COMMENCEMENT CERTIFICATE:
After the approval of the building plan, the owner shall give notice to the authority of the intention to start work on building site in writing. Further, the owner shall give notice to the authority on completion of foundation or footings before erection of walls on the foundation. Within 15 days from the date of receipt of such notice, the Engineering wing/authority shall inspect the site to verify as to whether the foundation work for the building conforms to the sanction plan or not. If the foundation work is according to the sanction plan, the authority will issue commencement certificate within the prescribed period from the date of the inspection. In any case, the construction shall be proceeded according to the sanctioned plan as if the permission for the commencement of the work is deemed to have been accorded.
Further, the authority will verify as to whether the building has been constructed in all respects as per the sanctioned plan of the building, complied with Building bye-laws, including other relevant permissions or clearances obtained from the other departments. If everything is in order, Engineering Department will issue the Commencement certificate.
OCCUPANCY CERTIFICATE:
Problems with respect to issuance of Occupancy Certificate arises on account of violation of Building laws, such is almost 95% of buildings in Bangalore facing the problem. Though common people have spent their hard earned money on the project with a dream of owning a house, they are unable to get the occupancy certificate because of the deviations in construction of the building. Whereas, the Builders having a good connection, escape through various loopholes in law and extended their salable area.
DEVIATIONS AND VIOLATION:
Wherever any construction is in violation of the sanctioned plan, the Commissioner may, if he considers that the violations are minor viz., only when the violations are within 5% of (1) the minimum set back to be left around the building (2) the maximum plot coverage (3) permissible floor area ratio and maximum height of the building and that the demolition under the Act is not feasible without affecting the structural stability, regularize such violations by issuing sanction of the modified plan with a levy of suitable fee to be prescribed. The Commissioner shall come to such conclusion only after recording detailed reasons for the same. Violations under the provision shall not include the buildings which are constructed without obtaining any sanctioned plan whatsoever and also violation, which are made inspite of the same being specifically deleted or rejected in the sanctioned plan.
CONSEQUENCE OF DEVIATION:
In general, builders and occupants are not much bothering about the Commencement Certificate and Occupancy Certificate. It is advisable to insist for the Completion certificate from the builders. Only after the receipt of completion certificate, the title will be perfected. However, the officials are not bothering at the time of construction and they would not issue the completion certificate even after completion of the building. People in Bangalore in general are not bothering about the completion certificate.
However, certain cases of demolition of unauthorized floors, deviations were happened very recently at Brigade Road Street and Richmond Street, in Bangalore.
Deviation is a vicious circle, which only the government can break. Government must initiate immediate remedial action to stem the root. The authorities shall not be very rigid in granting completion certificates. If the builder has deviated a little more than the allowed percentage, the authorities may impose the huge penalty and regularize the building.
In the early twentieth century it was known for such group housing but in a different manner. Group housing popularly known as “Vatara” was very common where small dwelling units were constructed in a single compound and families lived in perfect harmony and unison. The Vatara, used to be horizontal or L shaped with single storey buildings whereas the apartments are vertical with multistoried buildings.
In Bangalore in the early seventies, the first Apartment constructed was Shalimar Apartment. In the early eighties Apartment culture began to show its presence in Malleshwaram. Apartment Culture is rapidly picking up.
Advantages
Flats have certain advantages when compared to independent houses. Community living offers security and certain amed with othenities and facilities, which an individual cannot afford and which can be sharer occupants as common facilities at minimal cost. Facilities like gym, recreational center, swimming pool, sauna; Jacuzzi, full-fledged security, clubhouses, sports and games come at nominal cost. Generally Apartments have Owners Residents Association, which attend to the problems of the residents and carryout repairs.
Sanctioning Authority
With respect to sanctioning of plans, various approving authorities have powers with some restrictions. The village Panchayat cannot approve a plan of a multistoried building; High Rise Building Complex or a Building more than 8000 sq.ft of land and any building plan exceeding the prescribed height has to be approved by Town Planning Authority. It must be kept in mind that any massive violation of the sanction plan will face the threat of demolition of the building at the future date.
It is also necessary to ascertain whether the building has complied with the Floor Area Ratio (FAR), that is, total built up area permitted on the plot with prescribed setbacks vacant space that is to be left around the building.
Financial institutions are currently offering long-term loans at a very low interest rate. Housing finance companies and banks also prefer financing the flats as multiple beneficiaries live in a single compound and it would be easy for them to follow up and they need not spend much on legal formalities.
Any high rise structure should have clearance from BWSSB, BESCOM, Fire force, Telephone department, Pollution Control Board and also from the Airport Authority of India.
Disadvantage
No doubt, there are certain disadvantages also. Most important is the lack of privacy which is available in independent houses where the resident is the king of the house and has unlimited freedom. The owner of a flat cannot have additional construction and alteration. Even in order to repair a leak on the ceiling one has to obtain permission of the association and the person living on the upper floor. Whereas, in the case of an independent house, the owner may add additional construction as per his requirements and let out the same to supplement his income without any hindrance.
Generally local people prefer independent houses. The resale value of flats is less, since the building gets depreciated and demolishing a flat and reconstructing it is also not possible. In case of independent house, though the building gets depreciated, the land value appreciates. If necessary the old building may be demolished for new construction. Then the resale value of an independent house is always more. Flat owners have to pay monthly maintenance charges, which at times will be equal to or quarter or half the value of rents paid to a house, depending upon the amenities provided.
Process of Purchase
The purchaser of a flat has to take into account the location of the flat, its proximity to civic amenities and also select the builder according to his track record. It is always advisable to visit some of the projects completed by the builder before booking a flat.
Verification of the title of the property is one of the important aspects of purchase of property. Though the builder provides legal certificate from their advocate, the purchaser should always independently get the title verified by his own Advocate. Only advocates with a minimum of 7 years of experience are eligible to issue legal opinion for the apartment to the Developer as per the Karnataka Apartment Act.
If the property is sold by a general power of attorney holder, verify the terms of GPA and whether the owner who has given the GPA is surviving or not, should also be checked.
