Acts and Regulations

It will cover all housing and building related laws, regulations and bye-laws in India, from the point of view of a citizen domiciled in the State of Maharashtra.

Acts and Regulations

Maharashtra Regional and Town Planning Act, 1966

(Maharashtra Act No. XXXVII of 19661)

[Received the assent of the President on the 13th day of December, 1966; assent first published in the Maharashtra Government Gazette, Part IV, on the 20th day of December, 1966.]

An Act to make provision for planning the development and use of land in Regions established for that purpose and for the constitution of Regional Planning Boards therefor; to make better provisions for the preparation of Development plans with a view to ensuring that town planning schemes are made in a proper manner and their execution is made effective; to provide for the creation of new towns by means of Development Authorities; to make provisions for the compulsory acquisition of land required for the public purposes in respect of the plans; and for purposes connected with the matters aforesaid.

Whereas, it is expedient to make provision for planning the development and use of land in Regions established for that purpose and for the constitution of Regional Planning Boards therefor; to make better provision for the preparation of Development plans with a view to ensuring that town planning schemes are made in a proper manner and their execution is made effective; to provide for the creation of new towns by means of Development Authorities; to make provision for the compulsory acquisition of land required for public purposes in respect of the plans; and for purposes connected with the matters aforesaid. It is hereby enacted in the Seventeenth Year of the Republic of India as follows:-

 

 

Chapter 1

Preliminary

  1. Short title, extent and commencement,-

(1) This Act may be called the Maharashtra Regional and Town Planning Act, 1966.

(2) It shall extend to the whole of the State of Maharashtra.

(3) It shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint but the State Government may if it thinks fit bring different provisions of this Act into force at different times.

 

  1. Definitions:-

 In this Act, unless the context requires, –

(1) “agriculture” includes horticulture, poultry farming, the raising of crops, fruits, vegetables, flowers, grass or trees of any kind, breeding of livestock including cattle, horses, donkeys, mules, pigs, breeding of fish and keeping of bees, the use of land for grazing cattle and for any purpose which is ancillary to its cultivation or

other agricultural purpose; but does not include the use of land as a garden which is an appendage to a building; and “agriculture” shall be construed accordingly;

(2) “amenity” means roads, streets, open spaces, parks, recreational grounds, play grounds, sports complex, parade grounds, gardens, markets, parking lots, primary and secondary schools and colleges and polytechnics, clinics, dispensaries and hospitals, water supply, electricity supply, street lighting, sewerage, drainage, public works and includes other utilities, services and conveniences;

(3) “Appropriate Authority” means any public authority on whose behalf land is designated for a public purpose in any plan or scheme and which it is authorised to acquire;

(4) ” Arbitrator” means a person appointed as the Arbitrator for the purposes of any scheme or schemes under section 72;

(5) “Building operations” includes erection or re-erection of a building or any part thereof, roofing or re-roofing of any part of a building or of any open space, any material alteration or enlargement of a building, any such alteration of a building as is likely to affect an alteration of its drainage or sanitary arrangement or materially affect its security, or the construction of a door opening on any street or land not belonging to the owner;

(6) “Court’ means in Greater Bombay, the Bombay City Civil Court; and elsewhere, the principal civil court of original jurisdiction; and includes any other civil Court of a Judge of Senior Division or a Judicial Officer empowered by the State Government to perform the functions of the Court under this Act within the pecuniary and local limits of its jurisdiction;

(7) “Development” with its grammatical variations means the carrying out of buildings, engineering, mining or other operations in, or over, or under, land or the making of any material change, in any building or land or in the use of any building or land or any material or structural change in any heritage; building or its precincts and includes demolition of any existing building structure or erection or part of such building, structure or erection; and reclamation, redevelopment and lay-out and sub-division of any land; and “to develop” shall be construed accordingly;

(8) “Development Authority” means a New Town Development Authority constituted or declared under Section 113;

(9) “Development plan” means a plan for the development or re-development of the area within the jurisdiction of a planning Authority and includes revision of a development plan and proposals of a special Planning Authority for development of land within its jurisdiction;

(9A) “development right” means right to carry out development or to develop the land or building or both and shall include the transferable development right in the form of right to utilise the Floor Space Index of land utilisable either on the remainder of the land or partially reserved for a public purpose or elsewhere, as the final Development Control Regulations in this behalf provide;

(10) “Director of Town Planning” means the officer appointed by the State Government as the Director of Town Planning;

(11) “engineering operations” includes the formation or laying out of a street or means of access to a road or laying out of means of water-supply, drainage, electricity, gas or other public utility service;

(12) “existing-land-use map” means a map indicating the use to which lands in any

specified area are put at the time of preparing the map;

(13) “final plot’ means a plot allotted in a final town planning scheme;

(13A) “Floor Space Index” means the quotient or the ratio of the combined gross floor area to the total area of the plot, viz:-

Floor Space Index = Total covered area of all floors

——————————-

Plot area;

(13B) “Heritage building” means a building, possessing architectural, aesthetic, historic or cultural values which is declared as heritage building by the Planning Authority in whose jurisdiction such building is situated;

(13C) “Heritage precinct” means an area comprising heritage building or buildings and precincts thereof or related places;

(14) ” land” includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth;

(15) “local authority” means—

(a) the Bombay Municipal Corporation constituted under the Bombay Municipal Corporation Act (Bom. III of 1888), or the Nagpur Municipal Corporation constituted under the City of Nagpur Corporation Act, 1948 (C.P and Berar II of 1950), or any Municipal corporation constituted under the Bombay Provincial Municipal Corporations Act, 1949 (Bom. LIX of 1949);

(b) a Council and a Nagar Panchayat constituted under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act 1965 (Mah. XL of 1965);

(c)(i) a Zilla Parishad constituted under the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (Mah.V of 1962);

(ii) the Authority constituted under the Maharashtra Housing and Area Development Act, 1976;

(iii) the Nagpur Improvement Trust constituted under the Nagpur Improvement Trust Act, 1936,

which is permitted by the State Government for any area under its jurisdiction to exercise the powers of a Planning Authority under this Act;

(16) “Local newspaper” in relation to any area within the jurisdiction of a Regional Planning Board, Planning Authority or of a Development Authority, means any newspaper published or circulated within that area;

(17) “occupier” includes a tenant, an owner in occupation of, or otherwise using his land, a rent-free tenant in any land, and any person in lawful possession of any land who is liable to pay to the owner compensation for the use and occupation of the land;

(18) “owner” includes any person for the time being receiving or entitled to receive, whether on his own account or as agent, trustee, guardian, manager or receiver for another person or for any religious or charitable purpose, the rents or profits of the property in connection with which it is used;

(19) “Planning Authority” means a local authority; and includes,-

(a) a Special Planning Authority constituted or appointed or deemed to have been appointed under section 40; and

(b) in respect of the slum rehabilitation area declared under section 3C of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (Mah. XXVIII of 1971), the slum Rehabilitation Authority appointed under section 3A of the said Act;

(20) “Prescribed” means prescribed by rules made under this Act;

(21) “Plot” means a portion of land held in one ownership and numbered and shown as one plot in a town planning scheme;

(22) “Re-constituted plot” means a plot which is altered in ownership or in any other way by making of a town planning scheme;

(23) “Region” means an area established to be a Region under section 3;

(24) “Regional Board” or “Board” means a Regional Planning Board constituted under section 4;

(25) “Regional plan” means a Plan for the development or re-development of a region which is approved by the State Government and has come into operation under this Act;

(26) “Regional Planning Committee” means a committee appointed under section 10;

(27) “Regulation” means a regulation made under section 159 of this Act and includes zoning, special development control regulations and other regulations made as a part of a Regional Plan, Development plan, or town planning scheme;

(28) ” Residence” includes the use of human habitation of any land or building or part thereof including gardens, grounds, garages, stables and outhouses, if any, appertaining to such land or building;

(29) “Rule” means a rule made under this Act;

(30) “Scheme” includes a plan relating to a town planning scheme;

(30A) “Special Township Project” means a Special Township Project declared under section 18 or 44, as the case may be;

(31) “Town Planning Officer” means the officer appointed for the time being to be the Town Planning Officer for all or any of the provisions of this Act;

(31A) “Undeveloped area” means an area within the jurisdiction of one or more local authorities [not being an area within the jurisdiction of a cantonment board constituted under the Cantonment Act, 1924 (2 of 1924)] which is in the opinion of the State Government in a neglected condition, or which is being developed or is in imminent likelihood of being developed in an uncontrolled or haphazard manner, and requires, in the public interest to be developed in a proper and orderly manner;

(32) “Zilla Parishad means a Zilla Parishad constituted under the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (Mah. V of 1962).

Chapter II

Provisions Relating To Regional Plans

(A) Regions

 

  1. Establishment of Region and alteration of its limits,-

(1) Subject to the provisions of this section, the State Government may, by notification in the Official Gazette, establish any area in the State, by defining its limits, to be a region for the purposes of this Act, and may name and alter the name of any such Region. In any case, where any Region is renamed, then all references in any law or instrument or other document to the Region shall be deemed to be a reference to the Region as renamed, unless expressly otherwise provided or the context so requires.

(2) The State Government may, by notification in the Official Gazette,-

(a) alter the limits of a Region, so as to include therein or to exclude therefrom, such area as may be specified in the notification; or

(b) amalgamate two or more Regions so as to form one Region; or

(c) split up any Region into two or more Regions or

(d) declare that the whole or part of the area comprising a Region shall cease to be a Region or part thereof.

(3) A plan showing the boundaries of the Region as established under this section shall be available for inspection at the office of the Collector and the Mamlatdar or Tahsildar concerned, and on the constitution of the Regional Board therefor, also at the office of the Board.

 

(B) Constitution of Regional Planning Boards

 

  1. Constitution of Regional Planning Boards,-

(1) For the purpose of planning the development and use of land in the Region, the State Government shall, by notification in the Official Gazette, constitute a Regional Planning Board for the Region consisting of a Chairman appointed by the State Government; the Director of Town Planning (or a person nominated by him); such number of persons not exceeding four appointed by the State Government as are members of local authorities functioning in the whole or part of the Region; such number of persons not exceeding ten appointed by the State Government who in the opinion of that Government have special knowledge or practical experience of matters relating to town and country planning, engineering, transport, industry, commerce, or agriculture a Town Planning Officer appointed by the State Government and such number of persons not exceeding four appointed by the State Government from the two Houses of the State Legislature, representing the whole or part of the Region, so that not more than two members are appointed from each of the said Houses.

If any Region includes any area which in the opinion of the State Government is important from the military or defence point of view, the members appointed for their special knowledge or practical experience shall include a person suggested by the Government of India in that behalf.

The State Government may appoint a Vice-Chairman from amongst the other members.

The Town Planning Officer shall be the Secretary to the Regional Board.

(1A) Notwithstanding anything contained in sub-section (1), the provisions of that sub-section shall not be applicable to the Metropolitan area as defined in clause (c) of section 2 of the Maharashtra Metropolitan Planning Committee (Constitution and Functions) Act, 1999 (Mah. V of 2000).

(2) The Regional Board shall have its office at such place as the State Government may appoint, and shall be known by the name specified in the notification constituting it.

 

  1. Terms of office and conditions of service of members,-

(1) Subject to the provisions of sub-section (3), the term of office and conditions of service of the members of a Regional Board shall be such as may be prescribed; and the members shall be entitled to receive such remuneration or allowances, or both, as the State Government may by order determine.

(2) If the State Government is of opinion that any member is guilty of misconduct in the discharge of his duties, or is incompetent or has become incapable of performing his duties as such member, or should for any other good and sufficient reason be removed, the State Government may, after giving the member an opportunity of showing cause against his removal, remove him from office.

(3) A member of the State Legislature while holding the office of a member of the Board shall not be entitled to receive any remuneration or allowance other than travelling allowance, daily allowance or such other allowance which is paid to the holder of such office for the purpose only of meeting the personal expenditure incurred in attending the meeting of the Board or in performing any other functions as holder of such office.

 

  1. Resignation of member,-

Any member of a Regional Board may at any time resign his office by writing under his hand addressed to the State Government, and upon the acceptance thereof, the office of the member shall become vacant.

 

  1. Vacancies,-

In the event of a vacancy in the office of any member of a Regional Board the vacancy shall be filled by the State Government, and the person so appointed shall hold office so long only as the member in whose place he is appointed would have held office, if the vacancy had not occurred.

  1. Powers and duties of Board,-

Subject to the provisions of this Act and the rules and regulations made thereunder, it shall be the duty of a Regional Board-

(a) to carry out a survey of the Region, and prepare reports on the surveys so carried out;

(b) to prepare an existing-land-use map and such other maps as may be necessary, for the purpose of preparing a Regional Plan;

(c) to prepare a Regional plan;

(d) to perform any other duties or functions as are supplemental, incidental or consequential to any of the foregoing duties, or as may be prescribed by regulations.

 

  1. Meetings of Regional Boards, etc,-

(1) The Regional Board shall meet at such times and places as the Chairman may determine and may, subject to the provisions of sub-sections (2) and (3), make regulations for regulating its procedure and the conduct of its business:

Provided that, after the submissions of draft Regional plan to the State Government the Board shall meet only if so directed by the State Government.

(2) The Chairman and in his absence, the Vice-Chairman (if any) and in the absence of the Chairman and the Vice-Chairman, any other member chosen by the members present from amongst themselves, shall preside at a meeting of the Board.

(3) All questions at a meeting of the board shall be decided by a majority of votes of the members present and voting; and in the case of an equality of votes of the person presiding shall have a second or casting vote.

(4) Minutes shall be kept of the names of the members present, and others who attend the meetings of the Board under the provisions of this Act, and of the proceedings at each meeting, in a minute book to be kept for that purpose. The minutes shall be signed at the next ensuing meeting by the person presiding at such meeting, and shall be open to inspection by any member during the office hours.

  1. Consultation or association with experts; Regional Planning Committee,- (1) A Regional Board may, with the previous sanction of the State Government, associate with itself or consult such persons whose assistance or advise it may desire for the purpose of performing any of its functions under this Act. Such persons may be paid by the Regional Board such remuneration or fees as may be sanctioned by the State Government.

(2) The person so assisting or advising the Regional Board may take part in the discussion of the Regional Board relevant to the purpose for which he is associated or consulted, but shall not have the right to vote at a meeting, or take part in the discussions of the Regional Board relating to matters connected with any other purpose.

(3) For the purpose of hearing any suggestions and objections received after the publication of a draft Regional Plan under section 16, a Regional Board shall appoint a Regional Planning Committee consisting of the Town Planning Officer and two other members of the Regional Board.

(4) The members of a Regional Planning Committee shall be entitled to such allowances for performing its functions under this Act as may be prescribed.

 

  1. Power of Regional Board to appoint staff,-

(1) For the efficient performance of its functions under this Act, a Regional Board, or an officer authorised by it, may appoint such officers and other staff as may be necessary. The officers and staff so appointed shall be entitled to receive such salaries or allowances, and shall be governed by such terms and conditions of service, as may be determined by the State Government.

(2) The officers and staff appointed by the Regional Board shall work under the superintendence and control of the Chairman.

 

  1. Expenses of Regional Board,-

All the expenses incurred by a Regional Board, including expenses incurred on account of salaries, allowances, fees and other remuneration payable to its members and to its officers and other staff (not being salaried Government officers or staff) shall be met from such funds as may be placed at the disposal of the Board by the State Government.

 

(C) Regional Plans

 

  1. Survey of Region and preparation of Regional Plan,-

Subject to the provisions of this Act and the rules and regulations made thereunder, a Regional Board shall, with a view to securing planned development and use of land in a Region, carry out a survey thereof, prepare an existing land-

use map thereof and other maps as are necessary for the purpose of preparing the Regional plan, and shall within such period or periods as the State Government, may from time to time, determine in this behalf, prepare a report of the surveys, prepare the Regional plan and such other documents, maps and information as the Regional Board may deem fit for illustrating or explaining the provisions of the Regional plan.

 

  1. Contents of Regional Plan,-

Subject to the provisions of this Act and any rules made thereunder for regulating the form of a Regional plan and the manner in which it may be published, any such Regional plan shall indicate the manner in which the Regional Board proposes that land in the Region should be used, whether by carrying out there on development or otherwise, the stages by which any such development is to be carried out, the network of communications and transport, the proposals for conversion and development of natural resources, and such other matters as are likely to have an important influence on the development of the Region; and any such plan in particular, may provide for all or any of the following matters, or for such matters thereof as the State Government may direct, that is to say: –

(a) allocation of land for different uses, general distribution and general locations of land, and the extent to which the land may be used as residential, industrial, agricultural, or as forest, or for mineral exploitation;

(b) reservation of areas for open spaces, gardens, recreation, zoological gardens, natural reserves, animal sanctuaries, dairies and health resorts;

(c) transport and communications, such as roads, highways, railways, waterways, canals and airports, including their development;

(d) water supply, drainage, sewerage, sewage disposal and other public utilities, amenities and services including electricity and gas;

(e) reservation of sites for new towns, industrial estates and any other large scale development or project which is required to be undertaken for proper development of the Region or new town;

(f) preservation, conservation and development of areas of natural scenery, forests, wild life, natural resources, and landscaping;

(g) preservation of objects, features, structures or places of historical natural, architectural or scientific interest and educational value;

(h) areas required for military and defence purposes;

(i) prevention of erosion, provision for afforestation or, reforestation, improvement and redevelopment of water front areas, rivers and lakes;

(j) proposals for irrigation, water supply and hydro-electric works, flood control and prevention of river pollution;

(k) providing for the relocation of population or industry from over populated and industrially congested areas, and indicating the density or population or the concentration of industry to be allowed in any area.

 

  1. Submission of Regional Plan to State Government for approval,-

(1) Every Regional plan shall be submitted to the State Government, together with all connected documents, maps and plans for approval. The State Government may, within the prescribed period, by notification in the Official Gazette, either approve the Regional plan without modification for the whole Region, or any part thereof; or with such modifications as it may consider necessary, or reject the plan with a direction to the Regional Board to prepare a fresh plan according to such direction.

(2) The State Government may, pending approval of the entire Regional plan, by a like notification approve separately any proposal or part of the Regional plan, and any proposal or part so approved shall, on approval of the entire Regional plan, form part of the entire plan so approved.

 

  1. Procedure to be followed in preparing and approving Regional Plans,-

(1) Before preparing any Regional plan and submitting it to the State Government for approval, every Regional Board shall, after carrying out the necessary surveys and preparing an existing-land-use map of the Region, or such other maps as are considered necessary, prepare a draft Regional plan and publish a notice in the Official Gazette and in such other manner as may be prescribed, stating that the draft Regional plan has been prepared. The notice shall state the name of the place where a copy of such plan shall be available for inspection by the public at all reasonable hours mentioned therein and that copies thereof or any extract therefrom certified to be correct shall be available for sale to the public at a reasonable price and invite objections and suggestions from any person with respect to the draft plan before such date as may be specified in the notice, such

date not being earlier than four months from the publication of the notice. The notice shall also state that copies of the following particulars in relation to the draft Regional plan are also available for inspection by the public and copies thereof or extracts therefrom certified to be correct are also available for sale to the public at a reasonable price at the place so named, namely: –

(a) a report on the existing-land-use map and the regional survey carried out as aforesaid;

(b) maps, charts and a report illustrating and explaining the provisions of the draft Regional plan and indicating the priorities of works to be executed thereunder;

(c) a report of the stages of the development programme by which it is proposed to execute the Regional plan; and

(d) recommendations to the State Government regarding the directions to be issued to the local authorities in the Region and the different departments of the State Government, if any, in respect of enforcement and implementation of the proposals contained in the draft Regional plan.

(2) The Regional Board shall refer the objections, suggestions and representations received by it to the Regional Planning Committee appointed under section 10 for consideration and report.

(3) The Regional Planning Committee shall, after giving a reasonable opportunity to all persons affected by the Regional plan of being heard, submit its report to the Regional Board together with all connected documents, maps, charts and plans within such time as may from time to time be fixed in that behalf by the Regional Board.

(4) After considering the report of the Regional Planning Committee, and the suggestions, objections and representations, the Regional Board shall prepare the Regional plan containing such modifications, if any, as it considers necessary, and submit it to the State Government for approval, together with the report of the Regional Planning Committee and all connected documents, plans, maps and charts.

 

  1. Publication of Regional Plan and date of its operation,-

Immediately after a Regional plan is approved by the State Government, the State Government shall publish, in such manner as may be prescribed by rules as calculated to bring to the notice of all persons concerned; and in particular, to all persons affected by the Regional plan, a notice stating that the Regional plan has

been approved, and naming a place where a copy of the Regional plan may be inspected at all reasonable hours and stating also that copies thereof or any extract therefrom certified to be correct shall be available for sale to the public at a reasonable price, and shall specify therein a date (not being earlier than sixty days from the date of publication of the said notice) on which the Regional plan shall come into operation and the plan which has come into operation shall be called the “final Regional plan”.

 

  1. Restriction on change of users of land or development thereof,-

(1) No person shall on or after the publication of the notice that the draft Regional plan has been prepared or the draft Regional plan has been approved, institute or change the use of any land for any purpose other than agriculture, or carry out any development in respect of any land without the previous permission of the Municipal Corporation or Municipal Council, within whose area the land is situate,

and elsewhere, of the Collector.

(2) Notwithstanding anything contained in any law for the time being in force, the permission referred, to in sub-section (1) shall not be granted otherwise than in conformity with the provisions of the draft or final Regional plan.

(3) Without prejudice to the provisions of sub-sections (1) and (2) or any other provisions of this Act, any person intending to execute a Special Township Project on any land, may make an application to the State Government, and on receipt of such application the State Government may, after making such inquiry as it may deem fit in that behalf, grant such permission and declare such project to be a Special Township Project by notification in the Official Gazette or, reject the application.

 

  1. Exclusion of claims of compensation for injurious affection,-

No compensation shall be awarded-

(a) if and in so far as any property or any right or interest therein alleged to be injuriously affected by reason of the provisions contained in any plan or scheme, is subject to substantially similar restrictions in force, under some other law which was in force on the date on which, such injurious affection took place or the restrictions were imposed by this Act;

(b) if compensation in respect of such injurious affection or restriction imposed under this Act or substantially similar injurious affection or restriction in force under any other law has already been paid in respect of the property or any right or interest therein to the claimant or to any predecessor in interest of the claimant.

 

  1. Revision or modification of Regional Plan,-

(1) If the State Government at any time after a Regional plan has come into operation, but not earlier than ten years therefrom is of the opinion that revision of such Regional plan is necessary and there is no Regional Board for the Region to which plan relates, to undertake such revision, the State Government may constitute a Regional Planning Board under section 4, or Regional Board may, with the previous approval of the State Government, also revise the Regional plan; and thereupon, the foregoing provisions of this Chapter shall, so far as they can be made applicable, apply to the revision of the Regional plan as those provisions apply in relation to the preparation, publication of notice and approval of a Regional plan.

(2) Notwithstanding anything contained in sub-section (1), the State Government may, at any time after a Regional Plan has come into operation, make any modification in such plan in the manner hereinafter provided if in its opinion such modification is necessary for the balanced development of the Region for which such plan has been prepared and approved.

(3) For the purpose of modifying a Regional Plan under sub-section (2) the State Government shall publish a notice in the Official Gazette announcing its intention to make the modification specified in the notice and invite objections or suggestions from any person with respect to such modification in writing with reasons therefore within such period as may be specified in the notice. The notice shall also be published in at least one newspaper having wide circulation in the Region and in such other manner as the State Government may think fit in the circumstances of each case.

(4) After considering the objections and suggestions in respect of the draft modification under sub-section (2), the State Government may approve the modification of the Regional plan with such amendments, if any, as it may think fit, and shall publish a notification in the Official Gazette, stating that the modification of the Regional plan specified therein has been approved.  The notice shall also state the place where a copy of modifications to the Regional plan may be inspected at all reasonable hours, and shall specify therein a date on which the modification of the plan shall come into operation.

 

 

 

Chapter III

Development Plan

(A) Preparation, Submission and Sanction to Development Plan

 

  1. Development Plan,-

(1) As soon as may be after the commencement of this Act, but not later than three years after such commencement, and subject however to the provisions of this Act, every Planning Authority shall carry out a survey, prepare an existing land-use map and prepare a draft development plan for the area within its jurisdiction, in accordance with the provisions of a Regional plan, where there is such a plan publish a notice in the Official Gazette and in such other manner as may be prescribed stating that the draft development plan has been prepared and submit the plan to the State Government for sanction. The Planning Authority shall also submit a quarterly Report to the State Government about the progress made in carrying out the survey and prepare the plan.

(2) Subject to the provisions of this Act, every Planning Authority constituted after the commencement of this Act shall, not later than three years from the date of its constitution, prepare, a draft Development plan and publish a notice, of such preparation in the Official Gazette and in such other manner as may be prescribed and submit the draft development plan to the State Government for sanction.

(3) On application made by any Planning Authority, the State Government may, having regard to the permissible period specified in the preceding sections, from time to time, by order in writing and for adequate reasons to be specified in such order, extend such period.

(4) If the draft development plan is not submitted to the State Government as aforesaid for sanction by any Planning Authority within the period specified or within the extended period, the concerned Divisional Deputy Director of Town Planning or an officer nominate by him who is not below the rank of Assistant Director of Town Planning may, after carrying out the necessary survey of the area and preparing an existing land-use map in consultation with the Director of Town Planning prepare such Development plan and publish a notice in the Official Gazette and in such other manner as may be prescribed stating that such plan has been prepared and submit it to the State Government for sanction, and may recover the cost thereof from the funds of the Planning Authority, notwithstanding anything contained in any law relating to the said fund. Such officer shall exercise all the powers and perform all the functions of a Planning Authority which may be necessary for the purpose of preparing a Development plan and publishing a notice as aforesaid and submitting it to the State Government for sanction.

(5) If any local authority which is a Planning Authority is converted into, or amalgamated with, any other local authority or is sub-divided into two or more local authorities, the Development plan prepared for the area by that Planning Authority so converted, amalgamated or sub-divided shall with such alterations and modifications as the State Government may approve be the Development plan for the areas of the new Planning Authority or Authorities into or with which the former Planning Authority is converted, amalgamated or sub-divided.

 

  1. Contents of Development Plan,-

A Development plan shall generally indicate the manner in which the use of land in the area of the Planning Authority shall be regulated, and also indicate the manner in which the development of land therein shall be carried out. In particular, it shall provide so far as may be necessary for all or any of the following matters, that is to say,-

(a) proposals for allocating the use of land for purposes, such as residential, industrial, commercial, agricultural, recreational;

(b) proposals for designation of land for public purpose, such as schools, colleges and other educational institutions, medical and public health institutions, markets, social welfare and cultural institutions, theatres and places for public entertainment, or public assembly, museums, art galleries, religious buildings and government and other public buildings as may from time to time be approved by the State Government;

(c) proposals for designation of areas for open spaces, playgrounds, stadia, zoological gardens, green belts, nature reserves, sanctuaries and dairies;

(d) transports and communications, such as roads, high-ways, park ways, railways, water-ways, canals and airports, including their extension and development;

(e) water supply, drainage, sewerage, sewage disposal, other public utilities, amenities and services including electricity and gas;

(f) reservation of land for community facilities and services;

(g) proposals for designation of sites for service industries, industrial estates and any other development on an extensive scale;

(h) preservation, conservation and development of areas of natural scenery and landscape;

(i) preservation of features, structures or places of historical, natural, architectural and scientific interest and educational value and of heritage buildings and heritage precincts;

(j) proposals for flood control and prevention of river pollution;

(k) proposals of the Central Government, a State Government, Planning Authority or public utility undertaking or any other authority established by law for designation of land as subject to acquisition for public purpose or as specified in a Development plan, having regard to the provisions of section 14 or for development or for securing use of the land in the manner provided by or under this Act;

(l) the filling up or reclamation of low lying, swampy or unhealthy areas, or levelling up of land;

(m) provisions for permission to be granted for controlling and regulating the use and development of land within the jurisdiction of a local authority including imposition of fees, charges and premium, at such rate may be fixed by the State Government or the Planning Authority, from time to time, for grant of an additional Floor Space Index or for the special permissions or for the use of discretionary powers under the relevant Development Control Regulations, and also for imposition of conditions and restrictions in regard to the open space to be maintained about buildings, the percentage of building area for a plot, the location, number, size, height, number of storeys and character of buildings and density of population allowed in a specified area, the use and purposes to which buildings or specified areas of land may or may not be appropriated, the sub-division of plots the discontinuance of objectionable users of land in any area in reasonable periods, parking space and loading and unloading space for any building and the sizes of projections and advertisement signs and hoardings and other matters as may be considered necessary for carrying out the objects of this Act.

 

22A. Modifications of a substantial nature,-

In section 31, the expression “of a substantial nature” used in relation to the modifications made by the State Government in the draft Development Plan means,-

(a) any modification to a reserved site resulting in reduction of its area by more than fifty percent or reduction of such amenity in that sector by an area of more than ten per cent in the aggregate;

(b) insertion of a new road or a new reservation or modification of a reserved site or a proposed road or a proposed road widening resulting in inclusion of any additional land not so affected previously;

(c) change in the proposal of allocating the use of certain lands from one zone to any other zone provided by clause (a) of section 22, which results in increasing the area in that other zone by more than ten per cent in the same planning unit or sector in a draft Development plan;

(d) alteration in the Floor Space Index beyond ten per cent of the Floor Space Index prescribed in the Development Control Regulation.

(B) Procedure to Be Followed In Preparing and Sanctioning

Development Plans

  1. Declaration of intention to prepare Development plan,-

(1) A Planning Authority shall, before carrying out a survey and preparing an existing land-use map of the area as provided in section 21, by a resolution make a declaration of its intention to prepare a Development plan; and shall despatch a copy of such resolution with a copy of a plan showing only the boundary of the entire area proposed to be included in the Development plan to the State Government. The said Officer shall also make a similar declaration and submit a copy thereof to the State Government. The Planning Authority or the said Officer, as the case may be, shall also publish a notice of such declaration in the Official Gazette, and also in one or more local newspapers in the prescribed manner, inviting suggestions or objections from the public within a period of not less than sixty days from the publication of the notice in the Official Gazette.

(2) A copy of the aforesaid plan shall be open to the inspection of the public at all reasonable hours at the head office of the Planning Authority and Local Authority.

 

  1. Town Planning Officer,-

Every Planning Authority shall, at the time of declaration of intention to prepare Development plan, resolve to appoint a person possessing such qualification as may be prescribed, to be the Town Planning Officer for carrying out survey of the area of a Planning Authority, preparing an existing –land-use map thereof and formulating proposals of a Development plan of that area for submission to the Planning Authority.  Thereafter, the planning Authority shall, with the previous sanction of the State Government, appoint such person as a Town Planning Officer.

 

  1. Provision for survey and preparation of existing-land-use map,-

After the declaration of intention of a Planning Authority or the said Officer to prepare a Development plan but not later than six months from the date of such declaration or not later than such further time as the State Government may from time to time extend, a Planning Authority or the said Officer shall carry out a survey of the lands within the jurisdiction of the Planning Authority and prepare an existing land use map indicating the existing use of land therein.

 

  1. Preparation and publication of notice of draft Development plan,-

(1) Subject to the provisions of section 21, a Planning Authority or the said officer shall, not later than two years from the date of notice published under section 23, prepare a draft development plan and publish a notice in the Official Gazette and in such other manner as may be determined by it stating that the Development plan has been prepared. The notice shall state the name of the place where a copy thereof shall be available for inspection by the public and that copies thereof or extracts therefrom certified to be correct shall be available for sale to the public at a reasonable price, and inviting objections and suggestions within a period of thirty days from the date of notice in the Official Gazette:

Provided that, the State Government may, on an application of the Planning Authority, by an order in writing, and for reasons to be recorded from time to time, extend the period for preparation and publication of notice of the draft Development Plan.

Provided further that, the period so extended shall not in any case exceed six months in the aggregate.

(2) The notice shall also state that copies of the following particulars in relation to the Draft Development plan are also available for inspection by the public and copies thereof, or extracts therefrom certified to be correct, are also available for sale to the public at a reasonable price at the place so named, namely:-

(i) a report on the existing-land-use map and the surveys carried out for the purpose of preparation of the draft plan;

(ii) maps, charts and a report explaining the provisions of the draft Development plan;

(ii-a) map showing the planning units or sectors unalterable till the Development Plan is revised;

(iii) regulations for enforcing the provisions of the draft Development plan and explaining the manner in which the permission for developing any land may be obtained from the Planning Authority or the said officer, as the case may be;

(iv) a report of the stages of development by which it is proposed to meet any obligations imposed on the Planning Authority by the draft Development plan;

(v) an approximate estimate of the cost involved in acquisition of lands required by the Planning Authority for the public purposes, and also cost of works, as may be necessary.

 

  1. Provision of Regional plan to be considered,-

Where any area within the jurisdiction of a Planning Authority is included in a Region, the Planning Authority or as the case may be, the said officer shall have regard to, and be guided by, the proposals made in any draft Regional plan or any final Regional plan, as the case may be, while preparing the draft Development plan:

Provided that, where the Planning Authority or the said Officer is of the opinion that any provision of a draft Regional plan or the final Regional plan, as the case may be, needs any modification, the Planning Authority or as the case may be, the said Officer may carry out such modification-

(a) in the case of a draft Regional plan, with the concurrence of the Regional Board; and

(b) in the case of a final Regional Plan, with the approval of the State Government.

 

  1. Objections to draft Development plan,-

(1) Subject to the provisions of this Act, if within the time allowed under sub-section (1) of section 26 any person communicates in writing to the Planning Authority or the said officer any suggestions or objection relating to the draft Development plan, the Planning Authority or the said officer may, after considering the report of the Planning Committee under sub-section (2) and the suggestions or objections received by it or him, modify or change the plan in such manner as it or he thinks fit.

(2) The Planning Authority or the said Officer shall forward all objections and suggestions received by it to a Planning Committee consisting of three members of the Standing Committee of the Planning Authority and such additional number of persons, not exceeding four, appointed by the State Government having special knowledge or practical experience of matters relating to town and country planning or environment or relating to both for consideration and report:

Provided that, where a Planning Authority is not a local authority, the Planning Committee shall consist of such members as the Planning Authority may determine:

Provided further that, where the Divisional Deputy Director of Town Planning or the officer nominated by him under sub-section (4) of section 21 exercises the powers and performs the duties of a Planning Authority, then the Planning Committee may consist of such Divisional Deputy Director of Town Planning or the officer nominated by him.

Provided also that, where the State Government or any person or persons appointed under section 162, exercise the powers and perform the duties of a Planning Authority or Development Authority, then the Planning Committee may consist of the State Government or the person so appointed:

Provided also that, the Planning Committee contemplated in the preceding provisos shall also consist of such additional number of persons, not exceeding four, appointed by the Director of Town Planning having special knowledge or practical experience of matters relating to town and country planning or environment or relating to both.

(3) The Planning Committee shall, on receipt of objections and suggestions, make such inquiry as it may consider necessary, and give a reasonable opportunity of being heard to any person including representatives of Government departments who may have filed any objections or made any suggestions in respect of the draft Development plan, and after considering the same, the Planning Committee shall submit its report to the Planning Authority or as the case may be, the said Officer not later than two months from the date of its appointment.

(4) Not later than two months, after the receipt of the report of the Planning Committee, the Planning Authority or the said Officer shall consider the report including the objections and suggestions received by it or him and make a list of such modifications or changes and carry out the same in the draft Development plan, as it or he may consider proper.  The Planning Authority or the said officer shall publish, in the Official Gazette and in not less than two local newspapers, the list of modifications or changes made in the draft Development plan for information of the public.

The draft Development Plan so modified shall be published in the Official Gazette and in such other manner as may be prescribed, not less than one month prior to the submission of the same to the State government for sanction.

 

  1. [***********Deleted by Mah. 10 of 2011************]

 

  1. Submission of draft Development Plan,-

(1) The Planning Authority or as the case may be, the said Officer shall submit the draft Development Plan along with the list of modifications or changes made in the draft Development plan under sub-section (4) of section 28 to the State Government for sanction within a period of six months from the date of publication of the notice in the Official Gazette, regarding its preparation under section 26.

Provided that, the State Government may, on an application by a Planning Authority or the said Officer by an order in writing, and for adequate reasons which should be recorded, extend from time to time the said period by such further period as may be specified in the order but not in any case exceeding six months in the aggregate.

(2) The particulars referred to in sub-section (2) of section 26 shall also be submitted to the State Government.

  1. Sanction to draft Development plan,-

(1) Subject to the provisions of this section, and not later than six months from date of receipt of such plan from the Planning Authority, or as the case may be, from the said Officer, the State Government may, after consulting the Director of Town Planning by notification in the Official Gazette sanction the draft Development plan submitted to it for the whole area, or separately for any part thereof, either without modification, or subject to such modifications as it may consider proper, or return the draft, Development plan to the Planning Authority or as the case may be, the said Officer for modifying the plan as it may direct or refuse to accord sanction and direct the Planning Authority or the said Officer to prepare a fresh Development plan:

Provided that, the State Government may, if it thinks fit, whether the said period has expired or not, extend from time to time, by a notification in the Official Gazette, the period for sanctioning the draft Development plan or refusing to accord sanction thereto, by such further period not exceeding six months in the aggregate as may be specified in the notification:

Provided further that, where the modifications proposed to be made by the State Government or submitted by the Planning Authority under section 30 and proposed to be approved by the State Government without any further change are of a substantial nature with respect to the draft Development plan published under section 26, the State Government shall publish a notice in the Official Gazette and also in not less than two local newspapers inviting objections and suggestions from any person in respect of the proposed modifications within a period of one month, from the date of such notice.

(2) The State Government may appoint an officer of rank not below that of a Class-I Officer and direct him to hear any such person in respect of such objections and suggestions and submit his report thereon to the State Government.

(3) The State Government shall before according sanction to the draft Development plan take into consideration such objections and suggestions and the report of the officer.

(4) The State Government shall fix in the notification under sub-section (1) a date not earlier than one month from its publication on which the final Development plan shall come into operation.

(4A) The State Government may, by notification in the Official Gazette, delegate all the powers and functions under this section to the Director of Town Planning in such cases and subject to such conditions, if any, as may be specified in such notification.

(5) If a Development plan contains any proposal for the designation of any land for a purpose specified in clauses (b) and (c) of section 22, and if such land does not vest in the Planning Authority, the State Government shall not include that in the Development Plan, unless it is satisfied that the Planning Authority will be able to acquire such land by private agreement or compulsory acquisition not later than ten years from the date on which the Development plan comes into operation.

(6) A Development plan which has come into operation shall be called the “final Development plan” and shall, subject to the provisions of this Act, be binding on the Planning Authority.

 

(C) Provisions for Preparation of Interim Development Plans,

Plans for Areas of Comprehensive Development, Etc.

 

  1. Interim Development Plan,-

(1) Pending the preparation of a draft Development plan, a Planning Authority may, where it considers it expedient and shall, when so directed by the State Government, prepare an interim Development plan for the entire area within the jurisdiction of the Planning Authority, or for any part thereof and publish a notice in the Official Gazette and in such other manner as may be prescribed regarding its preparation; and thereupon, the provisions of sections 25, 26, 27, 28, 30 and 31 shall so far as may be, but subject to the provisions of this section, apply in relation to such interim Development plan as they apply in relation to the preparation and publication of notice of a Development plan.

(2) The Planning Authority shall prepare such plan and publish the notice referred to in sub-section (1) not later than one year from the date of notice in the Official Gazette of its declaration of intention to prepare a draft Development plan or not later than such further period not exceeding twelve months as may be extended by the State Government.

(3) The interim Development plan shall provide only for matters mentioned in clauses (a), (b) and (c) of section 22, and if necessary, such other matters of that section as the Planning Authority may decide to include or as may be directed by the State Government.

(4) The interim Development plan shall consist of such maps and such descriptive matter as the Planning Authority may consider necessary to explain and illustrate the proposals made in such plan.

 

  1. Plans for areas of Comprehensive development,-

(1) Any time after the publication of notice regarding preparation of draft Development plan under section 26, a Planning Authority may prepare plan or plans showing proposals for the development of an area or areas which in the opinion of the Planning Authority should be developed or re-developed as a whole (hereinafter referred to as “the area or areas of Comprehensive development”); and in particular such plans shall provide for:-

(a) detailed development of specific areas for urban renewal, housing shopping centres, industrial areas, civic centres, educational and cultural institutions;

(b) control of architectural features, elevation and frontage of buildings and structures;

(c) dealing satisfactorily with areas of bad layouts, obsolete development and slum areas and re-location of population;

(d) open spaces, gardens, playgrounds and recreation areas.

(2) When the plans for an area or areas of Comprehensive development are prepared, whether or not separately, the Planning Authority shall follow the same procedure before submission of these plans to the State Government for sanction as is provided by sections 25, 26, 27, 28, 30 and 31 as respects a draft Development plan and submit such plan or plans from time to time to the State Government for sanction, alongwith a report—

(a) explaining the proposals and the stages of development programme by which it is proposed to execute the plan or plans;

(b) giving an appropriate estimate of the cost involved in executing the proposals of the plan or plans.

(3) The State Government may, after consulting the Director of Town Planning by

notification in the Official Gazette, sanction the plan or plans for the area or areas of comprehensive development either without, or subject to such modifications as it may consider necessary not later than three months of the date of receipt of such plans from the Planning Authority or not later than such further period as may be extended by the State Government.

 

  1. Preparation of Development plan for additional area,-

(1) If at any time after a Planning Authority has declared its intention to prepare a Development plan or after a Development plan prepared by the Planning Authority has been sanctioned, the jurisdiction of the Planning Authority is extended by inclusion of an additional area, the Planning Authority shall make a fresh declaration of intention to prepare a Development plan for the additional area; and after following the provisions of this Act for the preparation of a draft Development plan, prepare a draft development plan and publish a notice regarding its preparation, for such additional area either separately or jointly with the draft or final Development plan prepared or to be prepared for the area originally under its jurisdiction, and submit it to the State Government for sanction after following the same procedure as is followed for submission of a draft Development plan to the State Government:

Provided that, where a draft Development plan for the additional area requires modification of the final Development plan or where the State Government directs any such modification, the Planning Authority shall revise the final Development plan after following the procedure laid down in section 38 so far as may be relevant.

(2) Where any area is withdrawn from the jurisdiction of a Planning Authority, the proposals, if any, made for that area so withdrawn in a Development plan shall also be deemed to be withdrawn therefrom.

 

  1. Development plans sanctioned by the State Government before commencement of this Act,-

If any Planning Authority has prepared a Development plan which has been sanctioned by the State Government before the commencement of this Act, then such Development plan shall be deemed to be a final Development plan sanctioned under this Act.

 

  1. Development plan prepared prior to this Act,-

If any Planning Authority has prepared a draft Development plan for the area within its jurisdiction before the commencement of this Act, such Development plan shall be deemed to be a draft Development plan for that area for the purposes of this Act, and thereupon, the foregoing provisions of this chapter in relation to the submission of draft Development plan to the State Government for sanction shall mutatis mutandis apply.

  1. Modification of final Development plan,-

(1) Where a modification of any part of or any proposal made in a final Development plan is of such a nature that it will not change the character of such Development plan, the Planning Authority may, or when so directed by the State

Government shall, within ninety days from the date of such direction, publish a notice in the Official Gazette and in such other manner as may be determined by it inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice; and shall also serve notice on all persons affected by the proposed modification and after giving a hearing to any such persons, submit the proposed modification (with amendments, if any), to the State Government for sanction.

(1A) If the Planning Authority fails to issue the notice as directed by the State Government, the State Government shall issue the notice, and thereupon, the provisions of sub-section (1) shall apply as they apply in relation to a notice to be published by a Planning Authority.

(1AA)(a) Notwithstanding anything contained in sub-sections (1), (1A) and (2), where the State Government is satisfied that in the public interest it is necessary to carry out urgently a modification of any part of, or any proposal made in, a final Development Plan of such a nature that it will not change the character of such Development Plan, the State Government may, on its own, publish a notice in the Official Gazette, and in such other manner as may be determined by it, inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice, and shall also serve notice on all persons affected by the proposed modification and the Planning Authority.

(b) The State Government shall, after the specified period, forward a copy of all such objections and suggestions to the Planning Authority for its say to the Government within a period of one month from the receipt of the copies of such objections and suggestions from the government.

(c) The State Government shall, after giving hearing to the affected persons and the Planning Authority and after making such inquiry as it may consider necessary and consulting the Director of Town Planning, by notification in the Official Gazette, publish the approved modification with or without changes, and subject to such conditions as it may deem fit, or may decide not to carry out such modification. On the publication of the modification in the Official Gazette, the final Development Plan shall be deemed to have been modified accordingly.

(1B) Notwithstanding anything contained in sub-section (1), if the Slum Rehabilitation authority appointed under section 3A of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (Mah. XXVIII of 1971) is satisfied that a modification of any part of, or any proposal made in, a final Development plan is required to be made for implementation of the Slum Rehabilitation Scheme declared under the said Act, then, it may publish a notice in the Official Gazette, and in such other manner as may be determined by it, inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice; and shall also serve notice on all persons affected by the proposed modification, and after giving a hearing to any such persons, submit the proposed modification (with amendments, if any), to the State Government to sanction.

(2) The State Government may, make such enquiry as it may consider necessary and after consulting the Director of Town Planning by notification in the Official Gazette, sanction the modification with or without such changes, and subject to such conditions as it may deem fit, or refuse to accord sanction. If a modification is sanctioned, the final Development plans shall be deemed to have been modified accordingly.

 

37A. Power of State Government or Planning Authority to permit temporary change of user,-

Notwithstanding anything contained in this Act or any other law for the time being in force, or in any judgement, order or direction of any Court, or any draft or final Development Plan, the State Government or the Planning Authority may, in respect of any plot of land reserved, designated or allocated for the purpose of play ground in such draft or final Development plan, which is in the possession of the State Government or the Planning Authority, by an order issued from time to time, permit any organisation, body of persons or association to use such play ground for functions organised on the occasions of independence Day, Republic Day, Maharashtra Day and similar National events, and the Jayantis or Punnyatithies of National Leaders, and religious functions, on terms and conditions specified by the State Government or the Planning Authority, as the case may be, in such order, for a period not exceeding 12 days at a time and in

any case not exceeding 30 days in the aggregate in a calendar year; and such use shall not be deemed to be a change of user.

 

  1. Revision of Development plan,-

At least once in twenty years from the date on which a Development plan has come into operation, and where a Development plan is sanctioned in parts, then at least once in twenty years from the date on which the last part has come into operation, a Planning Authority may and shall at any time when so directed by the State Government, revise the Development plan either wholly, or the parts separately after carrying out, if necessary, a fresh survey and preparing an existing-land-use map of the area within its jurisdiction, and the provisions of sections 22, 23, 24, 25, 26, 27, 28, 30 and 31 shall, so far as they can be made applicable, apply in respect of such revision of the Development plan.

 

  1. Variation of town planning scheme by Development plan,-

Where a final Development plan contains proposals which are in variation, or modification of those made in a town planning scheme which has been sanctioned by the State Government before the commencement of this Act, the Planning Authority shall vary such scheme suitably under section 92 to the extent necessary by the proposals made in the final Development Plan.

  1. Special Planning Authority for developing certain notified areas,-

(1) The State Government may, by notification in the Official Gazette for any undeveloped area specified in the notification in this Act referred to as “the notified area” either:-

(a) constitute an authority consisting of a Chairman, a Vice-Chairman, a member of the Maharashtra Legislative Assembly representing the notified area, one member representing the municipal area, if any, included in the notified area, the Deputy Director of Town Planning, and the Executive Engineer, Public Health Works Division, each having jurisdiction over the notified area, and an officer not below the rank of an Assistant Collector; or

(aa) appoint the Authority constituted under the Maharashtra Housing and Area Development Act, 1976 (Mah. XXVIII of 1977) or

(b) appoint any Development Authority declared under sub-section (3A) of section 113; or

(c) appoint the Bombay Metropolitan Region Development Authority established under the Bombay Metropolitan Region Development Authority Act, 1974 (Mah.IV of 1975), to be the Special Planning Authority for developing the notified area.

(1A) Notwithstanding anything contained in sub-section (1), any area where Chapter VI of the Maharashtra Industrial Development Act, 1961 (Mah. III of 1962) (hereinafter, in this section, referred to as “the said Act”), applies, or any other area comprising Government land handed over to the Maharashtra Industrial Development Corporation established under section 3 of the said Act, shall be deemed to be “the notified area”; and the Maharashtra Industrial Development Corporation, shall be the Special Planning Authority in respect of such notified area, and shall be deemed to have been appointed as such under this section for the purposes of this Act:

Provided that, at any time, as provided in the first proviso to sub-section (3) of section 1 of the said Act, where the State Government by notification in the Official Gazette, directs that the said Chapter VI shall cease to be in force in that area or any part thereof, from the date specified in such notification then from such date, the said area, or part thereof, as the case may be, shall cease to be notified area and the Maharashtra Industrial Development Corporation shall cease to be the Special Planning Authority for the purposes of this Act for such area or part thereof:

Provided further that, the provisions of clauses (e) and (f) of sub-section (3) or of sections 116, 117, 126, 127 and Chapter VIII shall not be applicable to such Special Planning Authority.

(1B) Notwithstanding anything contained in sub-section (1), the State Government may, by notification in the Official Gazette, appoint any agency or authority created by or in accordance with Government order or instrument, or any company or corporation established by or under any State or Central law, to be the Special Planning Authority for any notified area.

(2) The Chairman and Vice-Chairman of the Special Planning Authority constituted under clause (a) of sub-section (1) shall be appointed by the State Government; but if any municipal area forms part of any notified area then the president of the Municipal Council of such municipal area shall be the Vice-Chairman. The Officer not below the rank of an Assistant Collector shall be the Secretary and the Chief Executive Officer.

(3) The provisions of Chapter VI of this Act shall, subject to the provisions of this section and section 41, apply mutatis mutandis to the Special Planning Authority as they apply in relation to a Development Authority, as if the notified area were a new town, subject to the following modification, namely: –

(a) in section 113-

(i) in sub-section (6) after the words “Regional Board” the words and

Figure “with the modification that section 8 shall not apply in relation

to notified area” shall be added;

(ii) to sub-section (8), the following proviso shall be added, namely:

“Provided that, it shall not be necessary for a Special Planning

Authority to make any development plan or town planning scheme

for any notified area for the purpose of carrying out its objects under

this Act. It may submit its proposals for the development of the land

in the notified area (being land either vesting in it or land which has

been acquired or is proposed to be acquired under section 116) as

provided in section 115,”‘

(b) section 113A shall be omitted;

(c) in section 114,-

(1) in sub-section (1), –

(i) the words, figures and letter “subject to the provisions of

section 113A” shall be omitted;

(ii) in the proviso, for the words, brackets and figures

“constituted under sub-section (2) of section 113” the words,

“unless empowered by the State Government so to do,”

shall be substituted;

(2) in sub-section (2) in the proviso, in clause (a) for the portion

beginning with the words “constituted and ending with the words

“such authority”, the following shall be substituted, namely:-

“and if both the Chairman and Vice-Chairman are not available, with

such officer or officers as may be authorised by such Authority,”;

(d) for section 115, the following shall be substituted, namely: –

                        “115. Planning and control in notified area

(1) A special Planning Authority shall from time to time, submit to the

State Government its proposals for the development of land (being

land either belonging to, or vesting in it or acquired or

proposed to be acquired under section 116), and the State

Government may, after consultation with the Director of Town

Planning, approve such proposals either with or without modification.

(2) Before submitting the proposals to the State Government, the

Special Planning Authority shall carry out a survey and prepare an

exiting land-use-map of the area, and prepare and publish the draft

proposals for the lands within its jurisdiction together with a notice in

the Official Gazette and local newspapers in such manner as the

Special Planning Authority may determine, inviting objections and

suggestions from the public within a period of not more than 30

days from the date of notice in the Official Gazette. The Special

Planning Authority may, if it thinks fit, give individual notices to

persons affected by the draft proposals.

(3) The Special Planning Authority may after duly considering the

objections or suggestions, received by it, if any, and after giving an

opportunity, to persons affected by such draft proposals of being

heard modify its proposals, if necessary, and then submit them to the

State Government for its approval. The orders of the State

Government approving such proposals shall be published

in the Official Gazette.”;

(e) for section 116, the following shall be substituted namely:-

                        “116. Power of Special Planning Authority to acquire land in  

                        notified area.

                        Every Special Planning Authority shall have all the powers of a

Planning Authority under this Act as provided in Chapter VII for the

special purposes of acquisition of such land in the notified area as it

considers to be necessary for the purpose of development in that

area either by agreement or under the Land Acquisition Act, 1894 (I

of 1894), or any land adjacent to such area which is required for the

development of the notified area and land whether adjacent to that

area or not which is required for provision for services or amenities

for the purposes of the notified area”.;

(f) for section 117, the following shall be substituted, namely:-

                        “117. Obligation to purchase land in notified area.

                        Where any land has not been acquired within a period of ten years

from the date of notification under sub-section (1) of section 40 any

owner of the land may, by notice in writing served on the Special

Planning Authority, require it to acquire his interest therein; and

thereupon, the provisions of section 127 providing for lapsing of

reservations shall apply in relation to such land as they apply in

relation to land reserved under any plan under this Act”;

(g) In section 122, in sub-section (1), the words, brackets and figures

“constituted under sub-section (2) of section 113” shall be omitted.

(4) In preparing and submitting its proposals for developing any land under section 115 and in approving them under that section, the Special Planning Authority and the State Government shall take particular care to take into consideration the provisions of any draft or final Regional Plan, draft or final development plan, or any draft or final town planning scheme, or any building bye-laws or regulations, which may already be in force in the notified area or in any part thereof.

(5) Where any proposals for development of any land are approved by the State

Government under section 115, the provisions of the proposals approved by the State Government shall be final, and shall prevail, and be deemed to be in force, in such notified area; and to that extent the provisions of any such plan or scheme applicable to and in force in the notified area or any part thereof shall stand modified by the proposals approved by the State Government.

 

  1. Expenses of Special Planning Authority to be met by contribution by local authorities,-

(1) The State Government shall by an order in writing determine the amount which a local authority or each of the local authorities in respect of whose area the Special Planning Authority has been constituted shall pay as contribution either in one lump sum or in such instalments as may be specified in the order, for meeting the expenses of the Special Planning Authority for the purposes of this Act.

(2) Not later than thirty days of the receipt of the order under sub-section (1), the local authority or local authorities shall pay to the Special Planning Authority the amount of contribution specified in the order in the manner indicated therein:

Provided that, where the local authority or authorities fail to pay such amount of contribution the State Government shall, on receipt of necessary intimation from the Special Planning Authority, recover it from the local authority or authorities and pay it to the Special Planning Authority.  If any local authority fails to pay any sum under sub-section (1), the State Government may make an order directing any person who for the time being has custody of any moneys on behalf of the local authority as its officer, treasurer, banker or otherwise to make the payment from such moneys as he may have in his hands or may from time to time receive either in one instalment or in any such number of instalments as may be specified in the order; and such person shall be bound to obey the order. Every payment made pursuant to such order shall be sufficient discharge to such person from all liability to local authority in respect of any sum or sums so paid by him out of the moneys of the local authorities held or received by him.

 

  1. Implementation of plans,-

On the coming into operation of any plan or plans referred to in this Chapter, it shall be the duty of every Planning Authority to take such steps as may be necessary to carry out the provisions of such plan or plans.

 

 

 

CHAPTER III-A

AREA DEVELOPMENT AUTHORITY

 

42A. Declaration of development area,-

(1) The State Government may, for the purpose of securing planned development of areas within the State, declare by notification in the Official Gazette, any area in the State to be a development area.

(2) Every notification issued under sub-section (1) shall define the limits of the area to which it relates.

(3) The State Government may, by notification in the Official Gazette, amalgamate two or more development areas into one development area, sub-divide any development area into different development areas and include such sub-divided areas in any other development area.

42B. Exclusion of whole or part of development area from operation of Act,-

(1) The State Government may, by notification in the Official Gazette, withdraw from operation of the relevant provisions of this Act, the whole or part of any development area declared under section 42A.

(2) Where any notification is issued under sub-section (1) in respect of any development area or part thereof, the relevant provisions of this Act and all notifications, rules, regulations and orders made or directions issued and powers conferred thereunder, shall cease to apply to the said area or, as the case may be, part thereof.

42C. Constitution of Area Development Authority,-

(1) As soon as may be, after the declaration of a development area under section 42A, the State Government shall, by notification in the official Gazette, constitute an authority for such area to be called the Area Development Authority of that development area for the purpose of carrying out the functions assigned to an Area Development Authority under this Act.

(2) Every Area Development Authority constituted under sub-section (1) shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power to acquire, hold and dispose of property, both movable and immovable, and to contract and by the said name sue and be sued.

(3) An area Development Authority shall consist of the following members, namely:-

(a) Guardian Minister of the concerned district              Chairman;

(b)  The President of Zilla Parishads and

Chairman of Panchayat Samitis functioning

In the development area or in any part

thereof,                                                                            Ex-Officio Members;

(c)  Mayors of Municipal Corporations and

Presidents of Municipal Councils, functioning

In the development area or in any part thereof,       Ex-Officio Members;

(d) Municipal Commissioners of Municipal

Corporations and Chief Officers of Municipal

Councils, functioning in the development area

or in any part thereof                                                      Ex-Officio Members;

(e) The Collectors of Districts or their

representatives not below the rank of Deputy

Collector having jurisdiction over the development

area or in any part thereof,                                            Ex-Officio Members;

(f) Chief Executive Officers of Zilla Parishads or

their representatives not below the rank of

Deputy Chief Executive Officer, functioning in

the development area or in any part thereof,             Ex-Officio Members;

(g) The Chief Engineer of Maharashtra Jeevan

Authority or his representative not below

the rank of Superintending Engineer having

jurisdiction over the development area or in

any part thereof,                                                              Ex-Officio Members;

(h) Settlement Commissioner and Director of

Land Records or his nominee not below

the rank of Deputy Director of Land Records

having jurisdiction over the development area

or in any part thereof,                                         Ex-Officio Members;

(i)  Chief Executive Officer not below the rank of

Joint Director of Town Planning or an officer

appointed by Government for Metropolitan

Area and Deputy Director of Town Planning

elsewhere, to be appointed by the State

Government.                                                                    Member Secretary

(4) The provisions of sections 9,10 and 11 of this Act shall mutatis mutandis apply to an Area Development Authority constituted under sub-section (1) as they apply in relation to a Regional Planning Board.

42D. Appointment of Government company, etc. as Area Development Authority,-

The State Government may, instead of constituting an Area Development Authority for a development area, appoint any agency or authority on any company or corporation established by the State or Central Government to be the Area Development Authority for any development area.

42E. Control by Metropolitan Planning Committee and District Planning Committee,-

(1) Every Area Development Authority constituted under section 42C or appointed under section 42D shall carry out such directions or instructions as may be issued, from time to time, by the Metropolitan Planning Committee or the District Planning Committee, as the case may be, within whose jurisdiction the notified area of the Area Development Authority, is situated:

Provided that, if the notified area of an Area Development Authority is situated in the jurisdiction of a Metropolitan Planning Committee and also of a District Planning Committee, the directions issued by the Metropolitan Planning Committee shall prevail over the directions issued by the District Planning Committee.

(2) Any dispute between the Area Development Authority and the Metropolitan Planning Committee or, the District Planning Committee, as the case may be, shall be referred to the State Government whose decision thereon shall be final.

(3) In the discharge of its duties, the Area Development Authority shall be bound by the directions issued by the State Government.

42F. Powers and functions of Area Development Authority,-

(1) The powers and functions of an Area Development Authority shall be,-

(i) to undertake the preparation and execution of town planning schemes having regard to the draft development plan prepared by the Metropolitan Planning Committee or the District Planning Committee, as the case may be, under the provisions of this Act;

(ii) to carry out surveys in the development area for the preparation of town planning schemes;

(iii) to control the development activities in accordance with the development plan and town planning schemes in the development area excluding the area under the jurisdiction of a local authority, which is permitted to execute the functions of a Planning Authority, in the manner provided for in Chapter IV;

(iv) to levy and collect such scrutiny fees for scrutiny of proposals submitted to the Area Development Authority for permission for development in accordance with the regulations, made in that behalf;

(v) to enter into contracts, agreements or arrangements, with any person or organization as the Area Development Authority may deem necessary for performing its functions;

(vi) to acquire, hold, manage and dispose of property, movable or immovable, as the Area Development Authority may deem necessary, subject, however, to the rules or regulations, if any, made in that behalf;

(vii) to execute works in connection with supply of water, disposal of sewerage and provision of other services and amenities;

(viii) to levy and collect such fees, for the execution of work referred to in clause (vii) and for provision of other services and amenities, as may be specified by the regulations;

(ix) to exercise such other powers and perform such other functions as are supplemental, incidental or consequential to any of the foregoing powers and functions or as may be directed by the State Government.

(2) The Area Development Authority shall be a Planning Authority for the area under its jurisdiction excluding the area under jurisdiction of a local authority under this Act which is permitted to execute the functions of a Planning Authority.

(3) On the constitution or, as the case may be, appointment of an Area Development Authority for any development area, the following consequences shall ensue, namely:–

(i) the authority or authorities functioning within the development area immediately before such constitution or appointment shall cease to exercise the powers and perform the functions and duties which the Area Development Authority is competent to exercise and perform under this Act;

(ii) the provisions of Chapters VI-A, VIII and IX alongwith the First and Second Schedule of this Act shall apply to the Area Development Authority, as if it was a New Town Development Authority;

(iii) the provisions of section 21 shall not apply to the Area Development Authority.

(4) The Area Development Authority, may, with the approval of the State Government, delegate any of its powers and functions to any authority or authorities functioning within its jurisdiction.

(5) The Area Development Authority, shall have its office at such place as the State Government may, by order, specify.

42G. Expenses of Area Development Authority,-

(1) The State Government shall, by an order in writing determine the amount which an authority or authorities functioning in the development area shall pay as contribution, either in one lump sum or in instalments as may be specified in the order, towards the expenses incurred by an Area Development Authority, in the discharge of its functions.

(2) The authority, in respect of whom the order under sub-section (1) has been issued by the State Government, shall not later than six months from the receipt of the order under sub-section (1), pay to the Area Development Authority, concerned, the amount of contribution specified in the order in the manner indicated therein and if such authority fails to so pay such amount, the State Government shall, on receipt of necessary intimation from the Area Development Authority, recover the same from such authority, in the manner as the State Government may decide and pay it to such Area Development Authority.

  

 

Chapter IV

Control of Development and Use of Land Included In Development Plans

 

  1. Restrictions on development of land,-

After the date on which the declaration of intention to prepare a Development plan for any area is published in the Official Gazette or after the date on which a notification specifying any undeveloped area as a notified area, or any area designated as a site for a new town, is published in the Official Gazette, no person shall institute or change the use of any land or carry out any development of land without the permission in writing of the Planning Authority:

Provided that, no such permission shall be necessary—

(i) for carrying out works for the maintenance, improvement or other alteration of any building, being works which affect only the interior of the building or which do not materially affect the external appearance thereof; except in case of heritage building or heritage precinct;

(ii) the carrying out of works in compliance with any order or direction made by any authority under any law for the time being in force;

(iii) the carrying out of works by any authority in exercise of its powers under any law for the time being in force;

(iv) for the carrying out by the Central or the State Government or any local authority of any works-

(a) required for the maintenance or improvement of a highway, road or public street, being works carried out on land within the boundaries of such highways, road or public street;

(b) for the purpose of inspecting, repairing or renewing any drains, sewers, mains, pipes, cable, telephone or other apparatus including the breaking open of any street or other land for that purpose;

(v) for the excavation (including wells) made in the ordinary course of agricultural operation;

(vi) for the construction of a road intended to give access to land solely for agricultural purposes;

(vii) for normal use of land which has been used temporarily for other purposes;

(viii) in case of land, normally used for one purpose and occasionally used for any other purpose, for the use of land for that other purpose on occasions;

(ix) for use, for any purpose incidental to the use of a building for human habitation of any other building or land attached to such building.

 

  1. Application for permission for development,-

(1) Except as otherwise provided by rules made in this behalf, any person not being Central or State Government or local authority intending to carry out any development on any land shall make in application writing to the Planning Authority for permission in such form and containing such particulars and accompanied by such documents, as may be prescribed:

Provided that, save as otherwise provided in any law, or any rules, regulations or bye-laws made under any law, for the time being in force, no such permission shall be necessary for demolition of an existing structure, erection or building or part thereof, in compliance of a statutory notice from a Planning Authority or a Housing and Area Development Board, the Bombay Repairs and Reconstruction Board or the Bombay Slum Improvement Board established under the Maharashtra Housing and Area Development Act, 1976 (Mah. XXXVIII of 1977).

(2) Without prejudice to the provisions of sub-section (1) or any other provisions of this Act, any person intending to execute a Special Township Project on any land, may make an application to the State Government, and on receipt of such application the State Government may, after making such inquiry as it may deem fit in that behalf, grant such permission and declare such project to be a Special Township Project by notification in the Official Gazette or, reject the application.

 

  1. Grant or refusal of permission,-

(1) On receipt of an application under section 44 the Planning Authority may, subject to the provisions of this Act, by order in writing-

(i) grant the permission, unconditionally;

(ii) grant the permission, subject to such general or special conditions as it may impose with the previous approval of the State Government; or

(iii) refuse the permission.

(2) Any permission granted under sub-section (1) with or without conditions shall be contained in a commencement certificate in the prescribed form.

(3) Every order granting permission subject to conditions, or refusing permission shall state the grounds for imposing such conditions or for such refusal.

(4) Every order under sub-section (1) shall be communicated to the applicant in the manner prescribed by regulations.

(5) If the Planning Authority does not communicate its decision whether to grant or refuse permission to the applicant within sixty days from the receipt of his application, or within sixty days from the date of receipt of reply from the applicant in respect of any requisition made by the Planning Authority, whichever is later, such permission shall be deemed to have been granted to the application on the date immediately following the date of expiry of sixty days.

Provided that, the development proposals, for which the permission was applied for, is strictly in conformity with the requirements of all the relevant Development Control Regulations framed under this Act or bye-laws or regulations framed in this behalf under any law for the time being in force and the same in no way violates either the provisions of any draft or final plan or proposals published by means of notice, submitted for sanction under this Act:

Provided further that, any development carried out in pursuance of such deemed permission which is in contravention of the provisions of the first proviso, shall be deemed to be an unauthorised development for the purposes of sections 52 to 57.

(6) The Planning Authority shall, within one month from the date of issue of commencement certificate, forward duly authenticated copies of such certificate and the sanctioned building or development plans to the Collector concerned.

 

  1. Provisions of Development plan to be considered before granting permission,-

The Planning Authority in considering application for permission shall have due regard to the provisions of any draft or final plan or proposals published by means of notice submitted or sanctioned under this Act.

 

  1. Appeal,-

(1) Any applicant aggrieved by an order granting permission on conditions or refusing permission under section 45 may, within forty days of the date of communication of the order to him, prefer an appeal to the State Government or to an officer appointed by the State Government in this behalf, being an officer not below the rank of a Deputy Secretary to Government; and such appeal shall be made in such manner and accompanied by such fees (if any) as may be prescribed.

(2) The State Government or the officer so appointed may, after giving a reasonable opportunity to the appellant and the Planning Authority to be heard, by order dismiss the appeal, or allow the appeal by granting permission unconditionally or subject to the conditions as modified.

 

  1. Lapse of permission,-

Every permission for development granted or deemed to be granted under section 45 or granted under section 47 shall remain in force for a period of one year from

the date of receipt of such grant, and thereafter it shall lapse:

Provided that, the Planning Authority, may on application made to it extend such period from year to year; but such extended period shall in no case exceed three years:

Provided further that, if the development is not completed upto plinth level or where there is no plinth, upto upper level of basement or stilt, as the case may be, within the period of one year or extended period, under the first proviso, it shall be necessary for the applicant to make application for fresh permission.

 

  1. Obligation to acquire land on refusal of permission or on grant of permission in certain cases,-

Where-

(a) any land is designated by a plan as subject to compulsory acquisition, or

(b) any land is allotted by a plan for the purpose of any functions of a Government or local authority or statutory body, or is land designated in such plan as a site proposed to be developed for the purposes of any functions of any such Government, authority or body, or

(c) any land is indicated in any plan as land on which a highway is proposed to be constructed or included, or

(d) any land for the development of which permission is refused or is granted subject to conditions,

and any owner of land referred to in clauses (a), (b) (c) or (d) claims-

(i) that the land has become incapable of reasonably beneficial use in its existing state, or

(ii) (where planning permission is given subject to conditions) that the land cannot be rendered capable of reasonably beneficial use by the carrying out of the permitted development in accordance with the conditions; or

(e) the owner of the land because of its designation or allocation in any plan claims that he is unable to sell it except at a lower price than that at which he might reasonably have been expected to sell if it were not so designated or allocated,

the owner or person affected may serve on the State Government within such time and in such manner, as is prescribed by regulations, a notice (hereinafter referred to as “the purchase notice”) requiring the Appropriate Authority to purchase the interest in the land in accordance with the provisions of this Act,

(2) The purchase notice shall be accompanied by a copy of any application made by the applicant to the Planning Authority, and of any order or decision of that Authority and of the State Government, if any, in respect of which the notice is given.

(3) On receipt of a purchase notice, the State Government shall forthwith call from the Planning Authority and the Appropriate Authority such report or records or both, as may be necessary, which those authorities shall forward to the State Government as soon as possible but not later than thirty days from the date of their requisition.

(4) On receiving such records or reports, if the State Government is satisfied that the conditions specified in sub-section (1) are fulfilled, and that order or decision for permission was not duly made on the ground that the applicant did not comply with any of the provisions of this Act or rules or regulations, it may confirm the purchase notice, or direct that planning permission be granted without condition or subject to such conditions as will make the land capable of reasonably beneficial use. In any other case, it may refuse to confirm the purchase notice, but in that case, it shall give the applicant a reasonable opportunity of being heard.

(5) If within a period of six months from the date on which a purchase notice is served the State Government does not pass any final order thereon, the notice shall be deemed to have been confirmed at the expiration of that period.

[(6) ***Deleted by Mah. Act 6 of 1976*******]

(7) If within one year from the date of confirmation of the notice, the Appropriate Authority fails to make an application to acquire the land in respect of which the purchase notice has been confirmed as required under section 126, the reservation, designation, allotment, indication or restriction on development of the land shall be deemed to have lapsed; and thereupon, the land shall be deemed to be released from the reservation, designation, or, as the case may be, allotment,

indication or restriction and shall become available to the owner for the purpose of development otherwise permissible in the case of adjacent land, under the relevant plan.

 

  1. Deletion of reservation of designated land for interim draft of final Development plan,-

(1) The Appropriate Authority (other than the Planning Authority), if it is satisfied that the land is not or no longer required for the public purpose for which it is designated or reserved or allocated in the interim or draft Development plan or plans for the area of Comprehensive development or the final Development plan, may request-

(a) the Planning Authority to sanction the deletion of such designation or reservation or allocation from the interim or the draft Development plan or plans for the area of Comprehensive development, or

(b) the State Government to sanction the deletion of such designation or reservation or allocation from the final Development plan.

(2) On receipt of such request from the Appropriate Authority, the Planning Authority, or as the case may be, the State Government may make an order sanctioning the deletion of such designation or reservation or allocation from the relevant plan:

Provided that, the Planning Authority, or as the case may be, the State Government may, before making any order, make such enquiry as it may consider necessary and satisfy itself that such reservation or designation or allocation is no longer necessary in the public interest.

(3) Upon an order under sub-section (2) being made, the land shall be deemed to be released from such designation, reservation, or as the case may be, allocation and shall become available to the owner for the purpose of development as otherwise permissible in the case of adjacent land, under the relevant plan.

  1. Power of revocation and modification of permission to development,-

(1) If it appears to a Planning Authority that it is expedient, having regard to the Development plan prepared or under preparation that any permission to develop land granted or deemed to be granted under this Act or any other law, should be revoked or modified, the Planning Authority may, after giving the person concerned an opportunity of being heard against such revocation or modification, by order, revoke or modify the permission to such extent as appears to it to be necessary:

Provided that-

(a) where the development relates to the carrying out of any building or other operation, no such order shall affect such of the operations as have been previously carried out; or shall be passed after these operations have substantially progressed or have been completed;

(b) where the development relates to a change of use of land, no such order shall be passed at any time after change has taken place.

(2) Where permission is revoked or modified by an order made under sub-section (1) and any owner claims within the time and in the manner prescribed, compensation for the expenditure incurred in carrying out the development in accordance with such permission which has been rendered abortive by the revocation or modification, the Planning Authority shall, after giving the owner reasonable opportunity of being heard by the Town Planning Officer, and after considering his report, assess and offer, subject to the provisions of section 19, such compensation to the owner as it thinks fit.

(3) If the owner does not accept the compensation and gives notice, within such time as may be prescribed, of his refusal to accept, the Planning Authority shall refer the matter for the adjudication of the Court, and the decision of the Court shall be final and be binding on the owner and Planning Authority.

 

  1. Penalty for unauthorised development or for use otherwise than in conformity with Development plan,-

(1) Any person who, whether at his own instance or at the instance of any other person commences, undertakes or carries out development or institutes, or changes the use of any land-

(a) without permission required under this Act; or

(b) which is not in accordance with any permission granted or in contravention of any condition subject to which such permission has been granted;

(c) after the permission for development has been duly revoked; or

(d) in contravention of any permission which has been duly modified,

shall, on conviction, be punished with imprisonment for a term which shall not be less than one month but which may extend to three years and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees, and in the case of a continuing offence with a further daily fine which may extend to two hundred rupees for every day during which the offence continues after conviction for the first commission of the offence.

(2) Any person who continues to use or allows the use of any land or building in contravention of the provisions of a Development plan without being allowed to do so under section 45 or 47, or where the continuance of such use has been allowed under that section continues such use after the period for which the use has been allowed or without complying with the terms and conditions under which the continuance of such use is allowed, shall, on conviction be punished with fine which may extend to five thousand rupees; and in the case of a continuing offence, with a further fine which may extend to one hundred rupees for every day during which such offence continues after conviction for the first commission of the offence.

 

  1. Power to require removal of unauthorised development,-

(1) Where any development of land has been carried out as indicated in sub-section (1) of section 52, the Planning Authority may, subject to the provisions of this section, serve on the owner a notice requiring him, within such period, being not less than one month, as may be specified, therein after the service or the notice, to take such steps as may be specified in the notice,

(a) in cases specified in clause (a) or (c) of sub-section (1) of section 52, to restore the land to its condition existing before the said development took place.

(b) in cases prescribed in clauses (b) or (d) of sub-section (1) of section 52, to secure compliance with the conditions or with the permission as modified:

Provided that, where the notice requires the discontinuance of any use of land, the Planning Authority shall serve a notice on the occupier also.

(2) In particular, such notice may, for purposes of sub-section (1), require-

(a) the demolition or alteration of any building or works;

(b) the carrying out on land of any building or other operations; or

(c) the discontinuance of any use of land.

(3) Any person aggrieved by such notice may, within the period specified in the notice and in the manner prescribed, apply for permission under section 44 for retention on the land of any building or works or for the continuance of any use of the land, to which the notice relates, and pending the final determination or withdrawal of the application, the mere notice itself shall not affect the retention of buildings or works or the continuance of such use.

(4) The foregoing provisions of this Chapter shall, so far as may be applicable apply to an application made under sub-section (2).

(5) If the permission applied for is granted, the notice shall stand withdrawn; but if the permission applied for is not granted, the notice shall stand; or if such permission is granted for the retention only of some buildings, or works, or for the continuance of use of only a part of the land, the notice shall stand withdrawn as respects such buildings or works or such part of the land, but shall stand as respects other buildings or works or other part of the land, as the case may be and thereupon, the owner shall be required to take steps specified in the notice under sub-section (1) as respects such other buildings, works or part of the land.

(6) If within the period specified in the notice or within the same period after the disposal of the application under sub-section (4), the notice or so much of it as stands is not complied with, the planning Authority may-

(a) prosecute the owner for not complying with the notice; and where the notice requires the discontinuance of any use of land any other person also who uses the land or causes or permits the land to be used in contravention of the notice; and

(b) where the notice requires the demolition or alteration of any building or works carrying out of any building or other operations, itself cause the restoration of the land to its condition before the development took place and secure compliance with the conditions of the permission or with the permission as modified by taking such steps as the Planning Authority may consider necessary including demolition or alteration of any building or works or carrying out of any building or other operations; and recover the amount of any expenses incurred by it in this behalf from the owner as arrears of land revenue.

