Dislaimer

The postings on this blog have been prepared by Sarthak Advocates & Solicitors. Unless otherwise indicated, the blog posts are intended to be informative summaries or the opinions of the author concerned. These postings should not be considered as substitutes for considered legal advice. If you have any comments, suggestions or clarifications, please do get in touch with us at knowledge@sarthaklaw.com.

Monday, October 21, 2013

Real Estate – September - 2013


  1. Supreme Court's Judgements
1.      Threesiamma Jacob & Ors. v. Geologist, Department of Mining & Geology & Ors., decided on July 8, 2013.

Facts:

The petitioner’s husband had obtained jenmon assignment of 2 Acres of granite rocks situated in some village in Malabar. The petitioner’s husband obtained the property from the previous jenmy, C.P. Thampurankutty Menon. Thereafter, the petitioner’s husband executed a registered gift deed. The property was enjoyed by the earlier jenmy and thereafter by the petitioner without any interference from the Government. Due to the ignorance of the legal position, the petitioner entered into a lease agreement with the Department of Mining and Geology to conduct quarrying operations in her property. Later, she realised that it was not necessary to pay any royalty to the Government with regard to the property belonging to her. In the above circumstances, she made a fresh application to the ddepartment for licence. But the respondents failed to provide necessary permits to the petitioner. When she received a notice from the Kerala Minerals Squad directing her to stop the quarrying activities, she gave a reply to reconsider her contention. Thereafter, she was informed by the Department to renew the lease. The claim of the appellants was based on the belief and assertion of the appellants that the holder of the jenmom rights is not only the proprietor of the soil for which she has jenmom rights, but also the owner of the mineral wealth lying beneath the soil.

Held:

The SC was of the opinion that there is nothing in the law which declares that all mineral wealth/sub-soil rights vest in the State, on the other hand, the ownership of sub-soil/mineral wealth should normally follow the ownership of the land, unless the owner of the land is deprived of the same by some valid process. In the instant appeals, no such deprivation is brought to the notice of the SC and therefore the SC held that the appellants are the proprietors of the minerals obtaining in their lands. The SC further made it clear that they are not making any declaration regarding their liability to pay royalty to the State as that issue stands referred to a larger Bench. The SC was also of the view that Mines and Minerals Act is an enactment made by the Parliament to regulate the mining activities in this country. The said Act does not in any way purport to declare the proprietary rights of the State in the mineral wealth nor does it contain any provision divesting any owner of a mine of his proprietary rights.

2.      M/s. Rana Girders Ltd. v. Union of India & Ors., decided on August 16, 2013.

Facts:

M/s. P.J. Steels Pvt. Ltd. (“Borrower”) had taken loans from the Uttar Pradesh Financial Corporation (“UPFC”). Due to consistent default on the part of the Borrower in re-paying the loans, the UPFC took possession of the land and building of the Borrower which were mortgaged/ kept as security with the UPFC. After taking physical possession of the properties, the UPFC issued an advertisement in the newspapers for public auction of the said properties. The public notice also stipulated certain terms and conditions on which offer were invited. First condition thereof, which is relevant for our purpose, is reproduced below:

All the statutory liabilities arising out of land shall be borne by purchaser (except electricity dues). Other terms and conditions of sale may be sent at the office.”

In the public auction conducted by UPFC, the appellant (which was earlier known as Sarju Steels Private Limited) was the successful bidder. The sale deed was executed in favour of the appellant qua the land and building. In the sale deed, it was specifically mentioned that the property is free from all encumbrances by stating that “the vendor herein confirms that the property purchased through the sale deed in favour of vendee is free from all charges and encumbrances.......” Another condition in the sale deed, which was also mentioned in the public notice was: “All the statutory liabilities arising out of said properties shall be borne by the vendee and vendor shall not be held responsible.”

Likewise, an agreement was also executed in favour of the appellant conveying the ownership of the plant and machinery. The Borrower had not questioned the validity of the said auction which has attained finality. The Borrower was also required to discharge the liability qua excise duty which had amounted to Rs.1,00,72,442/-. To recover that amount, the Commissioner of Customs and Central Excise, Meerut-I (respondent No.2) was pressing the appellant to discharge this liability as purchaser and successor-in-interest of the land and building plus plant and machinery of the borrower. The appellant resisted the demand with the posture that since the aforesaid properties have been purchased by the appellant in an open auction from the UPFC, free from all encumbrances, it is not the liability of the purchaser to make payment of the dues of excise department.

Held:

Setting aside the impugned order of the High Court (“HC”), and concluding that the judgment of the HC is unsustainable in law, the SC quashed the notice of the excise department. The SC held that in so far as legal position was concerned, the UPFC being a secured creditor had priority over the excise dues. The SC further held that since the appellant had not purchased the entire unit as a business, as per the statutory framework he was not liable for discharging the dues of the Excise Department. The SC, while interpreting the clause of the sale deed for land and building and similar clause in Agreement of sale for machinery on the basis of which appellant is held to be liable to pay the dues, noticed that in the first instance it was mentioned not only in the public notice but there is a specific clause inserted in the Sale Deed/Agreement as well, to the effect that the properties in question are being sold free from all encumbrances. At the same time, there was also a stipulation that “all these statutory liabilities arising out of the land shall be borne by purchaser in the sale deed” and “all these statutory liabilities arising out of the said properties shall be borne by the vendee and vendor shall not be held responsible in the Agreement of Sale.”  

The SC further held that excise dues are not the statutory liabilities which arise out of the land and building or the plant and machinery. Statutory liabilities arising out of the land and building could be in the form of the property tax or other types of cess relating to property etc. Likewise, statutory liability arising out of the plant and machinery could be the sales tax etc. payable on the said machinery. As far as dues of the Central Excise were concerned, they were not related to the said plant and machinery or the land and building and thus did not arise out of those properties. The dues of the Excise Department became payable on the manufacturing of excisable items by the erstwhile owner, therefore, the statutory dues were in respect of those items produced and not the plant and machinery which was used for the purposes of manufacture.


