Legal Advice

No share certificate to the illegal flat owner

Question: There is some illegal flat owner who is demanding to issue a share certificate. They have no valid sale deed and no permission from the Brihanmumbai Municipal Corporation. Our housing society formed in the year 2004 with non-co-operation of the developer. Sir in our society three numbers of illegal flats built by a builder. Which we came to know in the year 2015.  Before it (in 2005) the society has already issued a share certificate to two illegal flats. The society does not know the real fact. Furthermore, the developer did not hand over single documents to society. Our society didn't issue a share certificate to one illegal flat owner because his flat was unregistered. The flat owner just paid stamp duty in the Amnesty Scheme a few years back. During such a long period, he did not ask about share certificate. Now someone unknown person has made a complaint against illegal flats in our society building. The BMC thereafter has issued a notice under sec 488 for the survey of the site. After the site inspection, the BMC has confirmed that the builder has constructed three flats illegally. advised the three flat owners to get legalises from BMC. Further BMC issued notice to the society to produce the BMC approved plans & other documents about explaining that who illegal flats have built? The third one illegal flat owner whose document is unregistered just paid stamp duty in Amnesty scheme asking to issue share certificate after BMC issued the notice & confirmed the illegal flats built and exits. Further, this third one flat owner regularly pays maintenance and the social issues bill and receipt in his name. Sir so we would like to know can issue the share certificate to him. Please help me. Now illegal flats have been declared then can we issue share certificate to the unregistered illegal flat owner after Brihanmumbai Mahanagar Palika notice under section 488 and it is confirmed. The society wants to co-operate both of us our member and BMC.

Advise

As per the information provided, it appears that the third flat in question is not only unregistered, but it is also illegal as it was built without the proper permissions and approvals from the Brihanmumbai Municipal Corporation (BMC). It is not legal to issue a share certificate to an owner of an illegal flat, as it would be in violation of the laws and regulations regarding construction and property ownership.

Furthermore, it is not advisable for the society to issue a share certificate to this flat owner as it could lead to legal issues for the society and its members. The BMC has issued a notice under Section 488 for a survey of the site, and has confirmed that the three flats in question were built illegally. The flat owner has been advised to get the flat legalised from the BMC, and the society has been asked to produce the BMC approved plans and other documents.

It is advisable for the society to cooperate with the BMC and follow their instructions to resolve the issue of illegal flats. The society should also look into their own records and documents to ensure that they are in compliance with all laws and regulations regarding construction and property ownership.

Prima facie they are an illegal flat owner

Prima facie these flats are illegal because the builder did not take permission from the concerned authority. The flat’s owner has no right to demand share certificate because they have no valid sale deed or conveyance deed. In devoid of a valid sale deed they cannot become a member of the housing society. In the current scenario, they should approach the Brihanmumbai Municipal Corporation to legalise their flats.

The BMC has the power to grant permission if other guidelines have been followed by the builder in the construction of those flats except the valid permission. They have to pay the fine and other penal charge lived upon by the BMC. The builder will not come forward and pay those fees because he played a fraud. So, flat owners will bear all the expenses.

No share certificate to the illegal flat owner

After making all the payments and fines to the BMC the flat owners should proceed to get a valid sale deed of the flat. They will get a sale deed from the builder after paying the proper stamp duty.

Thereafter, the housing society can issue a share certificate to those flat owners. They first become the owner of the flat following the due process of law. They have no valid sale deed and no valid document which proves that they have ownership of the flat.

Until completion of above said procedure and possessing all the necessary legal documents you should not issue a share certificate. A share certificate is a legal document which proves that the holder is the rightful owner of the co-operative housing society’s shares. The BMC has already declared that flats are illegally built, then you cannot issue share certificate.

Shivendra Pratap Singh

Advocate

High Court Lucknow