(7) Any person prosecuted under clause (a) of sub-section (6) shall, on conviction, be punished with imprisonment for a term which shall not be less than one month but which may extend to three years and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees, and in the case of a continuing offence with a further daily fine which may extend to two hundred rupees for every day during which such offence continues after conviction for the first commission of the offence.

 

  1. Power to stop unauthorised development,-

(1) Where any development of land as indicated in sub-section (1) of section 52 is being carried out but has not been completed, the Planning Authority may serve on the owner and the person carrying out the development a notice requiring the development of land to be discontinued from the time of the service of the notice;

and thereupon, the provisions of sub-sections (3), (4), (5) and (6) of section 53 shall so far as may be applicable apply in relation to such notice, as they apply in relation to notice under section 53.

(2) Any person, who continues to carry out the development of land, whether for himself or on behalf of the owner or any other person, after such notice has been served shall, on conviction be punished with imprisonment for a term which may extend to three years or with fine which may extend to five thousand rupees or with both; and when the non-compliance is a continuing one, with a further fine which may extend to one hundred rupees for every day after the date of the service of the notice during which the non-compliance has continued or continues.

 

  1. Removal or discontinuance of unauthorised temporary development summarily,-

(1) Notwithstanding anything hereinbefore contained in this Chapter, where any person has carried out any development of a temporary nature unauthorisedly as indicated in sub-section (1) of section 52, the Planning Authority may by an order in writing direct that person to remove any structure or work erected, or discontinue the use of land made, unauthorisedly as aforesaid, within fifteen days of the receipt of the order; and if thereafter, the person does not comply with the order within the said period, the Planning Authority may request the District Magistrate or the Commissioner of Police, as the case may be, or authorise any of its officers or servants, to have such work summarily removed or such use summarily discontinued without any notice as directed in the order; and any development unauthorisedly made again, shall be similarly removed or discontinued summarily without making any order as aforesaid.

(2) The decision of the Planning Authority on the question of what is development of a temporary nature shall be final.

 

  1. Power to require removal of authorised development or use,-

(1) If it appears to a Planning Authority that it is expedient in the interest of proper planning of its areas (including the interest of amenities) having regard to the Development plan prepared—

(a) that any use of land should be discontinued, or

(b) that any conditions should be imposed on the continuance thereof, or

(c) that any buildings or works should be altered or removed, the Planning Authority may, by notice served on the owner,-

(i) require the discontinuance of that use; or

(ii) impose such conditions as may be specified in the notice on the

continuance thereof; or

(iii) require such steps, as may be specified in the notice to be taken

for the alteration or removal of any buildings or works, as the case

may be,

within such period, being not less than one month, as may be, specified therein, after the service of the notice.

(2) Any person aggrieved by such notice may, within the said period and in the manner prescribed, appeal to the State Government.

(3) On receipt of an appeal under sub-section (2), the State Government or any other person appointed by it in this behalf may, after giving a reasonable opportunity of being heard to the appellant and the Planning Authority, dismiss the appeal or allow the appeal by quashing or varying the notice as it may think fit.

(4) If any person,–

(i) who has suffered damage in consequence of the compliance with the notice by the depreciation of any interest in the land to which he is entitled or by being disturbed in his enjoyment of the land or otherwise; or

(ii) who has carried out any works in compliance with the notice,

claims, from the Planning Authority, within the time and in the manner prescribed compensation in respect of that damage, or of any expenses reasonably incurred by him, for complying with the notice, then the provisions of sub-sections (2) and (3) of section 51 shall apply in relation to such claim as those provisions apply to claims for compensation under those provisions.

(5) If any person having interest in land in respect of which a notice is issued under this section claims that by the reason of the compliance with the notice, the land will become incapable of reasonably beneficial use, he may within the period specified in the notice or within such period after the disposal of the appeal, if any, filed under sub-section (2) and in the manner prescribed, serve on the State Government a purchase notice requiring his interest in the land to be acquired; and thereupon, the provisions of section 49 for dealing with a purchase notice shall, so far as can be made applicable, apply as they apply to a purchase notice under that section.

 

  1. Recovery of expenses incurred,-

Any expenses incurred by a Planning Authority under sections 53, 54, 55 and 56 shall be a sum due to the Planning Authority under this Act from the person in default of the owner of the plot.

 

  1. Development undertaken on behalf of Government,-

(1) When any Government intends to carry out development of any land for the purpose of any of its departments or offices or authorities, the officer in charge thereof shall inform in writing the Planning Authority the intention of Government to do so, giving full particulars thereof, and accompanied by such documents and plans as may be prescribed at least thirty days before undertaking such development.

(2) Where a Planning Authority raises any objection to the proposed development on the ground that the development is not in conformity with the provisions either of any Development plan under preparation, or of any building bye-laws in force for the time being, or for any other material consideration, the officer shall-

(i) either make necessary modifications in the proposals for development to meet the objections raised by the Planning Authority; or

(ii) submit the proposals for development together with the objections raised by the Planning Authority to the State Government for the decision.

(3) The State Government, on receipt of the proposals for development together with the objections of the Planning Authority shall, in consultation with the Director of Town Planning, either approve the proposals with or without modifications or direct the officer to make such modifications in the proposals as it considers necessary in the circumstances.

(3A) The development proposal approved by the State Government under sub-section (3) shall remain in force for a period of one year from the date of grant of such approval, and thereafter it shall lapse:

Provided that the officer in charge of the development may apply under intimation to the Planning Authority, to the State Government for extension of such period and thereupon the State Government may extend such period from year to year; but such extended period shall in no case exceed three years:

Provided further that, such lapse shall not bar any subsequent application by the officer in charge of the development, for fresh approval to the development under the preceding sub-sections.

(4) The provisions of sections 44, 45, and 47 shall not, and section 46 shall, mutatis mutandis and section 48 shall, as modified by sub-section (3A), apply to developments carried out under this section.

 

 

 

Chapter V

Town Planning Schemes

(A) Making of Town Planning Schemes

  1. Preparation and contents of town planning scheme,-

(1) Subject to the provisions of this Act or any other law for the time being in force-

(a) a Planning Authority may for the purpose of implementing the proposals in the final Development Plan, prepare one or more town planning schemes for the area within its jurisdiction, or any part thereof;

(b) a town planning scheme may make provision for any of the following matters, that is to say-

(i) any of the matters specified in section 22;

(ii) the laying out or re-laying out of land, either vacant or already

built upon, including areas of comprehensive development;

(iii) the suspension, as far as may be necessary for the proper

carrying out of the scheme, of any rule, by-law, regulation,

notification or order made or issued under any law for the time

being in force which the Legislature of the State is competent to

make;

(iv) such other matter not inconsistent with the object of this Act, as

may be directed by the State Government.

(2) In making provisions in a draft planning scheme for any of the matters referred to in clause (b) of sub-section (1), it shall be lawful for a Planning Authority with the approval of the Director of Town Planning and subject to the provisions of section 68 to provide for suitable amendment of the Development plan.

 

  1. Power of Planning Authority to resolve on declaration of intention to make Scheme,-

(1) A Planning Authority may by resolution declare its intention to make a town planning scheme in respect of any part of the area within its jurisdiction.

(2) Not later than thirty days from the date of such declaration of intention to make a scheme (hereinafter referred to as the declaration), the Planning Authority shall publish the declaration in the Official Gazette, and in such other manner as may be prescribed and despatch a copy thereof (together with a copy of the plan showing the area to be included in the scheme) to the State Government and also to the Director of Town Planning.

(3) A copy of the plan shall be open to the inspection of the public at all reasonable hours at the head office of the Planning Authority.

 

  1. Making and publication of draft scheme by means of notice,-

(1) Not later than twelve months from the date of the declaration, subject however, to subsection (3), the Planning Authority shall in consultation with the Director of Town Planning, make a draft scheme for the area in respect of which the declaration was made, and publish a notice in the Official Gazette and in such other manner as may be prescribed stating that the draft scheme in respect of such area has been made. The notice shall state the name of the place where a copy thereof shall be available for inspection by the public and shall also state that copies thereof or any extract therefrom certified to be correct shall be available for sale to the public at a reasonable price.

(2) If the Planning Authority fails to make a draft scheme and publish a notice regarding its making within the period specified in sub-section (1) or within the period extended under sub-section (3), the declaration shall lapse, unless the State Government appoints an Officer to prepare, and submit the draft scheme to the State Government on behalf of the Planning Authority not later than twelve months from the date of such appointment or the extended period under sub-section (3); but any such lapse of declaration shall not debar the Planning Authority from making a fresh declaration any time in respect of the same area.

(3) The State Government may, on application made by the Planning Authority or, as the case may be, the officer, from time to time by notification in the Official Gazette extend the period specified in sub-section (1) or (2) by such period not exceeding six months as may be specified in the notification.

 

  1. Inclusion of additional area in draft scheme,-

If at any time before a draft scheme is prepared and submitted to the State Government for sanction, the Planning Authority or the officer is of the opinion, or on any representation made to it or him that an additional area be included within the said scheme, the Planning Authority or the officer may, after informing the State Government and giving notice in the Official Gazette, and also in one or more local newspapers, include such additional area in the scheme; and thereupon, all the provisions of sections 59, 60 and 61 shall apply in relation to such additional area as they apply to any original area of the scheme and the draft scheme shall be prepared for the original area and such additional area and submitted to the State Government for sanction.

 

  1. Power of State Government to require Planning Authority to make scheme,-

(1) Notwithstanding anything contained in this Act, the State Government may, in respect of any Planning Authority after making such inquiry as it deems necessary, direct that Authority to make and submit for its sanction, a draft scheme in respect of any land in regard to which a town planning scheme may be made after a notice regarding its making has been duly published in the prescribed manner.

(2) If the Planning Authority fails to make the declaration of intention to make a scheme within three months from the date of direction made under sub-section (1) the State Government may by notification in the Official Gazette appoint an officer to make and submit the draft scheme for the land to the State Government after a notice regarding its making has been duly published as aforesaid and thereupon the provisions of sections 60, 61 and 62 shall, as far as may be applicable, apply to the making of such a scheme.

 

 

  1. Contents of draft Scheme,-

A draft scheme shall contain the following particulars so far as may be necessary, that is to say,–

(a) the ownership, area and tenure of each original plot;

(b) reservation, acquisition or allotment of land required under sub-clause (1) of clause (b) of section 59 with the general indication of the uses to which such land is to be put and the terms and conditions subject to which, such land is to be put to such uses;

(c) the extent to which it is proposed to alter the boundaries of the original plots by reconstitution;

(d) an estimate of the total cost of the scheme and the net cost to be borne by the Planning Authority;

(e) a full description of all the details of the scheme with respect to such matters referred to in clause (b) of section 59 as may be applicable;

(f) the laying out or re-laying out of land either vacant or already built upon including areas of comprehensive development;

(g) the filling up or reclamation of low lying, swamp or unhealthy areas or levelling up of land;

(h) any other prescribed particulars.

 

  1. Reconstituted plot,-

(1) In the draft scheme, the size and shape of every reconstituted plot shall be determined, so far as may be, to render it suitable for building purposes, and where a plot is already built upon, to ensure that the buildings as far as possible comply with the provisions of the scheme as regards open spaces.

(2) For the purpose of sub-section (1), a draft scheme may contain proposals–

(a) to form a final plot by reconstitution of an original plot by alteration of the boundaries of the original plot, if necessary;

(b) to form a final plot from the original plot by the transfer wholly or partly of the adjoining lands;

(c) to provide, with the consent of the owners, that two or more original plots each of which is held in ownership in severally or in joint ownership shall hereafter, with or without alteration of boundaries, be held in ownership in common as a final plot;

(d) to allot a final plot to any owner dispossessed of land in furtherance of the scheme; and

(e) to transfer the ownership of an original plot from one person to another.

 

  1. Compensation for discontinuance of use,-

Where under sub-clause (1) of clause (b) of section 59, the purposes to which the buildings or areas may not be appropriated or used in pursuance of clause (m) of section 22 have been specified, then the building or area shall cease to be used for a purpose other than the purposes specified in the scheme within such time as may be specified in the final scheme, and the person affected by this provision shall be entitled to such compensation from the Planning Authority as may be determined by the Arbitrator:

Provided that, in ascertaining whether compensation be paid, the time within which the person affected was permitted to change the user shall be taken into consideration.

 

  1. Objections to draft scheme to be considered,-

If within thirty days from the date of the publication of notice regarding the preparation of the draft scheme, any person affected thereby communicates in writing any objection relating to such scheme, the Planning Authority or the officer appointed under sub-section (2) of section 61 or section 63 shall consider such objection and may, at any time before submitting the draft scheme to the State Government as hereinafter provided, modify such scheme as it or he thinks fit

 

  1. Power of State Government to sanction draft scheme,-

(1) The Planning Authority or as the case may be, the officer aforesaid shall, not later than six months from the date of the publication of the notice, in the Official Gazette regarding the making of the draft scheme, submit the same with any modifications which it or he may have made therein together with a copy of objections received by it or him to the State Government, and shall at the same time apply for its sanction.

(2) On receiving such application, after making such inquiry as it may think fit and

consulting the Director of Town Planning, the State Government may, not later than six months from the date of its submission, by notification in the Official Gazette or not later than such further time as the State Government may extend, either sanction such draft scheme with or without modifications and subject to such conditions as it may think fit to impose or refuse to give sanction.

(3) If the State Government sanctions such scheme, it shall in such modification state at what place and time the draft scheme shall be open to the inspection of the public and the State Government shall also state therein that copies of the scheme or any extract therefrom certified to be correct shall on application be available for sale to the public at a reasonable price.

 

  1. Restrictions on use and development of land after declaration for town planning scheme,-

(1) On or after the date on which a declaration of intention to make a scheme is published in the Official Gazette:-

(a) no person shall within the area included in the scheme, institute or change the use of any land or building or carry out any development, unless such person has applied for and obtained the necessary permission which shall be contained in a commencement certificate granted by the Planning Authority in the prescribed form;

(b) the Planning Authority on receipt of such application shall at once furnish the applicant with a written acknowledgement of its receipt, and

(i) in the case of a Planning Authority other than a municipal

corporation, after inquiry and where an Arbitrator has been appointed

in respect of a draft scheme after obtaining his approval; or

(ii) in the case of a municipal corporation, after inquiry; may either

grant or refuse such certificate, or grant it subject to such conditions

as the Planning Authority may, with the previous approval of the

State Government, thinks fit to impose.

(2) If a municipal corporation gives permission under clause (b) of sub-section (1), it shall inform the Arbitrator accordingly, and shall send him a copy of the plan:

Provided that, a municipal corporation shall not grant a commencement certificate for any purpose which is in conflict with the provisions of the draft scheme, unless the corporation first obtains concurrence of the Arbitrator for the necessary change in the proposal of the draft scheme.

(3) If a Planning Authority communicates no decision to the applicant within two months from the date of such acknowledgement, the applicant shall be deemed to have been granted such certificate.

(4) If any person contravenes the provisions contained in clause (a) or clause (b) of sub-section (1), the Planning Authority may direct such person by notice in writing to stop any development in progress, and after making inquiry in the prescribed manner, remove, pull down or alter any building, or other development or restore the land in respect of which such contravention is made to its original condition.

(5) Any expense incurred by the Planning Authority under sub-section (4) shall be a sum due to the Planning Authority under this Act from the person in default or the owner of the plot.

(6) The provisions of Chapter IV shall mutatis mutandis, apply in relation to the development and use of land included in a town planning scheme in so far as they are not inconsistent with the provisions of the Chapter.

(7) The restrictions imposed by this section shall cease to operate in the event of the State Government refusing to sanction the draft scheme or the final scheme or in the event of the withdrawal of the scheme under section 87 or in the event of the declaration lapsing under sub-section (2) of section 61.

 

  1. Power of State Government to suspend rule, bye-law etc,-

(1) Where a Planning Authority has published a declaration under section 61 the State Government may, on an application of the Planning Authority by order published in the Official Gazette, suspend to such extent only as may be necessary for the proper carrying out of the scheme any rule, bye-law, regulation, notification or order made or issued under any law which the Legislature of the State is competent to amend.

(2) Any order issued under sub-section (1) shall cease to operate in the event of the State Government refusing to sanction the scheme, or in the event of the withdrawal of the scheme under section 87 or in the event of the coming into force of the final scheme or in the event of the declaration lapsing under sub-section (2) of section 61.

 

  1. Disputed ownership,-

(1) Where there is a disputed claim as to the ownership of any piece of land included in an area in respect of which a declaration of intention to make a town planning scheme has been made and any entry in the record of rights or mutation register relevant to such disputed claim is inaccurate or inconclusive, an inquiry may be held on an application being made by the Planning Authority or the Arbitrator at any time prior to the date on which the Arbitrator draws up the final scheme under clause (xviii) of sub-section (3) of section 72 by such officer as the State Government may appoint for the purpose of deciding who shall be deemed to be owner for the purposes of this Act.

(2) Such decision shall not be subject to appeal but it shall not operate as a bar to a regular suit.

(3) Such decision shall, in the event of a Civil Court passing a decree which is inconsistent therewith, be corrected, modified or rescinded in accordance with such decree as soon as practicable after such decree has been brought to the notice of the Planning Authority either by the Civil Court or by some person affected by such decree.

(4) Where such a decree of the Civil Court is passed, after final scheme has been sanctioned by the State Government under section 86, such final scheme shall be deemed to have been suitably varied by reason of such decree.

 

(B) The Arbitrator and the Tribunal of Appeal

 

  1. Arbitrator; his powers and duties,-

(1) Within one month from the date on which the sanction of the State Government to the draft scheme is published in the Official Gazette, the State Government shall for purposes of one or more planning schemes received by it for sanction appoint any person possessing such qualifications as may be prescribed to be an Arbitrator with sufficient establishment and his duties shall be as hereinafter provided.

(2) The State Government may, if it thinks fit at any time, remove for incompetence or misconduct or replace for any good and sufficient reason an Arbitrator appointed under this section and shall forthwith appoint another person to take his place and any proceeding pending before the Arbitrator immediately before the date of his removal or replacement shall be continued and disposed of by the new Arbitrator appointed in his place.

(3) In accordance with the prescribed procedure, every Arbitrator shall, –

(i) after notice given by him in the prescribed manner define, demarcate and decide the areas allotted to, or reserved for the public purpose or purposes of the Planning Authority, and also the final plots;

(ii) after notice given by him in the prescribed manner, decide the person or persons to whom a final plot is to be allotted; and when such plot is to be allotted to persons in ownership in common, decide the shares of such persons;

(iii) estimate the value of and fix the difference between the values of the original plots and the values of the final plots included in the final scheme, in accordance with the provisions contained in clause (f) of sub-section (1) of section 97;

(iv) estimate the compensation payable for the loss of the area of the original plot in accordance with the provisions contained in clause (f) of sub-section (1) of section 97 in respect of any original plot which is wholly acquired under the scheme;

(v) determine whether the areas allotted or reserved for the public purpose or purposes of the Planning Authority are beneficial wholly or partly to the owners or residents within the area of the scheme;

(vi) estimate the proportion of the sums payable as compensation on each plot used, allotted or reserved for the public purpose or purposes of the Planning Authority which is beneficial partly to the owners or residents within the area of the scheme and partly to the general public, which shall be included in the costs of the scheme;

(vii) determine the proportion of contribution to be levied on each plot used, allotted or reserved for the public purposes or purpose of the Planning Authority which is beneficial partly to the owners or residents within the area of the scheme and partly to the general public;

(viii) determine the amount of exemptions, if any, from the payment of the contribution that may be granted in respect of plots or portions thereof exclusively used or occupied for religious or charitable purposes at the date of which the final scheme is drawn up under clause (xviii) of this sub-section;

(ix) estimate the value of final plots included in the final scheme and the increment to accrue in respect of such plots in accordance with the provisions of section 98;

(x) calculate the proportion in which the increment in respect of the final plots included in the final scheme shall be liable to contribution to the cost of the scheme in accordance with the provisions contained in section 97;

(xi) calculate the contribution to be levied on each final plot included in the final scheme;

(xii) determine the amount to be deducted from or added to, as the case may be, the contribution livable from a person in accordance with the provisions contained in section 100;

(xiii) provide for the total or partial transfer of any right in an original plot to a final plot or provide for the extinction of any right in an original plot in accordance with the provisions contained in section 101;

(xiv) estimate the amount of compensation payable under section 66;

(xv) where a plot is subject to a mortgage with possession or a lease, decide the proportion of compensation payable to or contribution payable by the mortgagee or lessee on one hand and the mortgagor or lessor on the other;

(xvi) estimate in reference to claims made before him, after the notice given by him in the prescribed manner, the compensation to be paid to the owner of any property or right injuriously affected by the making of a town planning scheme in accordance with the provisions contained in section 102;

(xvii) determine the period in which the works provided in the scheme shall be completed by the Planning Authority;

(xviii) draw in the prescribed form the final scheme in accordance with the draft scheme;

Provided that –

(a) he may make variations from the draft scheme;

(b) he may with the previous sanction of the State Government after hearing the Planning Authority and any owners who may raise objections make substantial variations in the draft scheme.

            Explanation:- For the purpose of sub-clause (b) of this proviso, “substantial variation” means increase in the total cost of the draft scheme by more than 20 per cent or two lakhs of rupees whichever is higher, on account of the provisions of new works or the reservation of additional sites for public purposes included in the final scheme drawn up by the Arbitrator.

(4) The Arbitrator shall decide all matters referred to in sub-section (3) within a period of twelve months from the date of his appointment, and in the case of an Arbitrator appointed under the Bombay Town Planning Act, 1915 (Bom. I of 1915), or a Town Planning Officer appointed under the Bombay Town Planning Act, 1954 (Bombay XXVII of 1955) (whose appointment is continued under section 165), within a period of twelve months from the date of commencement of this Act:

Provided that, the State Government may, if it thinks fit, whether the said period has expired or not, and whether all the matters referred to in sub-section (3) have been decided or not, extend from time to time by a notification in the Official Gazette the period for deciding all the matters referred to in that sub-section (3) or any extended period therefor.

 

  1. Certain decisions of Arbitrator to be final,-

Except in matters arising out of clauses (iv) to (xi) both inclusive, and clauses (xiv), (xv) and (xvi) of sub-section (3) of section 72, every decision of the Arbitrator shall be final and conclusive and binding on all parties including the Planning Authority.

 

  1. Appeal,-

(1) Any decision of the Arbitrator under clauses (vi) to (xi) both inclusive and clauses (xiv), (xv) and (xvi) of sub-section (3) of section 72 shall be forthwith communicated to the party concerned including the Planning Authority; and any party aggrieved by such decision may, within two months from the date of communication of the decision, apply to the Arbitrator to make a reference to the Tribunal of Appeal for decision of the appeal.

(2) The provisions of sections 5, 12, and 14 of the Indian Limitation Act, 1963 (36 of 1963), shall apply to appeals submitted under this section.

  1. Constitution of Tribunal of Appeal,-

(1) The Tribunal of Appeal shall consist of a President and two Assessors.

(2) The President shall –

(a) in Greater Bombay, be the Principal Judge of the Bombay City Civil Court or such other Judge of the said Court as may be appointed by the State Government on the recommendation of the Principal Judge; and

(b) elsewhere, be the District Judge or the Civil Judge of the Senior Division as may be appointed by the State Government on the recommendation of the District Judge:

Provided that, the State Government may, if it thinks fit, appoint as President any person who has held the post- (i) in Greater Bombay of a Judge of the High Court or of the Bombay City Civil Court, and (ii) elsewhere of a Judge of the District Court.

(3) The President shall appoint fit and proper persons as Assessors, who shall as far as possible have knowledge, or experience of town planning, valuation of land or civil engineering.

(4) The President and the Assessors shall be appointed members of the Tribunal of Appeal for such period as may be required by such Tribunal to decide an appeal made against the decision under clauses (iv) to (xi) (both inclusive), and clauses (xi), (xv) and (xvi) of the sub-section (3) of Section 72.

(5) The State Government may, if it thinks fit, remove for incompetence or misconduct or any good and sufficient reason any Assessor appointed under sub section (3).

(6) If any Assessor is removed or dies or refuses or neglects to act or becomes incapable of acting, the President shall appoint forthwith a fit and proper person to take the place of such Assessor.

 

  1. Arbitrator to assist Tribunal in advisory capacity and his remuneration,- (1) The Arbitrator shall be present at the proceedings before the Tribunal of Appeal. He shall not be required to give evidence in such proceedings but the President may require him to assist the Tribunal in an advisory capacity.

(2) Where the Arbitrator is required under sub-section (1) to assist the Tribunal of Appeal, he shall, save where he is a salaried officer of Government be entitled to such fees as the State Government may from time to time determine.

 

  1. Place where Tribunal may sit,-

The Tribunal of Appeal may sit either at the headquarters of the President or at any other place within the local limits of his jurisdiction which he may deem convenient for the consideration and decision of any matter before such Tribunal.

  1. Decision of questions to law and other questions.-

All Questions of law and procedure shall be decided by the President   All other questions shall be decided by the President and the two Assessors or by a majority.

 

  1. Power of Tribunal to decide matter finally,-

(1) The Tribunal of Appeal shall, after making such inquiry as it may think fit, decide all matters arising out of, clauses (iv) to (xi) (both inclusive) and clauses (xiv), (xv) and (xvi) only of sub-section (3) of section 72 in respect of appeals referred to the Tribunal; and may either confirm the proposals of the Arbitrator or direct him where necessary to reconsider, vary or modify his proposals only in respect of such matters aforesaid.

(2) Every decision of the Tribunal of Appeal shall be final and conclusive and binding on all persons and parties including the Planning Authorities.

  1. Tribunal not to be Court,-

Nothing contained in this Act shall be deemed to constitute the Tribunal of Appeal to be a Court.

 

  1. Remuneration of Arbitrator and Assessors and payment of incidental expenses of Tribunal,-

(1) The President and the Assessors shall, save where they are salaried Government Officers, be entitled to such remuneration, either by way of monthly salary or by way of fees or partly in one way and partly in the other, as the State Government may, from time to time, decide:

Provided that, in exceptional cases where the scheme is a large one or the work involved is complicated, the State Government may authorise the President and the Assessors, even if they are salaried Government Officers to receive such special salary or remuneration, as the State Government may by order, decide from time to time.

(2) The salary of the President of the Tribunal of Appeal or an Assessor who is a salaried Government Officer, and any remuneration payable under sub-section (1) of this section and fees payable to an Arbitrator under sub-section (2) of section 76 and all expenses incidental to the working of the Tribunal of Appeal shall, unless the State Government otherwise determines, be defrayed out of the funds of the Planning Authority and shall be added to the cost of the scheme.

  1. Decisions of Arbitrator to be final in certain matters,-

(1) Where no appeal has been made under section 74, the decisions of the Arbitrator under clauses (iv) to (xi) and clauses (xiv), (xv) and (xvi) of sub-section (3) of section 72 shall be final and binding on the parties.

(2) The Tribunal of Appeal shall send a copy of its decision in appeal to the Arbitrator who shall then, where necessary, make variation in the scheme in accordance with such decision and may also rectify such errors or omissions, if any, as may have been brought to his notice after publication of the final scheme as drawn up by him under clause (xviii) of sub-section (3) of section 72; and the Arbitrator shall forward such final scheme together with a copy of his decisions under section 72 and a copy of the decision of the Tribunal of Appeal in appeal to the State Government for the sanction of the final scheme.

 

  1. Possession of land in advance of town planning scheme,-

(1) Where a Planning Authority thinks that, in the interest of the public, it is necessary to undertake forthwith any of works included in a draft scheme for a public purpose, the Planning authority shall make an application through the Arbitrator to the State Government to vest in it the land (without any building) shown in the draft scheme.

(2) The State Government may, if satisfied that it is urgently necessary in the public interest to empower the Planning Authority to enter on such land for the purpose of executing any of such works, direct the Arbitrator, by notification in the Official Gazette, to take possession of the land, or may, after recording its reasons refuse to make any such direction:

Provided that, no such direction shall be made without the Arbitrator giving a hearing to any person or Planning Authority affected by such direction, and considering the report of the Arbitrator in that behalf.

(3) The Arbitrator shall then give a notice in the prescribed manner to the person interested in the land the possession of which is to be taken by Arbitrator requiring him to give possession of his land to the Arbitrator or any person authorised by him in this behalf within a period of one month from the date of service of notice and if no possession is delivered within the period specified in the notice, the Arbitrator shall take possession of the land and shall hand over the land to the Planning Authority. Such land shall thereupon, notwithstanding anything contained in this Act, vest absolutely in the Planning Authority free from all encumbrances.

 

  1. Commissioner of Police or Magistrate to enforce delivery of possession of land,-

(1) If the Arbitrator is opposed or impeded in taking possession of the land under section 83, he shall request the Commissioner of Police, or as the case may be, the District Magistrate, to enforce the delivery of possession of the land to the Arbitrator. The Commissioner or the District Magistrate, as the case may be, shall take or cause to be taken such steps and use or cause to be used such force as may be reasonably necessary for securing the delivery of possession of the land to the Arbitrator.

(2) For the avoidance of doubt, it is hereby declared that the power to take steps under sub-section (1) includes the power to enter upon any land or other property whatsoever.

 

  1. Owner of land of which possession is taken entitled to interest,-

(1) Where possession of land is taken by the Arbitrator under section 83 or 84, the person interested in such land shall be entitled to interest at the rate of 4 per cent per annum on the amount of compensation payable to him under the final scheme in respect of the said land from the date on which such possession is taken till the date on which amount of compensation is paid to him by the Planning Authority.

(2) The Planning Authority may, at the request of the person interested pay after consulting the Arbitrator, an advance as provided in sub-section (3) of section 129.

 

  1. Sanction by State Government to final Scheme,-

(1) The State Government may, within a period of four months from the date of receipt of the final scheme under section 82 from the Arbitrator or within such further period as the State Government may extend, by notification in the Official Gazette, sanction the scheme or refuse to give such sanction provided that in sanctioning the scheme the State Government may make such modifications as may in its opinion be necessary, for the purposes of correcting an error, irregularity or informality.

(2) If the State Government sanctions such scheme, it shall state in the notification-

(a) the place at which the final scheme is kept open to inspection by the public and also state therein that copies of the scheme or extracts therefrom certified to be correct shall, on application, be available for sale to the public at a reasonable price;

(b) a date (which shall not be earlier than one month after the date of the publication of the notification) on which all the liabilities created by the scheme shall take effect and the final scheme shall come into force:

Provided that, the State Government may, from time to time, postpone such date, by notification in the Official Gazette, by such period, not exceeding three months at a time as it thinks fit.

(3) On and after the date fixed in such notification, a town planning scheme shall have effect as if it were enacted in this Act.

 

  1. Withdrawal of scheme,-

(1) If at any time before the final scheme is forwarded to the State Government, a representation is made to the Arbitrator by the Planning Authority and a majority of

the owners in the area that the scheme should be withdrawn, the Arbitrator shall after inviting from all persons interested in the scheme objections to such representation, forward such representation together with the objections, if any, to the State Government.

(2) After making such inquiry as it may think fit, the State Government may, by notification in the Official Gazette, direct that the scheme shall be withdrawn; and upon such withdrawal no further proceedings shall be taken in regard to such scheme.

 

  1. Effect of final scheme:-

On and after the day on which a final scheme comes into force –

(a) all lands required by the Planning Authority shall, unless it is otherwise determined in such scheme, vest absolutely in the Planning Authority free from all encumbrances;

(b) all rights in the original plots which have been reconstituted shall determine, and the reconstituted plots shall become subject to the rights settled by Arbitrator;

(c) the Planning Authority shall hand over possession of final plots to the owners to whom they are allotted in the final scheme.

 

(C) Enforcement of Schemes

  1. Power of Planning Authority to evict summarily,-

(1) On and after the day on which a final scheme comes into force, any person continuing to occupy any land which he is not entitled to occupy under the final scheme may, in accordance with the prescribed procedure, be summarily evicted by the Planning Authority or any of its officers authorised in that behalf by that Authority.

(2) If the Planning Authority is opposed or impeded in evicting such person or taking possession of land from such person, the Commissioner of Police, or as the case may be, the District Magistrate shall at the request of the Planning Authority enforce the eviction of such person to ensure delivery of possession of land to the Planning Authority as may be necessary.

 

  1. Power to enforce scheme,-

(1) On and after the day on which a final scheme comes into force, the Planning Authority may, after giving the prescribed notice and in accordance with the provisions of the scheme, –

(a) remove, pull down or alter any building or other works in the area included in the scheme which is such as to contravene the scheme or in the erection of which or carrying out of which, any provision of the scheme has not been complied with;

(b) execute any work which it is the duty of any person to execute under the scheme, in any case where it appears to the Planning Authority that delay in the execution of the work would prejudice the efficient operation of the scheme.

(2) Any expenses incurred by the Planning Authority under this section may be recovered from the person in default or from the owner of the original plot in the manner provided for the recovery of sums due to the Planning Authority under the provisions of this Act.

(3) If any action taken by the Planning Authority is questioned, the matter shall be referred to the State Government or any officer authorised by the State Government in this behalf; and the decision of the State Government or of the officer, as the case may be, shall be final and conclusive and binding on all the persons.

(D) Variation of Schemes

 

  1. Power to vary schemes on ground of error, irregularity or informality,-

(1) If after the final scheme has come into force, the Planning Authority considers that the scheme is defective on account of an error, irregularity or informality or that the scheme needs the variation or modification of a minor nature, the Planning Authority may apply in writing to the State Government for variation of the scheme.

(2) If, on receiving such application or otherwise, the State Government is satisfied that the variation required is not substantial, the State Government shall, by notification in the Official Gazette, authorise or direct the Planning Authority to prepare a draft of such variation and publish a notice in the Official Gazette, and in such other manner as may be prescribed stating that a draft variation has been prepared.

(3) The notice of preparation of a draft variation published under sub-section (2) shall state every amendment proposed to be made in the scheme, and if any such amendment relates to a matter specified in any of the sub-clauses (i) to (ii) of clause (b) of section 59, the draft variation shall also contain such other particulars as may be prescribed.

(4) The draft variation shall be open to the inspection of the public at the office of the Planning Authority during office hours and copies of such draft variation or any, extract therefrom certified to be correct shall be available for sale to the public at a reasonable price.

(5) Not later than one month of the date of the publication of the notice regarding

preparation of draft variation, any person affected thereby may communicate in writing his objections to such variation to the State Government, and send a copy thereof to the Planning Authority.

(6) After receiving the objections under sub-section (5), the State Government may, after consulting the Planning Authority and after making such inquiry as it may think fit, by notification in the Official Gazette,-

(a) appoint an Arbitrator, and thereupon the provisions of this Chapter shall so far as may be, apply to such draft variation, as if it were a draft scheme submitted to the State Government for sanction;

(b) sanction the variation with or without modifications; or

(c) refuse to sanction the variation.

(7) From the date of the notification sanctioning the variation, with or without modifications, such variation shall take effect as if it were incorporated in the scheme.

 

  1. Power to vary town planning scheme,-

Notwithstanding anything contained in section 86, a town planning scheme may at any time be varied by a subsequent scheme made, published by means of notice and sanctioned in accordance with this Act:

Provided that, when a scheme is so varied, the provisions of this Chapter shall so far as may be applicable, apply to such variation and making of subsequent scheme and the date of the declaration of intention, of the Planning Authority to vary the scheme shall, for the purposes of sections 69, 70, 97, 98 and 100, be deemed to be the date of declaration of intention to make a scheme referred to in those sections.

 

  1. Apportionment of cost of scheme withdrawn or not sanctioned,-

In the event of a town planning scheme being withdrawn or sanction to a final scheme being refused by the State Government, the State Government may direct that the costs of the scheme shall be borne by the Planning Authority or be paid to the Planning Authority by the owners concerned, in such proportion as the State Government may in each case determine.

 

(E) Proceedings before Arbitrator and Tribunal

 

  1. Right to appear by recognised agent,-

Every party to any proceeding before an Arbitrator or the Tribunal of Appeal shall be entitled to appear either in person or by his agent authorized in writing in that behalf.

 

  1. Power to compel attendance of witnesses,-

For the purpose of this Act, an officer appointed under sub-section (1) of section 71 or an Arbitrator or the Tribunal of Appeal may summon and enforce the attendance of witnesses including the parties interested or any of them and compel them to give evidence and compel the production of documents by the same means and as far as possible, in the same manner as is provided in the case of a Civil Court by the Code of Civil Procedure, 1908 (V of 1908).

 

(F) Joint Development Plans and Joint Town Planning Schemes

 

  1. Joint development plans and joint town planning schemes,-

(1) When the State Government or two or more Planning Authorities are of opinion that the interest of contiguous area within the jurisdiction of such Planning Authorities can best be served by the making of a joint development plan or a joint town planning scheme, the State Government shall after necessary enquiry constitute a Special Planning Authority as provided in section 40.

(2) Such Special Planning Authority, when duly constituted, shall make a declaration of the intention to make a joint development plan or a joint planning scheme in respect of the contiguous areas in the manner provided in section 23 or section 60, as the case may be, and thereafter, the Special Planning Authority shall have all the powers and be liable to all the duties of a Planning Authority under this Act and all the foregoing provisions of this Act in respect of the procedure to be followed in preparing, publishing and submitting a development plan, or as the case may be, a town planning scheme for sanction of the State Government shall apply so far as may be applicable.

(3) The joint development plan or the joint planning scheme shall specify the parts of the joint development plan or the joint town planning scheme to be executed by the several Planning Authorities in the several contiguous areas, and the several parts of the joint development plan or joint town planning scheme shall, when the joint development plan or the joint town planning scheme is sanctioned, by the State Government under section 31 or 86, as the case may be, have effect in the several contiguous areas as if they are separate development plans of town planning schemes:

Provided that, a joint development plan, or a joint town planning scheme may be executed partly or wholly by the two or more Planning Authorities concerned jointly as they may decide in this behalf.

 

(G) Finance of Schemes

 

  1. Cost of scheme,-

(1) The cost of a town planning scheme shall include,-

(a) all sums payable by a Planning Authority under the provisions of this Act

which are not specifically excluded from the costs of the scheme;

(b) all sums spent or estimated to be spent by a Planning Authority in the

making and in the execution of the scheme, the estimates for works

included in the scheme being made on the date the final scheme is drawn

up by the Arbitrator under clause (xviii) of sub-section (3) of section 72;

(c) all sums payable as compensation for land reserved or allotted for any

public purpose or purpose of a Planning Authority which is solely beneficial

to the owners or residents within the area of the scheme;

(d) such portion of the sums payable as compensation for and reserved or

allotted for any public purpose of the Planning Authority which is beneficial

party to the owners or residents within the area of the scheme and partly to

the general public, as is attributable to the benefit accruing to the owners or

residents within the area of the scheme from such reservation or allotment;

(e) all legal expenses incurred by the Planning Authority in the making and

in the execution of the scheme;

(f) the amount by which the total of the values of the original plots exceeds

the total of the values of the plots included in the final scheme, each of such plots being estimated at its market value at the date of declaration of intention to make a scheme, with all the buildings and works thereon at that date and without reference to improvements contemplated in the scheme other than improvements due to the alteration of its boundaries.

(2) If in any case the total of the values of the plots included in the final scheme exceeds the total of the value of the original plots, each of such plots being estimated in the manner provided in clauses (f) of sub-section (1), then the amount of such excess shall be deducted in arriving at the costs of the scheme as defined in sub-section (1).

 

  1. Calculation of increment,-

For the purposes of this Act, the increment shall be deemed to be the amount by which at the date of the declaration of intention to make a scheme, the market value of any plot with reference to the improvements contemplated in the scheme on the assumption that the scheme has been completed, would exceed on the same date the market value of the same plot estimated without reference to such improvements;

Provided that, estimating such values, the value of buildings or other works erected or in the course of erection on such plot shall not be taken into consideration.

 

  1. Contribution towards cost of scheme,-

(1) The cost of the scheme shall be met wholly or in part by a contribution to be levied by the Planning Authority on each final plot included in the final scheme calculated in proportion to the increment which is estimated to accrue in respect of such plot by the Arbitrator:

Provided that-

(i) no such contribution shall exceed half the increment estimated by the Arbitrator to accrue in respect of such final plot, subject to the condition that where the total cost of a scheme exceeded half the total amount of increments, the proportion of such contribution shall not be less than half the increment;

(ii) no such contribution shall be levied on a plot used, allotted or reserved, for public purposes or purpose of the Planning Authority, such plot being solely for the benefit of the owners or resident within the area of the scheme;

(iii) the contribution levied on a plot used, allotted or reserved for a public purpose or purpose of the Planning Authority which is beneficial partly to the owners or residents within the area of the scheme and partly to the general public shall be calculated in the proportion to the benefit estimated to accrue to the general public from such use, allotment or reservation.

(2) The owner of each final plot included in a final scheme shall be primarily liable for the payment of the contribution leviable in respect of such plot.

 

  1. Certain amount to be added to or deducted from contribution leviable from person,-

The amount by which the total value of final plots included in a final scheme with all the buildings and works thereon allotted to the person falls short of or exceeds the total value of the original plots with all the buildings and works thereon of such person shall be deducted from or added to, as the case may be, the contribution leviable from such person, each of such plots being estimated at its market value at the date of the declaration of intention to make a scheme and without reference to improvements contemplated in the scheme other than improvements due to the

alteration of its boundaries.

 

  1. Transfer of right from original to reconstituted plot or extinction of such right,-

Any right in an original plot which in the opinion of the Arbitrator is capable of being transferred wholly or in part, without prejudice to the making of a town planning scheme to a final plot shall be so transferred and any right in an original plot which in the opinion of the Arbitrator is not capable of being so transferred shall be extinguished:

Provided that, an agricultural lease shall not be transferred from an original plot to a final plot without the consent of all the parties to such lease.

 

(H) Compensation

 

  1. Compensation in respect of property or right injuriously affected by scheme,-

The owner of any property or right which is injuriously affected by the making of a town planning scheme shall, subject to provisions of section 101, if he makes a claim before the Arbitrator within sixty days of the receipt of the notice from the Arbitrator, be entitled to obtain compensation in respect thereof from the Planning Authority or from any person benefited or partly from the Planning Authority and partly from such person, as the Arbitrator may in each case determine.

  1. Exclusion or limitation of compensation in certain cases,-

(1) No compensation shall be payable in respect of any property or private right of any sort which is alleged to be injuriously affected by reason of any provisions contained in the town planning scheme, if under any other law for the time being in force applicable to the area for which such scheme is made, no compensation is payable for such injurious affection.

(2) Property or private right of any sort shall not be deemed to be injuriously affected by reason of any provision inserted in a town planning scheme which with a view to securing the amenity of the area included in such scheme or any part thereof, impose any conditions and restrictions in regard to any of the matters specified in clause (b) of section 64.

 

  1. Provision of cases in which amount payable to owner exceeds amount due from him,-

If the owner of an original plot is not provided with a final plot in the final scheme or if the contribution to be levied from him under section 100 is less than the total amount to be deducted therefrom under any of the provisions of this Act, the net amount of his loss shall be payable to him by the Planning Authority in cash or in such other way as may be agreed upon by the parties.

 

  1. Provision for case in which value of developed plot is less than amount payable by owner,-

(1) If from any cause the total amount which would be due to a Planning Authority under the provisions of this Act from the owner of a final plot to be included in the final scheme exceeds the value of such plot estimated on the assumption that the scheme has been completed, the Arbitrator shall, at the request of the Planning Authority, direct the owner of such plot to make payment to the Planning Authority of the amount of such excess.

(2) If such owner fails to make such payment within the prescribed period, the Arbitrator shall, if the Planning Authority so requests acquire the original plot of such defaulter and apportion the compensation among the owner and other persons interested in the plot on payment by the Planning Authority of the value of such plot estimated as its market value at the date of the declaration of intention to make a scheme and without reference to improvements contemplated in the scheme; and thereupon, the plot included in the final scheme shall vest absolutely in the Planning Authority free from all encumbrances, but subject to the provisions of this Act:

Provided that, the payment made by the Planning Authority on account of the value of the original plot shall not be included in the costs of the scheme.

 

  1. Payment by adjustment of account,-

All payments due to be made to any person by a Planning Authority under this Act shall, as far as possible, be made by an adjustment in such person’s account with the Planning Authority in respect of the final plot concerned or of any other plot in which he has an interest, and failing such adjustment shall be paid in cash or in such other way as may be agreed upon by the parties.

 

  1. Payment of net amount due to Planning Authority,-

(1) The net amount payable under the provisions of this Act by the owner of a final plot included in a final scheme may at the option of the contributor be paid in one sum or annual instalments not exceeding ten. If the owner elects to pay the amount by instalments, interest at 6 per cent per annum shall be charged on the net amount payable. If the owner of a plot fails to elect the option on or before the date specified in a notice issued to him in that behalf by the Planning Authority, he shall be deemed to have elected the option of paying contribution by instalments and the interest on the contribution shall be calculated from the date specified in the notice, being the date before which he was required to make election as aforesaid:

Provided that, where an owner elects to pay the amount in one sum but fails to do so, interest at 6 per cent per annum shall be payable by him to the Planning Authority from the date specified in the notice to the date of payment.

(2) Where two or more final plots included in a final scheme are in the same ownership, the net amount payable by such owner under the provisions of this Act shall be distributed over his several final plots in proportion to the increment which is estimated to accrue in respect of each final plots unless the owner and the Planning Authority agree to a different method of distribution.

 

(I) Miscellaneous

 

  1. Power of Planning Authority to make agreement,-

(1) A Planning Authority shall be competent to make any agreement with any person in respect of any matter which is provided for in a town planning scheme subject to the power of the State Government to modify or disallow such agreement and unless it is otherwise expressly provided therein, such agreement shall take effect on and after the day on which the town planning scheme comes into force.

(2) Such agreement shall not in any way affect the duties of the Arbitrator as stated in section 72 or the rights of third parties, but it shall be binding on the parties to the agreement, notwithstanding any decision that may be passed by the Arbitrator:

Provided that, if any agreement contains any provisions which are inconsistent with the final scheme as drawn up by the Arbitrator under section 72 or the final scheme as sanctioned by the State Government under section 86 such an agreement shall be void:

Provided further that, if the agreement is modified by the State Government either party shall have the option of avoiding it if it so elects.

 

 

  1. Recovery of arrears,-

(1) Any sum due to a Planning Authority under this Act, rule or any regulation made thereunder shall be a first charge or the plot on which it is due, subject to the prior payment of land revenue if any, due to the Government thereon.

(2) Any sum due to the Planning Authority under this Act, rule or any regulation made thereunder which is not paid on demand on the day on which it becomes due or on the day fixed by the Planning Authority, shall be recoverable by the Planning Authority from the defaulter as if they were arrears of land revenue.

(3) If any question arises whether a sum is due to the Planning Authority within the

meaning of sub-section (2), it shall be referred to a tribunal constituted by the State Government consisting of one or more persons not connected with the Planning Authority or any authority subordinate to it or with the person by whom the sum is alleged to be payable which the tribunal shall, after making such inquiry as it may deem fit and after giving to the person by whom the sum is alleged to be payable, an opportunity of being heard, decide the question; and the decision of

the tribunal thereon shall be final and shall not be called in question in any court or before any authority.

(4) The procedure to be followed by the tribunal in deciding questions referred to it under sub-section (2) shall be such as may be prescribed by the State Government.

 

  1. Disposal of surplus amount,-

Where after completing and meeting all the costs of a scheme as provided in this Act, any amount from the sums paid to the Planning Authority under this Act, remains as surplus, the Planning Authority shall, in consultation with the owners of the plots, spend such surplus amount for providing further amenities within the area of the scheme.

 

  1. Execution of works in final scheme by Planning Authority,-

(1) A Planning Authority shall complete all the works provided in a final scheme within the period prescribed in final scheme by the Arbitrator under clause (xvii) of sub-section (3) of section 72:

Provided that, in exceptional circumstances on application by the Planning Authority, the State Government may by an order in writing specifying those circumstances grant to the Planning Authority in this behalf further extension of time as it may think fit.

(2) If the Planning Authority fails to complete the work within the prescribed period or within the period extended under sub-section (1), the State Government may, notwithstanding anything contained in sub-section (1), require the Planning Authority to complete the works within a further period as it may consider reasonable or appoint an officer to complete such works at the cost of the Planning Authority in the manner provided by sub-section (2) of section 162 of this Act.

 

  1. Penalty for removal of boundary stones,-

Whoever wilfully destroys or injures or without lawful authority removes, a boundary stone or mark lawfully fixed or constructed, the Collector, on receipt of the intimation from the Arbitrator or the Planning Authority, may order such person to pay a fine, not exceeding twenty rupees for each stone or mark so destroyed, injured or removed as it may in his opinion be necessary to defray the expenses of restoring the same.

 

 

Chapter VI

New Towns

 

  1. Designation of site for new town,-

(1) If the State Government is satisfied that it is expedient in the public interest that any area should be developed as a site for a new town as reserved or designated in any draft or final Regional Plan it may, by notification in the Official Gazette, designate that area as the site for the proposed new town. The new town shall be known by the name specified in the notification.

(2) After publication of the notification under sub-section (1) for the purpose of acquiring, developing and disposing of land in the area of a new town, the State Government shall by another notification in the Official Gazette constitute a New Town Development Authority. The New Town Development Authority shall consist of a Chairman, a Vice-Chairman, two members representing the local authorities functioning in the Region and such numbers of other members not exceeding seven as in the opinion of State Government have special knowledge or practical experience in matters relating to town and country planning, an officer to be called the Town Planning Officer and Chief Executive Officer. The Chairman and the Vice-Chairman and all other members shall be appointed by the State Government.

(3) The Chief Executive Officer shall be the Secretary of the Development Authority constituted under sub-section (2).

(3A) Having regard to the complexity and magnitude of the work involved in developing any area as a site for the new town, the time required for setting up new machinery for undertaking and completing such work of development, and the comparative speed with which such work can be undertaken and completed in the public interest, if the work is done through the agency of a corporation including a company owned or controlled by the State as a new town, the State Government may, notwithstanding anything contained in sub-section (2), require the work of

developing and disposing of land in the area of a new town to be done by any such corporation, company or subsidiary company aforesaid, as an agent of the State Government; and thereupon, such corporation or company shall, in relation to such area, be declared by the State Government, by notification in the Official Gazette, to be the New Town Development Authority for that area.

(4) Every Development Authority shall be a body corporate with perpetual succession and a common seal with power to acquire, hold and dispose of property, both movable and immovable, and contract and sue or be sued by such name as may be specified in the notification under sub-section (2).

(5) On the constitution of, or on the declaration of any corporation or company as a

Development Authority for any new town, the local authority or authorities functioning, within the area designated under this Act as a site for the new town, immediately before such constitution or declaration shall cease to exercise the powers and perform the functions and duties which the said Development Authority is competent to exercise and perform under this Act.

(6) The provisions of sections 5, 6, 7, 8, 9, 10 and 11 shall apply mutatis mutandis to a Development Authority constituted under sub-section (2) as they apply in relation to a Regional Board.

(7) The Development Authority shall have its office at such place as the State Government may appoint in this behalf.

(8) A Development Authority shall have all the powers and shall carry out all the duties of a Planning Authority under this Act including all powers and duties under Chapters III and IV and also under other provisions of this Act as may be relevant for carrying out of its objects and all the provisions in respect of procedure under this Act shall apply so far as may be necessary in this behalf.

 

113A. Power of State Government to acquire land for Corporation or Company declared to be New Town Development Authority,- 

Notwithstanding anything contained in this Act, or in any law for the time being in force, where any corporation or company is declared to be the New Town Development Authority under sub-section (3A) of section 113, the State Government shall acquire either by agreement or under the Land Acquisition Act, 1894 (I of 1894) (and such acquisition may have been commenced before the coming into force of this section) any land within the area designed under this Act, as the site of the new town, any land adjacent to that area which is required for the purposes connected with the development of the new town, and any land whether adjacent to that area or not, which is required for the provisions of services or amenities for the purposes of the new town; and vest such land in such Authority for the purposes of this Chapter by an order duly made in that behalf.

 

  1. Objects of Development Authority,-

(1) The objects of a Development Authority shall be to secure the laying out and development of the new town in accordance with proposals approved in that behalf under the provisions of this Act, and for that purpose every such Authority shall subject to the provisions of Section 113A have power to acquire, hold, manage and dispose of land and other property, to carry out building and other operations, to provide water, electricity, gas, sewerage and other services, amenities and facilities and generally to do anything necessary or expedient for the purpose of the new town or for purposes incidental thereto.

(2) Without prejudice to any provision of this Act requiring the consent of the State

Government to be obtained for anything to be done by a Development Authority, the State Government may give directions to any such Development Authority for restricting the exercise by it of any of its powers under this Act, or for requiring it to exercise those powers in any manner specified in the directions:

Provided that-

(a) before giving any such directions the State Government (shall consult with the Chairman, or if the Chairman is not available, with the Vice-Chairman, of the Development Authority constituted under sub section (2) of section 113, or as the case may be, with the officer or officers of the Development Authority declared under sub-section (3A) of that section who is or are duly authorised by such Authority unless the State Government is satisfied that, on account of urgency, such consultation is impracticable; and

(b) any transaction between any person and any such Development Authority acting in the purported exercise of their powers, under this Act shall not be void by reason only that it was carried out in contravention of such directions, unless that person had actual notice of the directions.

(3) For the avoidance of doubt, it is hereby declared that the provision of sub- section (1) with respect to the powers of Development Authorities relate only to their capacity as statutory corporation; and nothing in this section shall be construed as authorising the disregard by a Development Authority of any enactment or rule of law.

 

  1. Planning and control of development in new towns,-

Without prejudice to the provisions of sub-section (8) of section 113, the Development Authority shall from time to time submit to the State Government in accordance with any directions that may be given by the State Government in that behalf its proposals for the development of land within the area designated under this Act as the site of the new town, and the State Government, after consultation with the Director of Town Planning, may approve any such proposals either with or without modification.

 

  1. Acquisition of land by Development Authority constituted under section 113(2),-

A Development Authority constituted under sub-section (2) of section 113 shall have all the powers of a Planning Authority under this Act as provided in Chapter VII for the purpose of acquisition either by agreement or under the Land Acquisition Act, 1894 (I of 1894) of-

(a) any land within the area designated under this Act as the site of the new town;

(b) any land adjacent to that area which is required for purposes connected with the development of the new town; and

(c) any land whether adjacent to that area or not which is required for provision of services of amenities for the purposes of the new town.

 

  1. Obligation to purchase designated land,-

Where any land within the area designated by a notification under section 113 of this Act as the site of the new towns has not been acquired by the State Government or a Development Authority constituted under sub-section (2) of section 113 within a period of ten years from the date of the notification, any owner of the land may by notice in writing served on the State Government or the Development Authority require it to acquire his interest therein; and thereupon, the provisions of section 127 providing for lapsing of reservations shall apply in relation to such land as they apply in relation to land reserved under any plan under this Act.

 

  1. Disposal of land by Development Authority,-

(1) Subject to any directions given by the State Government under this Act, a Development Authority may dispose of any land acquired by it or vesting in it to such persons, in such manner, and subject to such terms and conditions as

they consider expedient for securing the development of the new town in accordance with proposals approved by the State Government under this Act:

Provided that, a Development Authority shall not have power, except with the consent of the State Government, to sell any land or to grant a lease of any land for a term of more than ninety-nine years, and the State Government shall not consent to any such disposal of land unless it is satisfied that there are exceptional circumstances which render the disposal of the land in that manner expedient.

(2) The powers of a Development Authority with respect to the disposal of land acquired for it for the purposes of this Act shall be so exercised as to secure, so far as practicable, that persons who were living or carrying on business, or other activities on land so acquired shall, if they desire to obtain a plot or accommodation on land belonging to, or vesting in the Development Authority and are willing to comply with any requirements of the Development Authority as to its development and use, have an opportunity to obtain a plot or accommodation suitable to their reasonable requirements on terms settled with due regard to the price at which any such land has been acquired from them.

(3) Nothing in this Act shall be constructed as enabling a Development Authority to dispose of land by way of gift, mortgage or charge, but subject as aforesaid, references in this Act to the disposal of land shall be construed as reference to the disposal thereof in any manner, whether by way of sale, exchange or lease by the creation of any easement, right or privilege or otherwise.

 

  1. Directions by State Government for disposal of land,-

The State Government may give to any Development Authority such directions with respect to the disposal of land acquired by the Authority or vested in it under this Act and with respect to the development by that Authority of such land, as appear to the State Government to be necessary or expedient for securing so far as practicable, the preservation of any features or objects of special architectural or historic interest.

 

  1. Power to make agreement for provision of service,-

A Development Authority may make any agreement or enter into any contract with any local authority, Planning Authority or statutory body in order to secure the provision of services, such as water supply, drainage, including sewerage, electricity, gas within the area of the new town, subject to the power of the State Government to modify or disallow such agreement or contract.

 

  1. Contributions by Development Authority towards expenditure of local authorities and statutory authority,-

Without prejudice to the generality of the powers conferred on a Development Authority under this Chapter, any Development Authority may, with the consent of

the State Government contribute such sums as the State Government may determine towards expenditure incurred or to be incurred by any local authority, Planning Authority or statutory body in the performance, in relation to the new town, of any of their statutory functions, including expenditure so incurred in the acquisition of land.

 

  1. Advances and payments by State Government to Development Authorities,-

(1) For the purpose of enabling a Development Authority constituted under sub-section (2) of section 113 to defray expenditure properly chargeable to capital account including the provisions of working capital, the State Government may after due appropriation made by the State Legislature by law in this behalf make advances to the Development Authority repayable over such periods and on such terms as may be approved by the State Government.

(2) For the purpose of enabling such Development Authority to defray any other

expenditure, the State Government may, after due appropriation made by the State Legislature by law in this behalf, make grants to the Development Authority of such amounts it may decide in this behalf.

(3) All sums received by the State Government by way of interest on an advance made to a Development Authority under sub-section (1) and all sums received by way of repayment of the principal of such an advance shall be paid into the Consolidated Fund of the State; and the State Government shall lay before each House of the Legislature of the State a statement of any sums due from a Development Authority by way of interest on or repayment of any such advances which are not duly paid to the State Government in accordance with the terms approved under sub-section (1).

(4) It shall be a condition of the making of advances to a Development Authority under this section that the plans or proposals for development submitted to the State Government under this Act shall be approved by the State Government as being likely to secure for the Development Authority an overall return which is reasonable, having regard to all the circumstances, when compared with the cost of carrying out those proposals.

(5) The provisions of Chapter VIII in regard to budget, accounts and audit shall except as provided in that Chapter apply to every Development Authority.

(6) Every Development Authority shall provide the State Government with such information relating to the undertaking of the Authority as the State Government may from time to time require, and for that purpose shall permit any person authorised by the State Government in that behalf to inspect and make copies of the accounts, books, documents or papers of the Development Authority and shall afford such explanation thereof as that person or the State Government may reasonably require.

 

122A. Power of Development Authority to borrow and to accept deposits,-

(1) Without prejudice to the provisions of section 122, a Development Authority constituted under sub-section (2) of section 113 may,-

(a) subject to such conditions as may be determined in this behalf by the Government, borrow money in the open market or otherwise with a view to provide itself with adequate resources;

(b) accept deposits on such conditions as it deems fit from persons to whom allotment or sale of land or building or any structure is made, or is likely to be made, in furtherance of the objects of this Chapter.

(2) All moneys borrowed under sub-section (1) may be guaranteed by the State Government as to the repayment of principal and interest at such rates and on such conditions as the State Government may determine at the time the moneys are borrowed.

  1. Transfer of undertaking of Development authority,-

(1) Without, prejudice to the power of a Development Authority under this Act to dispose of any of their property, a Development Authority may by an agreement made with any local authority or Planning Authority and approved by the State Government transfer to that local authority or Planning Authority any part of the property of the Development Authority upon such terms as may be prescribed by the agreement:

Provided that, before approving such agreement, the State Government shall publish in the Official Gazette and in one or more local newspapers a notice stating that the agreement has been submitted for approval, and describing the general effect of the agreement.

(2) If the State Government is satisfied that it is expedient, having regard to any agreement made or proposed to be made under sub-section (1) that the liability of the Development Authority in respect of advances made to it under this Act should be reduced, the State Government may, by an order reduce that liability to such extent as may be specified in the order.

(3) The payment of any sums payable by a local authority or Planning Authority for the purpose of an agreement under this section shall be a purpose, for which that authority may, notwithstanding anything in any law constituting such authority, borrow money.

 

  1. Combination and transfer of Development Authority,-

(1) If it appears to the State Government, in the case of any area designated under this Act as the site of a new town, that there are exceptional circumstances which render it expedient that the functions of a Development Authority under this Act should be performed by the Development Authority established for the purpose of any other new town, instead of by a separate Development Authority by order, direct that the said functions shall be performed by the Development Authority established for the said other new town.

(2) If it appears to the State Government that there are exceptional circumstances which render it expedient that the functions of a Development Authority established for the purposes of a new town should be transferred to the Development Authority established for the purposes of any other new town, or to a new Development Authority to be established for the purposes of the first mentioned new town it may by order provide for the dissolution of the first mentioned Development Authority and for the transfer of its functions, property, rights and liabilities to the Development Authority established for the purposes of the said other new town or, as the case may be, to a new Development Authority established for the purposes of the first mentioned new town by the order.

(3) Without prejudice to the provisions of this Act with respect to the variation of orders made thereunder, an order under this section, providing for the exercise of functions in relation to purposes of another new town, or for the transfer of such functions to such a Development Authority, may modify the name and constitution of that Development Authority in such a manner as appears to the State Government to be expedient, and for the purposes of this Act that Development Authority shall be deemed to have been established for the purposes of each of those new towns.

(4) Before making an order under this section providing for the transfer of functions from or to a Development Authority or for of any functions to such a Development Authority, the State Government shall consult with that Development Authority.

 

 

 

 

Chapter VI-A

Levy, Assessment and Recovery of Development Charge

 

124A. Levy of Development Charge,- 

(1) Subject to the provisions of this Act, the Planning Authority or the Development Authority (hereinafter in this Chapter collectively referred to as “the Authority”), shall levy within the area of its jurisdiction development charge on the institution of use or change of use of any land or building, or development of any land or building, for which permission is required under this Act, at the rates specified by or under provisions of this Chapter:

Provided that, where land appurtenant to a building is used for any purpose independent of the building, development charge may be levied separately for the building and the land.

(2) The development charge shall be leviable on any person who institutes or changes the use of any land or undertakes or carries out any development:

Provided that,-

(i) no such development charge shall be leviable under the provisions of this Chapter in respect of use or change of use of any land or building, or development of any land or building or both, for which a development permission has had already been granted or deemed to have been, granted by the Planning Authority or the Development Authority either by way of commencement certificate or by way of any other mode of permission for development granted under this Act or any other law for the time being in force or by way of approval subject to condition in the form of a written notice (Intimation of Disapproval) by the Commissioner under section 346 of the Bombay Municipal Corporation Act (Bom. III of 1888), before the 10th day of August 1992, being the date of commencement of the Maharashtra Regional and Town Planning (Amendment) Act, 1992 (Mah, XVI of 1992) (hereinafter in this section referred to as “the said date”), irrespective of whether or not the institution of use or change of use or actual development work of land or building or both, has been effected or commenced or completed,

as the case may be, and whether or not the completion certificate for any such use, change of use or development is granted by the Planning Authority or Development Authority, before the said date:

(ii) whether the development permission for land development, including permission for sub-division of a land, land development or land reclamation, not involving any building or construction operations has had already been granted by the Planning Authority or the Development Authority before the said date, no development charge in respect of such land shall be leviable for the land development activities, irrespective of whether or not development of such land (not involving any building or construction operations) has actually been commenced or completed before the said date. However, if at a later date, a permission for construction operation is granted, the development charge in respect of such land shall be leviable only for the building or construction activities:

Provided further that, nothing in this Chapter shall apply to demolition of any existing building, structure or erection, or part of such building, structure or erection.

 

124B. Classification of user of lands and buildings, rates of development charge and procedure for levy thereof:-

(1)(a) For the purposes of assessing the development charge, the user of land and building shall be classified under the following categories, namely:-

(i) Industrial;

(ii) Commercial;

(iii) Residential;

(iv) Institutional.

(b) In classifying the user of land and building under any of the categories mentioned in clause (a), the predominant purpose for which such land and building is used shall be the basis for such classification.

(2) On and from the date of commencement of the Maharashtra Regional and Town Planning (Amendment) Act, 2010 (Mah. XXXIV of 2010), development charge shall be levied and collected by the Authority at the rates specified in column 4 of the Second Schedule; and the Authority may, subject to the other provisions of this Chapter, enhance, from time to time, the rate specified in column (4) of the Second Schedule and levy the development charge at such enhanced rate:

Provided that, the Authority may, subject to the other provisions of this Chapter, reduce, from time to time, the enhanced rate and levy development charge at such reduced rate, so however that in no case the rate shall be reduced below the minimum rate specified in column 4 of the Second Schedule.

(2A) Notwithstanding anything contained in sub-section (1), when the Maharashtra

Industrial Development Corporation is the Special Planning Authority deemed to have been appointed as such under sub-section (1A) of section 40, for a notified area under its jurisdiction as provided in the said sub-section (1A), it shall be lawful for such Planning Authority to levy within such notified area, the development charges at such rate which may be lower than the rates specified by or under the provisions of this Chapter, as it may fix, from time to time.

(3) The Authority, before enhancing or reducing the rate and levying the development charge at such rate shall observe the following preliminary procedure, namely: –

(a) the Authority shall, by a resolution passed at a special meeting, approve the regulations prescribing the rates of the development charge proposed to be levied by it;

(b) when such a resolution is passed, the Authority shall take further action to obtain the previous sanction of the State Government to the regulations.

124C. Development charge to be brought into force as specified by Government,-

After the regulations in respect of development charge as sanctioned by the State Government under section 124B, such development charge shall be brought into force on or after the date to be specified by the State Government in its sanction.

 

124D. Local publication of notification relating to development charge with notice,-

(1) The regulations referred to in sections 124B and 124C, as sanctioned and published in the Official Gazette, shall be displayed by the Authority on notice board in its office. The Authority shall also publish a notice in a local newspaper, informing the inhabitants of the area within its jurisdiction, of the subject matter of the regulations so displayed and the date on which they shall come into force.

(2) When the rates at which the development charge is leviable are enhanced or reduced under sub-section (2) of section 124B, it shall not be necessary to give any separate notice thereof to the owners or occupiers of the lands or buildings affected thereby.

 

124E. Assessment and recovery of development charge,-  

(1) Any person who, after the commencement of the Maharashtra Regional and Town Planning (Amendment) Act, 1992 (Mah. 16 of 1992), intends to carry out any development or institute or change any use of any land or building for which permission is required under this Act, whether he has applied for such permission or not, or who has commenced carrying out any such development or has carried out such development or instituted or changed any such use, shall apply to the Authority within such time and in such manner as may be prescribed, for the assessment of development charge payable in respect thereof.

(2) The Authority shall, on such application being made or if no such application is made, by a person instituting or changing any use of any land or building, then after serving a notice in writing on the person liable to such payment and after calling for a report in this behalf from the concerned officer of the Authority, after taking into consideration the report aforesaid, determine whether or not and if so, what development charge is leviable in respect of that development or, institution of use or change of use, and after giving the person concerned an opportunity to be heard, shall then assess the amount of development charge payable by such person and give to such person a notice in writing of such assessment:

Provided that,-

(a) where permission under this Act has not been granted for carrying out the said development, the Authority may postpone the assessment of the development charge;

(b) where the application relates to the carrying out of any development, the Authority may refuse to assess the amount of development charge payable by such person concerned unless it is satisfied that the applicant has an interest in the land or building sufficient to enable him to carry out such development or that the applicant is able to acquire such interest and that the applicant shall carry out the development within such period as the Authority may determine.

(3) The amount of Development charge as shown in the notice of assessment shall be paid within thirty days of the date of receipt thereof by such person and where the amount has not been so paid or has been partly paid an interest at the rate of eighteen per cent per annum upon any amount outstanding shall be payable from the date immediately following the date on which the period of thirty days as aforesaid expires till the date of payment of such amount.

(4) The Authority shall, in regard to the area lying within its jurisdiction, collect all

development charges due under this Act in respect of any development in that area.

(5)(a) The development charge together with interest, if any, payable in respect of any land or building shall, subject to the provisions of sub-section (6), be the first charge on such land or building, subject to the prior payment of land revenue, if any, due to the Government thereon.

(b) The development charge payable in respect of any land or building by any person shall, together with interest due upto the date of realisation, be recoverable from such person or his successor-in interest in such land or building, as arrear of land revenue.

(6) Notwithstanding anything contained in sub-section (5), where a promoter as defined in clause (c) of section 2 of the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963 (Man. XLV of 1963), intends to carry out any development or institute or change any use of any land or building, the liability to pay the development charge in respect of any such land or building and interest, if any, shall be that of such promoter; and any amount of such development charge and interest remaining outstanding shall, without prejudice to any other mode of recovery there of available against such promoter, be the first charge on any other property which he owns or in which he has a right, title or interest (in which case such charge shall be limited to the extent of his such right title or interest), subject to the prior payment of land revenue, if any, due to Government thereon.

 

124F. Exemptions,-

(1) No development charge shall, be levied on institution of use or of change of use, or development of, any land or building vested in or under the control or possession of the Central or State Government or of any local authority.

(2) Subject to such conditions as it may impose, the State Government may, by notification in the Official Gazette, exempt partially from the payment of development charge payable on the development of any land or building by any educational institution, medical institution or charitable institution.

(3) Notwithstanding anything contained in sub-sections (1) and (2), the State Government may, by notification in the Official Gazette and subject to such terms and conditions as may be specified therein, exempt partially a Special Township Project undertaken by a private developer under the Special Development Control Regulations made under the provisions of this Act, from payment of the development charges.

 

124G. Appeal,-   

(1) Any person aggrieved by an order passed by the Authority under section 124E may prefer an appeal to the State Government or to such an officer as may be appointed by the State Government in this behalf, being an officer not below the rank of Deputy Secretary to Government; and such appeal shall be made in such manner and accompanied by such fees, as may be prescribed.

(2) The State Government or the officer so appointed may, after giving a reasonable opportunity to the appellant and the Authority, of being heard, by an order confirm, reduce, enhance or annul the assessment.

(3) Where the assessment is annulled or set aside in an appeal, the State Government or such officer deciding the appeal may direct Authority to make a fresh assessment after such further enquiry as may be directed.

(4) Every order passed in appeal under this section shall be final and shall not be

questioned in any suit or other legal proceedings.

 

124H. Procedure for filing appeal,-

No appeal under section 124G shall be entertained unless,-

(a) the appeal is brought within forty-five days next after the receipt of notice of assessment under sub-section (2) of section 124E by the person concerned:

Provided that, the State Government or the officer so appointed may, admit an appeal preferred after the expiration of the forty-five days as aforesaid if, the Government or such officer is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period.

(b) the amount claimed in the notice of assessment from the appellant together with the amount of interest, if any due thereon, has been deposited by him in the office of the Authority.

 

124I. Interest on amount of enhanced assessment or of refund,-

If, as a result of an order passed in appeal under section 124G, the assessment is enhanced and any amount of difference is required to be recovered from the appellant or any amount from out of the amount paid under clause (b) of section 124H is required to be refunded to the appellant, an interest at the rate of eighteen per cent per annum shall be payable,-

(a) in the case of amount to be so recovered, from the date of the notice of original assessment till the date of recovery thereof; and

(b) in the case of amount to be so refunded, from the date on which the amount was paid under clause (b) of section 124H till the date of refund thereof.

 

124J. Development Fund,-

(1) There shall be established and set apart a separate fund to be called “the Development Fund” and an Authority shall separately show the same in its budget.

(2) All moneys received by the authority as development charge together with interest thereof, if any, under this Chapter shall be credited to the Development Fund.

(3) The moneys credited, from time to time, to the said Fund shall be applied only for the purposes of providing public amenities in the area and maintenance and improvement of the area under the jurisdiction of the said Authority.

(4) Surplus moneys at the credit of the said Fund, which cannot immediately or at an early date be applied for the purposes aforesaid, shall, from time to time, be deposited by the Authority in the bank.

            Explanation.- For the purposes of this sub-section, the expression “bank” means,-

(i) the State Bank of India constituted under the State Bank of India Act, 1955 (23 of 1955);

(ii) a subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959);

(iii) a corresponding new bank constituted under section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) or under section 3 of the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1980 (40 of 1980);

(iv) any other bank, being a scheduled bank as defined in clause (e) of section 2 of the Reserve Bank of India Act, 1934 (2 of 1934), or being such a bank as may be approved by the State Government.

 

124K. Stoppage of work of development and penalty,-

(1) Where any person who, whether at his own instance or at the instance of any other person commences, undertakes or carries out development or institutes, or changes the use of any land or building without the payment of development charge payable under this Chapter, the Authority may serve on such person a notice requiring to stop the development work or the change of any such land or building and from the time of the service of such notice, such person shall discontinue such development or change of use of such land or building.

(2) The notice issued under sub-section (1) and served upon such person may require,-

(a) the demolition of the development work, if any carried out, within the time specified in such notice, and

(b) the discontinuance of any further development or change of use of such land or building.

(3) Any person, who continues to carry out the development or change of use of any such land or building, whether for himself or on behalf of the owner or any other person, after such notice has been served upon him, shall, on conviction, be punished with imprisonment for a term which shall not be less than three months, but which may extend to three years and with fine which shall not be less than one thousand rupees, but which may extend to five thousand rupees; and when the non-compliance with notice is a continuing one, with further fine which may extend to hundred rupees for every day after the date of the service of the notice during which the non-compliance has continued or continues.

(4) On the failure of such person to demolish the work of development, if any as required under such notice, the Authority may itself demolish such development and any expenses incurred by the Authority for doing so shall be recoverable from such person as arrear of land revenue.

 

124L. Chapter to have overriding effect, but shall be in addition, to existing local authority laws,-

(1) The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in this Act or any other law for the time being in force.

(2) Subject to the provisions of sub-section (1), the provisions of this Chapter shall be in addition to, and not in derogation of, any other provisions of this Act or any law relating to municipal corporation, municipal council or other local authority of any urban area.

 

 

Chapter VII

Land Acquisition

 

 

  1. Compulsory acquisition of land needed for purposes of Regional Plan, Development plan or town planning scheme, etc,-

Any land required, reserved or designated in a Regional plan, Development plan or town planning scheme for a public purpose or purposes including plans for any area of comprehensive development or for any new town shall be deemed to be land needed for a public purpose within the meaning of the Land Acquisition Act, 1894 (I of 1894).

 

  1. Acquisition of land required for public purposes specified in plans,-

(1) When after the publication of a draft Regional Plan, a Development or any other plan or town planning scheme, any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority may, except as otherwise provided in section 113A acquire the land,-

(a) by an agreement by paying an amount agreed to, or

(b) in lieu of any such amount, by granting the land-owner or the lessee, subject, however, to the lessee paying the lessor or depositing with the Planning Authority, Development Authority or Appropriate Authority, as the case may be, for payment to the lessor, an amount equivalent to the value of the lessor’s interest to be determined by any of the said Authorities concerned on the basis of the principles laid down in the Land Acquisition Act, 1894 (I of 1894), Floor Space Index (FSI) or Transferable Development Rights (TDR) against the area of land surrendered free of cost and free from all encumbrances, and also further additional Floor Space Index or Transferable Development Rights against the development or construction of the amenity on the surrendered land at his cost, as the Final Development Control Regulations prepared in this behalf provide, or

(c) by making an application to the State Government for acquiring such land under the Land Acquisition Act, 1894 (I of 1894),

and the land (together with the amenity, if any, so developed or constructed) so acquired by agreement or by grant of Floor Space Index or additional Floor Space Index or Transferable Development Rights under this section or under the Land Acquisition Act, 1894 (I of 1894), as the case may be, shall vest absolutely free from all encumbrances in the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority.

(2) On receipt of such application, if the State Government is satisfied that the land

specified in the application is needed for the public purpose therein specified, or if the State Government (except in cases falling under section 49 and except as provided in section 113A) itself is of opinion that any land in any such plan is needed for any public purpose, it may make a declaration to that effect in the Official Gazette, in the manner provided in section 6 of the Land Acquisition Act, 1894 (1 of 1894), in respect of the said land. The declaration so published shall,

notwithstanding anything contained in the said Act, be deemed to be a declaration duly made under the said section:

Provided that, subject to the provisions of sub-section (4), no such declaration shall be made after the expiry of one year from the date of publication of the draft Regional Plan, Development Plan or any other Plan, or Scheme, as the case may be.