Conveyance/Sale Deed
After completion of the apartment construction the sale deed should be executed by the vendor of the land and the Promoters jointly as per the understanding. The sale deed must also mention the duties and responsibilities of the buyer and the seller, the purchaser has to pay the required stamp duty and complete the registration formalities. Registered sale deed is the main document that confers on you the ownership of the flat. On the basis of the sale deed the Revenue authority issues documents of title like the Khatha Certificate, Khatha Extract and Tax paid receipts.
Price of a flat is determined, based on the various factor like location, specification of the work, carpet area and percentage of Super Built up Area.
Undivided Share of Land
When you purchase an apartment you are entitled to an undivided share in the total land area. The undivided share depends upon the built up area of the apartment and the land area. As the total built up area increases the undivided share decreases and vice versa.
Share Certificate Method
Purchase of the flat by share certificate method is very popular in Maharashtra. A registered Co-op. Societies acquires land, constructs flats which are allotted to its members; whereas in Karnataka, the share certificate method is not accepted by general public, financial institutions, State Government, etc. Karnataka Government is of the view that individual flats should be registered by regular conveyance. When tracing the title of this type of share certificate method, verification of the society record, its bylaws and share certificates is very important.
Apartment Owners’ Association
After the construction and handing over of flats, the owners of apartments form an association to take care of the needs of the residents and to upkeep of the common areas. The builder must hand over detailed drawings of electrical wiring, piping and drainage system to the association. The builder must also hand over to the Association all the original Documents of Title and Sale deed including plan, drawings etc., as without proper drawings, it would be difficult for the association to maintain the apartment building.
The building should have lift facility. One has to examine the provision for water supply and sanitary connection. In many cases, though bore wells are drilled, the yield is much less. So the residents have to purchase water from outside agencies at exorbitant costs.
The next advantage an apartment owner gets would be the social harmony he would get due to community living. A sort of bondage is developed amongst the residents of apartments.
Further, for the exclusive use of apartment owners/occupants almost all the apartments now-a-days, do have facilities like gym, health-club, recreational center, sports club, swimming pool, private security system within the premises for which again a nominal fee is charged.
Demerits of Apartments:
Even though living in apartments do have many advantages, they are not totally free from disadvantages. A Person who lives in an apartment generally is deprived of his privacy. Further, the apartment owner is prevented from carrying out any major addition, alteration or modification to his apartment to suit his needs. All such repairs, alterations and modifications are to be carried out with least inconvenience to other apartment owners and any damage or loss caused to the other apartment owners and any damage or loss caused to the other apartment owners are to be compensated. The amount collected by the Apartment Owners Association to meet the expenses for general maintenance and upkeep may be more than what a person would have spent had he owned an independent house and could be much more than what is required for such maintenance. There is every likelihood of such common fund being misused by the office bearers of the Association or over which there could be some misunderstanding amongst the apartment owners leading to unsavory situation.
How to proceed?
As in the case of purchase of any other property, verification of ownership title is one of the pre-requisites for purchase of an apartment also. Though the builder of apartments provides legal opinion given by his advocate regarding subsistence of marketable and valid title of the vendors, it is always better that the intending purchaser of an apartment gets the title report of the property scrutinized form an advocate of his choice having vas knowledge and experience in property dealings. The legal scrutiny report shall contain detailed information regarding the origin, flow of title, present status of the owner, validity of the GPA, Joint Venture, if any, entered into between the owner and the Developer.
Another very important aspect which requires consideration is to ascertain whether the approval for construction of apartments and the plan has been obtained form the competent authority and to find out whether commencement and completion certificates have been issued by such an authority.
Location of the building is another important aspect which one has to consider before purchasing an apartment. This is mainly because any building which has no proper access to main roads with insufficient public transport and other civic amenities such as water, electricity supply, proper sanitation, parks, market place, hospitals, schools, etc. would pu8t the purchaser of flat to a great hardship and inconvenience.
Apart from all these, the previous history and record of the Builder is necessary to be verified for which purpose, it is always advisable to visit some of the 4 projects executed by the builder in advance.
Powers of the Sanctioning Authority:
For grant of approval for building co0nstruction and the plans, different authorities are delegated with this power under different statutes. While, the village Panchayats are empowered to give licence for construction of building consisting of ground and first floor, the City Municipal Corporation can approve plans for ground plus three upper floors. The BMP or BDA can approve building plans of land for construction of multistoried buildings apart from constructing and independent house. In the case of high rise buildings consisting of more than four floors, No Objection Certificates form BWSSB, BESCOM, Fire force authority, BSNL, Airport Authority of India and Karnataka State Pollution Control Board are to be compulsorily obtained.
It must be kept in mind that anyone who violates the building bye-laws and zonal regulations would expose himself to the risk of demolition of such structure any time in the future.
Conveyance/Sale Deed
Normally, before purchase of an apartment, a sale agreement is executed by the Owner, [represented by the GPA Holder where there exists a GPA holder] and the Builder, agreeing to sell an undivided share in the land in favor of the intending purchaser. While at the same time, a construction agreement is also executed by the Builder in favor of the intending purchaser agreeing to construct an apartment for him. Once construction of apartment is complete, a sale deed is executed jointly by the vendor of the land and the builder/Promoter in accordance with the terms and conditions of the Joint Development Agreement, if any, in favor of the purchaser. The sale deed specifically recites the duties and responsibilities of the buyer and the seller. As regards sale consideration, it is arrived at upon consideration of the various aspects such as location, specification of the work, carpet area and percentage of Carpet area to Super Built up Area and as agreed to between the parties.
Undivided Share of Land
Undivided share is the percentage of share conveyed in the total land along with the apartment to the purchaser. This percentage depends upon the built up area of an apartment and the actual extent of land upon which the apartments are constructed. As the built up area increase the undivided share over the land also increases.
