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RE Related Laws & New Developments

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  • Re : RE Related Laws & New Developments

    Bengaluru development body amendment act a ploy to shield illegal buildings: PIL

    There was undue haste in amending the BDA Act and declaring that such regularisation is only for buildings constructed 12 years before the Amendment came into effect.
    • TNN
    • January 05, 2021, 16:00 IST
    Image used for representational purpose
    BENGALURU: The high court on Monday ordered notice to the government, BDA, BWSSB and Bescom with regard to a public interest litigation questioning the Bangalore Development Authority (Amendment) Act, 2020.

    A division bench headed by chief justice Abhay Shreeniwas Oka also ordered notice to the advocate-general as constitutional validity of the new amendment has been challenged.

    According to petitioner KB Vijaya Kumar, a city-based RTI activist and advocate, the new amendment gazetted on October 19 is a ploy to protect illegal buildings and structures from the purview of the all-encompassing Supreme Court order in 2009 vis-a-vis demolition of illegal buildings and the recent high court ruling on the same premise.

    He has said implementation of the orders was halted by the advent of Covid-19 and the government is now trying to take advantage of the lull. He claimed BDA has no legal authority to regularise illegal buildings constructed without approval by a competent authority and without permission for construction, as such layouts have been handed over/transferred to BBMP control and only it can sanction building plans and permit construction of such transferred layouts.

    There was undue haste in amending the BDA Act and declaring that such regularisation is only for buildings constructed 12 years before the Amendment came into effect. “The illegal aspect cannot be washed away by bringing it into a time frame. What is illegal can never be legal by payment of paltry penalties,” he added.

    Further, he pointed out that the government/BDA action in trying to regularise illegal possession of government/BDA land and including in its ambit illegally constructed structures will encourage illegal possession of government lands in the hope of regularisation at a later date. This is tantamount to penalising honest citizens who have paid exorbitant prices to purchase land from the open market or even from BDA formulated layouts, he said.








    Bengaluru development body amendment act a ploy to shield illegal buildings: PIL, Real Estate News, ET RealEstate (indiatimes.com)


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    • Re : RE Related Laws & New Developments

      About 50% cases of realty companies undergoing IBC resoution closed in 2020

      Data from IBBI showed that the number of such companies in real estate, renting and business activities admitted for resolution under IBC as on September 30, 2020, was 793, out of which 398 cases have closed and 395 cases are ongoing.
      • IANS
      • January 08, 2021, 09:44 IST

      NEW DELHI: The number of companies in real estate and related activities undergoing resolution under the Insolvency and Bankruptcy Code (IBC) declined by around 50 per cent last year.

      The decline gains significance as realty companies formed a major chunk of bankrupt entities heading for resolution after the introduction of the bankruptcy law.

      Data from the Insolvency and Bankruptcy Board of India showed that the number of such companies in real estate, renting and business activities admitted for resolution under IBC as on September 30, 2020, was 793, out of which 398 cases have closed and 395 cases are ongoing.

      Out of the closed cases, 34 cases have been resolved, settlement has been done in 123 cases, 166 companies have gone for liquidation and 75 cases have been withdrawn under Section 12A of the IBC.

      Shobhit Agarwal, MD & CEO of Anarock Capital, noted that the enactment of the Insolvency and Bankruptcy Code in 2016 (IBC) along with RERA ushered in a new era of regulation for the Indian real estate sector. Both these reforms strengthened the hand of homebuyers, giving them alternate forums to get justice, he added.

      Homebuyers can now file claims before the consumer courts under RERA, and before the National Company Law Tribunal (NCLT) by invoking IBC, he added.

      "The NBFC catastrophe in the second half of 2018 leading to a severe liquidity crisis for the developers added to their woes. The non-availability of the refinance window caused many under-construction real estate projects to be stalled," he said.

      "The IBC thus has been a mature step towards setting up a legal framework to adjudicate matters of financial failure and insolvency. The code attempts to end the regime of debtors who continue to be in possession of the asset and provide control to the creditor," Agarwal noted.










