ARTICLES

BY erealto | 05-12-2018

New ruling to curb misuse of stamp duty rebate

Stamp duty is a tax levied by the government on any property transactions whether commercial or residential. Earlier, the stamp duty charged was 9%. But an ordinance was issued to reduce the stamp duty to 6%. This ordinance came into effect and became a law after the Indian Stamp Act 1899 (for Punjab) got amended and the Indian Stamp (Punjab Amendment) Act 2017 came into effect. Punjab government, in order to curb the misuse of stamp duty rebate ruled out a new law which will control the wrong deeds of some greedy and unethical people. In order to empower the women, Punjab government gives a rebate of 2% on the property transactions which are registered on the name of a woman. Though, the transfer of property to someone who is related by blood is absolutely free of cost, but for others, the government charges stamp duty of 6% if the property is to be transferred to a man, in the case of a woman, it is 4%. This is a unique step which has been taken by the government to empower the women and to increase their say in the matters of property. However, if the male and female are equal property owners, the rebate given is according to the proportionate share of women in the property. But this is however being misused by some immoral people, who at first transfer the property on the name of woman but then transfer it to a male member of the family. In order to curb this practice, the government takes back the rebate given, if the property is transferred from a female to male within a period of one year. This decision has been taken by the Punjab Revenue Department to restrict the malpractices going on.

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BY erealto | 03-12-2018

Article

Property, as a legal social institution, has different forms in different cultures and legal systems. However, only a definition of constitutional property is common in all democratic countries. Since the state exercises eminent domain power against private property, it is pertinent to discuss the concept of private property in brief. The institution of private property has been a controversial issue with conflicting views, one completely denying the right to own private property and the other supports the holding of the private property. However, the right to property is a natural and inherent right of an individual. Most of the modern constitutions, except those of communist countries have recognised the right of private property. Therefore, citizens have right to own and possess the property. This right of individual conflicts with the right of state to acquire property. A person has a right not to be deprived of his property except through due process of law. International Relevance International Convention on The Elemination of All Forms of Ratial Discrimination Which states in Article 5 that everyone has the right to equality before the law without distinction as to race, colour and national or ethnic origin, including the “right to own property alone as well as in association with others” and “the right to inherit”. Convention on The Elimination on All Forms of Discrimination Against Women The convention on the Elimination of All Forms of Discrimination against women recognises the property rights in Article 16, which establishes the same right for both spouses to ownership, acquisition, management, administration, enjoyment and disposition of property, and Article15, which establishes women’s right to conclude contracts. Convention Relating To The Status of Refugees These international human rights instruments for minorities do not establish a separate right to property, but prohibit discrimination in relation to property rights where such rights are guaranteed. Universal Declaration of Human Rights Article 17 of the Universal Declaration of Human Rights (UDHR) enshrines the right to property as follows: (1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property The object of the right to property as it is usually understood nowadays, consists of property already owned or possessed, or of property acquired or to be acquired by a person through lawful means. Not on opposition but in contrast to this, some proposals also defend a universal right to private property, in the sense of a right to every person to effectively receive a certain amount of property, grounded in a claim to Earth’s natural resources or other theories of justice. Indian Relevance Constitution of India In India, no fundamental right has given rise to so much of litigation than property right between state and individuals. Through the Supreme Court of India sought to expend the scope and ambit of right of property, but it has been progressively curtailed through constitutional amendments. The Indian version of eminent domain has found in entry 42 List III, which says “acquisition or requisition of property”. Under the original Constitution Article 19(1)(f) and 31 provides for protection of property right and later they were repealed and Article 300A was inserted. Accordingly no person shall be deprived of his property save by the authority of law. However, regarding right to property what kind of protection given by the US Constitution under Article 300A. For better understanding of Article 19(1)(f) and 31 along with constitutional amendments. Article 31(2) of the constitution provides for compulsory Acquisition of land. The power of eminent domain is essential to the sovereign government. The provisions of the fifth amendment to the constitution of the United states is that private property cannot be taken for public use without just compensation. The principle of compulsory acquisition of property is founded on superior claims of the whole community over an individual citizen, is applicable only in those cases where private property is wanted for public use or demanded for the public welfare. Accordingly, the right of eminent domain does not imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for a full compensation where the public interest will be in no way promoted by such transfer. The limitation on the power of eminent domain is that the acquisition or taking possession of property must be for a public purpose has been expressly engrafted in clause (2) of Article 31 of the constitution of India. No property shall be compulsorily acquired or requisitioned save for a public purpose.