REFUSAL TO REGISTER THE DOCUMENTSRegistration of documents of immovable properties is compulsory according to Section 17 of the Indian Registration Act,1908 and Section 54 of the Transfer of Property Act,1882. However, there are certain circumstances under which the registering authority can refuse registration of documents. Both the Indian Registration Act, 1908 and the Karnataka Registration Rules, 1965, provide for refusal to register the documents under certain circumstances. The refusal could be on the ground of jurisdiction of the sub-registrar or for non-compliance of rules and procedure. Some of the grounds on which there could be a refusal by the sub-registrar to register a document are listed below:1. The document is in a language not understood by the registering officer, or a language not commonly used in the district; and translated version of the same is not produced along with the document.2. The document has corrections, alterations, erasures, interrelations blanks, which are not attested by the executant.3. The description of the property is insufficient to identify and the document is not accompanied by a copy of the map, plan as required under the relevant provisions.4. The document is presented after prescribed time limit.5. The document is presented by a person who has no right to present it.6. The executants or their authorised representative, assigns, agents did not attend to registration within the prescribed time.7. The sub-registrar is not satisfied as to the identity of the person appearing before him as executant or he is not identified to the satisfaction of the sub-registrar.8. The date of execution is not mentioned in the document or correct date is not possible to be ascertained or the date of execution is altered making it impossible to ascertain.9. The Sub-registrar is not satisfied as to the right of person appearing as agent or representative or assignee.10. The execution is not admitted by person said to have executed or his agent.11. The person supposed to have executed the document is a minor, idiot, lunatic, not competent to contract.12. In case where the executant is dead and the execution by such deceased person is denied by his representative or assignee.13. In case of more than one representative of the deceased and when some of them admit the execution and others deny the execution, it will be treated as refusal and registration may be refused.14. The death of the person who is supposed to have executed is not conclusively proved when the document is presented by his representatives or assignees.15. The sub-registrar is not satisfied as to the fact of execution of Will presented after the death of the testator or donor.16. The prescribed fee, penalty under any other law in force for time being has not been paidRefusal EndorsementIf the refusal is on grounds other than denial of execution, the Sub-registrar is required to endorse the document “Registration refused” and also record his reasons in prescribed books. The person executing the document or any person claiming under such document may request the sub-registrar to provide him a copy of the reasons for refusal, which shall be furnished without unnecessary delay and no fee shall be charged. In this connection, Section 71(1) of the Indian Registration Act is relevant and is reproduced below:“71(1). Every Sub-registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub-district, shall make an order of refusal and record his reasons for such order in his book No.2 and endorse the words Registration refused on the document and on application made by any person executing or claiming under the document shall without payment and unnecessary delay give him a copy of the reasons so recorded. “When a document is refused to be registered and endorsed accordingly, the recourse open to the aggrieved person is to file an appeal to higher authorities and orders thereon obtained.Enquiry of the RegistrarThe Registrar will cause enquiry as to the execution of the document, compliance of the requirement under the various laws, payment of appropriate stamp duty etc. The Registrar may waive the requirement of enclosing a copy of the reasons for refusal to register a document by sub-registrar along with the appeal or application and decide the matter on merits either agreeing with the decision of the Sub-registrar or by reversing the decision of the sub-registrar. However, in respect of appeals filed on the grounds of insufficient details to identify the property, Registrar has no authority to call for further description of the property.On being ordered by the Registrar for registration of the document in reversal of the order of the sub registrar, such document are required to be presented for registration within 30 days of such order. Upon such presentation of document for registration, the concerned sub registrar shall proceed to register such document. The registration of such document shall be operative from the date on which it was first presented for registration and refused and not from the date of actual registration.Appeal against the order of the RegistrarThe Registrar shall record his reasons for refusal and furnish a copy of such reasons to the appellant. There lies an appeal against the decision of the Registrar to the Civil Court within whose limits the Registering Authority’s office is located. Such an appeal is to be filed within 30 days of the Order of refusal by the Registrar.Reasons for refusalApart from want of Jurisdiction, the sub-registrar may refuse the registration on various reasons. Some of reasons for refusal are listed below:1. The document is in a language not understood by the registering officer, or a language not commonly used in the district; and translated version of the same is not produced along with the documents (Sec. 19).2. The document has corrections, alterations, erasures, interlineations blanks, which are not attested by the executant (Secc.20).3. The description of the property is insufficient to identify and the document is not accompanied by copy of the map, plans as required under the provisions (Sec. 21, 22).4. The document is presented after prescribed time as provided. (Sections 23, 24, 25, 26, 72, 75 & 77). 5. The document is presented by a person who has no right to present it (Sections 32, 33, 40, 43). 6. The executants or their authorised representative, assigns, agents did not attend within the prescribed time (Sec 34).7. The sub-registrar is not satisfied as to the identity of the person appearing before him, as executant or not identified to the satisfaction of the sub- registrar. (Sec 34, 43).8. The date of execution is not mentioned in the document or correct date is not possible to ascertain or the date of execution is altered making it impossible to ascertain (Rule 50).9. The Sub-registrar is not satisfied as to the right of person appearing as agent or representative or assignee (Sec 34, 40).
10. The execution is not admitted by person said to have executed or his agent.In cases, where the sub-registrar is satisfied that the executant is deliberately keeping out of way to avoid registration, or has gone to a distant place and not likely to return within prescribed time to admit registration, the sub-registrar may refuse to register the document treating the absence of the executant tantamount to denial of execution.11. The person supposed to have executed the document is a minor, idiot, lunatic, not competent to contract.12. In case where the executant is dead and the execution by such deceased person is denied by his representative or assignee (Sec 35).13. In case of more than one representative of the deceased and when some of them admit the execution and others deny the execution, it will be treated as refusal in to and registration may be refused.14. The death of the person who has supposed to have executed is not conclusively proved when the document is presented by his representatives or assignees (Sec. 35, 41).15. The sub-registrar is not satisfied as to the fact of execution of Will or authority to adopt presented after the death of the testator or donor (Sec 41).16. The prescribed fee, penalty under any other law in force for time being has not been paid (Sec 25, 34, and 80).APPEALWhen a registration of document is refused on grounds other than want of jurisdiction or denial of execution the aggrieved party may appeal in writing to registrar of district or officer in charge of the District Registrars office along with a copy of refusal order and document. The appeal may be made by the executant of claimant or their duly authorised agent. The appeal may be presented by the appellant himself or agent or through his authorised advocate.If the document is in possession of some other person, other than appellant and requires time to present such documents the registrar will grant time. The appeal shall be preferred within 30 days from the date of refusal of order.