      Real estate bankruptcies in India: About 50% cases of realty companies undergoing IBC resoution closed in 2020, Real Estate News, ET RealEstate (indiatimes.com)

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      • Re : RE Related Laws & New Developments

        ITAT: 10% price-stamp duty variance relief on flat sale applies from 2002-03

        ITAT has held that the benefit of a higher tolerance band of 10% for the difference between the sale price of a flat and the stamp duty valuation will apply with retrospective effect.
        MUMBAI: A recent ruling of the Income-Tax Appellate Tribunal’s (ITAT) Mumbai bench has come as a relief to taxpayers embroiled in litigation on capital gains arising out of sale of their flats due to the sale price being lower than the stamp duty valuation.

        ITAT has held that the benefit of a higher tolerance band of 10% for the difference between the sale price of a flat and the stamp duty valuation will apply with retrospective effect.

        The ITAT bench of vice-president Pramod Kumar and judicial member Saktijit Dey held this benefit would apply retrospectively from financial year 2002-03 (assessment year beginning April 1, 2003) when anti-abuse provisions were introduced in the income-tax Act.

        The ruling will help pending cases from these years when the acceptable variation rate was much lower or no such leeway was available. Tax experts said several such cases are pending at various levels, especially in larger cities such as Mumbai.

        To prevent tax abuse and deter the use of black money in property deals, Section 50C was introduced by the Finance Act, 2002. It provided that if the sale consideration claimed to be received by the seller is less than the stamp duty rate, the latter would be considered for determining capital gains.Thus, the quantum of capital gains would be the “higher” stamp duty valuation minus the “indexed” cost of the flat sold. This would result in higher capital gains and consequently a higher tax outgo. To factor the effects of inflation, the Income-Tax (I-T) Act permits application of a cost inflation index to the original cost of the property being sold.

        To minimise hardships in case of genuine transactions, the Finance Act, 2018, amended Section 50C and provided that no adjustment will be made in cases where the variation between stamp duty value and sale consideration was not more than 5% of the sale consideration. This proviso was further amended by the Finance Act, 2020, and enhanced the acceptable variation rate to 10%.

        I-T authorities submitted to ITAT that the amendment carried out by the Finance Act, 2018, would come into effect only prospectively from financial year 2018-19. Similarly, the enhanced variation rate will apply from financial year 2020-21.

        In the case before ITAT, the year covered by the litigation was 2010-11. The difference between the sale consideration as disclosed by the seller, Maria Fernandes Cheryl, and the stamp duty valuation was Rs 4.9 lakh. This was about 6.6% of the declared sale transaction.

        According to the I-T officer, the tolerance band of 5% and 10% applied only prospectively and did not cover the year under litigation. He accordingly enhanced the capital gains computation. The matter finally reached ITAT.

        ITAT disapproved of this enhancement and provided relief to the taxpayer. According to ITAT, the proviso amending the variation rate to 10% was curative in nature and must relate back to the date of introduction of the section itself.

        “What holds good in 2021 was also good in 2003. If variations up to 10% need to be tolerated and need not be probed further, in 2021 under section 50C, there were no good reasons to probe such variations, in the earlier periods as well,” states the order.

        The I-T department had also submitted to the ITAT that if its submissions of the amendments being prospective in nature are not accepted, the tax tribunal’s order should mention that “relief is being provided as a special case and this decision may not be considered as a precedent.” The ITAT has come down heavily on this plea, terming it as an “antithesis of the principle of equality before all.” It firmly stated that its order will hold good for all other similarly placed litigants as well.











        ITAT: 10% price-stamp duty variance relief on flat sale applies from 2002-03, Real Estate News, ET RealEstate (indiatimes.com)
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        • Re : RE Related Laws & New Developments

          Mutation entries don't confer property title: SC

          The court opined that Karnataka high court had clarified in its June 26, 2019 order that the direction to BBMP for mutation is subject to any other remedies available under the law and it is open to BBMP to establish its title by following due process of law.
          • TNN
          • January 27, 2021, 14:33 IST

          BENGALURU: Reiterating that mutation entries don’t confer the title of a property on anyone and the same has to be established independently in a declaratory suit, the Supreme Court has declined to entertain a special leave petition filed by Bruhat Bengaluru Mahanagara Palike.

          A bench comprising Justices DY Chandrachud, Indira Banerjee and Sanjiv Khanna also declined to grant any interim order injuncting Faraulla Khan and others from creating any third-party interest with regards to a property, which is the subject matter of a pending civil suit.