(3) On publication of a declaration under the said section 6, the Collector shall proceed to take order for the acquisition of the land under the said Act; and the provisions of that Act shall apply to the acquisition of the said land, with the modification that the market value of the land shall be,-

(i) where the land is to be acquired for the purposes of a new town, the market value prevailing on the date of publication of the notification constituting or declaring the Development Authority for such town;

(ii) where the land is acquired for the purposes of a Special Planning Authority, the market value prevailing on the date of publication of the notification of the area as an undeveloped area; and

(iii) in any other case the market value on the date of publication of the interim development plan, the draft development plan, or the plan for area or areas for comprehensive development, whichever is earlier, or as the case may be, the date or publication of the draft town planning scheme:

Provided that, nothing in this sub-section shall affect the date for the purposes of determining the market value of land in respect of which proceedings for acquisition commenced before the commencement of the Maharashtra Regional and Town Planning (Second Amendment) Act, 1972 (Mah. XI of 1973):

Provided further that, for the purpose of clause (ii) of this sub-section, the market value in respect of land included in any undeveloped area notified under sub-section (1) of section 40 prior to the commencement of the Maharashtra Regional and Town Planning (Second Amendment) Act, 1972 (Mah. XI of 1973), shall be the market value prevailing on the date of such commencement.

(4) Notwithstanding anything contained in the proviso to sub-section (2) and in sub-section (3), if a declaration is not made within the period referred to in sub-section (2) or having been made, the aforesaid period expired at the commencement of the Maharashtra Regional Town Planning (Amendment) Act, 1993 (Mah. X of 1994), the State Government may make a fresh declaration for acquiring the land under the Land Acquisition Act, 1894 (I of 1894), in the manner provided by sub-sections (2) and (3) of this section, subject to the modification that the market value of the land shall be the market value at the date of declaration in the Official Gazette made for acquiring the land afresh.

 

  1. Lapsing of reservation,-

If any land reserved, allotted or designated for any purpose specified in any plan under this Act is not acquired by agreement within ten years from the date on which a final Regional plan, or final Development plan comes into force or if a declaration under sub-section (2) or (4) of section 126 is not published in the official Gazette within such period, the owner or any person interested in the land may serve notice, alongwith the documents showing his title or interest in the said land, on the Planning Authority, the Development Authority or, as the case may be, the Appropriate Authority to that effect; and if within twelve months from the date of the service of such notice, the land is not acquired or no steps as aforesaid are commenced for its acquisition, the reservation, allotment or designation shall be deemed to have lapsed, and thereupon, the land shall be deemed to be released from such reservation, allotment or designation and shall become available to the owner for the purpose of development as otherwise, permissible in the case of adjacent land under the relevant plan.

 

  1. Power of State Government to acquire lands for purpose other than the one for which it is designated in any plan or scheme,-

(1) Where any land is included in any plan or scheme as being reserved allotted or designated for any purpose therein specified or for the purpose of Planning Authority or Development Authority or Appropriate Authority and the State Government is satisfied that the same land is needed for a purpose different from any such public purpose or purpose of the Planning Authority, Development Authority or Appropriate Authority, the State Government may, notwithstanding anything contained in, this Act, acquire such land under the provisions of the Land Acquisition Act, 1894 (I of 1894).

(1A) Save as otherwise provided in this Act or any other law for the time being in force, where any land included in any plan or scheme as being reserved, allotted or designated for any purpose therein specified or for the purposes of a Planning Authority or Development Authority or Appropriate Authority, is being acquired by the State Government under the provisions of the Maharashtra Industrial Development Act, 1961 (Mah. III of 1962), for the Maharashtra Industrial Development Corporation (being the Special Planning Authority deemed to have been appointed as such under sub-section (1A) of section 40), the provisions of sub-sections (2) and (3) of this section shall mutatis mutandis, apply to such acquisition proceedings.

(2) In the proceedings under the Land Acquisition Act, 1894 (I of 1894), the Planning Authority, or Development Authority or Appropriate Authority, as the case may be, shall be deemed to be a person interested in the land acquired; and in determining the amount of compensation to be awarded, the market value of the land shall be assessed as if the land had been released from the reservation, allotment or designation made in any plan or scheme or new town, as the case may be, and the Collector or the Court shall take into consideration the damage, if any, that Planning Authority or Development Authority or Appropriate Authority, as the case may be, may sustain by reason of acquisition of such land under the Land Acquisition Act, 1894 (I of 1894), or otherwise, and the proportionate cost of the Development plan or town planning scheme or new town, if any, incurred by such Authority and rendered abortive by reason of such acquisition.

(3) On the land vesting in the State Government under section 16 or 17 of the Land Acquisition Act, 1894 (I of 1894), as the case may be, the relevant plan or scheme shall be deemed to be suitably varied by reason of acquisition of the said land.

 

  1. Possession of land in case of urgency,-

(1) At any time after the publication of a notification under sub-section (2) of section 126, where the State Government, on an application of the Planning Authority, Development Authority or Appropriate Authority, is satisfied that the

possession of any land which is reserved or designated for a public purpose either under a Regional plan or Development plan urgently required in the public interest by the Authority, the State Government may, by an order in writing authorise the, Collector to enter on and take possession of the land under acquisition after giving a notice of fifteen days; and thereupon, the right of interest in that land shall be extinguished from the date specified in the order; and on the date on which possession is taken, the land shall vest without any further assurance and free from encumbrances in the State Government:

Provided that, before or at the time of taking possession of any land under this sub-section, the Collector shall offer to the person interested compensation for the standing crops and trees, if any, on such land; and for any damage sustained by him which is caused by such sudden dispossession and not excepted in section 24 of the Land Acquisition Act, 1894 (I of 1894), and if such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed in awarding compensation for the land under the provisions of the said Act.

(2) Where possession of land is taken under sub-section (1), the Planning Authority, the Development Authority or as the case may be, Appropriate Authority, shall subject to the provisions of sub-section (1), pay to the owner concerned interest at 4 per cent per annum on the amount of compensation from the date of taking possession of the land under acquisition to the date of payment.

(3) Where possession of land is taken under sub-section (1), the Planning Authority or Development Authority, or as the case may be, the Appropriate Authority at the request of the person interested, pay an advance not exceeding two-thirds of the amount estimated to be payable to such person on account of the land after executing an agreement in that behalf under section 157.

 

 

 

 

Chapter VIII

Finance, Account and Audit

 

  1. Funds,-

(1) Every Regional Board, Special Planning Authority (other than a Special Planning Authority appointed under clause (b) of sub-section (1) of section 40) or Development Authority constituted under sub-section (2) of section 113 shall have and maintain its own fund to which shall be credited-

(a) all moneys received by such Board or Authority from the State Government by way of grants, loans, advance or otherwise;

(b) all fees or charges received by such Board or Authority under this Act or Rules or Regulations thereunder;

(c) all moneys from any other sources.

(2) The fund shall be applied towards meeting-

(a) the expenditure incurred in the administration of this Act;

(b) the cost of acquisition of land in the area of the authority concerned incurred for purposes of development;

(c) the expenditure for any development of land in the area of the Authority concerned undertaken by such Authority; and

(d) the expenditure for such other purposes as the State Government may direct.

(3) Every Regional Board, Special Planning Authority (other than a Special Planning Authority appointed under clause (b) of sub-section (1) of section 40) or Development Authority constituted under sub-section (1) of section 113 may keep in current account in the Reserve Bank of India or the State Bank of India or any other Bank approved by the State Government in this behalf, such sums of money out of its funds as may be prescribed by the rules and any money in excess of the said sum shall be invested in such manner as may be approved by the State Government.

(4) The State Government may, after due appropriation made by the legislature of the State by law in this behalf, make such grants, advances and loans to the Board or the Authority concerned as it may deem necessary for the performance of the functions under this Act; and all grants, loans and advances so made shall be on such terms and conditions as the State Government may determine.

 

  1. Budget,-

Every Regional Board, Special Planning Authority (other than a Special Planning

Authority appointed under clause (b) of sub-section (1) of section 40) or Development Authority constituted under sub-section (2) of section 113 shall prepare in such form and at such time every year as may be prescribed by rules, a budget in respect of the financial year next ensuing showing the estimated receipts and expenditure of such Board or Authority and shall forward to the State Government such number of copies thereof as may be prescribed by rules.

 

  1. Accounts and audit of Regional Board,-

(1) Every Regional Board shall maintain proper accounts and other relevant records and prepare annual statement of accounts including the balance sheet in such form as the State Government may by rules prescribe.

(2) The accounts of every Regional Board shall be subject to audit annually by the Chief Auditor, Local Fund Accounts of the State; and any expenditure incurred by him in connection with such audit shall be payable by the Board to the Chief Auditor.

(3) The Chief Auditor or any person appointed by him in connection with the audit of accounts of the Board shall have the same right, privilege and authority in connection with such audit as the Chief Auditor has in connection with the accounts of local authorities; and in particular, shall have the right to demand the production of books of accounts, connected vouchers and other documents and paper and to inspect the office of the Board.

(4) The accounts of every Regional Board as certified by the Chief Auditor or any other person appointed by him in this behalf together with the audit report thereon shall be forwarded annually to the State Government.

 

132A. Accounts and audit of Special Planning Authority and Development Authority,-

(1) Every Special Planning Authority other than a Special Planning Authority appointed under clause (b) of sub-section (1) of section 40 and Development Authority constituted under sub-section (2) of section 113 (hereinafter in this section collectively referred to as “the said Authorities”) shall maintain books of accounts and other books in relation to its functioning under this Act in such form and in such manner as the State Government may by rules prescribe.

(2) The accounts of the said Authorities shall be audited by an auditor appointed by the State Government in consultation with the Comptroller and Auditor-General of India.

(3) As soon as the accounts of the said Authorities are audited, the said Authorities shall send a copy thereof together with the copy of the report of the auditor thereon to the State Government.

(4) The State Government shall cause accounts of the said Authorities together with the audit report thereon forwarded to it under sub-section (3) to be laid annually before each House of the State Legislature.

 

  1. Submission of report,-

(1) Every Regional Board, Special Planning Authority or Development Authority shall prepare for every year a report of its activities during that year and submit the report to the State Government in such form on or before such date as may be prescribed by rules.

(2) The State Government shall prepare for every year a report of the activities including the accounts of every Regional Planning Board, Special Planning Authority or Development authority during that year. The State Government shall cause a copy of the report to be laid before the State Legislature.

  1. Pension and Provident Funds,-

(1) Every Regional Board, Special Planning Authority or Development Authority may constitute for the benefit of its whole time paid members and of its officers and other employees, in such manner and subject to such conditions as may be prescribed by rules, such pension or provident fund or both as it may deem fit.

(2) Where any such pension or provident fund has been constituted, the State Government may declare that the provisions of the Provident Funds Act, 1925 (19 of 1925) shall apply to such fund as if it were a Government Provident Fund.

 

 

 

Chapter IX

Supplemental and Miscellaneous Provisions

 

  1. Power of entry,-

(1) The Director of Town Planning or any officer authorised by him, the Town Planning Officer of any Regional Board or Planning Authority, the Arbitrator, or any person authorised by the State Government, Regional Board, Planning Authority, Development Authority or Arbitrator may enter into or upon any land or building with or without assistants or workmen for the purpose of the preparation of a plan or scheme under this Act by-

(a) making of any measurement or survey or taking levels of such land or

buildings;

(b) setting out and marking boundaries and intended lines of development;

(c) marking such levels, boundaries and lines by placing marks and cutting  trenches;

(d) examining works under construction and ascertaining the course of sewers and drains;

(e) ascertaining whether any land is being or has been developed in contravention of any provision of this Act, or rules or regulations thereunder:

Provided that,-

(i) in the case of any building used as a dwelling-house, or upon any enclosed part of garden attached to such a building, no such entry shall be made except between the hours of sunrise and sunset or without giving its occupier at least 24 hours’ notice in writing of the intention to enter;

(ii) sufficient opportunity shall in every instance be given to enable women (if any) to withdraw from such land or building;

(iii) due regard shall always be had, so far may be compatible, with the exigencies of the purpose for which the entry is made to the social and religious usages of the occupants of the land or building entered.

(2) The powers of the Director of Town Planning shall extend to the whole of, the State; and the power of any Town Planning Officer or any person authorised by the Regional Board, Planning Authority or Development Authority shall extend only to the area under the jurisdiction of such Board or Authority; and the power of the person authorised by the Arbitrator or State Government shall extend to such area as the Arbitrator or State Government may specify in this behalf.

(3) Any person who obstructs the entry of a person empowered or authorised under this section to enter into or upon any land or building or molests such persons after such entry shall on conviction, be punished with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both.

 

  1. Service of notice, etc,-

(1) All documents including notices and orders required by this Act or any rule or regulation made thereunder to be served upon any person shall save as otherwise

provided in this Act or rule or regulations, be deemed to be duly served-

(a) where the document is to be served on a Government department, railway, local authority, statutory authority, company, corporation, society or other body, if the document is addressed to the head of the Government department, General Manager of the Railway, Secretary or Principal Officer, of the local authority, statutory authority, company, corporation, society or any other body at its principal, branch, local or registered office, as the case may be, and is either –

(i) sent by registered post to such office; or

(ii) delivered at such office;

(b) where the person to be served is a partnership, and if the document is addressed to the partnership at its principal place of business, identifying it by the name or style under which its business is carried on, and is either –

(i) sent by registered post to such office; or

(ii) delivered at the said place of business;

(c) in any other case, if the document is addressed to the person to be served and-

(i) is given or tendered to him; or

(ii) if such person cannot be found, is affixed on some conspicuous part of his known place of residence or business, or is given or tendered to some adult member of his family or is affixed on some conspicuous part of the land or building to which it relates; or

(iii) if sent by registered post to that person.

(2) Any document which is required or authorised to be served on the owner or occupier of any land or building may be addressed “the owner” or “the occupier”, as the case may be, of that land or building (naming or describing that land or building) without further name or description and shall be deemed to be duly served-

(a) if the document so addressed is sent or delivered in accordance with clause (c) of sub-section (1); or

(b) if the document so addressed or a copy thereof so addressed, is delivered to some person on the land or building.

(3) Where a document is served on a partnership in accordance with this section, the document shall be deemed to be served on each partner.

(4) For the purpose of enabling any documents to be served on the owner of any property, the Secretary to the Regional Board or the Planning Authority or Development Authority may by notice in writing require the occupier (if any) of the property to state the name and address of the owner thereof.

(5) Where the person on whom a document is to be served is a minor, the service upon his guardian or any adult member of his family shall be deemed to be service upon the minor.

(6) A domestic servant is not a member of the family within the meaning of this section.

 

  1. Public notice how to be made known,-

Every public notice given under this Act or rules or regulations thereunder shall be in writing over the signature of the Secretary to the Regional Board or Planning Authority or Development Authority or such other officer who may be authorised in this behalf by such Board or Authority and shall be widely made known in the locality to be affected thereby, affixing copies thereof in conspicuous public places within the said locality and by publishing the same by beat of drum or by advertisement in one or more local newspapers, and by such other means which the Secretary thinks fit.

 

  1. Notices, etc. to fix reasonable time,-

Where any notice, order or other document issued or made under this Act or any rule or regulation made thereunder requires anything to be done for the doing of which no time is fixed in this Act or rule or regulations thereunder, the notice, order or other document shall specify a reasonable time for doing the same.

 

  1. Authentication of orders and documents,-

All permissions, orders, decisions, notices and all documents of a Regional Board, Planning Authority or Development Authority shall be authenticated by the signature of the Secretary to the Regional Board or Planning Authority or Development Authority or such other officer as may be authorised by such Board or Authority in this behalf.

 

  1. Offences by companies,-

(1) If the person committing an offence under this Act is a company, every person, who, at the time of the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that, nothing contained in the sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officers shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

            Explanation:- For the purpose of this section –

(a) “company’ means a body corporate and includes a firm or other association of individuals; and

(b) “director” in relation to a firm means a partner in the firm.

 

  1. Penalty for obstructing contractor or removing mark,-

If any person-

(a) obstructs, or molests any person engaged or employed by a Regional Board, Planning Authority, Development Authority or any person with whom any such Board or Authority has entered into a contract, in the performance or execution by such person of his duty or of anything which he is empowered or required to do under this Act, or

(b) removes any mark or boundary stone set up for the purpose of indicating any level or direction necessary to the execution of any development authorised under this Act,

he shall on conviction, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees or with both.

 

  1. Sanction of prosecution,-

No prosecution for any offence punishable under this Act or rules made thereunder shall be instituted or no prosecution instituted shall be withdrawn, except with the previous sanction of the Regional Board, Planning Authority, or as the case may be, a Development Authority or any officer authorised by such Board or Authorised in this behalf.

 

  1. Compounding of offences,-

(1) The Regional Board or Planning Authority or Development Authority concerned or any person authorised in this behalf by general or special order may either before or after the institution of the proceedings compound any offence made punishable by or under this Act or rules made thereunder.

(2) When an offence has been compounded the offender, if in custody, shall be discharged; and no further proceedings shall be taken against him in respect of the offence compounded.

 

  1. Jurisdiction of Courts,-

No court inferior to that of a judicial magistrate of the first class shall try an offence punishable under this Act.

 

  1. Magistrate’s power to impose enhanced penalties,-

Notwithstanding anything contained in section 32 of the Code of Criminal Procedure, 1898 (V of 1898), *it shall be lawful for any Presidency Magistrate or Magistrate of the First Class to pass any sentence authorised by this Act in excess of its powers under the said section.

 

* Note:- Now see Code of Criminal Procedure, 1973 (2 of 1974).

 

  1. Members and officers to be public servants,-

Every member and every officer and other employee of a Regional Board or Planning Authority or Development Authority shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (XLV of 1860).

 

  1. Protection of action taken in good faith,-

No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act or any rules or regulations made thereunder.

 

  1. Registration of documents, plan or map in connection with final plan or scheme not required,-

(1) Nothing in the Indian Registration Act, 1908 (XVI of 1908), shall be deemed to

require the registration of any document, plan or map prepared, made or sanctioned in connection with a final Regional plan or final Development plan or final town planning scheme which has come into force.

(2) All such documents, plans and maps shall, for the purposes of sections 48 and 49 of the Indian Registration Act, 1908 (XVI of 1908), be deemed to have been and to be registered in accordance with the provisions of that Act:

Provided that, documents, plans and maps relating to the sanctioned plan or scheme shall be accessible to the public in the manner prescribed.

  1. Finality of orders,-

Save as otherwise expressly provided in this Act, every order passed or direction issued by the State Government or order passed or notice issued by any Regional Board, Planning Authority or Development Authority under this Act shall be final and shall not be questioned in any suit or other legal proceedings.

 

  1. Validation of acts and proceedings,-

(1) No act done or proceeding taken under this Act, shall be questioned on the ground merely of-

(a) the existence of any vacancy in, or any defect in the constitution of a

Regional Board, Planning Authority, or Development Authority;

(b) any person having ceased to be a member;

(c) any person associated with a Regional Board, under section 10 having

voted in contravention of the said section;

(d) the failure to serve a notice on any person, where no substantial

injustice has resulted from such failure; or

(e) any omission, defect or irregularity not affecting the merits of the case.

(2) Every meeting of a Regional Board, Planning Authority or Development Authority constituted under sub-section (2) of section 113, the minutes of the proceedings of which have been duly signed as prescribed shall be taken to have duly convened and to be free from all defects and irregularity.

  1. Power to delegate,-

(1) The State Government may, by a notification in the Official Gazette, delegate any power exercisable by it under this Act, or rules made thereunder to any officer of the State Government in such case and subject to such conditions, if any, as may be specified in such notification.

(2) The Director of Town Planning may, by an order in writing, delegate any power

exercisable by him under this Act or rules thereunder to any officer subordinate to him in such case and subject to such conditions, if any, or may be specified therein.

(3) Any Regional Board, Planning Authority or Development Authority may, by a resolution, direct that any power exercisable by it under this Act, rules or regulations thereunder (except the power to prepare any Regional plan, Development plan, town planning scheme or the plan of the New Town or to make regulations) may also be exercised by any officer of the State Government with the previous consent of the State Government, the Regional Board, Planning Authority or local authority or Development Authority as may be mentioned therein, such cases and subject to such conditions, if any, as may be specified therein.

(4) The Town Planning Officer of any Regional Board, Planning Authority or Development Authority may, by an order in writing, delegate any power exercisable by him under this Act, or rules or regulations thereunder to any officer of the Regional Board, Planning Authority or local authority or Development Authority in such cases and subject to such conditions, if any, as may be specified therein.

 

  1. Powers of Planning Authority or Development Authority to be exercised by certain officers,-

Notwithstanding anything contained in section 151, the powers and functions of a

Planning Authority or New Town Development Authority shall, for the purposes of sections 25, 43, 44, 45, 46, 49, 51, 53, 55, 56, 58, 89, 90, 107, 112, 126(1)(b), 135, 136 and 142 be exercised and performed by the following officers, namely:-

(1) in the case of a Municipal Corporation, by the Municipal Commissioner or such other officer as he may appoint in this behalf;

(2) in the case of Zilla Parishad, by the Chief Executive Officer or such other officers as he may appoint in this behalf;

(3) in the case of a Municipal Council, by the Chief Officer of the Council; and

(4) in the case of any other local authority, Special Planning Authority or New Town Development Authority, by the Chief Executive Officer or person exercising such powers under Acts applicable to such authorities:

Provided that, in the case of a New Town Development Authority declared under sub-section (3A) of section 113, that Authority shall, for the purpose of information of the public, publish in the Official Gazette and in such other manner as it may consider necessary, the officers of the Authority who will exercise the powers and perform the functions of that Authority for the purpose of this Act.

Provided further that, the State Government may, by a notification in the Official Gazette, delegate any of the powers exercisable under sections 44, 45, 46, 51, 53, 54, 55, 56, 135 and 136 of this Act by the Slum Rehabilitation Authority appointed under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (Mah. XXVIII of 1971), acting as the Planning Authority, to the Chief Executive Officer of the Slum Rehabilitation Authority.

 

  1. Power of Planning Authority to borrow money for Development plan or for making or executing town planning scheme,-

(1) A Planning Authority may, for the purpose of a Development plan or the making or execution of a town planning scheme, borrow loans in accordance with the provisions of the Act under which that Authority is constituted or if such Act

does not contain any provision for such borrowing, in accordance with the Local Authorities Loans Act, 1914 (IX of 1914).

(2) Any expenses incurred by a Planning Authority or the State Government under this Act or in connection with a Development plan or a town planning scheme may be defrayed out of the funds of the Planning Authority.

  1. Control by State Government,-

(1) Every Regional Board, Planning Authority and Development Authority shall carry out such directions or instructions as may be issued from time to time by the State Government for the efficient administration of this Act.

(2) If in, or his connection with, the exercise of its powers and discharge of its functions by the Regional Board, Planning Authority or Development Authority, under this Act, any dispute arises between the Regional Board, Planning Authority, and the State Government, the decision of the State Government on such dispute shall be final.

 

  1. Returns and information,-

(1) Every Regional Board, Planning Authority and Development Authority shall furnish to the State Government such reports, returns and other information as the

State Government may from time to time require.

(2) Every local authority shall furnish to a Regional Board, Planning Authority or

Development Authority (within the limits of which that local authority is functioning) such report, returns and other information as the Board or Authority may require.

 

  1. Effect of laws,-

Notwithstanding anything contained in any law for the time being in force-

(a)[***deleted by Mah. 10 of 1977***]

(b) when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained.

  1. Power to make agreements,-

(1) Unless otherwise provided in this Act, a Planning Authority or Development Authority shall be competent to make any agreement with any person or party in respect of any matter which is provided for under this Act subject to the right of the State Government to modify or disallow such agreement.

(2) Such agreement shall not in any way affect the rights of the State Government or third parties, but it shall be binding on the parties to the agreement notwithstanding any decision that may be passed by the State Government:

Provided that, if the agreement is modified by the State Government, either party shall have the option of avoiding it if it so elects.

 

157A. Authentication of plans and schemes and custody thereof,-

(1) Every Regional plan, Development plan or town planning scheme which is finally sanctioned by the State Government shall be drawn up in duplicate, and every such plan or scheme on every page thereof shall be authenticated under the seal and signature of the Secretary to Government, Urban Development and Public Health Department or such other officer not below the rank of a Deputy

Secretary as may be specified by the Secretary.  One such plan or scheme shall be deposited with the Director of Town Planning and sealed with his seal and second shall be deposited with the Planning Authority concerned and in the case of a Regional Plan, such second copy together with all the documents, plans and maps relating thereto shall be deposited in the Head Office of the Board, and if the Board is dissolved, then in the nearest office of the State Planning and Valuation

Department.

(1A) Every such Plan or scheme required under sub-section (1) of this section to bear the signature of the Secretary or such other officer shall be deemed to be properly signed if the first and the last page of such plan or scheme are signed by the Secretary or such other officer and the intervening pages thereof bear the seal and facsimile of the Secretary or Such other officer thereon.

(2) The plan or scheme deposited with the Director of Town Planning under seal shall be kept under lock and key and in custody of the Director of Town Planning and shall not be utilised unless it is required for production in any Court or by any authority duly empowered in this behalf by the State Government for verifying any entry made or alleged to be made in any such plan or scheme; and a certified copy of any plan or scheme or any part thereof may be given to any person on payment of a fee therefor.

(3) Where a plan or scheme or any part thereof is produced for verification, such plan or scheme or part after the relevant entry or entries therein are duly verified (such verification being made in court, or as the case may be, in the presence of the Director of Town Planning or any officer duly nominated by him in that behalf), shall be resealed with the seal of the Director of Town Planning, and then deposited with him in the manner aforesaid.

(4) If any officer or person having custody of a plan, scheme or any part thereof, makes or causes to be made any change in such plan, scheme or in any part, such change not being authorised by or under the provisions of this Act, he shall, on conviction, be punished with imprisonment which may extend to six months and shall also be liable to a fine.

 

  1. Power to make rules,-

(1) The State Government may, by notification in the Official Gazette, and subject to the conditions of previous publication, make rules to carry out all or any of the purposes of this Act.

(2) In particular and without prejudice to the generality of the foregoing power the State Government may make rules for all or any of the following matters:-

(i) under sub-section (1) of section 5, the term of office and conditions of

service of members of a Regional Board;

(ii) under section 8, rules subject to which a Regional Board may exercise

powers and discharge duties;

(iii) under sub-section (4) of section 10, the allowances payable to members

of a Regional Planning Committee;

(iv) under section 13, rules subject to which survey of a Regional and

preparation of Regional plan may be made as provided in that section.

(v) under section 14, the form of a Regional plan and the manner in which it

may be published;

(vi) under sub-section (1) of section 15, the period within which a Regional

plan may be approved as provided in that section;

(vii) under sub-section (1) of section 16, the other manner in which a notice

of the preparation of a draft Regional plan shall be published;

(viii) under section 17, the manner in which a notice of approval of a

Regional plan shall be published;

(ix) under sub-sections (2) and (3) of section 20, the other manner in which

a notice of the revision and approval of the revision, of a Regional plan shall

be published;

(x) under sub-sections (1), (2) and (4) of section 21, the other manner in

which a notice regarding preparation of the draft Development plan shall be

published;

(xi) under sub-section (1) of section 23, the manner in which a notice of

declaration of intention to prepare a Development plan shall be published

by a Planning Authority in one or more local newspapers;

(xii) under section 24, the qualifications of a person to be appointed as

Town Planning Officer;

(xii-a) under sub-section (1) of section 26, the other manner in which a

notice regarding preparation of the draft Development plan shall be

published;

(xii-b) under sub-section (1) of section 32, the other manner of publication

of a notice regarding preparation of the interim Development plan;

(xiii) under section 44, the form in which application for permission to carry

out any development on land shall be made to a Planning Authority, the

particulars which such application shall contain and the documents and

fees, if any, which shall accompany it and exceptions to be made as

provided in that section;

(xiv) under sub-section (2) of section 45, the form of commencement

certificate;

(xv) under sub-section (1) of section 47, the manner in which an appeal

under that section shall be made and the fees, if any, which shall

accompany it;

(xvi) under sub-section (2) of section 51, the time within which and the

manner in which claim for compensation shall be made and under sub-

section (3), of that section the time within which notice of refusal to accept

compensation shall be given;

(xvii) under sub-section (3) of section 53, the manner of applying for

permission under section 44;

(xviii) under sub-section (2) of section 56, the manner in which an appeal

under that sub-section shall be made to the State Government; under sub-

section (4) of that section the time within which and the manner in which

claims for compensation shall be made; and under sub-section (5) of that

section, the period after disposal of appeal, if any, within which and the

manner in which a purchase notice on the State Government shall be

served;

(xix) under sub-section (1) of section 58, the documents and plans which

shall accompany an intimation of the intention of any Government to carry

out development of any land for the purpose of any of its departments or

offices;

(xx) under sub-section (2) of section 60, the other manner in which the

Planning Authority shall publish the declaration of its intention to make a

town planning scheme;

(xxi) under sub-section (1) of section 61, the other manner in which the

Planning Authority shall publish a notice of making of a draft town planning

scheme;

(xxii) under sub-section (1) of section 63, the manner of publication of a

notice of a draft town planning scheme under that sub-section;

(xxiii) under section 64 the other particulars which a draft town planning

scheme shall contain;

(xxiv) under sub-section (1) of section 69, the form of commencement

certificate;

(xxv) under sub-section (1) of section 72, the qualification of a person to be

appointed as Arbitrator; under sub-section (3) of that section, the procedure

to be followed by an Arbitrator, the manner in which he shall give notices

and the form in which he shall draw the final town planning scheme;

(xxvi) under sub-section (3) of section 83, the manner in which the

Arbitrator shall give notice under that sub-section;

(xxvii) under sub-section (1) of section 89, the procedure for evicting

persons in authorised occupations;

(xxviii) under sub-section (1) of section 90, the notice to be given by the

Planning Authority under that sub-section;

(xxix) under sub-section (2) of section 91, the other manner in which a

notice shall be published regarding the preparation of a draft of variation of

a town planning scheme; and under sub-section (3) of that section, the

other particulars which the draft variation of a town planning scheme

contain;

(xxx) under sub-section (2) of section 105, the period within which payment

should be made by an owner to the Planning Authority;

(xxxi) under sub-section (4) of section 109, the procedure to be followed by

the Tribunal;

(xxxi-a) the time within which and the manner in which an application under

sub-section (1) of section 124E, shall be made by the person to the

Authority for assessment of development charge payable by him in respect

of institution or change of use, or development of any land or building;

(xxxi-b) under sub-section (1) of section 124G, the manner in which an

appeal under that section shall be made and the fees, if any, which shall

accompany it;

(xxxii) under sub-section (3) of section 130, the sum to be kept in current

account in the Reserve Bank of India or the State Bank of India or any other

approved Bank;

(xxxiii) under section 131, the form of the budget and the time at which it

shall be prepared and the number of copies of the budget to be forwarded

to the State Government;

(xxxiv) under sub-section (1) of section 132, the from in which a Regional

Board shall prepare an annual statement of accounts including the balance

sheet;

(xxxiv-a) under sub-section (1) of section 132A, the forms in which the

Special Planning Authority and the Development Authority shall maintain

their books of accounts and other books relating to business and

transactions;

(xxxv) under sub-section (1) of section 133, the form in which and date

before which an annual report of its activities shall be submitted to the State

Government by a Regional Board, Planning Authority and Development

Authority;

(xxxvi) under sub-section (1) of section 134 the manner in which and the

conditions subject to which a Regional Board, Planning Authority or

Development Authority shall constitute pension and provident funds;

(xxxvii) under sub-section (2) of section 148, the manner in which

documents, plans and maps, relating to a sanctioned scheme shall be

accessible to the public;

(xxxviii) any other matters for which rules may be made.

(3) Every rule made under this section shall be laid as soon as may be after it is made before each House of the State Legislature while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions and if, before the expiry of the session in which it is so laid or the session immediately following, both House agree in making any modification in the rule or both House agree that the rule should not be made, the rule shall from the date of publication of a notification in the Official Gazette of such decision have effect only

in such modified form or be of no effect; as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done or omitted to be done under that rule.

 

  1. Power to make regulations,-

(1) Any Regional Board, Planning Authority or Development Authority may with the previous approval of the State Government, make regulations consistent with this Act and the rules made thereunder to carry out the purposes of this Act, and without prejudice to the generality of this power,-

(i) a Regional Board or a Development Authority may make, –

(a) regulations subject to which it shall exercise powers and perform

functions under this Act;

(b) regulations for regulating its procedure and the conduct of its

business at its meeting;

(c) regulation providing for any other matter which has to be may be

prescribed by regulations;

(ii) a Planning Authority may make,-

(a) regulations prescribing the manner in which its order under sub-

section (1) of section 45 shall be communicated to the applicant

seeking permission under that section;

(b) regulations prescribing the time within which and the manner in

which a notice shall be served on the State Government under sub-

section (1) of section 49;

(c) regulations providing for any other matter which has to be or may

be prescribed by regulations.

(2) The State Government may make special development control regulations consistent with this Act and the rules made thereunder, to carry out the purpose of executing a Special Township Project and such regulations may be a part of Development Control Regulations of Development Plan or Regional Plan, as the case may be.

 

159A. Special provisions relating to New Town Development Authority and Special Planning Authority,-

The provisions of the First schedule hereto shall apply in relation to a New Town Development Authority and a Special Planning Authority referred to in section 40 of this Act.

 

  1. Dissolution of Regional Planning Board, Special Planning Authority and New Town Development Authority,-

(1) Where the State Government is satisfied that the purposes for which any Regional Board, Special Planning Authority or Development Authority was established under this Act have been substantially achieved so as to render the continued existence of the Board or Authority in the opinion of the State Government unnecessary or where the State Government is of opinion that the work of acquiring, developing and disposing of land in the area of any new town should be entrusted to any corporation, company or subsidiary company referred

to in sub-section (3A) of section 113, the State Government may, by notification in the Official Gazette, declare that the Regional Board, Special Planning Authority or Development Authority constituted under sub-section (2) of section 113 shall be dissolved with effect from such date as may be specified in the notification or that the Development Authority declared under sub-section (3A) of section 113 shall cease to function in relation to such area of the new town from such date as may be specified in the notification; and such Board or Authority shall be deemed to be

dissolved accordingly or as the case may be, shall be deemed to cease to function in relation to such area of such new town.

(2) From the said date-

(a) all properties, funds and dues which are vested in, or realisable by the Regional Board, Special Planning Authority or Development Authority for the purposes of the Act shall vest in, or be realisable, by the State Government;

(b) all liabilities which are enforceable against the Regional Board, Special Planning Authority or Development Authority shall be enforceable against the State Government; and

(c) for the purpose of carrying out any development which has not been fully carried out by the Board or Authority and for the purpose of realising properties, funds and dues referred to in clause (a), the functions of the Regional Board, Special Planning Authority, or Development Authority shall be discharged by the State Government.

(3) Where a Development Authority constituted under sub-section (2) of section 113 for the area of any new town in dissolved, and a corporation or company in relation to that area is declared to be New Town Development Authority for that area under sub-section (3A) of section 113, then the provisions of sub-section (2) of this section shall consequent upon such dissolution apply with this modification that as if for the words “State Government” wherever they occur, the words, brackets, figures and letter “Development Authority declared under sub-section (3A) section 113” were substituted.

 

  1. Vesting of property and rights of local authority ceasing to exist or ceasing to have jurisdiction,-

Where any Planning Authority (which is a local authority) ceases to exists or ceases to have jurisdiction over any area included in a development plan or town planning scheme, the property and rights vested in such Planning Authority under this Act shall, subject to all charges and liabilities affecting the same, vest in such other local authority or authorities as the State Government may, with the consent of such local authority or authorities, by notification in the Official Gazette direct; and such local authority or each one of such local authorities shall have all the powers under this Act in respect of such schemes or such part of a scheme as comes within its jurisdiction which the Planning Authority ceasing to exist or ceasing to have jurisdiction had.

 

  1. State Government or person appointed by it may exercise power to perform duty conferred or imposed on Planning Authority and disbursement of expenses,-

(1) If in the opinion of the State Government, any Regional Board, Planning Authority or Development Authority is not competent to exercise or perform, or neglects or fails to exercise or perform, any power conferred or duty imposed upon it by or under any of the provisions of this Act, State Government or any person or persons appointed in this behalf by the State Government may exercise such power or perform such duty.

(2) Any expenses incurred by the State Government or by such person in exercising such power or performing such duty shall be paid out of the funds of such Board or Authority; and if the Board or Authority fails to pay the expenses, then the State Government may make an order directing any person who for the time being has custody of any such funds to pay such expenses from such funds, and such person shall be bound to obey such order.

 

  1. Special provisions in case of dissolution etc. of Corporation, Zilla Parishad, etc,-

Where a municipal corporation is superseded under sub-section (1) of section 452 of the Bombay Provincial Municipal Corporation Act, 1949 (Bom. LIX of 1949), or where a Zilla Parishad is dissolved or superseded under sub-section (1) of section 260 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961(Mah. V of 1962) or where the Nagpur Improvement Trust is dissolved under sub-section (1) of section 121 of the Nagpur Improvement Trust Act, 1936 (C.P and Berar XXXVI of 1936) (or where an Administrator is appointed under section 313, or a Municipal Council is dissolved under section 315 of the Maharashtra Municipalities Act, 1965 (Mah. XL of 1965)*,-

(a) the person or persons appointed under clause (c) of sub-section (2) of the said section 452 of the Bombay Provincial Municipal Corporation Act, 1949 (Bom. LIX of 1949), or under clause (b) of sub-section (2) of the said section 260 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (Mah. V of 1962), or under clause (b) of section 316 of the Maharashtra Municipalities Act, 1965* (Mah. XL of 1965), to exercise its powers or to perform its duties or the municipal corporation of the city of Nagpur discharging the functions of the Nagpur Improvement Trust under the said section 121 of the Nagpur Improvement Trust Act, 1936 (C.P. & Berar XXXVI of 1936), or as the case may be, the Administrator appointed under section 313 of the Maharashtra Municipalities Act, 1965* (Mah. XL of 1965), exercising the powers and functions under section 314 of the Maharashtra Municipalities Act, 1965, shall be deemed to be a corporation, Zilla Parishad, Municipal Council, or as the case may be, the Nagpur Improvement Trust, within the meaning of clause (15) of section 2 of this Act and the person or persons, the municipal corporation of the city of Nagpur or as the case may be, the Administrator aforesaid so appointed may exercise all the powers and perform all the duties of a Planning Authority under this Act during the period of dissolution or supersession of the aforesaid body or during the term of office of the Administrator, as the case may be;

(b) in the event of a person or persons appointed as aforesaid or the Administrator exercising the powers and performing the duties of a Planning Authority under this Act, any property which may under the provisions of this Act vest in the Planning Authority exercising such powers and performing such duties shall, during the period of dissolution or supersession of the local authorities aforesaid, vest in the State Government; and such property shall at the end of the

said period, vest in such municipal corporation or Zilla Parishad or Municipal Council as the State Government may, by notification in the Official Gazette, direct.

 

* Now see the Maharashtra Municipal Councils, Nagpur Panchayats and Industrial Township Act, 1965 (Mah. XL of 1965)

  1. [Provisions of Bom. LXVII 1948, Hyd. Act XXI of 1951 and Bom. XCIX of 1958 not to apply to town planning schemes] Deleted by Mah. 10 of 1977, s. 8.

 

  1. Repeal and Savings,-

(1) The Bombay Town Planning Act, 1954 (Bom. XXVII of 1955) and sections 219 to 226A and clause (xxxvi) of sub-section (2) of section 274 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (Mah. V of 1962), are hereby repealed.

(2) Notwithstanding the repeal of the provisions aforesaid, anything done or any action taken (including any declaration of intention to make a development) plan or town planning scheme, any draft development plan or schemes published by a local authority, any application made to the State Government for the sanction of the draft development plan or scheme, any sanction given by the State Government to the draft development plan or scheme or any part thereof, any restriction imposed on any person against carrying out any development work in any building or in or over any land or upon an owner of land or building against the erection or re-erection of any building or work, any commencement certificate granted, any order or suspension of rule, bye-law, regulation, notification or order made, any purchase notice served on a local authority and the interest of the owner compulsorily acquired or deemed to be acquired by it in pursuance of such purchase notice, any revision of development plan, any appointment made of Town Planning Officer, any proceeding pending before, and decisions of, a Town Planning Officer, any decisions of Board of Appeal, any final scheme forwarded to, or sanctioned, varied or withdrawn by the State Government, any delivery of possession enforced, any eviction summarily made, any notice served, any action taken to enforce a scheme, any costs of scheme calculated and any payments made to local authorities by owners of plots included in a scheme, any recoveries made or to be made or compensation awarded or to be awarded in respect of any plot, any rules or regulations made under the repealed provisions shall be deemed to have been done or taken under the corresponding provisions of this Act, and the provisions of this Act shall have effect in relation thereto.

(3) All proceedings pending before a Board of Appeal constituted under the Bombay Town Planning Act, 1954, (Bom. XXVII of 1955), shall be continued before and disposal of by the Tribunal of Appeal under this Act as if an appeal had been made to it in respect thereof.

(4) References to Arbitrator in this Act shall include a reference to a Town Planning Officer whose appointments is continued in force under sub-section (2).

(5) The mention of particular matters in this section shall not affect the general application to the repeal of the provisions aforesaid of section 7 of the Bombay General Clauses Act, 1904 (Bom. I of 1904) (which relates to the effect of repeal).

 

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[First Schedule]

(See Section 159A)

Special Provisions Relating To New Town Development Authority

And Special Planning Authority

 

  1. Commencement of paragraph 7:-

The provisions of paragraph 7 shall be deemed to have come into force on the 1st day of April, 1972.

 

  1. Definitions:-

In this Schedule “the relevant authority” means the Development Authority, or, as the case may be, a Special Planning Authority referred to in section 40 of this Act.

 

  1. Application of Bom. II of 1956 to premises of relevant authority:-

(1) The State Government may, by notification in the Official Gazette, provide from such date as is mentioned therein that the Bombay Government Premises (Eviction) Act, 1955 (Bom. II of 1956) (hereinafter in this paragraph referred to as the said Act), shall, subject to the provisions of sub-paragraph (2), apply to premises belonging to, vesting in, or taken on lease by, a relevant authority as that Act applies in relation to Government premises.

(2) On a notification being issued under sub-paragraph (1), the said Act shall apply to such premises with the following modifications, that is to say:-

(a) for clause (b) of section 2 of the said Act, there shall be substituted the   following clause, namely: –

“(b) ‘Authority premises’ means any premises belonging to, or

vesting in, or taken on lease by, the Development Authority or

Special Planning Authority within the meaning of the Maharashtra

Regional and Town Planning Act, 1966 (Mah. XXXVII of 1966)

(hereinafter referred to as the relevant authority);”;

(b) for section 3 of the said Act, there shall be substituted the following section, namely:-

                        “3. Appointment of competent authorities,-

The State Government shall appoint an officer who is holding or has

held office whether under the Government or the relevant authority

which in the opinion of the State Government is not lower in rank

than that of a Deputy Collector or an Executive Engineer, to be the

competent authority for the purposes of the said Act.*;

(c) references to “Government premises” in the said Act shall be deemed to be references to “Authority premises” and references to “the State Government” in sections 4, 6 and 9 shall be deemed to be references to the relevant authority;

(d) in section 6 of the said Act, in sub-section (1),-

(i) after clause (b), there shall be inserted the following clause,

namely: –

“(c) an employee of the relevant authority,”;

(ii) after the words “or, as the case may be, the local authority” the

words “the relevant authority” shall be inserted.

 

  1. Non-application of Rent Control Acts to premises of relevant authority:- The Bombay Rents, Hotel and Lodging Housing Rates (Control) Act, 1947 (Bom. LVII of 1947), or any other law corresponding thereto for the time being in force in any part of the State,-

(a) shall not apply to any premises belonging to, or vesting in, the relevant authority;

(b) shall not apply as against the relevant authority to any tenancy, licence or like relationship created by the relevant authority in respect of any such premises;

(c) but shall apply in respect of any premises let, or given on licence, to the relevant authority.

 

  1. Non-application of Mah. XLV of 1963 to relevant authority:-

Nothing contained in the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (Mah. XLV of 1963), shall apply to the relevant authority.

 

  1. Recovery of moneys due to relevant authority as arrears of land revenue:- (1) Where any sum not being rent payable in respect of any Authority premises referred to in paragraph 3 of this Schedule, payable to the relevant authority, whether under any agreement, express or implied or otherwise howsoever, is not paid on or before the due date-

(a) and the claim is not disputed, the person duly authorised by the relevant authority shall send to the Collector a Certificate under his hand indicating therein the sum which is due to the relevant authority or is claimed by that authority, as the case may be; and thereupon, the Collector shall recover the sum due or claimed as an arrear of land revenue;

(b) and the claim is disputed, it shall be referred to a Tribunal constituted by the State Government for the purpose which shall, after making such inquiry as it thinks fit, and after giving to the person by whom the sum is alleged to be payable a reasonable opportunity of being heard, decide the question; and the decision of the Tribunal shall be final and shall not be called in question in any Court or before any other authority. Thereupon, the Collector shall recover the sum determined to be due as arrears of land revenue.

(2) The Tribunal shall consist of one person who is not connected with the relevant authority or with the person by whom the sum is alleged to be payable.

(3) The expenses of the Tribunal shall be borne by the relevant authority.

(4) The procedure to be followed by the Tribunal in deciding questions referred to it shall be such as may be prescribed.

  1. Lump-sum contribution by relevant authority in lieu of taxes levied by local authorities:-

(1) Subject to rules, if any, that may be made under this Act, and regard being had

to the fact that the relevant authority itself provides in the area within the jurisdiction of the local authority all or any of the amenities which the local authority provides, the relevant authority shall not be liable to pay the taxes including property taxes, if any, but it shall be lawful to the local authority to arrive at an agreement with the relevant authority with the prior sanction of the State Government to receive a lump-sum contribution from the relevant authority in lieu of all or any of the taxes levied or services rendered by the local authority.

(2) When no such agreement, as is referred to in sub-section (1) can be reached or there is any dispute regarded any matter referred to in the aforesaid sub-section, the matter may be referred to the State Government in such manner as the State Government may determine, and the State Government may, after giving to the local authority or the relevant authority or both a reasonable opportunity of being heard, decide the amount of such contribution. The decision of the State Government, shall be binding on the local authority and the relevant authority.

            Explanation:- ln this section, “local authority” has the meaning assigned to it by clause (26) of section 3 of the Bombay General Clauses Act, 1904 (Bom. I of 1904).

  1. Deduction from salary or wages to meet claims of relevant authority in certain cases:-

(1) Any person with the relevant authority may execute an agreement in favour of such authority providing that his employer shall be competent to deduct from the salary or wages payable by him by the employer, such amount as may be specified in the agreement and, to pay to the relevant authority the amount so deducted in satisfaction of any debt or demand of the relevant authority against such person.

(2) On the execution of such agreement, the employer shall, if so required by the relevant authority, by requisition in writing, and so long as the relevant authority does not intimate that the whole of such debt or demand has been paid make the deduction in accordance with the agreement, and pay the amount so deducted to the relevant authority as if it were a part of the salary or wages payable by the employer as required under Payment of Wages Act, 1936 (IV of 1936), on the day on which the, employer makes payment.

(3) If, after the receipt of a requisition made under the foregoing sub-section the employer at any time fails to deduct the amount specified in the requisition from the salary or wages payable to such person or makes default in remitting the amount deducted to the relevant authority, the employer shall be personally liable for the payment thereof; and the amount shall be recoverable on behalf of the relevant authority from the employer as an arrear of land revenue.

(4) Nothing contained in this section shall apply to person employed in any railways, (within the meaning of the Constitution) and in mines and oil-fields.

 

  1. (1) No suit shall be instituted against the relevant authority or against any officer or servant thereof or any person acting, under the orders of the relevant authority, in respect of any act done or purporting to have been done, in pursuance of execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act,-

(a) until the expiration of two months next after notice in writing has been given to the relevant authority stating with reasonable particularity the cause of action and the name and place of residence of the intending plaintiff and of his attorney or agent, if any, for the purpose of such suit and the relief which he claims; nor

(b) unless it is commenced within six months next after the accrual of the cause of action.

(2) At the trial of any such suit,-

(a) the plaintiff shall not be permitted to go into evidence of any cause of action except such as is set forth in the notice given as aforesaid;

(b) the claim, if it be for damages, shall be dismissed if tender of sufficient amounts shall have been made before the suit was instituted or if after the institution of the suit, a sufficient sum of money is paid into Court with costs.

(3) Where the defendant in any such suit is an officer or servant of the relevant authority, payment of the sum or of any part of any sum payable by him in or in consequence of the suit, whether in respect of cost, charges, expenses, compensation for damages or otherwise may be made, with the sanction of the relevant authority.

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 [Second Schedule]

(See Section 124B)

Part I

 

Sr. No.          Areas Nature of particulars of development

 

 Rate at which development charge to be levied (in rupees per square metres)
(1)              (2)                  (3)             (4)
1. Areas under the jurisdiction of the Municipal Corporation constituted or deemed to have been constituted under the Mumbai Municipal Corporation Act (Bom. III of 1888), the Bombay Provincial Municipal Corporation Act, 1949 (Bom. LIX of 1949) and the City of Nagpur Corporation Act, 1948 (C.P. and Berar II of 1950), the Municipal Councils constituted under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (Mah. XL of 1965); and Special Planning Authorities and New Town Development Authorities constituted under this Act. (a) Development of land for residential or institutional use, not involving any building or

construction operations.

 

(b) Development of land for residential or institutional use involving only building or construction operations,-

(i) where development charge under clause (a) has been paid;

(ii) where development charge under clause (a) is not

required to be paid as the

land has been developed

before the commencement of the Maharashtra Regional

and Town Planning (Amendment) Act, 1992.

(c) Development of land for residential or institutional use, also involving building or

construction operations,-

(i) for development

(ii) for construction

  

 0.5 per cent of the rates of developed land mentioned in the Annual Statement of Rates prepared under the Bombay Stamp (Determination of True Market Value of Property) Rules,1995  made under the Bombay Stamp Act, 1958 (Bom. LX of 1958) (hereinafter, in this Schedule, referred to as “the Stamp Duty Ready Reckoner”)

2.00 per cent of the rates of developed land mentioned in the Stamp Duty Ready Reckoner

2.00 per cent of the rates of developed land mentioned in the Stamp Duty Ready Reckoner

0.5 per cent, of the rates of developed land mentioned in the Stamp Duty Ready Reckoner;

2.00 per cent. of the rates of developed land mentioned in the Stamp Duty Ready Reckoner.

 

 

Part II

(1) The rates of development charge for different nature or category of development of land and buildings for industrial and commercial users shall be one and a half times and two times of the rates of development charges, respectively, specified in column (4) for different corresponding nature or category of development of lands and buildings described in clauses (a), (b) and (c) in column (3) in Part-I of this Schedule for residential or institutional users.

(2) In the area under the jurisdiction of the respective municipal corporations, the

development charge shall be levied for reconstruction or for the making of any material charge in a building, at the rates specified in Part-I of the Schedule for the purpose of development of land involving only building or construction operations in such area.

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0 4746
Acts and Regulations

Maharashtra Slum Areas (Improvement, Clearance And Redevelopment) Act, 1971

(Maharashtra Act No. XXVIII Of 1971)

 

An Act to make better provision for the improvement and clearance of slum areas in the State and their redevelopment and for the protection of occupiers from eviction and distress warrants.

Whereas, it is expedient to make better provision for the improvement and clearance of slum areas in the State and for their redevelopment and for the protection of occupiers from eviction and distress warrants; and for matters connected with the purposes aforesaid; It is hereby enacted in the Twenty second Year of the Republic of India as follows :-

 

Chapter I

Preliminary

  1. Short title, extent and commencement,-

(1) This Act may be called the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971.

(2) It extends to the whole of the State of Maharashtra.

(3) It shall come into force into such areas and on such date as the State Government may by notification in the Official Gazette appoint; and different dates may be appointed for different areas.

 

  1. Definitions,-

In this Act unless the context otherwise requires,-

(a) “Administration” means-

(i) In Greater Bombay or any part thereof such person not being a person below the rank of a Divisional Commissioner as the State Government may, by notification in the Official Gazette, appoint, and

(ii) elsewhere the Divisional Commissioner;

(aa) “Appellate Authority” means the Appellate Authority appointed by the State Government under Section 35.

(b) “Building” includes a house, out-house, stable, shed, hut and other enclosure or structure, whether of masonry bricks, wood, mud, metal or any other material whatsoever, whether used as human dwelling or otherwise; and also includes verandahs, fixed platforms, plinths, doorsteps, electric meters, walls including compound walls and fencing and the like, but does not include plant or machinery comprised in a building.

(ba) “Chief Executive Officer” means a Chief Executive Officer of the Slum Rehabilitation Authority appointed under sub-section (2) of section 3A;

(b-1) “Collector” means the Collector of a district and includes an Additional Collector or any officer specially appointed by the State Government to perform the functions of a Collector under this Act;

(c) “Competent Authority” means a person or body appointed to be the Competent Authority under Section 3;

(c-a) “Developer” means a Developer registered under Section 3B;

(c-b) “Eligible slum dweller” means a slum dweller who fulfills such criteria of eligibility as may be prescribed, from time to time, and is declared so eligible by the Competent Authority;

(c-c) “Grievance Redressal Committee” means the Grievance Redressal Committee constituted under section 35;

(d) “Land” includes buildings and also benefits to arise out of land, things attached to the earth or permanently fastened to anything attached to the earth;

(e) “Occupier” includes,

(i) any person who for the time being is paying or is liable to pay to the owner the rent or any portion of the rent of the land or building in respect of which such rent is paid or is payable;

(ii) an owner in occupation of, or otherwise using, his land or building;

(iii) a rent-free tenant of any land or building;

(iv) a licensee in occupation of any land or building; and

(v) any person who is liable to pay to the owner damages for the use and occupation of any land or building;

(f) “Owner” when used with reference to any building or land, means the person who receives or who is entitled to receive the rent of the building or land, if the building or land were let, and includes,

(i) an agent or trustee who receives such rent on account of the owner;

(ii) an agent or trustee who receives the rent of, or is entrusted with, or concerned for, any building or land devoted to religious or charitable purpose;

(iii) a receiver, sequestrator or manager appointed by a court of competent jurisdiction to have the charge of or to exercise the rights of owner of the said building or land; and .

(iv) a mortgagee-in-possession;

but does not include, a slumlord;

(g) “prescribed” means prescribed by the rules made under this Act;

(ga) “Slum areas” means any area declared as such by the Competent Authority under sub-section (1) of section 4 and includes any area deemed to be a slum area under section 4A;

(h) “Slum clearance” means the clearance of any slum area by the demolition and removal of building therefrom;

(h-a) “Slumlord” means a person, who illegally takes possession of any lands (whether belonging to Government, local authority or any other person) or enters into or creates illegal tenancies or leave and licence agreements or any other agreements in respect of such lands, or who constructs unauthorised structures thereon for sale or hire, or gives such lands to any persons on rental or leave and licence basis for construction, or use and occupation, of unauthorised structures, or who knowingly gives financial aid to any persons for taking illegal possession of such lands, or for construction of unauthorised structure thereon, or who collects or attempts to collect from any occupiers of such lands rent, compensation or other charges by criminal intimidation, or who evicts or attempts to evict any such occupiers by force without resorting to the lawful procedure, or who abets in any manner the doing of any of the abovementioned things;

(hb) “Slum Rehabilitation Area” means a slum rehabilitation area, declared as such under subsection (1) of section 3C by Competent Authority in pursuance of the Slum Rehabilitation scheme nullified under section 3B;

(hc) “Slum Rehabilitation Authority” means the Slum Rehabilitation Authority or Authorities appointed by the State Government under section 3A;

(hd) “Slum Rehabilitation scheme” means the Slum Rehabilitation Scheme notified under section 3B;

(h-e) “Slum Rehabilitation Work” means the work relating to demolition of any structure or any part thereof in slum area or Slum Rehabilitation Area, and construction of a new building thereon.;

(i)  “Tribunal” or “special Tribunal” means Tribunal or Special Tribunal which the State Government is hereby empowered to constitute consisting of,-

(a) the President, being a person who,-

(i) is or has been a District Judge or has practised as a Pleader or Advocate or both for not less than eight years and is holding or has held the post not below the rank of the Joint Secretary in the Law and Judiciary Department: or

(ii) is holding or has held any judicial office for not less than eight years;

or

(iii) is practising or has practised as an Advocate for not less than eight years; and

(b) two members, –

(i) one of whom shall be a person who is holding or has held the post not below the rank of the Deputy Director of Town Planning; and

(ii) the other shall he a person who is holding or has held the post not below the rank of the Superintending Engineer to Government;

(j) “Works of improvement” includes in relation to any building in a slum area the execution of any one or more of the following works, namely:-

(i) repairs which are necessary;

(ii) structural alterations;

(iii) provision of light points, water taps and bathing places;

(iv) construction of drains, open or covered;

(v) provision for latrines, including conversion of dry latrines into flush

latrines;

(vi) provision of additional or improved fixtures or fittings;

(vii) opening up, or paving of courtyards:

(viii) construction of passages of roads;

(ix) any other work including the demolition of any building or and part

thereof which is in the opinion of the Competent Authority is necessary

for executing any of the works specified above.

 

  1. Appointment of Competent Authorities,-

(1) The State Government may, by notification in the Official Gazette, appoint any person to be the Competent Authority for the purposes of this Act, for such area as may be specified in the notification.

(2) Where any body corporate (including a local authority) is appointed to be the Competent Authority, then the powers and functions of the Competent Authority under this Act shall, subject to such restrictions and conditions as the Competent Authority may impose, in this behalf, be exercised and performed on behalf of such body corporate by such officer of the concerned Competent Authority, as such Authority, by general or special order issued in this behalf, appoints.

 

Chapter I-A

Slum Rehabilitation Scheme

 

3A. Slum Rehabilitation Authority for implementing Slum Rehabilitation Scheme,-

(1) Notwithstanding anything contained in the foregoing provisions, the State Government may, by notification in the Official Gazette, appoint an authority to be called the Slum Rehabilitation Authority for such area or areas as may be specified in the notification; and different authorities may be appointed for different areas.

(2) Every Slum Rehabilitation Authority shall consist of a Chairman, a Chief Executive Officer and fourteen other members, all of whom shall be appointed by the State Government.

(2A) Every Slum Rehabilitation Authority appointed under sub-section (1) shall be a body corporate by the name of “The…………………Slum Rehabilitation Authority” and shall have perpetual succession and common seal; with power to contract, acquire, hold and dispose of property, both movable and immovable, and to do all things necessary for the purposes of this Act, and may sue and be sued by its corporate name.

(3) The powers, duties and functions of the Slum Rehabilitation Authority shall be,-

(a) to survey and review existing position regarding slum areas;

(b) to formulate schemes for rehabilitation of slum areas;

(c) to get the Slum Rehabilitation Scheme implemented;

(d) to do all such other acts and things as may be necessary for

achieving the objects of rehabilitation of slums.

(4) The terms and conditions of appointment of the non-official members of the Slum Rehabilitation Authority shall be such as may be specified by the State Government.

(5) The Slum Rehabilitation Authority may appoint Committees consisting of its members and experts to facilitate its working and speedy implementation of the scheme prepared under section 3B.

 

3B. Slum Rehabilitation Schemes,-

(1) The State Government, or the Slum Rehabilitation Authority concerned with the previous sanction of the State Government, shall, prepare a general Slum Rehabilitation Scheme for the areas specified under subsection (1) of section 3A, for Rehabilitation of slums and hutment colonies in such areas.

(2) The General Slum Rehabilitation Scheme prepared under sub-section (1) shall be published in the Official Gazette, by the State Government or the concerned Slum Rehabilitation Authority, as the case may be, as the Provisional Slum Rehabilitation Scheme for the area specified under section 3A (1), for the information of general public, inviting objections and suggestions, giving reasonable period of not less than thirty days, for submission of objections and suggestions, if any, in respect of the said Scheme.

(3) The Chief Executive Officer of the Slum Rehabilitation Authority shall consider the objections and suggestions, if any, received within the specified period in respect of the said Provisional Scheme and after considering the same, and after carrying out such modifications as deemed fit or necessary, finally publish the said scheme, with the approval of the State Government or, as the case may be, the Slum Rehabilitation Authority in the Official Gazette, as the Slum Rehabilitation Scheme.

(4) The Slum Rehabilitation Scheme so notified under sub-section (3) shall, generally lay down the parameters for declaration of any area as the slum rehabilitation area and indicate the manner in which rehabilitation of the area declared as the slum rehabilitation area shall be carried out. In particular, it shall provide for all or any of the following matters, that is to say,-

(a) the parameters or guidelines for declaration of an area as the slum

rehabilitation area;

(b) basic and essential parameters of development of slum rehabilitation

area under the Slum Rehabilitation Scheme;

(c) provision for obligatory participation of the landholders and occupants

of the area declared as the slum rehabilitation area under the Slum

Rehabilitation Scheme in the implementation of the Scheme;

(d) provision relating to transit accommodation pending development of

the slum rehabilitation area and allotment of tenements on development

to the occupants of such area, free of cost.

(e) scheme for development of the slum rehabilitation areas under the

Slum Rehabilitation Scheme by the landholders and occupants by

themselves or through a developer and the terms and conditions of such

development; and the option available to the Slum Rehabilitation

Authority for taking up such development in the event of non-participation

of the landholders or occupants;

(f) provision regarding sanction of Floor Space Index and transfer of

development rights; if any, to be made available to the developer for

development of the slum rehabilitation area under the Slum

Rehabilitation Scheme;

(g) provision regarding non-transferable nature of tenements for a certain

period, etc.

(5) For the purposes of this Chapter, the State Government may register any person or an association of persons, or a partnership firm registered under the Partnership Act, 1932 (IX of 1932), or a company registered under the  Companies Act, 1956 (1 of 1956), as a Developer in the prescribed manner.

 

3C. Declaration of a slum rehabilitation area,-

(1) As soon as may be after the publication of the Slum Rehabilitation Scheme, the Chief Executive Officer on being satisfied that circumstances exist in respect of any area, justifying its declaration as slum rehabilitation area under the said scheme, may by an order published in the Official Gazette, declare such area to be a “slum rehabilitation area”. The order declaring slum rehabilitation area (hereinafter referred to as “the slum rehabilitation order”), shall also be given wide publicity in such manner as may be specified by the Slum Rehabilitation Authority.

(2) Any person aggrieved by the slum rehabilitation order may, within four weeks of the publication of such order prefer an appeal to the Special Tribunal; and the decision of the Special Tribunal shall be final.

(3) On the completion of the Slum Rehabilitation Scheme, the Slum Rehabilitation Area shall cease to be such area.

 

3D. Application of other Chapters of this Act to Slum Rehabilitation Area with modification,-

On publication of the Slum Rehabilitation Scheme under sub- section (1) of section 3B, the provisions of other Chapters of this Act shall apply to any area declared as the slum rehabilitation area, subject to the following modifications, namely:-

(a) Chapters II and III shall be omitted;

(b) in Chapter IV,-

(i) Section 11 shall be omitted;

(ii) in section 12,-

(A) for sub-section (1), the following sub-section shall be

substituted, namely:-

“(1) As soon as may be, after the Chief Executive   

                                                Officer has declared any slum area to be a slum  

                                                rehabilitation area, he shall make a clearance order  

                                                in relation to that area, ordering the demolition of  

                                                each of the buildings specified therein, and requiring

                                                each such building to be vacated within such time as   

                                                may be specified in the clearance order.”;

 

(B) sub-sections (2) and (3) shall be omitted;

(C) for sub-section (4), the following Sub-Section Shall be

substituted namely:-

“(4) Any person aggrieved by the clearance order   

                                                may, within four weeks of the publication of such  

                                                order prefer an appeal to the Special Tribunal; and

                                                the decision of the Special Tribunal shall be final.”

                                   

(D) in sub-section (5), for the word “Tribunal” in both the

places where it occurs, the words “Special Tribunal” shall

be substituted;

(E) in sub-section (7), for the words “Competent Authority”

the words “Chief Executive Officer” shall be substituted;

(F) in sub-section (8), for the words “Competent Authority”

the words “Chief Executive Officer” shall be substituted;

(G) in sub-section (9), for the words “Competent Authority”,

wherever they occur, the words “Chief Executive Officer”

shall be substituted;

(H) in sub-section (10),-

(a) for the words “Competent Authority”  the words “Slum  

                                                Rehabilitation Authority” shall be substituted;

(b) in the proviso,–

(i) for the words” Competent Authority” the words

            “Chief Executive Officer” shall be substituted;

(ii) for the word “Tribunal” the words “Special  

                                                            Tribunal” shall be substituted;

(iii) for section 13, the following section shall be substituted,

namely.-

                       

                        “13. Power of Slum Rehabilitation Authority to develop slum   

                        Rehabilitation area,-

(1) Notwithstanding anything contained in sub-section (10) of section   

                        12, the Slum Rehabilitation Authority may, after any area is declared as  

                        a Slum Rehabilitation Area, if the landholders or occupants of such area   

                        do not come forward within a reasonable time, with a scheme for re-   

                        development of such land, by order, determine to re-develop such land  

                        by entrusting it to any agency for the purpose.

                        (2) Where on declaration of any area as a Slum Rehabilitation Area the  

                        Slum Rehabilitation Authority, is satisfied that the land in the Slum  

                        Rehabilitation Area has been or is being developed by the owner in   

                        contravention of the plans duly approved, or any restriction or  

                        conditions imposed under sub-section (10) of section 12, or has not  

                        been developed within the time, if any, specified under such conditions,   

                        it may, by order, determine to develop the land by entrusting it to any  

                        agency recognised by it for the purpose:

                                    Provided that, before passing such order, the owner shall be  

                        given a reasonable opportunity of showing cause why the order should  

                        not be passed.”;

(c) in Chapter V,-

(i) in section 14, in sub-section (1),-

(A) for the portion beginning with the words “Where on any

representation” and ending with the words “clearance area”

the following portion shall be substituted:-

“Where on any representation from the Chief Executive

                                    Officer it appears to the State Government that, in order to   

                                    enable the Slum Rehabilitation Authority to carry out  

                                    development under the Slum Rehabilitation Scheme in any

                                    Slum Rehabilitation Area”;

(B) after the proviso, the following proviso shall be added,

namely:-

“Provided further that, the State Government may delegate  

                                    its powers under this sub-section to any officer not below  

                                    the rank of Commissioner.”;

(ii) in Section 15,-

(A) for sub-section (3), the following sub-section shall be

substituted namely:-

“(3) Where the land has been acquired for the Slum  

                                    Rehabilitation Authority, the State Government shall, after it   

                                    has taken possession thereof, by notification in the Official    

                                    Gazette, upon such conditions as may be agreed upon    

                                    between Government and Slum Rehabilitation Authority,   

                                    transfer the land to the Slum Rehabilitation Authority and   

                                    thereupon the Slum Rehabilitation Authority may entrust, in

                                    accordance with the provisions of section 3B(4), the word

                                    of development of such area to any other agency as   

                                    provided in sub-section (1) of section 13, or to a Co    

                                    operative Housing Society of the occupants of such   

                                    rehabilitation area or occupants of any other area which  

                                    has been declared as Slum Rehabilitation Area;

(B) in sub-section (4), the following sub-section shall be

substituted, namely:–

                                    (4) The Slum Rehabilitation Authority may, subject to such

terms and conditions as the State Government considers

expedient for securing the purposes of this Act, transfer by

way of lease such land to the Co-operative Housing

Societies of such occupants.”

(iii) in section 17,-

(A) or the words “Competent Authority”, wherever they

occur, the words, “Chief Executive Officer”, shall be

substituted

(B) for the words “Tribunal”, in both the places where it

occurs, the words “Special Tribunal” shall be substituted;

(iv) in section 18,-

(A) for the words “Competent Authority”, wherever they

occur, the words “Chief Executive Officer”, shall be

substituted

(B) for the words “Tribunal”, wherever it occurs, the words

“Special Tribunal” shall be substituted;

(v) in section 19, for the words “Competent Authority”, at both the

places where they occur, the words “Chief Executive Officer” shall

be substituted;

(vi) in section 20, including in the marginal note, for the words

“Competent Authority”, wherever they occur, the words “Chief   

                        Executive Officer” shall be substituted;

(vii) in section 21, for the words “Competent Authority” the words

“Chief Executive Officer” shall be substituted;

(d) in Chapter VI,-

(i) sections 22, 23, 23A and 26 shall mutatis mutandis apply to the

slum rehabilitation area;

(ii) for sections 24 and 25, the following section shall be substituted,

namely:-

 

 

                        “24. Allotment of tenements to occupants,-

                        (1) Where an occupant of any premises in an area declared as a slum   

                        rehabilitation area has vacated, or is evicted from such premises, on  

                        the ground that, the premises are required for the purpose of  

                        development under Slum Rehabilitation Scheme, such occupant may,   

                        within such time as may be prescribed, file a declaration with the Slum    

                        Rehabilitation Authority that he desired to be rehabilitated in that area   

                        after its redevelopment under the said Scheme.

                        (2) On the receipt of such declaration, the Slum Rehabilitation Authority  

                        shall register his declaration in the prescribed manner and on  

                        completion of the development of the area and reconstruction of the  

                        buildings in the said area under the Scheme, give notice to the  

                        registered occupants by affixing it in some conspicuous part of the 

                        building and sending it by post to the address which may have been  

                        registered with the Slum Rehabilitation Authority by such occupants and  

                        in such other manner as may be determined by the Slum Rehabilitation  

                        Authority, that the building is likely to be or is ready for occupation from  

                        a specified date, and that they should vacate transit accommodation, if  

                        any, given to them, and occupy the building so erected within a period  

                        specified in the notice.”;     

 

(e) in Chapter VII,-

(i) in section 28, for the words “slum area” the words “slum    

                        rehabilitation area” shall be substituted;

 

(ii) in section 34, for the words “slum area” in both the places

where they occur, the words “slum rehabilitation area” shall be

substituted;

(iii) [*****deleted by Mah. 11 of 2012*****]

(iv) in section 37, for the words “clearance area” the words “slum  

                        rehabilitation area” shall be substituted;

(v) in section 38, in sub-section (1),-

(i) the words and figure “of the provisions of section 8 or”

shall be deleted;

(ii) for the words “clearance area” the words “slum

                                    rehabilitation area” shall be substituted;

(vi) in section 41, after the words “Competent Authority” the words

“Slum Rehabilitation Authority” shall be inserted;

(vii) in section 42,-

(A) after the words  “in respect of any matter which” the

words “the Slum Rehabilitation Authority”, shall be

inserted;

(B) for the word “Tribunal” the words “Special Tribunal”

shall be substituted;

(viii) in section 43, after the words “Competent Authority” the

words “Slum Rehabilitation Authority” shall be inserted;

(ix) in section 44, for the word “Tribunal” wherever it occurs, the

words “Special Tribunal” shall be substituted;

(x) in section 44 A,-

(A) in sub-section (2) for the word “Tribunal”, wherever it

occurs, the words “Special Tribunal” shall be substituted;

(B) in the marginal note, for the word “Tribunal” the words

“Special Tribunal” shall be substituted;

(xi) throughout section 45, including in the marginal note, for the

words “the Tribunal”, wherever they occur, the words “the Special   

                        Tribunal” shall be substituted;

(xii) for section 47, the following section shall be substituted,

namely:-

 

                        “47. Cesser of corresponding laws,-

                        Where any area is declared to be a slum rehabilitation area then  

                        as from the date of such declaration, the provisions of any     

                        municipal law or other law, corresponding to the provisions of this   

                        chapter, for slum development in relation to such slum   

                        rehabilitation area, in force immediately before the said date shall,   

                        save as otherwise provided in this Chapter, cease to be in force in   

                        such slum rehabilitation area, but so long only as the said  

                        declaration remains in force.”

3E. Restrictions on transfer of tenements,-

(1) The tenements allotted to the persons under the Slum Rehabilitation Scheme shall not be transferred by the allottee thereof by way of sale, gift, exchange, lease or otherwise for a period of first ten years commencing from the date of allotment of the tenement. After the expiry of the said period of ten years, the allottee may, with the permission of the Slum Rehabilitation Authority, transfer such tenement in accordance with the prescribed procedure.

(2) if the tenement is transferred by the allottee in contravention of the provisions of sub-section (1), the Competent Authority shall, by order direct the eviction of the person in possession of such tenement in such manner and within such time as may be specified in the order, and for the purpose of eviction, the competent Authority may use or cause to be used such force as may be necessary:

Provided that, before issuing any order under this sub-section, the Competent Authority shall give a reasonable opportunity to such person to show cause why he should not be evicted therefrom.

3F. Disqualification for membership and removal of members,-

(1) A person shall be disqualified for being nominated as a non-official member or continue to be such member, if he,—

(a) is an employee of the Slum Rehabilitation Authority except the Chief

Executive Officer;

(b) is of unsound mind and stands so declared by a competent Court;

(c) is an undercharged insolvent;

(d) is convicted for an offence involving moral turpitude;

(e) has, directly or indirectly by himself or by any partner, employer or

employee, any share or interest, whether pecuniary or of any other

nature, in any contract or employment with, by or on behalf of, the Slum

Rehabilitation Authority; or

(f) is a Director, Secretary, Manager or other Officer of any company,

which has any share or interest in any contractor employment with, by or

on behalf of, the Slum Rehabilitation Authority:

Provided that, a person shall not be disqualified under clause (e) or clause (f) by reason only of his or the company of which he is a Director, Secretary, Manager or other Officer, having a share or interest in,—

(i) any sale, purchase, lease or exchange of immovable property or any

agreement for the same;

(ii) any agreement for loan of money or any security for payment of

money only;

(iii) any newspaper in which any advertisement relating to the affairs of

the Slum Rehabilitation Authority is published;

(2) The Government may remove from the Slum Rehabilitation Authority any non-official member nominated by the Government, who in its opinion,-

(a) has been disqualified under sub-section (1);

(b) refuses to act;

(c) has so abused his position as a member as to render his continuance

on the Slum Rehabilitation Authority detrimental to the interest of the

public; or

(d) is otherwise unsuitable to continue as member.

(3) No order of removal under sub-section (2) shall be made unless the non-official member has been given an opportunity to submit his explanation to the Government, and when such order is passed the office of the member so removed shall be deemed to be vacant.

(4) A member who has been so removed under sub-section (3) shall not be eligible for reappointment as member or in any other capacity on the Slum Rehabilitation Authority.

3G. Meetings of Slum Rehabilitation Authority,-

(1) The Slum Rehabilitation Authority shall meet at such intervals, times and places as the Chairman may decide and shall, subject to the provisions of sub-section (2), observe such rules of procedure in regard to the transaction of business at its meetings (including the quorum thereof) as may be laid down by regulations.

(2) A member, who is directly or indirectly concerned or interested in any contract. loan, arrangement or proposal entered into or proposed to be entered into, by or on behalf of the Slum Rehabilitation Authority shall, at the earliest possible opportunity, disclose the nature of his interest to the Slum Rehabilitation Authority when any such contract, loan, arrangement or proposal is discussed, unless his presence is required by the other members for the purpose of eliciting information, but no members so required to be present shall vote on any such contract, loan, arrangement or proposal:

Provided that, a member shall not be deemed to be concerned or interested as aforesaid by reason only of his being a shareholder of a company concerned in any such contract, loan, arrangement or proposal.

 

3H. Act not to be invalidated by vacancy, informality, etc.,-

No act done or proceedings taken under this Act by the Slum Rehabilitation Authority or committee appointed by the Slum Rehabilitation Authority, shall be invalidated merely on the grounds of,-

(a) any vacancy of a member or any defect in the constitution or

reconstitution of the Slum Rehabilitation Authority or a committee

thereof; or

(b) any defect or irregularity in the appointment of a person as member

of the Slum Rehabilitation Authority or of a committee thereof; or

(c) any defect or irregularity in such act or proceedings, not affecting the

substance.

3I. Officers and servants of Slum Rehabilitation Authority,-

(1) The Slum Rehabilitation Authority may appoint such officers and servants subordinate to the Chief Executive Officer as it considers necessary for the efficient performance of its duties and functions.

(2) The conditions of appointment and service of the Chief Executive Officer and his pay scale shall be such as may, by general or special order, be determined by the State Government.

(3) The conditions of appointment and service of officers and servants shall be such as may be laid down, from time to time, by regulations.