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BY erealto | 05-12-2018

How to resolve a property dispute in india

Property is one of the most disputed legal issue in india . A property dispute refers to any legal dispute involving real property ,also known as real estate. Real property is immovable property attached directly to the land. Property disputes may involve the following parties , including but not limited to : • Neighbours • Landlords and tenants • Homeowners association • Government agencies • Trespassers • Family members • Property visitors Because of the potential numerosity of parties and disputes involving real property, property disputes make up a large portion of legal claims filed each year. In many cases, legal remedies may include a damages award to cover the plaintiff’s losses, or an injunction ordering one party to remedy a property defect or preventing a party from doing something on his or her property (such as building a spite fence). Common types of property disputes : • Illegal possession of property : Disputes may arise regarding the possession of property when it is claimed that a property is not possessed lawfully or if the person in possession of the property is not authorized to possess the same. The applicable laws in this matter are given below. An aggrieved person can intiate a lawsuit under the followings laws : 1. Transfer of Property Act , 1882 2. Indian contract Act , 1872 3. Indian succession Act , 1925 4. Hindu Succession Act , 1956 5. Muslim Succession Laws 6. Indian Evidence Act 7. Rent Control Laws 8. Land Revenue Act 9. Specific Relief Act , 1963 10. Code of Civil Procedure , 1908 in cases of trespass • Title Disputes : Any person or persons may challenge the registration of a property in the name of another person or persons. Having title to a piece of property generally means that a person actually owns the property described on the deed . In these types of disputes the following laws are applicable : 1. Transfer of Property Act , 1882 2. Indian Contract Act , 1872 3. Indian Succession Act , 1925 4. Hindu Succession Act , 1956 5. Muslim Succession Laws 6. Rent Control Laws 7. Registration Act , 1908 • Rental Disputes : Landlords and tenants disputes regarding possession of property , rent dues or terms and conditions of the rental agreement. An aggrieved party can bring a legal action against other party under the following laws : 1. Rental Control Laws 2. Indian Contract Act , 1872 • Contractual Disputes : Disputes between two parties who entered into an agreement or signed a contract for use , sale , transfer , development , etc. , of an immovable property will be contractual disputes. The following laws are applicable in these type of disputes : 1. Indian Contract Act, 1872 2. Specific Relief Act , 1963 • Disputes with cooperative societies : Disputes between owners of flat or buildings within a cooperative society and the society regarding non-payment of dues , non recognition by the society of the member’s right / demands , allegation by member of mismanagement of the society , etc . In these matters the aggrieved party can intiate lawsuit under the following laws: 1. Specific Relief Act , 1963 2. Cooperatives Society Act of the concerned state • Dispute between buyers and developers : Allegations by buyers of property about misleading or cheating by builders or allegations by buyers about non- delivery or delayed delivery of property by builders with or without claiming compensation , not conveying the title to the land to the society etc. In this situation the victim party can brings a lawsuit against the other party under the followings laws : 1. Specific Relief Act , 1963 2. Transfer Of Property Act , 1882 3. Consumer Protection Act , 1986 • Disputes between borrowers and banks : Disputes about the validity of the mortgages created , amount claimed by the bank from the debtors / guarantors , possession taken / to be taken by the bank and / or disposal of the property by the bank for non – payment of dues by the borrowers. The followings laws are applicable in these type of matters : 1. Banking Ombudsman Scheme 2. Consumer Forums Mechanisms 3. Transfer Of Property Act , 1882 4. SARFAESI Act 5. Stamp Act , 1899 6. Registration Act , 1908 • Dispute between developer and Local Civic authority like Municipal corporation , Jal Board , Electricity Board etc. : Local authorities objecting to developer’s inability to adhere to rules and regulations as specified in the master plans or terms of approval given to the builder. Disputes may also arise due to denial of necessary permissions to the developers without valid reasons . In there type of circumstances an aggrieved party can approach the court of law under followings laws : 1. Indian Contract Act , 1872 2. Right to Information Act , 2005 • Execution suit : One of the unsavory events arising during a property transaction can be when the vendor of a property who initially had agreed to sell his / her property to the purchaser at an agreed sale consideration , changes his /her track. The party that is affected i.e. the purchaser has every right to file a suit against the vendor for specific performance of the agreement. If the court finds the claim valid , it may adjudicate and pass an order for execution of the sale deed in favour of the purchaser. The lawsuit can be initiated under the following laws : 1. Indian Contract Act,1872 • Declaratory suit : Suit for situation where title to the property is challenged or found to be questionable or defective. The circumstances makes it necessary to get an order from the court on the title by filing a declaratory suit in a court of law. One can file a suit under the followings laws : 1. Transfer Of Property Act , 1882 • Partition suits : This will prevent the illegal occupant of the property from interfering with the possession and occupation of the property by its rightful owner. The partition suit can be filed under the following law : 1. Transfer Of Property Act , 1882 • Money Suits : If one has lent money on the security of an immovable property by way of mortgage , and wants to realize it , he /she may have to file a suit for recovery of the money due from the mortgagor. If that fails to m aterialize ,he /she may sell the property mortgaged for realizing the money. One can initiate legal proceedings under the following laws : 1. Rules and regulations related to mortgages. • Disputes between quasi- judicial authorities : There are different types of litigations concerning land revenue , land acquisitions , title document , etc. which are heard and disposed of by several quasi –judicial authorities . • Writ jurisdiction : Writ jurisdiction may be invoked against the decisions of the government affecting one’s property rights by filing a writ petition in the High Court concerned or in the Supreme Court for appropriate relief . If you are a customer of eRealto.com then the company will provide you free legal aid through its legal department about any property concern .

