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Allahabad High Court scraps another Noida Extension acquisition

July 20, 2011 at 10:25 am · Filed under Builder, Commercial Property, Delhi, Finance, Growth Investing, India Real Estate, Indian Properties, Indian Real Estate, Investing, lawyer, legal, Loans, Marketing, NCR Region, Pre-owned homes, Properties, Prospecting, Real esate, Real estate trends, Reality Firms, Residential Property, Selling ·Tagged , , , , , , , , , , , ,

noida extension atoneplaceOn 19th July 2011 another verdict was given by the Allahabad High Court that scraped another land acquisition in Noida Extension by the Greater Noida Industrial Authority. 589 hectares of land was acquired by the Authority in Patwari village, in Noida Extension, by bringing into play the urgency clause. The land was purchased for the industrial development in the region but it was given away to real estate developers for numerous residential and commercial projects.

This decision of the Allahabad High Court came after a fortnight following the Supreme Court’s order which defended the high court’s order regarding cancellation of land acquisition of more than 150 hectares in Shahberi village.

A division bench comprising of Justices Sunil Ambawani and S S Tiwari scraped the land acquisition stating that ther was no need to bring up the urgency clause. The court gave the verdict on a group of petitions filed by the farmers from Patwari village.

According to Parminder Bhati, the farmers’ lawyer, this decision of the High Court will surely bring respite to at least 1,600 farmers from the region. He further added that this decision will adversely affect almost 18 big and small developers who have launched or own the land in the area.

The court rejected some of the affidavits that were presented before him by the government lawyer. These affidavits stated that villagers have no objection to the land acquisition and have been satisfactorily compensated. Bhati told that the court ignored all these affidavits.

He said that some of the farmers in Patwari village had accepted compensation but a large number of farmers had refused to the same.

The land acquisition process in Patwari Village was initiated on March 12, 2008. But in September 2009, the Greater Noida Industrial Authority brought into play the urgency clause under Section 17(1) of the Land Acquisition Act, 1894 — which offers for abstaining from the right of a tenure holder to a hearing on whether he wishes to sell off his land or not — and acquired possession of 589.13 hectares of land on papers. The farmers’ counsel said that the physical possession of the land had not started by that time.

In the coming few days, the court would be giving out verdicts about alike petitions which comprise of at least eight more villages from Noida Extension where developers have launched numerous housing projects.

On 20th July 2011, the villagers from Roja and Yakubpur villages are expecting to get another verdict from the high court on the petition filed by them, following which the petitions filled by the village residents from Bisrakh, Itehda, Haibatpur, Ghanola and Malcha would be decreed. On 26th July 2011, the petition filed by the villagers from Dewla is expected to be decided by the high court.

In Noida Extension, 12 projects from 11 builders are affected that include:

  1. Supertech Eco Village
  2. Nirala – Nirala Estate
  3. Patel Group – Neo Town
  4. Arihant – Arden Arihant
  5. Eros group – Sampurnam
  6. Amrapali – Leisure Park, Spring Medows
  7. Panchsheel – Hinish
  8.  Stellar- Jeevan Project
  9. Earth Group – Towne
  10. Paramount – Emotions
  11. Ajnara

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Borrow the correct amount of home loan to purchase your home

June 21, 2011 at 5:43 pm · Filed under Banks, Broker, Finance, Growth Investing, India Real Estate, Indian Properties, Indian Real Estate, Investing, lawyer, legal, Loans, Marketing, Properties, Prospecting, Real esate, Real estate trends, Reality Firms, Referal, Repatriation, Residential Property, Selling ·Tagged , , , , , ,

