Category Archives: Real Estate

A Tenant finds the Law is Reason without Emotion

Posted on by
Reply

The general rule is that welfare statutes are to be construed as liberally as possible but whether or not a statute is a welfare statute, it cannot be given an interpretation which is simply not consistent with its provisions.

On May 13, 2008, a Bench of the Supreme Court comprising Justices S B Sinha and L S Panta refused to stay an eviction from rented business premises by a landlord who wanted the premises for his own business in the case of Ganga Devi v. Distt. Judge, Nainital & Ors..

The tenant was a 76-year-old widow named Ganga Devi who prayed for the eviction to be stayed because of her being a 76-year-old widow. Her husband, Khyali Ram, had earlier been a tenant in the premises. After his death, she took over the business.

The landlord applied for the release of the shop before the Chief Judicial Magistrate, Nainital under Section 21 (1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. His application was dismissed by the Prescribed Authority but the Appellate Authority reversed the order. The writ petition filed by Ganga Devi thereagainst was dismissed by the High Court.

Section 41 of the Act provides for the rule making power. Rule 16(2) of the State of U.P. known as U.P. Urban Buildings (Regulation of Letting, Rentand Eviction) Rules, says:

16. Application for release on the ground of personal requirement:
(1)………………………
(2) While considering an application for release under Section 21 (1)(a)in respect of a building let out for purposes of any business, the Prescribed Authority shall also have regard to such facts as the following:

(a) the greater the period since when the tenant opposite party, or the original tenant whose heir the opposite party is, has been carrying on his business in that building, the less the justification for allowing the application;
(b) Where the tenant has available with him suitable accommodation to which he can shift his business without substantial loss there shall be greater justification for allowing the application.
(c) the greater the existing business of the landlord’s own, apart from the business proposed to be set up in the leased premises, the less the justification for allowing the application, and even if an application is allowed in such a case, the prescribed authority may on the application of the tenant impose the condition where the landlord has available with him other accommodation (whether subject to the Act or not) which is not suitable for his own proposed business but may serve the purpose of the tenant, that the landlord shall let out that accommodation to the tenant on a fair rent to be fixed by the prescribed authority;
(d) where a son or unmarried or widowed or divorced or judicially separated daughter of a male lineal descendant of the landlord has, after the building was originally let out, completed his or her technical education and is not employed in Government service, and wants to engage in self employment, his or her need shall be given due consideration.

When the matter reached the Supreme Court, the Court said:

Comparative hardship, indisputably, is a relevant factor for determining the question as to whether the requirement of the landlord is bona fide or not within the meaning of the provisions of the said Act and the Rules. It is essentially a question of fact. Such a question of fact, however, is to be determined on the touchstone of the statutory provisions as contained in Section 21(1)(a) and Rules 16(2)(c) of the Rules.

Rule 16 provides for some factors which are required to be taken into consideration for the purpose of determining the comparative hardship.

The provisions of the statutory rules must be interpreted so as to give effect to the object and purport of the Act. It cannot be applied in a vacuum, as the statute requires comparison of the hardship of both the tenant as also the landlord. It is, therefore, not a case where Rule 16 has any application.

The court would not determine a question only on the basis of sympathy or sentiment. Stricto sensu equity as such may not have any role to play.

(This post is an edited extract of the judgment.)

The Management of Agricultural Land by the State Government

Posted on by
Reply

Sections 44 to 62 of the Bombay Tenancy and Agricultural Lands Act speak of the management of agricultural land by the State Government.

Under Section 44, a notice shall be published in the Official Gazette of the intention of the State Government to take over the management of agricultural land and the Collector shall cause the substance of the notice to be displayed at prominent places in the locality where the State Government intends to take over the management of agricultural land under the Bombay Tenancy and Agricultural Lands Act:

  1. because it is satisfied that cultivation has seriously suffered
    1. due to the landholders neglect or
    2. due to disputes between the landholder and his tenants
  2. to ensure the full and efficient use of the land for agriculture.