(4) Subject to the superintendence of the Slum Rehabilitation Authority, the Chief Executive Officer shall supervise and control all the officers and employees of the Slum Rehabilitation Authority.

 

3J. Authentication of orders, etc., of the Slum Rehabilitation Authority,-

All proceedings of the Slum Rehabilitation Authority shall be authenticated by the Chairman and all orders and instruments of the Slum Rehabilitation Authority shall be authenticated by the Chief Executive Officer or any other officer of the Slum Rehabilitation Authority as may be authorised in this behalf by regulations.

3K. Power of State Government to issue directions,-

(1) The State Government may issue to the Slum Rehabilitation Authority such general or special directions as to policy as it may think necessary or expedient for carrying out the purposes of this Act and the Slum Rehabilitation Authority shall be bound to follow and act upon such directions.

(2)(a) Without prejudice to the generality of the foregoing provision, if the State Government is of opinion that the execution of any resolution or order of the Authority is in contravention of, or in excess of, the powers conferred by or under this Act or any other law for the time being in force, or is likely to lead to abuse or misuse of or to cause waste of the Fund of the Authority, the State Government may, in the public interest, by order in writing, suspend the execution of such resolution or order. A copy of such order shall be sent forthwith by the State Government to the Authority and its Chief Executive Officer.

(b) On receipt of the order sent as aforesaid, the Authority shall be bound to follow and act upon such order.

3L. Application of Slum Rehabilitation Authority’s assets, etc,-

All property, fund and other assets vesting in the Slum Rehabilitation Authority shall be held and applied by it, for the purposes of this Act.

 

3M. Fund of Slum Rehabilitation Authority,-

(1) The Slum Rehabilitation Authority shall have and maintain its own fund, to which shall be credited,-

(a) all moneys received by the Slum Rehabilitation Authority from the State Government by way of grants, subventions, loans raised under this Act;

(b) all fees, costs and charges received by the Slum Rehabilitation Authority under this Act;

(c) all moneys received by the Slum Rehabilitation Authority from the disposal of lands, buildings and other properties, movable and immovable and other transactions.

(2) The Slum Rehabilitation Authority may keep current and deposit account with the Bank.

            Explanation.— For the purposes of this sub-section, the expression “Bank” means,-

(i) the State Bank of India constituted under the State Bank of India Act, 1955 (23 of 1955);

(ii) a subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959);

(iii) a corresponding new bank constituted under section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) or under section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40 of 1980);

(iv) any other bank, being a scheduled bank as defined in clause (e) of section 2 of the Reserve Bank of India Act, 1934 (2 of 1934) as may be approved by the State Government.

(3) Such accounts shall be operated by such officers of the Slum Rehabilitation Authority as may be authorised by it in this behalf.

(4) Notwithstanding anything contained in sub-sections (2) and (3), the Slum Rehabilitation Authority may keep on hand such sum as it thinks fit, for its day to day transactions, subject to such limits and conditions as may be prescribed.

 

3N. Grants, subventions, loans and advances to Slum Rehabilitation Authority,-

The State Government may, after due appropriation made by the State Legislature by law in this behalf, make such grants, subventions, loans and advances to the Slum Rehabilitation Authority as it may deem necessary for the performance of the functions of the Slum Rehabilitation Authority under this Act; and all grants, subventions, loans and advances made shall be on such terms and conditions as the State Government may determine.

3O. Financial Statement and programme of work,-

(1) The Slum Rehabilitation Authority shall, by such date in each financial year as may be prescribed, prepare and submit to the State Government for approval an annual financial statement and the programme of work for the succeeding financial year and the State Government may approve such financial statement and the programme of work of the Slum Rehabilitation Authority as submitted by the Slum Rehabilitation Authority or with such variations as the State Government thinks fit.

(2) The annual financial statement shall show the estimated receipts and expenditure during the succeeding financial year in such form and detail as may be prescribed.

(3) The Slum Rehabilitation Authority shall be competent to make variations in the approved programme of work in the course of the financial year provided that all such variations and reappropriations out of the sanctioned budget are brought to the notice of the State Government by a supplementary financial statement.

(4) A copy each, of the annual financial statement and the programme of work and the supplementary financial statement, if any, shall be placed before each House of the State Legislature as soon as may be after their receipt by the State Government.

 

3P. Accounts and Audit,-

(1) The Slum Rehabilitation Authority shall maintain books of accounts and other books in relation to the business and transaction in such form and in such manner as may be prescribed.

(2) The accounts of the Slum Rehabilitation Authority shall be audited by an Auditor appointed by the State Government in consultation with the Comptroller and Auditor General of India.

(3) Within nine months from the end of the financial year the Slum Rehabilitation Authority shall send a copy of the accounts audited together with a copy of the report of the Auditor thereon to the State Government.

(4) The State Government shall cause the accounts of the Slum Rehabilitation Authority together with the audit report thereon forwarded to it under sub-section (3) to be laid before each House of the State Legislature as far as possible before the expiry of the year next succeeding the year to which the accounts and the report relate.

3Q. Execution of Contracts, etc,-

Every contract or assurance of property on behalf of the Slum Rehabilitation Authority shall be in writing and executed by such authority or officer in such manner as may be provided by regulations;

 

3R. Default in performance of duty,-

(1) If the State Government is of the opinion that the Slum Rehabilitation Authority has made a default in the performance of any duty or obligation imposed or cast on it by or under this Act, the State Government may fix, a period for the performance of that duty or obligation and give-notice to the Slum Rehabilitation Authority accordingly.

(2) If the Slum Rehabilitation Authority fails or neglects to perform such duty or obligation within the period so fixed for its performance, it shall be lawful for the State Government to supersede and reconstitute the Slum Rehabilitation Authority as it deems fit.

(3) After the supersession of the Slum Rehabilitation Authority and Until it is reconstituted, the powers, duties and functions of the Slum Rehabilitation’ Authority under this Act shall be carried on by the State Government or by such officer or officers or body of officers as the State Government may appoint for this purpose from time to time.

(4) All property vested in the Slum Rehabilitation Authority shall, during the period of such supersession, vest in the State Government.

 

3S. Delegation of powers of Slum Rehabilitation Authority or Chief Executive Officer,-

The Slum Rehabilitation Authority or the Chief Executive Officer may, delegate any of the powers conferred on them by or under this Act, to any of the officers of the Slum Rehabilitation Authority and permit him to re-delegate such power to his subordinate, by general or special order in this behalf.

 

3T. Protection of action taken in good faith,-

No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done under this Act or rules or regulations made there under.

 

3U. Chairman, Members, Chief Executive Officer & Officers, etc. to be Public Servant,-

The Chairman, Members, Chief Executive Officer and officers and servants of the Slum Rehabilitation Authority, as the same may be, shall, while acting or purporting to act in pursuance of any of the provisions of this Act or rules or regulations made there under, be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (XLV of 1860).

3V. Power to make regulations,-                                             

The Slum Rehabilitation Authority may make regulations consistent with this Act and the rules made there under for all or any of the matters to be provided under this Act by regulations and generally for all other matters for which provision is, in the opinion of the Slum Rehabilitation Authority, necessary for the exercise of its powers and the discharge of its functions under this Act.

 

3W. Dissolution of Slum Rehabilitation Authority,-

(1) Where the State Government is satisfied that the continued existence of the Slum Rehabilitation Authority is unnecessary, the Government may, by notification in the Official Gazette, declare that the Slum Rehabilitation Authority shall be dissolved with effect from such date as may be specified in the notification and the Slum Rehabilitation Authority shall be deemed to be dissolved accordingly and upon such dissolution the members (including the Chairman and the Chief Executive Officer) shall vacate their respective offices.

(2) From the said date,-

(a) all properties, funds and dues which are vested in, or realisable by, the Slum Rehabilitation Authority shall vest in, or be realisable by, the State Government;

(b) all liabilities which are enforceable against the Slum Rehabilitation Authority shall be enforceable against the State Government.

 

 

 

Chapter I-B

Protected Occupiers, Their Relocation and Rehabilitation

 

3X. Definitions,-

In this Chapter, unless the context otherwise requires:-

(a) “dwelling structure” means a structure used as a dwelling or     otherwise and includes an out-house, shed, hut or other enclosure or     structure, whether of bricks, masonry, wood, mud, metal or any other material whatsoever;

(b) “photo-pass” means an identity card-cum-certificate issued by the Government in the prescribed format under section 3Y, and shall include such other document or documents declared by Government, by order issued in this behalf, to be equivalent of photo-pass for the purposes of this Chapter.

(c) “protected occupier” means an occupier of a dwelling structure who holds a photo-pass;

(d) “scheme” means any arrangement or plan prepared and declared by the State Government for the protection, relocation and rehabilitation of the protected occupiers.

 

3Y. Issuance of photo-pass and maintenance of Register,-

(1) The Government or any officer generally or specially authorised by it in this behalf shall, after verifying certain documents or records, as may be prescribed, issue a photo-pass for the of this Act, in the prescribed format to the actual occupier of a dwelling structure, in existence on or prior to 1st January 1995.

(2) If the photo-pass issued under sub-section (1) is lost or destroyed or defaced, the holder of the photo-pass shall forthwith, intimate the loss, destruction or defacement, of the photo-pass to the concerned authority which has granted the photo-pass and shall apply, in writing, to the said authority with the prescribed fee for issue of a duplicate.

(3) On receipt of an application under sub-section (2), the authority shall, after verifying the records and carrying out such inquiry, if any, as deemed fit, issue a duplicate photo-pass to the applicant with a clear marking on such photo-pass as “Duplicate”.

(4) If after the issue of a duplicate photo-pass, the original is found, it shall be incumbent upon the applicant to forthwith surrender the same to the authority by which it was issued.

(5) The Government shall maintain in the prescribed form an upto-date Register of the photo-passes issued by it under sub-section (1).

 

3Z. Protection, relocation and rehabilitation of protected occupiers,-

(1) Notwithstanding anything contained in this Act, on and after the commencement of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) (Second Amendment) Act, 2001 (Mah. X of 2002), no protected occupier shall, save as provided in sub-section (2), be evicted, from his dwelling structure.

(2) When, in the opinion of the State Government, it is necessary, in the larger public interest, to evict the protected occupiers from the dwelling structures occupied by them, the State Government may, subject to the condition of relocating and rehabilitating them in accordance with the scheme or schemes prepared by the State Government in this behalf, evict them from such dwelling structures:

Provided that, if any of the protected occupiers does not comply with the terms and conditions of the scheme for relocation and rehabilitation, such occupier shall forfeit the claim for such relocation and rehabilitation and shall become liable for eviction without being relocated and rehabilitated.

3Z-1. Powers to Competent Authority to demolish unauthorised or illegal dwelling structures,-

(1) Where a Competent Authority, upon a complaint from any person or report from its officer or police or any other record or information in its possession, is satisfied that any unauthorised or illegal dwelling structure or part thereof has been constructed or any addition to the existing structure as recorded on photo-pass, has been erected, after the 1st January 1995, within the area of its jurisdiction, without obtaining necessary permissions required to be obtained in that behalf under the relevant laws, of the concerned statutory authorities, it shall forthwith serve upon the owner of such unauthorised or illegal dwelling structure or any other person claiming an interest therein and also upon the person who is in occupation of such structure, a written notice to show cause, within twenty four hours as to why an order of demolition of the structure could not be made.

(2) If the owner of such unauthorised or illegal dwelling structure or any other person claiming an interest therein or the occupier of such structure is, by any reason whatsoever, not available for serving or receiving the notice, such notice shall be affixed at a conspicuous place on such structure, and it will be deemed to be due service of notice on the concerned person or persons.

(3) The person or persons upon whom the notice has been served under sub-section (1) or (2), as the case may be, shall, within twenty-four hours appear before the Competent Authority and produce or cause to be produced by his agent or representative, the necessary documents to prove that the requisite statutory permission for construction, reconstruction, addition or extension, as the case may be, has been duly obtained by him and that the construction, re-construction, addition or extension is not unauthorised or illegal.

(4) The Competent Authority shall, thereupon, on scrutiny of documents, if any, produced by such person, on being satisfied that the dwelling structure, addition to it or extension thereof, is unauthorised or illegal, forthwith make an order, in writing, for demolition of such structure, immediately, and in any case not later than twenty-four hours from the time of making of the order, by such person:

Provided that, if the owner, or as the case may be, the person claiming an interest in the structure or the occupier of such structure or his agent or representative fails to appear before the Competent Authority, within the time specified in the notice, the structure shall be treated as unauthorised or illegal and the Competent Authority shall pass an order for its demolition.

(5) Where an order of demolition of such unauthorised or illegal dwelling structure is made under sub-section (4) or the proviso thereto, the owner of the structure or any other person claiming an interest therein or the person in occupation of such structure shall, immediately demolish that structure within twenty-four hours from the passing of the demolition order and if, the concerned person who is ordered to demolish the structure, fails to demolish such structure within that time, the Competent Authority shall forthwith demolish the structure and remove the debris with the help of its staff and the Police Officer from the area where such structure is situated, and sell the debris of such demolished structure to recover the expenses incurred by the Competent Authority for such demolition and removal of debris. If the expenses incurred are not satisfied out of the proceeds of sale of the debris of such structure, the same shall be recoverable from the owner of the structure or any other person claiming an interest therein or from the person who was in occupation of such structure, as arrears of land revenue.

3Z-2. Demolition of unauthorised or illegal dwelling structures and penal liability,-

(1) After the commencement of the Maharashtra Slum Areas (Improvement, Clearance and redevelopment) (Second Amendment) Act, 2001 (Mah. X of 2002), where a Competent Authority, upon a complaint from any person or report from its officer or police, or any other record or information in its possession, is satisfied that any unauthorised or illegal dwelling structure or part thereof has been constructed or is being constructed or any addition to the existing structure is erected or being erected, within the area of its jurisdiction, without obtaining necessary permissions required to be obtained in that behalf, under the relevant laws of the concerned statutory authorities, it shall forthwith serve upon the owner of such unauthorised or illegal dwelling structure or any other person claiming an interest therein and also upon the person who is in occupation of such Structure, a written notice to show cause, within twenty-four hours as to why an order of demolition of the structure should not be made.

(2) If the owner of such unauthorised or illegal dwelling structure or any other person claiming an interest therein or the occupier of such structure is by any reason whatsoever, not available for serving or receiving the notice, such notice shall be affixed at the conspicuous place on, such-structure, and it will be deemed to be due service of notice on the concerned person or persons.

(3) The person or persons upon whom the notice has been served under sub-section (1) or (2), as the case may be, shall, within twenty-four hours appear before the Competent Authority and produce or cause to be produced, by his agent or representative, the necessary documents to prove that the requisite statutory permission for construction, reconstruction, addition or extension, as the case may be, was duly obtained by him and that the construction, reconstruction, addition or extension is not unauthorised or illegal.

(4) The Competent Authority shall, thereupon, on scrutiny of documents, if any, produced by such person, on being satisfied that the dwelling structure, addition to it or extension thereof is unauthorised or illegal, it shall forthwith make an order, in writing, for demolition of such structure immediately, and in any case not later than twenty-four hours from the time of making of the order, by such person:

Provided that, if the owner, or as the case may be, the person claiming an interest in the structure or the occupier of such structure or his agent or representative fails to appear before the Competent Authority, within the time specified in the notice, the structure shall be treated as unauthorised or illegal and the Competent Authority shall pass an order for its demolition.

(5) Where an order of demolition of such unauthorised or illegal dwelling structure is made under Sub-section (4) or the proviso thereto, the owner of the structure or any other person claiming an interest therein or the person in occupation of such structure shall, immediately demolish that structure within twenty-four hours from the time of passing of the demolition order and if, the concerned person who is ordered to demolish the structure fails to demolish such structure within that time, the Competent Authority shall forthwith demolish the structure and remove the debris with the help of its staff and the police officer from the area where such structure is situated, and sell the debris of such demolished structure to recover the expenses incurred by the Competent Authority for such demolition and removal of debris. If the expenses incurred are not satisfied out of the proceeds of sale of the debris of such structure, the same shall, be recoverable from the owner of the structure or any other person claiming an interest therein or from the person who was in occupation of such structure, as arrears of land revenue.

(6) Notwithstanding anything contained in this Act, the owner of the unauthorised or illegal dwelling structure referred to in sub-section (1) or any other person responsible for construction of such unauthorised structure or who has aided or abetted the construction of such unauthorised or illegal structure or the person who is in the occupation of such structure with the knowledge that such structure is unauthorised or is illegally constructed, shall be guilty of an offence under this section and shall, on conviction, be punished with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than two thousand five hundred rupees but which may extend to five thousand rupees:

(7) Notwithstanding anything contained in this Act, the Competent Authority or any of its officer, who-

(i) has aided of abated the construction of illegal or unauthorised structure; or

(ii) has failed to demolish such structure as provided in sub-section (5) without any sufficient reason,

such act of commission or omission on their part shall constitute an offence under this section and shall, on conviction, be punished with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine which shall not be less than two thousand five hundred rupees but which may extend to five thousand rupees:

Provided that, before initiating any action against the Competent Authority or any of its officer on the ground of aiding or abetting the construction of any unauthorised or illegal dwelling structure, or failure to carry out the duty of demolition of an unauthorised dwelling structure, a reasonable opportunity of being heard shall be given to him by the concerned Disciplinary Authority:

Provided further that, on prima facie case of commission of such offence being established against the Competent Authority or any of its officer, the concerned authority or officer may, pending prosecution, be suspended by the concerned Disciplinary Authority.

(8) The offences punishable under sub-section (6) shall be cognizable and non- bailable.

(9) It shall be binding on the occupant of a dwelling structure to forthwith produce the photo-pass for inspection as and when demanded by the Competent Authority or any officer specially authorised by it in this behalf or by any police officer who is competent to investigate the cognizable cases under the Code of Criminal Procedure, 1973 (2 of 1974), and non-production or failure on the part of such occupant to produce and photo-pass shall be sufficient ground or evidence for the police officer to take cognizance of an offence under this section:

Provided that, no such demand for inspecting of the photo-pass of any occupant shall be made by the Authority or its officer or the police officer, after sunset and before sunrise.

 

 

 

 

Chapter I-C

Special Provisions For In Situ Rehabilitation Housing Schemes For Protected Occupiers In Slum Areas

 

3Z-3. Definitions,-

In this Chapter, unless the context otherwise requires,-

(a) “Housing Committee” means a Housing Committee constituted under section 3Z-4;

(b) “housing scheme” means a scheme formulated and declared by the State Government or the Government of India, for the construction or re-construction of dwelling units or structures in the scheme area for providing basic amenities to the slum dwellers who are protected occupiers as defined in clause (a) of section 3X and their in situ rehabilitation in such scheme area;

(c) “scheme area” mean any area declared as the scheme area by the concerned Housing Committee, in the Official Gazette, for the purposes of this Chapter and shall include any area declared as the slum area under section 4;

(d) words and expressions used herein but not defined, shall have their respective meanings as assigned to them in the Maharashtra Regional and Town Planning Act, 1966 (Mah. XXXVII of 1966).

 

3Z-4. Constitution of Housing Committee,-

The State Government shall, for the purposes of this Chapter, by order, constitute the Housing Committee or Committees for each district, and the composition, and functions and powers and duties of such Housing Committee or Committees, as the case may be, shall be such as may be prescribed.

3Z-5. Development permission,-

(1) Under any housing scheme, the protected occupier in the scheme area may, after obtaining the permission of the Planning Authority, in the prescribed manner, construct or re-construct a dwelling structure as per the terms and conditions of the housing scheme.

(2) Notwithstanding anything contained in this Act or any other law for the time being in force, the Planning Authority or the concerned Housing Committee, as the case may be, may relax, the provisions of the Development Plan or Regional Plan, including the Development Control Rules or Regulations, wherever found necessary in regard to any development or redevelopment under a housing scheme:

Provided that, no such relaxation shall be made without first obtaining in writing, the concurrence of the Director, Town Planning, Maharashtra State or an officer authorised by him in this behalf.

(3) The Housing Committee may also carry out such other incidental or connected functions and duties as may be assigned to it by the State Government, from time to time by special or general orders issued in this behalf, not inconsistent with the provisions of this Act.

(4) Notwithstanding anything contained in the Maharashtra Regional and Town Planning Act, 1966 (Mah. XXXVII of 1966), no development charges or any other fee shall be payable to the Planning Authority under the said Act, for any development undertaken in respect of a housing scheme, as may be notified from time to time, by the State Government under this Act.

 

3Z-6. Provisions of this Chapter not to apply in certain areas,-

Notwithstanding anything contained this Act, nothing in this Chapter shall apply to the,-

(a) Scheduled areas, declared as such by the President of India by an order under paragraph 6 of the Fifth Schedule to the Constitution of India;

(b) forest area to which the Forest (Conservation) Act, 1980 (69 of 1980) applies; ..

(c) Coastal Regulation Zone as declared under clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 (29 of 1986);

(d) Eco-Sensitive Zones or Ecologically Fragile Areas as declared under sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 (29 of 1986);

(e) Hill Stations as notified by the State Government;

(f) Special Tourism Areas, as declared as such by the Central or State Government;

(g) Lands belonging to the Central Government or any entity thereof unless the same is voluntarily offered for the housing scheme;

(h) any slum area which, in the opinion of the State Government or the concerned Housing Committee, is unsuitable for human habitation or to which it would not be in the public interest to apply the provisions of this Chapter.

 

3Z-7. Control by State Government,-

The authority exercising the powers under sub-section (2) of section 3Z-5 shall furnish to the State Government such reports, returns and other information as the State Government may, from time to time, require.

 

 

 

 

Chapter II

Slum Areas

 

  1. Declaration of Slum Areas,-

(1) Where the Competent Authority is satisfied that-

(a) any area is or may be a source of danger to the health, safety or convenience of the public of that area or of its neighborhood, by reason of the area having inadequate or no basic amenities, or being in sanitary, squalid, overcrowded or otherwise; or

(b) the buildings in any area, used or intended to be used for human habitation are-

(i) in any respect, unfit for human habitation; or

(ii) by reasons of dilapidation, overcrowding, faulty arrangement and design of such buildings, narrowness or faulty arrangement of streets, lack of ventilation, light or sanitation facilities or any combination of these factors, detrimental to the health, safety or convenience of the public of that area,

the Competent Authority may, by notification in the Official Gazette, declare such area to be a slum area. Such declaration shall also be published in such other manner (as will give due publicity to the declaration in the area) as may be prescribed.

            Explanation.— For the purposes of clause (b), the expression “buildings” shall not include,-

(a) cessed buildings in the island City of Mumbai as defined in clause (7) of section 2 of the Maharashtra Housing and Area Development Act, 1976 (Mah. XXVIII of 1977), or old buildings belonging to the Corporation;

(b) buildings constructed with permission of the relevant authority at any point of time;

(c) any building in an area taken up under the Urban Renewal Scheme.

(2) In determining whether buildings are unfit for human habitation for the purposes of this Act, regard shall be had to the condition thereof in respect of the following matters, that is to say,-

(a) repairs;

(b) stability;

(c) freedom from damp;

(d) natural light and air;

(e) provision for water-supply;

(f) provision for drainage and sanitary conveniences;

(g) facilities for the disposal of waste water;

and the building shall be deemed to be unfit as aforesaid, if and only if, it is so far defective in one or more of the said matters that it is not reasonably suitable for occupation in that condition.

(3) Any person aggrieved by a declaration made under sub-section (1) may, within thirty days after the date of such declaration in the Official Gazette, appeal to the Tribunal.  No such appeal filed after the expiry of thirty days as aforesaid shall be entertained.

(4) When an appeal is presented under sub-section (3), the Tribunal shall, by a public notice published in a newspaper in the Marathi language circulating in the local area in which the slum area is situated and also displayed at some conspicuous place in the slum area, call upon the residents of the slum area to file their objection, if any, to the appeal within a period of fifteen days from the date of publication of such public notice in the news paper as aforesaid, either by themselves or through any association of residents in the slum area of which they are members.

(5) On expiry of the period, of fifteen days as aforesaid the Tribunal shall fix a day for hearing the appeal and inform the appellant about the same by letter under certificate of posting and the residents of the slum area by displaying the notice of hearing at some conspicuous place in the slum area and upon hearing the appellant and the residents or representative of their associations in the slum area, if present, or on considering the written objection, if any, made by such residents or association, if absent, the Tribunal may, subject to the provisions of sub-section (6), make an order either confirming, modifying or rescinding the declaration; and the decision of the Tribunal shall be final.

            Explanation.— For the purposes of sub-section (4) and this sub-section, the expression “any association of residents in the slum area” means a society, if any, of such residents registered under the Societies Registration Act, 1860 (XXI of 1860) or under the Maharashtra Co-operative Societies Act, 1960 (Mah XXI of 1961).

(6) While deciding the appeal the Tribunal shall ignore the works of improvement executed in such slum area by any agency of the Government or any local authority after the declaration thereof as such slum area by the Competent Authority under sub-section (1).

 

4A. Certain slum improvement areas deemed to be slum areas,-

(1) Any declaration made under section 26 of the Maharashtra Slum Improvement Board Act, 1973 (Mah. XXIII of 1973), declaring any area to be slum improvement area, and in force immediately before the date of commencement of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) (Amendment) Act, 1976 (Mah. XX of 1976) (hereinafter in this section referred to as “the said date”) shall, on and from the said date, be deemed to be a declaration made under section 4 of this Act declaring the same area to be a slum area for the purposes of this Act.

(2) Any person aggrieved by the provisions of sub-section (1) may, within thirty days from the said date, appeal to the Tribunal functioning under this Act.

(3) On such appeal, the Tribunal may make an order either confirming, modifying or rescinding the declaration; and the decision of the Tribunal shall be final.

 

 

 

 

Chapter III

Slum Improvement

 

5 Power of Competent Authority of execution of works of improvement,-

(1) Where the Competent Authority is satisfied that any slum area or any part thereof is capable of being improved, at a reasonable expense, so as not be a source of danger to the health, safety or convenience of the public of that area, it may serve upon the owner or owners and every mortgagee of the properties in that area or any part thereof, a notice informing them of its intention to carry out such improvement works as in its opinion are necessary and asking each of them to submit his objections or suggestions, if any, to the Competent Authority, within thirty days from the date of such notice. A copy of such notice shall also be displayed at some conspicuous places in the area for the information of the occupies thereof and for giving them also an opportunity to submit their objections or suggestions, if any. On such display of the notice, the owners, occupiers and all other persons concerned shall be deemed to have been duly informed of the matters stated therein.

(2) After considering the objections and suggestions received within the time aforesaid, from the owners, occupiers and other persons concerned, the Competent Authority may decide and proceed to carry out the improvement works with or without modifications or may postpone them for a certain period or cancel the intention to undertake the works.

 

5A. Improvement works,-

For the purpose of this Act, the improvement works may consist of all or any of the following:-

(a) laying of water mains, sewers and storm water drains;

(b) provision of urinals, latrines, community baths, and water taps;

(c) widening, realigning or paving of existing roads, lanes and pathways and constructing new roads, lanes and pathways;

(d) providing street lighting;

(e) cutting, filling, leveling and landscaping the area;

(f) partial development of the area with a view to providing land for unremunerative purposes such as parks, playgrounds, welfare and community centers, schools, dispensaries, hospitals, police stations, fire stations and other amenities run on a non-profit basis:

(g) demolition of obstructive or dilapidated buildings or portions of buildings;

(h) any other matter for which, in the opinion of the Competent Authority, it is expedient to make provision for preventing the area from being or becoming a source of danger to safety or health or a nuisance.

 

5B. Power of competent Authority to require occupiers to vacate premises,-

(1) Where the Competent Authority undertakes the improvement works in any area and is of opinion that any of the occupiers thereof should vacate their premises, it shall give them notice to vacate by a specified date or dates. It may as far as practicable offer such occupiers alternative sites in any other area. If any occupier fails to vacate and to shift to the alternative site offered to him within the specified period, the responsibility of the Competent Authority to provide him alternative site shall cease.

(2) Notwithstanding anything contained in this Act, where any occupiers does not vacate his premises, the Competent Authority may take or cause to be taken such steps and use or cause to be used such force as may be reasonably necessary for the purpose of getting the premises vacated.

(3) The Competent Authority may, after giving fifteen clear days’ notice to the persons removed under sub-section (2) and affixing a copy thereof in some conspicuous place in the area, remove or cause to be removed or dispose of by public auction any property remaining on the premises.

(4) Where the property is sold under sub-section (3), the sale proceeds shall after deducting the expenses of sale, be paid to such person or persons as may be entitled to the same:

Provided that, where the Competent Authority is unable to decide as to the person or persons to whom the balance of the amount is payable or as to the apportionment of the same, it shall refer such dispute to a Civil Court of competent jurisdiction and the decision of the Court shall be final.

5C. Power of Competent Authority to require improvement of buildings unfit for human habitation and of areas which are source of danger to public health etc,-

(1) Where the Competent Authority, upon report from any of its officers or other information in its possession, is satisfied that any buildings in a slum area are in any respect unfit for human habitation, or any slum area or part thereof is or is likely to be a source of danger to the health, safety or convenience of the public in that area or in its neighborhood by reason of the area having no basis amenities or having inadequate amenities or being in sanitary, squalid, overcrowded or otherwise a source of such danger, the Competent Authority may, unless in its opinion the buildings or the area are not capable at a reasonable expense of being rendered so fit or free from such danger, serve upon the owners of the buildings or lands in the area a notice requiring them, within such time, which shall not be less than thirty days, as may be specified in the notice, to execute such works of improvement, either within or outside the buildings or the area, as may be specified in the notice, and stating that in the opinion of the Authority those works will render the buildings or the area fit for human habitation or free from such danger, as the case may be.

(2) In addition to serving a notice under this section on the owners, the Competent Authority may serve copy of the notice on every mortgagee of the building or land so far as it is reasonably practicable to ascertain such persons and further a copy of such notice shall also be displayed at some conspicuous place in the slum area for the information of the occupiers thereof. Such display of the notice shall be conclusive proof that the owners, occupiers and other persons concerned have been duly informed of the matter stated in the notice.

(3) In determining for the purposes of this Act whether the buildings can be rendered fit for human habitation or the area can be rendered free from danger aforesaid, at reasonable expense, regard shall be had to the estimated cost of the works necessary for these purposes and the value which it is estimated that the buildings or lands will have when the works are completed.

  1. Enforcement of notice requiring execution of works of improvement,-

(1) If a notice under section 5C requiring the owners of the buildings or of the lands as the case may be, to execute works of improvement is not complied with, then, after the expiration of the time specified in the notice, the Competent Authority may itself do the works required to be done by the notice.

(2) All expenses incurred by the Competent Authority under this section, together with interest, at such rate as the State Government may by order fix, from the date when a demand for the expenses is made until payment, may be recovered by the Competent Authority from the owners of the buildings or of the lands, as the case may be, as arrears of land revenue:

Provided that, if any owner proves that he-

(a) is receiving the rent merely as agent or trustee for some other person; and

(b) has not in his hands on behalf of that other person sufficient money to satisfy the whole demand of the Authority, his liability shall be limited to the total amount of the money which has in his hands aforesaid.

 

  1. Expenses of maintenance of works of improvement to be recoverable from occupiers,-

Where works of improvement have been executed in any slum area or in relation to any building or buildings in a slum area, in pursuance of the provisions of sections 5, 5C and 6, any expenses incurred by the Competent Authority or, as the case may be, any local authority, in connection with the maintenance of such works or the enjoyment of amenities and conveniences rendered possible by such works, shall be recoverable from the occupiers of the area or of buildings concerned as service charges; and if the amount due is not paid within the time specified, it shall be recoverable from the occupier concerned as arrears of land revenue.

 

  1. Restriction on buildings etc. in slum areas,-

(1) The Competent Authority may, by notification in the Official Gazette (and also published in such other manner as may be prescribed), direct that no person shall erect any building in a slum area except with the previous permission in writing of the Competent Authority.

(2) Every notification issued under sub-section (1) shall cease to have effect on the expiration of two years from the date thereof, or such extended period or periods not exceeding a further five years as the State Government may by notification in the Official Gazette (and also published in such other manner as may be prescribed) from time to time specify in this behalf, except as respect things done or omitted to be done before such cesser.

(3) Every person desiring to obtain the permission referred to in sub-section (1) shall make an application in writing to the Competent Authority in such form and containing such information in respect of the erection of the building to which the application relates as may be prescribed.

(4) On receipt of such application, the Competent Authority, after making such inquiry as it considers necessary, shall, by order in writing-

(a) either grant the permission subject to such terms and conditions, if any, as may be specified in the order; or

(b) refuse to grant such permission:

Provided that, before making an order refusing such permission, the applicant shall be given a reasonable opportunity to show cause why the permission should not be refused.

(5) Nothing contained in sub-section (1) shall apply to-

(a) any works of improvement required to be executed by a notice under sub-section (1) of section 5 or of section 5C; or in pursuance of an undertaking given under sub-section (2) of section 9; or

(b) the erection of any building in any area in respect of which a slum clearance order has been made under section 12.

 

  1. Power of Competent Authority to order demolition of buildings unfit for human habitation,-

(1) Where a Competent Authority upon a report from any of its officers, or other information in its possession is satisfied, that any building in a slum area is unfit for human habitation and is not capable at a reasonable expense of being rendered so fit, it shall serve upon the owner of the building and upon any other person having an interest in the building, whether as lessee, mortgagee or otherwise, a notice to show cause within such time as may be specified in the notice as to why an order of demolition of the building should not be made.

(2) If any of the persons upon whom a notice has been served under sub-section (1) appears in pursuance thereof before the Competent Authority and gives an undertaking to the Authority that such person shall within a period specified by the Authority execute such works of improvement in relation to the buildings as will in the opinion of the Authority render the building fit for human habitation or that it shall not be used for human habitation until the Authority on being satisfied that it has been rendered fit for that purpose cancels the undertaking, the Authority shall not make any order of demolition of the building.

(3) If no such undertaking as is mentioned in sub-section (2) is given, or if in a case where any such undertaking has been given any work of improvement to which the undertaking relates is not carried out within the specified period, or the building is at any time used in contravention of the terms of the undertaking, the Competent Authority shall forthwith make an order of demolition of the building requiring that the building shall be vacated within a period to be specified in the order not being less than thirty days, from the date of the order, and that it shall be demolished within six weeks after the expiration of that period:

Provided that, before any such order is made, the Competent Authority shall as far as practicable secure accommodation in advance for housing the occupiers who may be dishoused as a result of such demolition.

 

  1. Procedure to be followed where demolition order has been made,-

(1) Where an order for demolition of a building under section 9 has been made, the owner of the building or any other person having an interest therein shall demolish the building within the time specified in that behalf by the order; and if the building is not demolished within that time, the Competent Authority shall enter and demolish the building and sell the materials thereof.

(2) Any expenses incurred by the Competent Authority under sub-section (1), if not satisfied out of the proceeds of sale of materials of the building, shall be recoverable from the owner of the building or any other person having an interest therein as arrears of land revenue.

 

10A. Power of Competent Authority to entrust improvement and other works,-

In any slum area, the Competent Authority may, with the previous approval of the State Government and on such terms and conditions as may be agreed upon, entrust to any agency recognised by it for the purpose,–

(a) the execution, under its own supervision, of any improvement, clearance or redevelopment works;

(b) the maintenance or repairs of any such works under its control;

(c) the work of collection of service charges recoverable by and due to it.

 

 

 

 

Chapter IV

Slum Clearance And Redevelopment

 

  1. Power to declare any slum area to be a clearance area,-

(1) Where the Competent Authority, upon a report from any of its officers or other information in its possession, is satisfied as respects any slum area, that the most satisfactory method of dealing with the conditions in the area is the demolition of all the buildings in the area, the Authority shall cause that area to be defined on a map in such manner as to exclude from the area any building which is not unfit for human consumption or dangerous or injurious to health, and then it shall, by an order notified in the Official Gazette, declare the area so defined to be a clearance area, that is to say, an area to be cleared of all buildings in accordance with the provisions of this Act. The order shall also be given wide publicity in such manner as may be prescribed.

(2) Before any area is declared to be a clearance area, the Competent Authority shall satisfy itself as to the sufficiency of its resources, and ascertain the number of persons who are likely to be dishoused in such area, and thereafter, to take such measures as are practicable whether by the arrangement of its programme or by securing as far as practicable such accommodation in advance of displacements which will from time to time become necessary as the demolition of buildings in the area, or in different parts thereof proceeds, or in any other manner so as to ensure that as little hardship as possible is inflicted on those dishoused. The State Government may, subject to the provisions of Chapter V, and subject to the condition of previous publication, make rules for the purpose of carrying out the provisions of this sub-section; and without prejudice to the generality of this provision, Such rules may provide for ascertaining the number and names of persons who on a date to be specified by the Competent Authority were occupying the buildings comprised in the clearance area, for the location of the accommodation either temporary or permanent and extent of floor areas to be provided to those who are dishoused, for occupying the building after it is re-erected, for rent to be paid for the temporary accommodation provided to those who are dishoused, the circumstances in which persons provided with temporary accommodation may be evicted, and for purposes connected with the matter aforesaid. The provisions of sub-section (2) of section 46 shall apply in relation to rules made under this section as they apply to rules made under that section.

(3) The Competent Authority shall forthwith transmit to the Administrator a copy of the declaration under this section, together with a map and statement of the number of persons who, on the date specified by the Competent Authority under sub-section (2),were occupying buildings comprised in the clearance area.

 

  1. Clearance order,-

(1) As soon as may be after the Competent Authority has declared any slum area to be a clearance area, it shall make a clearance order in relation to that area, ordering the demolition of each of the buildings specified therein, and requiring each such building to be vacated within such time as may be specified in the clearance order, and shall submit the clearance order to the Administrator for confirmation.

(2) The Administrator may either confirm the clearance order in whole or subject to such variations as he considers necessary; or reject the clearance order.

(3) As soon as a clearance order is confirmed the Administrator shall publish a notice in such manner as may be prescribed, stating that the clearance order has been confirmed and naming a place where a copy of the clearance order confirmed and of the map referred to therein may be seen at all reasonable hours.

(4) Any person aggrieved by the clearance order of the Administrator may, within six weeks of the publication of the notice of the confirmation of the clearance order prefer an appeal to the Tribunal; and the decision of the Tribunal shall be final.

(5) Where any such appeal is duly made,-

(i) the Tribunal or the President may, by interim order, suspend the operation of the clearance order either generally, or in so far as it affects any property, until the final determination of the appeal; and

(ii) the Tribunal if satisfied upon hearing of the appeal that the clearance order is not within the powers of this Act, or that the interest of the appellant have been substantially prejudiced, by any requirement of this Act not having been complied with, may quash the clearance order either generally, or in so far as it affects any property of the appellant.

(6) Subject to the provisions of the last preceding sub-section, the clearance order shall become operative at the expiration of six weeks from the date on which the notice of confirmation of the clearance order is published in accordance with the provisions of this Act.

(7) When a clearance order has become operative, the owners of the buildings to which the clearance order applies shall demolish the buildings before the expiration of six weeks from the date on which the buildings are required by the clearance order to be vacated, or before the expiration of such longer period as in the circumstances of the case, the Competent Authority may deem reasonable.

(8) If the buildings are not demolished before the expiration of the period mentioned in sub-section (7), the Competent Authority may enter and demolish the buildings and sell the material thereof.

(9) Any expenses incurred by the Competent Authority in demolishing any buildings, after giving credit, for any amount realised by the sale of materials, may be recovered by the Competent Authority from the owner of the building or any person having interest therein as arrears of land revenue; and any surplus in the hands of the Competent Authority shall be paid by it to the owner of the building, or if there are more than one owner, shall be paid as those owners agree. In default of agreement between the owners, the Competent Authority shall deposit the surplus amount in Greater Bombay, in the Bombay City Civil Court, and elsewhere, in the District Court; and the decision of the Principal Judge, or as the case may be, the District Judge, on the question of distributing the surplus between the owners, shall be final.

(10) Subject to the provisions of this Act, and of any other law for the time being in force in relation to town planning and to the regulation of the erection of buildings where a clearance order has become operative, the owner of the land to which the clearance order applies, may redevelop the, land in accordance with the plans approved by the Competent Authority, and subject to such restrictions and conditions (including a condition with regard to the time within which the redevelopment, shall be completed), if any, as that Authority may think fit to impose:

Provided that an owner who is aggrieved by a restriction or condition so imposed on the user of his land, or by a subsequent refusal of the Competent Authority to cancel or modify any such restriction or condition may, within such time as may be prescribed, appeal to the Tribunal and its decision shall be final.

(11) No person shall commence or cause to be commenced any work in contravention of a plan approved or a restriction or condition imposed under sub-section (10).

 

  1. Power of Competent Authority to redevelop clearance area,-

(1) Notwithstanding anything contained in sub-section (1) of section 12 the Competent Authority may, at any time after the land has been cleared of buildings in accordance with a clearance order, but before the work of redevelopment of that land has been commenced by the owner, by order, determine to redevelop the land at its own cost, if that Authority is satisfied that it is necessary in the public interest to do so.

(2) Where land has been cleared of the buildings in accordance with a clearance order, the Competent Authority, if it is satisfied that the land has been, or is being, redeveloped by the owner thereof in contravention of plans duly approved, or any restrictions or conditions imposed under sub-section (10) of section 12, or has not been redeveloped within the time, if any, specified under such conditions, may, by order, determine to redevelop the land at its own cost:

Provided that, before passing such order, the owner shall be given a reasonable opportunity of showing cause why the order should not be passed.

 

 

 

 

Chapter V

Acquisition Of Land

 

  1. Power of State Government to acquire land,-

(1) Where on any representation from the Competent Authority it appears to the State Government that, in order to enable the Authority to execute any work of improvement or to redevelop any slum area or any structure in such area, it is necessary that such area, or any land within, adjoining or surrounded by any such area should be acquired, the State Government may acquire the land by publishing in the Official Gazette, a notice to the effect that the State Government has decided to acquire the land in pursuance of this section:

Provided that, before publishing such notice, the State Government, or as the case may be, the Competent Authority may call upon by notice the owner of, or any other person who, in its or his opinion may be interested in, such land to show cause in writing why the land should not be acquired with reasons therefore, to the Competent Authority within the period specified in the notice; and the Competent Authority shall, with all reasonable dispatch, forward any objections so submitted together with his report in respect thereof to the State Government and on considering the report and the objections, if any, the State Government may pass such order as it deems fit.

(1A) The acquisition of land for any purpose mentioned in sub-section (1) shall be deemed to be a public purpose.

(2) When a notice as aforesaid is published in the Official Gazette, the land shall on and from the date on which the notice is so published vest absolutely in the State Government free from all encumbrances.

 

  1. Power of Collector to require person in possession of land to surrender or deliver possession thereof to him, etc,-

(1) Where any land is vested in the State Government under sub-section (2) of section 14, the Collector may, by notice in writing order any person who may be in possession of the land to surrender or deliver possession thereof to him, or to any person duly authorised by him in this behalf, within thirty days of the service of the notice.

(2) If any person fails or refuses to comply with an order under sub-section (1), the Collector or such authorised person may take possession of the land, and may for that purpose use such force as may be reasonably necessary.

(3) Where any land is taken possession of as aforesaid, the Collector shall make that land available to the Competent Authority and thereupon the Competent Authority may,-

(a) itself carry out any order of demolition or execution of the work of improvement or of redevelopment; or

(b) entrust, in accordance with the provisions of section 10 A, the work of improvement or other works referred to in that section to any other agency including the Maharashtra Housing and Area Development Authority constituted under the Maharashtra Housing and Area Development Act, 1976 (Mah. XXVII of 1977) , or to a Co-operative Housing Society of the occupants on such land or occupants of any other area which has been declared as slum area under section 4.

(4) The State Government or the Collector, with the previous approval of the State Government, may, subject to such terms and conditions, as the State Government considers expedient for securing the purposes of this Act, transfer by way of lease such land with or without the improvement and other works carried out thereon, to the Co-operative Housing Societies of such occupants.

15A. Vesting of land under Slum Rehabilitation Scheme,-

(1) Notwithstanding anything contained in this Act or any other law for the time being in force, on completion of rehabilitation component of the Slum Rehabilitation Scheme implemented on the plot of land belonging to the State Government, the Municipal Corporation, the Municipal Council or the Maharashtra Housing and Area Development Authority, as the case may be, duly sanctioned by the Slum Rehabilitation Authority, the Chief Executive Officer of the Slum Rehabilitation Authority, after consultation with the land owning Authority, shall declare, within thirty days from the completion of the rehabilitation component of the Scheme, by a notification in the Official Gazette, that such land shall vest in the Slum Rehabilitation Authority:

Provided that, the provisions of this section shall apply to the Slum Rehabilitation Scheme situated within the jurisdiction of the Brihan Mumbai only if, the Slum Rehabilitation Authority has obtained no objection as envisaged under regulation 33(10) and clause 2.8 of the Appendix IV appended to the Development Control Regulations for Brihan Mumbai, 1991.

(2) The State Government, the Municipal Corporation, the Municipal Council or the Maharashtra Housing and Area Development Authority, as the case may be, shall, in respect of the Slum Rehabilitation Scheme under sub-section (1), be entitled to receive from the Slum Rehabilitation Authority a compensation as determined under section 17.

(3) The Slum Rehabilitation Authority shall recover the amount of compensation paid by it under sub-section (2), from the Developer of the Slum Rehabilitation Area or from the person in whose favour it executes the lease of such land.

(4) The Slum Rehabilitation Authority, subject to such terms and conditions as it may consider expedient for securing the purposes of this Act, shall lease that part of the land on which rehabilitation component of the Slum Rehabilitation Scheme has been constructed, to the Co-operative Society of the slum dwellers on thirty years’ lease at such annual lease rent as may be prescribed from time to time, and such lease shall be renewable for a further period of thirty years on the same terms and conditions.

(5) The Slum Rehabilitation Authority, subject to such terms and conditions as it may consider expedient for securing the purposes of this Act, shall lease that part of land on which free sale component of the Slum Rehabilitation Scheme shall be constructed, or is being constructed, to the Developer of such Scheme or to the Organisation or Association or Company or Co-operative Society formed by the purchasers of such free sale area on thirty years’ lease at such annual lease rent as may be prescribed from time to time, and such lease shall be renewable for a further period of thirty years on the same terms and conditions.

  1. Right to receive compensation,-

Every person having any interest in any land acquired under this Act shall be entitled to receive from the State Government compensation as provided hereafter in this Act.

 

  1. Basis for determination of compensation,-

(1) Where any land is acquired and vested in the State Government under this Chapter, the State Government shall pay for such acquisition compensation, the amount of which the determined in accordance with the provisions of this section.

(2) Where the amount of compensation has been determined by agreement between the State Government or as the case may be, the Collector and the person to be compensated, it shall be determined in accordance with such agreement.

(3) Where no such agreement can be reached, the amount payable as compensation in respect of any land acquired shall be an amount equal to sixty times the net average monthly income actually derived from such and during the period of the five consecutive years immediately preceding the date of publication of the notice referred to in section 14.

(4) The net average monthly income referred to in sub-section (3) shall be calculated in the manner and in accordance with the principles set out in the First Schedule.

(5) The Competent Authority shall, after holding an enquiry in the prescribed manner, determine in accordance with the provisions of sub-section (4) the net average monthly income actually derived from the land, and publish a notice in a conspicuous place on the land and serve it in the manner provided in section 36 and calling upon the owner of the land and every person interested therein the intimate to it, before a date specified in the notice, whether such owner or person agrees to the amount so determined and if he does not so agree, what, amount the claims to be the net average monthly income actually derived from the land.

(6) Any person who does not agree to the amount of the net average monthly income determined by the Competent Authority under sub-section (5), and claims a sum in excess of that amount may prefer an appeal to the Tribunal within thirty days from the date specified in the notice referred to in that sub-section.

(7) On appeal, the Tribunal shall, after hearing the appellant, determine the net average monthly income and its determination shall be final and shall not be questioned in any court of law.

(8) Where there is any building on the land in respect of which the net average monthly income has been determined, no separate compensation shall be paid in respect of such building:

Provided that, where the owner of the land and the owner of the building on such land are different, the Competent Authority shall apportion the amount of compensation between the owner of the land and the owner of the building in the same proportion as the market price of the land bears to the market price of the building on the date of the acquisition.

 

  1. Apportionment of compensation.-

(1) Where several persons claim to be interested in the amount of compensation determined under section 17, the Competent Authority shall determine the person who in its opinion are entitled to receive compensation, and the amount payable to each of them.

(2) If any dispute arises as to the apportionment of compensation or any part thereof, or as to the person to whom the same or any part thereof is payable, the Competent Authority may refer the dispute to the decision of the Tribunal; and the Tribunal in deciding any such dispute shall follow the provisions of Part III of the Land Acquisition Act, 1894 (I of 1894) and the decision of the Tribunal on the dispute shall be final and shall not be called in question in any Court or before any authority.

 

  1. Payment of compensation or deposit of the same in court,-

(1) After the amount of compensation has been determined, the Competent Authority shall, on behalf of the State Government, tender payment of, and pay the compensation to the persons entitled thereto.

(2) If the persons entitled to compensation do not consent to receive it, or if there be any dispute as to the title to receive compensation or as to the amount thereof, the Competent Authority shall deposit the amount of the Compensation in Greater Bombay, in the Bombay City Civil Court, and elsewhere in the Court of the District Judge, and that Court shall deal with the amount so deposited in the manner laid down in sections 32 and 33 of the Land Acquisition Act, 1894 (I of 1894).

 

  1. Power of competent Authority in relation to determination of compensation etc,-

(1) The Competent Authority may, for the purposes of determining the amount of compensation or apportionment thereof, require by order any person to furnish such relevant information in his possession as my be specified in the order.

(2) The Competent Authority shall, while holding an enquiry under section 17, have all the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 (V of 1908), in respect of the following matters, namely :-

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of any document;

(c) reception of evidence on affidavit;

(d) requisitioning any public record from any court or office;

(e) issuing commissions for examination of witnesses.

 

  1. Payment of interest,-

When the amount of compensation is not paid or deposited on or before taking possession of the land the Competent Authority on behalf of the State Government shall pay the amount of compensation determined with interest thereon from the time of so taking possession until the amount shall have been so paid or deposited at such rate (not being less than 4 per cent per annum) as the State Government may by order fix.

 

 

 

 

Chapter VI

Protection Of Occupiers In Slum Areas From Eviction And Distress Warrants

 

  1. Proceedings for eviction of occupiers or for issue of distress warrants not to be taken without permission of competent Authority,-

(1) Notwithstanding anything contained in any other law for the time being in force, no person shall except with the previous permission in writing of the Competent Authority,-

(a) institute, after commencement of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (Mah. XXVIII of 1971) , any suit or proceeding for obtaining any decree or order for the eviction of any occupier from any building or land in a slum area or for recovery of any arrears of rent or compensation from any such occupier, or for both; or

(b) when any decree or order is obtained in any suit or proceeding instituted before such commencement for the; eviction of an occupier from any building or land in such area or for recovery of any arrears of rent of compensation from such occupier, or for both execute such decree or order; or

(c) apply to any Judge or the Registrar of the Small Cause Court under Chapter VIII of the Presidency Small Cause Courts Act, 1882 (XV of 1882), in its application to the State of Maharashtra, or to any Court of Small Causes under Chapter IV-A of the Provincial Small Cause Courts Act, 1887 (IX of 1887), in its application to the State of Maharashtra, for a distress warrant for arrears of rent against any occupier of a house or premises in a slum area.

(1A) Notwithstanding anything contained in sub-section (1) as in force before the commencement of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) (Second Amendment) Act, 1986 (Mah. II of 1887) (hereinafter in this section referred to as “the amendment Act”) or in any other law for the time being in force, no person shall, except with the previous permission in writing of the Competent Authority,-

(a) execute any decree or order obtained in any suit or proceeding instituted during the period commencing from the 30th day of September 1985 being the date of the expiry of the Maharashtra vacant Lands (Further Interim Protection to Occupiers from Eviction and Recovery of Arrears of Rent) Act, 1980 (Mah. XVI of 1980) and the date of commencement of the amendment Act, for eviction of an occupier from any building or land in a slum area (which area was earlier purported to be covered by the definition of “Vacant land” in clause (f) of section (2) of the Maharashtra Vacant Lands (Prohibition of Unauthorised Occupation and Summary Eviction) Act, 1975 (Mah. LXVI of 1975) or for recovery of any arrears of rent or compensation from such occupier, or for both; or

(b) apply to any Judge or the Registrar of the Small Cause Court under Chapter VIII of the Presidency Small Cause Courts Act, 1882 (XV of 1882), in its application to the State of Maharashtra, or to any Court of Small Causes under Chapter IV-A of the Provincial Small Cause Courts Act, 1887 (IX of 1887), in its application to the State of Maharashtra, for a distress warrant for arrears of rent against any such occupier of a house or premises in any such slum area.

(2) Every person desiring to obtain the permission referred to in sub-section (1) or (1A) shall make an application in writing to the Competent Authority in such form and containing such particulars as may be prescribed.

(3) On receipt of such application, the Competent Authority, after giving an opportunity to the parties of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall, by order in writing, either grant or refuse to grant such permission.

(4) In granting or refusing to grant the permission under clause (a) or (b) of sub section (1) or clause (a) of sub-section (1-A)] the Competent Authority shall take into account the following factors, namely:-

(a) whether alternative accommodation within the means of the occupier would be available to him, if he were evicted;

(b) whether the eviction is in the interest of improvement and clearance of the slum area;

(b-1) whether, having regard to the relevant circumstances of each case, the total-amount of arrears of rent or compensation and the period for which it is due and the capacity of the occupier to pay the same, the occupier is ready and willing to pay the whole of the amount of arrears of rent or compensation by reasonable installments within a stipulated time;

(c) any other factors, if any, as may be prescribed.

(4A)(a) In granting or refusing to grant the permission under clause (c) of sub-section (1) or clause (b) of sub-section (1A) the Competent Authority shall take into account the following factors, namely :-

(i) what is the amount of rent and for what period it is due;

(ii) whether a notice of demand referred to in the proviso to sub- section (1) of section 53 of the Presidency Small Cause Courts Act, 1882 (XV of 1882) or in the proviso to the sub-section (1) of section 27 B of the Provisional Small Cause Courts Act, 1887 (IX of 1887), as the case may be, has been duly given to the occupier liable to pay the arrears of rent;

(iii) whether the occupier is willing to pay arrears within a stipulated time;

(iv) any other factors, if any, as may be prescribed.

(b) If, within a period of six months from the date of receipt of any application for permission under clause (c) of sub-section (1), or clause (b) of section (1A) the Competent Authority does not refuse to grant the permission, it shall be deemed to have been granted at the expiration of such period.

(5) Where the Competent Authority refuses to grant the permission under any of the clauses of subsection (1) or (1A) it shall record a brief statement of the reasons for such refusal, and furnish a copy thereof to applicant.

 

  1. Appeal,- Any person aggrieved by an order of the Competent Authority refusing to grant the permission referred to in sub-section (1) or sub-section (1A) of section 22 may, within thirty days of the date of the order, prefer an appeal to the Tribunal, and the decision of the Tribunal shall be final.

 

23-A. Recovery of rent, etc., by criminal intimidation prohibited,-

(1) No person shall –

(a) collect or attempt to collect from any occupier, referred to in section 22, any rent, compensation or other charges by threatening or causing any injury to his person, reputation or, property or to the person or reputation of any one in whom the occupier is interested;

(b) evict or attempt to evict any such occupier by force without resorting to the lawful procedure; or

(c) abet in any manner the doing of any of the abovementioned things.

(2) Whoever contravenes the provisions of sub-section (1) shall, on conviction, be punished with imprisonment for a term which may extend to three years or with fine or with both.

  1. Restoration of possession of premises vacated by tenant,-

(1) Where a tenant in occupation of any building in a slum area vacates any building, or is evicted there from, on the ground that it is required for the purpose of re-erection of the building, the tenant may, within such time as may be prescribed, file a declaration with the competent Authority that he desires to be replaced in occupation of the building after the re-erection of the buildings.

(2) On receipt of such declaration, the Competent Authority shall by order require the owner of the building to furnish to it, within such time as may be prescribed, the plans of the re-erection of the building and an estimate of the cost thereof; and such other particulars as may be necessary; and shall, on the basis of such plans and estimate and particulars, if any, furnished, and having regard to the provisions of sub-section (3) of section 25, and after holding such inquiry as it may think fit, provisionally determine the rent that would be payable by the tenant if he were to be replaced in occupation of the building in pursuance of the declaration made by him under sub-section (1).

(3) The rent provisionally determined under sub-section (2) shall be communicated in the prescribed manner to the tenant and the owner.

(4) If the tenant after the receipt of such communication intimates in writing to the Competent Authority within such time as may be prescribed that when he is replaced in occupation of the building in pursuance of the declaration made by him under sub-section (1), he would pay to the owner, until the rent is finally determined under section 25, the rent provisionally determined under sub-section (2), the Competent Authority shall direct the owner to place the tenant in occupation of the building after the re-erection of the building (and intimation of such re-erection shall be given in the manner provided in sub-section (5), and the owner shall be bound to comply with such direction.

(5) As soon as the work of carrying out re-erection of the building is nearing completion or is completed, the Competent Authority shall give notice to the tenants concerned affixing it in some conspicuous part of the building and by sending it by post to the address which may have been registered with the Competent Authority by any tenant and in such other manner as may be determined by the Competent Authority, that the building is likely to be or is ready for occupation from a specified date, and that they should occupy the building so re-erected within a period of one month from such date. If a tenant fails to occupy the building within a period of one month from the specified date, his tenancy or other right in respect of the said building shall, notwithstanding anything contained in any contract or in any law for the time being in force, be deemed to be terminated, and the owner shall be entitled to possession thereof. If such tenant has accepted the temporary accommodation provided by the Competent Authority, he shall have to vacate the same also forthwith; and if he does not vacate, he shall be liable to be evicted there from in the manner provided in section 33.

 

  1. Rent of building in slum areas,-

(1) Where any building in a slum area is let to a tenant after it has been re-erected, the rent of the building shall be determined in accordance with the provisions of this section.

(2) Where any such building is let to a tenant (other than a tenant who is placed in possession of the building in pursuance of a direction made under sub section (4) of section 24, the tenant shall be liable to pay to the owner,-

(a) If there is a general law relating to the control of rents in force in the area in which the building is situated and applicable to that building, the rent determined in accordance with the provisions of that law;

(b) If there is no such law in force in such area, such rent as may be agreed upon between the owner and the tenant.

(3) Where any such building is let to a tenant in pursuance of the direction made under sub-section (4) of section 24, the tenant shall be liable to pay to the owner an annual rent of a sum equivalent to four per cent of the aggregate cost of re-erection of the building and the cost of the land on which the building is re-erected, unless the landlord has the standard rent fixed under any law relating to the control of rents, at a higher rate.  Where the standard rent per annum is fixed at more than the annual rent aforesaid, the State Government shall pay to the owner such amount of the difference by way of subsidised rent as may be prescribed by rules made in this behalf.

            Explanation.—  For the purposes of this sub-section, the cost of the land shall be deemed to be a sum equivalent to the compensation payable in respect of the land if it were acquired under section 14, on the date of commencement of the re-erection of the building.

(4) The rent payable by a tenant in respect of any building under sub-section (3) shall, on an application made by the tenant or the owner, be determined by the authority referred to in sub-section (5):

Provided that, an application for determination of such rent by the owner or the tenant shall not, except for sufficient cause, be entertained by such authority after the expiry of ninety days from the re-erection of the building.

(5) The authority to which the application referred to in sub-section (4) shall be made, shall be,-

(a) where there is a general law relating to the control of rents in force in the area in which the building is situate, the authority to which applications may be made for fixing of rents of buildings situate in that area; and for the purpose of determining the rent under this section that authority may exercise all or any of the powers it has under such general law; and the provisions of such law including provision relating to appeals shall apply accordingly;

(b) If there is no such law in force in that area, such authority as may be specified by rules made in this behalf by the State Government, and such rules may provide the procedure that will be followed by that authority in determining the rent for appeals against the decision of such authority, and also for the levy of court-fees in such applications and appeals.

(6) Where the rent is finally determined under this section, then the amount of rent provisionally determined as aforesaid and paid by the tenant shall be adjusted against the rent so finally determined; and if the amount so paid falls short of or is in excess of, the rent finally determined, the tenant shall pay the deficiency, or be entitled to a refund, as the case may be.

 

  1. Chapter not to apply to eviction of tenants from certain buildings,-

Nothing in this Chapter shall apply to, or in relation to, the eviction under any law of a tenant from any building in a slum area belonging to Government, the Nagpur Improvement Trust constituted under the Nagpur Improvement Trust act, 1936 (C.P and Berar XXXVI of 1936) or any, local authority.

 

 

 

 

Chapter VII

Miscellaneous

 

  1. Power of entry,-

It shall he lawful for any person authorised by the Competent Authority in this behalf to enter into or upon any building of land for the purposes of this Act with or without assistants or workmen, in order to make any inquiry, inspection, measurement, valuation or survey, or to execute any work which is authorised by or under this Act or which it is necessary to execute for any of the purposes or in pursuance of any of the provisions this Act or of any notice, rule or order made there under.

 

  1. Powers of inspection,-

(1) The Competent Authority may, by general or special order, authorise any person,-

(a) to inspect any drain, latrine, urinal, cesspool, pipe, sewer or channel in or on any building or land, to which the provisions of this Act apply, and in his discretion, to cause the ground to he opened for the purposes of preventing or removing any nuisance arising from the drain, latrine, urinal, cesspool, pipe, sewer or channel, as the case may be;

(b) to examine works under construction in a slum area, to take levels or to remove, test, examine, replace or read any meter.

(2) If, on such inspection the opening of the ground is found to be necessary for the prevention or removal of a nuisance, the expenses thereby incurred shall be paid by the owner or occupier of the land or building, but if it is found that no nuisance exists, or but for such opening would have arisen the ground or portion of any building, drain or other work opened, damaged or removed for the purpose of such inspection shall be filled in, reinstated or made good, as the case may be, by the Competent Authority at its own cost.

 

  1. Power to enter land adjoining land where work is in progress,-

(1) Any person authorised by the Competent Authority in this behalf may with or without assistants or workmen, enter on any land within fifty yards of any work authorised by or under this Act for the purpose of depositing thereon any soil, gravel, stone or other materials or for obtaining access to such work or for any other purposes connected with the carrying on of the same.

(2) The person so authorised shall, before entering on any land under sub-section (1), state the purpose thereof, and shall, if so required by the occupier or owner, fence off so much of the land as may be required for such purpose.

(3) The person so Authorised shall, in exercising any power conferred by this section, do as little damage as may be, and compensation shall be payable by the Competent Authority to the owner or occupier of such land or to both for any such damage, whether permanent or temporary.

 

  1. Breaking into building,-

It shall be lawful for any person authorised in writing by the Competent Authority in this behalf to make any entry into any place, to open or caused to be opened any door, gate or other barrier-

(a) if the considers the opening thereof necessary for the purpose of such entry; and

(b) if the owner or occupier is absent, or being present, refuses to open such door, gate or barrier.

 

  1. Entry to be made in day time,-

No entry authorised by or under this Act shall be made except at reasonable hours and between the hours of sun rise and sun set.

  1. Occupier’s or owner’s consent ordinarily to be obtained,-

Save as provided in this Act, no building or land shall be entered without the consent of the occupier, or if there be no occupier, of the owner thereof, and no such entry shall be made without giving the said occupier or owner, as the case may be, not less than twenty four hours written notice of the intention to make such entry:

Provided that, no such notice shall be necessary if the place to be inspected is a shed for cattle or a latrine, urinal or work under construction.

 

  1. Power of eviction to be exercised only by the Competent Authority,-

Where the Competent Authority is satisfied either upon a representation from the owner of a building or upon other information in its possession that the occupants of the building have not vacated it in pursuance of any order or direction issued or given by the Authority, the Authority shall, by order, direct the eviction of the occupants from the building in such manner and within such time as may be specified in the order, and for the purpose of such eviction, may use or caused to be used such force as may be necessary:

Provided that, before making any order under this section, the Competent Authority shall give a reasonable opportunity to the occupants of the building to show cause why they should not be evicted therefrom.

 

33 A. Procedure for allotment of tenements to slum dwellers not willing to join the Scheme or Project,-

In respect of the slum dwellers, who are in possession or occupation of the building or structure which is part of the Slum Rehabilitation Scheme or Slum Redevelopment Project and who are held eligible for permanent alternate accommodation by the Competent Authority and who do not join such Scheme or Project willingly, the Competent Authority shall,-

(a) ensure that provision for permanent alternate accommodation for all such slum dwellers is made in the buildings to be constructed for rehabilitation component of the Scheme or project;

(b) communicate in writing to such slum dwellers that tenements would be given to them by way of allotment by drawing lots on the same basis as communicated by the Developer to those who have joined the Scheme or Project;

(c) communicate to such slum dwellers that the transit tenement of 120 square feet would be allotted to them on the amount of rent fixed by the Slum Rehabilitation Authority;

(d) cause the Chief Executive Officer, or any officer designated by him, to direct the eviction of such slum dwellers from the structure under their occupation and effect demolition of such structure or any part thereof in such manner and within such time as may be specified in the order, and for the purpose of such eviction, may use or cause to be used such force as may be necessary;

(e) communicate in writing to such slum dwellers against whom action under clause (d) is proposed that, after such action they shall not be eligible for transit tenement or for the reconstructed tenement by lots, but, shall be entitled only to what is available after others have chosen their tenements in the Scheme or Project;

(f) communicate in writing to such slum dwellers that, if they do not join till the building permission to the first building of the Scheme or Project is given, they shall lose the right to any built-up tenement, and their tenements shall be taken over by the Slum Rehabilitation Authority, and used for the purpose of accommodating other slum dwellers who cannot be accommodated in-situ, and they shall be entitled to only pitch of about 3 mtrs.x 3.5 mts. elsewhere, if and when available, and construction therein shall have to be done by such slum dwellers on their own.

             

  1. Power to remove offensive or dangerous trade from slum areas,-

The Competent Authority may, by order in writing, direct any person carrying on any dangerous or offensive trade in a slum area to remove the trade from that area within such time as may be specified in the order:

Provided that, no order under this section shall be made unless the person carrying on the trade has been afforded a reasonable opportunity of showing cause as to why the order should not be made.

 

  1. Appeals,-

(1) Except as otherwise expressly provided in this Act, any person aggrieved by any notice, order or direction issued or given by the Competent Authority may appeal to the Appellate Authority who shall be a person holding a post not below the rank of Additional Collector, to be notified by the State Government within a period of thirty days from the date of issue of such notice, order or direction.

(1A) any person,-

(a) aggrieved by any notice, order or directions issued or given by the Appellate Authority under sub-section (1), within a period of thirty days from the date of issue of such notice, order or direction;

(b) for the purpose of resolving dispute in relation to matters about eligibility of slum dweller, eligible slum dweller being denied tenement, developer not undertaking and completing the project as per the permission and approval so also within the stipulated time frame, transit accommodation being unavailable or not provided and likewise,-

may file an appeal before the Grievance Redressal Committee constituted by the State Government, by notification in the Official Gazette, for such area and consisting of the Chairperson and such number of members as the Government may deem fit. The qualification of the Chairperson and the members of the Committee and the procedure to be followed for transacting its business shall be such as may be prescribed.

(2) Every appeal under this Act shall be made by petition in writing accompanied by a copy of the notice, order or direction appealed against.

(3) On the admission of an appeal, all proceedings to enforce the notice, order or direction and all prosecutions for any contravention thereof shall be held in abeyance pending the decision of the appeal; and if the notice, order or direction is set aside on appeal, disobedience thereto shall not be deemed to be an offence.

(4) No appeal shall be decided under this section unless the appellant has been heard or has had a reasonable opportunity of being heard in person or through a legal practitioner.

(5) The decision of the Grievance Redressal Committee on appeal shall be final and shall not be questioned in any court.

 

  1. Service of notice, etc,-

(1) Every notice, order or direction issued under this Act shall, save as otherwise expressly provided in this Act, be served-

(a) by giving or tendering the notice, order or direction or by sending it by registered post to the person for whom it is intended; or

(b) if such person cannot be found, by affixing the notice, order or direction on some conspicuous part of his last known place of above or business, or by giving or tendering the notice, order or direction to some adult member or adult servant of his family or by causing it to be affixed on some conspicuous part of the building or land, if any, to which it relates.

(2) Where the person on whom a notice, order or direction is to be served is minor, service upon his guardian or upon any adult member or adult servant of his family shall be deemed to be the service upon the minor.

(3) Every notice, order or direction, which by or under this Act is to be served as a public notice order or direction or as a notice, order or direction which is not required to be served on any individual therein specified shall, save as otherwise expressly provided, be deemed to be sufficiently served if a copy thereof is affixed in such conspicuous part of the office of the Competent Authority or in such other public place during such period, or is published in such local newspaper or in such other manner, as the Competent Authority may direct.  .

 

  1. Penalty,-

(1) Whoever fails to comply with any notice, order or direction issued or given under this Act shall, on conviction, be punished with imprisonment for a term which may extend to three months or with fine which may extend to one thousands rupees, or with both.

(2) Whoever commences or causes to be commenced any work in contravention of any restriction or condition imposed under sub-section (10) of section 12, or any plan for the redevelopment of a clearance area shall, on conviction, be punished with imprisonment which may extend to three months, or with fine which may extend to one thousand rupees, or with both.

(3) Whoever obstructs the entry of any person authorised by or under this Act to enter into or upon any building or land or molests such person after such entry or incites or instigates or abets such obstruction or molestation shall, on conviction, be punished with imprisonment which may extend to three months and with fine which may extend to one thousand rupees.

(4) If the person committing an offence under this Act, is a company, every person who at the time the offence is committed was in charge of, and was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished, accordingly:

Provided that, nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(5) Notwithstanding anything contained in sub-section (3), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director or manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished, accordingly.

            Explanation.— For the purpose of this section-

(a) “Company” means a body corporate and includes a firm or other association of individuals; and

(b) “director” in relation to a firm means a partner in the firm.

 

  1. Order of demolition of buildings in certain cases,-

(1) Where the erection of any building has been commenced, or is being carried out, or has been completed, in contravention of the provisions of section 8 or of any restriction or condition imposed under sub-section (10) of section 12, or a plan for the redevelopment of any clearance area or in contravention of any notice, order or direction issued or given under this Act, the Competent Authority may, in addition to any other remedy that may be resorted to under this Act or under any other law, make an order directing that such erection shall be demolished by the owner thereof within such time not exceeding two months as may be specified in the order, and on the failure of the owner to comply with the order, the building so erected shall be liable to forfeiture or to summary demolition by an order of the Competent Authority and the expenses of such demolition shall be recoverable from the owner as arrears of land revenue:

Provided that, no such order shall be made unless the owner has been given a reasonable opportunity of being heard.

(2) Forfeiture under this section shall be adjudged by the Competent Authority, and any property so forfeited shall be disposed of as the Competent Authority may direct; and the cost of removal of the property under this section shall be recoverable as an arrears of land revenue.

(3) For the purpose of causing any building to be demolished under sub-section (1) the Competent Authority may use or cause to be used such force as may be necessary.

 

  1. Jurisdiction of Courts,-

No Court inferior to that of Magistrate of the First Class, or a Presidency Magistrate shall try an offence punishable under this Act.

  1. Previous sanction of Competent Authority for Prosecution,-

No prosecution for any offence punishable under this Act shall be instituted except with the previous sanction of the Competent Authority.

Provided that, for prosecution for the offence punishable under section 3Z-2, no such previous sanction of the Competent Authority shall be necessary.

 

  1. Protection of action taken in good faith,-

No suit, prosecution, or other legal proceedings shall lie against the Competent Authority or against any person acting under its authority for anything which is in good faith done or intended to be done under this Act or the rules made there under.

 

  1. Bar of Jurisdiction,-

Save as otherwise expressly provided in this Act, no civil court shall have jurisdiction is respect of any matter which the Appellate Authority, Competent Authority, Grievance Redressal Committee or Tribunal is empowered by or under this Act, to determine; and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

  1. Competent Authority, etc., to be public servants,-

The Competent Authority and any person authorised by it under this Act shall be deemed to be public servant within the meaning of section 21 of the Indian Penal Code (XLV of 1860).

 

  1. Tribunal to determine claims of Competent Authorities before they are recovered as arrears of land revenue,-

Where under any of the provision of this Act, any expenses incurred by a Competent Authority (which is a body corporate) under the provisions of this Act are to be recovered as arrears of land revenue and the claim of the Competent Authority in respect of such expenses is disputed, the question shall be referred to the Tribunal which shall, after making such inquiry as it may deed fit, and after giving to the person by whom the sum is alleged to be payable an opportunity of being heard, decide the question; and the decision of the Tribunal shall be final, and shall not be called in question in any court or before other authority. Where the Tribunal decides the claim in favour of the Competent Authority, then the expenses which are directed to be paid, may be paid in equal monthly installments not exceeding twenty.

44A Vacancy and temporary absence of President and other members of Tribunal,-

(1) If any vacancy occurs by reason of death, resignation or expiry of the appointment, or termination of the appointment, of the President or other members or for any reason whatsoever such vacancy shall be filled by appointment of a duly qualified person.

(2) The Tribunal shall not be deemed to be invalidly constituted merely by reason of any vacancy referred to in sub-section (1) and no decision of the Tribunal shall be called in question in any Court or before any authority only on the ground that a member of the Tribunal (not being the President) was not present, during the hearing of any proceedings before the Tribunal.

 

  1. Provisions relating to Tribunal,-

(1) In exercising the jurisdiction conferred upon it by or under this Act the Tribunal shall have the powers of a civil court for the purpose of taking evidence on oath, affirmation or affidavit, or summoning and enforcing the attendance of witnesses, of compelling discovery and the production of documents and material objects, requisitioning any public record or any copy thereof from any court of office, issuing commissions for the examination of witness or documents, and for such other purpose as may be prescribed including the power to grant stay and any other powers of a Civil Court which may be vested in the Tribunal; and the Tribunal shall be deemed to be a civil court for all the purposes of section 195,480 and 482 of the Code of Criminal Procedure, 1973 (II of 1974) and its proceedings shall be judicial proceedings within the meaning of sections 193, 219 and 228 of the Indian Penal Code (XLV of 1860).

(1A) The provisions of section 4, 5, 12 and 14 of the Limitation Act, 1963 (36 of 1963), shall apply to the filing of every appeal or application made to the Tribunal, under this Act.

(2) In the case of any affidavit to be filled any officer authorised by the Tribunal or by the President in this behalf may administer the oath to the deponent.

(3) The State Government shall from time to time place at the disposal of the Tribunal, such officers and other staff to assist the Tribunal as the State Government may from time to time determine. The remuneration and other conditions of service of the officers and other staff shall be such as may from time to time be determined by the State Government.

(3A) The term of office and other conditions of service of the President and the members of the Tribunal shall be such as may be regulated by rules made under section 46.

(4) Subject to the provisions of this Act and to the previous approval of the State Government, the President may make regulations for, regulating the practice and procedure of the Tribunal, including the award of costs by the Tribunal, the levy of any process fee, filing fee or copying or translation fees (including provisions for recovery thereof in the form of court fee stamps) the right of appearance before the Tribunal, the place or places of its sittings, the disposal by the Tribunal of any proceeding before it notwithstanding that in the course thereof there has been a change in the persons sitting as members of the Tribunal and generally for the effective exercise of its powers and discharge of its functions under this Act.

(5) The regulations made under this section shall be published in the Official Gazette.

(6) All orders passed by the Tribunal shall be executed in the same manner in which similar orders, if passed by the State Government, could have been executed.

(7) Notwithstanding anything contained in the Bombay Court-fees Act, 1959 (Bom. XXXVI of 1959) every appeal or application made to the Tribunal shall bear a court-fee stamp of one rupee if the value of the property is ten thousand rupees or less and of two rupees if such value exceeds ten thousand rupees.

 

  1. Power to make rules,-

(1) he State Government may, subject to the condition of previous publication, by notification in the Official Gazette, make rules to carry out the purposes of this Act.

Provided that, when the rules are being made for the purpose of Chapter I-C of this Act for the first time, the same may be made without pre-publishing the same.

(2) Every rule made under this section shall be laid, as soon as may be, after it is made, before each House of the State Legislature while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, and notify such decision in the Official Gazette, the rule shall, from the date of publication of such notification, have effect only in such modified form or be of no effect as the case may be, so however, that, any such modification or annulment shall be without prejudice to the validity of anything previously done or omitted to be done under that rule.