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BY erealto | 07-12-2018

Commercial property tax hikes in Chandigarh

Since the imposition of commercial property tax in UT of Chandigarh in June 2003, there is a hike in the property tax for the first time after 15 years of imposition. Now the commercial property owners will have to pay 10% more property tax than the tax levied earlier. This move has come after the UT administration has finally heeded to Municipal Corporation's request to enhance the commercial property tax. The commercial property tax is one of the most important sources of revenue for the MC. And with an increase in the tax, this will yield better revenue for the municipal corporation. The corporation in the last financial year had collected an amount of 30 crores from the tax. The enhanced commercial property tax has been made effective from 1st April 2018, beginning of the new financial year and notices have been sent to those who have not paid the hiked tax. The city has been divided into 4 zones for the purpose of collecting taxes. Property tax on commercial buildings ranges between Rs 3 and Rs 20 per square feet, depending upon zones. The notification, copy of which is with TOI says, "In exercise of the powers conferred by the Punjab Municipal Corporation Act 1976 as extended to the UT Chandigarh by the Punjab Municipal Corporation Law (Extension to Chandigarh Act), 1994, the administrator UT, Chandigarh in partial modification of notification dated June 3, 2003, is pleased to specify that tax on commercial, industrial and institutional lands and buildings falling within the municipal limits, levied by the Chandigarh MC under clause (a) of sub-section (1) of Section 90 of the Act with effect from 1.4.2018 shall be assessed and collected with enhancement of 10% in the existing rateable value per month of Chandigarh MC (tax on commercial, industrial and institutional lands and buildings) Bye-Laws, 2003".

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