          The court opined that Karnataka high court had clarified in its June 26, 2019 order that the direction to BBMP for mutation is subject to any other remedies available under the law and it is open to BBMP to establish its title by following due process of law.

          The controversy relates to certain properties situated on Thimmaiah Road and Miller’s Tank Bund area in Bengaluru. BBMP had issued endorsements declining to register khata in the name of those who claimed to be subsequent purchasers. The government claimed the genuineness of the grant vis-a-vis the lands in question is under probe.

          The subsequent purchasers approached the high court. Both the single as well as division bench ruled in their favour.














          Mutation entries don't confer property title: SC, Real Estate News, ET RealEstate (indiatimes.com)
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          • Re : RE Related Laws & New Developments

            Plea in HC claims eviction provision under DRCA discriminatory towards landlords

            Under the Act, a landlord can seek eviction of a tenant from a residential property if the tenant has an alternative accommodation, the petition by two brothers, has said and added that the same was not applicable to commercial properties.
            NEW DELHI: The Delhi High Court on Thursday sought response of the Centre on a plea claiming that the provision in the Delhi Rent Control Act (DRCA) of 1958 which deals with eviction of tenants was "discriminatory towards the landlords" where commercial properties was concerned.

            A bench of Chief Justice D N Patel and Justice Jyoti Singh issued notice to the Ministry of Housing and Urban Affairs seeking their stand on the petition which claims that the Act does not provide for eviction of tenants from commercial properties when such persons have other commercial properties.

            Under the Act, a landlord can seek eviction of a tenant from a residential property if the tenant has an alternative accommodation, the petition by two brothers, has said and added that the same was not applicable to commercial properties.

            The petitioners, represented by advocates Abhinav Beri, Shivam Khera and Satyam Khera, have contended that not considering commercial properties under the eviction provisions of the Act was "purely arbitrary, unreasonable and a latent drafting flaw which has just been ignored for a very long time".

            The petition was moved after an Additional Rent Controller rejected the brothers plea to evict their tenants from a commercial property, despite the latter having several other commercial properties.

            The brothers wanted to evict their tenants from the shop, which is close to their own shop, at Ajmeri Gate here as they wanted to expand their business.

            They have contended that the Act was initially enacted in 1958 with a view to protect tenants who do not have any alternative accommodation, but now with change in circumstances, the interests of landlords also need to be considered, especially with regard to commercial properties.

            "Landlords have been forced to not to seek legitimate eviction when tenants do not require any more protection under DRCA due to change in circumstance of tenant," the plea has claimed.














            Delhi Rent Control Act: Plea in HC claims eviction provision under DRCA discriminatory towards landlords, Real Estate News, ET RealEstate (indiatimes.com)
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            • Re : RE Related Laws & New Developments

              Illegal occupant of panchayat land cannot claim regularisation as matter of right: SC

              A bench of Justices D Y Chandrachud and M R Shah said regularisation of the illegal occupation of government or panchayat land can only be as per the policy of the state government and the conditions stipulated in the rules.
              NEW DELHI: Persons in illegal occupation of government or panchayat land cannot claim regularisation as a matter of right, the Supreme Court has said. A bench of Justices D Y Chandrachud and M R Shah said regularisation of the illegal occupation of government or panchayat land can only be as per the policy of the state government and the conditions stipulated in the rules.

              The top court was hearing a plea filed by residents of Sarsad village in Tehsil Gohana in Haryana's Sonepat district who encroached upon panchayat land and constructed houses.

              The Haryana government in 2000 framed a policy regarding sale of panchayat land in unauthorised possession outside 'Abadi Deh' (the residential area of a revenue estate). Haryana also amended the Punjab Village Common Lands (Regulation) Rules, 1964 and issued a notification in 2008.

              Thereafter, in 2008, Rule 12(4) was incorporated in the 1964 Rules in terms of the notification dated January 3, 2008, which authorises Gram Panchayat to sell its non- cultivable land in Shamlat Deh (vacant land) to the inhabitants of the village who have constructed their houses on or before March 31, 2000. The petitioners in this case, who were in illegal possession of the land belonging to Gram Panchayat, made an application under Rule 12(4) of the Punjab Village Common Lands (Regulation) Rules, 1964.