Refusal on grounds of denial of executionIn case the sub-registrar refuses registration for reasons of denial of execution the persons claiming under such document or his agents may appeal in writing to the registrar within 30 days of the order of refusal and supported by the copy of the reasons for refusal, document, along with verification of the statements made in the appeal. as is done in case of plaints. The Act prescribes different procedure for appeals for refusal to register for reason of denial of execution and other reasons. In case of denial of execution only claimant under such document or his agents shall appeal and the application shall be duly verified. In other cases the appeal may be made by the executant or claimant or their agents.An appeal or an applicant against the Order of refusal to register the Will, after the death of the testator shall be made by the executor appointed under the Will.The registrar will conduct enquiry, as to the execution, compliance of various laws, proper payment of stamp duty and after being satisfied shall order for the registration of the document. In case if he finds reasons for refusal are correct, he may also refuse the registration.In case of appeals, on the grounds of insufficient details to identify the property, Registrar has no power to call for further description of the property.The condition of enclosing a copy of the reasons for refusal by sub-registrar against which appeal or application is preferred, may be waived by the registrar and decide the case based on merits and demerits.If the registrar reverses the order of the sub registrar and orders for registration of the documents, such document has to be presented for registration within 30 days of such order. The concerned sub registrar shall obey the order and shall proceed with the registration. The registration of such document shall be operative from the date on which it was first presented for registration and refused and not from the date of actual registration.Refusal by RegistrarThe Registrar may refuse the registration for want of jurisdiction or that, the document has to be registered in sub-registrar office, or for the reasons recorded by the sub registrar, he shall record the reasons for refusal in records and furnish a copy of such reasons to the party. The aggrieved party may approach the civil court within whose limits the office of registration is located. Such appeal has to be done within 30 days of the Order of refusal by the registrar.
MAKE SURE YOU APPROACH THE RIGHT AUTHORITY FOR REGISTRATION
Of late, people are extremely confused about the registration of transfer of properties. The registration process which was a smooth process hitherto, all of a sudden has become very tedious calling various documents, approvals, orders, which were not insisted upon earlier. A document that is considered as correct in one Sub-registrar’s office is rejected as not correct in another Sub-registrar’s office. The Revenue department, the Department of the Inspector General of Registration, the Commissioner of Stamps and all the Sub-registrars are confused themselves and seem unable to guide the public.
The Karnataka Government by notification RD/174/MUNOMV/2005 dated April 23, 2005 had declared the transfer of certain properties as opposed to public policy and instructed the registering authorities not to register the properties detailed in the notification. Further, the Government of Karnataka clarifying certain points referred in its notification dated August 23, has only compounded the confusion, adding to the misery of the public and the stubborn registering authorities, leading to the unnecessary harassment of the public.
The two important points, that have affected registration are, the conversion of agricultural land to non-agricultural purpose and the approval of layouts. Agricultural land cannot be used for any other purpose, unless it is converted to non-agricultural purpose. Under Section 95 of the Karnataka Land Revenue Act, the Government recently introduced a ‘Single Window’ system for conversion of land.
Apart from conversion of land, the layout should be approved by the concerned authority. Thereafter the building too needs to be approved. Generally, the Urban Development Authority in the district is the approving authority for layouts.
But many layouts are approved by the city municipal councils, town municipal councils (TMCs), and village panchayats, which has led to low quality development works, causing heavy financial burden on the local boards and the resultant in-convenience to the people. The conversion of land for any purpose other than agricultural should not be in violation of the approved master plan, CDP proposals. As far as Bangalore and surrounding areas are concerned, there are various planning authorities which approve layouts. Each planning authority has a specified jurisdiction.
People should understand that the Bangalore City Corporation (BCC), the various city municipal councils, TMCs or the village panchayats do not have any authority to approve layouts which vest with the Jurisdictional Planning Authorities. Many problems have risen because of the unauthorized and indiscriminate approval of layouts by these authorities, exposing the public to hardships.
Approval of plans
Before we discuss planning authorities, we must understand the powers of various local bodies like the city corporations, municipal councils, TMCs and village panchayats, to approve building plans.
Constructions are permitted only on converted lands and approved layouts. Village Panchayats may approve building plans with ground plus one structure within their jurisdictional areas only. Gramathana sites have come under strict scrutiny and many Panchayat boards have mindlessly issued Forms 9 and 10 and any approval of building plans on such gramathana sites require extra precaution. The gramathana sites can be identified by referring to a village map at the Department of Survey and Settlement.
According to a new circular, such sites should be certified by the village accountant enclosing a rough sketch of the gramathana site indicating the exact location in the village map along with its boundaries.
If the gramathana site satisfies all these stipulations, the Government will not insist on conversion, and the village Panchayat may approve a building plan of ground plus one floor on such sites. However, it is very difficult to identify genuine gramathana sites as a lot of bogus documents are in circulation. City municipal councils, TMC and the BCC may approve building plans of ground - plus – three floors only. Any building plan in excess of ground – plus – one in village Panchayat areas and in excess of ground – plus - three floors in the areas under the city corporations and municipal councils needs approval from the town planning authorities.
Deemed conversion
As stated earlier, layouts can be formed only on converted lands. The Karnataka High Court, in its Judgment in BDA V/s Vishwa Bharathi House Building Co-operative Society (1992(1) LJ 523B (DB) ILR 1991 KAR 440 (DB) has held that all agricultural lands within the jurisdiction of a city corporation are deemed to be converted. But the Government has clarified that there is no such deemed conversion, but that the competent authority may grant a conversion order.
It is also clarified that though the betterment charges are paid to the concerned local authority, and the Katha is issued by the local authority, if such property comes under agricultural land earlier to payment of betterment charges, conversion of land to non-agricultural purpose is necessary under the provisions of Section 95 of the Karnataka Land Revenue Act (1964). Under such circumstances payment of betterment charges and the issuance of the Katha is not a conclusive proof of conversion.