Under Section 45, the estate vests in the State Government from the date the notice is published. A manager is appointed by the State Government to be in charge of the estate, and the tenants have the same rights and liabilities as they had before the State Government assumed management.

Section 46 deals with the effect of a declaration of management by saying that while the declaration is in force:

  1. in respect of the debts and liabilities of the estate:
    1. proceedings in Civil Courts are stayed
    2. processes, attachments and executions are suspended
    3. no fresh proceeding is to be instituted
  2. the holder of the estate is incompetent to:
    1. enter into any contract involving the estate in pecuniary liability
    2. mortgage, charge, lease, or alienate the land or part thereof
    3. grant valid receipts for rents or profits.

The Holder

    The death of the holder does not affect the continuation of the management of agricultural land by the State Government. His successor is subject to the disabilities under the Act which the holder had been subject to. However, attachment or other processes will not be issued against the land for the successor’s debts or liabilities.

The Manager

  1. He is a public servant.
  2. He is competent to mortgage, charge, lease, or alienate the land or part thereof although he requires the Collector’s permission for a sale or lease exceeding ten years. Permission will only be given if such sale is necessary for the benefit of the estate or if the sale is to a tenant under Sections 32, 32F, 32I or 32O of the Bombay Tenancy and Agricultural Lands Act, and such a sale is final. In all cases, the dealings of the Manager with respect to the land are binding on the holder and his successor.
  3. He has the power of the landholder and of the Collector to recover and grant valid receipts for rents or profits. His receipt discharges the payer.
  4. He is to pay the costs of management with what he receives and with the residue, he is to pay the debts and liabilities of the estate, any loan he may have received from the government and the balance to the holder.

Claims

    The manager shall publish a notice in the Official Gazette (and exhibit copies if he sees fit) calling on all persons who have claims against the estate to notify him in two months. If they do not do so because of being unable to do so, the period may be extended by two months. After the expiry of the period (or the extended period, as the case may be), the claim shall be deemed to be discharged.
    The claim is to contain all the relevant particulars and be delivered to the Manager along with the necessary documents. Documents which are not so delivered may not be allowed to be produced as evidence later on. If the document is an entry in a book, the book along with a copy of the entry is to be produced; the book is marked for identification and returned after being compared with the copy.
    The manager then investigates claims, and determines debts and liabilities.

The Liquidation Scheme

    If the debts and liabilities cannot be paid at once, the manager ranks them and fixes interest. He formulates a scheme containing provisions for repayment, the improvement of the estate etc. and submits it to the Collector.
    If the Liquidation Scheme is sanctioned, all debts and liabilities are extinguished and proceedings in respect of them are barred.
    Also, in some circumstances, the manager may by order in writing require a conditional vendee or mortgagee in possession to deliver up possession to him at the end of the revenue year. The encumbrancer (and any person resisting on his behalf) may be summarily evicted by the manager without recourse to a Civil Court if he refuses or neglects to do so.

Termination

    The management of agricultural land by the State Government may be terminated by a direction by the State Government in the Official Gazette when it is not necessary in its opinion. The possession of the land and the balances to the credit of the landholder or his successor are to be delivered to him once the management is terminated. Also, the manager’s lawful acts during the period of management bind the landholder or his successor.

The Encroachment of Government Land

Posted on by
Reply

Sections 50 to 54A of the Maharashtra Land Revenue Code speak of encroachment on government land or foreshores or land being used for hawking / selling articles without the sanction of the competent authority.

The Collector may summarily remove or abate the encroachment at the expense of the encroacher.

The encroacher is also liable to pay the assessment on the land and a fine. In the case of non-agricultural land, this fine is not more than two thousand INR and in the case of agricultural land, its not more than one thousand INR. On failure to remove the encroachment within the time stipulated by the Collector, the encroacher is liable to pay an additional fine of either twenty-five or fifty INR per day depending on whether or not the land is agricultural land.

Under Section 51 of the MLRC, encroachments can be regularized on the desire of the encroacher by:

  • charging not more than five times the value of the land
  • fixing assessment at not more than five times the ordinary assessment
  • following such other rules as the Collector may impose

after the Collector gives public notice of the intention to regularize the land at the expense of the encroacher. Once the encroachment is so regularized, the encroacher’s name is entered in the land records.