home_loan_atoneplaceBanks are pursuing potential borrowers with their teaser interest rates and exclusive offers. The real estate scenario today is experiencing development of new projects all over the country and builders are engaged in pushing their completed projects at good prices.
BORROWING CORRECT AMOUNT
In the current economic scenario, most of the people who are buying homes are young, salaried IT employees, professionals, entrepreneurs and self-employed businessmen. Real estate has always been considered as lucrative and prudent investment option. The present generation has bought down the age of  purchasing homes. The average age now is 28 -34.It is not like 20 years ago  when most of the home buyers belonged to the age group of  late 40s, who used all their savings to purchase a property. Today, the times have changed, the young generation is well traveled and  more dynamic , and they are also being helped by the different financial institutions that have made home loans a far easier process than in the olden days.
The important thing to remember for taking a loan is not to  extend the finances beyond a certain limit . The real estate market has product for every pocket i.e from economic affordable housing to ultra luxurious lifestyle condominiums and bungalows. The thing to remember is  A bigger amount of home loan means that the borrower will have to pay higher amount as EMIs.
The banks are ready to give home loans of about 50%  to  55%  of the borrower total monthly take home salary after doing their own due diligence of the clients credit worthiness. Individuals of today are intelligent enough to understand their monthly  expenses of their household. Market experience shows that not more than 30% -35%  of your monthly income ( whether individual or combined) should form part of your EMI. As you move along in life various other needs keep cropping up like education and upbringing  of children , medical expenses etc plus the inflation factor is always there.
STAY AWAY FROM DEBT CONhome_loan_atoneplace
One needs to keep in mind also that when interest rates increase, the home loan borrowers who have opted for  loan have to pay increase  EMI installments. If one has not been  prudent enough while taking a loan and has taken a bigger amount of loan then in some cases one has  to make drastic changes in their day-to-day life and can even have to do away with their current lifestyle, luxuries, periodic investments and saving for emergencies. As mentioned above The amount given by the banks or the financial institutions as home loan results in an EMI and if EMI becomes more than  40 % of the borrower’s total monthly take home salary.  The thumb rule suggests that it becomes hard for the home loan borrower to pay back to the financial institution. When borrowers are not able to pay back their EMIs, they end up taking some more loans to repay their previous loan. This taking of more loan to repay the previous loans is not advisale as it might drag a borrower into a vicious circle of debt trap
So the mantra which really everybody of today generation knows is to borrow right and tight. In today’s market scenario there are home options for every pocket.
And yes do remember “OLD is GOLD”, so  do not hesitate to take advice of your elders and well wishers,. You will not loose anything, on the contrary will only gain from their experience.
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Regulatory Environment for Real Estate Investment in India by NRI’s/PIO

December 3, 2010 at 5:02 pm · Filed under lawyer, legal, legal column

The real estate sector in India is on a rapid growth trajectory. The Indian real estate industry is expected to reach a size of US$ 180 billion by 2020. India leads the pack of top real estate investment markets in Asia for 2010, according to a study by Urban Land Institute, a global non-profit education and research institute, released in December 2009. The report, which provides an outlook on Asia-Pacific real estate investment and development trends, points out that India, in particular Mumbai and Delhi, are good real estate investment destinations. Residential properties are viewed as more promising than other sectors. While, Mumbai, Delhi and Bengaluru top the pack in the hotel ‘buy’ prospects as well.

Further, real estate companies are coming up with various residential and commercial projects to fulfill the demand for residential and office properties in Tier-II and Tier-III cities.

Latest policy of government of India regarding investment in property by NRI’s/PIO is as follows:

Acquisition and Transfer of Immovable Property in India

1) A person resident outside India who is a citizen of India (NRI) can acquire by way of purchase, any immovable property in India other than agricultural land / plantation property/ farm house. He can transfer any immovable property other than agricultural or plantation property or farm house to:

i. A person resident outside India who is a citizen of India, or

ii. A person of Indian origin resident outside India, or

iii. A person resident in India.

2) He may transfer agricultural land / plantation property / farm house acquired by way of inheritance, only to Indian citizens permanently residing in India.

3) Payment for acquisition of property can be made out of:

i. Funds received in India through normal banking channels by way of inward remittance from any place outside India, or

ii. Funds held in any non-resident account maintained in accordance with the provisions of the Foreign Exchange Management Act, 1999 and the regulations made by Reserve Bank from time to time.

4) Such payment cannot be made either by traveller’s cheque or by foreign currency notes or by other mode other than those specifically mentioned above.

5) A person resident outside India who is a person of Indian Origin (PIO14) can acquire any immovable property in India other than agricultural land / farm house / plantation property:

i) By way of purchase out of funds received by inward remittance through normal banking channels or by debit to his NRE / FCNR(B) / NRO account.

ii) Such payments cannot be made either by traveller’s cheque or by foreign currency notes or by other mode other than those specifically mentioned above.

iii) By way of gift from a person resident in India or a NRI or a PIO.

6) A PIO may acquire any immovable property in India by way of inheritance from a person resident in India or a person resident outside India who had acquired such property in accordance with the provisions of the foreign exchange law in force or FEMA regulations at the time of acquisition of the property.

7) A PIO may transfer agricultural land / plantation property / farmhouse in India acquired by way of inheritance, by way of sale or gift to person resident in India who is a citizen of India.

8 ) A PIO may transfer any immovable property other than agricultural land / Plantation property / farmhouse in India:

i. By way of sale to a person resident in India.

ii. By way of gift to a person resident in India or a Non-Resident Indian or a PIO.