  1. Policy
1.      Land Policy in Delhi

The central government had modified the Master Plan for Delhi- 2021 and has introduced the land policy (“Policy”). The new Policy is based on the concept of land pooling wherein the land parcels owned by individuals or group of owners are legally consolidated by transfer of ownership rights to the designated land pooling agency, which later transfers the ownership of the part of land back to the land owners for undertaking of development for such areas. The policy is applicable in the proposed urbanisable areas of the urban extensions for which Zonal Development Plans (“ZPD”) have been approved.

Under the Policy, the government/ Delhi Development Authority (“DDA”) will act as a facilitator with minimum intervention to facilitate and speed up the integrated planned development. Under the Policy a land owner, or a group of land owners (who have grouped together of their own volition/will for this purpose) or a developer entity (“DE”) will be permitted to pool land for unified planning, servicing and subdivision / share of the land for development as per prescribed norms and guidelines. Each landowner will get an equitable return irrespective of the land uses assigned to their land in the ZDP with minimum displacement.

The declarations of areas under land pooling and preparation of layout plans and sector plans will be based on the availability of physical infrastructure. The return of the prescribed built up space / Dwelling Units for the economic weaker sections (“EWS”) would be as per the DDA policy.

Under the Policy, 50% of the EWS housing stock shall be retained by DE and disposed only to the apartment owners, at market rates, to house community service personnel working for the residents / owners of the group housing. These will be developed by DE at the respective group housing site / premises or contiguous site. Remaining 50% of EWS housing stock developed by DE will be sold to DDA for EWS housing purpose at a base cost of Rs. 2000/- per sq. ft.
The DE will be allowed to undertake actual transfer/ transaction of saleable component under its share/ ownership to the prospective buyers only after the prescribed land and EWS housing component is handed over to the DDA.


  1. News

  1.    Land Acquisition Bill becomes law after President's assent
The President gave his assent to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, replacing a British-era law of 1894. The new law provides for fair compensation to owners whose land is taken over, and brings transparency to the process and also lays down measures for rehabilitation of those displaced.
2.      In a first, unauthorised colony land acquired for hospital by Delhi govt
The Delhi government has approved the acquisition of 2.5 acres of land, located in an unauthorised colony in West Delhi’s Uttam Nagar, for a hospital. This is the first time the government has acquired land in an unauthorised colony, setting the stage for similar projects in such colonies across Delhi. The government had completed all the formalities to buy the plot of land for the construction of a 200-bed hospital.
3.      Property fraud cases to now get solved easily
The cases relating to forgery of registration of land and property in Gautam Budh Nagar can be resolved at the department of stamps and registration in Noida. Earlier, complainants had to move various courts to adjudicate these matters, which often stretched for several years owing to pendency of cases. The department has now been empowered to handle these cases through a recent UP government order. According to the guidelines contained in the order, the stamps department would be fully empowered to declare a registration as ‘null and void’ if it is found to be incorrect in records available with it. The order gives the department the right to declare a registration as ‘null and void’ after two notices within a couple of months if respondents fail to turn up. The department has also been empowered to register FIR’s with the police in accordance with the order, if required in the case.
4.      DDA to offer service apartments on minimum 2,000 sq mt plot
To meet short- and long-term housing requirements in the city, Delhi Development Authority (DDA) gave final clearance for small dwelling units (service apartments) under the Master Plan-2021 review process. The DDA has decided to offer service apartments which will be introduced on a minimum plot size of 2,000 sq mt. The Floor Area Ratio (FAR) has been enhanced to 225 from 150. The minimum size of the service apartments has been fixed as 40 sq mt and it will be allowed on roads having width of 12 meters. The DDA has also approved enhancement of permanent sample plots (PSP) FAR from existing 150 to 225 for educational facilities such as vocational training centre, management institute, teacher training centre, research and development institute or professional college. For large university campus, the FAR has been enhanced from 122 to 225. The proposal will be sent to Ministry of Urban Development for final approval.
5.      HUDA’s drive against greenbelt encroachers
The Haryana Urban Development Authority is planning to start a month-long drive against violators encroaching greenbelts in the residential and commercial areas in the city. The civic agency has registered FIR’s against greenbelt encroachers in different sectors. In order to rein in violators HUDA is also planning to rope in corporate houses to adopt greenbelts.
6.    Failed Haryana SEZs set to become lucrative realty projects, Ansal Properties, Parsvnath in list
Real estate giants and multinational firms which bought hundreds of acres of land in Haryana to set up Special Economic Zones (SEZs) but could not do so, have been given another chance to put it to use. The state government has decided to denotify such SEZs and allow the blocked land to be used for other purposes. As a result, nearly two dozen projects, many of them in the lucrative real estate markets of Gurgaon and Faridabad are expected to be converted into residential and commercial properties. Haryana had over the years notified 35 SEZs, of which only six have so far been set up. Although most of the 35 SEZs were notified to focus on information technology and IT-enabled services, many of them were promoted by real estate giants who will now benefit from a change in land use.

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DISCLAMER


This newsletter is being provided to the recipient solely for the purpose of his/her/its information. It is meant to be merely an informative summary and should not be treated as a substitute for considered legal advice. This update covers significant legal developments in the field of real estate in the states of Delhi, Uttar Pradesh and Haryana for the month of September, 2013. If you wish to receive more information about any item in this newsletter, please feel free to contact:

Sarthak Advocates & Solicitors
A – 35, Sector – 2, NOIDA 201 301
T: +91 120 430 9050

 

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