeting to maintain the transparency. It’s advisable to discuss the documents in detail at the general body meeting so as to arrive at a consensus about the terms and conditions in order to avoid later hassles.
7. The society shall accept and admit the prospective/additional flat owners of the newly constructed building/s as members of the society and treat them at par with existing members.
Above mentioned are some of the important points relating to redevelopment of old buildings by cooperative Societies. Since the laws on the subject of redevelopment are yet to be fully developed, any decision in this matter should be taken with great care or else it could lead to a possible dispute or litigation.
Permanent Alternate Agreement between redeveloper and the member in respect of the flat the building of which was redeveloped is necessary to create titles of occupancy rights in favour of member.
Secretary ought to have asked for it 3 years before, but that cannot held against him in defence. It is also required for further transfers in future. Now with liberalized Conveyance Procedure, it should be possible to get a deemed conveyance taking help of the Conveyance lawyer. It will entail expenditure, but that was unavoidable at the time of purchase of the flat.