Repatriation of sale proceeds

(i) In the event of sale of immovable property other than agricultural land / farm house / plantation property in India by NRI / PIO, the authorised dealer will allow repatriation of sale proceeds outside India provided:

a) the immovable property was acquired by the seller in accordance with the provisions of the foreign exchange law in force at the time of acquisition by him or the provisions of FEMA Regulations;

b) the amount to be repatriated does not exceed (a) the amount paid for acquisition of the immovable property in foreign exchange received through normal banking channels or out of funds held in Foreign Currency Non-Resident Account or (b) the foreign currency equivalent as on the date of payment, of the amount paid where such payment was made from the funds held in Non-Resident (External) Rupee Account for acquisition of the property; and

c) In the case of residential property, the repatriation of sale proceeds is restricted to not more than two such properties.

(ii) In the case of sale of immovable property purchased out of Rupee funds, AD Category – I banks may allow the facility of repatriation of funds out of balances held by NRIs / PIO in their Non-Resident Rupee (NRO) accounts up to USD 1 million per financial year, subject to production of undertaking by the remitter and a certificate from the Chartered Accountant in the formats prescribed by the CBDT.

Refund of application/earnest money/purchase consideration

Authorize dealer may permit repatriation of amounts representing the refund of application/earnest money/purchase consideration made by house building agencies/seller on account of non allotment of flat/plot/cancellation of booking/deals for purchase of residential/commercial property, together with interest, if any (net of income tax thereon), provided the original payment was made out of NRE/FCNR account of the account holder, or remittance from outside India through normal banking channels and the authorized dealer is satisfied about the genuineness of the transaction. Such funds may also be credited to the NRE/FCNR account of the NRI’s/PIO, if they so desire.

Remittances of sale proceeds of residential accommodation purchased by NRIs / PIO out funds raised by them by way of loans

Authorized dealers may allow repatriation of sale proceeds of residential accommodation purchased by NRIs/PIO out of funds raised by them by way of loans from the authorized dealers/housing finance institution to the extent of such loan/s repaid by them out of foreign inward remittances received through normal banking channel or by debit to their NRE/FCNR accounts.

Remittances of sale proceeds of the immovable property acquired out of Rupee funds – Lock-in-Period removed

The existing FEMA regulations permit Non-Resident Indians (NRIs) and persons of Indian Origin (PIO) to remit up to USD one million per financial year (April-March) for any bonafide purpose out of the balances in their Non-Resident Ordinary (NRO) accounts. The balance in the NRO accounts may also include the sale proceeds of immoveable property acquired by the non-resident out of his/her resources in India, or sale proceeds of property received by way of inheritance or gift.

Mukesh Goel

Partner Mukesh Raj & Co.

mukesh@mukeshraj.com

 

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HINDU ANCESTRAL PROPERTY

December 2, 2010 at 1:57 pm · Filed under Indian Properties, lawyer, legal, legal column

To determine a person’s share in Hindu ancestral property, three sources of law have to be understood – 1) Old Hindu law 2) The Hindu Succession Act, 1956 and 3) Judicial decisions.

The Hindu Succession Act tinkered only with certain aspects of Hindu law and anything not touched upon by the Act is still governed by Old Hindu law,  as determined by the religious texts. The Hindu school was divided mainly into the Dayabhaga school prevalent in Assam, Bengal and Punjab while the rest of India followed the Mitakshara school. Apart from this, separate rules of inheritance was followed in the West Coast, i.e., Kerala and Mangalore.

What is ancestral property? Property inherited upto 4 generations of male lineage (i.e., father, grand father, etc.) is called as ancestral property. The right to a share in such a property accrues by birth itself, unlike other forms of inheritance, where inheritance opens only on the death of the owner. The rights in ancestral property are determined per stripes and not per capita. This means that the share of each generation is first determined and the successive generations in turn sub divide what has been inherited by their respective predecessor.

What is not ancestral property? Properties inherited from mother, grandmother, uncle and even brother is not ancestral property. Property inherited by will and gift are not ancestral properties. Self acquired property on the other hand can become ancestral property only if it is thrown into the pool of ancestral properties and enjoyed in common. This is a matter to be determined on the facts and circumstances of the case.

HUF different from co-parcenary: Normally the words HUF (Hindu United Family) and co-parcenary / ancestral property are used by the layman interchangeably. This is not so. A HUF is simply a Joint Hindu family living together, which need not necessarily own property. It could also have females as its members, which was not allowed in a traditional co-parcenary, (until recent amendments made in the center and the state) where only males were allowed to be members.

HUF different for tax purposes: The income tax law is a separate class by itself and simply assesses the income of a family which has declared itself as a HUF, which could even consist of a father, wife and daughter and which need not necessarily own property.

