Property tax on land under construction

Supreme Court says that land under construction for the purpose of rating, should be treated as vacant land.

Read full judgment

Sunday, 4 December 2011

Repeal of Urban Land Ceiling & Regulation Act (ULCRA)

1. The ULCRA came into force in 1976 in 64 urban agglomerations spread over 17 states and three union territories (UTs) and covered towns with a population of more than two lakhs as per 1971 census.

2. The Government of India decided to repeal the act with the passing of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. Various states subsequently repealed the act. The only states yet to repeal ULCRA are Andhra Pradesh, Assam, Bihar and West Bengal.

3. On 29 November 2007, Government of Maharashtra passed a resolution in the State assembly and voted for the repeal of the said Act in Maharashtra.

4. Impact of Repeal of Act – The ULCRA, 1976 was repealed with the following saving clauses :
“3. (1) The repeal of the principal Act shall not affect-
(a) the vesting of any vacant land under sub-section (3) of section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority;
(b) the validity of any order granting exemption under sub-section (1) of section 20 or any action taken thereunder, notwithstanding any judgment of any court to the contrary;”
After repeal of ULCR Act, a number of cases were filed in Bombay High Court as State Government resorted to complete the proceedings under various sections of the Repealed Act to take possession of lands which were declared surplus and with respect to which proceeding under section 10 of ULCR Act were initiated for taking possession of the land.

Secondly, the lands with respect to which exemption under section 20 of ULCR Act was granted and the state government has withdrawn the exemption order on violation of terms and conditions of ULC order, State Government resorted to take possession of lands without or after following the procedure laid down in section 10 of ULCR Act.

Thirdly, lands, possession of which were taken by State Government by following due process of law under section 10 of ULCR Act, were not to be affected by the Repealed ULCR Act.

Therefore in almost all the cases filed before Mumbai High Court, mainly three issues were dealt with by the court which are as follows:
i) Whether the State Government is entitled to take possession of lands declared as surplus under the provisions of ULCR Act and initiate proceedings under section 10 of ULC Act for taking possession after repeal of the ULCR Act on 29 November 2007 ?
ii) Whether exemption granted by the Government was in the nature of contract between the State Government and the landlord, the violation of which would entitled State Government to take possession of the land from the Land owners after canceling the exemption order even after repeal of the ULCR Act on 29 November 2007?
iii) Whether lands possession of which were taken by the state government under section 10 of ULC Act prior to coming into force of Repealed ULCR Act, will be affected or not?

In a number of judgments, High Court held that after the repeal of ULC Act on 29 November 2007, State Government can not take possession of land even if it has initiated proceeding under section 10 of ULCR Act for taking possession.


5. Some judgments are as follows:

i) Vithabai Bama Bhandari vs State Of Maharashtra (Bombay High Court order passed on 16 April, 2009.

Brief facts of the case :
On 3 October 1983, landlord’s land was declared as surplus land. On 10 July 1989, the Landlord filed application for grant of exemption under section 20 of ULCR Act which was allowed on the condition that 31 tenements of 40 sq.mtrs each to be sold to Government nominees at fixed rate vide order dated 31 July 1989. Landlord filed appeal which was allowed holding that Landlord has only 2008 sq.mtrs surplus land. Landlord was directed to handover only 7 tenements of 40 sq.mtrs each. Landlord started the construction work and on 5 January requested the authority to take possession of flat alongwith land to be handed over to the authority as per the order. Landlord was informed that there were exchange of certain correspondence with his power of attorney holder and after serving show cause notice, vide order dated 25 April 2005, exemption granted has been withdrawn due to non-compliance of condition for exemption under section 20 of ULCR act. Landlord was again served notice dated 28 June 2007 to handover the possession of the surplus vacant land. Landlord filed writ petition in High Court challenging the said notice.

In the above case, exemption order was withdrawn due to violation of terms and conditions of exemption order passed under ULC Act and notice was served to hand over the possession of the land; proceeding under section 10 of ULCR Act was initiated but no possession of land was taken before the Repealed ULCR Act came into force in Maharashtra in November 2007.

