Illegal to move into property without occupation certificate
Oct 21, 2013
Source : The Times of India


MUMBAI: It is against the law to move into flats in buildings without the mandatory municipal occupation certificate (OC), the Bombay high court has ruled. A division bench of Justice S C Dharmadhikari and Justice Gautam Patel sought action against 49 flat owners as well as a nursing home in two wings of a building with six wings in Sion East.

“Occupying the building without occupation certificate and commencing the activity styled as Nursing Home cannot be countenanced and permitted in law. They will have to be proceeded against by the municipal corporation,” said the judges. The BMC told the court it will issue notices to the 49 families, which moved into wings E and F as well as the nursing home on the first floor.

The court’s order could have an impact beyond this multi-storeyed Sion building. There could be as many as 6,000 buildings in Mumbai without OCs. Over one lakh families stay in such buildings. A few years ago, a state government amnesty scheme for such buildings received a tepid response—with just around 100 buildings seeking regularization.

The court was hearing a petition filed by the Sion Kamgar Cooperative Society that had leased the land in a central location in Sion for 999 years in the 1950s. A few years ago it went in for redevelopment. In its petition, the society claimed that while four wings were constructed as per plans, two additional wings were put up—which now house around 50 families and also has a nursing home on the first floor. The society asked the court to initiate action against the nursing home.

The court admonished the BMC for its conduct. “What we find is that there is complete silence maintained (in the corporation’s affidavit) with regard to the construction of Wings E and F and whether they are unauthorized as claimed,” said the judges. The BMC’s counsel admitted before the court that both E and F wings did not have any occupation certificate. The court added that the nursing home might have been unaware of the disputes between the society and the developers, but the law did not permit occupying a building without OC. The BMC claimed that it had allowed the nursing home to be set up as it had all licences and the corporation had taken an undertaking from the hospital owners that the OC would be produced whenever it is issued. The HC said that this was not enough.

Sai Prasad building

The government in 1956 allotted land in a central location in Sion East to the Sion Kamgar Cooperative housing society to set up flats for its members. Around a decade ago the society went in for redevelopment. The builder constructed four wings—A, B, C, D—as per rules. The society alleged that in violation of rules two additional wings with 56 flats and a nursing home were constructed, despite stop work and demolition notices. Families moved in and the nursing home was set up. The society’s new managing committee moved the HC seeking action against the nursing home. During the hearing, the BMC admitted the two wings did not have an OC. The high court sought action against the 49 families who had moved in to the flats and the nursing home as no OC was given to the two wings.

What is an OC?

To construct a building a developer needs commence certificate (CC) and Intimation of Disapproval (IOD). Once the building is complete, the builder has to obtain an Occupation Certificate, which certifies that the building has complied with the approved plans.

Why is an OC important?

Only once the OC is issued can flat owners occupy the apartments as per law, as otherwise the building is considered illegal. A new flat owner should insist on an OC from the builder before moving in.

What if there is no OC?

BMC charges double thewater tax and other taxes. Corporation can also initiate action against the flat owners, as the law says no person can move into a building without OC. Many builders do not bother to get OC and often new flat owners move into flats in a hurry once the construction is complete.

What if your building does not have an OC?

Residents can approach the BMC, seek regularisation of the plans, comply with the norms. However, the law says that if the building has been constructed without any plans it cannot be regularised.

What does the court say?

“Occupying the building without occupation certificate and commencing the activity styled as Nursing Home, cannot be countenanced and permitted in law. They will have to be proceeded against by the Municipal Corporation.”

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