Real Estate – November
- 2013
Supreme
Court's Judgements
A. The
A.P.I.I. Corpn. Ltd. v. M/s. Team-Asia Lakhi Semiconductors Ltd. (in
liquidation) rep. by the Official Liquidator, Hyderabad & Anr. decided
on November 29, 2013.
Facts:
The appellant, a Government Corporation had allotted a
plot to M/s. Team-Asia Lakhi Semiconductors Ltd. (“Company”) on certain conditions,
as incorporated in the allotment letter. After the Company failed to make
payment as per the terms of allotment, the allotment was cancelled. The Company
then requested the appellant to grant another plot at a reduced price. Thereafter,
appellant offered another plot to the Company. The Company again failed to
comply with the conditions and therefore, the proposal with regard to the
subsequent allotment also failed. Once again another plot was offered to the
Company by the appellant but the said transaction also did not materialize.
This ultimately resulted into forfeiture of the amount paid. However, the
Company was permitted to occupy the plot. Owning to very poor financial
conditions, the company was ordered to be wound up by the company court. The official
liquidator wanted to take possession of the said plot so that the said plot may
be sold and out of the sale price, dues of the Company may be paid. When the
appellant came to know that the official liquidator was making an effort to
dispose of the plot in question, believing the plot to be one of the assets of
the Company in liquidation, a Company Petition was filed by the appellant
praying for taking possession of the plot in question as the plot was in
unauthorized possession of the Company. The petition by the appellant was
rejected by the company court and subsequently, on appeal, it was rejected by
the High Court.
Held:
The Supreme Court held that the Company, which is now in
liquidation, had not paid the entire amount of the consideration and therefore,
the ownership right in respect of the said plot had not been transferred to the
Company. The Supreme Court opined that the High Court was not justified in
giving any right in respect of the plot in question to the official liquidator
or the Company. Therefore, the impugned judgment as well as the order passed in
Company Application were quashed and set aside. The Supreme Court further held
that the plot in question does not belong to the Company in liquidation and the
official liquidator has no right to deal with the said plot or dispose of the
said plot and it would be open to the Corporation to deal with or allot the
said plot as per its own policy.
B. Saroj
v. Sunder Singh & Ors decided on November 25, 2013.
Facts:
The appellant along with her two sisters are the
daughters of the respondent. According to the appellant, she and her two
sisters were minors when their father expired. Thereafter, their mother sold
out the suit property which belonged to their father by executing a sale deed.
According to the appellant, since the suit property belonged to their father,
the daughters had shares in the property along with the mother and the mother
could not have sold the suit property alone by the mother. The appellant,
therefore, with two other sisters preferred Civil Suit for declaration of the
sale deed as null and void in respect of the suit land. The appellant pleaded
that the second respondent, as the mother of the appellant and two other
sisters had no right or authority to sell the suit land, as the suit land
constitute their shares as well.
Held:
Setting aside the judgments and orders
passed by the trial court, First Appellate Court and Second Appellate Court,
the Supreme Court held that the sale deed executed by the second respondent in
favour of the first respondent is voidable at the instance of the minor. The
court held that where the father dies leaving behind only minor daughters, with
their mother as natural guardian, the share of the daughters became definite.
Facts:
The appellants claim to have purchased a plot situated
in revenue estate of Village Lohar, Tehsil & District Bhiwani, Haryana from
its registered owner. However, the land has not been mutated in favour of the
appellants. A large area of land, including the land in question was notified
under Section 4 of the Land Acquisition Act, 1894, which was published in the
Official Gazette. The appellants along with others filed the claim petition.
The Land Acquisition Collector assessed the market value of the other land at
the rate of Rs. 24/- per marla. On the basis of the other judgments and
assessment orders, the value of the land of the appellants had been determined
by the Reference Court as well as by the High Court, at the rate of Rs. 9 per
Square Yard. The appellants preferred an appeal before the Supreme Court and
when the matter was heard by the Supreme Court, the Court issued show cause
notice to the appellants, asking why the amount of compensation awarded to the
appellants be not reduced.