 

  1. Cesser of corresponding laws and powers conferred thereunder temporarily,-

(1) Where any area is declared to be slum area under this Act, then as from the date of such declaration, the provisions of an municipal or other law corresponding to the provisions of this Act for slum improvement in relation to the slum area in force immediately before the said date shall, save as otherwise provided in this Act, cease to/be in force in the slum area, but so long only as the said declaration remains in force.

(2) Where any area is declared to be a slum area, and any building or buildings are ordered to be demolished, under this Act, then as from the date of such order, the provisions of any municipal or other law corresponding to the provisions of this Act for slum clearance and redevelopment and demolition of buildings in force immediately before the said date shall not, save as otherwise provided in this Act, apply in relation to such building or buildings but so long as the building or buildings, as the case may be, are redeveloped.

(3) Even though any area is declared to be a slum area, as long as the order for demolition of any building or buildings is not made under this Act, nothing contained in this section shall affect the provisions of any municipal or other law for the time being in force tor slum clearance and redevelopment and demolition of buildings in the slum area:

Provided that, after any area is declared to be a slum area till the date of the order is made for demolition of any building or buildings under this Act, the powers of demolition of building conferred on the Municipal Commissioner or Chief Officer or any other officers or authorities under any such law shall notwithstanding anything contained in any such law, be exercised by them subject to the control of the State Government. For this purpose, the State Government may, from time to time issue any general or special directions to any such officers or authorities which shall be complied by them.

 

  1. Amendment of certain enactments,-

[Deleted by Mah. 2 of 1987, s. 5]

 

 

 

 

First Schedule

(See Section 17)

 

Principles for determination of the net average monthly income.

  1. The Competent Authority shall first determine the gross rent actually derived by the owner of the land acquired including any building on such land during the period of five consecutive years referred to in sub-section (4) of section 17.
  1. For such determination the Competent Authority may hold any local inquiry and obtain, if necessary certified copies of extracts from the property tax assessment books of the local authority concerned showing the rental value of such land.
  1. The net average monthly income referred to in sub-section (4) of section 17 shall be sixty per cent, of the average monthly gross rent which shall be one sixtieth of the gross rent during the five consecutive years as determined by the Competent Authority under paragraph 1.
  1. Forty percent of the gross monthly rental referred to above shall not be taken into consideration in determining the net average monthly income but shall be deducted in lieu of the expenditure which the owner of the land would normally incur for payment of any property tax to the local authority, for collection charges, income tax or bad debts as well as for works of repair and maintenance of the buildings, if any, one the land.
  1. Where the land or any portion thereof has been unoccupied or the owner has not been in receipt of any rent for the occupation of the land during the whole or any part of the said period of five years, the gross rent shall be taken to be the income which the owner would in fact have derived if the land had been leased out for rent during the said period, and for this purpose the rent actually derived from the land during a period prior or subsequent to the period during which it remained vacant or from similar land in the vicinity shall be taken into account.

 

 

 

Second Schedule

[deleted by Mah. 2 of 1987, s. 6.]

0 4469
Acts and Regulations

 REGISTRATION ACT, 1908

(16 of 1908)

[18th December, 1908]

 

An Act to consolidate the enactments relating to the Registration of Documents

 

Whereas it is expedient to consolidate the enactments relating to the registration of documents: it is hereby enacted as follows:-

 

PART I

PRELIMINARY

 

  1. Short title, extent and commencement,-
    (1) This Act may be called the Registration Act, 1908.

(2) It extends to the whole of India except the State of Jammu and Kashmir:

Provided that the State Government may exclude any district or tracts of country from its operation.

(3) It shall come into force on the first day of January, 1909.

  1. Definitions,-
    In this Act, unless there is anything repugnant in the subject or context,-

(1) “addition” means the place of residence, and the profession, trade, rank and title, (if any) of a person described, and, in the case of an Indian, his father’s name, or where he is usually described as the son of his mother, then his mother’s name;

(2) “book” includes a portion of a book and also any number of sheets connected together with a view of forming a book or portion of a book;

(3) “district” and “sub-district” respectively means a district and sub-district formed under this Act;

(4) “District Court” includes the High Court in its ordinary original civil jurisdiction;

(5) “endorsement” and “endorsed” include and apply to an entry in writing by a registering officer on a rider or covering slip to any document tendered for registration under this Act;

(6) “immovable property” includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass;

(6A) “India” means the territory of India excluding the State of Jammu and Kashmir;

(7) “lease” includes a counterpart, kabuliyat, an undertaking to cultivate or occupy, and an agreement to lease;

(8) “minor” means a person who, according to the personal law to which he is subject, has not attained majority;

(9) “movable property” includes standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property; and

(10) “representative” includes the guardian of a minor and the committee or other legal curator of a lunatic or idiot.

 

 

PART II

OF THE REGISTRATION ESTABLISHMENT

 

  1. Inspector- General of Registration,-

(1) The State Government shall appoint an officer to be the Inspector General of Registration for the territories subject to such government:

Provided that the State Government may, instead of making such appointment, direct that all or any of the powers and duties hereinafter conferred and imposed upon the Inspector-General shall be exercised and performed by such officer or officers, and within such local limits, as the State Government appoints in this behalf.

(2) Any Inspector-General may hold simultaneously any other office under the Government.

 

  1. [******Repealed******] 
  2. Districts and sub-district,-
    (1) For the purposes of this Act, the State Government shall form districts and sub-districts, and shall prescribe, and may alter, the limits of such districts and sub-districts.

(2) The districts and sub-districts formed under this section, together with the limits thereof, and every alteration of such limits, shall be notified in the Official Gazette.

(3) Every such alteration shall take effect on such day after the date of the notification as is therein mentioned.

 

  1. Registrars and Sub-Registrars,-

The State Government may appoint such persons, whether public officers or not, as it thinks proper, to be Registrars of the several districts, and to be Sub-Registrars of the several sub-districts, formed as aforesaid, respectively.

 

  1. Offices of Registrar and Sub-Registrar,-

(1) The State Government shall establish in every district an office to be styled the office of the Registrar and in every sub-district an office or offices to be styled the office of the Sub-Registrar or the offices of the Joint Sub-Registrars.

(2) The State Government may amalgamate with any office of a Registrar any office of a Sub-Registrar subordinate to such Registrar, and may authorise any Sub-Registrar whose office has been so amalgamated to exercise and perform, in addition to his own powers and duties, all or any of the powers and duties of the Registrar to whom he is subordinate:

Provided that no such authorisation shall enable a Sub-Registrar to hear an appeal against an order passed by himself under this Act.

  1. Inspectors of Registration offices,-

(1) The State Government may also appoint officers, to be called Inspectors of Registration offices, and may prescribe the duties of such officers.

(2) Every such Inspector shall be subordinate to the Inspector-General.

 

  1. [******Repealed********] 
  2. Absence of Registrar or vacancy in his office,-
    (1) When any Registrar, other than the Registrar of a district including a Presidency-town is absent otherwise than on duty in his district, or when his office is temporarily vacant, any person whom the Inspector-General appoints in this behalf, or, in default of such appointment, the Judge of the District Court within the local limits of whose jurisdiction the Registrar’s office is situate, shall be the Registrar during such absence or until the State Government fills up the vacancy.

(2) When the Registrar of a district including a Presidency-town is absent otherwise than on duty in his district, or when his office is temporarily vacant, any person whom the Inspector-General appoints in this behalf shall be the Registrar during such absence, or until the State Government fills up the vacancy.

 

  1. Absence of Registrar on duty in his district,-

When any Registrar is absent from his office on duty in his district, he may appoint any Sub-Registrar or other person in his district to perform, during such absence, all the duties of a Registrar except those mentioned in sections 68 and 72.

 

  1. Absence of Sub-Registrar or vacancy in his office,-

When any Sub-Registrar is absent, or when his office is temporarily vacant, any person whom the Registrar of the district appoints in this behalf shall be Sub- Registrar during such absence, or until the vacancy is filled up.

 

 

  1. Report to State Government of appointments under sections 10, 11 and 12,-

(1) All appointments made under section 10, section 11 or section 12 shall be reported to the State Government by the Inspector-General.

(2) Such report shall be either special or general, as the State Government directs.

  1. Establishments of registering officers,-
    (1) [*********]

(2) The State Government may allow proper establishments for the several offices under this Act.

 

  1. Seal of registering officers,-

The several Registrars and Sub-Registrars shall use a seal bearing the following inscription in English and in such other language as the State Government directs:-

“The seal of the Registrar (or of the Sub-Registrar) of”.

 

  1. Register-books and fire-proof boxes,-
    (1) The State Government shall provide for the office of every registering officer the books necessary for the purposes of this Act.

(2) The books so provided shall contain the forms from time to time prescribed by the Inspector-General, with the sanction of the State Government, and the pages of such books shall be consecutively numbered in print, and the number of pages in each book shall be certified on the title-page by the officer by whom such books are issued.

(3) The State Government shall supply the office of every Registrar with a fire-proof box, and shall in each district make suitable provision for the safe custody of the records connected with the registration of documents in such district.

 

 

 

PART III

OF REGISTRABLE DOCUMENTS

 

  1. Documents of which registration is compulsory,-
    (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877) or this Act came or comes into force, namely:-

(a) instruments of gift of immovable property;

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees, and upwards, to or in immovable property;

(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

(e) non-testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:

Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rent reserved by which do not exceed fifty rupees.

(2) Nothing in clauses (b) and (c) of sub-section (1) applies to-

(i) any composition-deed; or

(ii) any instrument relating to shares in a joint Stock Company, notwithstanding that the assets of such company consist in whole or in part of immovable property; or

(iii) any debenture issued by any such company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except insofar as it entitles the holder to the security afforded by a registered instrument whereby the company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or

(iv) any endorsement upon or transfer of any debenture issued by any such company; or

(v) any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or

(vi) any decree or order of a court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding; or

(vii) any grant of immovable property by government; or

(viii) any instrument of partition made by a revenue-officer; or

(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871 (26 of 1871), or the Land Improvement Loans Act, 1883 (19 of 1883); or

(x) any order granting a loan under the Agriculturists Loans Act, 1884 (12 of 1884), or instrument for securing the repayment of a loan made under that Act; or

(xa) any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such treasurer of any property; or

(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or

(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a civil or revenue-officer.

            Explanation:- A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.

(3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered.

 

  1. Documents of which registration is optional,-
    Any of the following documents may be registered under this Act, namely:-

(a) instruments (other than instruments of gift and wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less than one hundred rupees, to or in immovable property;

(b) instruments acknowledging the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;

(c) leases of immovable property for any term not exceeding one year, and leases exempted under section 17;

(cc) instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less than one hundred rupees, to or in immovable property;

(d) instruments (other than wills) which purport or operate to create, declare, assign, limit or extinguish any right, title or interest to or in movable property;

(e) wills; and

(f) all other documents not required by section 17 to be registered.

 

  1. Documents in language not understood by registering officer,-
    If any document duly presented for registration be in a language which the registering officer does not understand, and which is not commonly used in the district, he shall refuse to register the document, unless it be accompanied by a true translation into a language commonly used in the district and also by a true copy.

 

  1. Documents containing interlineations, blanks, erasures or alterations,-
    (1) The registering officer may in his discretion refuse to accept for registration any document in which any interlineation, blank, erasure or alteration appears, unless the persons executing the document attest with their signatures or initials such interlineation, blank, erasure or alteration.

(2) If the registering officer registers any such document, he shall, at the time of registering the same, make a note in the register of such interlineation, blank, erasure or alteration.

 

  1. Description of property and maps or plans,-

(1) No non-testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same.

(2) Houses in towns shall be described as situate on the north or other side of the street or road (which should be specified) to which they front, and by their existing and former occupancies, and by their numbers if the houses in such street or road are numbered.

(3) Other houses and land shall be described by their name, if any, and as being the territorial division in which they are situate, and by their superficial contents, the roads and other properties on which they abut, and their existing occupancies, and also, whenever it is practicable, by reference to a government map or survey.

(4) No non-testamentary document containing a map or plan of any property comprised therein shall be accepted for registration unless it is accompanied by a true copy of the map or plan, or, in case such property is situate in several districts, by such number of true copies of the map or plans as are equal to the number of such districts.

 

  1. Description of houses and land by reference to government maps of surveys,-
    (1) Where it is, in the opinion of the State Government, practicable to describe houses, not being houses in towns, and lands by reference to a government map or survey, the State Government may, by rule made under this Act, require that such houses and lands as aforesaid shall, for the purposes of section 21, be so described.

(2) Save as otherwise provided by any rule made under sub-section (1), failure to comply with the provisions of section 21, sub-section (2) or sub-section (3), shall not disentitle a document to be registered if the description of the property to which it relates is sufficient to identify that property.

 

 

 

 PART IV

OF THE TIME OF PRESENTATION

  1. Time for presenting documents,-

Subject to the provisions contained in sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution:

Provided that a copy of a decree or order may be presented within four months from the date on which the decree or order was made or, where it is appealable, within four months from the day on which it becomes final.

23-A. Re-registration of certain documents,-

Notwithstanding anything to the contrary contained in this Act, if in any case a document requiring registration has been accepted for registration by a Registrar or Sub-Registrar from a person not duly empowered to present the same, and has been registered, any person claiming under such document may, within four months from his first becoming aware that the registration of such document is invalid, present such document or cause the same to be presented, in accordance with the provisions of Part VI for re-registration in the office of the Registrar of the district in which the document was originally registered; and upon the Registrar being satisfied that the document was so accepted for registration from a person not duly empowered to present the same, he shall proceed to the re-registration of the document as if it has not been previously registered, and as if such presentation for re-registration was a presentation for registration made within the time allowed therefor under Part IV, and all the provisions of this Act, as to registration of documents, shall apply to such re-registration; and such document, if duly re-registered in accordance with the provisions of this section, shall be deemed to have been duly registered for all purposes from the date of its original registration:

Provided that, within three months from the twelfth day of September, 1917, any person claiming under a document to which this section applies may present the same or cause the same to be presented for re-registration in accordance with this section, whatever may have been the time when he first became aware that the registration of the document was invalid.

 

  1. Documents executed by several persons at different times,-

Where there are several persons executing a document at different times, such document may be presented for registration and re-registration within four months from the date of each execution.

 

  1. Provision where delay in presentation is unavoidable,-

(1) If, owing to urgent necessity or unavoidable accident, any document executed, or copy of a decree or order made, in India is not presented for registration till after the expiration of the time hereinbefore prescribed in that behalf, the Registrar, in cases where the delay in presentation does not exceed four months, may direct that, on payment of a fine not exceeding ten times the amount of the proper registration-fee, such document shall be accepted for registration.

(2) Any application for such direction may be lodged with Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.

 

  1. Documents executed out of India,-

When a document purporting to have been executed by all or any of the parties out of India is not presented for registration till after the expiration of the time hereinbefore prescribed in that behalf, the registering officer, if satisfied-

(a) that the instrument was so executed, and

(b) that it has been presented for registration within four months after its arrival in India,

may, on payment of the proper registration-fee, accept such document for registration.

 

  1. Wills may be presented or deposited at any time,-

A will may at any time be presented for registration or deposited in manner hereinafter provided.

 

 

 

 

 PART V

OF THE PLACE OF REGISTRATION

 

  1. Place for registering documents relating to land,-

Save as in this Part otherwise provided, every document mentioned in section 17, sub-section (1), clauses (a), (b), (c), (d) and (e), section 17, sub-section (2), insofar as such document affects immovable property, and section 18, clauses (a), (b) (c) and (cc), shall be presented for registration in the office of a Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate.

 

  1. Place for registering other documents,-

(1) Every document not being a document referred to in section 28 or a copy of a decree or order, may be presented for registration either in the office of the 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 the persons executing and claiming under the document desire the same to be registered.

(2) A copy of a decree or order may be presented for registration in the office of the Sub-Registrar in whose sub-district the original decree or order was made or, where the decree or order does not affect immovable property, in the office of any other Sub-Registrar under the State Government at which all the persons claiming under the decree or order desire the copy to be registered.

 

  1. Registration by Registrars in certain cases,-

(1) Any Registrar may in his discretion receive and register any document which might be registered by any Sub-Registrar subordinate to him.

(2) The Registrar of a district in which a Presidency-Town is included and the Registrar of the Delhi district may receive and register any document referred to in section 28 without regard to the situation in any part of India of the property to which the document relates.

 

  1. Registration or acceptance for deposit at private residence,-

In ordinary cases the registration or deposit of documents under this Act shall be made only at the office of the officer authorised to accept the same for registration or deposit:

Provided that such officer may on special cause being shown attend at the residence of any person desiring to present a document for registration or to deposit a will, and accept for registration or deposit such document or will.

 

 

 

 

PART VI

OF PRESENTING DOCUMENTS FOR REGISTRATION

  1. Persons to present documents for registration,-

Except in the cases mentioned in sections 31, 88 and 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office-

(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or

(b) by the representative or assignee of such a person, or

(c) by the agent of such a person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.

 

  1. Power-of-attorney recognizable for purposes of section 32,-

(1) For the purposes of section 32, the following powers-of-attorney shall alone be recognised, namely:-

(a) if the principal at the time of executing the power-of-attorney resides in any part of India in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides;

(b) if the principal at the time aforesaid resides in any part of India in which this Act is not in force, a power-of-attorney executed before and authenticated by any Magistrate;

(c) if the principal at the time aforesaid does not reside in India, a power-of-attorney executed before and authenticated by Notary Public, or any court, Judge, Magistrate, Indian Consul or vice-consul, or representative  of the Central Government:

Provided that the following persons shall not be required to attend at any registration-office or court for the purpose of executing any such power-of attorney as is mentioned in clauses (a) and (b) of this section, namely-

(i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend;

(ii) persons who are in jail under civil or criminal process; and

(iii) persons exempt by law from personal appearance in court.

Explanation:- In this sub-section “India” means India, as defined in clause (28) of section 3 of the General Clauses Act, 1897 (10 of 1897).

(2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or court aforesaid.

(3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination.

(4) Any power-of-attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or court hereinbefore mentioned in that behalf.

 

  1. Enquiry before registration by registering officer,-

(1) Subject to the provisions contained in this Part and in sections 41, 43, 45, 69, 75, 77, 88 and 89, no document shall be registered under this Act, unless the person executing such document, or their representatives, assigns or agents authorised as aforesaid, appear before the registering officer within the time allowed for presentation under sections 23, 24, 25 and 26:

Provided that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, if any, payable under section 25, the document may be registered.

(2) Appearances under sub-section (1) may be simultaneous or at different times.

(3) The registering officer shall thereupon-

(a) enquire whether or not such document was executed by the person by whom it purports to have been executed;

(b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and

(c) in the case of any person appearing as a representative, assignee or agent, satisfy himself of the right of such person so to appear.

(4) Any application for a direction under the proviso to sub-section (1) may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.

(5) Nothing in this section applies to copies of decrees or orders.

 

  1. Procedure on admission and denial of execution respectively,-

(1)(a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, or

(b) If in the case of any person appearing by a representative, assignee or agent, such representative, assignee or agent admits the execution, or

(c) If the person executing the document is dead, and his representative or assignee appears before the registering officer and admits the execution,

the registering officer shall register the document as directed in sections 58 to 61, inclusive.

(2) The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office.

(3)(a) If any person by whom the document purports to be executed denies its execution, or

(b) if any such person appears to the registering officer to be a minor, an idiot or a lunatic, or

(c) if any person by whom the document purports to be executed is dead, and his representative or assignee denies its execution,

the registering officer shall refuse to register the document as to the person so denying, appearing or dead:

Provided that, where such officer is a Registrar, he shall follow the procedure prescribed in Part XII:

Provided Further that the State Government may, by notification in the Official Gazette, declare that any Sub-Registrar named in the notification shall, in respect of documents the execution of which is denied, be deemed to be a Registrar for the purposes of this sub-section and of Part XII.

PART VII

OF ENFORCING THE APPEARANCE OF EXECUTANTS AND WITNESSES

 

  1. Procedure where appearance of executant or witness is desired,-

If any person presenting any document for registration or claiming under any document, which is capable of being so presented, desires the appearance of any person whose presence or testimony is necessary for the registration of such document, the registering officer may, in his discretion, call upon such officer or court as the State Government directs in this behalf to issue a summons requiring him to appear at the registration-office, either in person or by duly authorised agent, as in the summons may be mentioned, and at a time named therein.

 

  1. Officer or court to issue and cause service of summons,-

The officer or court, upon receipt of the peon’s fee payable in such cases, shall issue the summons accordingly, and cause it to be served upon the person whose appearance is so required.

 

  1. Persons exempt from appearance at registration office,-

(1)(a) A person who by reason of bodily infirmity is unable without risk or serious inconvenience to appear at the registration-office, or

(b) a person in jail under civil or criminal process, or

(c) persons exempt by law from personal appearance in court, and who would but for the provisions next hereinafter contained be required to appear in person at the registration-office,

shall not be required so to appear.

(2) In the case of every such person the registration-officer shall either himself go to the house of such person, or to the jail in which he is confined, and examine him or issue a commission for his examination.

 

  1. Law as to summonses, commissions and witnesses,-

The law in force for the time being as to summonses, commissions and compelling the attendance of witnesses and for their remuneration in suits before civil courts, shall, save as aforesaid and mutatis mutandis, apply to any summons or commission issued and any person summoned to appear under the provisions of this Act.

 

 

 

 

PART VIII  

OF PRESENTING WILLS AND AUTHORITIES TO ADOPT

  1. Persons entitled to present Wills and authorities to adopt,-

(1) The testator, or after his death any person claiming as executor or otherwise under a will, may present it to any Registrar or Sub-Registrar for registration.

(2) The donor, or after his death the donee, of any authority to adopt, or the adoptive son, may present it to any Registrar or Sub-Registrar for registration.

 

  1. Registration of Wills and authorities to adopt,-

(1) A will or an authority to adopt, presented for registration by the testator or donor, may be registered in the same manner as any other document.

(2) A will or authority to adopt presented for registration by any other person entitled to present it shall be registered if the registering officer is satisfied-

(a) that the will or authority was executed by the testator or donor, as the case may be;

(b) that the testator or donor is dead; and

(c) that the person presenting the will or authority is, under section 40, entitled to present the same.

 

 

 

 

PART IX 

OF THE DEPOSIT OF WILLS

 

  1. Deposit of Wills,-

Any testator may, either personally or by duly authorised agent, deposit with any Registrar his will in a sealed cover superscribed with the name of the testator and that of his agent (if any) and with a statement of the nature of the document.

 

  1. Procedure on deposit of Wills,-

(1) On receiving such cover, the Registrar, if satisfied that the person presenting the same for deposit is the testator or his agent, shall transcribe in his Register-book No.5 the superscription aforesaid, and shall note in the same book and on the said cover the year, month, day and hour of such presentation and receipt, and the names of any persons who may testify to the identity of the testator or his agent, and any legible inscription which may be on the seal of the cover.

(2) The Registrar shall then place and retain the sealed cover in his fireproof box.

 

  1. Withdrawal of sealed cover deposited under section 42,-

If the testator who has deposited such cover wishes to withdraw it, he may apply, either personally or by duly authorised agent, to the Registrar who holds it in deposit, and such Registrar, if satisfied that the applicant is actually the testator or his agent, shall deliver the cover accordingly.

 

  1. Proceedings on death of depositor,-

(1) If, on the death of a testator who has deposited a sealed cover under section 42, application be made to the Registrar who holds it in deposit to open the same, and if the Registrar is satisfied that the testator is dead, he shall, in the applicant’s presence, open the cover, and, at the applicant’s expense, cause the contents thereof to be copied into his Book No.3.

(2) When such copy has been made, the Registrar shall re-deposit the original will.

 

  1. Saving of certain enactments and powers of courts,-

(1) Nothing hereinbefore contained shall affect the provisions of section 259 of the Indian Succession Act, 1865 (10 of 1865), or of section 81 of the Probate and Administration Act, 1881 (5 of 1881), or the power of any court by order to compel the production of any will.

(2) When any such order is made the Registrar shall, unless the will has been already copied under section 45, open the cover and cause the will to be copied into his Book No.3 and make a notice on such copy that the original has been removed in to court in pursuance of the order aforesaid.

 

 

 

 

PART X 

OF THE EFFECTS OF REGISTRATION AND NON-REGISTRATION

 

  1. Time from which registered document operates,-

A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.

 

  1. Registered documents relating to property when to take effect against oral agreements,-

All non-testamentary documents duly registered under this Act, and relating to any property, whether movable or immovable, shall take effect against any oral agreement or declaration relating to such property, unless where the agreement or declaration has been accompanied or followed by delivery of possession and the same constitutes a valid transfer under any law for the time being in force:

Provided that a mortgage by deposit of title-deeds as defined in section 58 of the Transfer of Property Act, 1882 (4 of 1882), shall take effect against any mortgage-deed subsequently executed and registered which relates to the same property.

 

  1. Effect of non-registration of documents required to be registered,-

No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882) to be registered shall-

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power,

unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (1 of 1877), or as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property Act, 1882 (4 of 1882), or as evidence of any collateral transaction not required to be effected by registered instrument.

 

  1. Certain registered documents relating to land to take effect against unregistered documents,-

(1) Every document of the kinds mentioned in clauses (a), (b), (c) and (d) of section 17, sub-section (1), and clauses (a) and (b) of section 18, shall, if duly registered, take effect as regards the property comprised therein, against every unregistered document relating to the same property, and not being a decree or order, whether such unregistered document be of the same nature as the registered document or not.

(2) Nothing in sub-section (1) applies to leases exempted under the proviso to sub-section (1) of section 17 or to any document mentioned in sub-section (2) of the same section, or to any registered document which had not priority under the law in force at the commencement of this Act.

Explanation:- In cases where Act No. XVI of 1864 or the Indian Registration Act, 1866 (20 of 1866), was in force in the place and at the time in and at which such unregistered document was executed, “unregistered” means not registered according to such Act, and, where the document is executed after the first day of July, 1871, not registered under the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act.

 

 

 

PART XI 

OF THE DUTIES AND POWERS OF REGISTERING OFFICERS

 

(A) As to the register-books and indexes

 

  1. Register books to be kept in the several offices,-

(1) The following books shall be kept in the several offices hereinafter named, namely:-

(A) In all registration offices-

Book 1, “Register of non-testamentary documents relating to immovable

property”;

Book 2, “Record of reasons for refusal to register”;

Book 3, “Register of wills and authorities to adopt”; and

Book 4, “Miscellaneous Register”;

(B) In the offices of Registrar’s-

Book 5, “Register of deposits of wills”.

(2) In Book 1 shall be entered or filed all documents or memoranda registered under sections 17,18 and 89 which relate to immovable property, and are not wills.

(3) In Book 4 shall be entered all documents registered under clauses (d) and (f) of section 18 which do not relate to immovable property.

(4) Nothing in this section shall be deemed to require more than one set of books where the office of the Registrar has been amalgamated with the office of a Sub-Registrar.

  1. Duties of registering officers when document presented,-

                                     (1)(a) The day, hour and place of presentation, and the signature of every person presenting a document for registration, shall be endorsed on every such document at the time of presenting it;

(b) a receipt for such document shall be given by the registering officer to the person presenting the same; and

(c) subject to the provisions contained in section 62, every document admitted to registration shall without unnecessary delay be copied in the book appropriated therefor according to the order of its admission.

(2) All such books shall be authenticated at such intervals and in such manner as is from time to time prescribed by the Inspector-General.

  1. Entries to be numbered consecutively,-

All entries in each book shall be numbered in a consecutive series, which shall commence and terminate with the year, a fresh series being commenced at the beginning of each year.

 

  1. Current indexes and entries therein,-

In every office in which any of the books hereinbefore mentioned are kept, there shall be prepared current indexes of the contents of such books, and every entry in such indexes shall be made, so far as practicable, immediately after the registering officer has copied, or filed a memorandum of, the document to which it relates.

 

  1. Indexes to be made by registering officers, and their contents,-

(1) Four such indexes shall be made in all registration offices, and shall be named, respectively, Index No.I,-Index No.II, Index No.III and Index No. IV.

(2) Index No.I shall contain the names and additions of all persons executing and of all persons claiming under every document entered or memorandum filed in Book No.1.

(3) Index No. II shall contain such particulars mentioned in section 21 relating to every such document and memorandum as the Inspector-General from time to time directs in that behalf.

(4) Index No. III shall contain the names and additions of all persons executing every will and authority entered in Book No. 3, and of the executors and persons respectively appointed thereunder, and after the death of the testator or the donor (but not before) the names and additions of all persons claiming under the same.

(5) Index No. IV shall contain the names and additions of all persons executing and of all persons claiming under every document entered in Book No. 4.

(6) Each Index shall contain such other particulars, and shall be prepared in such form, as the Inspector-General from time to time directs.

 

  1. Copy of entries in Indexes Nos. I, II and III to be sent by Sub-Registrar to Registrar and filed,-

[Repealed by the Indian Registration (Amendment) Act, 1929]

 

  1. Registering officers to allow inspection of certain books and indexes, and to give certified copies of entries,-

(1) Subject to the previous payment of the fees payable in that behalf, the Book Nos. 1 and 2 and the Indexes relating to Book No. 1 shall be at all times open to inspection by any person applying to inspect the same; and, subject to the provisions of section 62, copies of entries in such books shall be given to all persons applying for such copies.

(2) Subject to the same provisions, copies of entries in Book No.3 and in the Index relating thereto shall be given to the persons executing the documents to which such entries relate, or to their agents, and after the death of the executants (but not before) to any person applying for such copies.

(3) Subject to the same provisions, copies of entries in Book No.4 and in the Index relating thereto shall be given to any person executing or claiming under the documents to which such entries respectively refer, or to his agent or representative.

(4) The requisite search under the section for entries in Book Nos. 3 and 4 shall be made only by the registering officer.

(5) All copies given under this section shall be signed and sealed by the registering officer, and shall be admissible for the purpose of proving the contents of the original documents.

(B) As to the procedure on admitting to registration

 

  1. Particulars to be endorsed on documents admitted to registration,-

(1) On every document admitted to registration, other than a copy of a decree or order, or a copy sent to a registering officer under section 89, there shall be endorsed from time to time the following particulars, namely,-

(a) the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assignee or agent of any person, the signature and addition of such representative, assignee or agent;

(b) the signature and addition of every person examined in reference to such document under any of the provisions of this Act; and

(c) any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.

(2) If any person admitting the execution of a document refuses to endorse the same, the registering officer shall nevertheless register it, but shall at the same time endorse a note of such refusal.

 

  1. Endorsements to be dated and signed by registering officer,-

The registering officer shall affix the date and his signature to all endorsements made under sections 52 and 58, relating to the same document and made in his presence on the same day.

 

  1. Certificate of registration,-

(1) After such of the provisions of sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word “registered “, together with the number and page of the book in which the document has been copied.

(2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in section 59 have occurred as therein mentioned.

 

  1. Endorsements and certificate to be copied and document returned,-

(1) The endorsements and certificate referred to and mentioned in sections 59 and 60 shall thereupon be copied into the margin of the Register-book, and the copy of the map or plan (if any) mentioned in section 21 shall be filed in Book No.1.

(2) The registration of the document shall thereupon be deemed complete, and the document shall then be returned to the person who presented the same for registration, or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in section 52.

 

  1. Procedure on presenting document in language unknown to registering officer,-

(1) When a document is presented for registration under section 19, the translation shall be transcribed in the register of documents of the nature of the original, and, together with the copy referred to in section 19, shall be filed in the registration office.

(2) The endorsements and certificate respectively mentioned in sections 59 and 60 shall be made on the original, and, for the purpose of making the copies and memoranda required by sections 57, 64, 65 and 66, the translation shall be treated as if it were the original.

 

  1. Power to administer oaths and record of substances of statements,-

(1) Every registering officer may at his discretion administer an oath to any person examined by him under the provisions of this Act.

(2) Every such officer may also at his discretion record a notice of the substance of the statement made by each such person, and such statement shall be read over, or (if made in a language with which such person is not acquainted) interpreted to him in a language with which he is acquainted, and, if he admits the correctness of such notice, it shall be signed by the registering officer.

(3) Every such note so signed shall be admissible for the purpose of proving that the statements therein recorded were made by the persons and under the circumstances therein stated.

(C) Special duties of Sub-Registrar

 

  1. Procedure where document relates to land in several Sub-Districts,- Every Sub-Registrar on registering a non-testamentary document relating to immovable property not wholly situate in his own sub-district shall make a memorandum thereof and of the endorsement and certificate (if any) thereon, and send the same to every other Sub-Registrar subordinate to the same Registrar as himself in whose sub-district any part of such property is situate, and such Sub-Registrar shall file the memorandum in his Book No.1.

 

  1. Procedure where document relates to land in several Districts,-

(1) Every Sub-Registrar on registering a non-testamentary document relating to immovable property situate in more districts than one shall also forward a copy thereof and of the endorsement and certificate (if any) thereon, together with a copy of the map or plan (if any) mentioned in section 21, to the Registrar of every district in which any part of such property is situate other than district in which his own sub-district is situate.

(2) The Registrar on receiving the same shall file in his Book No.1 the copy of the document and the copy of the map or plan (if any), and shall forward a memorandum of the document to each of the Sub-Registrars subordinate to him within whose sub-district any part of such property is situate; and every Sub-Registrar receiving such memorandum shall file in his Book No.1.

(D) Special duties of Registrar

 

  1. Procedure after registration of documents relating to land,-

(1) On registering any non-testamentary document relating to immovable property the Registrar shall forward a memorandum of such document to each Sub-Registrar subordinate to himself in whose sub-district any part of the property is situate.

(2) The registrar shall also forward a copy of such document together with copy of the map or plan (if any) mentioned in section 21, to every other Registrar in whose district any part of such property is situate.

(3) Such Registrar on receiving any such copy shall file it in his Book No.1, and shall also send a memorandum of the copy to each of the Sub-Registrars subordinate to him within whose sub-district any part of the property is situate.

(4) Every Sub-Registrar receiving any memorandum under this section shall file it in this Book No.1.

 

  1. Procedure after registration under section 30, sub-section (2),-

On any document being registered under section 30, sub-section (2), a copy of such document and of the endorsements and certificate thereon shall be forwarded to every Registrar within whose district any part of the property to which the instrument relates is situate, and the Registrar receiving such copy shall follow the procedure prescribed for him in section 66, sub-section (1).

(E) Of the controlling powers of Registrars and Inspector-General

 

  1. Powers of Registrar to superintend and control Sub-Registrars,-

(1) Every Sub-Registrar shall perform the duties of his office under the superintendence and control of the Registrar in whose district the office of such Sub-Registrar is situate.

(2) Every Registrar shall have authority to issue (whether on complaint or otherwise) any order consistent with this Act which he considers necessary in respect of any act or omission of any Sub-Registrar subordinate to him or in respect of the rectification of any error regarding the book or the office in which any document has been registered.

 

  1. Power of Inspector-General to superintend registration offices and make rules,-

(1) The Inspector-General shall exercise a general superintendence over all the registration-offices in the territories under the State Government, and shall have power from time to time to make rules consistent with this Act–

(a) providing for the safe custody of books, papers and documents;

(b) declaring what languages shall be deemed to be commonly used in each district;

(c) declaring what territorial divisions shall be recognised under section 21;

(d) regulating the amount of fines imposed under sections 25 and 34, respectively;

(e) regulating the exercise of the discretion reposed in the registering officer by section 63;

(f) regulating the form in which registering officers are to make memoranda of documents,

(g) regulating the authentication by Registrars and Sub-Registrars of the books kept in their respective offices under sections 51;

(gg) regulating the manner in which the instruments referred to in sub-section (2) of section 88 may be presented for registration;

(h) declaring the particulars to be contained in Index Nos. I, II, III and IV, respectively;

(i) declaring the holidays that shall be observed in the registration offices; and

(j) generally, regulating the proceedings of the Registrars and Sub-Registrars.

(2) The rules so made shall be submitted to the State Government for approval, and, after they have been approved, they shall be published in the Official Gazette, and on publication shall have effect as if enacted in this Act.

 

  1. Power of Inspector-General to remit fines,-

The Inspector-General may also, in the exercise of his discretion, remit wholly or in part the difference between any fine levied under section 25 or section 34, and the amount of the proper registration fee.

 

 

 

 

PART XII

OF REFUSAL TO REGISTER

  1. Reasons for refusal to register to be recorded,-

(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.

(2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered.

 

  1. Appeal to Registrar from orders of Sub-Registrar refusing registration on grounds other than denial of execution,-

(1) Except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of a Sub-Registrar refusing to admit a document to registration (whether the registration of such document is compulsory or optional) to the Registrar to whom such Sub-Registrar is subordinate, if presented to such Registrar within thirty days from the date of the order; and the Registrar may reverse or alter such order.

(2) If the order of the Registrar directs the document to be registered and the document is duly presented for registration within thirty days after the making of such order, the Sub-Registrar shall obey the same, and thereupon shall, so far as may be practicable, follow the procedure prescribed in sections 58, 59 and 60; and such registration shall take effect as if the document had been registered when it was first duly presented for registration.

 

  1. Application to Registrar where Sub-Registrar refuses to register on ground of denial of execution,-

(1) When a Sub-Registrar has refused to register a document on the ground that any person by whom it purports to be executed, or his representative or assign, denies its execution, any person claiming under such document, or his representative, assignee or agent authorised as aforesaid, may, within thirty days after the making of the order of refusal, apply to the Registrar to whom such Sub-Registrar is subordinate in order to establish his right to have the document registered.

(2) Such application shall be in writing and shall be accompanied by a copy of the reasons recorded under section 71, and the statements in the application shall be verified by the applicant in manner required by law for the verification of plaints.

 

  1. Procedure of Registrar on such application,-

In such case, and also where such denial as aforesaid is made before a Registrar in respect of a document presented for registration to him, the Registrar shall, as soon as conveniently may be, enquire-

(a) whether the document has been executed;

(b) whether the requirements of the law for the time being in force have been complied with on the part of the applicant or person presenting the document for registration, as the case may be, so as to entitle the document to registration.

 

  1. Order by Registrar to register and procedure thereon,-

(1) If the Registrar finds that the document has been executed and that the said requirements have been complied with, he shall order the document to be registered.

(2) If the document is duly presented for registering within thirty days after the making of such order, the registering officer shall obey the same and thereupon shall, so far as may be practicable, follow the procedure prescribed in sections 58, 59 and 60.

(3) Such registration shall take effect as if the document had been registered when it was first duly presented for registration.

(4) The Registrar may, for the purpose of any enquiry under section 74, summon and enforce the attendance of witness, and compel them to give evidence, as if he were a civil court, and he may also direct by whom the whole or any part of the costs of any such enquiry shall be paid, and such costs shall be recoverable as if they had been awarded in a suit under the Code of Civil Procedure, 1908 (5 of 1908).

 

  1. Order of refusal by Registrar,-

(1) Every Registrar refusing-

(a) to register a document except on the ground that the property to which it relates is not situate within his district or that the document ought to be registered in the office of a Sub-Registrar, or

(b) to direct the registration of a document under section 72 or section 75,

shall make an order of refusal and record the reasons for such order in his Book No. 2 and, on application made by any person executing or claiming under the document, shall, without unnecessary delay, give him a copy of the reasons so recorded.

(2) No appeal lies from any order by a Registrar under this section or section 72.

  1. Suit in case of order of refusal by Registrar,-

(1) Where the Registrar refuses to order the document to be registered, under section 72 or section 76, any person claiming under such document, or his representative, assignee or agent, may, within thirty days after the making of the order of refusal, institute in the civil court, within the local limits of whose original jurisdiction is situate the office in which the document is sought to be registered, a suit for a decree directing the document to be registered in such office if it be duly presented for registration within thirty days after the passing of such decree.

(2) The provisions contained in sub-sections (2) and (3) of section 75 shall, mutatis mutandis, apply to all documents presented for registration in accordance with any such decree, and, notwithstanding anything contained in this Act, the documents shall be receivable in evidence in such suit.

 

 

 

 

PART XIII

OF THE FEES FOR REGISTRATION, SEARCHES AND COPIES

 

  1. Fees to be fixed by State Government,-

The State Government shall prepare a table of fees payable-

(a) for the registration of documents;

(b) for searching the registers;

(c) for making or granting copies of reasons, entries or documents, before,

on or after registration;

and of extra or additional fees payable—

(d) for every registration under section 30;

(e) for the issue of commissions;

(f) for filing translations;

(g) for attending at private residences;

(h) for the safe custody and return of documents; and

(i) for such other matters as appear to the State Government necessary to

effect the purposes of this Act.

 

  1. Publication of fees,-

A table of the fees so payable shall be published in the Official Gazette, and a copy thereof in English and the vernacular language of the district shall be exposed to public view in every registration office.

 

  1. Fees payable on presentation,-

All fees for the registration of documents under this Act shall be payable on the presentation of such documents.

 

PART XIV

OF PENALTIES

  1. Penalty for incorrectly endorsing, copying, translating or registering documents with intent to injure,-

Every registering officer appointed under this Act and every person employed in his office for the purposes of this Act, who, being charged with the endorsing, copying, translating or registering of any document presented or deposited under its provisions, endorses, copies, translates or registers such document in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury, as defined in the Indian Penal Code (45 of 1860), to any person, shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.

 

  1. Penalty for making false statements, delivering false copies or translations, false personation, and abetment,-

Whoever-

(a) intentionally makes any false statement, whether on oath or not, and whether it has been recorded or not, before any officer acting in execution of this Act, in any proceeding or enquiry under this Act; or

(b) intentionally delivers to a registering officer, in any proceeding under section 19 or section 21, a false copy or translation of a document, or a false copy of a map or plan; or

(c) falsely personates another, and in such assumed character presents any document, or makes any admission or statement, or causes any summons or commission to be issued, or does any other act in any proceeding or enquiry under this Act; or

(d) abets anything made punishable by this Act-

shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.

  1. Registering officer may commence prosecutions,-

(1) A prosecution for any offence under this Act coming to the knowledge of a registering officer in his official capacity may be commenced by or with the permissions of the Inspector-General, the Registrar or the Sub-Registrar, in whose territories, district or sub-district, as the case may be, the offence has been committed.

(2) Offences punishable under this Act shall be triable by any court or officer exercising powers not less than those of a Magistrate of the second class.

 

  1. Registering officers to be deemed public servants,-

(1) Every registering officer appointed under this Act shall be deemed to be a public servant within the meaning of the Indian Penal Code (45 of 1860).

(2) Every person shall be legally bound to furnish information to such registering officer when required by him to do so.

(3) In section 228 of the Indian Penal Code (45 of 1860), the words “judicial proceeding” shall be deemed to include any proceeding under this Act.

 

 

 

 

PART XV 

MISCELLANEOUS

  1. Destruction of unclaimed documents,-

Documents (other than wills) remaining unclaimed in any registration-office for a period exceeding two years may be destroyed.

  1. Registering officer not liable for things bona fide done or refused in his official capacity,-

No registering officer shall be liable to any suit, claim or demand by reason of anything in good faith done or refused in his official capacity.

 

  1. Nothing so done invalidated by defect in appointment or procedure,- Nothing done in good faith pursuant to this Act or any Act hereby repealed, by any registering officer, shall be deemed invalid merely by reason of any defect in his appointment or procedure.

 

  1. Registration of documents executed by government officers or certain public functionaries,-

(1) Notwithstanding anything contained in this Act, it shall not be necessary for –

(a) any officer of government, or

(b) any Administrator General, Official Trustee or Official Assignee, or

(c) the Sheriff, Receiver or Registrar of a High Court, or

(d) the holder for the time being of such other public office as may be specified in a notification in the Official Gazette issued in that behalf by the State Government,

to appear in person or by agent at any registration-office in any proceeding connected with the registration of any instrument executed by him or in his favour, in his official capacity, or to sign as provided in section 58.

(2) Any instrument executed by or in favour of an officer of government or any other person referred to in sub-section (1) may be presented for registration in such manner as may be prescribed by rules made under section 69.

(3) The registering officer to whom any instrument is presented for registration under this section may, if he thinks fit, refer to any Secretary to Government or to such officer of government or other person referred to in sub-section (1) for information respecting the same and, on being satisfied of the execution thereof, shall register the instrument.

 

  1. Copies of certain orders, certificates and instruments to be sent to registering officers and filed,-

(1) Every officer granting a loan under the Land Improvement Loans Act, 1883 (19 of 1883), shall send a copy of his order to the registering officer within the local limits of whose jurisdiction the whole or any part of the land to be improved or of the land to be granted as collateral security, is situate, and such registering officer shall file the copy in his Book No.1.

(2) Every court granting a certificate of sale of immovable property under the Code of Civil Procedure, 1908 (5 of 1908), shall send a copy of such certificate to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such certificate is situate, and such officer shall file the copy in his Book No.1.

(3) Every officer granting a loan under the Agriculturists’ Loans Act, 1884 (12 of 1884), shall send a copy of any instrument whereby immovable property is mortgaged for the purpose of securing the repayment of the loan, and, if any such property is mortgaged for the same purpose in the order granting the loan, a copy also of that order, to the registering officer within the local limits of whose jurisdiction the whole or any part of the property so mortgaged is situate, and such registering officer shall file the copy or copies, as the case may be, in his Book No.1.

(4) Every revenue-officer granting a certificate of sale to the purchaser of immovable property sold by public auction shall send a copy of the certificate to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in the certificate is situate, and such officer shall file the copy in his Book No.1.

 

 

EXEMPTION FROM ACT

 

  1. Exemption of certain documents executed by or in favour of government,-

(1) Nothing contained in this Act or in the Indian Registration Act, 1877 (3 of 1877), or in the Indian Registration Act, 1871 (8 of 1871), or in any Act thereby repealed, shall be deemed to require, or to have any time required, the registration of any of the following documents or maps, namely:-

(a) documents issued, received or attested by any officer engaged in making a settlement or revision or settlement of land-revenue, and which form part of the records of such settlement; or

(b) documents and maps issued, received or authenticated by any officer engaged on behalf of government in making or revising the survey of any land, and which form part of the record of such survey; or

(c) documents which, under any law for the time being in force, are filed periodically in any revenue-office by patwaris or other officers charged with the preparation of village records; or

(d) sanads, inam, title-deeds and other documents purporting to be or to evidence grants or assignments by government of land or of any interest in land; or

(e) notice given under section 74 or section 76 of the Bombay Land-Revenue Code, 1879 (Bom Act. 5 of 1879), or relinquishment of occupancy by occupants, or of alienated land by holders of such land.

(2) All such documents and maps shall, for the purposes of sections 48 and 49, be deemed to have been and to be registered in accordance with the provisions of this Act.

 

  1. Inspection and copies of such documents,-

(1) Subject to such rules and the previous payment of such fees as the State Government, by notification in the Official Gazette, prescribes in this behalf, all documents and maps mentioned in section 90, clauses (a), (b), (c) and (e), and all registers of the documents mentioned in clause (d), shall be open to the inspection of any person applying to inspect the same, and, subject as aforesaid, copies of such documents shall be given to all persons applying for such copies.

(2) Every rule prescribed under this section or made under section 69 shall be laid, as soon as it is made, before the State Legislature.

 

  1. Burmese registration rules confirmed,-

[Repealed by the Government of India (Adaptation of Indian Laws) Order, 1937]

 

  1. Repeal,-

[Repealed by the Repealing Act, 1938]

 

 

 

 

THE SCHEDULE

Repeal of enactments
[Repealed by Repealing Act, 1938]

0 3121
Acts and Regulations

THE BOMBAY LIFTS ACT, 1939

(BOMBAY ACT NO. X OF 1939)

                                                                                                            [17th May 1939]

An Act to provide for the regulation of the construction, maintenance and, safe working of certain classes of lifts and all machinery and apparatus pertaining thereto in the State of Bombay.

WHEREAS it is expedient to provide for the regulation of the construction, maintenance and safe working of certain classes of lifts and all machinery and apparatus pertaining thereto in the State of. Bombay in manner hereinafter appearing; It is hereby enacted as follows:-

  1. Short title,-

This Act may be called the Bombay Lifts Act, 1939.

  1. Extent and Commencement,-

(1) This Act shall extend to the whole of the State of Maharashtra.

(2) It shall come into force in the Pre-Reorganisation State of Bombay on such date as the State Government may, by notification in the Official Gazette, appoint; and in that part of the State of Maharashtra to which it is extended by the Bombay Lifts (Extension) Act, 1957 (Bom XXVIII of 1958), it shall come into force on such other date as the State Government may by like notification published in the like manner, appoint.

  1. Definitions,-

In this Act, unless there is anything repugnant in the subject or context,-

(a) “Inspector of Lifts,” means an officer appointed as such by the State Government;

(b) “Licence” means a licence granted under section 5;

(c) “Lift” means a hosting mechanism equipped with a car which moves in a substantially vertical direction, is worked by power and is designed to carry passengers or goods or both;

(d) “Lift car” means the cage or car of a lift used whether for the conveyance of passengers or goods or both and includes the floor, or platform, car framed, sling and enclosing body work but shall not include a hoist or lift to which the Factories Act, 1948 (LXIII of 1948), applies;

(e) “Lift installation” includes the lift car, the lift way, the lift way enclosure and the operating mechanism of the lift and all ropes, cables, wires and plant, directly connected with the operation of the lift;

(f) “Lift way” means the shaft in which the lift car travels;

(g) “Lift way enclosure” includes any permanent substantial structure surrounding or enclosing the lift way;

 (h) “Power” means any form of energy which is not generated by human or animal agency;

(i) “Prescribed” means prescribed by rules;

(j) “Rules” means rules made under section 12.

 

  1. Permission to erect a lift,-

Every owner of a place intending to install a lift in such place after the commencement of this Act, shall make an application to such officer as the State Government may authorise in this behalf for permission to erect such lift. Such application shall be in writing and in such form as may be prescribed. Such application shall specify—

(1) the type of the lift,

(2) the rated maximum speed of the lift,

(3) the maker’s or designer’s rated capacity in weight,

(4) the maximum number of passengers in addition to the lift operator which the lift can carry,

(5) the total weight of the lift car carrying the maximum load,

(6) the weight of the counterweight,

(7) the number, description, weight and size of the supporting cables,

(8) the depth of the pit from the lowest part of the car when at the lowest floor,

(9) such details of the construction of the overhead arrangement with the weight and sizes of the beams as may be prescribed, and,

(10) such other particulars as may be prescribed.

On receipt of such application the Officer authorised under this section shall, after making such enquiry and requiring the applicant to furnish such information as may be necessary, forward the application with his remarks to the State Government. The State Government may thereupon either grant or refuse the permission. Such permission shall be valid only for a period of six months from the date on which it is granted.

  1. Licence to work a lift,-

(1) Every owner of a place who is permitted to install a lift tinder section 4, shall, within one month after the completion of the erection of such lift, deliver or send or cause to be delivered or sent to such officer as the State Government may authorise in this behalf notice in writing of such completion and shall make an application to him for a licence for working the lift.

(2) An application for a licence made under sub-section (1) shall be in such form as may be prescribed. Along with such application, such fee as may be prescribed shall be paid.

(3) On receipt of such application such officer as may be authorised in this behalf by the State Government after making such enquiry as may be necessary forward the application with his remarks to the State Government. The State Government may, thereupon, either grant or refuse the licence.

  1. Application for licence in case of existing lifts,-

(1) Notwithstanding, anything contained in sections 4 and 5 every owner of a place in which a lift has been installed before the date of the commencement of this Act, shall within two months from such date apply for a licence for the working  of  such lift.

(2) The provisions of sub-sections (2) to (4) of section 5 shall, so far as may be, apply to such application.

  1. Lift not to be operated without a licence,-

Subject to such rules as may be made in this behalf no lift shall be worked except under and in conformity with the terms of the licence granted in respect of the same:

Provided that nothing in this section shall apply to a lift installed at the date of the commencement of this Act, for a period of two months from such date or if an application for licence is made within that period in accordance with the provisions of section 6, until such application is finally disposed of under the said section.

7A. Additions and alterations to the lift installation,-

No additions or alterations other than those required to be made under Sub-section (2) of Section 8, shall be made to any lift installation except with the previous permission in writing of an officer authorised in this behalf by the State Government.

  1. Right to enter any building for inspection of lifts and lift installation,-

(1) An officer authorised in this behalf by the State Government may at any time after giving reasonable notice to the occupant enter upon any building in which lift is installed or is being installed or in connection with which an application for a licence has been received, for the purpose of inspecting the lift or the lift installation or the site thereof.

(2) Order for repairs, alterations to and discontinuance of lifts in an unsafe condition:-

If on such inspection the officer is of the opinion that any lift in any building is in an unsafe condition, he may issue an order on the owner of the building or his agent appointed under sub-section (2) of section 9, requiring such repairs or alterations to be made to such lift as he may deem necessary within the time specified therein and may also, If necessary, order the use of such lift to be discontinued until such repairs or alterations are made or such unsafe condition is removed. The owner or his agent, as the case may be, shall thereupon comply with the order within the period specified therein and shall forthwith report in writing to the officer of having so complied.

(3) Any person aggrieved by an order of the officer under sub-section (2) may, within thirty days from the dale of such order, appeal to the State Government.

(4) Notwithstanding any appeal made to the State Government under sub-section (3), any order to discontinue the use of a lift made by the officer under sub-section (2) shall be complied with, unless the State Government has suspended such order.

(5) The order made by the officer under sub-section (2), subject to an appeal to the State Government and the decision of the State Government on the appeal shall be final.

8A. Owner to give facilities for inspection,-

The owner of a building in which a lift is installed or his agent appointed under sub-section (2) of section 9 shall afford all reasonable facilities to the officer for inspecting a lift under section 8 and whenever ordered to do so by the officer shall, at his own cost procure at such inspection the attendance of the person, if any, with whom he has entered into a contract for the erection or maintenance of the lift or a representative of such person  who is competent to guide the officer in inspecting the lift.

  1. Report of accident,-

(1) Where any accident occurs in the operation of any lift which results or was likely to result in injury to any person the owner of the building in which the lift is working or if such owner has appointed an agent and has communicated his name to the Inspector of Lifts under sub-section (3) such agent shall as soon as may be after such accident give notice with full details of the accident to the Inspector of Lifts and also in the Greater Bombay to the Commissioner of Police and elsewhere to the District Magistrate or such other officer as the State Government may by order specify and the lift installation shall not be interfered with in any way and the working of such lift shall not be resumed except with the written permission of the officer authorised in this behalf by the State Government.

(2) For the purposes of sub-section (1), the owner of every building in which a lift has been installed may and if such owner does not reside in such building, shall appoint an agent who shall be a resident in the town or village in which the building is situate to give notice of any accident occurring in the operation of the lift.

(3) The name of every agent appointed under sub-section (2) shall be communicated to the Inspector of Lifts.

  1. Delegation of the powers of Government,-

The State Government may delegate any of the powers conferred on it by or under this Act to such officer as it thinks fit.

  1. Inspection of lifts,-

Every lift shall be inspected at least once in six months by an officer authorised in this behalf by the State Government. An annual fee at such rate as may be prescribed shall be charged for such inspection and such fee shall include the charges for the inspection of the motor.

11A. Recovery of fees,-

All sums payable as fees under this Act shall be recoverable as arrears of land revenue.

  1. Powers to make rules,-

(1) The State Government may, from time to time by notification in the Official Gazette, and subject to the condition of previous publication make rules to carry out the purpose of this Act.

(2) In particular and without prejudice of the generality of the foregoing provision, such rules may be made for the following matters, namely:-

(a) specifications for lifts,

(b) the manner in which erection plans of lifts shall be submitted,

(c) the manner in which the lifts may be tested,

(d) the form of application for the erection of a lift or a licence for working the same,

(e) the terms and conditions subject to which and the form in which the licences may be granted for the working of a lift under section 7,

(f) the manner in which and the terms subject to which the lifts shall be worked under section 7,

(fa) the fee payable in respect of an application for a licence for the working of a lift under section 7 and the annual fee payable for inspection of a lift under section 11, which fees may be different for different classes of Lifts, and the manner of paying such fees;

            (g) the manner in which notice of accidents shall be given and the form of such notice,

(h) the form of notice to be given under section 8,

(i) any other matter which is to be, or may be, prescribed.

(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of the State Legislature while it is in session for a total period of thirty days, which may be comprised in one session or in two successive sessions ,and if, before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule, or both Houses agree that the rule should not be made, and notify such decision in the Official Gazette, the rule shall from the date of publication of such notification have effect only in such modified form or be of no effect, as the case may be; so, however, that, any such modification or annulment shall be without prejudice to the validity of anything previously done or omitted to be done under that rule.

  1. Penalty,-

Whoever contravenes any of the provisions of this Act, rules or conditions of a licence or a direction given by the Inspector of Lifts under this Act or the rules shall, on conviction, be punishable with a fine which may extend to five hundred rupees and, in the case of a continuing contravention with an additional fine which may extend to fifty rupees for every day during which such contravention continues after conviction for the first such contravention.

13A. Service of notices, orders or documents,-

(1) Every notice, order or document by or under this Act required or authorised to be addressed to any person may be served by post or left,–

(a) where a local authority is the addressee, at the office of the local authority,

(b) where a company is the addressee, at the registered office of the Company or in the event of the registered office of the company not being in India, at the head office of the company in India;

(c) where any other person is the addressee, at the usual or last known place of abode or business of the person.

(2) Every notice, order or document by or under this Act, required or authorised to be addressed to the owner or the agent of the owner, or the occupant of any premises shall be deemed to properly addressed, if addressed by the description of the “owner” or “agent of the owner” or “occupant” of the premises (naming the premise) and may be served by delivering It or a true copy thereof, to some person on the premises or, if there is no person on the premises to whom the same can with  reasonable diligence be delivered, by affixing it on some conspicuous part of the premises.

13B. Protection for acts done in good faith,-

No suit, prosecution or other legal proceedings shall be instituted against any officer for anything which is in good faith done or intended to be done under this Act.

13C. Application of Act to lifts belonging to Government,-

The provisions of this Act shall apply to lifts installed by Government and in the application of the said provisions to such lifts, the said provisions shall be deemed to have been adapted or modified as follows:–

(1) In sub-section (1) of section 6, for the words beginning with the words “every owner” and ending with the words “working of such lift” the following shall be substituted, namely:-

“an application for a licence shall be made by Government which has or on whose behalf a lift has been installed,-

            (a) before, the commencement of the Bombay Lifts (Amendment) Act, 1955 (Bom. XXXII of 1955), within two months from the said date;

(b) before this Act is brought into force in that part of the State to which it is extended by the Bombay Lifts (Extension) Act, 1957 (Bom. XXVIII of 1958), within  two months from the date it is brought into force,

for the working of such lift.”

(2) ln the proviso to section 7, for the words “commencement of this Act, for a period of two months from such date” the following shall be substituted namely:-

“commencement of this Act, or to a lift installed by Government before the commencement of the Bombay Lifts (Amendment) Act, 1955 (Bom. XXXII of 1955), or installed before this Act is brought into force in that part of the State to which it is extended by the Bombay Lifts (Extension) Act, 1957 (Bom. XXVIII of 1958), for a period of two mouths from such commencement, or as the case may be, the date it is so brought into force.”

(3) In section 8,–

(a) In sub-section (3), for the words “the State Government” the words “the appellate authority appointed in this behalf by the State Government” shall be substituted;

            (b) in sub-sections (4) and (5), for the words “the ‘State Government,” wherever they occur, the words “the appellate authority” shall be substituted;

(4) In sub-section (2) of section 9, for the words beginning with the words “the owner of every building” and ending with the words “in such building” the following shall be substituted, namely:-

“for every building in which a lift has been installed by Government, Government”;

(5) Section 13 shall be deleted;

(6) For clause (a) of sub-section (1) of section 13A, the following shall be substituted, namely:-

            “(a) where Government is the addressee, at the office of the agent appointed by such Government under sub-section (2) of section 9;”

  1. Saving,-

Nothing contained in this Act shall affect the provisions of the Indian Electricity Act, 1910 (IX of 1910) or any rules made thereunder.

*******************************************************

0 6971
Acts and Regulations

THE INDIAN CONTRACT, 1872

(9 of 1872)

                                                                                                (25th April, 1872)

PREAMBLE.— WHEREAS it is expedient to define and amend certain parts of the law relating to contracts:-

It is hereby enacted as follows:-

PRELIMINARY

 

  1.   Short title,- This Act may be called the Indian Contract Act, 1872.

Extent and Commencement.- It extends to the whole of India except the State of Jammu and Kashmir; and it shall come into force on the first day of September, 1872.

Saving.– Nothing herein contained shall affect the provisions of any Statute, Act or Regulation not hereby expressly repealed, nor any usage or custom of trade, nor any incident of any contract, not inconsistent with the provisions of this Act.

  1. Interpretation clause,-In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:-

(a) When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal;

(b) When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise;

(c) The person making the proposal is called the “promisor” and the person accepting the proposal is called the “promisee”;

(d) When, at the desire of the promisor, the promisee or any other person has done or abstained from doing or does or abstains from doing, or promises to do or to abstain from doing something, such act or abstinence or promise is called a consideration for the promise;

(e) Every promise and every set of promises, forming the consideration for each other, is an agreement;

(f) Promises which form the consideration or part of the consideration for each other, are called reciprocal promises;

(g) An agreement not enforceable by law is said to be void;

(h) An agreement enforceable by law is a contract;

(i) An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract;

(j) A contract which ceases to be enforceable by law becomes void when it ceases to be enforceable.

 

CHAPTER I

OF THE COMMUNICATION, ACCEPTANCE AND REVOCATION OF PROPOSALS

  1. Communication, acceptance and revocation of proposals,-The communication of proposals, the acceptance of proposals, and the revocation of proposals and acceptances, respectively, are deemed to be made by an act or omission of the party proposing, accepting or revoking, by which he intends to communicate such proposal, acceptance or revocation, or which has the effect of communicating it.
  1. Communication when complete,- The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made.

The communication of an acceptance is complete,-

as against the proposer, when it is put in a course of transmission to him so as to be out of the power of the acceptor;

as against the acceptor, when it comes to the knowledge of the proposer.

The communication of a revocation is complete,-

as against the person who makes it, when it is put into a course of transmission to the person to whom it is made, so as to be out of the power of the person who makes it;

as against the person to whom it is made, when it comes to his knowledge.

Illustrations

(a) A proposes by letter, to sell a house to B at a certain price.

The communication of the proposal is complete when B receives

the letter.

(b) B accepts A’s proposal by a letter sent by post.

The communication of the acceptance is complete,-

as against A when the letter is posted;

as against B when the letter is received by A.

(c) A revokes his proposal by telegram.

The revocation is complete as against A when the telegram is despatched.  It is complete as against B when B receives it.

B revokes his acceptance by telegram. B’s revocation is complete as   against B when the telegram is despatched, and as against A when it reaches him.

  1. Revocation of proposals and acceptances,- A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards.

An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards.

Illustrations

A proposes by letter sent by post, to sell his house to B.

B accepts the proposal by a letter sent by post.

A may revoke his proposal at any time before or at the moment when B posts his letter of acceptance, but not afterwards.

B may revoke his acceptance at any time before or at the moment when the letter communicating it reaches A, but not afterwards.

  1. Revocation how made,- A proposal is revoked-

(1) by the communication of notice of revocation by the proposer to the  other party;

(2) by the lapse of the time prescribed in such proposal for its acceptance, or, if no time is so prescribed, by the lapse of a reasonable time, without communication of the acceptance;

(3) by the failure of the acceptor to fulfill a condition precedent to acceptance; or

(4) by the death or insanity of the proposer, if the fact of his death or insanity comes to the knowledge of the acceptor before acceptance.

  1. Acceptance must be absolute,- In order to convert a proposal into a promise, the acceptance must-

(1) be absolute and unqualified;

(2) be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but if he fails to do so, he accepts the

acceptance.

  1. Acceptance by performing conditions, or receiving consideration,- Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal.
  1. Promises, express and implied,- In so far as the proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied.

 

CHAPTER II

OF CONTRACTS, VOIDABLE CONTRACTS AND VOID AGREEMENTS

  1. What agreements are contracts,- All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.

Nothing herein contained shall affect any law in force in India, and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents.

  1. Who are competent to contract,- Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject.

 

  1. What is a sound mind for the purposes of contracting,- A person is said to be of sound mind for the purpose of making a contract if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests.

A person, who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind.

A person, who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind.

Illustrations

(a) A patient in a lunatic asylum, who is at intervals of sound mind, may contract during those intervals.

(b) A sane man, who is delirious from fever or who is so drunk that he cannot understand the terms of a contract or form a rational judgment as to its effect on his interests, cannot contract whilst such delirium or drunkenness lasts.

13.”Consent” defined,-Two or more persons are said to consent when they agree upon the same thing in the same sense.

14.”Free consent” defined,- Consent is said to be free when it is not caused by-

(1) coercion, as defined in section 15, or

(2) undue influence, as defined in section 16, or

(3) fraud, as defined in section 17, or

(4) misrepresentation, as defined in section 18, or

(5) mistake, subject to the provisions of sections 20, 21 and 22.

Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake.

  1. “Coercion” defined,- “Coercion” is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860), or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.

          Explanation:- It is immaterial whether the Indian Penal Code (45 of 1860) is or is not in force in the place where the coercion is employed.

Illustration

A, on board an English ship on the high seas, causes B to enter into an agreement by an act amounting to criminal intimidation under the Indian Penal Code (45 of 1860).  A afterwards sues B for breach of contract at Calcutta.  A has employed coercion, although his act is not an offence by the law of England, and although section 506 of the Indian Penal Code (45 of 1860) was not in force at the time when or place where the act was done.

           16.”Undue influence” defined,-

(1) A contract is said to be induced by  ” undue influence ” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.

(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another-

(a) where he holds a real or apparent authority over the other or where he stands in a fiduciary relation to the other; or

(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.

(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.

Nothing in this sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872. (1 of 1872)

Illustrations

(a) A having advanced money to his son, B, during his minority, upon B’s coming of age obtains, by misuse of parental influence, a bond from B for a greater amount than the sum due in respect of the advance. A employs undue influence.

(b) A, a man enfeebled by disease or age, is induced, by B’s influence over him as his medical attendant, to agree to pay B an unreasonable sum for his professional services. B employs undue influence.

(c) A, being in debt to B, the money-lender of his village, contracts a fresh loan on terms which appear to be unconscionable. It lies on B to prove that the contract was not induced by undue influence.

(d) A applies to a banker for a loan at a time when there is stringency in the money market. The banker declines to make the loan except at an unusually high rate of interest. A accepts the loan on these terms. This is a transaction in the ordinary course of business, and the contract is not induced by undue influence.

17.”Fraud” defined,- “Fraud” means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent,  with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:-

(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

(2) the active concealment of a fact by one having knowledge or belief of the fact ;

(3) a promise made without any intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be fraudulent.

           Explanation.- Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech.

Illustrations

(a) A sells, by auction, to B, a horse which A knows to be unsound. A says nothing to B about the horse’s unsoundness. This is not fraud in A.

(b) B is A’s daughter and has just come of age. Here, the relation between the parties would make it A’s duty to tell B if the horse is unsound.

(c) B says to A–“If you do not deny it, I shall assume that the horse is sound.” A says nothing. Here, A’s silence is equivalent to speech.

(d) A and B, being traders, enter upon a contract. A has private information of a change in prices which would affect B’s willingness to proceed with the contract. A is not bound to inform B.

  1. “Misrepresentation” defined,- “Misrepresentation” means and includes-

(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true

(2) any breach, of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claiming under him, by misleading another to his prejudice or to the prejudice of any one claiming under him;

(3) causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement.

  1. Voidability of agreements without free consent,- When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.

A party to a contract whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true.

            Exception.- If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless,  is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence.

          Explanation.- A fraud or misrepresentation which did not cause the consent to a contract of the party on whom such fraud was practised, or to whom such misrepresentation was made, does not render a contract voidable.

Illustrations

(a) A, intending to deceive B, falsely represents that five hundred maunds of indigo are made annually at A’s factory, and thereby induces B to buy the factory. The contract is voidable at the option of B.

(b) A, by a misrepresentation, leads B erroneously to believe that, five hundred maunds of indigo are made annually at A’s factory.  B examines the accounts of the factory, which show that only four hundred maunds of indigo have been made. After this B buys the factory. The contract is not voidable on account of A’s misrepresentation.

(c) A fraudulently informs B that A’s estate is free from encumbrance. B thereupon buys the estate. The estate is subject to a mortgage. B may either avoid the contract, or may insist on its being carried out and the mortgage debt redeemed.

(d) B, having discovered a vein of ore on the estate of A, adopts means to conceal, and does conceal, the existence of the ore from A. Through A’s ignorance B is enabled to buy the estate at an under-value. The contract is voidable at the option of A.

(e) A is entitled to succeed to an estate at the death of B ; B dies: C, having received intelligence of B’s death, prevents the intelligence reaching A and thus induces A to sell him his interest in the estate. The sale is voidable at the option of A.

19A. Power to set aside contract induced by undue influence,- When consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the party whose consent was so caused.

Any such contract may be set aside either absolutely or, if the party who was entitled to avoid it has received any benefit thereunder, upon such terms and conditions as to the Court may seem just.

Illustrations

(a) A’s son has forged B’s name to a promissory note. B, under threat of prosecuting A’s son, obtains a bond from A for the amount of the forged note. If B sues on this bond, the Court may set the bond aside.

(b) A, a money-lender, advances Rs. 100 to B, an agriculturist, and, by undue influence, induces B to execute a bond for Rs. 200 with interest at 6 per cent. per month. The Court may set the bond aside, ordering B to repay the Rs. 100 with such interest as may seem just.

  1. Agreement void where both parties are under mistake as to matter of fact,- Where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void.

          Explanation.- An erroneous opinion as to the value of the thing which forms the subject-matter of the agreement is not to be deemed a mistake as to a matter of fact.

Illustrations

(a) A agrees to sell to B a specific cargo of goods supposed to be on its way from England to Bombay. It turns out that, before the day of the bargain, the ship conveying the cargo had been cast away and the goods lost. Neither party was aware of the facts. The agreement is void.

(b) A agrees to buy from B a certain horse. It turns out that the horse was dead at the time of the bargain, though neither party was aware of the fact. The agreement is void.

(c) A, being entitled to an estate for the life of B, agrees to sell it to C. B was dead at the time of the agreement, but both parties were ignorant of the fact. The agreement is void.

  1. Effect of mistakes as to law.- A contract is not voidable because it was caused by a mistake as to any law in force in India; but a mistake as to a law not in force in India has the same effect as a mistake of fact.

Illustration

A and B make a contract grounded on the erroneous belief that a particular debt is barred by the Indian Law of Limitation: the contract is not voidable.

22.Contract caused by mistake of one party as to matter of fact,- A contract is not voidable merely because it was caused by one of the parties to it being under a mistake as to a matter of fact.

           23.What considerations and objects are lawful and what not,- The

consideration or object of an agreement is lawful, unless—

it is forbidden by law; or

is of such a nature that, if permitted, it would defeat the provisions of any

law; or

is fraudulent; or

involves or implies injury to the person or property of another or;

the Court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.

Illustrations

(a) A agrees to sell his house to B for 10,000 rupees. Here B’s promise to pay the sum of 10,000 rupees is the consideration for A’s promise to sell the house, and A’s promise to sell the house is the consideration for B’s promise to pay the 10,000 rupees. These are lawful considerations.

(b) A promises to pay B 1,000 rupees at the end of six months, if C, who owes that sum to B, fails to pay it. B promises to grant time to C accordingly. Here the promise-of each party is the consideration for the promise of the other party and they are lawful considerations.

(c) A promises, for a certain sum paid to him by B, to make good to B the value of his ship if it is wrecked on a certain voyage. Here A’s promise is the consideration for B’s payment and B’s payment is the consideration for A’s promise and these are lawful considerations.

(d) A promises to maintain B’s child and B promises to pay A 1,000 rupees yearly for the purpose. Here the promise of each party is the consideration for the promise of the other party. They are lawful considerations.

(e) A, B and C enter into an agreement for the division among them of gains acquired, or to be acquired, by them by fraud. The agreement is void, as its object is unlawful.

(f) A promises to obtain for B an employment in the public service, and B promises to pay 1,000 rupees to A. The agreement is void, as the consideration for it is unlawful.

(g) A, being agent for a landed proprietor, agrees for money, without the knowledge of his principal, to obtain for B a lease of land belonging to his principal. The agreement between A and B is void as it implies a fraud by concealment, by A, on his principal.

(h) A promises B to drop a prosecution which he has instituted against B for robbery, and B promises to restore the value of the things taken. The agreement is void, as its object is unlawful.

(i) A’s estate is sold for arrears of revenue under the provisions of an Act of the Legislature, by which the defaulter is prohibited from purchasing the estate. B, upon an understanding with A, becomes the purchaser, and agrees to convey the estate to A upon receiving from him the price which B has paid. The agreement is void, as it renders the transaction, in effect a purchase by the defaulter, and would so defeat the object of the law.

(j) A, who is B’s mukhtar, promises to exercise his influence, as such, with B in favour of C, and C promises to pay 1,000 rupees to A. The agreement is void, because it is immoral.

(k) A agrees to let her daughter to hire to B for concubinage. The agreement is void, because it is immoral, though the letting may not be punishable under the Indian Penal Code (45 of 1860).

Void agreements

 

  1. Agreement void, if considerations and objects unlawful in Part,- If any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object, is unlawful, the agreement is void.

Illustration

A promises to superintend, on behalf of B, a legal manufacture of indigo, and an illegal traffic in other articles. B promises to pay to A a salary of 10,000 rupees a year. The agreement is void, the object of A’s promise, and the consideration for B’s promise, being in part unlawful.

  1. Agreement without consideration, void, unless,- An agreement made without consideration is void, unless–

(1) It is in writing and registered:- it is expressed in writing and registered under the law for the time being in force for the registration of documents, and is made on account of natural love and affection between parties standing in a near relation to each other; or unless

(2) Or it is a promise to compensate for something done:- it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do; or unless

(3) Or it is a promise to pay a debt barred by limitation law:- it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits.

In any of these cases, such an agreement is a contract.

         Explanation 1.- Nothing in this section shall affect the validity, as between the donor and donee, of any gift actually made.

           Explanation 2.- An agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate; but the inadequacy of the consideration may be taken into account by the Court in determining the question whether the consent of the promisor was freely given.

Illustrations

(a) A promises, for no consideration, to give to B Rs. 1,000. This is a void agreement.

(b) A, for natural love and affection, promises to give his son, B, Rs. 1,000. A puts his promise to B into writing and registers it. This is a contract.

(c) A finds B’s purse and gives it to him. B promises to give A Rs. 50. This is a contract.

(d) A supports B’s infant son. B promises to pay A’s expenses in so doing. This is a contract.

(e) A owes B Rs. 1,000, but the debt is barred by the Limitation Act. A signs a written promise to pay B Rs. 500 on account of the debt. This is a contract.

(f) A agrees to sell a horse worth Rs. 1,000 for Rs. 10. A’s consent to the agreement was freely given. The agreement is a contract notwithstanding the inadequacy of the consideration.

(g) A agrees to sell a horse worth Rs. 1,000 for Rs. 10. A denies that his consent to the agreement was freely given. The inadequacy of the consideration is a fact which the Court should take into account in considering whether or not A’s consent was freely given.

  1. Agreement in restraint of marriage void,- Every agreement in restraint of the marriage of any person, other than a minor, is void.
  1. Agreement in restraint of trade void,- Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void.

            Exception1:- Saving of agreement not to carry on business of which goodwill is sold.-

          One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business, within specified local limits, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein:

Provided that such limits appear to the Court reasonable, regard being had to the nature of the business.

 

  1. Agreements in restraint of legal proceedings void,- Every agreement, by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent.

Exception 1:- Saving of contract to refer to arbitration dispute that may arise.- This section shall not render illegal a contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred.

Exception 2:- Saving of contract to refer questions that have already arisen.- Nor shall this section render, illegal any contract in writing, by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to references to arbitration.

  1. Agreements void for uncertainty,- Agreements, the meaning of which is not certain, or capable of being made certain, are void.

Illustrations

(a) A agrees to sell to B ” a hundred tons of oil “. There is nothing whatever to show what kind of oil was intended. The agreement is void for uncertainty.

(b) A agrees to sell to B one hundred tons of oil of a specified description, known as an article of commerce. There is no uncertainty here to make the agreement void.

(c) A, who is a dealer in coconut-oil only, agrees to sell to B “one hundred tons of oil”. The nature of A’s trade affords an indication of the meaning of the words, and A has entered into a contract for the sale of one hundred tons of coconut-oil.

(d) A agrees to sell to B ” all the grain in my granary at Ramnagar “. There is no uncertainty here to make the agreement void.

(e) A agrees to sell B ” one thousand maunds of rice at a price to be fixed by C “. As the price is capable of being made certain, there is no uncertainty here to make the agreement void.

