loss of land
SIR,ATTN. MR ARVIND MANGHIRAMLANI/ JAYANT GARG OUR SOCIETY HAS UNDERTAKEN REDEVELOPMENTTHE SOCIETY HAS AGREED WITH DEVELOPER THAT BALCONY AREA OF ALL THE MEMBERS SHALL NOT BE CONSIDERD.. THE FLAT AREA OF MINE IS 440 SQ FT AFTER DEDUCTING 40 SQ FT IT COMES TO 400 SQ FT.. HOWEVER THE AREA MENTIONED IN MUNICIPAL PLAN IS 423 SQ FT AND AFTER DEDUCTING 40 SQ FT IT COMES TO 383 SQ FT.. THE BUILDER/SOCIETY STAND IS THAT SINCE THESE 17 SQ FT IS LESS MENTIONED IN ORIGINAL PLAN YOU ARE NOT ENTITLED. OTHER 116 MEMBERS HAVE NOT THIS ISSUE SINCE THEIR PHYSICAL AREA IN POSSESSION IS AS PER ORIGINAL PLAN ONLY. HOWEVER IN CASE OF OUR 4 MEMBERS THE ACTUAL AREA IN FLAT IS BIGGER BY 17 SQ FT THAN THE AREA MENTIONED IN APPROVED PLAN. DEVELOPER STAND IS THAT WE ARE GOING AS PER MENTIONED IN APPROVED PLAN FOR REDEVELOPMENT OF BLDG. SO THIS AREA IS NOT TO BE CONSIDERED.. I HAVE BEEN IN POSSESSION OF THIS FLAT SINCE LAST 34 YRS. PL ADVISE.. REGARDS
You may make application to municipal corporation or development authority to correct that sanction plan according to your possession last 34 years as prior sanction plan or building permission then development authority correct plan
As per the Maharashtra Co-operative Societies (Amendment) Act, 2013 if there is a redevelopment proposal, it should be passed through the proper procedure in the society’s general body meeting and a minimum of 75% of the members of the housing society should agree to the proposal, otherwise the building cannot go ahead with the proposal. However, whether a minority of members can stall the process of Redevelopment depends on what proportion of minority is stalling the development and the reasons behind stalling the project.
In case the Flat area varies from the actual to society Record, the construction of the building is done as per the Development Control Rules as applicable. Bombay Municipal Corporation grants the building construction as per the Floor Space Index (FSI) allowed on such land based on its area. FSI or Floor Space Index means the area of construction allowed on a particular land as per the Development Control Rules. Therefore, the area to be considered is based on approved plan as per the original building constructed. In case that is not available, then the area is calculated as per the assessment tax collected by the BMC. In case none of the above are available, then the Flat area is calculated as per the society record/ agreement executed with the builder or as per their respective agreement. The general body has the authority to deliberate on this issue and take a unanimous decision in the interest of all.
70% members of the society can come forward and proceed to develop the land by forming the society and by appointing a developer to develop the measured and the declared area. The objections, even by remaining 30% need to be overlooked for the purposes of development of the area. Those remaining members of the society/occupiers though not ready, but ultimately, as per the scheme, need to vacate the area. They are also entitled to have similar area/flat in the scheme. The provisions are made under the Acts to pass such appropriate order and/or to take action if objecting members/occupies refuse or do not cooperate to vacate the premises.
The sanctioning or granting of approval including 70% consent and all necessary documents are subject to the demarcated land/area. The primary aspect before any project/scheme is declared, is the actual land/area which is under occupation. The Government’s policy is based upon the area/land on which the tenants /occupier have been residing or doing their business. The occupiers are, therefore, entitled to retain their respective area of flats preferably on the land in question subject to some terms and conditions and only the remaining area is available as a component for sale. Hence, the measured and clearly demarcated land is the most basic component of the plan. Any type of encroachment, an encroachment even by the developer, is always a matter of objection by the Competent Authority and/or by the occupiers and/or by third person who are affected by such encroachment. . The occupiers/residents and their entitlement, based upon the land in their occupation therefore just cannot be overlooked, while submitting any modified plans, as well as, granting any kind of approval or sanction.
The housing society redevelopment scheme is based on the major land and/or plot and for any calculation for redevelopment, respective tenants' share/area of the occupants, commercial area/saleable area of the builder, and for FSI purpose and/or such other similar purposes. The exact area/measurement is a must. Some minor corrections here or there, should not affect the project and so also the timely and/or phase-wise development on the available area and/or permissible area.
The correction can always be made and/or subject to correction and/or amendment of the plans. All the parties, therefore, are entitled to proceed accordingly.
- Shivkupa Builders and Developers vs. State of Maharashtra (Decided on April 15,2011)
- Maharashtra Co-operative Societies (Amendment) Act, 2013
Book a phone consultation with a top-rated lawyer on Lawfarm.