Held:
While disposing the said appeal, the
Supreme Court was of the view that a cumulative increase of 10 to 15 per cent
per year in the market value of the land may be accepted, unless the State
agencies or acquiring authority prove otherwise. In view of above, the Supreme
Court held that the appellants would be entitled to a reduced sum of Rs. 6.00/-
per square yard, as the property had been acquired only after 15 months from
the date of purchase.
D. Tribhuvanshankar
v. Amrutlal decided on November 13, 2013.Facts:
The appellant-plaintiff had purchased the suit property vide registered sale deed on payment of sale consideration to the vendor. The respondent-defendant was in possession of the said property as a tenant of the earlier owner on payment of rent. The said tenancy was an oral tenancy and after acquiring the title, the appellant informed the respondent about the sale by the earlier owner. Despite assurance given by the respondent to pay the rent to him, it was not honoured which compelled the appellant to send a notice and, eventually, he terminated the tenancy. The respondent replied to the notice stating, inter alia, that the appellant was neither the landlord nor the owner of the property. On the contrary, it was stated in the reply that the respondent was the owner of the premises. In the written statement, the defendant disputed the right, title and interest of the plaintiff, and denied the relationship of landlord and tenant. The respondent also claimed to have been in possession of the suit property for 18-19 years.
Held:
While permitting the appellant-plaintiff to institute a fresh suit for title and recovery of possession and such other reliefs as the law permits, the Supreme Court left open the issue of right, title and interest. The Supreme Court held that the appellant is required to establish the same in a fresh suit as required under law and the defendant is entitled to resist the same by putting forth all his stand and stance, including the plea of adverse possession. The Supreme Court further stated that a mere possession or user or permissive possession does not remotely prove the adverse possession. For the possession to be adverse, it has to be actual, open, notorious, exclusive and continuous for the requisite frame of time, as provided in law so that the possessor perfects his title by adverse possession.
High Court's Judgements
- Gurdeep Khera v. Delhi Development Authority before the High Court of Delhi, decided on November 11, 2013.
The Petitioner had applied for an MIG flat
to Delhi Development Authority (“DDA”). Since, the name of the
Petitioner was found missing from the priority list and the Petitioner was
unaware of the allotment made to her. The Petitioner subsequently wrote a
letter to the DDA. The Petitioner had been approaching the various authorities,
including the Deputy Director (Vigilance), Director (Housing), Commissioner
(Housing) and the Lt. Governor of Delhi. Vide a letter, the DDA required the
Petitioner to produce some documents to verify her genuineness. The Petitioner
alleges that she visited the office of the DDA and contacted one of the clerks
in the concerned department, who refused to disclose the status of her file and
also refused to give any satisfactory reply. By another letter, the Petitioner
brought to the notice of the Commissioner (Housing) the ill-intention of the clerk.
The Petitioner was issued a demand notice for the cost of the flat as on the
date of allotment. The allotment letter was issued requiring the Petitioner to
deposit certain sum of money. Through RTI query, the Petitioner obtained
information as to the cost of the allotment, when it was informed to her that
she had been charged interest @ 7% per annum. The only plea raised by the
Petitioner is that since she was deprived of the flat all these years without
any fault of her, she cannot be further burdened with the amount of interest
charged thereon. The Petitioner also had to pay rent of the residential
accommodation occupied by her during all these years which was much more than
the interest, if any, earned by her on the amount.
Held:
While disposing the writ petition, the High
Court directed the DDA not to charge any interest from the Petitioner and issue
a fresh demand letter within a period of six weeks, after adjusting the sum
already deposited by the Petitioner with the DDA.
2. Delhi
Development Authority v. Smt. Charanjit before the High Court of Delhi, decided on November
12, 2013.
Facts:
The respondent had applied for allotment of
a MIG flat with the DDA Housing Scheme, 2008 by depositing the registration fee.