(f) A agrees to sell to B ” my white horse for rupees five hundred or rupees one thousand”.  There is nothing to show which of the two prices was to be given. The agreement is void.

  1. Agreements by way of wager void,- Agreements by way of wager are void; and no suit shall be brought for recovering anything alleged to be won on any wager, or entrusted to any person to abide the result of any game or other uncertain event on which any wager is made.

            Exception in favour of certain prizes for horse-racing.-This section shall not be deemed to render unlawful a subscription or contribution, or agreement to subscribe or contribute, made or entered into for or toward any plate, prize or sum of money, of the value or amount of five hundred rupees or upwards, to be awarded to the winner or winners of any horse-race.

          Section 294A of the Indian Penal Code not affected.- Nothing in this section shall be deemed to legalize any transaction connected with horse-racing, to which the provisions of section 294A of the Indian Penal Code (45 of 1860) apply.

CHAPTER III

OF CONTINGENT CONTRACTS

  1. “Contingent contract” defined.- A ” contingent contract ” is a contract to do or not to do something, if some event, collateral to such contract, does or does not happen.

Illustration

A contracts to pay B Rs. 10,000 if B’s house is burnt. This is a contingent contract.

  1. Enforcement of contracts contingent on an event happening,- Contingent contracts to do or not to do anything if an uncertain future event happens cannot be enforced by law unless and until that event has happened.

If the event becomes impossible, such contracts become void.

Illustrations

(a) A makes a contract with B to buy B’s horse if A survives C. This contract cannot be enforced by law unless and until C dies in A’s lifetime.

(b) A makes a contract with B to sell a horse to B at a specified price, if C, to whom the horse has been offered, refuses to buy him. The contract cannot be enforced by law unless and until C refuses to buy the horse.

(c) A contracts to pay B a sum of money when B marries C. C dies without being married to B. The contract becomes void.

  1. Enforcement of contracts contingent on an event not happening,- Contingent contracts to do or not to do anything if an uncertain future event does not happen can be enforced when the happening of that event becomes impossible, and not before.

Illustration

A agrees to pay B a sum of money if a certain ship does not return. The ship is sunk. The contract can be enforced when the ship sinks.

  1. When event on which contract is contingent to be deemed impossible, if it is the future conduct of a living person,-  If the future event on which a contract is contingent is the way in which a person will act at an unspecified time, the event shall be considered to become impossible when such person does anything which renders it impossible that he should so act within any definite time, or otherwise than under further contingencies.

Illustration

A agrees to pay B a sum of money if B marries C. C marries D. The marriage of B to C must now be considered impossible, although it is possible that D may die and that C may afterwards marry B.

  1. When contracts become void which are contingent on happening of specified event within fixed time,- Contingent contracts to do or not to do anything if a specified uncertain event happens within a fixed time become void if, at the expiration of the time fixed, such event has not happened, or if, before the time fixed, such event becomes impossible.

            When contracts may be enforced which are contingent on specified event not happening within fixed time,- Contingent contracts to do or not to do anything if a specified uncertain event does not happen within a fixed time may be enforced by law when the time fixed has expired and such event has not happened or, before the time fixed has expired, if it becomes certain that such event will not happen.

Illustrations

(a) A promises to pay B a sum of money if a certain ship returns within a year. The contract may be enforced if the ship returns within the year and becomes void if the ship is burnt within the year.

(b) A promises to pay B a sum of money if a certain ship does not return within a year. The contract may be enforced if the ship does not return within the year, or is burnt within the year.

  1. Agreement contingent on impossible events void,- Contingent agreements to do or not to do anything, if an impossible event happens, are void, whether the impossibility of the event is known or not to the parties to the agreement at the time when it is made.

Illustrations

(a) A agrees to pay B 1,000 rupees if two straight lines should enclose a space. The agreement is void.

(b) A agrees to pay B 1,000 rupees if B will marry A’s daughter C. C was dead at the time of the agreement. The agreement is void.

CHAPTER IV

OF THE PERFORMANCE OF CONTRACTS

 

Contracts which must be performed

 

            37.Obligation of parties to contracts,- The parties to a contract must either perform, or offer to perform, their respective promises, unless such performance is dispensed with or excused under the provisions of this Act, or of any other law.

Promises bind the representatives of the promisors in case of the death of such promisors before performance, unless a contrary intention appears from the contract.

Illustrations

(a) A promises to deliver goods to B on a certain day on payment of Rs. 1,000. A dies before that day. A’s representatives are bound to deliver the goods to B, and B is bound to pay the Rs. 1,000 to A’s representatives.

(b) A promises to paint a picture for B by a certain day, at a certain price. A dies before the day. The contract cannot be enforced either by A’s representatives or by B.

 

  1. Effect of refusal to accept offer of performance,- Where a promisor has made an offer of performance to the promisee, and the offer has not been accepted, the promisor is not responsible for non performance, nor does he thereby lose his rights under the contract.

Every such offer must fulfill the following conditions:-

(1) it must be unconditional;

(2) it must be made at a proper time and place, and under such circumstances that the person to whom it is made may have a reasonable opportunity of ascertaining that the person by whom it is made is able and willing there and then to do the whole of what he is bound by his promise to do;

(3) if the offer is an offer to deliver anything to the promisee, the promisee must have a reasonable opportunity of seeing that the thing offered is the thing which the promisor is bound by his promise to deliver.

An offer to one of several joint promisees has the same legal consequences as an offer to all of them,

Illustration

A contracts to deliver to B at his warehouse, on the 1st March, 1873, 100 bales of cotton of a particular quality. In order to make an offer of a performance with the effect stated in this section, A must bring the cotton to B’s warehouse, on the appointed day, under such circumstances that B may have a reasonable opportunity of satisfying himself that the thing offered is cotton of the quality contracted for, and that there are 100 bales.

 

  1. Effect of refusal of party to perform promise wholly,- When a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance.

Illustrations

(a) A, a singer, enters into a contract with B, the manager of a theatre, to sing at his theatre two nights in every week during the next two months, and B engages to pay her 100 rupees for each night’s performance. On the sixth night A wilfully absents herself from the theatre. B is at liberty to put an end to the contract.

(b) A, a singer, enters into a contract with B, the manager of a theatre, to sing at his theatre two nights in every week during the next two months, and B engages to pay her at the rate of 100 rupees for each night. On the sixth night A wilfully absents herself. With the assent of B, A sings on the seventh night. B has signified his acquiescence in the continuance of the contract, and cannot now put an end to it, but is entitled to compensation for the damage sustained by him through A’s failure to sing on the sixth night.

By whom contracts must be performed.

  1. Person by whom promise is to be performed,- If it appears from the nature of the case that it was the intention of the parties to any contract that any promise contained in it should be performed by the promisor himself, such promise must be performed by the promisor. In other cases, the promisor or his representatives may employ a competent person to perform it.

Illustrations

(a) A promises to pay B a sum of money. A may perform this promise, either by personally paying the money to B or by causing it to be paid to B by another; and, if A dies before the time appointed for payment, his representatives must perform the promise, or employ some proper person to do so.

(b) A promises to paint a picture for B. A must perform this promise personally.

 

  1. Effect of accepting performance from third person,- When a promisee accepts performance of the promise from a third person, he cannot afterwards enforce it against the promisor.
  1. Devolution of joint liabilities,- When two or more persons have made a joint promise, then, unless a contrary intention appears by the contract, all such persons, during their joint lives, and, after the death of any of them, his representative jointly with the survivor or survivors, and, after the death of the last survivor, the representatives of all jointly, must fulfill the promise.
  1. Any one of joint promisors may be compelled to perform,- When two or; more persons make a joint promise, the promisee may, in the absence of express agreement to the contrary, compel any one or more of such joint promisors, to perform the whole of the promise.

Each promisor may compel contribution,- Each of two or more joint promisors may compel every other joint promisor to contribute equally with himself to the performance of the promise, unless a contrary intention appears from the contract.

Sharing of loss by default in contribution,- If any one of two or more joint promisors makes default in such contribution, the remaining joint promisors must bear the loss arising from such default in equal shares.

          Explanation.— Nothing in this section shall prevent a surety from recovering from his principal, payments made by the surety on behalf of the principal, or entitle the principal to recover anything from the surety on account of payments made by the principal.

Illustrations

(a) A, B and C jointly promise to pay D 3,000 rupees. D may compel either A or B or C to pay him 3,000 rupees.

(b) A, B and C jointly promise to pay D the sum of 3,000 rupees. C is compelled to pay the whole. A is insolvent, but his assets are sufficient to pay one-half of his debts. C is entitled to receive 500 rupees from A’s estate, and 1,250 rupees from B.

(c) A, B and C are under a joint promise to pay D 3,000 rupees. C is unable to pay anything, and A is compelled to pay the whole. A is entitled to receive 1,500 rupees from B.

(d) A, B and C are under a joint promise to pay D 3,000 rupees, A and B being only sureties for C. C fails to pay. A and B are compelled to pay the whole sum. They are entitled to recover it from C.

  1. Effect of release of one joint promisor,- Where two or more persons have made a joint promise, a release of one of such joint promisors by the promisee does not discharge the other joint promisor or joint promisors ; neither does it free the joint promisors so released from responsibility to the other joint promisor or joint promisors.
  1. Devolution of joint rights,- When a person has made a promise to two or more persons jointly, then, unless a contrary intention appears from the contract, the right to claim performance rests, as between him and them, with them during their joint lives, and, after the death of any of them, with the representative of such deceased person, jointly with the survivor or survivors, and, after the death of the last survivor, with the representatives of all jointly.

Illustration

A, in consideration of 5,000 rupees, lent to him by B and C, promises B and C jointly to repay them that sum with interest on a day specified. B dies. The right to claim performance rests with B’s representative jointly with C during C’s life, and after the death of C with the representatives of B and C jointly.

Time and place for performance

  1. Time for performance of promise, when no application is to be made and no time is specified,- Where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time.

           Explanation.-The question “what is a reasonable time” is, in each particular case, a question of fact.

  1. Time and place for performance of promise, where time is specified and no application to be made,- When promise is to be performed on a certain day, and the promisor has undertaken to perform it without application by the promisee, the promisor may perform it at any time during the usual hours of business on such day and at the place at which the promise ought to be performed.

Illustration

A promises to deliver goods at B’s warehouse on the first January. On that day A brings the goods to B’s warehouse, but after the usual hour for closing it, and they are not received. A has not performed his promise.

  1. Application for performance on certain day to be at proper time and place,- When a promise is to be performed on a certain day, and the promisor has not undertaken to perform it without application by the promisee, it is the duty of the, promisee to apply for performance at a proper place and within the usual hours of business.

Explanation.- The question “what is a proper time and place” is, in each particular case, a question of fact.

  1. Place for performance of promise, where no application to be made and no place fixed for performance,- When a promise is to be performed without application by the promisee, and no place is fixed for the performance of it, it is the duty of the promisor to apply to the promisee to appoint a reasonable place for the performance of the promise, and to perform it at such place.

Illustration

A undertakes to deliver a thousand maunds of jute to B on a fixed day. A must apply to B to appoint a reasonable place for the purpose of receiving it, and must deliver it to him at such place.

  1. Performance in manner or at time prescribed or sanctioned by promisee,- The performance of any promise may be made in any manner, or at any time which the promisee prescribes or sanctions.

Illustrations

(a) B owes A 2,000 rupees. A desires B to pay the amount to A’s account with C, a banker. B, who also banks with C, orders the amount to be transferred from his account to A’s credit, and this is done by C. Afterwards, and before A knows of the transfer, C fails. There has been a good payment by B.

(b) A and B are mutually indebted. A and B settle an account by setting off one item against another, and B pays A the balance found to be due from him upon such settlement. This amounts to a payment by A and B, respectively, of the sums which they owed to each other.

(c) A owes B 2,000 rupees. B accepts some of A’s goods in reduction of the debt. The delivery of goods operates as a part payment.

(d) A desires B, who owes him Rs. 100, to send him a note for Rs. 100 by post. The debt is discharged as soon as B puts into the post a letter containing the note duly addressed to A.

Performance of reciprocal promises

  1. Promisor not bound to perform, unless reciprocal promisee ready and willing to perform,- When a contract consists of reciprocal promises to be simultaneously performed, no promisor need perform his promise unless the promisee is ready and willing to perform his reciprocal promise.

Illustrations

(a) A and B contract that A shall deliver goods to B to be paid for by B on delivery.  A need not deliver the goods, unless B is ready and willing to pay for the goods on delivery.  B need not pay for the goods, unless A is ready and willing to deliver them on payment.

(b) A and B contract that A shall deliver goods to B at a price to be paid by instalments, the first instalment to be paid on delivery.  A need not deliver, unless B is ready and willing to pay the first instalment on delivery.  B need not pay the first instalment, unless A is ready and willing to deliver the goods on payment of the first instalment.

  1. Order of performance of reciprocal promises,- Where the order in which reciprocal promises are to be performed is expressly fixed by the contract, they shall be performed in that order; and, where the order is not expressly fixed by the contract, they shall be performed in that order which the nature of the transaction requires.

Illustrations

(a) A and B contract that A shall build a house for B at a fixed price. A’s promise to build the house must be performed before B’s promise to pay for it.

(b) A and B contract that A shall make over his stock-in-trade to B at a fixed price, and B promises to give security for the payment of the money. A’s promise need not be performed until the security is given, for the nature of the transaction requires that A should have security before he delivers up his stock.

  1. Liability of party preventing event on which contract is to take effect,- When a contract contains reciprocal promises, and one party to the contract prevents the other from performing his promise, the contract becomes voidable at the option of the party so prevented; and he is entitled to compensation from the other party for any loss which he may sustain in consequence of the non-performance of the contract.

Illustration

A and B contract that B shall execute certain work for A for a thousand rupees. B is ready and willing to execute the work accordingly, but A prevents him from doing so. The contract is voidable at the option of B ; and, if he elects to rescind it, he is entitled to recover from A compensation for any loss which he has incurred by its non-performance.

  1. Effect of default as to that promise which should be first performed, in contract consisting of reciprocal promises,- When a contract consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed till the other has been performed, and the promisor of the promisee last mentioned fails to perform it, such promisor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the non-performance of the contract.

Illustrations

(a) A hires B’s ship to take in and convey, from Calcutta to the Mauritius, a cargo to be provided by A, B receiving a certain freight for its conveyance.  A does not provide any cargo for the ship. A cannot claim the performance of B’s promise, and must make compensation to B for the loss which B sustains by the non-performance of the contract.

(b) A contracts with B to execute certain builder’s work for a fixed price, B supplying the scaffolding and timber necessary for the work. B refuses to furnish any scaffolding or timber, and the work cannot be executed. A need not execute the work, and B is bound to make compensation to A for any loss caused to him by the non-performance of the contract.

(c) A contracts with B to deliver to him, at a specified price, certain merchandise on board a ship which cannot arrive for a month, and B engages to pay for the merchandise within a week from the date of the contract. B does not pay within the week. A’s promise to deliver need not be performed, and B must make compensation.

(d) A promises B to sell him one hundred bales of merchandise, to be delivered next day, and B promises A to pay for them within a month. A does not deliver according to his promise. B’s promise to pay need not be performed, and A must make compensation.

  1. Effect of failure to perform at fixed time, in contract in which time is essential,- When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract.

Effect of such failure when time is not essential,- If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure.

Effect of acceptance of performance at time other than that agreed upon,- If, in case of a contract voidable on account of the promisor’s failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed, unless, at the time of such acceptance he gives notice to the promisor of his intention to do so.

  1. Agreement to do impossible act,- An agreement to do an act impossible in itself is void.

          Contract to do act afterwards becoming impossible or unlawful,- A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the Promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.

            Compensation for loss through non-performance of act known to be

impossible or unlawful,- Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise.

Illustrations

(a) A agrees with B to discover treasure by magic. The agreement is void,

(b) A and B contract to marry each other. Before the time fixed for the marriage, A goes mad. The contract becomes void.

(c) A contracts to marry B, being already married to C, and being forbidden by the law to Which he is subject to practise polygamy, A must make compensation to B for the loss caused to her by the non-performance of his promise.

(d) A contracts to take in cargo for B at a foreign port. A’s Government afterwards declares war against the country in which the port is situated. The contract becomes void when war is declared.

(e) A contracts to act at a theatre for six months in consideration of a sum paid in advance by B. On several occasions A is too ill to act. The contract to act on those occasions becomes void.

  1. Reciprocal promise to do things legal, and also other things Illegal,- Where persons reciprocally promise, firstly, to do certain things which are legal, and, secondly, under specified circumstances to do certain other things which are illegal, the first set of promises is a contract, but the second is a void agreement.

Illustration

A and B agree that A shall sell B a house for 10,000 rupees, but that, if B uses it as a gambling house, he shall pay A 50,000 rupees for it.

The first set of reciprocal promises, namely, to sell the house and to pay 10,000 rupees for it, is a contract.

The second set is for an unlawful object, namely, that B may use the house as a gambling house, and is a void agreement.

  1. Alternative promise, one branch being illegal,- In the case of an alternative promise, one branch of which is legal and the other illegal, the legal branch  alone can be enforced.

Illustration

A and B agree that A shall pay B 1,000 rupees for which B shall afterwards deliver to A either rice or smuggled opium.

This is a valid contract to deliver rice, and a void agreement as to the opium.

Appropriation of payments

  1. Application of payment where debt to be discharged is indicated,- Where a debtor, owing several distinct debts to one person, makes a payment to him, either with express intimation, or under circumstances implying that the payment is to be applied to the discharge of some particular debt, the payment, if accepted, must be applied accordingly.

Illustrations

(a) A owes B, among other debts, 1,000 rupees upon a promissory note which falls due on the first June. He owes B no other debt of that amount. On the first June A pays to B 1,000 rupees. The payment is to be applied to the discharge of the promissory note.

(b) A owes to B, among other debts, the sum of 567 rupees. B writes to A and demands payment of this sum; A sends to B 567 rupees. This payment is to be applied to the discharge of the debt of which B had demanded payment.

 

  1. Application of payment where debt to be discharged is not Indicated,- Where the debtor has omitted to intimate and there are no other circumstances, indicating to which debt the payment is to be applied, the creditor may apply it at his discretion to any lawful debt actually due and payable to him from the debtor, whether its recovery is or is not barred by the law in force for the time being as to the limitation of suits.
  1. Application of payment where neither party appropriates,- Where neither party makes any appropriation the payment shall be applied in discharge of the debts in order of time, whether they are or are not barred by the law in force for the time being as to the limitation of suits. If the debts are of equal standing, the payment shall be applied in discharge of each proportionately.

Contracts which need not be performed

  1. Effect of novation, rescission, and alteration of contract,- If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed.

Illustrations

(a) A owes money to B under a contract. It is agreed between A, B and C that B shall thenceforth accept C as his debtor, instead of A.  The old debt of A to B is at an end, and a new debt from C to B has been contracted.

(b) A owes B 10,000 rupees. A enters into an arrangement with B, and gives B a mortgage of his (A’s) estate for 5,000 rupees in place of the debt of 10,000 rupees. This is a new contract and extinguishes the old.

(c) A owes B 1,000 rupees under a contract. B owes C 1,000 rupees. B orders A to credit C with 1,000 rupees in his books, but C does not assent to the arrangement. B still owes C 1,000 rupees, and no new contract has been entered into.

  1. Promisee may dispense with or remit performance of promise,- Every promisee may dispense with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit.

Illustrations

(a) A promises to paint a picture for B. B afterwards forbids him to do so. A is no longer bound to perform the promise.

(b) A owes B 5,000 rupees. A pays to B, and B accepts, in satisfaction of the whole debt, 2,000 rupees paid at the time and place at which the 5,000 rupees were payable. The whole debt is discharged.

(c) A owes B 5,000 rupees. C pays to B 1,000 rupees, and B accepts them, in satisfaction of his claim on A. This payment is a discharge of the whole claim.

(d) A owes B, under a contract, a sum of money, the amount of which has not been ascertained. A without ascertaining the amount, gives to B, and B, in satisfaction thereof, accepts, the sum of 2,000 rupees. This is a discharge of the whole debt, whatever may be its amount.

(e) A owes B 2,000 rupees, and is also indebted to other creditors. A makes an arrangement with his creditors, including B, to pay them a composition of eight annas in the rupee upon their respective demands. Payment to B of 1,000 rupees is a discharge of B’s demand.

 

  1. Consequences of rescission of voidable contract,- When a person at whose option a contract is voidable rescinds it, the other party thereto need not perform any promise therein contained in which he is promisor. The party rescinding a voidable contract shall, if he have received any benefit thereunder from another party to such contract, restore such benefit, so far as may be, to the

person from whom it was received.

 

  1. Obligation of person who has received advantage under void agreement, or contract that becomes void,- When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.

Illustrations

(a) A pays B 1,000 rupees in consideration of B’s promising to marry C, A’s daughter. C is dead at the time of the promise. The agreement is void, but B must repay A the 1,000 rupees.

(b) A contracts with B to deliver to him 250 maunds of rice before the first of May. A delivers 130 maunds only before that day, and none after. B retains the 130 maunds after the first of May. He is bound to pay A for them.

(c) A, a singer, contracts with B, the manager of a theatre, to sing at his theatre for two nights in every week during the next two months, and B engages to pay her a hundred rupees for each night’s performance. On the sixth night, A wilfully absents herself from the theatre, and B, in consequence, rescinds the contract. B must pay A for the five nights on which she had sung.

(d) A contracts to sing for B at a concert for 1,000 rupees, which are paid in advance. A is too ill to sing. A is not bound to make compensation, to B for the loss of the profits which B would have made if A had been able to sing, but must refund to B the 1,000 rupees paid in advance.

  1. Mode of communicating or revoking rescission of voidable contract.-The rescission of a voidable contract may be communicated or revoked in the same manner, and subject to the same rules, as apply to the communication or revocation of a proposal.
  1. Effect of neglect of promisee to afford promisor reasonable facilities for performance,- If any promisee neglects or refuses to afford the promisor reasonable facilities for the performance of his promise, the promisor is excused by such neglect or refusal as to any non-performance caused thereby.

Illustration

A contracts with B to repair B’s house.

B neglects or refuses to point out to A the places in which his house requires repair.

A is excused for the non-performance of the contract if it is caused by such neglect or refusal.

CHAPTER V

OF CERTAIN RELATIONS RESEMBLING THOSE CREATED BY CONTRACT

  1. Claim for necessaries supplied to person incapable of contracting, or on his account,- If a person, incapable of entering into a contract, or any one whom he is legally bound to support, is supplied by another person with necessaries suited to his condition in life, the person who has furnished such supplies is entitled to be reimbursed from the property of such incapable person.

Illustrations

(a) A supplies B, a lunatic, with necessaries suitable to his condition in life. A is entitled to be reimbursed from B’s property.

(b) A supplies the wife and children of B, a lunatic, with necessaries suitable to their condition in life. A is entitled to be reimbursed from B’s property.

  1. Reimbursement of person paying money due by another, in payment of which he is interested,- A person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other.

Illustration

B holds land in Bengal, on a lease granted by A, the zamindar.  The revenue payable by A to the Government being in arrear, his land is advertised for sale by the Government. Under the revenue law, the consequence of such sale will be the annulment of B’s lease. B, to prevent the sale and the consequent annulment of his own lease, pays to the Government the sum due from A. A is bound to make good to B the amount so paid.

  1. Obligation of person enjoying benefit of non-gratuitous act,- Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.

Illustrations

(a) A, a tradesman, leaves goods at B’s house by mistake. B treats the goods as his own. He is bound to pay A for them.

(b) A saves B’s property from fire. A is not entitled to compensation from B, if the circumstances show that he intended to act gratuitously.

  1. Responsibility of finder of goods,- A person who finds goods belonging to another, and takes them into his custody, is subject to the same responsibility as a bailee.
  1. Liability of person to whom money is paid or thing delivered by mistake or under coercion,- A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it.

Illustrations

(a) A and B jointly owe 100 rupees to C. A alone pays the amount to C, and B, not knowing this fact, pays 100 rupees over again to C. C is bound to repay the amount to B.

(b) A railway company refuses to deliver up certain goods to the consignee, except upon the payment of an illegal charge for carriage. The consignee pays the sum charged in order to obtain the goods. He is entitled to recover so much of the charge as was illegally excessive.

CHAPTER VI

OF THE CONSEQUENCES OF BREACH OF CONTRACT

  1. Compensation for loss or damage caused by breach of contract,- When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.

Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach.

Compensation for failure to discharge obligation resembling those created by contract,- When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract.

      Explanation.— In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account.

Illustrations

(a) A contracts to sell and deliver 50 maunds of saltpetre to B, at a certain price to be paid on delivery. A breaks his promise. B is entitled to receive from A, by way of compensation, the sum, if any, by which the contract price falls short of the price for which B might have obtained 50 maunds of saltpetre of like quality at the time when the saltpetre ought to have been delivered.

(b) A hires B’s ship to go to Bombay, and there take on board, on the first of January, a cargo which A is to provide and to bring it to Calcutta, the freight to be paid when earned. B’s ship does not go to Bombay, but A has opportunities of procuring suitable conveyance for the cargo upon terms as advantageous as those on which he had chartered the ship. A avails himself of those opportunities, but is put to trouble and expense in doing so. A is entitled to receive compensation from B in respect of such trouble and expense.

(c) A contracts to buy of B, at a stated price, 50 maunds of rice, no time being fixed for delivery. A afterwards informs B that he will not accept the rice if tendered to him. B is entitled to receive from A, by way of compensation, the amount, if any, by which the contract price exceeds that which B can obtain for the rice at the time when A informs B that he will not accept it.

(d) A contracts to buy B’s ship for 60,000 rupees, but breaks his promise. A must pay to B, by way of compensation, the excess, if any, of the contract price over the price which B can obtain for the ship at the time of the breach of promise.

(e) A, the owner of a boat, contracts with B to take a cargo of jute to Mirzapur, for sale at that place, starting on a specified day. The boat, owing to some avoidable cause, does not start at the time appointed, whereby the arrival of the cargo at Mirzapur is delayed beyond the time when it would have arrived if the boat had sailed according to the contract. After that date, and before the arrival of the cargo, the price of jute falls. The measure of the compensation payable to B by A is the difference between the price which B could have obtained for the cargo at Mirzapur at the time when it would have arrived if forwarded in due course, and its market price at the time when it actually arrived.

(f) A contracts to repair B’s house in a certain manner, and receives payment in advance. A repairs the house, but not according to contract. B is entitled to recover from A the cost of making the repairs conform to the contract.

(g) A contracts to let his ship to B for a year, from the first of January, for a certain price. Freights rise, and, on the first of January, the hire obtainable for the ship is higher than the contract price. A breaks his promise. He must pay to B, by way of compensation, a sum equal to the difference between the contract price and the price for which B could hire a similar ship for a year on and from the first of January.

(h) A contracts to supply B with a certain quantity of iron at a fixed price, being a higher price than that for which A could procure and deliver the iron. B wrongfully refuses to receive the iron. B must pay to A, by way of compensation, the difference between the contract price of the iron and the sum for which A could have obtained and delivered it.

(i) A delivers to B, a common carrier, a machine, to be conveyed, without delay, to A’s mill informing B that his mill is stopped for want of the machine. B unreasonably delays the delivery of the machine, and A, in consequence, loses a profitable contract with the Government. A is entitled to receive from B, by way of

compensation, the average amount of profit which would have been made by the working of the Mill during the time that delivery of it was delayed, but not the loss sustained through the loss of the Government contract.

(j) A, having contracted with B to supply B with 1,000 tons of iron at 100 rupees a ton, to be delivered at a stated time, contracts with C for the purchase of 1,000 tons of iron at 80 rupees a ton, telling C that he does so for the purpose of performing his contract with B. C fails to perform his contract with A, who cannot procure other iron, and B, in consequence, rescinds the contract. C must pay to A 20,000 rupees, being the profit which A would have made by the performance of his contract with B.

(k) A contracts with B to make and deliver to B, by a fixed day, for a specified price, a certain piece of machinery. A does not deliver the piece of machinery at the time specified, and in consequence of this, B is obliged to procure another at a higher price than that which he was to have paid to A, and is prevented from performing a contract which B had made with a third person at the time of his contract with A (but which had not been then communicated to

A), and is compelled to make compensation for breach of that contract. A must pay to B, by way of compensation, the difference between the contract price of the piece of machinery and the sum paid by B for another, but not the sum paid by B to the third person by way of compensation.

(l) A, a builder, contracts to erect and finish a house by the first of January, in order that B may give possession of it at that time to C, to whom B has contracted to let it. A is informed of the contract between B and C. A builds the house so badly that, before the first of January, it falls down and has to be re-built by B, who, in consequence, loses the rent which he was to have received from C, and is obliged to make compensation to C for the breach of his contract.

A must make compensation to B for the cost of rebuilding the house, for the rent lost, and for the compensation made to C.

(m) A sells certain merchandise to B, warranting it to be of a particular quality, and B, in reliance upon this warranty, sells it to C with a similar warranty. The goods prove to be not according to the warranty, and B becomes liable to pay C a sum of money by way of compensation. B is entitled to be reimbursed this sum by A.

(n) A contracts to pay a sum of money to B on a day specified. A does not pay the money on that day; B, in consequence of not receiving the money on that day, is unable to pay his debts, and is totally ruined. A is not liable to make good to B anything except the principal sum he contracted to pay, together with interest up to the day of payment.

(o) A contracts to deliver 50 maunds of saltpetre to B on the first of January, at a certain price. B afterwards, before the first of January, contracts to sell the saltpetre to C at a price higher than the market price of the first of January. A breaks his promise. In estimating the compensation payable by A to B, the market price of the first of January, and not the profit which would have arisen to B from the sale to C, is to be taken into account.

(p) A contracts to sell and deliver 500 bales of cotton to B on a fixed day. A knows nothing of B’s mode of conducting his business. A breaks his promise, and B, having no cotton, is obliged to close his mill. A is not responsible to B for the loss caused to B by the closing of the mill.

(q) A contracts to sell and deliver to B, on the first of January, certain cloth which B intends to manufacture into caps of a particular kind, for which there is no demand, except at that season. The cloth is not delivered till after the appointed time, and too late to be used that year in making caps. B is entitled to receive from A, by way of compensation, the difference between the contract price of the cloth and its market price at the time of delivery, but not the profits which he expected to obtain by making caps, nor the expenses which he has been put to in making preparation for the manufacture.

(r) A, a ship-owner, Contracts with B to convey him from Calcutta to Sydney in A’s ship, sailing on the first of January, and B pays to A, by way of deposit, one-half of his passage-money. The ship does not sail on the first of January, and B, after being in consequence detained in Calcutta for some time and thereby put to some expense, proceeds to Sydney in another vessel, and, in consequence, arriving too late in Sydney, loses a sum of money. A is liable to repay to B his deposit with interest, and the expense to which he is put by his detention in Calcutta, and the excess, if any, of the passage-money paid for the second ship over that agreed upon for the first, but not the sum of money which B lost by arriving in Sydney too late.

  1. Compensation for breach of contract where penalty stipulated for,- When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for.

          Explanation.— A stipulation for increased interest from the date of default may be a stipulation by way of penalty.

          Exception.— When any person enters into any bail-bond, recognizance or other instrument of the same nature, or, under the provisions of any law, or under the orders of the Central Government or of any State Government, gives any bond for the performance of any public duty or act in which the public are interested, he shall be liable, upon breach of the condition of any such instrument, to pay the whole sum mentioned therein.

Explanation.— A person who enters into a contract with Government does not necessarily thereby undertake any public duty, or promise to do an act in which the public are interested.

Illustrations

(a) A contracts with B to pay B Rs. 1,000, if he fails to pay B Rs. 500 on a given day. A fails to pay B Rs. 500 on that day. B is entitled to recover from A such compensation, not exceeding Rs. 1,000, as the Court considers reasonable.

(b) A contracts with B that, if A practises as a surgeon within Calcutta, he will pay B Rs. 5,000. A practises as a surgeon in Calcutta. B is entitled to such compensation, not exceeding Rs. 5,000, as the Court considers reasonable.

(c) A gives a recognizance binding him in a penalty of Rs. 500 to appear in Court on a certain day. He forfeits his recognizance. He is liable to pay the whole penalty.

(d) A gives B a bond for the repayment of Rs. 1,000 with interest at 12 per cent at the end of six months, with a stipulation that, in case of default, interest shall be payable at the rate of 75 per cent from the date of default. This is a stipulation by way of penalty, and B is only entitled to recover from A such compensation as the Court considers reasonable.

(e) A, who owes money to B a money-lender, undertakes to repay him by delivering to him 10 maunds of grain on a certain date, and stipulates that, in the event of his not delivering the stipulated amount by the stipulated date, he shall be liable to deliver 20 maunds. This is a stipulation by way of penalty, and B is only entitled to reasonable compensation in case of breach.

(f) A undertakes to repay B a loan of Rs. 1,000 by five equal monthly instalments, with a stipulation that in default of payment of any instalment, the whole shall become due. This stipulation is not by way of penalty, and the contract may be enforced according to its terms.

(g) A borrows Rs. 100 from B and gives him a bond for Rs. 200 payable by five yearly instalments of Rs. 40, with a stipulation that, in default of payment of any instalment, the whole shall become due. This is a stipulation by way of penalty.

  1. Party rightfully rescinding contract entitled to compensation,- A person who rightfully rescinds a contract is entitled to compensation for any damage which he has sustained through the non-fulfilment of the contract.

Illustration

A, a singer, contracts with B, the manager of a theatre, to sing at his theatre for two nights in every week during the next two months, and B engages to pay her 100 rupees for each night’s performance. On the sixth night, A wilfully absents herself from the theatre, and B, in consequence, rescinds the contract. B is entitled to claim compensation for the damage which he has sustained through

the non-fulfilment of the contract.

CHAPTER VII

SALE OF GOODS

Sections 76-123 – Rep. by the Indian Sale of Goods Act 1930 (3 of 1930)

CHAPTER VIII

OF INDEMNITY AND GUARANTEE

  1. “Contract of indemnity” defined,- A contract by which one party promises to save the other from loss caused to him by the conduct of the promisor himself, or by the conduct of any other person, is called a ” contract of indemnity”.

Illustration

A contracts to indemnify B against the consequences of any proceedings which C may take against B in respect of a certain sum of 200 rupees. This is a contract of indemnity.

  1. Rights of indemnity holder when sued,- The promisee in a contract of indemnity, acting within the scope of his authority, is entitled to recover from the promisor-

(1) all damages which he may be compelled to pay in any suit in respect of any matter to which the promise to indemnify applies

(2) all costs which he may be compelled to pay in any such suit if, in bringing or defending it, he did not contravene the orders of the promisor, and acted as it would have been prudent for him to act in the absence of any contract of indemnity, or if the promisor authorized him to bring or defend the suit;

(3) all sums which he may have paid under the terms of any compromise of any such suit, if the compromise was not contrary to the orders of the promisor, and was one which it would have been prudent for the promisee to make in the absence of any contract of indemnity, or if the promisor authorized him to compromise the suit.

  1. “Contract of guarantee”, “surety”, principal debtor” and “creditor”,- A “contract of guarantee ” is a contract to perform the promise, or discharge the liability, of a third person in case of his default. The person who gives the guarantee is called the “surety”; the person in respect of whose default the guarantee is given is called the “principal debtor”, and the person to whom the guarantee is given is called the “creditor”. A guarantee may be either oral or written.
  1. Consideration for guarantee,- Anything done, or any promise made, for the benefit of the principal debtor, may be a sufficient consideration to the surety for giving the guarantee.

Illustrations

(a) B requests A to sell and deliver to him goods on credit. A agrees to do so, provided C will guarantee the payment of the price of the goods. C promises to guarantee the payment in consideration of A’s promise to deliver the goods. This is a sufficient consideration for C’s promise.

(b) A sells and delivers goods to B. C afterwards requests A to forbear to sue B for the debt for a year, and promises that, if he does so, C will pay for them in default of payment by B. A agrees to forbear as requested. This is a sufficient consideration for C’s promise.

(c) A sells and delivers goods to B. C afterwards, without consideration, agrees to pay for them in default of B. The agreement is void.

  1. Surety’s liability,- The liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract.

Illustration

A guarantees to B the payment of a bill of exchange by C, the acceptor. The bill is dishonoured by C. A is liable not only for the amount of the bill but also for any interest and charges which may have become due on it.

  1.           “Continuing guarantee”,- A guarantee which extends to a series of transactions is called a “continuing guarantee”.

Illustrations

(a) A, in consideration that B will employ C in collecting the rent of B’s zamindari, promises B to be responsible, to the amount of 5,000 rupees, for the due collection and payment by C of those rents. This is a continuing guarantee.

(b) A guarantees payment to B, a tea-dealer, to the amount of pound 100, for any tea he may from time to time supply to C. B supplies C with tea to above the value of pound 100, and C pays B for it. Afterwards B supplies C with tea to the value of pound 200. C fails to pay. The guarantee given by A was a continuing guarantee, and he is accordingly liable to B to the extent of pound 100.

(c) A guarantees payment to B of the price of five sacks of flour to be delivered by B to C and to be paid for in a month. B delivers five sacks to C. C pays for them. Afterwards B delivers four sacks to C, which C does not pay for. The guarantee given by A was not a continuing guarantee, and accordingly he is not liable for the price of the four sacks.

  1. Revocation of continuing guarantee,- A continuing guarantee may at any time be revoked by the surety, as to future transactions, by notice to the creditor.

Illustrations

(a) A, in consideration of B’s discounting, at A’s request, bills of exchange for C, guarantees to B, for twelve months, the due payment of all such bills to the extent of 5,000 rupees. B discounts bills for C to the extent of 2,000 rupees. Afterwards, at the end of three months, A revokes the guarantee. This revocation discharges A from all liability to B for any subsequent discount. But A is liable to B for the 2,000 rupees, on default of C.

(b) A guarantees to B, to the extent of 10,000 rupees, that C shall pay all the bills that B shall draw upon him. B draws upon C. C accepts the bill. A gives notice of revocation. C dishonours the bill at maturity. A is liable upon his guarantee. .

  1. Revocation of continuing guarantee by surety’s death,- The death of the surety operates, in the absence of any contract to the contrary, as a revocation of a continuing guarantee, so far as regards future transactions.
  1. Liability of two persons, primarily liable, not affected by arrangement between them that one shall be surety on other’s default,- Where two persons contract with a third person to undertake a certain liability, and also contract with each other that one of them shall be liable only on the default of the other, the third person not being a party to such contract, the liability of each of such two persons to the third person under the first contract is not affected by the existence of the second contract, although such third person may have been aware of its existence.

Illustration

A and B make a joint and several promissory note to C. A makes it, in fact, as surety for B, and C knows this at the time when the note is made. The fact that A, to the knowledge of C, made the note as surety for B, is no answer to a suit by C against A upon the note.

  1. Discharge of surety by variance in terms of contract,- Any variance, made without the surety’s consent, in the terms of the contract between the principal debtor and the creditor, discharges the surety as to transactions subsequent to the variance.

Illustrations

(a) A becomes surety to C for B’s conduct as a manager in C’s bank. Afterwards B and C contract, without A’s consent, that B’s salary shall be raised, and that he shall become liable for one-fourth of the losses on overdrafts. B allows a customer to overdraw, and the bank loses a sum of money. A is discharged from his suretyship by the variance made without his consent, and is not liable to make good this loss.

(b) A guarantees C against the misconduct of B in an office to which B is appointed by C, and of which the duties are defined by an Act of the Legislature. By a subsequent Act, the nature of the office is materially altered. Afterwards, B misconducts himself. A is discharged by the change from future liability under his guarantee, though the misconduct of B is in respect of a duty not affected by the later Act.

(c) C agrees to appoint B as his clerk to sell goods at a yearly salary, upon A’s becoming surety to C for B’s duly accounting for moneys received by him as such clerk. Afterwards, without A’s knowledge or consent, C and B agree that B should be paid by a commission on the goods sold by him and not by a fixed salary. A is not liable for subsequent misconduct of B.

(d) A gives to C a continuing guarantee to the extent of 3,000 rupees for any oil supplied by C to B on credit. Afterwards B becomes embarrassed, and, without the knowledge of A, B and C contract that C shall continue to supply B with oil for ready money, and that the payments shall be applied to the then existing debts between B and C. A is not liable on his guarantee for any goods supplied after this new arrangement.

(e) C contracts to lend B 5,000 rupees on the 1st March. A guarantees repayment. C pays the 5,000 rupees to B on the 1st January. A is discharged from his liability, as the contract has been varied, inasmuch as C might sue B for the money before the 1st of March.

  1. Discharge of surety by release or discharge of principal debtor,- The surety is discharged by any contract between the creditor and the principal debtor, by which the principal debtor is released or by any act or omission of the creditor, the legal consequence of which is the discharge of the principal debtor.

Illustrations

(a) A gives a guarantee to C for goods to be supplied by C to B. C supplies goods to B, and afterwards B becomes embarrassed and contracts with his creditors (including C) to assign to them his property in consideration of their releasing him from their demands. Here B is released from his debt by the contract with C, and A is discharged from his suretyship.

(b) A contracts with B to grow a crop of indigo an A’s land and to deliver it to B at a fixed rate, and C guarantees A’s performance of this contract. B diverts a stream of water which is necessary for irrigation of A’s land and thereby prevents him from raising the indigo. C is no longer liable on his guarantee.

(c) A contracts with B for a fixed price to build a house for B within a stipulated time, B supplying the necessary timber. C guarantees A’s performance of the contract. B omits to supply the timber. C is discharged from his suretyship.

 

  1. Discharge of surety when creditor compounds with, gives time to, or agrees not to sue, principal debtor,- A contract between the creditor and the principal debtor, by which the creditor makes a composition with, or promises to give time to, or not to sue, the principal debtor, discharges the surety, unless the surety assents to such contract.
  1. Surety not discharged when agreement made with third person to give time to principal debtor,- Where a contract to give time to the principal debtor is made by the creditor with a third person, and not with the principal debtor, the surety is not discharged.

Illustration

C, the holder of an overdue bill of exchange drawn by A as surety for B, and accepted by B, contracts with M to give time to B. A is not discharged.

  1. Creditor’s forbearance to sue does not discharge surety,- Mere forbearance on the part of the creditor to sue the principal debtor or to enforce any other remedy against him does not, in the absence of any provision in the guarantee to the contrary, discharge the surety.

Illustration

B owes to C a debt guaranteed by A. The debt becomes payable. C does not sue B for a year after the debt has become payable. A is not discharged from his suretyship.

  1. Release of one co-surety does not discharge others,- Where there are co-sureties, a release by the creditor of one of them does not discharge the others; neither does it free the surety so released from his responsibility to the other sureties.
  1. Discharge of surety by creditor’s act or omission impairing surety’s eventual remedy,- If the creditor does any act which is inconsistent with the rights of the surety, or omits to do any act which his duty to the surety requires him to do, and the eventual remedy of the surety himself against the principal debtor is thereby impaired, the surety is discharged.

Illustrations

(a) B contracts to build a ship for C for a given sum, to be paid by instalments as the work reaches certain stages. A becomes surety to C for B’s due performance of the contract. C, without the knowledge of A, prepays to B the last two instalments. A is discharged by this prepayment.

(b) C lends money to B on the security of a joint and several promissory note made in C’s favour by B, and by A as surety for B, together with a bill of sale of B’s furniture, which gives power to C to sell the furniture, and apply the proceeds in discharge of the note. Subsequently, C sells the furniture, but, owing to his misconduct and wilful negligence, only a small price is realized. A is not discharged from liability on the note.

(c) A puts M as apprentice to B, and gives a guarantee to B for M’s fidelity. B promises on his part that he will, at least once a month, see M make up the cash. B omits to see this done as promised, and M embezzles. A is not liable to B on his guarantee.

  1. Rights of surety on payment or performance,- Where a guaranteed debt has become due, or default of the principal debtor to perform a guaranteed duty has taken place, the surety, upon payment or performance of all that he is liable for, is invested with all the rights which the creditor had against the principal debtor.
  1. Surety’s right to benefit of creditor’s securities,- A surety is entitled to the benefit of every security which the creditor has against the principal debtor at the time when the contract of suretyship is entered into, whether the surety knows of the existence of such security or not; and, if the creditor loses, or, without the consent of the surety, parts with such security, the surety is discharged to the extent of the value of the security.

Illustrations

(a) C advances to B, his tenant, 2,000 rupees on the guarantee of A. C has also a further security for the 2,000 rupees by a mortgage of B’s furniture. C cancels the mortgage. B becomes insolvent, and C sues A on his guarantee. A is discharged from liability to the amount of the value of the furniture.

(b) C, a creditor, whose advance to B is secured by a decree, receives also a guarantee for that advance from A. C afterwards takes B’s goods in execution under the decree, and then, without the knowledge of A, withdraws the execution. A is discharged.

(c) A, as surety for B, makes a bond jointly with B to C, to secure a loan from C to B. Afterwards, C obtains from B a further security for the same debt. Subsequently, C gives up the further security. A is not discharged.

  1. Guarantee obtained by misrepresentation, invalid,- Any guarantee which has been obtained by means of misrepresentation made by the creditor, or with his knowledge and assent, concerning a material part of the transaction, is invalid.
  1. Guarantee obtained by concealment invalid,- Any guarantee which the creditor has obtained by means of keeping silence as to material circumstances, is invalid.

Illustrations

(a) A engages B as clerk to collect money for him. B fails to account for some of his receipts, and A in consequence calls upon him to furnish security for his duly accounting. C gives his guarantee for B’s duly accounting. A does not acquaint C with B’s previous conduct. B afterwards makes default. The guarantee is invalid.

(b) A guarantees to C payment for iron to be supplied by him to B to the amount of 2,000 tons. B and C have privately agreed that B should pay five rupees per ton beyond the market price, such excess to be applied in liquidation of an old debt. This agreement is concealed from A. A is not liable as a surety.

  1. Guarantee on contract that creditor shall not act on it until co-surety joins,- Where a person gives a guarantee upon a contract that the creditor shall not act upon it until another person has joined in it as co-surety, the guarantee is not valid if that other person does not join.
  1. Implied promise to indemnify surety,- In every contract of guarantee there is an implied promise by the principal debtor to indemnify the surety; and the surety is entitled to recover from the principal debtor whatever sum he has rightfully paid under the guarantee, but, no sums which he has paid wrongfully.

Illustrations

(a) B is indebted to C, and A is surety for the debt. C demands payment from A, and on his refusal sues him for the amount. A defends the suit, having reasonable grounds for doing so, but is compelled to pay the amount of the debt with costs. He can recover from B the amount paid by him for costs, as well as the principal debt.

(b) C lends B a sum of money, and A, at the request of B, accepts a bill of exchange drawn by B upon A to secure the amount. C, the holder of the bill, demands payment of it from A, and, on A’s refusal to pay, sues him upon the bill. A, not having reasonable grounds for so doing, defends the suit, and has to pay the amount of the bill and costs. He can recover from B the amount of the bill, but not the sum paid for costs, as there was no real ground for defending the action.

(c) A guarantees to C, to the extent of 2,000 rupees, payment for rice to be supplied by C to B. C supplies to B rice to a less amount than 2,000 rupees, but obtains from A payment of the sum of 2,000 rupees in respect of the rice supplied. A cannot recover from B more than the price of the rice actually supplied.

  1. Co-sureties liable to contribute equally,- Where two or more persons are co-sureties for the same debt or duty, either jointly or severally, and whether under the same or different contracts, and whether with or without the knowledge of each other, the co-sureties, in the absence of any contract to the contrary, are liable, as between themselves, to pay each an equal share of the whole debt, or of that part of it which remains unpaid by the principal debtor.

Illustrations

(a) A, B and C are sureties to D for the sum of 3,000 rupees lent to E. E makes default in payment. A, B and C are liable, as between themselves, to pay 1,000 rupees each.

(b) A, B and C are sureties to D for the sum of 1,000 rupees lent to E, and there is a contract between A, B and C that A is to be responsible to the extent of one-quarter, B to the extent of one-quarter, and C to the extent of one-half. E makes default in payment. As between the sureties, A is liable to pay 250 rupees, B 250 rupees, and C 500 rupees.

  1. Liability of co-sureties bound in different sums,-  Co-sureties who are bound in different sums are liable to pay equally as far as the limits of their respective obligations permit.

Illustrations

(a) A, B and C, as sureties for D, enter into three several bonds, each in a different penalty, namely, A in the penalty of 10,000 rupees, B in that of 20,000 rupees, C in that of 40,000 rupees, conditioned for D’s duly accounting to E. D makes default to the extent of 30,000 rupees. A, B and C are each liable to pay 10,000 rupees.

(b) A, B and C, as sureties for D, enter into three several bonds, each in a different penalty, namely, A in the penalty of 10,000 rupees, B in that of 20,000 rupees, C in that of 40,000 rupees, conditioned for D’s duly accounting to E. D makes default to the extent of 40,000 rupees. A is liable to pay 10,000 rupees, and B and C 15,000 rupees each.

(c) A, B and C, as sureties for D, enter into three several bonds, each in a different penalty, namely, A in the penalty of 10,000 rupees, B in that of 20,000 rupees, C in that of 40,000 rupees, conditioned for D’s duly accounting to E. D makes default to the extent of 70,000 rupees. A, B and C have to pay each the full penalty of his bond.

CHAPTER IX

OF BAILMENT

  1. “Bailment”, “bailor” and “bailee” defined,- A ” bailment ” is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the “bailor”. The person to whom they are delivered is called, the “bailee “.

Explanation.— If a person already in possession of the goods of another contracts to hold them as a bailee, he thereby becomes the bailee, and the owner becomes the bailor of such goods, although they may not have been delivered by way of bailment.

  1. Delivery to bailee how made,- The delivery to the bailee may be made by doing anything which has the effect of putting the goods in the possession of the intended bailee or of any person authorized to hold them on his behalf.
  1. Bailor’s duty to disclose faults in goods bailed,- The bailor is bound to disclose to the bailee faults in the goods bailed, of which the bailor is aware, and which materially interfere with the use of them, or expose the bailee to extraordinary risks; and if he does not make such disclosure, he is responsible for damage arising to the bailee directly from such faults.

If the goods are bailed for hire, the bailor is responsible for such damage, whether he was or was not aware of the existence of such faults in the goods bailed.

Illustrations

(a) A lends a horse, which he knows to be vicious, to B. He does not disclose the fact that the horse is vicious. The horse runs away. B is thrown and injured. A is responsible to B for damage sustained.

(b) A hires a carriage of B. The carriage is unsafe, though B is not aware of it, and A is injured. B is responsible to A for the injury.

  1. Care to be taken by bailee,- In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed.
  1. Bailee when not liable for loss, etc., of thing bailed,- The bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in section 151.
  1. Termination of bailment by bailee’s act inconsistent with conditions,-  A contract of bailment is voidable at the option of the bailor, if the bailee does any act with regard to the goods bailed, inconsistent with the conditions of the bailment.

Illustration

A lets to B, for hire, a horse for his own riding. B drives the horse in his carriage. This is, at the option of A, a termination of the bailment.

  1. Liability of bailee making unauthorized use of goods bailed,- If the bailee makes any use of the goods bailed, which is not according to the conditions of the bailment, he is liable to make compensation to the bailor for any damage arising to the goods from or during such use of them.

Illustrations

(a) A lends a horse to B for his own riding only. B allows C, a member of his family, to ride the horse. C rides with care, but the horse accidentally falls and is injured. B is liable to make compensation to A for the injury done to the horse.

(b) A hires a horse in Calcutta from B expressly to march to Benares. A rides with due care, but marches to Cuttack instead. The horse accidentally falls and is injured. A is liable to make compensation to B for the injury to the horse.

  1. Effect of mixture, with bailor’s consent, of his goods with bailee’s,- If the bailee, with the consent of the bailor, mixes the goods of the bailor with his own goods, the bailor and the bailee shall have an interest, in proportion to their respective shares, in the mixture thus produced.
  1. Effect of mixture, without bailor’s consent, when the goods can be separated,- If the bailee, without the consent of the bailor, mixes the goods of the bailor with his own goods, and the goods can be separated or divided, the property in the goods remains in the parties respectively; but the bailee is bound to bear the expense of separation or division, and any damage arising from the mixture.

Illustration

A bails 100 bales of cotton marked with a particular mark to B. B, without A’s consent, mixes the 100 bales with other bales of his own, bearing a different mark : A is entitled to have his 100 bales returned, and B is bound to bear all the expense incurred in the separation of the bales, and any other incidental damage.

  1. Effect of mixture, without bailor’s consent, when the goods cannot be separated,- If the bailee, without the consent of the bailor, mixes the goods of the bailor with his own goods, in such a manner that it is impossible to separate the goods bailed from the other goods and deliver them back, the bailor is entitled to be compensated by the bailee for the loss of the goods.

Illustration

A bails a barrel of Cape flour worth Rs. 45 to B. B, without A’s consent, mixes the flour with country flour of his own, worth only Rs. 25 a barrel. B must compensate A for the loss of his flour.

  1. Repayment, by bailor, of necessary expenses,- Where, by the conditions of the bailment, the goods are to be kept or to be carried, or to have work done upon them by the bailee for the bailor, and the bailee is to receive no remuneration, the bailor shall repay to the bailee the necessary expenses incurred by him for the purpose of the bailment.
  1. Restoration of goods lent gratuitously,- The lender of a thing for use may at any time require its return, if the loan was gratuitous, even though he lent it for a specified time or purpose. But, if, on the faith of such loan made for a specified time or purpose, the borrower has acted in such a manner that the return of the thing lent before the time agreed upon would cause him loss exceeding the benefit actually derived by him from the loan, the lender must, if he compels the return, indemnify the borrower for the amount in which the loss so occasioned exceeds the benefit so derived.
  1. Return of goods bailed, on expiration of time or accomplishment of purpose,- It is the duty of the bailee to return, or deliver according to the bailor’s directions, the goods bailed, without demand, as soon as the time for which they were bailed has expired, or the purpose for which they were bailed has been accomplished.
  1. Bailee’s responsibility when goods are not duly returned,- If, by the fault of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time.
  1. Termination of gratuitous bailment by death,- A gratuitous bailment is terminated by the death either of the bailor or of the bailee.

 

  1. Bailor entitled to increase or profit from goods bailed,- In the absence of any contract to the contrary, the bailee is bound to deliver to the bailor, or according to his directions, any increase or profit which may have accrued from the goods bailed.

Illustration

A leaves a cow in the custody of B to be taken care of. The cow has a calf. B is bound to deliver the calf as well as the cow to A.

  1. Bailor’s responsibility to bailee,- The bailor is responsible to the bailee for any loss which the bailee may sustain by reason that the bailor was not entitled to make the bailment, or to receive back the goods or to give directions, respecting them.
  1. Bailment by several joint owners,- If several joint owners of goods bail them, the bailee may deliver them back to, or according to the directions of, one joint owner without the consent of all, in the absence of any agreement to the contrary.
  1. Bailee not responsible on re-delivery to bailor without title,- If the bailor has no title to the goods, and the bailee, in good faith, delivers them back to, or according to the directions of, the bailor, the bailee is not responsible to the owner in respect of such delivery.
  1. Right of third person claiming goods bailed,- If a person, other than the bailor, claims goods bailed, he may apply to the Court to stop the delivery of the goods to the bailor, and to decide the title to the goods.
  1. Right of finder of goods— May sue for specific reward offered,- The finder of goods has no right to sue the owner for compensation for trouble and expense voluntarily incurred by him to preserve the goods and to find out the owner; but he may retain the goods against the owner until he receives such compensation; and, where the owner has offered a specific reward for the return of goods lost, the finder may sue for such reward, and may retain the goods until he receives it.
  1. When finder of thing commonly on sale may sell it,- When a thing which is commonly the subject of sale is lost, if the owner cannot with reasonable diligence be found, or if he refuses, upon demand, to pay the lawful charges of the finder, the finder may sell it,-

(1) when the thing is in danger of perishing or of losing the greater part of its value, or;

(2) when the lawful charges of the finder, in respect of the thing found, amount to two-thirds of its value.

  1. Bailee’s particular lien,- Where the bailee has, in accordance with the purpose of the bailment, rendered any service involving the exercise of labour or skill in respect of the goods bailed, he has, in the absence of a contract to the contrary, a right to retain such goods until he receives due remuneration for the services he has rendered in respect of them.

Illustrations

(a) A delivers a rough diamond to B, a jeweller, to be cut and polished, which is accordingly done. B is entitled to retain the stone till he is paid for the services he has rendered.

(b) A gives, cloth to B, a tailor, to make into a coat. B promises A to deliver the coat as soon as it is finished, and to give a three months’ credit for the price. B is not entitled to retain the coat until he is paid.

  1. General lien of bankers, factors, wharfingers, attorneys and policy-brokers,- Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may, in the absence of a contract to the contrary, retain as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect.

Bailments of Pledges

  1. “Pledge” “pawnor”, and “pawnee” defined,- The bailment of goods as security for payment of a debt or performance of a promise is called “pledge”. The bailor is in this case called the “pawnor “. The bailee is called the ” pawnee”.
  1. Pawnee’s right of retainer,- The pawnee may retain the goods pledged, not only for payment of the debt or the performance of the promise, but for the interest of the debt, and all necessary expenses incurred by him in respect of the possession or for the preservation of the goods pledged.
  1. Pawnee not to retain for debt or promise other than that for which goods pledged- Presumption in case of subsequent advances. – The pawnee shall not, in the absence of a contract to that effect, retain the goods pledged for any debt or promise other than the debt or promise for which they are pledged; but such contract, in the absence of anything to the contrary, shall be presumed in regard to subsequent advances made by the pawnee.
  1. Pawnee’s right as to extraordinary expenses incurred,- The pawnee is entitled to receive from the pawnor extraordinary expenses incurred by him for the preservation of the goods pledged.
  1. Pawnee’s right where pawnor makes default,- If the pawnor makes default in payment of the debt, or performance, at the stipulated time of the promise, in respect of which the goods were pledged, the pawnee may bring a suit against the pawnor upon the debt or promise, and retain the goods pledged as a collateral security; or he may sell the thing pledged, on giving the pawnor reasonable notice of the sale.

If the proceeds of such sale are less than the amount due in respect of the debt or promise, the pawnor is still liable to pay the balance. If the proceeds of the sale are greater than the amount so due, the pawnee shall pay over the surplus to the pawnor.

  1. Defaulting pawnor’s right to redeem,-  If a time is stipulated for the payment of the debt, or performance of the promise, for which the pledge is made, and the pawnor makes default in payment of the debt or performance of the promise at the stipulated time, he may redeem the goods pledged at any subsequent time before the actual sale of them; but he must, in that case, pay, in addition, any expenses which have arisen from his default.
  1. Pledge by mercantile agent,- Where a mercantile agent is, with the consent of the owner, in possession of goods or the documents of title to goods, any pledge made by him, when acting in the ordinary course of business of a mercantile agent, shall be as valid as if he were expressly authorised by the owner of the goods to make the same; provided that the pawnee acts in good faith and has not at the time of the pledge notice that the pawnor has no authority to pledge.

Explanation.— In this section, the expressions “mercantile agent” and

“documents of title” shall have the meanings assigned to them in the Indian Sale of Goods Act, 1930 (3 of 1930).

178A. Pledge by person in possession under voidable contract,- When the pawnor has obtained possession of the goods pledged by him under a contract voidable under section 19 or section 19A, but the contract has not been rescinded at the time of the pledge, the pawnee acquires a good title to the goods, provided he acts in good faith and without notice of the pawnor’s defect of title.

  1. Pledge where pawnor has only a limited interest,- Where a person pledges goods in which he has only a limited interest, the pledge is valid to the extent of that interest.

Suits by bailees or bailors against wrong-doers

 

  1. Suit by bailor or bailee against wrong-doer,- If a third person wrongfully deprives the bailee of the use or possession of the goods bailed, or does them any injury, the bailee is entitled to use such remedies as the owner might have used in the like case if no bailment had been made; and either the bailor or the bailee may bring a suit against a third person for such deprivation or injury.
  1. Apportionment of relief or compensation obtained by such suits,- Whatever is obtained by way of relief or compensation in any such suit shall, as between the bailor and the bailee, be dealt with according to their respective interests,

 

CHAPTER X

AGENCY

 

Appointment and authority of agents

  1. “Agent” and “principal” defined,-  An “agent” is a person employed to do any act for another or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented, is called the ” principal”.
  1. Who may employ agent,- Any person who is of the age of majority according to the law to which he is subject, and who is of sound mind, may employ an agent.
  1. Who may be an agent,- As between the principal and third persons, any person may become an agent, but no person who is not of the age of majority and of sound mind can become an agent, so as to be responsible to his principal according to the provisions in that behalf herein contained.
  1. Consideration not necessary,- No consideration is necessary to create an agency.
  1. Agent’s authority may be expressed or implied,- The authority of an agent may be expressed or implied.
  1. Definitions of express and implied authority,- An authority is said to be express when it is given by words spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing, may be accounted circumstances of the case.

Illustration

A owns a shop in Serampore, living himself in Calcutta, and visiting the shop occasionally. The shop is managed by B, and he Is in the habit of ordering goods from C in the name of A for the purposes of the shop, and of paying for them out of A’s funds with A’s knowledge. B has an implied authority from A to order goods from C in the name of A for the purposes of the shop.

  1. Extent of agent’s authority,- An agent, having an authority to do an act has authority to do every lawful thing which is necessary in order to do such act.

An agent having an authority to carry on a business has authority to do every lawful thing necessary for the purpose, or usually done in the course, of conducting such business.

Illustrations

(a) A is employed by B, residing in London, to recover at Bombay a debt due to B. A may adopt any legal process necessary for the purpose of recovering the debt, and may give a valid discharge for the same.

(b) A constitutes B his agent to carry on his business of a ship-builder. B may purchase timber and other materials, and hire workmen, for the purpose of carrying on the business.

  1. Agent’s authority in an emergency,- An agent has authority, in an emergency, to do all such acts for the purpose of protecting his principal from loss as would be done by a person of ordinary prudence, in his own case, under similar circumstances.

Illustrations

(a) An agent for sale may have goods repaired if it be necessary.

(b) A consigns provisions to B at Calcutta, with directions to send them immediately to C, at Cuttack. B may sell the provisions at Calcutta, if they will not bear the journey to Cuttack without spoiling.

Sub-Agents

 

  1. When agent cannot delegate,- An agent cannot lawfully employ another to perform acts which he has expressly or impliedly undertaken to perform personally, unless by the ordinary custom of trade a sub-agent may, or, from the nature of the agency, a sub-agent must, be employed.
  1. “Sub-agent” defined,- A ” sub-agent ” is a person employed by, and acting under the control of, the original agent in the business of the agency.
  1. Representation of principal by sub-agent properly appointed,- Where a sub-agent is properly appointed, the principal is, so far as regards third persons, represented by the sub-agent, and is bound by and responsible for his acts, as if he were an agent originally appointed by the principal.

            Agent’s responsibility for sub-agent,- The agent is responsible to the principal for the acts of the sub-agent.

            Sub-agent’s responsibility,- The sub-agent is responsible for his acts to the agent, but not to the principal, except in cases of fraud or wilful wrong.

  1. Agent’s responsibility for sub-agent appointed without authority,- Where an agent, without having authority to do so, has appointed a person to act as a sub-agent, the agent stands towards such person in the relation of a principal to an agent, and is responsible for his acts both to the principal and to third persons; the principal is not represented by or responsible for the acts of the person so employed, nor is that person responsible to the principal.
  1. Relation between principal and person duly appointed by agent to act in business of agency,- Where an agent, holding an express or implied authority to name another person to act for the principal in the business of the agency, has named another person accordingly, such person is not a sub-agent, but an agent of the principal for such part of the business of the agency as is entrusted to him.

Illustrations

(a) A directs B, his solicitor, to sell his estate by auction, and to employ an auctioneer for the purpose. B names C, an auctioneer, to conduct the sale. C is not a sub-agent, but is A’s agent for the conduct of the sale.

(b) A authorizes B, a merchant in Calcutta, to recover the moneys due to A from C & Co. B instructs D, a solicitor, to take legal proceedings against C & Co. for the recovery of the money. D is not a sub-agent, but is solicitor for A.

  1. Agent’s duty in naming such person,- In selecting such agent for his principal, an agent is bound to exercise the same amount of discretion as a man of ordinary prudence would exercise in his own case; and, if he does this, he is not responsible to the principal for the acts or negligence of the agent so selected.

Illustrations

(a) A instructs B, a merchant, to buy a ship for him. B employs a ship surveyor of good reputation to choose a ship for A. The surveyor makes the choice negligently and the ship turns out to be unseaworthy and is lost. B is not, but the surveyor is, responsible to A.

(b) A consigns goods to B, a merchant, for sale. B, in due course, employs an auctioneer in good credit to sell the goods of A, and allows the auctioneer to receive the proceeds of the sale. The auctioneer afterwards becomes insolvent without having accounted for the proceeds. B is not responsible to A for the proceeds.

Ratification

  1. Right of person as to acts done for him without his authority- Effect of ratification,- Where acts are done by one person on behalf of another, but without his knowledge or authority, he may elect to ratify or to disown such acts. If he ratifies them, the same effects will follow as if they had been performed by his authority.
  1. Ratification may be expressed or implied,- Ratification may be expressed or may be implied in the conduct of the person on whose behalf the acts are done.

Illustrations

(a) A, without authority, buys goods for B. Afterwards B sells them to C ,on his own account; B’s conduct implies a ratification of the purchase made for him by A.

(b) A, without B’s authority, lends B’s money to C. Afterwards B accepts interest on the money from C. B’s conduct implies a ratification of the loan.

  1. Knowledge requisite for valid ratification,- No valid ratification can be made by a person whose knowledge of the facts of the case is materially defective.
  1. Effect of ratifying unauthorized act forming part of a transaction,- A person ratifying any unauthorized act done on his behalf ratifies the whole of the transaction of which such act formed a part.
  1. Ratification of unauthorized act cannot injure third person,- An act done by one person on behalf of another, without such other person’s authority, which, if done with authority, would have the effect of subjecting a third person to damages, or of terminating any right or interest of a third person, cannot, by ratification, be made to have such effect.

Illustrations

(a) A, not being authorized thereto by B, demands, on behalf of B, the delivery of a chattel, the property of B, from C, who is in possession of it. This demand cannot be ratified by B, so as to make C liable for damages for his refusal to deliver.

(b) A holds a lease from B, terminable on three months’ notice. C, an unauthorized person, gives notice of termination to A. The notice cannot be ratified by B, so as to be binding on A.

Revocation of Authority

  1. Termination of agency,- An agency is terminated by the principal revoking his authority; or by the agent renouncing the business of the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors.
  1. Termination of agency where agent has an interest in subject matter,- Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.

Illustrations

(a) A gives authority to B to sell A’s land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.

(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself, out of the price, the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death.

  1. When principal may revoke agent’s authority,- The principal may, save as is otherwise provided by the last preceding section, revoke the authority given to his agent at any time before the authority has been exercised so as to bind the principal.
  1. Revocation where authority has been partly exercised,- The principal cannot revoke the authority given to his agent after the authority has been partly exercised so far as regards such acts and obligations as arise from acts already done in the agency.

Illustrations

(a) A authorizes B to buy 1,000 bales of cotton on account of A, and to pay for it out of A’s moneys remaining in B’s hands. B buys 1,000 bales of cotton in his own name, so as to make himself personally liable for the price. A cannot revoke B’s authority so far as regards payment for the cotton.

(b) A authorizes B to buy 1,000 bales of cotton on account of A, and to pay for it out of A’s moneys remaining in B’s hands. B buys 1,000 bales of cotton in A’s name, and so as not to render himself personally liable for the price. A can revoke B’s authority to pay for the cotton.

  1. Compensation for revocation by principal, or renunciation by agent,-Where there is an express or implied contract that the agency should be continued for any period of time, the principal must make compensation to the agent, or the agent to the principal, as the case may be, for any previous revocation or renunciation of the agency without sufficient cause.
  1. Notice of revocation or renunciation,- Reasonable notice must be given of such revocation or renunciation; otherwise the damage thereby resulting to the principal or the agent, as the case may be, must be made good to the one by the other.
  1. Revocation and renunciation may be expressed or implied,- Revocation and renunciation may be expressed or may be implied in the conduct of the principal or agent respectively.

Illustration

A empowers B to let A’s house. Afterwards A lets it himself. This is an implied revocation of B’s authority.

  1. When termination of agent’s authority takes effect as to agent, and as to third persons,- The termination of the authority of an agent does not, so far as regards the agent, take effect before it becomes known to him, or, so far as regards third persons, before it becomes known to them.

Illustrations

(a) A directs B to sell goods for him, and agrees to give B five per cent. commission on the price fetched by the goods. A afterwards, by letter, revoke B’s authority . B, after the letter is sent, but before he receives it, sells the goods for 100 rupees. The sale is binding on A, and B is entitled to five rupees as his commission.

(b) A, at Madras, by letter, directs B to sell for him some cotton lying in a warehouse in Bombay, and afterwards, by letter, revokes his authority to sell, and directs B to send the cotton to Madras. B, after receiving the second letter, enters into a contract with C, who knows of the first letter, but not of the second, for the sale to him of the cotton. C pays B the money, with which B absconds. C’s payment is good as against A.

(c) A directs B, his agent, to pay certain money to C. A dies, and D takes out probate to his will. B, after A’s death, but before hearing of it, pays the money to C. The payment is good as against D, the executor.

  1. Agent’s duty on termination of agency by principal’s death or insanity,- When an agency is terminated by the principal dying or becoming of unsound mind, the agent is bound to take, on behalf of the representatives of his late principal, all reasonable steps for the protection and preservation of the interests entrusted to him.
  1. Termination of sub-agent’s authority,- The termination of the authority of an agent causes the termination (subject to the rules herein contained regarding the termination of an agent’s authority), of the authority of all sub-agents appointed by him.

Agent’s duty to principal

  1. Agent’s duty in conducting principal’s business,- An agent is bound to conduct the business of his principal according to the directions given by the principal, or, in the absence of any such directions, according to the custom which prevails in doing business of the same kind at the place where the agent conducts such business. When the agent acts otherwise, if any loss be sustained, he must make it good to his principal, and, if any profit accrues, he must account for it.

Illustrations

(a) A, an agent engaged in carrying on for B a business, in which it is the custom to invest from time to time, at interest, the moneys which may be in hand, omits to make such investment. A must make good to B the interest usually obtained by such investments.

(b) B, a broker, in whose business it is not the custom to sell on credit, sells goods of A on credit to C, whose credit at the time was very high. C, before payment, becomes insolvent. B must make good the loss to A.

  1. Skill and diligence required from agent,- An agent is bound to conduct the business of the agency with as much skill as is generally possessed by persons engaged in similar business, unless the principal has notice of his want of skill. The agent is always bound to act with reasonable diligence, and to use such skill as he possesses; and to make compensation to his ‘principal in respect of the direct consequences of his own neglect, want of skill or misconduct, but not in respect of loss or damage which are indirectly or remotely caused by such neglect, want of skill or misconduct.

Illustrations

(a) A, a merchant in Calcutta, has an agent, B, in London, to whom a sum of money is paid on A’s account, with orders to remit. B retains the money for a considerable time. A, in consequence of not receiving the money, becomes insolvent. B is liable for the money and interest from the day on which it ought to have been paid, according to the usual rate, and for any further direct loss-as e.g., by variation of rate of exchange– but not further.

(b) A, an agent for the sale of goods, having authority to sell on credit, sells to B on credit, without making the proper and usual enquiries as to the solvency of B. B, at the time of such sale, is insolvent. A must make compensation to his principal in respect of any loss thereby sustained.

(c) A, an insurance-broker employed by B to effect an insurance on a ship omits to see that the usual clauses are inserted in the policy. The ship is afterwards lost. In consequence of the omission of the clauses nothing can be recovered from the underwriters. A is bound to make good the loss to B.

(d) A, a merchant in England, directs B, his agent at Bombay, who accepts the agency, to send him 100 bales of cotton by a certain ship. B, having it in his power to send the cotton, omits to do so. The ship arrives safely in England. Soon after her arrival the price of cotton rises. B is bound to make good to A the profit which he might have made by the 100 bales of cotton at the time the ship arrived, but not any profit he might have made by the subsequent rise.

  1. Agent’s accounts,- An agent is bound to render proper accounts to his principal on demand.
  1. Agent’s duty to communicate with principal,- It is the duty of an agent, in cases of difficulty, to use all reasonable diligence in communicating with his principal, and in seeking to obtain his instructions.
  1. Right of principal when agent deals, on his own account, in business of agency without principal’s consent,- If an agent deals on his own account in the business of the agency, without first obtaining the consent of his principal and acquainting him with all material circumstances which have come to his own knowledge on the subject, the principal may repudiate the transaction, if the case shows either that any material fact has been dishonestly concealed from him by the agent, or that the dealings of the agent have been disadvantageous to him.

Illustrations

(a) A directs B to sell A’s estate. B buys the estate for himself in the name of C. A, on discovering that B has bought the estate for himself, may repudiate the sale, if he can show that B has dishonestly concealed any material fact, or that the sale has been disadvantageous to him.

(b) A directs B to sell A’s estate. B, on looking over the estate before selling it, finds a mine on the estate which is unknown to A. B informs A that he wishes to buy the estate for himself, but conceals the discovery of the mine. A allows to buy in ignorance of the existence of the mine. A, on discovering that B knew of the mine at the time he bought the estate, may either repudiate or adopt the sale at his option.

  1. Principal’s right to benefit gained by agent dealing on his own account in business of agency,- If an agent, without the knowledge of his principal, deals in the business of the agency on his own account instead of on account of his principal, the principal is entitled to claim from the agent any benefit which may have resulted to him from the transaction.

Illustration

A directs B, his agent, to buy a certain house for him. B tells A it cannot be bought, and buys the house for himself. A may, on discovering that B has bought the house, compel him to sell it to A at the price he gave for it.

  1. Agent’s right of retainer out of sums received on principal’s account,- An agent may retain, out of any sums received on account of the principal in the business of the agency, all moneys due to himself in respect of advances made or expenses properly incurred by him in conducting such business, and also such remuneration as may be payable to him for acting as agent.
  1. Agent’s duty to pay sums received for principal,- Subject to such deductions, the agent is bound to pay to his principal all sums received on his account.
  1. When agent’s remuneration becomes due,- In the absence of any special contract, payment for the performance of any act is not due to the agent until the completion of such act; but an agent may detain moneys received by him on account of goods sold, although the whole of the goods consigned to him for sale may not have been sold, or although the sale may not be actually complete.
  1. Agent not entitled to remuneration for business misconducted,- An agent who is guilty of misconduct in the business of the agency is not entitled to any remuneration in respect of that part of the business which he has misconducted.

Illustrations

(a) A employs B to recover, 1,00,000 rupees from C, and to lay it out on good security. B recovers the 1,00,000 rupees; and lays out 90,000 rupees on good security, but lays out 10,000 rupees on security which he ought to have known to be bad, whereby A loses 2,000 rupees. B is entitled to remuneration for recovering the 1,00,000 rupees and for investing the 90,000 rupees. He is not entitled to any remuneration for investing the 10,000 rupees, and he must make good the 2,000 rupees to B.

(b) A employs B to recover 1,000 rupees from C. Through B’s misconduct the money is not recovered. B is entitled to no remuneration for his services, and must make good the loss.

  1. Agent’s lien on principal’s property,- In the absence of any contract to the contrary, an agent is entitled to retain goods, papers and other property, whether movable or immovable, of the principal received by him, until the amount due to himself for Commission, disbursements and services in respect of the same has been paid or accounted for to him.

Principal’s duty to agent

  1. Agent to be indemnified against consequences of lawful acts,- The employer of an agent is bound to indemnify him against the consequences of all lawful acts done by such agent in exercise of the authority conferred upon him.

Illustrations

(a) B, at Singapur, under instructions from A of Calcutta, contracts with C to deliver certain goods to him. A does not send the goods to B, and C sues B for breach of contract. B informs A of the suit, and A authorizes him to defend the suit. B defends the suit, and is compelled to pay damages and costs, and incurs expenses. A is liable to B for such damages, costs and expenses.

(b) B, a broker at Calcutta, by the orders of A, a merchant there, contracts with C for the purchase of 10 casks of oil for A. Afterwards A refuses to receive the oil, and C sues B. B informs A, who repudiates the contract altogether. B defends, but unsuccessfully, and has to pay damages and costs and incurs expenses. A is liable to B for such damages, costs and expenses.

  1. Agent to be indemnified against consequences of acts done in good faith,- Where one person employs another to do an act, and the agent does the act in good faith, the employer is liable to indemnify the agent against the consequences of that act, though it causes an injury to the rights of third persons.