Under Section 52, the collector conclusively determines land revenue considering the market value of similar land in the same area.

Section 53 deals with the summary eviction of a person unauthorisedly occupying land. The Collector hears the person, conducts a summary inquiry and then gives his opinion with brief reasons. The encroacher is then given notice to vacate the land. If he does not comply with this notice, the Collector removes him and the encroacher is liable to pay the penalty of two times the assessment for the period of unauthorized use.

Section 54 deals with what happens after summary eviction. It says that the building / construction or crop raised, if not removed after notice deemed reasonable by the Collector, is liable to forfeiture or summary removal.

The Implementation of the Forest Rights Act

Posted on by
Reply

The basic unit for the implementation of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act is to be the Gram Sabha. The responsibility of State Governments is to publicise the provisions of the Act, train officials to implement it and constitute the required committees.

The Forest Rights Committee

Each Gram Sabha has a Forest Rights Committee attached to it. The Committee is required to assist the Gram Sabha right from the time of receiving claims. It is to help in the verification of claims and present its findings on the nature and extent of claims to the Gram Sabha for its consideration.

The Forest Rights Committee must acknowledge every claim made in writing.

The Duties of Gram Sabhas

Gram Sabhas are required to call for claims and authorize their Forest Rights Committees to determine them. Claims should be substantiated by at least two of the pieces of evidence. They should ordinarily be made within a period of three months from the date on which they are called for although Gram Sabhas may extend the three-month period after recording the reasons for doing so in writing.

Once claims have been received, the concerned Gram Sabha must fix a date to begin the process of determining them and, if required, intimate the date to adjoining Gram Sabhas and to the Sub-Divisional Level Committee.

The Forest Rights Committee is required to actually verify claims and submits its findings in writing to the Gram Sabha. After considering the findings of the Committee, the Gram Sabha must pass appropriate resolutions and forward them to the Sub-Divisional Level Committee.

The Verification of Claims by Forest Rights Committees

After informing the concerned claimant and the Forest Department, the Forest Rights Committee is required to, inter alia, visit the site, physically verify the nature and extent of the claim, make maps delineating the area of the claim, and receive evidence from the claimant and witnesses.

If a claim has been made by pastoralists, nomadic tribes, or members of a primitive tribal group or pre-agricultural community, the Committee must ensure that they or their representatives are present when the claim is determined.

Once a claim has been determined, the Committee must record its findings and present it to the Gram Sabha.

If there are conflicting claims, the Forest Rights Committees of the Gram Sabhas involved must meet jointly to consider matter and then present their findings to their respective Gram Sabhas in writing. If the Gram Sabhas involved cannot resolve the conflicting claims, the claims must be referred to the Sub-Divisional Level Committee to be resolved.

Evidence for the Determination of Rights

Various pieces of evidence can be used to substantiate claims including public documents, Government records, orders, notifications, circulars, resolutions; Government authorised documents such as ration cards, passports, etc.; quasi-judicial and judicial records; research studies by reputed institutions such as anthropological Survey of India, traditional structures establishing antiquity such as wells, burial grounds, sacred places, as well as statements of elders other than claimants reduced to writing.

Source

Rehabilitation Law

Posted on by
Reply

Two Bills to aid in the rehabilitation of all those who have lost their land to factories, SEZs and the like are reportedly scheduled to be introduced in the monsoon session of Parliament: they are an amendment to Land Acquisition Act, 1894 and the National Rehabilitation and Resettlement Policy, 2007.

The Resettlement Bill is supposed to ensure transparency in the process of deciding the quantum of compensation for land and also to ensure that the compensation is on time.

The amendment in the Land Acquisition Act is supposed to ensure that companies do not use government machinery to acquire land. The bill will proposes an increase in both the price of land acquired for industrial purposes to bring it closer to the market value of the land and in the amount of solatium to be paid in addition to compensation.

It remains to be seen if this will help rural landowners whose land has been forcibly acquired.