Planning authorities
There are numerous planning authorities authorized to approve layouts in and around Bangalore. They are;
-> Bangalore Development Authority (BDA)
-> Bangalore Metropolitan Regional Development Authority (BMRDA)
-> Bangalore International Airport Planning Authority (BIAPA)
-> Ramanagarm – Channpatna Urban Development Authority (RCUDA)
-> Nelamangala Planning Authority
-> Magadi Local Planning Authority
-> Kanakapura Local Planning Authority
-> Bangalore Mysore Infrastructure Corridor Planning Authority (BMICPA)
Each planning authority has a specified jurisdiction. The jurisdiction of the BDA comprises the area under the BCC, surrounding city municipal and town municipal councils and village panchayats. All applications may be addressed to the Commissioner, Bangalore Development Authority, Kumarapark, Bangalore -20.
The office of the BMRDA is located at the LRDE building, Ali Askar Road, Bangalore, and has its jurisdiction on Bangalore urban and rural districts and Malur taluk in the Kolar district, except the areas covered under the BDA, BIAPA and other local planning authorities.
BIAPA also has its office at the LRDE building, Ali Askar Road, Opposite to Palace Guttahalli, Bangalore – 52, and has its jurisdiction over the proposed new airport and its environs. BMICPA has a jurisdiction over the small area of about 65 sq.kms comprising the Bangalore-Mysore Inter Corridor Area.
Other Planning areas referred above have a jurisdiction over respective towns and environs. Planning areas under the BMRDA is very vast, but infrastructure available in the BMRDA is not enough for speedy disposal of approvals, causing much delay. In other cases, not referred above, the respective urban development authorities like the Shimoga Urban Development Authority, the Bellary Urban Development Authority etc., have the jurisdiction to approve the formation of layouts, if the lands are situated in their geographical jurisdiction. There are 27 urban development authorities in the State.
Apart from these urban planning authorities, if land is situated in the areas under other planning authorities, the applications have to be referred to the Member Secretary of the concerned planning authority. There are 42 planning authorities in the state.
If properties are located outside the jurisdiction of the BDA, BMRDA, BIAPA, BMICPA, urban development authorities and the Member Secretary Planning Authority, applications have to be submitted to the Assistant Director, Town Planning.
Any development activity has to be approved by these planning authorities as per the provisions of the various laws and the local bodies have no authority to grant such permissions.
LANGUAGE OF THE DOCUMENT
Our country is a land of many languages and there is no restriction as to which language should be used in writing the documents. But it is also not possible for the registering officer to know all languages. Section 19 of Indian Registration Act states that if any document in a language which is not understood by the registering officer and is a language not commonly used in the registering district, the registration may be refused, unless such document is accompanied by a true translation into a language commonly used in district and also a true copy.
Karnataka Registration Rule No.11 has recognised following languages in districts and sub districts;
Kannada and English - All districts and sub districts in the State. Telugu - Bellary district Marathi - District of Belgaum, Bijapur, Dharwad and North Karnataka and Sub-districts of Alland, Bidar, Gulbarga. Urdu - Districts of Bidar, Gulbarga, Raichur
Time for presenting the documents
The Act provides as to by which time, the documents should be presented for registration. Every document has to be presented for registration within four months from the date of execution as per section 23. The only exception is Will.
But if the document has to be executed by several persons and each person executes at different times, such document has to be presented for registration and re-registration within four month from the date of each execution.
However, the registration of documents presented after the expiry of four months is allowed on payment of fine as follows as per Section 5 of Indian Registration Act and Rule No.52 of Karnataka Registration Rules.
a) Where the delay does not exceed one week Fine equal to registration fee b) Where delay exceeds one week but does not exceed one calendar month Fine equal to twice the registration fee c) Where the delay exceeds one month but not two months Fine equal to five times of registration fee. d) Where the delay exceeds two months but does not exceed four months Fine equal to ten times of registration fee. Where delay exceeds four months from the date of execution registration is not allowed. The fine is payable is in addition to regular registration fee.
Place for registering the documents
The documents which affect immovable property have to be presented for registration at the office of the sub registrar of the district in whose jurisdiction whole or a portion of such property falls as per section 28 and other documents not affecting the immovable property or copy of decree or order may be presented in any office of sub registrar in whose sub district the document was executed or in the office of any other sub-registrar under the State Government at which all persons executing and claiming under the document prefer. The decree or order may also be presented for registration in the office of the sub-registrar in whose sub-district the original decree or order was made (Sec.28, 29).
Time from which registered document operates
A document which is registered shall be operative from the date of execution or from the date from which it was to operate as disclosed in the document and not from the date of registration (Sec 47).
All registered documents other than Will relating to movable and immovable property shall have priority over oral agreements or declaration in connection with such property. But if such oral agreement or declaration is coupled by delivery of possession of the property and such possession constitutes a valid transfer under any law for the time being in force, such oral agreement or declaration has priority over registered documents.
A Will made subsequent to earlier registered Will have priority over earlier made and registered Will.
A mortgage by deposit of title deeds shall have priority over any mortgage deed subsequently executed and registered, when both relate to the same property (Sec.48).
Duties of Registering Officer
The Registering officer has to endorse the time, hour and place of registration and also the signature of the person presenting the document for registration on every document so presented and shall also be receipted. Every person who executes any document has to admit such execution at the registering office either personally or through his duly appointed agent and shall endorse such admission of execution. The endorsement shall contain the particulars such as signature and addition of the person admitting the execution, the signature and addition of any agent admitting the execution, the signature and addition of every person examined in reference to such document under any provisions of the Registration Act, payments and delivery of any goods made in the presence of the registering officer connected to the document presented for registration, admission of receipt of consideration in full or in part made in the presence or registering officer.
If any person admits the execution but refuses to endorse, the registering office shall register the document, but shall endorse the fact of refusal. The provisions of admitting the execution and endorsement does not apply to copy of decree or order and documents sent to registering officer under special provisions provided in Sec. 89 of the Act (Sec.58). All such endorsements shall be signed and dated by the registering officer.
After completion of process of registration the registering officer shall endorse a certificate on the document with the word “Registered” together with number and details of storage of the document. The certificate of registration has to be signed, dated and sealed by the registering officer (Sec. 60).
According to section 17 of the Indian Registration Act, 1908 registration of documents is compulsory if they relate to an immovable property. Similarly, Section 54 of Transfer of Property Act 1882, stipulates that sale of immovable property the value of which is one hundred rupees or more should be registered. Since no immovable property is available for rupees one hundred or less than rupees one hundred, implicitly all sale deeds of immovable property need compulsory registration.