Illustrations

(a) A, a decree-holder and entitled to execution of B’s goods, requires the officer of the Court to seize certain goods, representing them to be the goods of B. The officer seizes the goods, and is sued by C, the true owner of the goods. A is liable to indemnify the officer for the sum which he is compelled to pay to, C, in consequence of obeying A’s directions.

(b) B, at the request of A, sells goods in the possession of A, but which A had no right to dispose of. B does not know this, and hands over the proceeds of the sale to A. Afterwards C, the true owner of the goods, sues B and recovers the value of the goods and costs. A is liable to indemnify B for what he has been compelled to pay to C and for B’s own expenses.

  1. Non-liability of employer of agent to do a criminal act,- Where one person employs another to do an act which is criminal, the employer is not liable to the agent, either upon an express or an implied promise, to indemnify him against the consequences of that Act.

Illustrations

(a) A employs B to beat C, and agrees to indemnify him against all consequences of the act. B thereupon beats C, and has to pay damages to C for so doing. A is not liable to indemnify B for those damages.

(b) B, the proprietor of a newspaper, publishes, at A’s request, a libel upon C in the paper, and A agrees to indemnify B against the consequences of the publication, and all costs and damages of any action in respect thereof. B is sued by C and has to pay damages, and also incurs expenses. A is not liable to B upon the indemnity.

  1. Compensation to agent for injury caused by principal’s neglect,- The principal must make compensation to his agent in respect of injury caused to such agent by the principal’s neglect or want of skill.

Illustration

A employs B as a bricklayer in building a house, and puts up the scaffolding himself. The scaffolding is unskillfully put up, and B is in consequence hurt. A must make compensation to B.

Effect of agency on contracts with third persons

  1. Enforcement and consequences of agent’s contracts,- Contracts entered into through an agent, and obligations arising from acts done by an agent, may be enforced in the same manner, and will have the same legal consequences, as if the contracts had been entered into and the acts done by the principal in person.

Illustrations

(a) A buys goods from B, knowing that he is an agent for their sale, but not knowing who is the principal. B’s principal is the person entitled to claim from A the price of the goods, and A cannot, in a suit by the principal, set-off against that claim a debt due to himself from B.

(b) A, being B’s agent with authority to receive money on his behalf, receives from C a sum of money due to B. C is discharged of his obligation to pay the sum in question to B.

  1. Principal how far bound, when agent exceeds authority,- When an agent does more than he is authorized to do, and when the part of what he does, which is within his authority, can be separated from the part which is beyond his authority, so much only of what he does as is within his authority is binding as between him and his principal.

Illustration

A, being owner of a ship and cargo, authorizes B to procure an insurance for 4,000 rupees on the ship. B procures a policy for 4,000 rupees on the ship, and another for the like sum on the cargo. A is bound to pay the premium for the policy on the ship, but not the premium for the policy on the cargo.

  1. Principal not bound when excess of agent’s authority is not separable,- Where an agent does more than he is authorized to do, and what he does beyond the scope of his authority cannot be separated from what is within it, the principal is not bound to recognize the transaction.

Illustration

A authorizes B to buy 500 sheep for him. B buys 500 sheep and 200 lambs for one sum of 6,000 rupees. A may repudiate the whole transaction.

  1. Consequences of notice given to agent,- Any notice given to or information obtained by the agent, provided it be given or obtained in the course of the business transacted by him for the principal, shall, as between the principal and third parties, have the same legal consequences as if it had been given to or obtained by the principal.

Illustrations

(a) A is employed by B to buy from C certain goods, of which C is the apparent owner, and buys them accordingly. In the course of the treaty for the sale, A learns that the goods really belonged to D, but B is ignorant of that fact. B is not entitled to set-off a debt owing to him from C against the price of the goods.

(b) A is employed by B to buy from C goods of which C is the apparent owner. A was, before he was so employed, a servant of C, and then learnt that the goods really belonged to D, but B is ignorant of that fact. In spite of the knowledge of his agent, B may set-off against the price of the goods a debt owing to him from C.

  1. Agent cannot personally enforce, nor be bound by, contracts on behalf of principal,- In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them.

Presumption of contract to contrary,- Such a contract shall be presumed to exist in the following cases:-

(1) where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad;

(2) where the agent does not disclose the name of his principal;

(3) where the principal, though disclosed, cannot be sued.

  1. Rights of parties to a contract made by agent not disclosed,- If an agent makes a contract with a person who neither knows, nor has reason to suspect, that he is an agent, his principal may require the performance of the contract ; but the other contracting party has, as against the principal, the same rights as he would have had as against the agent if the agent had been principal.

If the principal discloses himself before the contract is completed, the other contracting party may refuse to fulfill the contract, if he can show that, if he had known who was the principal in the contract, or if he had known that the agent was not a principal, he would not have entered into the contract.

  1. Performance of contract with agent supposed to be principal,- Where one man makes a contract with another, neither knowing nor having reasonable ground to suspect that the other is an agent, the principal, if he requires the performance of the contract, can only obtain such performance subject to the rights and obligations subsisting between the agent and the other party to the contract.

Illustration

A, who owes 500 rupees to B, sells 1,000 rupees worth of rice to B. A is acting as agent for C in the transaction, but B has no knowledge nor reasonable ground of suspicion that such is the case. C cannot compel B to take the rice without allowing him to set-off A’s debt.

  1. Right of person dealing with agent personally liable,- In cases where the agent is personally liable, a person dealing with him may hold either him or his principal, or both of them, liable.

Illustration

A enters into a contract with B to sell him 100 bales of cotton, and afterwards discovers that B was acting as agent for C. A may sue either B or C, or both, for the price of the cotton.

  1. Consequence of inducing agent or principal to act on belief that principal or agent will be held exclusively liable,- When a person who has made a contract with an agent induces the agent to act upon the belief that the principal only will be held liable, or induces the principal to act upon the belief that the agent only will be held liable, he cannot afterwards hold liable the agent or principal respectively.
  1. Liability of pretended agent,- A person untruly representing himself to be the authorized agent of another, and thereby inducing a third person to deal with him as such agent, is liable, if his alleged employer does not ratify his acts, to make compensation to the other in respect of any loss or damage which he has incurred by so dealing.
  1. Person falsely contracting as agent, not entitled to performance,- A person with whom a contract has been entered into in the character of agent, is not entitled to require the performance of it, if he was in reality acting, not as agent, but on his own account.
  1. Liability of principal inducing belief that agent’s unauthorised acts were authorized,- When an agent has, without authority, done acts or incurred obligations to third persons on behalf of his principal, the principal is bound by such acts or obligations, if he has by his words or conduct induced such third persons to believe that such acts and obligations were within the scope of the agent’s authority.

Illustrations

(a) A consigns goods to B for sale, and gives him instructions not to sell under a fixed price. C, being ignorant of B’s instructions, enters into a contract with B to buy the goods at a price lower than the reserved price. A is bound by the contract.

(b) A entrusts B with negotiable instruments endorsed in blank. B sells them to C in violation of private orders from A. The sale is good.

  1. Effect, on agreement, of misrepresentation or fraud, by agent,- Misrepresentation made, or frauds committed, by agents acting in the course of their business for their principals, have the same effect on agreements made by such agents as if such misrepresentations or frauds had been made or committed by the principals; but misrepresentations made, or frauds committed, by agents, in matters which do not fall within their authority, do not affect their principals.

Illustrations

(a) A, being B’s agent for the sale of goods, induces C to buy them by a misrepresentation, which he was not authorized by B to make, The contract is voidable, as between B and C, at the option of C.

(b) A, the captain of B’s ship, signs bills of lading without having received on board the goods mentioned therein. The bills of lading are void as between B and the pretended consignor.

CHAPTER XI

Of Partnership

Rep. by the Indian Partnership Act,

1932 (9 of 1932), Section 73 and Schedule. II.

SCHEDULE.

[Enactments repealed]

Rep. by the Repealing and Amending Act, 1914 (10 of 1914), Section 3 and Schedule II.

0 2610
Acts and Regulations

The Maharashtra Housing (Regulation and Development) Act, 2012

MAHARASHTRA ACT No. II OF 2014

(First published, after having received the assent of the Hon’ble President in the “Maharashtra Government Gazette” on the 24th February 2014)

An Act to regulate and promote the construction, sale, management and transfer of flats on the ownership basis in the State of Maharashtra and to establish the Housing Regulatory Authority and Housing Appellate Tribunal and to provide for matters connected therewith or incidental thereto.

WHEREAS the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963 (Mah. XLV of 1963), though enacted to provide for relief to flat purchasers against sundry abuses, malpractices and difficulties related to the construction, sale, management and transfer of flats, it is noticed by the State Government that, the said Act did not provide for an effective implementing arm for its various statutory provisions, as the flat purchasers could only approach consumer forum or civil court for acts of omission or commission regarding provisions of the said Act;

AND WHEREAS the Government considers it expedient to remove information asymmetry by ensuring full disclosure by promoters or developers and also to ensure compliance of agreed terms and conditions while registering, monitoring and regulating housing projects by the Housing Regulatory Authority and to usher in transparency and discipline in the transactions of flats and put a check on abuses and malpractices;

AND WHEREAS it is also considered expedient to establish the Housing Regulatory Authority and the Housing Appellate Tribunal for ensuring effective implementation of the law and to promote planned and healthy development and construction, sale, transfer and management of flats, residential buildings, and other similar properties, with a view to protecting, on the one hand, public interest in relation to the conduct and integrity of promoters and other persons engaged in the development of such flats, residential buildings and other similar properties, and, on the other, facilitating the smooth and speedy construction and maintenance of such flats, buildings and properties;

AND WHEREAS it is expedient to make a comprehensive law to regulate and provide for promotion of the construction, sale, management and transfer of flats on the ownership basis in the State of Maharashtra, and to establish the Housing Regulatory Authority and the Housing Appellate Tribunal for effective implementation thereof and also to provide for matters connected therewith or incidental thereto; it is hereby enacted in the Sixty-third Year of the Republic of India as follows:—

 

  1. Short title, extent and commencement,-

(1) This Act may be called the Maharashtra Housing (Regulation and Development) Act, 2012.

(2) It extends to the whole of the State of Maharashtra.

(3) It shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.

 

  1. Definitions,-

In this Act, unless the context otherwise requires,—

(a) “advertisement” means visible representation made to the general public either through announcement or display or in any other manner whatsoever, offering for sale a flat or plot or inviting persons to take such flat or plot on ownership basis and to make advances or deposits for such purposes;

(b) “apartment” and “apartment owner” shall have the same meanings as respectively assigned to them in the Maharashtra Apartment Ownership Act, 1970 (Mah.XV of 1971);

(c) “Apex Body” or “Federation” means an independent body formed by and consisting of all the co-operative societies or companies or condominiums or any other legal entity, constituted of the flat purchasers in various buildings with or without wings located within a layout, where each such co-operative society or company or condominium or any other legal entity, as the case may be, shall cooperate in the maintenance and administration of common areas and amenities and facilities provided in the layout but shall independently retain control of its own internal affairs and administration in respect of each of the buildings for which they are formed;

(d) “carpet area” shall have the same meaning as assigned to it in the relevant Development Control Regulations;

(e) “common areas and amenities and facilities of a layout” means the areas, amenities and facilities intended for common use of apartment owners in a layout and includes park, recreational ground, play ground, open space, path, pathway, alleyway or garden located outside the area of any building or buildings, street lights, securities, water and electric supply, sewerage, drainage, public works, fire fighting systems and works, water tanks, other utilities and services, and the like, provided or to be provided by the promoter within the layout but shall not include parking spaces or garages;

(f) “Competent Authority” means the Competent Authority appointed under section 21;

(g) “compulsory open space” means the minimum open space permitted and approved to be kept as such while constructing a building or buildings by the local Planning Authority under the Development Control Regulations or under any law for the time being in force ;

(h) “conveyance” means the legal instrument of transferring property, property rights, and title from one person or legal entity to another person or legal entity through registered deed and shall include lease, sub-lease or assignment;

(i) “development”, with its grammatical variations and cognate expressions, means to carry out development of building or the making of any material change in any building and includes redevelopment;

(j) “development charges” means the cost of external development work to be carried out by the local authority;

(k) “development works” means the internal development works and external development works;

(l) “external development works” means infrastructure work such as roads and road systems, landscaping, water supply, sewerage and drainage systems, electricity supply transformer, sub-station or any other work which may have to be executed by the local authority;

(m) “flat” means a separate and self-contained set of premises used or intended to be used for residence, office, show-room, shop, godown or for carrying on any industry or business and the premises forming part of the building and includes an apartment.

            Explanation.— If provision is made for sanitary, washing, bathing or other conveniences as common to two or more sets of premises, the premises shall be deemed to be separate and self-contained;

(n) “Housing Appellate Tribunal” means the Housing Appellate Tribunal established under section 36;

(o) “Housing Regulatory Authority” means the Housing Regulatory Authority established under section 22;

(p) “internal development works” includes roads, footpaths, water supply, sewers, drains, tree planting, street lighting, provision for community buildings and for treatment and disposal of sewage and sullage water or any other work in the boundary of a layout necessary for its proper development;

(q) “layout” means the schematic planning and,—

(i) development of more than one building, except for building

accessory to the main building, proposed on any land; or

(ii) development or redevelopment of any tract of land

admeasuring two thousand square meters or more in a

residential or commercial or in an industrial zone, including its

division or sub-division into plots;

(r) “limited common areas and facilities of a building” means entrance hall, staircases, lift, common passages on every floor, fire fighting systems within building including fire chute, refuge areas, garbage disposal area including garbage chute, service floors or terraces above the upper most floor of the building and includes all areas in the building except parking spaces and utility areas;

(s) “local authority” means the local authority as defined under clause (15) of section 2 of the Maharashtra Regional and Town Planning Act, 1966 (Mah. XXXVII of 1966);

(t) “marketing” means advertising for sale and promotion for sale of any flat or land in any project by the promoter;

(u) “Member”, in relation to the Housing Regulatory Authority, means the member of the Housing Regulatory Authority and includes the Chairperson thereof; and, in relation to the Housing Appellate Tribunal, means the member of the Housing Appellate Tribunal and includes the Chairperson thereof;

(v) “open space” means an area forming an integral part of a site left open to the sky;

(w) “parking space” means an enclosed or unenclosed, covered or open area which is sufficient in size to park vehicles;

(x) “prescribed” means prescribed by rules made under this Act;

(y) “project” means a housing project under this Act;

(z) “promoter” means a person, a developer or builder and includes a partnership firm or limited liability firm or any body or association of persons whether registered or not and who constructs or causes to be constructed a block or building of flats for the purpose of disposing of by sale or otherwise some or all of them to other person, or to a company, co-operative society or other association of persons, and includes his assignees, and where the person who builds and the person who disposes of are different persons, the term includes both;

(za) “Registrar” means the Registrar as defined in the Maharashtra Co-operative Societies Act, 1960 (Mah XXIV of 1961) or as the case may be, in the Companies Act, 1956 (1 of 1956);

(zb) “regulations” means the regulations made under section 52;

(zc) “Schedule” means the Schedule appended to this Act;

(zd) “to construct a block or building of flats” includes converting a building or part thereof into flats;

(ze) “Township” means an area,—

(i) where more than one layout is proposed or approved on

any land; and

(ii) where the land under development admeasures forty

hectares or more at one place, continuous, unbroken and

uninterrupted;

(zf) “utility area” means dry balconies, flower beds, cupboard niches, elevation boxes, decks, pocket terraces, open spaces, and the like, within or attached to a flat.

  1. Disclosures to be made by promoter,-

(1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or is constructing or constructs a block or building of flats, which is not for his personal use, shall, in all transactions with persons intending to take or taking one or more of such flats, be liable to give or produce, or cause to be given or produced, the information and the documents mentioned hereinafter in this section and also as may be prescribed.

(2) A promoter, who constructs or is constructing or intends to construct such block or building of flats, shall,—

(a) make full and true disclosure of the nature of his title to the land on which the flats are constructed or are to be constructed; such title to the land as aforesaid having been duly certified by an Attorney-at-law, or by an Advocate of not less than three years standing, and having been duly entered in the property card or extract of Village Forms VI or VII and XII or any other relevant revenue record:

Provided that, if such land is owned by another person, a duly registered copy of the agreement or Power of Attorney, as the case may be, by which the owner, including his legal heirs, executors and administrators, of such land has granted to the promoter or assigns the development rights of the real estate project, shall also be disclosed;

(b) make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land;

(c) make full and true disclosure of his enterprise details such as name, registered address, type of enterprise, registration details under which it is registered;

(d) disclose the name and address of the architect, structural engineer and contractor including turn-key contractor, if any, retained for construction of the building or flats;

(e) disclose the information relating to the number and size of plots, layout plan, carpet areas, and utility areas of the flat, Floor Space Index or the Transfer of Development Rights or additional Floor Space Index consumed in the building of which flats are under sale and limited common areas and facilities of the building and common areas and amenities and facilities of the layout proposed to be provided therefor;

(f) give inspection, on seven days’ notice or demand, of the plans, structural design and specifications of the building in which flats are being offered for sale or are being marketed, built or to be built on the land, duly certified by an Architect till such time as they are approved by the local authority, and when such plans and specifications, having been approved by the local authority, which he is required to do under any law for the time being in force, then such approved plans and specifications;

(g) disclose the building-wise time schedule of completion of each phase of the project which shall always be subject to force majeure event;

(h) disclose the time schedule for connecting the project with the municipal services such as sewerage, water supply, electricity, drainage, and the like, as applicable, which shall always be subject to force majeure event;

(i) disclose the nature of fixtures and fittings with regard to the flooring and sanitary fittings and the provision for one or more lifts provided or to be provided, with particulars in respect of the brand of the items of fixtures, fittings and lift if they are branded or otherwise the price range of the items, if not branded;

(j) disclose on reasonable notice or demand, if the promoter is himself the builder, the prescribed particulars in respect of the design, the type of concrete, the materials to be used in the construction of the building and the technology, prefabricated, precast, earthquake resistant, and the like, and if the promoter is not himself the builder, disclose, on such notice or demand, all agreements, and where there is no written agreements, the details of all agreements, entered into by him with the architect, structural engineer and contractors including turn-key contractors, regarding the prescribed particulars in respect of design, materials and construction of the building;

(k) specify in writing the date by which possession of the flat with all the amenities is to be handed over;

(l) prepare and maintain a list of flats with their numbers built or to be built;

(m) prepare and maintain list of parking spaces provided or to be provided, and identified by separate numbers;

(n) state in writing, the nature of the organization of persons to be constituted and to which title is to be passed, and the terms and conditions governing such organization of persons, who have taken or are to take the flats;

(o) display or keep all the documents, plans or specifications or copies thereof referred to in clauses (a), (b), (c), (d), (e) and (f) at the site and at the promoter’s registered office and permit inspection thereof to persons intending to take or taking one or more flats;

(p) disclose the names, addresses and contact numbers of the agents, property dealers, brokers or middlemen, if any, by whatever name called, duly authorized by the promoter ;

(q) give such other information and documents as may be prescribed.

(3) In case of a layout, in addition to the provisions of sub-section (2), the promoter shall also disclose,—

(a) the phase-wise layout plan of the housing project;

(b) the plan of phase of the development works in which flats for sale is marketed in the project;

(c) the details of the parts of the colony or apartments and the appurtenant areas that are intended to be kept as common areas, amenities and facilities of layout in respect of the phase being offered for sale or marketed;

(d) aggregate area in square meters of the parks, recreational grounds, gardens and play-grounds in a layout.

 

  1. Registering the project and displaying it on the website of Housing Regulatory Authority,-

(1) Every promoter of the project shall make an application, in the prescribed form, to the Housing Regulatory Authority for registration of the project and for displaying the project on the website of the Housing Regulatory Authority, alongwith such fees, not exceeding fifty thousand rupees, as may be prescribed:

Provided that, no such registration and displaying of the project or phase of such project shall be required,—

(i) when the area of the land proposed to be developed into a project or phase of such project does not exceed two hundred fifty square meters;

(ii) when the total number of flats proposed to be developed into a project inclusive of all phases is less than five;

(iii) where the promoter has received occupation certificate from the concerned local authority in respect of development of such flats or the building in such project or phase of the project prior to coming into force of this section;

(iv) where the project is a renovation, repair, reconstruction or redevelopment project which does not involve fresh or new allotment of flats or marketing for sale of flats.  .

Explanation.— For the purposes of this Act,—

(i) where any project is proposed to be marketed and sold in phases, then every such phase shall be considered as an independent project;

(ii) if a single purchaser of all the flats in a project duly registered by the Housing Regulatory Authority intends to dispose of such flats, by sale or otherwise, then, such single purchaser shall also be required to register and display the project under the provisions of this Act.

(2) The promoter shall enclose following documents alongwith the application under sub-section (1), namely:—

(a) chartered engineer’s or chartered architect’s authenticated copy of the proposed development of each phase of the project;

(b) proof of submission of plan for approval of local authority. Approval and sanction from the local authority, as and when available, obtained in accordance with the building regulations and other laws as are applicable, for the project being offered for sale or marketed and such approval and sanction shall be submitted or uploaded on website within seventy-two hours of obtaining the same from the local authority.

(3) The Housing Regulatory Authority shall, within seven days of obtaining the application for the registration of the project from the promoter, register and allot a password to the promoter for access of the website of the Housing Regulatory Authority.

  1. No transaction, including sale or marketing for sale, of flats in new project without registration of the project and displaying it on website of Housing Regulatory Authority,-

(1) No promoter shall start any transaction including sale or marketing for sale of flats in a new project or phase of such project without displaying such flats on the website of the Housing Regulatory Authority:

Provided that, for projects that are ongoing on the date of commencement of this section and where the occupation certificate is still to be obtained, the promoter shall make application to the Housing Regulatory Authority for registration of its project within such period as may be prescribed.

(2) No promoter shall start sale of a prescribed percentage of flats the area of which shall not exceed ten per cent of the total area of each of the building in every new project (hereinafter referred to as “Retained Flats”), till occupation certificate from the local authority in respect of that building is obtained by the promoter. The details of such flats shall be displayed on the website of the Housing Regulatory Authority, before the start of any transaction including marketing. The promoter shall be entitled to sell “Retained Flats”, in each of the building only after receipt of occupation certificate or building completion certificate from the local authority for that building.

  1. 6. Responsibility of the promoter to enter record or details on the website of Housing Regulatory Authority,-

The promoter shall, on receiving the password from the Housing Regulatory Authority, through a system of self-entry, access the website and enter the required details of the housing project, within such period as may be prescribed.

  1. Cancellation of registration,-

(1) The Housing Regulatory Authority may cancel the registration of the project, if it is declared by the court of law that the contract, agreement, or power of attorney or instrument or writing from which the promoter derives the right to the land or development of the land, is invalid:

Provided that, no order of cancellation of registration of the project under this sub-section shall be issued by the Housing Regulatory Authority unless a reasonable opportunity of being heard is given to the promoter.

(2) Upon issuing the order of cancellation, the Housing Regulatory Authority shall debar the promoter from accessing its website in respect of the project so cancelled.

  1. Issuing of advertisement or prospectus inviting advance or deposit,-

No promoter shall issue or publish an advertisement or prospectus, offering for sale or otherwise, any flat or inviting persons who intend to take such flats to make advance payments or deposits, without displaying the project or phase on the website of the Housing Regulatory Authority.

  1. Promoter before accepting advance payment of deposit, beyond twenty per cent., to enter into agreement and agreement to be registered,-

(1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a block or building of flats all or some of which are taken or to be taken on ownership basis or otherwise, shall, before, he accepts any sum of money as advance payment or deposit exceeding twenty per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such flats, and the agreement shall be registered under the Registration Act, 1908 (XVI of 1908) (hereinafter, in this section, referred to as “the Registration Act”) and such agreement shall be in the prescribed form.

(2) The agreement to be entered into under sub-section (1) shall contain, inter alia, the particulars as specified in clause (a) of this sub-section and to such agreement there shall be attached the copies of the documents specified in clause (b) thereof,-–

(a) particulars,—

(i) the plans and specifications approved by the local authority

and all other approvals required under any law, as applicable;

(ii) the date by which the possession of the flat is to be

handed over to the purchaser;

(iii) the extent of the carpet area of the flat;

(iv) the extent of the utility area ;

(v) the total price of the flat including the proportionate price of

the limited common areas and facilities and parking spaces

which should be shown separately, to be paid by the

purchaser of flat; and the intervals at which instalments

thereof may be paid;

(vi) allotment of fixed parking space to the flat purchaser:

Provided that, no parking spaces shall be allotted in

minimum open space;

(vii) the nature of the organization to be constituted of the

persons who have taken or are to take the flats;

(viii) the nature, extent and description of limited common

areas and facilities of a building;

(ix) the aggregate area of park, garden, recreation ground and

playground proposed to be provided for in a lay-out;

(x) the nature, extent and description of common areas and

amenities and facilities of a lay-out, if any;

(xi) Statement of the use for which the flat is intended and

restriction on its use, if any;

(xii) percentage of undivided interests in the limited common

areas and facilities of the building, pertaining to the flat agreed

to be sold;

(b) copies of documents,—

(i) the certificate by an Attorney-at-law or an Advocate under

clause (a) of sub-section (2) of section 3;

(ii) Property Card or extract of Village Forms VI or VII and XII

or any other relevant revenue record showing the nature of

the title of the promoter to the land on which the flats are

constructed or are to be constructed;

(iii) the plans and specifications of the flats approved by the

local authority.

(3) Any agreement for sale entered into under sub-section (1) shall be presented, by the promoter or by any other person competent to do so under section 32 of the Registration Act, at the proper registration office for registration within the time allowed under sections 23 to 26 (both inclusive) of the Registration Act and execution thereof shall be admitted before the registering officer by the person executing the document or his representative, assignee or agent, duly authorized, as laid down in sections 34 and 35 of the Registration Act also within the time aforesaid:

Provided that, on presenting a document for registration, as aforesaid, if the person executing such document or his representative, assignee or agent does not appear before the registering officer and admit the execution of the document, then the registering officer shall cause a summons to be issued under section 36 of the Registration Act, requiring the executants to appear at the registration office, either in person or by duly authorized power of attorney holder, at a time fixed in the summons. If the executants fail to appear in compliance with the summons, the execution of the document shall be deemed to be admitted by them and the registering officer may proceed to register the document accordingly. If the executants appear before the registering officer as required by the summons but deny execution of the document, then the registering officer shall, after giving them a reasonable opportunity of being heard, if satisfied that the document has been executed by them, proceed to register the document accordingly.

  1. Effect of non- registration of agreement,-

Where an agreement for sale entered into under sub-section (1) of section 9, remains unregistered for any reason, then, notwithstanding anything contained in any law for the time being in force, or in any judgment, decree or order of any Court, it may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1963 (47 of 1963), or as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property Act, 1882 (IV of 1882), or as evidence of any collateral transaction not required to be effected by registered instrument.

 

  1. Responsibilities of promoter,-

(1) When any person makes an advance or a deposit on the basis of the information contained in the advertisement or prospectus and sustains any loss or damage by reason of any wilful untrue statement included therein, then he shall be compensated by the promoter for any loss that he may have sustained consequent to such information:

Provided that, if the person affected on account of such wilful untrue statement, withdraws from the project, the entire amount paid by such person shall be returned to him alongwith interest at the prescribed rate but not exceeding fifteen per cent per annum.

(2) Promoter shall take all those measures provided in Schedule I for protection and safety of a building.

(3)(a) It shall be the responsibility of the promoter to obtain the occupation certificate or building completion certificate in respect of the building from the concerned local authority as per the building regulations in force and make a copy thereof available to the flat purchasers or unit holders individually or to an organization which is the authorized collective body of flat purchasers or unit holders, as the case may be.

(b) The promoter shall not allow persons to take possession until occupation or completion certificate, as the case may be, where such certificate is required to be given under any law, is duly given by the local authority and no person shall take possession of a flat until such occupation or completion certificate has been duly given by the local authority.

(4) After the possession of the building or flat is handed over to the flat purchasers or unit holders, the flat purchasers or unit holders shall not be permitted to carry out any additions or alterations in the flat or building and the promoter shall not be responsible, if additions and alterations are done in the flat, or building by the flat purchasers or unit holders or occupier, in violation of the building regulations.

(5)(i) It shall be the responsibility of the promoter to provide essential services such as water supply, electricity, light in passages and staircases, lifts and sanitary services as per agreement to the flat purchasers or unit holders of the building or flat or to any person in authorised occupation thereof till such time and in such manner as specified in the agreement of sale and such services shall not, except with just and sufficient notice, be cut-off, withheld, or curtailed. The aforesaid responsibility is subject to the service provider providing the same. If the service provider is unable to provide the aforesaid services, then the promoter shall not be responsible to provide the same.

(ii) The details of the essential supplies and services referred to in clause (i) above shall be kept by the promoter in the form of a statement and shall be made available on demand to the flat purchasers or unit holders or organization of flat purchasers or unit holders.

(iii) If the allottee or flat or unit purchaser or organization fails to pay the outgoings to the promoter, which are payable by the allottee or flat or unit purchaser or organization under this Act, for a period of more than three months, then the promoter may approach the Competent Authority, who may, after giving notice of not less than seven days to such allottee or flat or unit purchaser or organization, as the case may be, cut-off, withhold or in any manner curtail or reduce any essential supply or service enjoyed by such allottee or flat or unit purchaser or organization in the project.

(6) In case the promoter is undertaking a redevelopment project, the provisions of this Act shall apply only in relation to the flats or buildings which are for marketing or sale in open market. The flats or buildings which are entirely constructed for providing permanent alternate accommodation to existing occupants of redevelopment project shall not be governed by the provisions of this Act, but shall be governed by the statute under which such schemes are being framed. .

  1. Promoter to maintain separate account of sums taken as advance or deposit and to be trustee therefor and disburse them for purposes for which given,-

The promoter shall maintain building-wise separate account in any bank of sums taken by him, from persons intending to take or who have taken flats, deposits including any sums so taken towards the share capital for the formation of co-operative society or a company or towards the outgoings, including ground rent, if any, municipal or other local taxes, taxes on income, water charges, electricity charges, revenue assessment, interest on any mortgage or other encumbrances, if any; and he shall hold the said moneys for the purposes for which they were given and shall disburse the moneys for those purposes and shall, on demand in writing by an officer appointed, by general or special order, by the State Government for the purpose, make full and true disclosure of all transactions in respect of that account.

The promoter shall also follow the instructions specified in Schedule II. The promoter shall get the accounts maintained for heads mentioned in Schedule II, as provided under this section, audited from a Chartered Accountant registered with the Institute of Chartered Accountants of India.

 

  1. Responsibility for payment of outgoings till property is transferred,-

A promoter, while he is in possession and where he collects from persons, who have taken over flats or are to take over flats, sums for the payment of outgoings, shall pay all outgoings, including ground rent, municipal or other local taxes, taxes on income, water charges, electricity charges, revenue assessment, interest on any mortgage or other encumbrances, if any, until he transfers the property to the persons taking over the flats, or to the organization of any such persons. Where any promoter fails to pay all or any of the outgoings collected by him from the persons who have taken over flats or are to take over flats, before transferring the property to the persons taking over the flats or to the organization of any such persons, the promoter shall continue to be liable, even after the transfer of the property, to pay such outgoings and penal charges, if any, to the authority or person to whom they are payable and shall be responsible for any legal proceedings which may be initiated by such authority or person.

 

  1. No alterations or additions without consent after plans are disclosed,-

(1) In case the development consists of single building then after the plans and specifications of the building, as approved by the local authority as aforesaid, are disclosed or furnished to the person who agrees to take one or more flats, the promoter shall not,-

(a) make any alteration in the structure described therein in respect of the flat or flats which are agreed to be taken, without the previous consent of that person;

(b) construct any additional floors or wings in the structure of the building or wing, not disclosed in the agreement, without the previous consent of all the persons who have agreed to take the flats in such building or wing:

Provided that, any alteration or addition required by any government authorities or due to change in law or which are disclosed in the agreement, shall not require previous consent of any or all persons who have agreed to take flats in such building.

(2)(a) In case the development is being carried out on a layout or Township, then after the plans and specifications of the building, as approved by the local authority as aforesaid, are disclosed or furnished to the person who agrees to take one or more flats, the promoter shall not,–

(i) make any alteration in that structure described therein in respect of the flat or flats which are agreed to be taken, without the previous consent of that person;

(ii) construct any additional floors or wings in the structure of the building or wing, not disclosed in the agreement, without the previous consent of all the persons who have agreed to take the flats in such building or wing ;

(iii) make any modification in the location of the recreation ground or garden or park or playground without the consent of those persons who have agreed to take flats on the basis of disclosure of the location of such recreation ground or garden or park or playground and such fact is mentioned in writing in the agreement for sale of such flat by the promoter.

(b) Subject to provisions of clause (a) above, the layout including recreation ground, park, garden and playground disclosed alongwith the building plans, can be amended, modified and varied by the promoter, from time to time, in accordance with the Development Control Regulations including for the utilization of the full development potential available, from time to time.

(c) In case of development under a layout or Township, the promoter shall be entitled to further construction of any new building in the layout or Township at any time after obtaining approval of the local authority in accordance with the building rules or building bye-laws or Development Control Regulations made under any law for the time being in force:

Provided that, the promoter shall not reduce the approved compulsory open spaces of the building or shall not reduce the aggregate area of park, recreational ground, playground and garden in the approved layout in which persons agree to take one or more flats, without the previous consent of all such persons, except that such alteration or amendment is required by the authorities or due to change in applicable laws.

  1. Defects noticed within five years to be rectified,-

If any defect in the building or material used, or if any unauthorized change in the construction is brought to the notice of the promoter, within a period of five years from the date of handing over possession of flats, it shall, be rectified by the promoter without further charge to the persons who have agreed to take the flats and in other cases, where the defect or change can not be rectified, such persons shall be entitled to receive reasonable compensation for such defect or change. Where there is a dispute regarding any defect in the building or material used or any unauthorized change in the construction, the matter shall, within a period of five years from the date of handing over possession, on payment of such fee as may be determined by the Housing Regulatory Authority, be referred for decision to such officer not below the rank of an Executive Engineer as the State Government may, by general or special order, specify in this behalf.

  1. Effect of non- completion of project,-

(a) If the promoter fails to complete construction and obtain occupation certificate of any building or buildings in the project in accordance with the terms of the agreement by the date specified or any further date agreed to by the parties or as may be decided by the Housing Regulatory Authority, the Housing Regulatory Authority may, after giving reasonable opportunity of being heard to the applicant and the promoter, and on being satisfied that the promoter is not able to complete the construction and obtain occupation certificate, pass an appropriate order to enable completion of the construction of that building and obtain occupation certificate thereof. Such order of the Housing Regulatory Authority may, inter-alia, provide for,—

(i) formation and registration of a legal entity of sixty per cent.

of the flat purchasers in the manner as may be prescribed

who have come before the Housing Regulatory Authority;

(ii) appointment of the legal entity as an escrow agent for

taking over possession of the building and area appurtenant

thereto, in the manner as may be prescribed;

                        (iii) directing the Competent Authority to transfer the Retained

Flats in the name of the escrow agent within such period and

in the manner as may be prescribed ;

(iv) authorizing escrow agent to appoint contractors,

consultants and other agencies required to complete the

construction and obtain occupation certificate on such terms

and conditions as may be decided by the escrow agent in the

manner as may be prescribed:

Provided that, notwithstanding anything contained in

any other law for the time being in force, stamp duty or any

other taxes, duties and levies shall not be payable on

‘Retained Flats’ being transferred to escrow agent under the

orders of the Housing Regulatory Authority.

(b) If the promoter, for reasons beyond his control, is unable to give possession of the flat by the date specified, or the further agreed date and a period of three months thereafter, or a further period of three months if those reasons still exist, then, the promoter shall be liable on demand, without prejudice to any other actions to which he may be liable, to refund the amount already received by him in respect of the flat with interest at a rate as may be prescribed including penalty as may be determined by the Housing Regulatory Authority.

  1. No mortgage, etc., to be created without consent of parties after execution of agreement for sale,-

No promoter shall, after he executes an agreement to sell any flat, mortgage or create a charge on the flat without the previous consent of the person who takes or agrees to take the flat, and if any such mortgage or charge is made or created without such previous consent after the agreement referred to in section 9 is registered, it shall not affect the rights and interests of such persons.

  1. Promoter to take steps for formation of co-operative society, company, Apex Body or Federation,-

(1) Where a co-operative society or a company or a legal entity of persons is to be constituted of flat purchasers in a single building not being part of a layout, the promoter shall submit an application to the competent authority for registration of the co-operative society or the company or any other legal entity, as the case may be, within four months from the date on which the occupation certificate in respect of such building is issued or, minimum sixty per cent of the flat purchasers in such building have taken possession or the promoter has received full consideration and other amounts for the same, whichever is earlier.

(2)(a) Where a co-operative society or a company or any other legal entity of persons taking the flats in a layout consisting of more than one building or wings, is to be constituted, the promoter shall form separate and independent co-operative society or company or any other legal entity in respect of each of the buildings or wings. The promoter shall submit application for formation of co-operative society or company or any other legal entity in respect of each of the building or wing, as prescribed, within four months from the date on which the occupation certificate in respect of such building or wing is issued or, minimum sixty per cent of the total flat purchasers in such building or wing have taken possession or the promoter has received full consideration and other amounts for the same, whichever is earlier.

(b) Where under clause (a) above, the promoter has formed separate and independent co-operative societies or companies or any other legal entities of the persons taking flats in different structures consisting of more than one building or wing within a layout, then the promoter shall form and register an Apex Body or Federation consisting of all such entities in the layout, within such period as may be prescribed.

(3) The Apex Body or Federation shall administer and maintain common areas and amenities and facilities provided in the layout but its members shall independently retain control of the internal affairs and administration in respect of its own building.

(4) If any property consisting of building or buildings is constructed or to be constructed and the promoter submits such property to the provisions of the Maharashtra Apartment Ownership Act, 1970 (Mah. XV of 1971) by executing and registering a declaration as provided by that Act, then the promoter shall inform the Registrar as defined in the Maharashtra Co-operative Societies Act, 1960 (Mah. XXIV of 1961), accordingly and in such cases, it shall not be lawful to form any co-operative society or company.

(5)(a) If the promoter fails within the prescribed period to submit an application to the Registrar,–

(i) for registration of society in the manner provided in the Maharashtra Co-operative Societies Act, 1960 (Mah. XXIV of 1961);

(ii) for registration of Apex Body or Federation, in the manner as prescribed,-

the Competent Authority may, upon receiving application from the persons who have taken flats from the said promoter, a co-operative society or company or any other legal entity in respect of any of the buildings in the layout, direct the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar concerned, to register the society, the Apex Body or Federation.

(b) No such direction to register any society or Apex Body or Federation, under clause (i) or (ii) above, shall be given to the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar, by the Competent Authority without first verifying the authenticity of the applicant’s request and giving the concerned promoter a reasonable opportunity of being heard.

  1. Promoter to convey title, etc., and execute documents according to agreement,-

(1) In respect of the property wherein only one building is to be constructed and if no period for conveying the title of the promoter to the organization of the flat purchasers is agreed upon, the promoter shall, subject to his right to dispose of the remaining flats, if any, execute the conveyance within four months from the date on which the co-operative society or the company is registered or, as the case may be, the association of the flat purchasers or unit holders is duly constituted. When a promoter has submitted his property to the provisions of the Maharashtra Apartment Ownership Act, 1970 (Mah. XV of 1971) by executing and registering a declaration as required by section 2 of that Act, and no period for conveying the title of the promoter in respect of an apartment to each apartment taker is agreed upon, the promoter shall execute the conveyance or deed of apartment in favour of each apartment taker within four months from the date, the apartment taker has entered into possession of his apartment.

(2) In the case of a layout, the said conveyance shall, till such time as the entire development of the layout is completed, be only in respect of the structures of the buildings in which a minimum number of sixty per cent. of total flats are sold, alongwith Floor Space Index consumed in such building, subject to the right of the promoter to dispose of the remaining flats, if any, and receipt of the entire consideration amount and outstanding dues from all the flat purchasers. The conveyance shall further, be subject to the right to use, in common, the internal access roads and recreation areas developed or to be developed in the layout and with the right to use of the open spaces allocated to such building or buildings in terms of the agreement for sale executed by the promoter and the respective flat purchasers:

Provided that, notwithstanding anything contained in this Act or in any agreement or in any judgment, decree or order of any court or in any other law for the time being in force, the promoter shall be entitled to develop and continue to develop the remaining layout land, with the right to use the internal access roads and all the facilities, amenities and services in the layout and to construct any additional structures thereon by consuming the balance Floor Space Index and balance Transfer of Development Right, Floor Space Index and balance additional Floor Space Index relating to the said layout land and any future increase in Floor Space Index and the Transfer of Development Rights, Floor Space Index and additional Floor Space Index therein due to change in the law or the policies of the Government or local authority:

Provided further that, if the Floor Space Index of the plot in a layout is increased due to change in the law or the policies of the Government or local authorities, subsequent to conveyance of any one or more structures to organization of flat purchasers, then increase in Floor Space Index which is proportionate to the Floor Space Index utilized or consumed by the conveyed structure or structures to total Floor Space Index of the layout, shall belong to the organization of flat purchasers of the conveyed structure or structures and it shall not be necessary for the promoter to obtain any consent or permission from the organization of flat purchasers in the said layout land or phase for the purpose of utilizing the balance Floor Space Index or the Transfer of Development Right, Floor Space Index or additional Floor Space Index.

(3) Where the title of the promoter to be conveyed is in respect of the entire undivided or inseparable land underneath all such buildings in a layout, and if no period for executing such conveyance of the entire undivided or inseparable land underneath all such buildings jointly or otherwise in favour of Apex Body or Federation is agreed upon, then such conveyance shall be executed by the promoter in favour of Apex Body or Federation within such time as may be prescribed, after formation of such Apex Body or Federation.

(4) It shall be the duty of the promoter to file with the Competent Authority, within the prescribed period, a copy of the conveyance executed by him. If the promoter fails to execute the conveyance as provided by sub-section (1), (2) or (3), within the prescribed period, the members of such co-operative society, the company or the association of apartment owners or Apex Body or Federation, as the case may be, may make an application, in writing, to the concerned Competent Authority accompanied by the true copies of the registered agreements for sale, executed with the promoter by each individual member of the society or company or the association or Apex Body or Federation and all other relevant documents, including the occupation certificate, if any, for issuing a certificate that such society, company or association or Apex Body or Federation, as the case may be, is entitled to have an unilateral deemed conveyance, executed in their favour and to have it registered.

(5) The Competent Authority, on receiving such application, within reasonable time and in any case not later than six months, after making such enquiry as deemed necessary and after verifying the authenticity of the documents submitted and after giving the promoter a reasonable opportunity of being heard, on being satisfied that it is a fit case for issuing such certificate, shall issue the certificate to the Sub-Registrar or any other appropriate Registration Officer under the Registration Act, 1908 (XVI of 1908), certifying that it is a fit case of enforcing unilateral execution of conveyance deed conveying the right, title and interest of the promoter in the building or layout plot in favour of the applicant, as deemed conveyance:

Provided that, an appeal under section 40 against the order of the Competent Authority can be preferred by any party aggrieved by the said order to the Housing Appellate Tribunal.

(6) On submission of application by such society, the company, the association of apartment owners or Apex Body or Federation, as the case may be, to the Sub-Registrar or the concerned appropriate Registration Officer appointed under the Registration Act, 1908 (XVI of 1908), the certificate issued by the Competent Authority alongwith the unilateral instrument of conveyance, the Sub-Registrar or the concerned appropriate registration officer shall, notwithstanding anything contained in the Registration Act, 1908 (XVI of 1908), register that instrument as deemed conveyance.

(7) Upon execution of the conveyance or unilateral deemed conveyance, of a building or buildings in a layout, the organization in whose favour such conveyance is executed shall be entitled in any reconstruction or redevelopment of such building or buildings to the Floor Space Index or the Transfer of Development Right, Floor Space Index or additional Floor Space Index consumed in construction of such building as well as its proportionate share in increase in Floor Space Index as per provision of sub-section (1) and in the event of any reconstruction or redevelopment of the building or buildings being undertaken by the said organization, then, notwithstanding anything contained in any other law for the time being in force, such organization shall be entitled to do so on the portion of land allocated to such building or buildings in terms of the agreement for sale executed by the promoter and the respective flat purchaser without prior permission of the promoter.

(8) The promoter or land owner shall convey the layout plot or land to the Apex Body or Federation, subject to the right of the promoter to dispose of the remaining flats, if any, and receipt of the entire consideration amount and outstanding dues from all flat purchasers of all the buildings or structures constructed on the layout plot. If there is any increase in Floor Space Index or the Transfer of Development Right or additional Floor Space Index or any benefits, available on such layout plot, due to changes in the Government or regulatory policies, after the conveyance or unilateral deemed conveyance of the land under the layout to the Apex Body or Federation, then such increased Floor Space Index, the Transfer of Development Right or additional Floor Space Index and other benefits shall be apportioned to the respective legal entities in proportion to the Transfer of Development Right, Floor Space Index or additional Floor Space Index used for the purpose of construction of the buildings managed by them.

(9) The Apex Body or Federation formed by the legal entities on a layout plot shall manage and administer the common areas and the facilities without having any legal rights, title and interest in the building or buildings in such a layout plot and all legal rights, title and interest in the building or buildings shall belong to the respective entities in whose favour the conveyance of such building or buildings is executed.

  1. General liabilities of flat purchaser,-

(1) Every person who has executed an agreement to take a flat shall pay, at the proper time and place, the price, his proportionate share of the municipal taxes, water and electricity charges, ground-rent, if any, and other public charges in accordance with his agreement with the promoter.

(2) Any person who has executed an agreement to take a flat and who, without reasonable excuse, fails to comply with or contravenes sub-section (1) shall be punishable with fine which may extend to the amount defaulted.

  1. Appointment of Competent Authority,-

The State Government may, by notification in the Official Gazette, appoint an officer, not below the rank of the District Deputy Registrar of Co-operative Societies, to be the Competent Authority, for an area or areas to be specified in such notification and different officers may be appointed as Competent Authority for different local areas for the purposes of exercising the powers and performing the duties under this Act.

  1. Establishment of Housing Regulatory Authority,-

(1) With effect from such date and in such areas as the State Government may, by notification in the Official Gazette appoint, there shall be established, for the purposes of this Act, one or more Authorities to be called “ the Housing Regulatory Authority ”.

(2) The Housing Regulatory Authority, constituted under sub-section (1), shall be a body corporate by the name aforesaid having perpetual succession and a common seal, with power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable and to contract, and shall, by the said name, sue or be sued.

  1. Composition of Housing Regulatory Authority,-

The Housing Regulatory Authority shall consist of a Chairperson and two or more Members to be appointed by the State Government from amongst persons who have special knowledge of and professional experience in the field of public administration, urban development, housing, finance, law or management:

Provided that, a person, who is, or has been, in the service of Government shall not be appointed as a Chairperson unless such person is holding or has held the post of the Principal Secretary to the State Government or any equivalent post under the Government of India.

 

  1. Term of office of Chairperson and other Members of Housing Regulatory Authority,-

(1) The Chairperson and other Members shall hold office for a term not exceeding five years, from the date on which they enter upon their offices or until they attain the age of sixty-five years, whichever is earlier.

(2) The salary and allowances payable to, and the other terms and conditions of services of, the Chairperson and other Members shall be such as may be prescribed.

(3) The salary, allowances and other conditions of services of the Chairperson and other Members shall not be varied to their disadvantage after their appointment.

(4) An employee of the Government on his selection as Chairperson or Member, shall have to retire from service before joining.

(5) The Chairperson or any Member may relinquish his office by giving in writing to the State Government a notice of not less than three months or be removed from his office in accordance with the provisions of section 26.

(6) The Chairperson or any Member, ceasing to hold office as such, shall not accept any commercial employment in the Housing Sector for a period of one year from the date he ceases to hold such office.

  1. Administrative powers of the Chairperson,-

The Chairperson shall have powers of general superintendence and direction in the conduct of the affairs of the Housing Regulatory Authority and he shall, in addition to presiding over the meetings of the Housing Regulatory Authority, exercise and discharge such administrative powers and functions of the Housing Regulatory Authority as may be prescribed.

  1. Removal of Chairperson and Member of Housing Regulatory Authority from office in certain circumstances,-

(1) The State Government may, by order, remove from office the Chairperson or any Member of the Housing Regulatory Authority, if the Chairperson or such Member, as the case may be, has,-

(a) been adjudged as insolvent; or

(b) been convicted of an offence, which, in the opinion of the State Government, involves moral turpitude; or

(c) become physically or mentally incapable of acting as a Chairperson or Member; or

(d) acquired such financial or other interest as is likely to affect prejudicially his function as a Chairperson or Member; or

(e) so abused his position, as to render his continuance in office prejudicial to the public interest.

(2) No Chairperson or Member shall be removed from his office under clause (d) or clause (e) of sub-section (1) unless he has been given a reasonable opportunity of being heard.

  1. Officers of Housing Regulatory Authority,-

(1) The Housing Regulatory Authority may appoint such officers and employees, as may be necessary for the efficient discharge of its functions under this Act.

(2) The officers and employees of the Housing Regulatory Authority shall discharge their functions under the general superintendence of its Chairperson. Their salary, allowances and other conditions of service shall be such as may be determined by regulations.

  1. Meetings of Housing Regulatory Authority,-

(1) The Housing Regulatory Authority shall meet at such places and times, and shall observe such procedure in regard to the transaction of business at its meetings as may be determined by regulations.

(2) The Chairperson, if for any reason, is unable to attend a meeting of the Housing Regulatory Authority, the senior-most Member amongst the Members present at the meeting shall preside:

Provided that, any decision relating to cancellation of registration under section 7 shall not be executed unless the same is decided in a meeting attended by all the Members.

(3) All questions which come up before any meeting of the Housing Regulatory Authority shall be decided by a majority of the members present and voting and, in the event of an equality of votes, the Chairperson or the Member presiding shall have the right to exercise a second or casting vote.

  1. Functions of Housing Regulatory Authority,-

(1) The Housing Regulatory Authority shall perform the following functions, namely:—

(i) to ensure compliance of the obligations cast upon the promoters and the allottees under this Act and the rules made thereunder;

(ii) to cause an inquiry to be made into compliance of its orders or directions made in exercise of its powers under this Act;

(iii) to levy fees and other charges at such rates and in respect of such services as may be determined by regulations;

(iv) to report matter to the appropriate authority, for taking action against the promoter or an allottee for commission of any offence under any law for the time being in force;

(v) to host and maintain a website of records of all projects within its jurisdiction as database, with all the details as set out herein for displaying under this Act;

(vi) to take measures under section 33;

(vii) to perform such other functions related to Housing Sector as may be entrusted to the Housing Regulatory Authority by the State Government, as may be necessary;

(viii) to make recommendations, notwithstanding anything contained in the Maharashtra Regional and Town Planning Act, 1966 (Mah. XXXVII of 1966), either suo moto or on a request from the State Government in matters in the existing Development Control Regulations relating to changes in Floor Space Index and any other related matters, as may be prescribed:

Provided that, the Housing Regulatory Authority shall forward its recommendations within a period of sixty days from the date on which the Government has sought the recommendations:

Provided further that, the Housing Regulatory Authority may request the State Government to furnish such information or documents as may be necessary for the purpose of making recommendations under this sub-section and the Government shall supply such information within a period of seven days from receipt of such request:

Provided also that, if the State Government having considered the recommendation of the Housing Regulatory Authority comes to a prima facie conclusion that such recommendation cannot be accepted or needs modifications, it shall refer the recommendation back to the Housing Regulatory Authority for its reconsideration, and the Authority may, within fifteen days from the date of receipt of such reference, forward to the State Government its recommendation after considering the reference made by the Government. After receipt of further recommendation, if any, the State Government shall take a final decision.

(2) Upon receiving a complaint application in this behalf, the Housing Regulatory Authority shall, after hearing the matter from the parties or through their representatives, as the case may be, and after making such enquiry as it deems fit, pass a reasoned order, in writing, within a period of three months from the date of such application or commencement of the suo moto proceedings, as the case may be, or within such further time as may be found appropriate by the Housing Regulatory Authority.

(3) On any dispute between promoters, organization of flat purchasers and allottees or flat or unit takers regarding failure on either part to meet the obligations cast upon them under this Act and the rules made thereunder, adjudication may be done by any single member bench of the Housing Regulatory Authority, as the Housing Regulatory Authority may, by regulations determine :

Provided that, nothing in this section shall apply in respect of matters which are subject to the jurisdiction of the Competition Commission established under the Competition Act, 2002 (12 of 2003).

(4)(a) The Housing Regulatory Authority shall prepare and submit, to the State Government, once in every year, the report in such form and at such time as may be prescribed, containing,—

(i) a description of all the activities of the Housing Regulatory

Authority for the previous year; and

(ii) the annual accounts for the previous years.

(b) A copy of the report received under clause (a) above shall be laid as soon as may be after it is received before each House of the State Legislature.

  1. Powers of Housing Regulatory Authority to call for information, conduct investigations, etc,-

Where the Housing Regulatory Authority considers it expedient so to do, it may, by order in writing,–

(a) call upon any promoter, at any time, to furnish in writing, by himself or through his authorized representative, such information or explanation with regard to compliance of the promoter’s obligations relating to ownership agreement as the Housing Regulatory Authority may require;

            (b) direct the promoter to produce by himself or through his authorized representative, all such books of accounts or other documents relating to the project or flat under complaint in his custody having a bearing on the subject matter of such complaint and also any other information relating thereto.

  1. Powers of Housing Regulatory Authority to issue directions,-

The Housing Regulatory Authority may, for the discharge of its functions issue such directions, from time to time, to promoters and flat or unit purchasers or organization, as it may consider necessary and such directions shall be binding on all concerned.

 

  1. Power of Housing Regulatory Authority consequent upon cancellation of registration,-

Upon cancellation of the registration under sub-section (1) of section 7, the Housing Regulatory Authority shall prohibit the promoter from marketing and selling the flats and buildings constructed for the project of which the registration is cancelled.

  1. Measures to be taken by Housing Regulatory Authority for planned development and promotion of housing sector,-

The Housing Regulatory Authority shall take all possible measures for the growth and promotion of a healthy, transparent, efficient and competitive real estate market, and in particular, take the following measures, namely :–

(a) evolve a consensus among the Central Government or the State Government, the Bureau of Indian Standards, urban local bodies, promoters, associations of engineers and architects and other stake holders to follow, on mandatory basis, the structural safety norms as may be prescribed for the area concerned by the National Building Code or Bureau of Indian Standards or statutory provisions of the local building bye-laws as may be modified by the State Government, from time to time;

(b) suggest to the State Government to establish a framework of standard procedures and norms for speedy processing and grant of planning permissions;

(c) promote the rating of real estate projects and the rating of promoters, by the association of promoters, with a view to improve the confidence level of both investors and consumers through a system of self-regulation, which may be based on the rating parameters developed by Association or Federation of promoters as prescribed;

(d) on behalf of the real estate sector, take up, with the Government, financial institutions, local bodies, regulatory authorities and other concerned stake-holders, advocacy of issues like prompt and easy access to credit or home loans, credible and reliable land title certification system, speedy and transparent registration of properties, effective institutional arrangement for proper upkeep and maintenance of built-up properties, statutory framework for equitable and balanced relationship between promoter and flat or unit purchasers;

(e) promote construction of environment friendly or green buildings and measures for conservation of water and its re-cycling;

(f) with a view to encouraging construction of structurally safe and affordable housing, promote standardization and use of appropriate construction materials, fixtures, fittings and construction techniques.

 

  1. Power of Housing Regulatory Authority to regulate its own procedure,-

(1) The Housing Regulatory Authority shall be guided by the principles of natural justice and, subject to other provisions of this Act and of any rules made thereunder, the Housing Regulatory Authority shall have powers to regulate its own procedure by regulations.

(2) The Housing Regulatory Authority shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (V of 1908), while trying a suit in respect of the following matters, namely :—

(a) summoning and enforcing the attendance of the promoter, authorized representative of the promoter or any person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavits;

(d) requisitioning, subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (I of 1872) any public record or document or copy of such record or document from any office;

(e) issuing commissions for the examination of witnesses or documents;

(f) reviewing its decisions;

(g) dismissing an application for default or deciding it ex-parte; and

(h) any other matter which may be prescribed.

  1. Vacancies, etc., not to invalidate proceedings of Housing Regulatory Authority,-

No act or proceedings of the Housing Regulatory Authority shall be invalid merely by reason of,–

(a) any vacancy in, or any defect in the constitution of the Housing Regulatory Authority; or

(b) any defect in the appointment of a person acting as a Chairperson or Member; or

(c) any irregularity in the procedure of the Housing Regulatory Authority not affecting the merits of the case.

  1. Establishment of Housing Appellate Tribunal,-

(1) The State Government shall, by notification in the Official Gazette, establish a Tribunal to be known as the “Housing Appellate Tribunal” to adjudicate any dispute, hear and dispose of appeal against any direction, decision or order of the Housing Regulatory Authority.

(2) The Housing Appellate Tribunal shall consist of a Chairperson and not more than two Members to be appointed by the State Government and the selection of the Chairperson of the Housing Appellate Tribunal shall be made by the Government, in consultation with the Chief Justice of the High Court.

(3) A person shall not be qualified for appointment as the Chairperson or a Member of the Housing Appellate Tribunal unless he,–

(a) in the case of Chairperson, has been serving or is a retired Judge of a High Court;

(b) in the case of a Member has held the post of the Principal Secretary to the State Government or any equivalent post under the Government of India, or a person who is well versed in the field of urban development, housing, finance, law or management.

  1. Term of office of Chairperson and Members and service conditions,-

(1) The Chairperson and Members of the Housing Appellate Tribunal shall hold office for a term not exceeding three years, from the date on which they enter upon their offices or until they attain the age of sixty-eight years, whichever is earlier.

(2) The salary and allowances payable to, and other terms and conditions of service of, the Chairperson and Members of the Housing Appellate Tribunal shall be such as may be prescribed and shall not be varied to their disadvantage after their appointment.

(3) The Chairperson or Member of the Housing Appellate Tribunal may relinquish his office by giving in writing to the State Government notice of not less than three months or be removed from his office in accordance with the provisions of section 38.

(4) Any serving person, on his selection as a Chairperson or Member of the Housing Appellate Tribunal shall have to retire from service before joining.

(5) The Chairperson or any Member of the Housing Appellate Tribunal, ceasing to hold office as such, shall not accept any commercial employment in the Housing Sector for a period of one year from the date he ceases to hold such office.

  1. Removal of Chairperson and Member of Housing Appellate Tribunal from office in certain circumstances,-

(1) The State Government may remove from office, the Chairperson or any Member of the Housing Appellate Tribunal, who has,–

(a) been adjudged an insolvent; or

(b) been convicted of an offence which, in the opinion of the State Government involves moral turpitude; or

(c) become physically or mentally incapable of acting as the Chairperson or a Member; or

(d) acquired such financial or other interest as is likely to affect prejudicially his function as the Chairperson or a Member; or

(e) so abused his position as to render his continuance in the office prejudicial to the public interest.

(2) Notwithstanding anything contained in sub-section (1), the Chairperson or Member of the Housing Appellate Tribunal shall not be removed from his office on the ground specified in clause (d) or clause (e) of that sub-section unless, the High Court, on a reference being made to it in this behalf by the State Government, has on an enquiry held by it, recommended that the Chairperson or Member ought to be removed on such ground.

(3) The State Government may suspend from office, the Chairperson or a Member of the Housing Appellate Tribunal, as the case may be, in respect of whom a reference has been made to the High Court under sub-section (2), until the State Government has passed an order on receipt of the report of the High Court on such reference.

  1. Officers of Housing Appellate Tribunal,-

(1) The State Government shall provide the Housing Appellate Tribunal with such officers and employees as it may deem fit.

(2) The officers and employees of the Housing Appellate Tribunal shall discharge their functions under the general superintendence of the Chairperson of the Housing Appellate Tribunal.

 

  1. Appeals to Housing Appellate Tribunal,-

(1) Any person aggrieved by any direction or order or decision of the Competent Authority or the Housing Regulatory Authority may prefer an appeal to the Housing Appellate Tribunal.

(2) Every appeal under sub-section (1) shall be preferred within a period of sixty days from the date on which a copy of the direction, order or decision made by the Competent Authority or by the Housing Regulatory Authority is received by the aggrieved person and it shall be in such form, and accompanied by such fee as may be prescribed:

Provided that, the Housing Appellate Tribunal may entertain any appeal after the expiry of sixty days, if it is satisfied that there was sufficient cause for not filing it within that period.

(3) On receipt of an appeal under sub-section (1), the Housing Appellate Tribunal may, after giving the parties a reasonable opportunity of being heard, pass such orders thereon as it thinks fit.

(4) The Housing Appellate Tribunal shall send a copy of every order made by it to the parties and to the Housing Regulatory Authority.

(5) The appeal preferred under sub-section (1) shall be dealt with by the Housing Appellate Tribunal as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within ninety days from the date of receipt of appeal:

Provided that, where any such appeal could not be disposed of within the said period of ninety days, the Housing Appellate Tribunal shall record its reasons, in writing, for not disposing of the appeal within the said period.

  1. Powers and functions of Housing Appellate Tribunal,-

(1) The Housing Appellate Tribunal shall be bound by the procedure laid down in the Code of Civil Procedure, 1908 (V of 1908).

(2) The Housing Appellate Tribunal shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (V of 1908), while trying a suit in respect of the following matters, namely :—

(a) summoning and enforcing the attendance of the promoter, authorized representative of the promoter or any person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavits ;

(d) requisitioning, subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (I of 1872), any public record or document or copy of such record or document from any office;

(e) issuing commissions for the examination of witnesses or documents;

(f) reviewing its decisions;

(g) dismissing an application for default or deciding it ex-parte; and

(h) any other matter which may be prescribed.

  1. Appeal to High Court,-

Any person aggrieved by any decision or order of the Housing Appellate Tribunal may file an appeal to the High Court within thirty days from the date of receipt of the decision or order of the Housing Appellate Tribunal.

  1. Order passed by Housing Appellate Tribunal to be executable as a decree,-

Every order passed by the Housing Appellate Tribunal under this Act shall be deemed to be a decree of a civil court and shall be executable in the same manner as a decree of a civil court.

  1. Penalty for contravention of section 4,-

Whoever fails to comply with or contravenes the provisions of section 4, shall, upon the order by the Housing Regulatory Authority in that regard, be liable to pay the penalty which may extend to rupees one thousand per day of default.

  1. Penalty for contravention of sections 6, 16 or 17,-

Whoever, without reasonable cause, fails to comply with, or contravenes, the provisions of sections 6, 16 or 17 shall, upon the order by the Housing Regulatory Authority in that regard, be liable to pay the penalty of rupees ten thousand for each day during which such non compliance continues, or rupees fifty lakhs, whichever is lower.

  1. Penalty for non- payment by the allottee or flat or unit purchaser or organization,-

Any allottee, flat or unit purchaser or organization, who fails to comply with, or contravenes, the provisions of the agreement for sale executed by him with the promoter for purchase of flat, including nonpayment of any amounts or charges in respect thereof, shall, upon the order by the Housing Regulatory Authority in that regard, be liable to pay the penalty which may extend to rupees ten thousand or one per cent of the sale price of the property specified in such agreement, whichever is higher.

  1. Penalty for non- compliance of orders or directions of Housing Regulatory Authority or Housing Appellate Tribunal,-

Any person, who willfully fails to comply with the orders or directions of the Housing Regulatory Authority or the Housing Appellate Tribunal, as the case may be, shall, upon the order by the Housing Regulatory Authority, or the Housing Appellate Tribunal, as the case may be, in that regard, be liable to the imprisonment for a term which may extend to three years or penalty which may extend to rupees ten lakhs or with both.

 

  1. Penalty for contravention of other provisions of this Act or rules made thereunder,-

Any person, other than the promoter, who, without reasonable cause, fails to comply with, or contravenes, any other provisions of this Act or of any rules made thereunder, or does not pay the penalty imposed on him by the Housing Regulatory Authority shall, if no other penalty is expressly provided therefor, upon the order by the Housing Regulatory Authority in that regard, be liable to pay the penalty which may extend to rupees fifty thousand.

  1. Penalty for non- compliance by promoters,-

(1) Any promoter who, without reasonable excuse fails to comply with, or contravenes the provisions of section 9, section 12, section 14, section 18 or section 19, shall, upon the order by the Housing Regulatory Authority in that regard, be liable to pay the penalty which may extend to rupees one crore.

(2) Any promoter who, without reasonable excuse, fails to comply with or, contravenes, any other provisions of this Act or of any rule made thereunder shall, if no other penalty is expressly provided for such contravention, upon the order by the Housing Regulatory Authority in that regard, be liable to pay the penalty which may extend to rupees ten lakhs.

  1. Miscellaneous provisions with respect to Competent Authority, Housing Regulatory Authority or Housing Appellate Tribunal,-

(1) The Chairpersons, Members, Officers and other employees of the Competent Authority, the Housing Regulatory Authority or, the Housing Appellate Tribunal, as the case may be, shall be deemed, when acting or purporting to act in pursuance of the provisions of this Act, to be the public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860).

(2) Every proceeding before the Competent Authority, the Housing Regulatory Authority and the Housing Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purpose of section 196 of the Indian Penal Code (45 of 1860) and the Competent Authority, the Housing Regulatory Authority and the Housing Appellate Tribunal shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

(3) No suit, prosecution or any other legal proceedings shall lie against the Competent Authority, the Housing Regulatory Authority and the Housing Appellate Tribunal or any of its officers or employees in respect of anything which is done or purported to be done, under this Act, in good faith.

(4) No civil court shall have jurisdiction in respect of any matter which the Competent Authority, the Housing Regulatory Authority or the Housing Appellate Tribunal is empowered by or under this Act to determine.

  1. Power to make rules,-

(1) The State Government may, subject to the condition of previous publication, by notification in the Official Gazette, make rules for carrying into effect the provisions of this Act.

(2) Every rule made under this section shall be laid as soon as may be, after it is made, before each House of the State Legislature while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the sessions in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, and notify such decision in the Official Gazette, the rule shall, from the date of publication of such notification, have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done or omitted to be done under that rule.

  1. Power to make regulations,-

The Housing Regulatory Authority may, subject to the previous approval of the State Government, by notification in the Official Gazette, make regulations consistent with this Act and the rules made thereunder, for all or any of the matters for which provision is, in the opinion of the Housing Regulatory Authority, necessary for the exercise of its powers and the discharge of its functions under this Act.

  1. Act to be in addition to Transfer of Property Act, 1882 and to override contract to the contrary,-

The provisions of this Act, except where otherwise provided, shall be in addition to the provisions of the Transfer of Property Act, 1882 (IV of 1882), and shall take effect notwithstanding anything to the contrary contained in any contract.

  1. Act not to apply to certain Authority and Boards,-

Nothing in this Act shall apply to the Maharashtra Housing and Area Development Authority and the Boards established under the Maharashtra Housing and Area Development Act, 1976 (Mah. XXVII of 1977).

  1. Removal of difficulty,-

(1) If any difficulty arises in giving effect to the provisions of this Act, the State Government may, as occasion arises, by order published in the Official Gazette, do anything not inconsistent with the provisions of this Act, which appears to it to be necessary or expedient for the purpose of removing the difficulty:

Provided that, no such order shall be made after the expiry of a period of two years from the date of commencement of this Act.

(2) Every order made under sub-section (1) shall be laid, as soon as may be, after it is made, before each House of the State Legislature.

  1. Repeal and savings,-

(1) On and from the appointed day, the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (Mah. XLV of 1963), shall stand repealed:

Provided that, the repeal shall not affect,—

(a) the previous operation of the law so repealed or anything duly done or suffered thereunder, or

(b) any right, privilege, obligation or liability acquired, accrued or incurred under the law so repealed, or

(c) any penalty, forfeiture or punishment incurred in respect of any offence committed against the law so repealed, or

(d) any investigation, proceedings, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, proceedings, legal proceedings or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act has not been passed:

Provided further that, subject to the preceding proviso and any saving provisions made elsewhere in this Act, anything done or any action taken under the provisions of the law so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act; and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under this Act.

(2) Any reference in any law or in any instrument or other document to the provisions of the law so repealed shall, unless a different intention appears, be construed as a reference to the corresponding provisions of this Act.

SCHEDULE I

[See section 11(2)]

 

  1. Measures for protection and safety of property building to be taken by the promoter.—
  2. The promoter, the architect and the engineer engaged by the promoter, shall comply with the measures for safe construction and protection of properties against natural calamities as per the building bye-laws and local code, provisions of the National Building Code and other standards and such other measures as the State Government may, by notification in the Official Gazette, specify in this behalf.
  3. For the purposes of compliance with the measures referred to in paragraph 1, the promoter shall enter into separate agreements and engage the services of an architect and an engineer and inform the Housing Regulatory Authority about such engagement of an architect or an engineer, as the case may be.
  4. The promoter, the architect and the engineer engaged by the promoter shall jointly file a certificate, duly signed by each of them with the local authority at such intervals as the local authority may specify, certifying that the building or flats are being constructed in accordance with the plans approved by the concerned authority and that all the measures referred to in this Schedule are being complied with in respect of the buildings or flats under construction to ensure their safe construction and protection against the natural calamities.
  5. If for any reason, there is a change of architect or engineer during the construction of the building or flats, the promoter shall,—

(a) engage immediately, another architect or engineer, as the case may be, and the incoming architect or engineer shall satisfy himself about the compliance of the measures as mentioned in the previous certificates submitted to the local authority or other authorities, before taking up the responsibility of certificates in future regarding compliance of the said measures;

(b) inform the Housing Regulatory Authority about the engagement of another architect or engineer, as the case may be.

  1. Measures for insurance against loss or death,—
  2. The promoter shall obtain an insurance policy for the building or flats, during the period of their construction, against loss or damage by natural calamities, for the cost or replacement of such building and loss of life and bodily injuries suffered by persons, workers and labourers constructing such building or flats, who may be inside or within the vicinity of such building or flats.
  3. The promoter shall insure with any general insurance company licensed to operate in India and obtain an insurance policy or policies covering the liability of any loss of life and bodily injuries suffered by persons, workers and labourers as above, and shall keep the Housing Regulatory Authority informed of payment of premium, from time to time, against such insurance policy or policies.

 

SCHEDULE II

(See section 12)

  1. Promoter’s responsibility regarding the account of sums taken from or on behalf of unit purchasers or flat purchasers.—
  2.             The promoter shall maintain building wise separate account in any Bank, of the sums taken by him, from or on behalf of, persons intending to take or who have taken flat in the phase developed by the promoter, as advance towards maintenance and outgoings including any sum so taken towards the share capital for the formation of a co-operative society or a company or association and including ground rent, if any, municipal or other local taxes, charges for water or electricity, security, maintenance of gardens, club house, swimming pool, insurance, equipments, revenue assessment, if any, stamp duty and registration fee for the agreement of sale and conveyance deed.

As regard to the outgoings payable by the apartment or flat or unit purchasers or organization, to the promoter for the maintenance of lay out land or project wise such as club house, swimming pool, internal access roads, gardens, electricity, water, equipments, insurance, municipal and other local taxes, and the like, the same shall be collectively maintained in a separate account.

  1. The promoter shall hold the sums collected as per paragraph 1 for the purposes for which they were given and shall disburse the same for said purposes including the development of real estate project and shall on demand, in writing, by the Housing Regulatory Authority or the flat or unit purchaser, individually or collectively, make full and true disclosure of all transactions in respect of that account on payment of charges and shall not utilize these sums for any purpose other than the purpose for which they were so collected.
  1. Responsibility of promoter for outgoings till transfer of management to the collective body of the allottees, flat or unit purchasers.—
  2. The promoter, who has collected from the allottee or flat or unit purchasers, sums for the payment of outgoings, shall pay all charges, including ground rent, municipal or other local taxes, charges for water or electricity, interest on mortgages or other encumbrances, if any, security, maintenance of gardens, club house, swimming pool, insurance, equipments, till the amounts collected for the same are fully depleted or exhausted for the said purpose. If the handing over management or transfer of the physical possession of the building or property, as the case may be, to the organization of the flat or unit purchasers, whichever is later, takes place before the amounts are fully depleted or exhausted, then the balance amount, if any, with the promoter shall be refunded to the organization being collective body of the flat or unit purchasers or the Apex Body or Federation, as the case may be.
  3.             After the transfer of management of the building by the promoter to the organization, being collective body of the flat or unit purchasers, such payments and outgoings shall be made by the flat or unit purchasers or such collective body of flat or unit purchasers, as the case may be. The transfer of management of the building or the lay out land, as the case may be, shall be only after the promoter has received all outstanding dues from the flat or unit purchasers’ organization and after the transfer of management of the building or the lay out land, as the case may be, by the promoter to the organization being collective body of flat or unit purchasers or Apex Body or Federation, it shall be the responsibility of such organization to maintain the said building or the lay out land, as the case may be, and to pay the outgoings thereof.
  4. The promoter shall discharge liability in respect of the above till the sums and deposits collected by him shall remain balance in a separate account held by the promoter in the bank. On the amount being depleted, the promoter shall be entitled to raise the bill and collect the amounts for the outgoings from the flat or unit purchasers for the building or lay out land, as the case may be.

III. Refund of amount.—

  1. If the promoter fails or is unable to give possession of a flat or an apartment,—

(a) in accordance with the terms of the agreement or, as the case may be, duly completed by the date specified therein or any further date agreed to by the parties; or

(b) on account of cancellation of his registration under this Act,-

he shall be liable on demand, without prejudice to other remedies to which he may be liable, to refund the amounts already received by him in respect of that flat, with interest at a rate of fifteen per cent. per annum as provided in this Act, including penalty at such rate as may be determined by the Housing Regulatory Authority.

  1. The interest referred to in paragraph 1 above, shall be chargeable from the date the promoter received the amount or any part thereof till the date the amount or part thereof and interest thereon is refunded and such amount and interest shall be a charge on the allottee, flat or unit purchasers’ respective flat or building, as the case may be.
  1. Inspection of accounts or records of sums taken for and on behalf of flat purchasers or unit holders.—

The Housing Regulatory Authority may, after giving three days’ advance notice to the promoter, inspect or cause to be inspected, at any time during business hours, any accounts or records of a promoter relating to outgoings in respect of the allottee’s complaint.

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0 6242
Acts and Regulations

The Maharashtra Housing and Area Development (Disposal of Land) Rules, 1981

HOUSING AND SPECIAL ASSISTANCE DEPARTMENT

Mantralaya, Bombay 400 032,

Dated the 24th December 1981.

MAHARASHTRA HOUSING AND AREA DEVELOPMENT ACT, 1976

No. ARD. 1080/365-X.— In exercise of the powers conferred by clause (viii) of sub-section (2) of section 184 read with clause (iii) to sub-section (3) of section 28 and section 64 of the Maharashtra Housing and Area Development Act, 1976 (Mah. XXVIII of 1977), and of all other powers enabling it in that behalf, the Government of Maharashtra hereby makes the following rules, the same having been previously published as required by sub-section (3) of the said section 184, namely :-

 

PART I

 

  1. Short title and commencement,-

(i) These rules may be called the Maharashtra Housing and Area Development (Disposal of Land) Rules, 1981.

(ii) They shall come into force at once.

 

  1. Definition,-

In these rules, unless the context otherwise requires,-

(a) “Act” means the Maharashtra Housing and Area Development Act, 1976 (Mah. XXVIII of 1977);

(aa) ‘Commercial Center’ means any specific area referred to as such in which Authority has constructed or proposes to construct a building or a group of buildings consisting of tenements intended to be used for a commercial purpose or any other non-residential purpose, as may be approved by the Authority;

(ab) ‘Commercial tenement’ means a tenement in a building constructed by the Authority in a commercial center;

(b) “Denotified tribe” means such tribes or tribal communities in the State as specified by the Government,

(c) “Ex-Serviceman” means a former member of the armed forces of the Union (not being a person who has ceased to be a member of the armed forces as a result of his being duly dismissed after a court martial or on account of bad character or as a result of desertion or who has been arrested);

(d) “Freedom Fighter” means a person who receives pension duly granted by the Government of Maharashtra or the Government of India or who has been awarded a Tamrapatra or Sanmanpatra on account of his participation in the National Movement for emancipation of India or the next-of-kin or dependent of such person, namely, the widow or widower, father, or mother, son, daughter, grand-son, granddaughter, son’s wife, grand-son’s wife, widow of predeceased son or grandson;

(e) “Government” means the Government of Maharashtra;

(f) “Household income” means the income from all sources earned by a person and his or her spouse;

(g) ‘Journalist’ means a person whose principal avocation is that of a journalist and who is employed as such in, or in relation to, any newspaper establishment, and includes an editor, a leader writer, news editor, feature writer, copy tester, reporter, correspondent, cartoonist, news photographer, proof reader and a person who contributes regularly and meaningfully on matters of public interest to renowned weeklies, magazines and periodicals as a freelancer, but does not include any such person who-

(i) is employed mainly in a managerial or administrative capacity; or

(ii) being employed in a supervisory capacity, performs either by the nature of the duties attached to his office or by reason of the powers vested in him, functions mainly of a managerial nature;

(h) “land appurtenant” means the land which is required to be kept open around a building, in accordance with the Development Control Rules of the concerned Planning Authority;

(i) “Neo-Buddhist” means a person belonging to a Scheduled Caste, a Scheduled Tribe, a Nomadic Tribe or Denotified Tribe, who has been converted to Buddhist faith.

