• Society needs legal opinion to issue no objection certificate to sell unauthorised flats

Respected Sir,

I the undersigned Dr Tufail Ahmed the Chairman of Al Barkat Co-operative Housing Society Ltd, need your legal opinion as per the law,Herewith we will explain in brief the concerned matter.
Sir, the said building called Aaliya Apartment situated at C T S No 337, Pipe Line Road, Kurla west, Mumba -400070 constructed in 1998 and our society formed in the year 2004 with non co-operation of developer. In the year 2015 the society obtained the all BMC approved plans copies along with relevant documents from local sanctioning Authority Brihan Mumbai Mahanagarpalika, Building Department, observed and found that as per the BMC Approved Plans , there are 21 Nos flats, but in actual physical there are 24 Nos flats in the society’s building which are constructed by Developer and sold by him to the members. As the society was not known/aware of real facts of these 3 Nos unauthorised flats, the share certificates has been issued to TWO UNAUTHORISED flats owners which are duly registered by Developers/Builder. And did not issued the share certificate to one flat owner because it was unregistered .Now, in the year 2020 someone unknown person lodged the complaint to the Brihanmumbai Mahanagarpalika about unauthorised flats constructed in our society building, and there after BMC authority, L Ward, issued the Notice under section 488 Act to Developer, Society and these 3 unauthorised flats owners and visited the our building presmises, further carried out survey of 3 Nos unauthorised flats and confirmed it. Further they asked explaination about it to the society , so the society explained the real facts. Also showed the all BMC approved plans to BMC CONCERNED officers as per their request and there after they issued further Notices to 3 Nos unauthorised flats owners, now the till date this matter is pending with BMC. In addition to it BMC Authority verbally informed the 3 Nos unauthorised flats owners to get it regularise from the Brihanmumbai Managarpalika & the society also informed them to get regularise their flats structure from sanctioning Authority Brihanmumbai Managarpalika. Sir, now the society need your legal opinion regarding these issues as follows:
A)	If incase any one of these 3 Nos unauthorised flats owner whenever request to the society for the N O C to sale out these unauthorised flats, Can the society issue the N O C?
B)Out of these 3 Nos unauthorised flats, one of the owner have one flat Authorised A 301 & Flat No A 302 UNAUTHORISED and have been issued one share certificate jointly as per the Bye Law for both flats A 301 & A 302.
1)Now the society want to know if incase the flat owners of A 301(authorised) & A 302 (unauthorised) request to the society to issue N O C to sell out both flats, then how to issue the N O C ? Only Authorised flat No A 301 to be be issued the N O C or both i. e. Authorised flat and Unauthorised flat please? Clearlify the matter.
Asked 5 days ago in Property Law
Religion: Other

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7 Answers

All transactions related to unauthorised flats are ab initio in law having no legal strength.

Revoke all sanstions by giving a local paper publication stating the facts.

Till these flats regularized by the BMC restrain from all sort of actiities in relation to these flats.

Kallol Majumdar
Advocate, Kolkata
2800 Answers
7 Consultations

5.0 on 5.0

1) society cannot issue NOC as it is unauthorised flat 

 

2) issue separate share certificate for 2 flats on surrender of old share certificate . For each flat separate SC is required to be issued by society 

 

3) don’t issue NOC for 2 flats only for flat no 301 

Ajay Sethi
Advocate, Mumbai
83945 Answers
5461 Consultations

5.0 on 5.0

Under the prevalent law, no NOC of society is required to sell the flat 

That NOC only states that the member has cleared all dues of the society upto date and there are no dues pending 

Also the NOC would state the carpet area of the premises 

So whether it's a single unauthorised flat or two flats combined (one authorized and another unauthorised, which I assume as a single share certificate is issued for these 2 flats), the sale noc is not at all needed 

However the society can issue the NOC stating clearance of all dues and carpet area and apart from that also mention that the subject flat is being considered for regularisation by the Municipal corporation and is not a sanctioned flat as per the BMC approved plans 

Yusuf Rampurawala
Advocate, Mumbai
6397 Answers
54 Consultations

5.0 on 5.0

Dear Client,

A) The society has to issue NOC upon request.

1) The society is not bound to issue a NOC to the unauthorised flat. As suggested by the concerned BMC officers, it is favourable to regularise the flats with the Brihanmumbai Managarpalika. 

Thank you.

Anik Miu
Advocate, Bangalore
2424 Answers
26 Consultations

4.9 on 5.0

1.  Since the flats are unauthorised structure as per law, the society cannot recognise these flats until they are regularised by the civic body, hence the society cannot issue NOC which are not taken into the books of the society at least until such time the local civic body is regularizing the construction of flat after completing the necessary formalities. 

2. The society can issue NOC to the flat which is one of the approved flats but can hold the issuance of NOC to the other flat of the same owner which was illegally constructed by the builder deviating the approved plan, until the authorities have regularised the construction. 

T Kalaiselvan
Advocate, Vellore
74043 Answers
1197 Consultations

5.0 on 5.0

If its unauthorized society can deny noc

If there are 2 flats the share certificate will be 2.

You can't issue the same for unauthorized flats

Prashant Nayak
Advocate, Mumbai
24138 Answers
51 Consultations

4.4 on 5.0

Society body should arrange special annual general meeting and pass a resolution that society will not take responsibility and liability of 3 unauthorised flats till it's get regularise from BMMC authority.

 

A. No, society should not provide NOC till further order received by BMMC.

 

B&C.  Only provide NOC for A301 which is authorised flat and not for A302 unauthorised flat till further notice by BMMC.

Ganesh Kadam
Advocate, Pune
12185 Answers
150 Consultations

4.9 on 5.0

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