Compulsorily registrable Documents:
Section 17(1) of Indian Registration Act 1902, deals with the documents which require registration compulsorily. They include:
1. Instruments of gift of immovable property:
Gift is given by the donor to the donee without any monetary consideration, but only in consideration of love and affection the donor has towards the donee. Therefore, gift deeds transferring immovable property of the value of mRs.100/- and above needs registration.
2. Other non-testamentary documents which purport to create, assign, limit or extinguish the right, title and interest in immovable property the value of which is more than one hundred rupees.
3. All non-testamentary documents which acknowledge the receipt or payment of any consideration on account of the transactions pertaining to the creation of any right, title, interest in the immovable property.
4. All non-testamentary documents transferring or assigning any decree or order, award of a court, which affect the right, title and interest in immovable property the value of which is one hundred rupees and above.
The documents may create, extinguish, assign, declare, limit or restrict the right, title and interest in the immovable property for the present or future, but if the value of such immovable property is one hundred rupees or more, the deed needs to be registered.
Though all types of mortgages need registration, mortgage created by depositing of title deeds, known as equitable mortgage, is not compulsorily registrable. Mostly, banks and financial institutions use this mode of mortgage. However, memorandum of deposit of title deed needs registration.
Section 107 of Transfer of Property Act 1882, prescribes that lease of immovable property from “year to year” or for any term exceeding one year or reserving a yearly rent must be done only by a registered instrument. The phrase from ‘year to year’, refers to a continuous lease from year to year, that is, where the landlord has no option to terminate the lease at the end of the year without notice.
Similarly the phrase, “reserving yearly rents” means that the lease has no definite period, but the annual rent is determined. The word “yearly” means that the lease should run year after year or at least more than a year. In general, any lease in excess of one year and above should be registered.
Documents where registration is optional:
There are certain documents registration of which is optional. Section 18 of the Indian Registration Act, 1908 lays down the instruments of which registration is optional. They include:
a] Instruments relating to transfer of an immovable property, the value of which is less than rupees one hundred;
b] Lease of an immovable property for a term not exceeding one year;
c] Wills
d] Deed of gift of property valued at less than Rs.100/-
Time limit for registration:
Under Section 23 of the Registration Act, subject to certain exceptions, any document other than a will has to be presented for registration within four months from the date of its execution. Execution means signing of the document. If a document is not presented for registration within the prescribed period of four months and the delay in presentation of the document does not exceed a further period of four months, then the parties can apply to the Registrar for registration of the document who may direct, upon payment of a fine not exceeding ten times the actual registration fees, for registration of such a document [Sec.25].
A document relating to an immovable property can be executed out of India and later it can be presented for registration in India. As per section 26 of the Registration Act, 1908, if a document purporting to have been executed by all or any of the parties out of India is presented for registration within the prescribed period of time, the Registering Officer may, on payment of proper registration fee accept such document for registration if he is satisfied that the instrument was executed out of India and the instrument has been presented for registration within four months after its arrival in India.
Enquiry by the Registering authority:
The Registering Officer is empowered under sec. 34 of the Registration Act to enquire whether or not the person is the same by whom it purports to have been executed such a document. He may insist on production of proof for his identity and in case any person is appearing as a representative or agent, the Registrar may ask for relevant documents to show that the agent or representative has the right to appear on behalf of his principal.
Effect of non-registration:
What would be the repercussion if a document which is compulsorily registrable is not registered?
Section 49 of Indian Registration Act deals with this situation. It states clearly that such un-registered documents do not convey to the transferee a legally valid title and such documents are not admitted as evidence for any transaction affecting the property referred to in the document. However, there is an exception provided in the Act. The unregistered documents may be admitted as evidence in a suit for specific performance under Specific Relief Act or as evidence for part performance of the contract as per Section 53A of Transfer of Property Act 1882 or in any other related transaction, not required to be effected under a registered instrument.
Documents are mainly registered for conservation of evidence, assurance of title, and to help an intending purchaser to know if the title deeds of a particular property have been deposited with any financial institution or person for purpose of obtaining loan or advance against security of the property. Registration of documents acts as notice to the public and to protect oneself against the likely fraud. Therefore, it is advisable to register all documents connected with the immovable property irrespective of whether the registration is compulsory or not as it creates a permanent record of event which are reflected in encumbrance certificates.
As registered documents have higher value of evidence than unregistered documents it is always beneficial to you if you get all your property documents registered within the stipulated period irrespective of the fact that such registration is mandatory or not.
REQUIREMENTS FOR REGISTRATION
Most of the instruments viz. creating, declaring, assigning, limiting or extinguishing any right, title or interest in immovable property require compulsory registration, as enumerated under the Indian Registration Act, 1908.
For the documents which require mandatory registration certain procedures are prescribed in the Statute. They are briefly discussed as under:-
Generally, documents will be drafted in the local language or in English. If the document is in a language which the Registering authority has no knowledge or does not understand, then the document has to be translated into the language known to the Registering Authority.
After the translation, if any inter lineations, blanks, erasures and alterations are found in the document, the authority may ask for attestation of the same.
Further, it is also necessary that description of the property has to be clearly mentioned for identification of the property and to ascertain the actual location where the property is situated. If necessary, it may require production of map or plan.
Time limit
In certain deeds, date of execution and date of registration may vary. This is because the Act stipulates time limit for registration of the documents. For the non-testamentary documents such as Sale Deed, Gift Deed, Mortgage Deed, etc, the time limit within which the document has to be registered is four months from the date of execution. Orders passed by the Court do not require registration. Decrees drawn in terms of Compromise Petition wherein shares of the parties are allotted by metes and bounds require registration. Even for registration of the court decree, four months time limit is stipulated under the Act. If the document is executed by all or any of the parties residing abroad, the same can be accepted for registration within four months from the date of receipt of the document in India.
However, in case of doubt as to the validity of registration, the document may be re-registered within four months from the date when it is noticed that the registration is invalid or of doubtful validity.
In case of Testamentary instrument, that is, Will, registration is optional and time limit is not prescribed. It can be registered any time before the death of the Testator. However, it is advisable to register the same as soon as possible in order to avoid disputes about the genuineness of its execution.