Mr.Sonpal submited that the above order dated 31st July, 1989 in general and conditions mentioned therein were in the nature of contract between the State Government and the Landlord. The violation of conditions of exemption order constituted breach of contract. In his submission reference to provisions of Chapter-III with regard to the procedure for taking possession constituted integral part of contract (not integral part of the statute) as such he submitted that the provisions of the Repealing Act would not be applicable so far the subject land is concerned. He submitted that the revocation of exemption as well as action for taking possession of the land as per Clause 17 of the exemption order dated 31st July, 1989 was saved and was not at all affected by Repeal Act.
However, High Court held that once exemption order was revoked, section 10 of ULCR Act for taking possession would be attracted. Section 20(2) of ULC Act did not provide that possession of surplus land would automatically deemed to have been taken by the Competent Authority. Since, ULCR Act was already repealed, proceeding under section 10 of ULCR Act could not be initiated for taking possession or if initiated, it could not be proceeded further as the same would stand abated. High Court also rejected the submission of Mr. Sonpal that by virtue of exemption under Section 20(1) and withdrawal thereof under Section 20(2), the requirement of section 10 partook the nature of the terms of the contract. High Court held as under:
“It is held and declared that as a consequence of the Repeal Act, further proceedings pursuant to the order made by the State Government dated 28th June, 2007 withdrawing exemption and all further actions taken under Section 10(3) shall stand abated and can no longer be proceeded further….”
ii) Similarly, in case of Abdul Aziz Alisaheb Bharmar vs The State Of Maharashtra, Bombay High Court in it’s order passed on 17 August, 2010, held as follows :
“23………….. In view of the law declared by the Division Bench of this Court, even in case of breach of the conditions by the holder of the land in whose favour the exemption is granted under section 20(1) and if such exemption is withdrawn by the State Government by exercising the power under section 20(2) on account of breach of condition, even then the question of saving under sub-clause (b) of section 3 of the Repealed Act does not arise.”
Section 3(b) of Repeal ULCR Act is as follows:
“3. The Repeal of the Principal Act shall not affect:
a) ……
b) the validity of any order granting exemption under sub-section (i) of Section 20 or any action taken thereunder, notwithstanding any judgment of any court to the contrary:”
Thus, it is crystal clear that State Government can not take advantage of Section 3(b) of Repeal ULCR Act to take possession of land from landowners after 29 November 2011. Action for taking possession must have been completed before 29 November 2011, then only it is saved by Section 3(b) and not thereafter.
The High Court further clarified as follows:
“24. It is also well-settled by the Division Bench of this Court in the case of Voltas Ltd. & anr. v. Additional Collector and Competent Authority, Thane & Ors., reported in 2008 (5) All M.R. 537 that lands which are owned by the person in relation to such notification under sub- section (3) of section 10 of the principal Act was issued and the order under sub-section (5) of section 10 of the principal Act, however, such vacant land shall not vest in the State Government under sub-section (3) of section 10 of the principal Act, if possession of the said land has not been taken over by the Competent Authority and these notifications shall stand abated. “

6. As regard third issue, the High Court held that as per section 4 of the Repeal Act, all proceedings filed under this act would stand abated if the said proceedings were not related to sections 11,12, & 13 of the Principal Act and if the possession of land had been taken over by the State Government. Section 4 of the Repeal Act is as follows:
“4. All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate:
Provided that this section shall not apply to the proceedings relating to sections 11, 12, 13 and 14 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority.”
Brief facts of the case of SULOCHANA CHANDRAKANT GALANDE v. PUNE MUNICIPAL TRANSPORT & ORS. [2010] INSC 581 (3 August 2010) (Supreme Court)

In the above case the land was acquired by the Government under the ULC Act, possession was taken and handed over to Pune Municipal Transport in the year 1978-79. The land owner challenged the declaration of land as surplus on the ground that in 1976 when ULCR Act came into force, the land was not within the limit of urban area but only due to subsequent change in the master plan, it came within the limit of urban area. Landowner contented that categorization of the land in the Master Plan in existence at the time of commencement of ULC Act into force was a relevant factor and subsequent change in the Master Plan can not be taken into consideration. The application of landlord was allowed Hon’ble Minister on 29.09.1998.

PMT filed writ petition against the order dated 29.09.1998 which was allowed by High Court vide its order dated 20.02.2006.

Landlord approached to Supreme Court by way of filing appeal which was dismissed on 3 August 2011 holding as follows:
“31. Undoubtedly, the Act, 1976, stood repealed by the Act 1999. However, it has no bearing on this case for the reason that proceeding pending in any Court relating to the Act, 1976, stood abated, provided the possession of the land had not been taken from the owner. Therefore, in a case, where the possession has been taken, the repeal of the Act would not confer any benefit on the owner of the land.”

7. Apart from above issues decided by the court, some practical problems were also faced while obtaining permission from the land ceiling authorities for development of land and constructing building.
With the Act repealed in November, builders and developers were no longer required to get permission from the land ceiling authorities in the government, a process that involves considerable time and a significant fee.
However, in the absence of the no-objection certificate, BMC has to figure out a way to ensure the land belongs to the builder. Since November, when Ulcra was repealed, the urban land ceiling department has maintained that the previously mandatory no-objection certificate for projects on land measuring at least 500 sq. m is no longer needed. However, the building proposals department of Brihanmumbai Municipal Corporation (BMC) says it cannot approve these projects because it isn’t clear whether they are on land that has previously been acquired by the government under the provisions of Ulcra.
Thereafter, S.R. Jhondale, additional collector of the urban land ceiling department, made a statement that the state government had intervened and passed an order to bring out a list of “clear” land that had not been acquired under Ulcra. List was to be given to BMC to end the confusion and to enable the BMC authority to verify whether the new projects are on land that has previously been acquired by the government under the provisions of Ulcra.