Hindu Succession Act: This act repealed certain acts passed during the British era, like Hindu Gains of Learning Act and Hindu Women’s right to Property Act. Such acts had introduced the concepts of self acquired properties and rights of widows to have a share equal to that of a son in coparcenary property after the death of a Hindu male. However the progress made by these acts have not been lost and the passing of The Hindu Succession Act again sought to enlarge the rights of Hindu daughters in owing a piece of ancestral property.

Section 6: In order to give rights to daughters, the act introduced a legal fiction of ‘notional partition’ whereby when a male Hindu dies after the commencement of the act, (leaving behind female relatives and without executing a will)  his share in the coparcenary property is deemed to have been divided at the time of his death, whether actual partition has taken place or not.

a)     This means that if a family consists of a father, mother, two sons and a daughter, the share of the father at the time of death, after notional partition would have been 1/4th share in ancestral property. This is because each of the sons take one share (as coparceners),  the wife takes one share and the father takes one share as per the rules of old Hindu law (and as per judicial pronouncements which have interpreted and enlarged the scope of the Hindu Succession Act).

b)    The share belonging to the father is then again sub – divided equally between all the heirs, i.e., mother, sons and daughter. This 1/4th share goes out of the co-parcenary property for all times. Thus the sons apart from inheriting 1/4th share as coparceners in their own right,  also inherit a small share in their individual capacity from the divided share of their father. The share inherited by the mother and daughter also goes out of the coparcenary property. There are conflicting judgments on whether the shares of the sons are to be treated as coparcenary properties or not after partition, by the different high courts and supreme court.

Will and Section 8: Any interest in any co-parcenary property can also be willed away and this share also goes out of the purview of the ancestral property. Also, if a father dies leaving self acquired property, his son will inherit it absolutely. The grandson cannot claim the same as ancestral because it was inherited under Section 8 of The Hindu Succession Act. In every instance it should be determined if a property was inherited by succession ( section 8 ) or survivorship (section 6 ) or by testamentary (will) succession.

State and Central amendments: The Hindu Succession Act has been amended in the center in 2005 giving equal rights to daughters in coparcenary property. (The supreme court has enlarged this right by stating that the coparcenary right of daughters are to be given from 1956 and not on an arbitrary cut off date, unless there has been a registered partition / concluded partition.) The same rights were given to daughters by various state amendments made earlier, in Andhra Pradesh, Karanataka, Tamil Nadu and Maharashtra. If a daughter has not been married as on 30.7.94, she gets equal share as that of a son in coparcenary property in Karnataka. Thus the daughters get a right by birth similar to that of a son. If she is unmarried (or married and has no child or children) and dies, her co parcenary property will be inherited by other coparceners, if she has not left a will to the contrary. If she has a child the property will be inherited by her child or children by succession, in the absence of a will.

Properties in Kerala and Mangalore (West Coast of India) : After the Hindu Succession Act, the traditional system of matrilenial property divisions found in Kerala and the Aliyasantana law prevalent in Mangalore also were deemed to have been notionally partitioned as per prevailing custom (per capita) and the share of the deceased male was then inherited by Class I heirs (mother, spouse, son, daughter, children of predeceased children) in equal shares.

The effect of the sum total of the laws and its interpretation is to virtually abolish the continuation of the coparcenary property and it will be difficult to sustain it in the long run because several portions of the coparcenary property have been excluded from what constituted the original coparcenary property.

 

SRI VATSALA DHANANJAY & Co

PROPERTY LAW FIRM

e-mail: 1.vatsala@gmail.com

http://www.propertylawyersbangalore.com

 

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Real Estate – Legal Corner

August 22, 2007 at 9:36 am · Filed under Commercial Property, India Real Estate, lawyer, legal, legal column, problem, Real esate

Life is a complex maze – full of possibilities.

Real Estate, not only in India but wherevere it may be in the world – is also quite similar to our daily experiences – full of unexpected possibilities. Some countries have quite well defined the processes and demystified the puzzle for a common citizen – “the home seeker”, others are “work in progress”.

Meanwhile, we (www.atoneplace.com) get a lot of questions on the Indian real estate legal maze. Every time there seems to be a much more complexed problem….. So, sometime back we realized a need of an experieced legal expert for our marketplace.

Finally, the search has ended… to help our customers (specially now that the world is shrinking and investments flowing in all directions) living outside Indian borders or even for those who live in a different state from where the land under question is…. we are happy to announce the appointment of a legal expert on our marketplace – so now send your basic questions (legal nature) to legal@atOnePlace.com and our legal expert will try and answer them for you…. here’s the catch…. totally FREE!!

More details will follow soon…

Meanwhile, send in your questions … She’ll love to hear from you! (oops, no early disclosures, the board warned 🙂

NOTE: Fictitious names used, and any resemblance is co-incidental. All copyright & trademarks acknowledged.

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