The respondent was issued with an allotment-cum-demand letter in respect of a
Flat under the scheme. It was alleged by the petitioner that the plinth area of
the demised flat was less than what was represented by the DDA. The respondent
further alleged that when she visited the plot, she discovered that the whole
block was ruined and was in dangerous condition. After unsuccessfully
requesting to the DDA for allotment of another plot in the west zone area,
where vacant flats were available with the DDA for allotment, the respondent approached
the High Court under writ petition. While entertaining the petition, the Court
granted an interim order subject to the writ petitioner making payment within a
specified time. The DDA likewise, was directed to carry out necessary repairs.
Aggrieved by the impugned order and judgment which directed the DDA to allot a
fresh demand cum allotment letter in respect to a flat in view of another plot,
which had been allotted to the respondent, this appeal was filed by the DDA.
Held:
Based on the factual findings rendered by
the learned Single Judge, the High Court dismissed the appeal. The Court was of
the opinion that so long as the petitioner is able to establish that the flat
allotted or offered is structurally unsafe or dangerous or uninhabitable, a
writ petition seeking a direction in that regard to the DDA for substitution of
the allotment can be maintained.
News
Acting on the judgement of the
Punjab and Haryana High Court, the state government of Punjab and Haryana has
suspended the collection of enhanced external development charges (EDC). The
order, however, warned the licencees that in case of any violation of the said
order, the entire onus will lie on the colonisers. However, the licencee will
be bound to deposit any amount collected against enhanced EDC either directly
or indirectly from its allottees with the department.
The district administration has
been told not to register land in 42 villages, including some located in
Pataudi, where illegal colonies have sprung up in violation of the Directorate
of Town and Country Planning (DTCP) regulations. The enforcement wing of the
DTCP has prepared the list of villages and the properties and informed the
district administration for taking necessary action. A list of Khasra numbers
and other land details has also been submitted in order to ensure that
electricity is not given to the illegal colonies. The district administration
has been asked not to register the property in the land records. The land
details have further been shared with the village-level committees.
3. Government defers proposal on relaxing FDI
norms for housing
The government has deferred a
proposal on relaxing FDI norms for
the housing sector.
A Cabinet note proposed easing conditions for exit of foreign players before
the three-year lock-in period. It had also proposed a change in the current
requirement of having a minimum built-up area of 50,000 sq mts to 20,000 sq mts
of carpet area for FDI in construction development projects. The note has suggested
a uniform minimum capitalisation of $ 5 million for both wholly-owned
subsidiaries (WOS) and joint ventures with Indian partners. At present, the
capitalisation requirement for WOS is $ 10 million. On exit of foreign investor
before the three-year lock-in period, the note has suggested more relaxations. Press
Note 2 (2005) of the DIPP allows FDI up to 100 per cent in townships with
conditions. The DIPP which deals with FDI related matter, issues provisions in
the form Press Notes or consolidated circulars. Although 100 per cent foreign direct
investment is allowed in townships, housing and built-up
infrastructure and construction developments, the government has imposed certain
stringent conditions to it.
4. Gurgaon makes CCTVs mandatory for housing societies
The Gurgaon administration has made
it mandatory for housing societies in the district to install CCTV cameras. The
order issued by district commissioner Shekhar Vidyarthi also covers pubs and
bars. It states that cameras must be installed at the entry and exit gates
should be of good quality and store footage for at least 30 days. The order
comes into force with immediate effect and violators will be punished under
Section 188 of the Indian Penal Code.
5. Builders' details to be uploaded on
government websites
The Noida, Greater Noida and Yamuna
authorities are planning to upload details of all builders constructing housing
projects on their official websites. The decision was taken after Uttar Pradesh
chief minister directed the authorities to ensure protection for buyers
and design a route to evade property-related cheatings. Directions have been
issued by the chairman to start the process to buy server space for the
websites to upload property-related details. It has been planned to upload all
land ownership and title-related details on the website. Apart from that, lease
deed conditions, status of sanctioning building layout plan and other NOCs and
notices issued to developers will also be uploaded. The developers have been
asked to upload the sanctioned layout plan copy and other approvals on their
company websites as well.
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DISCLAIMER
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 November, 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
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