Where a document is executed by several persons at different times, it should be presented within four months from the date of the latest execution for registration.
If for unavoidable reasons, the document could not be presented for registration within four months from the date of execution, registration can be done on payment of fine prescribed under the Act, which will be up to ten times the amount to be paid as registration fee.
Jurisdictional Sub-Registrar Offices:
Generally documents have to be presented for registration only at the Sub-Registrar’s office within whose jurisdiction the immovable property is situated. However, in certain exceptional cases, documents may be presented for registration with the Registrar who has been conferred with the power to register the documents. In fact, Sub-Registrars have been vested with the special power to register the document at the residence or office of the Executant or to accept deposit of Will.
Presentation of the document :
Documents which require mandatory registration has to be presented in the concerned Sub-Registrar Office for registration by the Executant or person claiming under the Decree. However, in certain cases, the representatives of the Executant, duly authorized under Power of Attorney, can also execute the same on behalf of the Executant. A power of Attorney holder can execute the document, representing the Principal only if an authority has been vested in the Agent under Power of Attorney, which is authenticated by the Registering authority within whose jurisdiction the Principal resides.
If the Principal does not reside in India, then the Power of Attorney should be executed before and authenticated by a Notary Public or any Court, Judge, Magistrate, Indian Consul or Vice-Consul or the Representative of Central Government. However, such an execution of Power of Attorney can be proved by producing the same at the concerned Sub-Registrar’s Office.
When a document has been executed by more than one executant and after execution of the same, one of the executants refrain from attending the concerned Sub-Registrar’s Office for registration, then the remaining executants can compel attendance of the executant reluctant to be present before the registering authority through the process of law.
However, in case of registration of Will, the same may be presented by the Testator and after his death, by the Executor, for registration.
A Will may be deposited with the Sub-Registrar in a sealed cover and such deposit may be done through an agent. After the death of the Testator, the sealed envelope will be opened and the contents recorded in the relevant register maintained in the Sub-Registrar’s Office. The Original copy of the 'Will' will be in the custody of the Sub-Registrar.
Effect of Registration
Any instrument of transfer registered in the concerned Sub-Registrar’s office will be considered as a valid transfer under the Act. The document shall operate from the time stipulated in the instrument and not from the date of registration.
Generally, a written document will prevail over the oral agreement, unless the physical or constructive possession of the property is handed over to the Agreement-Holder. In such a case, subsequent written agreement will not override the oral agreement.
Documents which are not registered, apart from illegality as to the transfer, cannot be produced as evidence in any transaction affecting such property.
An exception to this is the Agreement of Sale which does not require registration but can be produced in a suit for specific performance seeking execution of sale deed.
Endorsement :
After accepting the document for registration, the Registering authority shall endorse the document regarding affixation of the signature of the Executant, payment of consideration, date and other relevant particulars. If registration is declined by either of the party, the same shall be endorsed on the document itself.
Apart from this, the Registering authority shall also endorse on the Document the registration number, Book number, pages, volume or CD number and affix the seal of the office of the Sub-Registrar. Such a Certificate shall be copied in the Register meant for the purpose and copy of the map or plan, if any, shall be filed in Book No.1.
Thereafter, the registered document will be returned to the person who has presented the same for registration or to his representatives.
Fees of Registration:
Fees charged for the registration or searching the register are prescribed by State Governments through Notifications.
For executing an instrument, the first and the foremost aspect to be considered is the nature of the right intended to be transferred.
If the document falls within the category of the documents which warrants compulsory registration, any avoidance of registration of such document would invalidate the document itself.
POWER OF ATTORNEY
Power of Attorney means the power or authority given to a person (agent) by an individual (principal) to act on his behalf or on behalf of a group of individuals in business matters or any other matter.
It plays a vital role in transferring the lawful ownership of immovable property like land, building and water source, from one person to another. The person who holds the power is called the Power of Attorney Holder. He is employed by the principal to take care of his dealings with third persons.
A person competent to contract can execute a Power of Attorney. He can appoint one person or several persons to act on his behalf. Where several persons are appointed as attorneys, it is advisable to mention as to how they will act jointly or independently. If this is not mentioned, then they are at liberty to act jointly.
Power of Attorney, generally speaking, is of two types. Power of Attorney for a single specific purpose is known as “Special Power of Attorney” and the one involving more than one work or transaction is called “General Power of Attorney”.
The duration of special power of attorney may be for a particular period or for an indefinite period until the task is completed.
A General Power of Attorney may continue to be in force until it is revoked or by death of either party. A registered Power of Attorney can be revoked by a Cancellation Deed.
Though, in general, a Power of Attorney is revocable, it cannot be done so in matters pertaining to debt security till the debt is cleared even though the debtor is not alive. It can be revoked if the principal becomes of unsound mind or he is declared insolvent. It cannot be revoked if it is made irrevocable. However it should be registered by paying applicable stamp duty. Power of Attorney attracts various provisions of The India Stamp Act, Powers of Attorney Act, Registration Act, The Indian Contract Act, Indian partnership Act, and the Indian Evidence Act.
A Power of Attorney is divided into ten categories according to the stamp duty payable. A Special Power of Attorney is given for a court case, for appointing one attorney in place of another, for collection of debts and for admitting execution and a General Power of Attorney is given for selling shares, to execute a Sale Deed, to prepare a layout and sell plots, to raise money through mortgage of property, to recover rents and many other acts.
A Power of Attorney need not be registered except in the case where immovable property is involved. According to the Registration Act, if a Power of Attorney gives power to present documents for registration, then it must be executed before and authenticated by the Registrar or the Sub-Registrar.
If the Registration Act is not in force at a place where the Executant lives, then a Magistrate’s authentication is necessary.
If the Power of Attorney is registered outside India a Notary Public and Court Judge, Magistrate of that country, or Indian Consul or Vice-Consul or a representative of Central Government must authenticate it.
A Power of Attorney is executed in the form of a legal document generally in first person and begins either as “Know all men by these presents that I …….” or “By the power of attorney I ……….. or “This Power of Attorney made and executed on this……………….”