              The Deputy Commissioner, Sonepat on perusal of the record and the site report, rejected their application holding that as the applicants are in illegal occupation of the area more than the required area up to a maximum of 200 square yards, they are not entitled to the benefit of Rule 12(4). The Punjab and Haryana High Court dismissed a writ petition challenging the order passed by the authority.

              The apex court held the competent authority as well as the high court both are justified in taking the view that as the respective petitioners are in illegal occupation of the area more than the required area up to a maximum of 200 square yards, they are not entitled to the benefit of Rule 12(4). "It is required to be noted that the persons in illegal occupation of the Government Land/Panchayat Land cannot, as a matter of right, claim regularization.

              "Regularisation of the illegal occupation of the Government Land/Panchayat Land can only be as per the policy of the State Government and the conditions stipulated in the Rules," the bench said. The top court said that if it is found that the conditions stipulated for regularisation have not been fulfilled, such persons in illegal occupation of the government or panchayat land are not entitled to regularisation.










              Regularisation of illegal land: Illegal occupant of panchayat land cannot claim regularisation as matter of right: SC, Real Estate News, ET RealEstate (indiatimes.com)
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              • Re : RE Related Laws & New Developments

                Tenant can't be denied flat owner's parking space: Maharashtra court

                “As per Development Control Rules framed under the MRTP Act, 1966, the tenant cannot be denied parking,” stated the judgment in an appeal filed by a member of the south Mumbai society.


                https://www.indianrealestateforum.co...03#post2691903
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                • Re : RE Related Laws & New Developments

                  When is the right time to draft a property will?

                  A property Will is a legal document which is a legal instrument. The property owner executes this document so that he can plan his succession. This is done so that the property can be distributed among legal heirs as per the desire of the property owner.
                  NEW DELHI: Rising number of COVID-19 cases related deaths have also sparked a crucial real estate discussion on the property inheritance. You must have seen family disputes over property matters languishing in the courts for years. This is because inheritance issues in India are very complicated and a single step can ensure your amicable distribution of your real estate assets.

                  What is a property will?

                  A property Will is a legal document which is a legal instrument. The property owner executes this document so that he can plan his succession. This is done so that the property can be distributed among legal heirs as per the desire of the property owner.

                  Delhi-based advocate Moiz Rafique explains, “This is a legal document and drafting a property Will is basically a concept whereby it is seen that the property is distributed as per the desire and will of the person who owns it when he is not there. Any person who is above the age of 18 can prepare a property Will and when the person is of mature mind. He or she needs to have a very sound understanding on how he wishes to distribute his property after death.”

                  Key things to remember:
                  • Details of the testator needs to be there along with a legal declaration
                  • Intention of the testator has to be there and division of property needs to be mentioned
                  • Details of the beneficiaries need to be there
                  • In case of a minor, testator has power to choose the guardian of the property till the minor attains maturity
                  How important is a property Will, and how can one draft the same?

                  In several cases, family disputes occur due to non-availability of a legal distribution of a property. After the death of a person, his property devolves in two ways - according to his Will i.e. testamentary, or according to the respective laws of succession, when no Will is made. If a person dies without a will, the law of succession applies based on the religion of the deceased.

                  Most of us don't bother to write a Will based on the assumption that it is required only for those who are wealthy or very rich. This is where the problem starts!

                  According to legal experts, you should create a will early in your life. There is no right or wrong age to write a Will. There is no fixed format for a Will. You don't even need a lawyer to draft it. You can just write your Will on a plain paper.

                  “One should definitely register a property Will with the sub-registrar for more authenticity. It makes a Will legally valid. But even if a Will is not registered it can be taken up in the civil court for probate. Registered or unregistered will needs to be taken to the civil court with jurisdiction, asking for a probate. Once the probate is given, thereafter the beneficiary will have to get the property in his or her name. On the basis of the probate then only he can further sell off the property,” adds Rafique.

                  A will can be revoked and there are two types of revocations. You will have to go to the sub-registrar office to revoke the registered Will. In case of unregistered Will, the testator can revoke the Will.

                  Succession planning is important to ensure your property is distributed without family disputes and also to give you an idea of your finances and equal distribution of the same among all family members.











                  property will: When is the right time to draft a property will?, Real Estate News, ET RealEstate (indiatimes.com)
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