After a brief introduction, the operative part is brought in. Thereafter, the specific powers given to the person are mentioned in separate paragraphs. After these a general clause is added empowering the attorney to do such lawful acts and deeds, as he deems fit and proper in the performance of his duties.
It is the duty of the agent, the Power of Attorney holder, to act honestly and faithfully on behalf of his principal, the giver. He is legally bound to perform the tasks according to the wishes of the principal. If the agent acts otherwise and the principal suffers any loss, he must compensate the principal. He is bound to keep all accounts in a proper manner and produce it to the principal on demand. An agent possessing authority to carry on business has authority to do every lawful thing necessary for the purpose. Being a legal document, a Power of Attorney must be strictly interpreted and understood. Therefore, special care must be taken while drafting General Power of Attorney.
TERMINATION OF GENERAL POWER OF ATTORNEY
A person may not be able to be personally present to execute any document, due to various reasons such as living in a foreign country, old age, sickness, weak or otherwise busy. In such circumstances, the owner of the property may entrust the job of maintaining and managing the property in his absence, to any third person through a G.P.A. He may also authorize the GPA Holder to negotiate for sale of the property on his behalf. Such an instrument empowering a third person to perform certain general or specific acts in his absence is termed as General Power of Attorney.
Types of Power of Attorney:
There are two types of Power of Attorney. They are: General Power of Attorney & Special Power of Attorney.
General Power of Attorney is given in the circumstances where the Principal, that is, the person who executes the General Power of Attorney authorizes his Agent, the GPA Holder, to undertake all the acts which are necessary in order to accomplish the object for which power of attorney is executed.
Special Power of Attorney is executed in those cases wherein the agent is empowered by his principal to do such acts specified in such Power of Attorney. In this type of power of attorney, the authority to do specified acts will be revoked soon after that particular act is accomplished.
Revocation of Power of Attorney:
The Principal has got every right to revoke, terminate or cancel the Power of Attorney. The following are few of the circumstance wherein the power of attorney can be revoked:
1. If one of the parties to the Power of Attorney viz., the Principal or his G.P.A. holder dies, then the Power of Attorney will be revoked. Thus, if Power of Attorney is executed for presentation of a document in the Sub-Registrar office by the G.P.A. holder and the Principal dies prior to the presentation of the document, then the of Power of Attorney automatically gets revoked. But, if the Agent transacts the business on behalf of the Principal and the Principal dies after the execution of the same, the legality of document executed on behalf of the Principal is not affected. However, all further transactions by the Agent representing the Principal would be null and void;
2. If the Power of Attorney is given for a particular period, on the expiry of the period stipulated in the instrument;
3. Where the Principal is adjudicated as an Insolvent by the Court of Law;
4. If the business of agency is complete for which the Power of Attorney is executed;
5. The Power of Attorney holder renounces his powers;
6. The Principal revokes the authority of the Power of Attorney Holder;
7. When either of the parties to the instrument would become persons of unsound mind.
8. Implied revocation.
Procedure for termination of Power of Attorney:
Power of Attorney can be revocable or irrevocable. However, in either case, there is a specific procedure to be followed in order to terminate the Power of Attorney.
Registered Power of Attorney:
In case the Power of Attorney is registered, the revocation can be brought about only by a registered deed of revocation, the reason being that any registered document can be cancelled or revoked only by executing a registered instrument.
Unregistered Power of Attorney:
Power of Attorney need not compulsorily be registered. In case the Power of Attorney is unregistered, revocation of the same can be done only by an unregistered instrument of revocation, in which case the Principal can take back the Power of Attorney from the agent through an unregistered instrument of revocation. Apart from an unregistered instrument of revocation, it is also necessary that the fact of revocation has to be published in the local newspapers clearly mentioning the fact of revocation of the said Power of Attorney which operates as the notice to the public. This is necessary because registered instrument operates as notice while unregistered document does not.
Power of Attorney executed jointly:
Where several persons execute Power of Attorney jointly appointing a person as their Power of Attorney Holder/Agent, the act of revocation of Power of Attorney by one of the Principals is void in the absence of the consent of others joint principals. However, if the Power of Attorney is executed jointly and severally, revocation by one Principal is sufficient for termination of the same. On the other hand, if Power of Attorney is executed in favor of two persons jointly and if one of them dies, the survivor alone cannot exercise the authority under the Power of Attorney.
Notice:
A reasonable notice must be given before revocation of Power of Attorney for the reason that both the parties must be aware about the subsistence or otherwise of the Power of Attorney. If the party who revokes the Power of Attorney fails to issue notice to the other party then any damage that may subsequently be caused on account of this will have to be made good by the person who failed to give notice.
However, reasonable notice may differ from one instrument to the other which can be ascertained from the recitals in the instrument.
Revocation of Power of Attorney may be implied or express. If it is expressed, necessary notice has to be given conveying the intention of revocation of the Power of Attorney to the other which may not be necessary if it is implied.
Exceptions for revocation of Power of Attorney:
Though Principal has got discretionary powers to revoke the Power of Attorney, there are certain exceptions which restrain the Principal from revocation, which are explained below:
1. When the Power of Attorney Holder himself has an interest in the property, which forms the subject matter of the power of attorney. In such cases, the same cannot be revoked by the Principal alone without obtaining consent from the Power of Attorney Holder.
2. When the Power of Attorney Holder has partly exercised the act for which the Principal has authorized, authority as regards the acts already exercised cannot be revoked.
3. When the Power of attorney is given for due consideration and forms part of the transaction.
Power of Attorney by Firm:
The execution of Power of Attorney by a Firm for exercising certain acts on behalf of the firm, which includes purchase or sale of the immovable property, would get terminated on the dissolution of partnership firm.
Two persons appointed jointly:
If the authority is given for two or more persons to act jointly or severally, exercise of the act by either of the Power of Attorney Holders is sufficient. However, in cases where authority is given for two or more persons to act jointly and on the death of one of them, the authority cannot be acted upon by the surviving power of authority holders.
Power of Attorney is the most extensively used document being executed by the owner due to his inability to perform many acts. However, the required procedure also has to be followed for termination of the same. Thus, before proceeding to negotiate for sale or purchase of the property and if either of the parties for the negotiations are being represented by their GPA holder it is very important to investigate the subsistence of the GPA which depends upon various factors.