(j) “Nomadic Tribe” means a tribe or tribal community in Maharashtra recognized as such by Government.

(k) “Planning Authority” means, in relation to Municipal areas, the Municipal Corporation or the Municipal Council, as the case may be;

(kk) “Plot” means a demarcated place of vacant land in an approved layout of an area development scheme in an urban area prepared by the Board and approved by the Planning Authority and includes a developed plot with or without plinth area having all or any of the infrastructural facilities such as common roads, electricity, water supply, drainage, provided by the board;

(l) ‘Schedule Castes’ means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed to be Scheduled Castes in relation to the State of Maharashtra under article 341 of the Constitution of India;

(m) ‘Schedule Tribes’ means such tribes or tribal communities or parts of, or groups within, such tribes or tribal communities as are deemed to be Scheduled Tribes in relation to the State Maharashtra under article 342 of Constitution of India residing in any part of the State of Maharashtra;

(n) “Vacant land” includes land which has been built upon unauthorisedly but excludes land appurtenant;

(o) Words, expressions used in these rules but not defined therein shall have the same meaning respectively assigned to them in the Act.

 

PART II

DISPOSAL OF VACANT LANDS

 

  1. Publication of list of vacant lands available for disposal,–

At the commencement of every financial year the Authority shall publish, on notice boards of all its offices, a complete list of every vacant land together with its location map available for disposal during the course of the financial year.

 

  1. Disposal in accordance with area development schemes and layouts,-

(1) Where the Authority has acquired vacant lands for the purpose of development of existing urban areas to ensure an orderly urban development, the Boards shall prepare a detailed area development scheme and after obtaining the approval to the layout from the appropriate planning Authority shall obtain administrative approval to the scheme from the Authority.

(2) The Authority shall, while according approval to a scheme, give directive to the Board about the manner of disposal of the vacant lands or plots therein, and may reserve to itself, for reasons to be recorded, the right to dispose of any vacant land or plot in the scheme.

(3) The disposal of vacant lands under these rules shall be in accordance with area development scheme and the layout so approved.

 

  1. Disposal of land by lease,-

(1) Subject to the provisions of rule 5A and except for the purpose of raising loans, the vacant lands shall ordinarily be disposed of by a grant of lease.

(2) Subject the directions given by the Authority from time to time, the Chief Officer, may dispose of any vacant land or plot reserved for residential use in the approved schemes, by a lease to be granted in consideration of premium or rent or both for a term not exceeding 90 years and in the manner prescribed in the regulations to be made by the Authority for the purpose.

(3) The premium and lease rent to be charged shall be worked out in a manner to be laid down by the Authority in its regulations or by charging lease rent on the market value at a rate to be decided by the Authority.

 

5A. Transfer of land not required for purpose of authority, to original owner,–

Notwithstanding anything contained in rule 5 or any other rule of these rules, the authority may, with the previous sanction of the State Government, and on such terms and conditions as it may deem fit, transfer by conveyance land or any part thereof acquired by the State Government under section 41 of the Act and made available to it under Sub-section (3) of section 42 thereof, to the original owner of the land, if such land or any part thereof is not required by the authority for the purpose of the execution of any of its schemes.

 

  1. Concessions to Schools etc.,-

The Authority may dispose of vacant land at a concessional rate of premium and lease rent or of lease rent, as the case may be, for any of the following purposes, namely:-

(a) Educational Institutions,

(b)Hospitals or dispensaries,

(c) Gymnasiums,

(d) Play-grounds,

(e) Institutions for the blind, dumb, deaf or for persons physically or mentally

handicapped in any other manner as decided by the Authority,

(f) any other public purpose subject to the approval of the Government:

Provided that, the Authority shall satisfy itself, for the reasons to be recorded in writing, the lease shall provide the amenity in a manner which subserves the common good and will not exploit it for profit:

Provided further that, the institutions are open to all persons without restrictions on grounds of religion, caste, creed or place of residence.

 

  1. Concessions for residential use,-

(1) The Authority may also dispose of vacant land for residential purposes to individuals or to co-operative housing societies at concessional rates of premium and lease rent or of lease rent regard being had to the total household income, percentage of expenditure on food and clothing in the total consumption expenditure of the household and the likely surplus which the individual or the member of the co-operative housing society would be able to set apart for housing.

(2) The Authority shall, by regulations, formulate groups in which every person can be classified on the basis of the factors enumerated in sub-rule (1) and prescribe rates of concessions admissible to each of such groups.

 

  1. Disposal of Land for industrial and Commercial purposes.–

The disposal of vacant land for industrial or commercial purpose shall be strictly in accordance with the approved layout and subject to the provisions of any other law for the time being in force governing the setting up of new industrial or commercial establishment:

Provided that, the restrictions of the approved layout shall not apply to the lease of vacant land for a short period not exceeding three months, for the purposes of a fair, exhibition, circus, drama and festival.

 

  1. Disposal of land for religious purposes, –

No vacant land shall be leased by the Authority for a religious purpose except with the previous sanction of the State Government.

 

  1. Power of the Authority to permit laying of water mains in or over its lands,-

(1) The Authority may permit the laying of water mains, pipes and underground cables and construction of cess-pools, through, on, over or underneath any land vested in the Authority on payment of an annual sum (rent) not exceeding five per cent of the market value of the land occupied for the purpose.

(2) The Authority may permit the erection of poles, towers, stay-rods or stay-rails for overhead cables on its lands on payment of annual rent at the rate of twenty-five paise per pole and fifty paise per tower, stay-rod or stay-rail.

 

PART III

DISPOSAL OF TENEMENTS

 

  1. Manner of disposal of tenements in buildings constructed by the Authority,-

(1) The Authority may dispose of–

(a) residential tenements in the building constructed by it on any of the following basis namely:-

(i) out-right sale,

(ii) hire-purchase,

(iii) rental; and

(b) Commercial tenements in the building constructed by it by outright sale.

(2) The Authority shall lay down the manner in which the sale price, the hire purchase installment or the rent is to be determined.

  1. All disposal to be by public notice,-

(1) As soon as any residential tenements in a scheme are ready for disposal, either on account of new construction, completed or proposed, or on account of vacancies caused in the existing tenements, the Authority shall invite applications by a notice to be published in a manner laid down by the Authority:

Provided that such a notice may not be published if there is in force a waiting list of applicants for that scheme in respect of the same group of tenements prepared in pursuance of the provisions in the regulations made in that behalf.

(2) As soon as any commercial tenements are ready for disposal, either on account of new construction, or development of a commercial centre, completed or proposed, or on account or vacancies caused in the existing tenements, the Authority shall invite tenders by a notice to be published in a manner laid down by the Authority.

 

PART – IV

MISCELLANEOUS

 

  1. Reservation of tenements,-

(1) In respect of every group of tenements, or plots of Vacant Land in a layout to be disposed of for residential use, the Authority shall reserve, for the following categories of persons, tenements/plots in the percentages shows against them:-

 

Category

(1) Scheduled Castes including Neo-Buddhist 11%
(1-a) Scheduled Tribes 6%
(1-b) Nomadic Tribes 1.1/2%
(1-c) Denotified Tribes 1.1/2%
(2) Journalists 2.5%
(3) Freedom Fighters 2.5%
(4) Blind or physically handicapped persons or person in absolute need of accommodation on health ground. 2%
(5) Families or Defence personnel and personnel of Border Security force, who have been killed, disabled or declared missing in 1962 Sino-Indian Conflict, or in 1965 or 1971 indo-Pak Conflict, in any combat thereafter. 2%
(6) Ex-Servicemen and their Dependents 5%
(7) All sitting and ex-members of Parliament Assembly or Council, representing constituencies in Maharashtra 2%
(8) Employees of the Authority 2%
(9) State Government Servants and employees of the Statutory Boards, Corporations, etc.(except the Maharashtra Housing and Area Development Authority) under the State Govt. including those who have already retired. 5%
(10) Central Government Servants occupying Staff quarters and due for retirement within three years or those who have already retired. 2%
(11) Artists in Film, Television, Drama, Tamasha, or Radio and also all other persons engaged in performing arts, including painters, sculptors, craftsmen, musicians (both vocal and instrumental),dancers, poets, kawals or mimics 2%

Provided that,-

(a) If sufficient number of applications are not received from the persons belonging to any of the categories (1), (1-a), (1-b), and (1-c), the applications from persons belonging to any of the other said four categories shall be considered for the reservation;

(b) If sufficient number of applications are not received from the persons belonging to category (5), the applications from persons belonging to category (6) shall be considered for the said reservations;

(c) If sufficient number of applications are not received from the persons belonging to any of the reserved categories, other than those mentioned in clause (a) above, tenements or plots reserved for such categories remaining un-allotted may be released for allotment to persons belonging to the general category. The tenements or plots reserved for categories (1), (1-a), (1-b) and (1-c) shall not however, be released for allotment to persons belonging to the general category subject to the provision of clause (a) above to persons belonging to any other reserved category, without the approval of Government.

Provided further that, the reservation made for persons belonging to category (7) shall be subject to the following conditions, namely:-

(a) A person shall be entitled to get one tenement or plot at any place in the State.

(b) He shall not be in possession of a tenement or plot on ownership basis, hire purchase basis or rental basis at a place where he desires to have a tenement constructed by the Authority, or a plot.

(c) If he already possess from Government or Authority a tenement or a plot either on rental or on leave and licence basis, he shall have to surrender the said tenement(s) to the Government or the Authority, as the case may be.

(d) He shall not be eligible to get accommodation in the M.L.As. Hostel either at Bombay or at Nagpur if he secures a tenement from the Authority at that place or has already constructed a house on a plot secured at that place from the Authority:

Provided further that, the eligibility of a person for inclusion in category (ii) shall be decided by the Cultural Affairs Department of the Government and the eligibility of persons for inclusion in any other category shall be decided in the manner laid down by the Authority.

(2) Notwithstanding anything contained in sub-rule (i) the Authority shall not be required to reserve any tenements or plots for the categories of persons mentioned at serial numbers (2) to (11) in respect of tenements or plots to be disposed of in pursuance of any Urban Development Project assisted by the World Bank.

(3) In respect of every group of tenements or plots of vacant land in a layout to be disposed off for the commercial use, the Authority shall reserve 20 per cent tenements or plots for the persons specified in categories (1),(1a),(1-b) and (1-c) of sub-rule (1) in the percentage shown against them and the same shall be disposed off by inviting tenders from the categories of the said person:

Provided that, if sufficient number of applications are not received from the persons belonging to any of the categories, the same may, subject to approval of Government, be released for allotment for the person belonging to the general category.

 

  1. Drawal of lots and preparation of waiting list for residential tenements/plots,-

In case more applications are received than the residential tenements/plots available for disposal for any of the reservation or for the unreserved category, the allotment of such tenements/plots shall be decided by drawal of lots and a waiting list shall be prepared in the manner laid down by the Authority.

  1. Disposal of amenity tenements,-

(1) Tenements in building constructed by the Authority exclusively for providing amenities, such as school, post office, Police station, hospital, shop and such like purpose for the benefit primarily of residents of a housing colony and the tenements reserved for providing such amenities in commercial centers shall be disposed of by the Authority by out-right sale.

(2) Tenements reserved for providing amenities of the type referred to in sub-rule (1) of this rule in buildings constructed by the Authority for residential purposes shall be disposed of by it either by lease or by out-right sale.

(3) Where the amenity tenements are proposed to be disposed of by the Authority on out-right sale as provided in sub-rule (1) or sub-rule (2) of this rule, the purchases price therefore shall be;-

(a) in the case of tenements providing public or essential services such as school, post office, police station, hospital and such other like noncommercial purpose, as may, having regard to its general pricing policy, be determined by the Authority; and

(b) in the case of tenements providing amenities of a commercial nature, as may be determined by the Authority on the basis of tenders invited for the purpose.

(4) Where the purchaser of an amenity tenement is Government, a local authority, or a public sector undertaking the Authority may, if it considers so necessary, allow the purchase price to be paid in more than one installment, subject to such terms and conditions as may be deemed fit by it in that behalf.

(5)(a) When amenity tenements are proposed to be disposed of by the Authority by lease, the premium to be charged therefore shall—

(i) in the case of tenements providing public or essential services of the type referred to in clause (a) of sub-rule (3) of this rule, be worked out in the manner provided in sub-rule (3) of rule 5 of these rules; and

(ii) in the case of tenements providing amenities of a commercial nature, be determined on the basis of tenders invited for the purpose;

(b) The lease rent to be charged in such case shall be at a rate to be decided by the Authority.

(6) The procedure prescribed for the disposal of commercial tenements shall apply, mutatis mutandis, when the amenity tenements are proposed to be disposed of or the premium in respect of which is proposed to be determined on the basis of invitation of tenders.

  1. Disposal of land under building,-

The land underneath a building including a building comprising single storied tenements, constructed by the Board and disposed of on an out-right sale basis or hire-purchase basis together with the land appurtenant thereto, shall, subject to any directions issued by the Authority from time to time, be conveyed by lease to the person purchasing the building or the single storied tenement, as the case may be, or to a co-operative society, company or an association of apartment owners formed by the occupants of the building.

16-A. Disposal of amenity and Commercial tenements on hire purchase basis in certain circumstances,-

Notwithstanding anything contained in any of the foregoing rules or in any of the regulations made thereunder, if after notifying and re-notifying the tenements for disposal in accordance with the provisions of the foregoing rules or regulations made there under the Chief Officer finds that all or any of the amenity tenements or commercial tenements in a building cannot be disposed of on outright sale basis, such of the tenements as cannot be so disposed of may, with the approval of the

Authority be disposed of on hire purchase basis. The amount of deposit or earnest money or both, the period of hire-purchase, and the amount of hire purchase, and the amount of hire purchase installment shall be such as might be determined by the Authority from time to time. The tenders shall be invited and considered for the disposal of such tenements on hire purchase basis in the same manner they are invited and considered for the disposal of tenements on out-right sale basis.

 

16-B. Special provisions for disposal of tenements in certain circumstances,-

If, after following the procedure prescribed in the foregoing rules or the Regulations made there under, it is found that there is no adequate response and demand for tenements in any particular scheme, such of the tenements as cannot be so disposed of may be disposed of in any other manner deemed fit by the Authority.

  1. Regulations to be made by Authority,-

The Authority may with the previous sanction of the State Government, make such supplemental regulations, not inconsistent with the provisions of the Act or these rules, as are considered necessary by it for the proper implementation of these rules, and especially for—

(1) Matters in respect of which the foregoing provisions of these rules require the Authority to make regulations;

(2) Housing Schemes;

(3) All matters pertaining to allotment of tenements, formation of Co-operative Societies, Companies or Association of apartment owners formed by the occupants of the Authority’s tenements;

(4) Transfer of tenancies.

By order and in the name of Governor of Maharashtra

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0 4675
Acts and Regulations

MUNICIPAL CORPORATION OF GREATER MUMBAI

RULES FOR FIXING CAPITAL VALUE OF LANDS AND BUILDINGS

 

No.AC/NTC/1310/2011-12 dated 20.03.2012. In exercise of the powers conferred by clause (e) of sub-section (1A) and sub-section (1B) of section 154 of the Mumbai Municipal Corporation Act (Act No. Bom.III of 1888), and of all other powers enabling him in this behalf, the Commissioner, after having obtained the approval of the Standing Committee, as required under the said sub-section (1B), hereby makes the following rules to provide for the factors and categories of users of buildings or lands and the weightage by multiplication to be assigned to various such factors and categories for the purpose of fixing the capital value of buildings and lands in Brihan Mumbai, namely:-

  1. Short title and commencement,-

(1)These rules may be called the Factors and Categories of Users of Buildings or Lands (Assignment of Weightages by Multiplication) Fixation of Capital Value Rules, 2010.

(2) They shall come into force forthwith.

  1. Definitions,-

In these rules, unless the context otherwise requires:-

(a) “Act” means the Mumbai Municipal Corporation Act (Bom.III of 1888);

(b) “flat” means a separate part or portion of a building used or intended to be used for residence, or office, or show-room, or shop, or godown, or for carrying on any industry, or business, or profession, or vocation;

(c) “hoarding” includes boards used to display advertisements, erected on poles, on the ground or on a building;

(d) “land appurtenant to a building” means open spaces on all sides of a building required to be kept open in accordance with the relevant provisions of the Development Control Regulations for Greater Bombay, 1991 or any such Regulations, for the time being in force;

(e) “luxurious RCC building” includes a RCC building having a swimming pool, whether in use or not, and also any one or more of the following amenities or facilities, namely: –

(i) gymnasium,

(ii) club house,

(iii) jogging track,

(iv) health club,

(v) private terrace as a part of each flat in a building;

(f) “multiplex” means a cinema house having more than one screen within a building;

(g) “open land” includes land not built upon or land being built upon, but does not include land appurtenant to a building;

(h) “Ready Reckoner” means the Stamp Duty Ready Reckoner, for the time being in force, referred to in sub-section (1A) of section 154 of the Act;

(i) “relative rate of base value” means the rate of open land, or rate of land plus residential building, office, shop, commercial or industrial building, as the case may be, as indicated in the Ready Reckoner;

(j) “schedule” means a schedule to these rules;

(k) “section” means a section of the Act;

(l) “star hotel” means hotel classified as a star hotel with a specific number of stars assigned thereto by the Ministry of Tourism, Government of India;

(m) “storage tank” includes a tank, whether underground or on any floor of a building, used for the storage of commodities, except the one used for storage of water;

(n) “tower” includes television tower, cable tower, telecom tower or any other such tower, transmission tower, cellular antenna, broadcasting antenna or the like, erected on the surface, or on top, or on any other open space, of a building;

(o) words and expressions used in these rules and not defined,-

(i) but defined in the Act, shall have the meanings respectively assigned to them in the Act, or

(ii) where defined in the Maharashtra Regional and Town Planning Act, 1966 or in the Development Control Regulations for Greater Mumbai, 1991, or any such Regulations, for the time being in force, shall have the meanings respectively assigned to them in the said Town Planning Act or in the Development Control Regulations, as the context may require.

  1. Capital value of open land,-

Save as otherwise provided in these rules, where, within the precincts of a building there is vacant land other than the land appurtenant to the building, such land shall be treated as open land and the capital value thereof shall be fixed accordingly, as provided for in rule 21.

  1. User categories of open land and weightages by multiplication to be assigned thereto,-

User categories of open land shall be as specified in column (2) of Part I of schedule ‘A’ and the weightages by multiplication to the base value, to be respectively assigned thereto for the purpose of fixing capital value, shall be as shown in column (3) of the said Part I of schedule ‘A’.

  1. User categories of buildings or part thereof and weightages by multiplication to be assigned thereto,-

User categories of buildings or part thereof shall be as specified in column (2) of each

of Parts II, III and IV of schedule ‘A’ and the weightages by multiplication to the relative base value, to be respectively assigned thereto for the purpose of fixing capital value, shall be as shown in column (3) of each of the said Parts II, III and IV of schedule ‘A’.

  1. The nature and type of building and the weightage by multiplication to be assigned thereto,-

The nature and type of a building shall be as specified in column (2) of schedule ‘B’ and the weightages by multiplication to be assigned thereto for the purpose of fixing capital value, shall be as shown in column (3) of the said schedule ‘B’.

 

  1. The weightage by multiplication to be assigned to a building on account of the age thereof,-

The weightage by multiplication to be assigned to a building on account of age factor, for the purpose of fixing capital value, shall be according to the age of the building as shown in column (2) of schedule ‘C’ and the weightage by multiplication to be assigned thereto shall be as shown in column (3) of the said schedule ‘C’.

  1. The weightage by multiplication on account of floor factor to be assigned to RCC building with lift.-

Weightage by multiplication on account of floor factor to be assigned to a RCC building with lift, for the purpose of fixing capital value, shall be according to the number of floors as shown in column (2) of schedule ‘D’ and the weightage by multiplication to be assigned thereto shall be as shown in column (3) of the said schedule ‘D’.

  1. Area of hoarding or tower for the purpose of fixing capital value,-

Area of hoarding or tower for the purpose of fixing capital value thereof shall mean—

            (a) in the case of a hoarding, the area of the square of the extremities of the poles on which the hoarding is erected plus the area of the hoarding; and

(b) in the case of a tower, the area covered by the extremities of the foundation of the tower.

  1. Built-up area of a flat or a building,-

(1) The total built-up area of a flat shall be reckoned by including the area of the following items, namely—

(i) terrace in exclusive possession,

(ii) mezzanine floor,

(iii) loft (excluding loft in residential flat) or attic,

(iv) dry balcony and

(v) niches; and

(2) The total built-up area of a building shall be reckoned by including the areas of the following items, namely—

(i) total area of the flats in the building computed in accordance with sub-rule

(1),

(ii) basement,

(iii) stilt,

(iv) porch,

(v) podium,

(vi) service floor,

(vii) refuge area,

(viii) entrance lobby,

(ix) lounge,

(x) air conditioning plant room,

(xi) air handling room,

(xii) the structure for an effluent treatment plant and

(xiii) watchman cabin

(3) The built-up area of any of the following items shall not be reckoned while computing the built-up area of a building or part thereof, namely—

(i) lift room above topmost storey,

(ii) lift well,

(iii) stair-case and passage thereto including staircase room,

(iv) chimney and elevated tank,

(v) meter room,

(vi) pump room,

(vii) underground and overhead water tank,

(viii) septic tank,

(ix) flower-bed and

(x) loft in residential flat.

(4) Where only the carpet area of a flat or building is available on the record of the Corporation and the total built-up area thereof, computed in the manner as aforesaid in sub-rule (1), or, as the case may be, sub-rule (2), is not available on such record, then the total built-up area of the flat or, as the case may be, of a building shall be arrived at in the following manner, namely:-

Built-up area = 1.2 x carpet area as available on the record of the Corporation + the

built-up area of the items specified in sub-rule (1), or, as the case may

be, sub-rule (2), unless already reckoned in such carpet area.

  1. Fixation of capital value of a flat or building or part thereof.-

(1) While fixing the capital value of a flat, the capital value of any one or more of the relevant items specified in sub-rule (1) of rule 10, as fixed in accordance with the provisions of rules 14,15, or sub-rule(1) of rule 16, as the case may be, shall be added to the capital value of the flat.

(2) While fixing the capital value of a building or part thereof, the capital value of any of the one or more of the relevant items specified in sub-rule (2) of rule 10 as fixed in accordance with the provisions of sub-rule (2) or, as the case may be, (3) of rule 16, shall be added to the capital value of the building or part thereof.

  1. Fixation of capital value of a building where there are tenants,-

The capital value of a building or part thereof which is occupied by a tenant shall be fixed at 75% of the capital value of such building or part thereof; fixed in accordance with the provisions of sub-rule (1), or, as the case may be, sub-rule (2) of rule 11.

            Explanation.— For the removal of doubts, it is hereby declared that the provisions of this rule shall not apply to a building or part thereof if,-

(1) it is occupied by a licensee to whom it is given on leave and licence;

(2) it is occupied by an office bearer or officer or an employee of the landlord.

  1. Fixation of capital value of religious buildings,-

The capital value of a religious building which is a temple, math, gurudwara, mosque, takth, church, durgah, synagogue, or agiary or the like, and is used or intended to be used for the purpose of religious worship or offering prayers or performance of any religious rites or rituals by a person of, or belonging to the relevant religion, creed, or sect, shall be fixed at the rate of base value applicable to a residential building as indicated in the Ready Reckoner; and by applying the relevant weightages by multiplication provided for in these rules.

  1. Fixation of capital value of open terrace,-

If an open terrace in exclusive possession is attached to a flat, the capital value of such terrace of a non-residential flat shall be fixed at 40% of the relative rate of base value of such flat, and of residential flat at 10% of the relative rate of base value of such flat; and by applying the relevant weightages by multiplication provided for in these rules.

  1. Fixation of capital value of mezzanine floor, loft and attic floor,-

(a) the capital value of mezzanine floor shall be fixed at 70% of the relative rate of base value of the flat beneath the mezzanine floor; and by applying the relevant weightages by multiplication provided for in these rules;

(b) the capital value of loft or attic floor shall be fixed at 50% of the relative rate of base value of the flat beneath the loft, or as the case may be, the attic; and by applying the relevant weightages by multiplication provided for in these rules:

Provided that, where the rate of base value applicable to the mezzanine floor, loft or attic floor having regard to its user is higher or, as the case may be, lower than the rate of base value applicable to the flat beneath such mezzanine floor, loft or attic

floor, the capital value of such mezzanine floor, loft or attic floor shall be fixed at 70% or 50%, as the case may be, of such higher or lower rate of base value; and by applying the relevant weightages by multiplication provided for in these rules.

  1. Fixation of capital value of certain other items which are part of a flat or a building or part thereto,-

(1) The capital value of dry balcony and niches shall be fixed at 25% of the relative rate of base value of the flat, if any one of these items are part of the flat; and by applying the relevant weightages by multiplication provided for in these rules.

(2) The capital value of any one or more of the following items, namely:-

(i) porch,

(ii) air-conditioning plant room,

(iii) air-handling room,

(iv) structure for an effluent plant,

(v) watchman cabin and

(vi) refuge area,

shall be fixed at 25% of the relative rate of base value of the building or part thereof, if any one or more of these items are part of the building or part thereof; and by applying the relevant weightages by multiplication provided for in these rules.

(3) The capital value of any one or more of the following items, namely:-

(i) service floor,

(ii) entrance lobby and

(iii) lounge,

shall be fixed at the relative rate of base value of the building or part thereof, if any of these items are part of the building or part thereof; and by applying the relevant weightages by multiplication provided for in these rules.

  1. Fixation of capital value in respect of demolished building,-

(1) Where a building is fully demolished, or has fully collapsed, the land beneath it shall be deemed to be open land and the capital value thereof shall be fixed accordingly, as provided for in rule 21.

            Explanation.— For the purpose of this rule, it is hereby declared that where a building is, or is being, demolished, or has collapsed, resulting in the land on which it stood or stands being rendered open land, or only walls or the like are standing but there is no structure as such which can be occupied, and on such demolition, or collapse, debris or any remains of the demolished or collapsed building are not yet removed, the land beneath such building shall be deemed to be open land.

(2) Where only part of a building is demolished or has partly collapsed and the remaining part is yet occupied by occupiers, land beneath the portion of the building which is demolished or has collapsed shall be deemed to be open land and the portion of the structure which is occupied shall be treated as a building, for the purpose of fixing the capital value thereof.

(3) Notwithstanding anything contained in sub rules (1) and (2), where a cessed building is, or is being, demolished, or has collapsed, the land beneath the building or portion of the building which is demolished or collapsed shall be deemed to be open land and the capital value thereof shall be fixed as open land and assigning thereto a weightage by multiplication of 0.30 of the base value of open land.

  1. The capital value of storage tank,-

The capital value of storage tank shall be fixed in the following manner, namely—

(1) storage tank above the ground level :-

(a) land- at the rate of open land in the Ready Reckoner and weightage by multiplication to be assigned thereto shall be 1.25,

(b) storage tank – capacity of storage tank in litres multiplied by the rate of Rs.40 per litre, with weightage by multiplication to be assigned thereto on account of age factor as in schedule ‘C’,

(c) total capital value of a storage tank = total of items (a) and (b).

(2) storage tank below the ground level:-

(a) land – at the rate of open land in the Ready Reckoner and weightage by multiplication to be assigned thereto shall be 1.25,

(b) storage tank – capacity of storage tank in litres multiplied by the rate of Rs.50 per litre, with weightage by multiplication to be assigned thereto on account of age factor as in schedule ‘C’,

(c) total capital value of a storage tank = total of items (a) and (b).

  1. Capital value of amenities of luxurious RCC building not to be separately fixed again,-

Where the capital value of a luxurious RCC building is fixed under these rules, then no capital value of the amenities specified in the definition of the expression ‘luxurious RCC building’ shall be separately fixed for the purpose of levy of property tax.

 

  1. Valuation of open land capable of utilising more than 1 floor space index (F.S.I.) or transfer of development right (T.D.R.),-

As the Ready Reckoner provides for the rate of base value of open land with 1 floor space index, open land which is capable of utilizing more than 1 floor space index or any transfer of development right, shall be valued at an increased rate in proportion to the higher floor space index or transfer of development right proposed to be utilized and approved under the building plan submitted to the Corporation for approval.

  1. Capital value of open land or building or part thereof,-

Capital value of open land or building shall be fixed under the provisions of the Act and these rules in the following manner, namely:-

(1) Capital value (CV) of open land—

Rate of base value (BV) of an open land according to Ready Reckoner

X weightage by multiplication as per user category (UC) (Part I of

schedule ‘A’) X permissible or approved floor space index (FSI) X area

of land (AL)

                        CV = BV x UC x FSI x AL

(2) Capital value (CV) of a building—

Relative rate of base value (BV) of a building according to Ready

Reckoner X weightage by multiplication as per user category (UC)  

                        (Parts II, III, or as the case may be, IV of schedule ‘A’) X weightage by

multiplication as per the nature and type of building (NTB) (schedule

‘B’) X weightage by multiplication on account of age of building (AF)   

                        (schedule ‘C’) X weightage by multiplication on account of floor factor

(FF) for RCC building with lift (schedule ‘D’) X built-up area (BA)

                        CV = BV x UC x NTB x AF x FF x BA

Examples.— Some examples based and worked out on the formulae as aforesaid are shown in the Appendix.

  1. Non-application of Guidelines of Stamp Duty Valuation,-

Notwithstanding anything contained in the “Important Guidelines of Stamp Duty Valuation” as specified in the Ready Reckoner, the provisions made in these rules shall have primacy over those guidelines and none of those guidelines shall apply for fixing capital value under the Act and these rules.

DETAILS OF FACTORS AND USER CATEGORIES OF BUILDINGS AND LAND AND WEIGHTAGES BY MULTIPLICATION TO BE ASSIGNED THERETO

 

SCHEDULE – A

(See rules 4 and 5)

Part – I

Open land

User categories of open land and corresponding weightages by multiplication

Sr.

No.

 User category of open land Weightage by multiplication to the base value
   (1) (2) (3)
    1. Airport land :-

(a) Land used for movement and parking of aircraft

including runway and taxying bay

 1.25

 
(b) Any land other than land covered by entry (a) 1.00
2. Amusement park 1.25
3. Golf course 1.25
4. Land around weighbridge 1.25
5. Land of open air theatre 0.10
6. Land of stadium where no tickets are sold for entry 0.10
7. Land of stadium where tickets are sold for entry 1.00
8. Land of petrol pump / service station / LPG, CNG station / kerosene station 1.25
9. Open air electric sub-station 1.25
10. Open land – non-residential:-
(a) Commercial 1.25
(b) Industrial 1.10
11. Open land – residential 1.00
12. Open land under reservation:-
(a) Partial impermissibility 0.10
(b) Total impermissibility 0.01
13. Quarry 1.25
14. Racecourse:-
(a) Land occupied by racing track 1.25
(b) Land other than the land of racing track 0.01
15. Salt pan 0.01
16. Water reservoir 0.01

PART – II

Residential Buildings

User categories of residential buildings and corresponding weightages by

multiplication

Sr. No. User category of residential building or part thereof Weightage by multiplication to the related base value
(1) (2) (3)
1. Bungalow 1.25
2. Car park in stilt, or basement, or podium 0.25
3. Clubhouse and any other amenity in co-operative housing society used by its members 1.00

 
4. Duplex flat / apartment 1.25
5. Enclosed garage 0.25
6. Penthouse 1.25
7. Room, or flat, or apartment, or tenement and the like 1.00

 
8. Row house 1.25
9. Society office 0.10
10. Swimming pool 1.00

PART – III

Shops / Commercial Buildings

User categories of Shops /Commercial Buildings and corresponding weightages by multiplication

Sr. No.

 

 User category of Shop/ Commercial Building or part thereof

 

 Weightage by

multiplication

to the related

base value
(1) (2) (3)
1. Advertisement hoarding 1.00
2. Airport buildings 1.10
3. Asset management company and trustee company

of Mutual Fund

 1.20

 
4. Automatic Teller Machine Center and Money

Changing Center

 1.20

 
5. Bank 1.20
6. Car parking in stilt / basement / podium 0.25
7. Cinema hall / theatre / drama theatre 1.00
8. Club house, etc. (excluding the one in co-operative

housing society used by its members)

 1.00

 
9. Co-operative credit society 1.00
10. Coaching class 1.00
11. Commodity exchange 1.20
12. Departmental store and shopping center 1.10
13. Dispensary, clinic and pathological laboratory 1.00
14. Educational institution 0.70
15. Electric sub-station of a commercial building 0.80
16. Electric sub-station of a residential building 0.10
17. Enclosed garage 0.25
18. Film shooting studio 1.00
19. Godown / storage / warehouse 1.00
20. Hangar and workshop at airport 1.10
21. Hospital 1.00
22. Hotel – five star and above 1.25
23. Hotel upto four star and service apartment 1.10
24. Life and non-life insurance corporation or company 1.20
25. Mall 1.25
26. Mangal karyalaya/hall/ community hall / convention

hall / party hall, etc. (air-conditioned)

 1.20

 
27. Mangal karyalaya/hall/ community hall / convention

hall / party hall, etc. (non-air-conditioned)

 1.10

 
28. Multiplex 1.25
29. Non-banking financial institution 1.20
30. Nursery, kids’ corner, playgroup 0.70
31. Nursing home 1.00
32. Office 1.00
33. Open air theatre – stage and other structures 0.30
34. Passenger terminal at airport 1.10
35. Private health club, gymnasium 1.00
36. Restaurant with bar 1.10
37. Securities Exchange Board of India 1.20
38. Shop 1.00
39. Society office 0.25
40. Special car parking structure (with or without

mechanical lift)

 1.00

 
41. Stable 0.80
42. Stock exchange 1.20
43. Structures ancillary to petrol pump or service

station or LPG or CNG station or kerosene station

 1.00

 
44. Super-speciality hospital 1.20
45. Swimming pool (where entry fee or membership

fee is charged)

 1.00

 
46. Tiers of seats for spectators in a stadium where

tickets are sold

 0.60

 
47. Tiers of seats for spectators in a stadium where

no tickets are sold

 0.06

 
48. Tower 1.00
49. Un-starred hotel 1.00
50. Weighbridge 1.00

PART – IV

Industrial Buildings

User categories of industrial buildings and corresponding weightages by

multiplication

Sr. No.

 

 User category of industrial building or part thereof

 

 Weightage by

multiplication

to the related

base value
(1) (2) (3)
1. Car parking in stilt /basement /podium 0.25
2. Enclosed garage 0.25
3. Factory including refinery 1.25
4. Industrial estate 1.25
5. Service industrial estate 1.05
6. Society office 0.25
7. Workshop 1.25

SCHEDULE – B

(See rule 6)

Weightages by multiplication to be assigned to a building on account of

nature and type of building

Sr. No.

 

 Nature and type of building or part thereof Weightage by

multiplication
(1) (2) (3)
1. Luxurious RCC building 1.20
2. RCC building other than luxurious RCC building 1.00
3. Pucca building excluding chawl 0.70
4. Semi permanent/Kachha building including chawl 0.50

Explanation.— For the purposes of this schedule:-

(a) RCC building means a building having RCC columns/walls.

(b) pucca building /structure shall include following non-RCC building /structure

(i) steel frame structure, or

(ii) load bearing structure, or

(iii) any type of non-RCC structure having brick or stone wall, or

(iv) hoarding

(c) semi-permanent/kachha building means any other type of building/ structure not covered by any of the above three categories and includes temporary structures made from any material whatsoever.

SCHEDULE – C

(See rule 7)

Weightages by multiplication to be assigned to a building on account of

age of the building

Sr.No. Age Weightage by

multiplication
(1) (2) (3)
1. 0 to 5 years 1.00
2. More than 5 years up to 10 years 0.97
3. More than 10 years up to 15 years 0.94
4. More than 15 years up to 20 years 0.91
5. More than 20 years up to 25 years 0.88
6. More than 25 years up to 30 years 0.85
7. More than 30 years up to 35 years 0.82
8. More than 35 years up to 40 years 0.79
9. More than 40 years up to 45 years 0.76
10. More than 45 years up to 50 years 0.73
11. More than 50 years 0.70

SCHEDULE – D

(See rule 8)

Weightages by multiplication to be assigned to a building on account of

floor factor for a RCC building with lift

Sr. No. Floor Weightage by multiplication
(1) (2) (3)
1. Basement used for car-parking 0.70
2. Basement used for other than car parking 1.00
3. Lower ground floor 1.00
4. Upper ground floor 1.00
5. Ground floor 1.00
6. From 1st to 4th floor 1.00
7. From 5th to 10th floor 1.05
8. From 11th to 20th floor 1.10
9. From 21st to 30th floor 1.15
10. From 31st to 50th floor 1.20
11. From 51st to 75th floor 1.25
12. From 76th to 100th floor 1.30
13. Above 100th floor 1.35

 

APPENDIX

(See Rule 21)

EXAMPLES FOR FIXATION OF CAPITAL VALUE

(1) RESIDENTIAL FLAT ON 12TH FLOOR IN A BUILDING WITH LIFT

    Weightage
Relative rate of base value Rs.80,600 not applicable
User category Residential 1.00
Nature and type of building RCC building other than luxurious RCC building 1.00

 
Age of building 6 years 0.97
Floor number 12 1.10
Built-up area 80 sq. mtr not applicable

CV = BV X UC X NTB X AF X FF X BA

= 80600 X 1.00 X 1.00 X 0.97 X 1.10 X 80

C.V. = Rs.68,80,016

(2) RESIDENTIAL FLAT IN A BUILDING WITHOUT LIFT

    Weightage
Relative rate of base value Rs.80,600 not applicable
User category Residential 1.00
Nature and type of building RCC building other than luxurious RCC building 1.00

 
Age of building 6 years 0.97
Floor number 2 not applicable
Built-up area 80 sq. mtr not applicable

CV = BV X UC X NTB X AF X BA

= 80600 X 1.00 X 1.00 X 0.97 X 80

C.V. = Rs.62,54,560/-

(3) OFFICE IN A BUILDING WITHOUT LIFT HAVING A MEZZANINE FLOOR

    Weightage
Relative rate of base value Rs.108000 Not applicable
User category Office 1.00
Nature and type of building RCC building other than luxurious RCC building 1.00
Age of building 6 years 0.97
Floor number Ground floor not applicable
Built-up area 80 sq. mtr. not applicable
Built-up area of mezzanine floor 20 sq.mt. 0.70

 

(1) CV of Flat = BV X UC X NTB X AF X BA

= 108000 X 1.00 X 1.00 X 0.97 X 80

               C.V. = Rs.83,80,800

(2) C.V. Mezzanine floor = BV x UC x NTB x AF x BA

= (108000 x0.70) x1.00 x 1.00 x 0.97 x 20

= 14,66,640

(3) Total Capital Value = (1) + (2)

= 82,94,400 + 14,66,640

= Rs. 98,47,440

(4) RESIDENTIAL FLAT IN A BUILDING WITHOUT LIFT HAVING OPEN TERRACE IN EXCLUSIVE POSSESSION ATTACHED TO THE FLAT

Weightage
Relative rate of base value Rs.80,600 not applicable
User category Residential 1.00
Nature and type of building RCC building other than luxurious RCC building 1.00
Age of building 6 years 0.97
Floor number 2 not applicable
Built-up area 80 sq. mtr. not applicable
Built-up area of open terrace 10 sq.mtr. 0.10

(1) CV of Flat = BV X UC X NTB X AF X BA

= 80600 X 1.00 X 1.00 X 0.97 X 80

              C.V.  = Rs.62,54,560/-

(2) C.V. Open terrace = BV x UC x NTB x AF x BA

= (80600 x 0.10) x1.00 x 1.00 x 0.97 x 10

= 78,182/-

(3) Total Capital Value = (1) + (2)

= 62,54,560 + 78,182

= Rs. 63,32,742/-

(5) RESIDENTIAL FLAT ON 12TH FLOOR IN A BUILDING WITH LIFT

Weightage
Relative rate of base value Rs.80,600 not applicable
User category Residential 1.00
Nature and type of building RCC building other than luxurious RCC building 1.00
Age of building 36 years 0.79
Floor number 12 1.10
Built-up area 80 sq. mtr. not applicable

CV = BV X UC X NTB X AF X FF X BA

= 80600 X 1.00 X 1.00 X 0.79 X 1.10 X 80

C.V.= Rs.56,03,312

(6) RESIDENTIAL FLAT IN A BUILDING WITHOUT LIFT

Weightage
Relative rate of base value Rs.80,600 not applicable
User category Residential 1.00
Nature and type of building RCC building other than luxurious RCC building 1.00
Age of building 36 years 0.79
Floor number 2 not applicable
Built-up area 80 sq. mtr. not applicable

 

CV = BV X UC X NTB X AF X BA

= 80600 X 1.00 X 1.00 X 0.79 X 80

C.V. = Rs.50,93,920

(7) OFFICE ON 12TH FLOOR IN A BUILDING WITH LIFT

Weightage
Relative rate of base value Rs.1,08,000 not applicable
User category Office 1.00
Nature and type of building RCC building other than luxurious RCC building 1.00
Age of building 6 years 0.97
Floor number 12 1.10
Built-up area 80 sq. mtr. not applicable

 

CV = BV X UC X NTB X AF X FF X BA

= 108000 X 1.00 X 1.00 X 0.97 X 1.10 X 80

C.V. = Rs.92,18,880

(8) OFFICE IN A BUILDING WITHOUT LIFT

Weightage
Relative rate of base value Rs.1,08,000 not applicable
User category Office 1.00
Nature and type of building RCC building other than luxurious RCC building 1.00
Age of building 6 years 0.97
Floor number 2 not applicable
Built-up area 80 sq. mtr. not applicable

 

CV = BV X UC X NTB X AF X BA

= 108000 X 1.00 X 1.00 X 0.97 X 80

C.V. = Rs.83,80,800

(9) OFFICE IN A BUILDING ON 12TH FLOOR WITH LIFT

Weightage
Relative rate of base value Rs.1,08,000 not applicable
User category Office 1.00
Nature and type of building RCC building other than luxurious RCC building 1.00
Age of building 36 years 0.79
Floor number 12 1.10
Built-up area 80 sq. mtr. not applicable

 

CV = BV X UC X NTB X AF X FF X BA

= 108000 X 1.00 X 1.00 X 0.79 X 1.10 X 80

C.V. = Rs.75,08,160

(10) OFFICE IN A BUILDING WITHOUT LIFT

Weightage
Relative rate of base value 1,08,000 not applicable
User category Office 1.00
Nature and type of building RCC building other than luxurious RCC building 1.00
Age of building 36 years 0.79
Floor number 2 not applicable
Built-up area 80 sq. mtr. not applicable

 

C.V. = BV X UC X NTB X AF X BA

= 108000 X 1.00 X 1.00 X 0.79 X 80

C.V. = Rs.68,25,600/-

(11) OPEN LAND IN ISLAND CITY

Weightage
Rate of base value Rs.36,400 not applicable
User category Residential 1.00
Nature and type of building not applicable not applicable
Age of building not applicable not applicable
F.S.I. Factor 1.33 1.33
Land Area 80 sq. mtr. not applicable

CV = BV X UC X FSI X LA

= 36400 X 1.00 X 1.33 X 80

C.V. = Rs.38,72,960

(12) OPEN LAND WHERE RESIDENTIAL BUILDING PLAN WITH HIGHER F.S.I. HAS BEEN APPROVED

Weightage
Rate of base value Rs.36,400 not applicable
User category Open Land (Resi) 1.00
Nature and type of building not applicable not applicable
Age of building not applicable not applicable
F.S.I. Factor 2.50 2.50
Land Area 80 sq. mtr. not applicable

CV = BV X UC X FSI X LA

= 36400 X 1.00 X 2.50 X 80

C.V. = Rs.72,80,000

(13) OPEN LAND IN SUBURBAN AREA

Weightage
Rate of base value Rs.33,200 not applicable
User category Residential 1.00
Nature and type of building not applicable not applicable
Age of building not applicable not applicable
F.S.I. Factor 1.00 1.00
Land Area 80 sq. mtr. not applicable

CV = BV X UC X FSI X LA

= 33200 X 1.00 X 1.00 X 80

C.V. = Rs.26,56,000

____________________________________________

0 6286
Acts and Regulations

MAHARASHTRA OWNERSHIP FLATS (REGULATION OF THE PROMOTION OF CONSTRUCTION, SALE, MANAGEMENT AND TRANSFER) ACT, 1963

(MAHARASHTRA ACT NO. XLV OF 1963)

(Received the assent of the President on the 12th day of December, 1963; assent first published in the Maharashtra Government Gazette, Part IV, on 16th day of December, 1963)

An Act to regulate for a certain period, in the State of Maharashtra, the promotion of the construction of, the sale and management, and the transfer of flats on ownership basis

WHEREAS, it has been brought to the notice of the State government that consequent on the acute shortage of housing in the several areas of the State of Maharashtra, sundry abuses, malpractices and difficulties relating to the promotion of the construction of, and the sale and management and transfer of flats taken on ownership basis exist, and are increasing;

AND WHEREAS, the Government in order to advise itself as respects the manner of dealing with these matters, appointed a committee by Government Resolution in the Urban Development and Public Health Department No. S. 248-79599-F, dated the 20th May, 1960, to inquire into and report to the State Government on the several matters referred to aforesaid with the purpose of considering measures for their amelioration;

AND WHEREAS, the aforesaid Committee has submitted its report to Government in June, 1961, which report has been published for general information:

AND WHEREAS, it is now expedient after considering the recommendations and suggestions made therein, to make provision during the period of such shortage of housing, for the regulation of the promotion of the construction, sale and management and transfer, of flats taken on ownership basis in the State of Maharashtra; it is hereby enacted in the Fourteenth Year of the Republic Of India as follows:-

  1. Short title, extent, commencement and duration,-

(1) This Act may be called the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963.

(2) It extends to the whole of the State of Maharashtra.

(3) This section shall come into force at once; and the remaining provisions of this Act shall come into force in such area, and on such dates as the State Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different areas.

(4) This Act shall remain in force upto and inclusive of the 31st day of March 2000 and shall then expire.

(5) Section 7 of the Bombay General Clauses Act, 1904 (Bom. I of 1904), shall apply upon the expiry of this Act as if it had then been repealed by a Maharashtra Act.

  1. Definitions,-

In this Act, unless the context otherwise requires,-

1[(a) “Competent Authority” means a Competent Authority appointed under section 5A];

1[(a-1)] “Flat” means a separate and self-contained set of premises used or intended to be used for residence, or office, show-room or shop or godown or for carrying on any industry or business and includes a garage, the premises forming part of a building and includes an apartment;

          Explanation.— Notwithstanding that provisions is made for sanitary, washing, bathing or other conveniences as common to two or more sets of premises, the premises shall be deemed to be separate and self-contained;

(b) “prescribed” means prescribed by rules made under this Act;

(c) ‘promoter” means a person  1[and includes  a partnership firm or a body or association of persons, whether registered or not] who constructs or causes to be constructed a block or building of flats or apartments for the purpose of selling some or all of them to other persons, or to a company, co-operative society or other association of persons, and includes his assignees; and where the person who builds and the person who sells are different persons, the term includes both;

(d) “Registrar” means the Registrar as defined in the Maharashtra Co-operative Societies Act, 1960 (Mah. XXIV of 1961), or as the case may be, in the Companies Act, 1956 (I of 1956);

(e) “to construct a block or building of flats or apartments” includes to convert a building or part thereof into flats or apartments;

(f) the expressions, “apartment” and “apartment owner” shall have the meanings, respectively assigned to them in the Maharashtra Apartment Ownership Act, 1970 (Mah. XV of 1971).

—————————————————————————————————————–

  1. The above modifications were made by the Maharashtra Act No. IV of 2008, Section 2.

—————————————————————————————————————–

  1. General liabilities of promoter,-

(1) Notwithstanding anything in any other law, a promoter who intends to construct or constructs a block or building of flats, all or some of which are to be taken or are taken on ownership basis, shall, in all transactions with persons intending to take or taking one or more of such flats, be liable to give or produce, or cause to be given or produced, the information and the documents hereinafter in this section mentioned.

(2) A promoter, who constructs or intends to construct such block or building of flats, shall—

(a) make full and true disclosure of the nature of his title to the land on which the flats are constructed, or are to be constructed; such title to the land as aforesaid having been duly certified by an Attorney-at-law, or by an Advocate of not less than three years standing and having been duly entered in the Property card or extract of Village Forms VI or VII and XII or any other relevant revenue record.

(b) make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land;

(c) give inspection on seven days’ notice or demand, of the plans and specifications of the building built or to be built on the land; such plans and specifications, having been approved by the local authority which he is required so to do under any law for the time being in force;

(d) disclose the nature of fixtures, fittings and amenities (including the provision for one or more lifts) provided or to be provided;

(e) disclose on reasonable notice or demand if the promoter is himself the builder, the prescribed particulars as respects the design and the materials to be used in the construction of the buildings, and if the promoter is not himself the builder disclose, on such notice or demand, all agreements (and where there is no written agreement, the details of all agreements) entered into by him with the architects and contractors regarding the design, material and construction of the building;

(f) specify in writing the date by which possession of the flat is to be handed over (and he shall hand over such possession accordingly):

(g) prepare and maintain a list of flats with their numbers already taken or agreed to be taken, and the names and addresses of the parties, and the price charged or agreed to be charged therefor, and the terms and conditions if any on which the flats are taken or agreed to be taken;

(h) state in writing, the precise nature of the organisation of persons to be constituted and to which title is to be passed, and the terms and conditions governing such organisation of persons who have taken or are to take the flats;

(i) not allow persons to enter into possession until a completion certificate where such certificate is required to be given under any law, is duly given by the local authority (and no person shall take possession of a flat until such completion certificate has been duly given by the local authority);

(j) make a full and true disclosure of all outgoings (including ground rent if any, municipal or other local taxes, taxes on income, water charges and electricity charges, revenue assessment, interest on any mortgage or other encumbrances, if any;

(k) make a full and true disclosure of such other information and documents in such manner as may be prescribed; and give on demand true copies of such of the documents referred to in any of the clauses of this sub-section as may be prescribed at a reasonable charge therefor;

(l) display or keep all the documents, plans or specifications (or copies thereof) referred to in clauses (a), (b) and (c), at the site and permit inspection thereof to persons intending to take or taking one or more flats;

(m) when the flats are advertised for sale, disclose inter alia in the advertisement the following particulars, namely:-

(i) the extent of the carpet area of the flat including the area of the balconies which should be shown separately;

(ii) the price of the flat including the proportionate price of the common areas and facilities which should be shown separately, to be paid by the purchaser of flat; and the intervals at which the instalments thereof may be paid;

(iii) the nature, extent and description of the common area and facilities; and

(iv) the nature, extent and description of limited common areas and facilities, if any.

*[(n) sell flat on the basis of the carpet area only:

Provided that, the promoter may separately charge for the common areas and facilities in proportion to the carpet area of the flat.

           Explanation.— For the purposes of this clause, the carpet area of the flat shall include the area of the balcony of such flat.]

—————————————————————————————————————–

* The above clause (n), Proviso and Explanation were inserted by Maharashtra Act No. XXIII of 2008, Section 2.

—————————————————————————————————————–

  1. Promoter before accepting advance payment or deposit to enter into agreement and agreement to be registered,-

(1) Notwithstanding anything contained in any other law, a promoter who intends to construct or constructs a block or building of flats, all or some of which are to be taken or are taken on ownership basis, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than 20 per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such flats, and the agreement shall be registered under the Registration Act, 1908 (XVI of 1908) (hereinafter in this section referred to as “the Registration Act”) (and such agreement shall be in the prescribed form).

(1A) The agreement to be prescribed and sub-section (1) shall contain inter–alia the particulars as specified in clause (a): and to such agreement there shall be attached the copies of the documents specified in clause (b),-

(a) particulars,-

(i) if the building is to be constructed, the liability of the promoter to construct it according to the plans and specifications approved by the local authority where such approval is required under any law for the time being in force:

(ii) the date by which the possession of the flat is to be handed over to the purchaser;

(iii) the extent of the carpet area of the flat including the area of the balconies which should be shown separately;

(iv) the price of the flat including the proportionate price of the common areas and facilities which should be shown separately, to be paid by the purchaser of flat; and the intervals at which instalments thereof may be paid;

(v) the precise nature of the organisation to be constituted of the persons who have taken or are to take the flats;

(vi) the nature, extent and description of limited common areas and facilities;

(vii) the nature, extent and description of limited common areas and facilities, if any;

                        (viii)  percentage of undivided interest in the common areas and facilities appertaining to the flat agreed to be sold;

(ix) statement of the user of which the flat is intended and restriction of its use, if any;

(x) percentage of undivided interests in the limited common areas and facilities, if any, appertaining to the flat agreed to be sold;

(b) copies of documents,-

(i) the certificate by an Attorney-at-law or Advocate under clause (a) of sub-section (2) of section 3;

(ii) Property Card or extract of Village Forms VI or VII and XII or any other relevant revenue record showing the nature of the title of the promoter to the land on which the flats are constructed or are to be constructed:

(iii) the plans and specifications of the flat as approved by the concerned local authority.

(2) Any agreement for sale entered into under sub-section (1) shall be presented by the promoter or by any other person competent to do so under section 32 of the Registration Act, at the proper registration office for registration, within the time allowed under sections 23 to 26 (both inclusive) of the said Act and execution thereof shall be admitted before the registering officer by the person executing the document or his representative, assign or agent as laid down in sections 34 and 35 of the said Act also within the time aforesaid:

Provided that, where any agreement for sale is entered into, or is purported, to be entered into, under sub-section (1), at any time before the commencement of the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) (Amendment and Validating Provisions) Act, 1983 (Mah. V of 1984), and such agreement was not presented for registration or was presented for registration but its execution was not admitted before the registration officer by the person concerned, before the commencement of the said Act, then such document may be presented at the proper registration office for registration, and its execution may be admitted, by any of the persons concerned referred to above in this sub-section, on or before the 31st December, 1984, and the registering officer shall accept such document for registration, and register it under the Registration Act, as if it were presented, and its execution was admitted, within the time laid down in the Registration Act;

Provided further that, on presenting a document for registration as aforesaid if the person executing such document or his representative, assign or agent does not appear before the registering officer and admit the execution of the document, the registering officer shall cause a summons to be issued under section 36 of the Registration Act requiring the executant to appear at the registration office, either in person or by duly authorised agent, at a time fixed in the summons. If the executant fails to appear in compliance with the summons, the execution of the document shall be deemed to be admitted by him and the registering office may proceed to register the document accordingly.  If the executant appears before the registering officer as required by the summons but denies execution of the document, the registering officer shall, after giving him a reasonable opportunity of being heard, if satisfied that the document has been executed by him, proceed to register the document accordingly.

4A. Effect of non-registration of agreement required to be registered under section 4,-

Where an agreement for sale entered into under sub-section (1) of section 4, whether entered into before or after the commencement of the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) (Amendment and Validating Provisions) Act, 1983 (Mah. V of 1984), remains unregistered for any reason, then notwithstanding anything contained in any law for the time being in force, or in any judgment, decree or order of any Court, it may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1963 (XLVII of 1963), or as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property Act, 1882 (IV of 1882) or as evidence of any collateral transaction not required to be effected be registered instrument.

  1. Promoter to maintain separate account of sums taken as advance or deposit and to be trustee therefor and disburse them for purposes for which given,-

The promoter shall maintain a separate account in any bank of sums taken by him, from persons intending to take or who have taken flats, advance or deposit including any sums so taken towards the share capital for the formation of co-operative society or a company, or towards the outgoings (including ground rent, if any, municipal or other local taxes, taxes on income, water charges, electricity charges, revenue assessment, interest on any mortgage or other encumbrances if any); and he shall hold the said moneys for the purposes for which they were given and shall disburse the moneys for those purposes and shall on demand in writing by 2[a Competent Authority], make full and true disclosure of all transactions in respect of that account.

3[5A. Competent Authority,*

The State Government may, by notification in the Official Gazette appoint an officer, not below the rank of the District Deputy Registrar of Co-operative Societies, to be the Competent Authority, for an area or areas to be specified in such notification and different officers may be appointed as Competent Authority for different local areas, for the purposes of exercising the powers and performing the duties under sections 5, 10 and 11 of this Act.]

—————————————————————————————————————–

  1. This substitution was made by the Maharashtra Act No. IV of 2008 for the words “an officer appointed by general or special order by the State Government, for the purpose”, Section 3.
  2. The section was incorporated in the Principal Act by the Maharashtra Act No. IV of 2008, Section 4.

* See Notification No. MOF. 2008/C.R 24 (Part II)/RR-2, dated 25th February, 2011 in the Housing Department, Maharashtra Government, regarding appointment of various Competent Authorities  for different areas of Maharashtra.

—————————————————————————————————————–

  1. Responsibility for payment of outgoings till property is transferred,-     

A promoter shall, while he is in possession and where he collects from persons who have taken over flats or are to take over flats, sums for the payment of outgoings even thereafter, pay all outgoings (including ground rent, municipal or other local taxes, taxes on income, water charges, electricity charges, revenue assessment, interest on any mortgage or other encumbrances, if any), until he transfers the property to the persons taking over the flats, or to the organisation of any such persons, where any promoter fails to pay all or any of the outgoings collected by him from the persons who have taken over flats or are to take over flats, before transferring the property to the persons taking over the flats or to the organisation of any such persons, the promoter shall continue to be liable, even after the transfer of the property, to pay such outgoings and penal charges (if any) to the authority or person to whom they are payable and to be responsible for any legal proceedings which may be taken therefor by such authority or person.

  1. After plans and specifications are disclosed no alterations or additions without consent of persons who have agreed to take the flats; and defects noticed within three years to be rectified,-

(1) After the plans and specifications of the building, as approved by the local authority as aforesaid, are disclosed or furnished to the person who agrees to take one or more flats, the promoter shall not make—

(i) any alteration in the structures described therein in respect of the flat or flats which are agreed to be taken, without the previous consent of that person;

(ii) any other alterations or additions in the structure of the building without the previous consent of all the persons who have agreed to take the flats in such building.

(2) Subject to sub-section (1), the building shall be constructed and completed in accordance with the plans and specifications aforesaid; and if any defect in the building or material used, or if any unauthorised change in the construction is brought to the notice of the promoter within a period of three years from the date of handing over possession, it shall wherever possible to be rectified by the promoter without further charges to the persons who have agreed to take the flats, and in other cases such persons shall be entitled to receive reasonable compensation for such defect or change. Where there is a dispute as regards any defect in the building or material used, or any unauthorised change in the construction, or as to whether it is reasonably possible for the promoter to rectify any such defect or change, or as regards the amount of reasonable compensation payable in respect of any such defect or change which cannot be, or is not, rectified by the promoter, the matter shall, on payment of such fee as may be prescribed, and within a period of three years from the date of handing over possession, be referred for decision—

(i) in an urban agglomeration as defined in clause (n) of section 2 of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976), to such competent authority authorised by the State Government under clause (d) of section 2 of that Act, and

(ii) in any other area, to such Deputy Chief Engineer, or to such other Officer of the rank equivalent to that of Superintending Engineer in the Maharashtra Service of Engineer, of a Board established under section 18 of the Maharashtra Housing and Area Development Act, 1976 (Mah. XXVIII of 1977),

as the State Government may by general or special order, specify in this behalf, such competent authority, Deputy Chief Engineer or, as the case may be, the other officer of a Board shall, after inquiry record his decision, which shall be final.

7A. Removal of doubt,-

For the removal of doubt, it is hereby declared that clause (ii) of sub-section (1) of section 7 having been retrospectively substituted by clause (a) of section 6 of the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) (Amendment) Act, 1986 (Mah. XXXVI of 1986) (hereinafter in this section referred to as “the Amendment Act”), it shall be deemed to be effective as if the said clause (ii) as so substituted had been in force at all material times; and the expression “or construct any additional structures” in clause (ii) of sub-section (1) of section 7 as it existed before the commencement of the Amendment Act and the expression “constructed and completed in accordance with the plans and specifications aforesaid” and “any unauthorised change in the construction” in sub-section (2) of section 7 shall, notwithstanding anything contained in this Act or in any agreement, or in any judgement, decree or order of any Court, be deemed never to apply or to have applied in respect of the construction of any other additional building or structures constructed or be constructed under a scheme or project of development in the layout after obtaining the approval of a local authority in accordance with the building rules or building bye-laws or Development Control Rules made under any law for the time being in force.

 

  1. Refund of amount paid with interest for failure to give possession within specified time or further time allowed,-  

If—

(a) the promoter fails to give possession in accordance with the terms of his agreement of a flat duly completed by the date specified, or any further date or dates agreed to by the parties, or

(b) the promoter for reasons beyond his control and of his agents, is unable to give possession of the flat by the date specified, or the further agreed date and a period of these months thereafter, or a further period of three months if those reasons still exist,

then, in any such case, the promoter shall be liable on demand (but without prejudice to any other remedies to which he may be liable) to refund the amounts already received by him in respect of the flat (with simple interest at nine percent per annum from the date he received the sums till the date the amounts and interest thereon is refunded), and the amounts and the interest shall be a charge on the land and the construction if any thereon in which the flat is or was to be constructed, to the extent of the amount due, but subject to any prior encumbrances.

  1. No mortgage etc,, to be created without consent of parties after execution of agreement for sale,-

No promoter shall, after he executes an agreement to sell any flat, mortgage or create a charge on the flat on the land, without the previous consent of the persons who take or agree to take the flats, and if any such mortgage or charge is made or created without such previous consent after the agreement referred to in section 4 is registered, it shall not affect the right and interest of such persons.

  1. Promoter to take steps for formation of co-operative society or company,-

(1) As soon as a minimum number of persons required to form a Co-operative society or a company have taken flats, the promoter shall within the prescribed period submit an application to the Registrar for registration of the organisation of persons who take the flats as a Co-operative society or, as the case may be, as a company; and the promoter shall join, in respect of the flats which have not been taken, in such application for membership of a co-operative society or as the case may be, of a company.  Nothing in this section shall affect the right of the promoter to dispose of the remaining flats in accordance with the provisions of this Act.

4[Provided that, if the promoter fails within the prescribed period to submit an application to the Registrar for registration of society in the manner provided in the Maharashtra Co-operative Societies Act, 1960 (Mah. XXIV of 1961), the Competent Authority may, upon receiving an application from the persons who have taken flats from the said promoter, direct the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar concerned, to register the society:

Provided further that, no such direction to register any society under the preceding proviso shall be given to the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar, by the Competent Authority without first verifying authenticity of the applicants’ request and giving the concerned promoter a reasonable opportunity of being heard.]

(2) If any property consisting of building or buildings is constructed or to be constructed and the promoter submits such property to the provisions of the Maharashtra Apartment Ownership Act, 1970 (Mah. XV of 1971), by executing and registering Declaration as provided by that Act then the promoter shall inform the Registrar as defined in the Maharashtra Co-operative Societies Act, 1960 (Mah. XXIV of 1961), accordingly; and in such cases, it shall not be lawful to form any co-operative society or company.

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  1. The above provisos were added by the Maharashtra Act No. IV of 2008, Section 5.

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  1. Promoter to convey title, etc., and execute documents, according to agreement,-

5[(1)] A promoter shall take all necessary steps to complete his title and covey to the organisation of persons, who take flats, which is registered either as a co-operative society or as a company as aforesaid, or to an association of flat takers or apartment owners his right, title and interest in the land and building, and execute all relevant documents therefor in accordance with the agreement executed under section 4 and if no period for the execution of the conveyance is agreed upon, he shall execute the conveyance within the prescribed period and also deliver all documents of title relating to the property which may be in his possession or power.

5[(2) It shall be the duty of the promoter to file with the Competent Authority, within the prescribed period, a copy of the conveyance executed by him under sub-section (1).

(3) If the promoter fails to execute the conveyance in favour of the Co-operative society formed under section 10 or, as the case may be, the Company or the association of apartment owners, as provided by sub-section (1), within the prescribed period, the members of such Co-operative society or, as the case may be, the Company or the association of apartment owners may, make an application, in writing, to the concerned Competent Authority accompanied by the true copies of the registered agreements for sale, executed with the promoter by each individual member of the society or the Company or the association, who have purchased the flats and all other relevant documents (including the occupation certificate, if any), for issuing a certificate that such society, or as the case may be, Company or association, is entitled to have an unilateral deemed conveyance, executed in their favour and to have it registered.

(4) The Competent Authority, on receiving such application, within reasonable time and in any case not later than six months, after making such enquiry as deemed necessary and after verifying the authenticity of the documents submitted and after giving the promoter a reasonable opportunity of being heard, on being satisfied that it is a fit case for issuing such certificate, shall issue a certificate to the Sub-Registrar or any other appropriate Registration Officer under the Registration Act, 1908 (16 of 1908), certifying that it is a fit case for enforcing unilateral execution of conveyance deed conveying the right, title and interest of the promoter in the land and building in favour of the applicant, as deemed conveyance.

(5) On submission by such society or as the case may be, the Company or the association of apartment owners, to the Sub-Registrar or the concerned appropriate Registration Officer appointed under the Registration Act, 1908 (16 of 1908), the certificate issued by the Competent Authority alongwith the unilateral instrument of conveyance, the Sub-Registrar or the concerned appropriate  registration Officer shall, notwithstanding anything contained in the Registration Act, 1908 (16 of 1908), issue summons to the promoter to show cause why such unilateral instrument should not be registered as ‘deemed conveyance” and after giving the promoter and the applicants a reasonable opportunity of being heard, may, on being satisfied that it was fit case for unilateral conveyance, register that instrument as ‘deemed conveyance.]

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  1. Section 11 of the Principal Act was renumbered as sub-section (1) and sub-sections (2) to (5) were inserted in the Principal Act by Maharashtra Act No. IV of 2008, Section 6.

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  1. General liabilities of flat-taker,-

(1) Every person who has executed an agreement to take a flat shall pay at the proper time and place the price, his proportionate share of the municipal taxes, water and electricity charges, ground rent (if any) and other public charges in accordance with his agreement with the promoter; and where a co-operative society or company of persons taking the flats is to be constituted, co-operate in the formation of such society or company, as the case may be.

(2) Any person who has executed an agreement to take a flat and who, without reasonable excuse, fails to comply with or contravenes sub-section (1) shall, on conviction, be punished with fine which may extend to two thousand rupees.

12A. Manager not to cut off, withhold, curtail or reduce essential supply or service,-

(1) No person, who is a promoter, or who is in-charge of management or connected with the management of a block or building of flats, whether as member of a managing committee, director, secretary or otherwise, or is responsible for the maintenance thereof (hereinafter in this section referred to as “the manager”), shall, without just and sufficient cause, either by himself or through any person, cut off, withhold, or in any manner curtail or reduce, any essential supply or service enjoyed by the person who has taken a flat (or by any person in occupation thereof through or under him) in respect of the flat taken or agreed to be taken by him.

(2) The person who has taken or agreed to take the flat or the occupier may, if the manager has contravened the provisions of sub-section (1), make an application to the Court for a direction to restore such supply or service.

(3) If the Court on enquiry finds that the applicant or the person through or under whom he is in occupation has been in enjoyment of the essential supply or service, and that it was cut off or withheld or curtailed or reduced by the manager without just and sufficient cause, the Court shall make an order directing the manager to restore such supply or service before a date to be specified in the order.

(4) The manager who fails to restore the supply or service before the date so specified, shall for each day during which the default continues thereafter, be liable upon a further direction by the Court to that effect, to fine which may extend to one hundred rupees.          

(5) Notwithstanding anything contained in any law for the time being in force,–

(a) in Greater Bombay, the Court of Small Causes, Bombay,

(b) in any area for which a Court of Small Causes is established under the Provincial Small Cause Courts Act, 1887 (IX of 1887), such Court, and

(c) elsewhere the Court of the Civil Judge (Senior Division),

shall have jurisdiction to decide any application made under sub-section (2), and no other Court shall have jurisdiction to entertain such application.  No appeal shall lie from any order made on such application; but in Greater Bombay a bench of two judges of the Court of Small Causes, Bombay, which shall not include the Judge who made such order, and elsewhere the District Court, may for the purpose of satisfying itself that the order made was according to law, call for the case in which such order was made and the Bench or Court aforesaid or the District Judge or any Judge to which the case may be referred by the District Judge, shall pass such order with respect thereto as it or he thinks fit.

(6) Any manager who contravenes the provisions of sub-section (1) shall, on conviction, be punished with imprisonment for a term which may extend to three months, or with fine, or with both.

(7) The offence under sub-section (6) shall be cognizable, and shall not be triable by any Court inferior to that of a Metropolitan Magistrate, or a Judicial Magistrate of the First Class.

            Explanation I.— In this section, essential supply or service includes the supply of water, electricity, lights in passages and on stair-cases, and lifts and conservancy or sanitary service.

            Explanation II.— For the purposes of this section, withholding any essential supply or service shall include acts or omissions attributable to the manager on accounts of which the essential supply or service is cut off by the local authority or any other competent authority.

  1. Offences by promoters 6[and consequences on conviction],-

(1) Any promoter who, without reasonable excuse fails to comply with or contravenes, the provisions of section 3, 4, 5 save as provided in sub-section (2) of this section, 10 or 11 shall, on conviction, be punished with imprisonment for a term which may extend to three years or with fine, or with both.

(2) Any promoter who commits criminal breach of trust of any amount advanced or deposited with him for the purposes mentioned in section 5 shall, on conviction, be punished with imprisonment for a term which may extend to five years, or with fine, or with both.

(3) Any promoter who, without reasonable excuse, fails to comply with or contravenes, any other provision of this Act, of any rule made thereunder, shall, if no other penalty is expressly provided for the offence, be punished, on conviction, 6[with imprisonment for a term which shall not be less than six months but which may extend to one year or with fine which shall not be less than Ten Thousand rupees but which may extend to Fifty Thousand rupees or with both].

6[(4) When any promoter is convicted of any offence under this Act, except offence under section 12A, such promoter shall be disqualified from undertaking construction of flats for a period of five years from the date of such conviction.  However, such disqualification shall not affect the permission for construction of flats already granted before incurring such disqualification and shall also not debar the promoter from seeking or being granted any additional requisite permissions which may be required from the concerned local authorities for completion of constructions already undertaken by him.

(5) The Competent Authority shall, on such conviction of a promoter under this Act, subject to the orders of the appellate court, if any, or after the expiry of the appeal period, forward the name of the convicted promoter to the local authorities under his jurisdiction, with a direction that such promoter shall not be granted permission under the relevant law for undertaking any construction of flats during the period of such disqualification, specifically mentioning such period.

(6) On receiving such intimation from the Competent Authority, notwithstanding anything contained in any other law for the time being in force, the concerned local authority shall not grant  such promoter any permission or licence under the relevant law for construction of flats for a period for which the promoter is so disqualified.]

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  1. Modification of the marginal note, substitution of sub-section (3) and insertion of sub-sections (4) to (6) were effected by the Maharashtra Act No. IV of 2008, S. 7.

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13A. Power of Magistrate to pass sentences under this Act,-

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (II of 1974), it shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the First Class to pass on any person convicted of any offence under this Act, a sentence of imprisonment or of fine or both as provided in the relevant section of this Act, in excess of his powers under section 27 of the said Code.

7[13B. Competent Authority to be public servant,-

The Competent Authority shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860).

13C. Proceedings before the Competent Authority to be judicial proceedings,-

All proceedings before a Competent Authority shall be deemed to be the judicial proceedings for the purposes of sections 193 and 228 of the Indian Penal Code (45 of 1860).

13D. Competent Authority deemed to be Civil Court for certain purposes,-

Every Competent Authority shall be deemed to be a Civil Court for the purposes of sections 345 and 347 of the Code of Criminal Procedure, 1973 (2 of 1974).

13E. Indemnity for acts done in good faith,-

No suit, prosecution or any other legal proceedings shall lie against any competent Authority in respect of anything which is in good faith done or purported to be done by him under this Act.]

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7.Sections 13B, 13C, 13D and 13E were inserted by Maharashtra Act No. IV of 2008, Section 8]

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  1. Offences by companies,-

(1) If the person committing an offence under this Act is a company, every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of business by the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:       

            Provided that, nothing contained in this sub-section shall render any such person liable to such punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed with the consent or connivance of, or is attributable to any negligence on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.— For the purposes of this section,-

(a) “company” means a body corporate and includes a firm or other association of individuals; and

(b) “director” in relation to a firm means a partner in firm.

 

  1. Power to make rule,-

(1) The State Government may, subject to the condition of previous publication, by notification in the official Gazette, make rules for carrying into effect the provision of this Act.

(2) In particular and without prejudice to the generality of the foregoing power such rules may provide for all or any of the following matters, namely:-

(a) under section 3, the particulars as respects the design and the materials to be used in the construction of the building and the other information and documents to be disclosed, the manner in which disclosure to be made and the documents of which true copies shall be given by the promoter;

(b) under section 4, the form of agreement;

(c) under section 10, the period within which the promoter shall submit an application for registration of a co-operative society or a company’

(d) under section 11, the period within which the promoter shall execute the conveyance;

(e) any other matter which has to be, or may be, prescribed by rules.

(3) Every rule made under this section shall be laid as soon as may be after it is made before each House of the State Legislature while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, and notify such decision in the Official Gazette, the rule shall from the date of publication of such notification have effect only in such modified form or be no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done or omitted to be done under that rule.

  1. Act to be in addition to Transfer of Property Act and to over-ride contract to the contrary,-

The provisions of this Act, except where otherwise provided, shall, be in addition to the provisions of the Transfer of Property Act, 1882 (IV of 1882) and shall take effect notwithstanding anything to the contrary contained in any contract.

  1. Application of certain provisions to flats already in existence,-

As regards flats which on the commencement of this Act have already been constructed or converted, the provisions of sections 2, 6, 8, 9, 10, 11, 12, 13, 14, 15 and 16 apply with the following modifications, that is to say—

(a) in section 2, in clause (c) the words “means a person who constructs” shall be read as if the words “means a person who has constructed” had been substituted:

(b) in section 8, if the date specified or agreed to have already passed at the commencement of this Act, then the promoter shall give possession within three month from such commencement of this Act; and if for any reasons beyond his control and of his agent, the promoter has been unable to give possession of the flat within three months from such commencement, he shall give possession thereof within a period of three months thereafter, or a further period of three months if those reasons still exist; and thereafter the promoter shall be liable on demand to refund the amounts on the terms and conditions provided in the said section;

(c) in section 9, the words and figures “after the agreement referred to in section 4 is registered” shall be read as if the words “after the commencement of this Act” had been substituted;

(d) in section 10, the words “As soon as a minimum number of persons required to form a co-operative society or a company have taken flats, the promoter shall within the prescribed period” shall be read if the words “Where the minimum number of persons required to form a co-operative society or a company have taken flats, the promoter shall within three months from the commencement of this Act” had been substituted;

(d) in section 11, the words and figure “in accordance with the agreement executed under section 4” shall be read as if the words “in accordance with any agreement made in respect thereof” had been substituted and the words “within the prescribed period” shall be read as if the words “within three months from the commencement of this Act” have been substituted.

  1. Act not to apply to Housing and Area Development Authority and Boards,-

Nothing in this Act shall apply to the Maharashtra Housing and Area Development Authority and the Boards established under the Maharashtra Housing and Area Development Act, 1976 (Mah. XXVIII of 1977).

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0 37107
Acts and Regulations

THE INDIAN EASEMENTS ACT, 1882

(V of 1882)

(As amended up to date)

            An act to define and amend the law relating to Easements and Licences.

Whereas it is expedient to define and amend the law relating to Easements and Licences, it is hereby enacted as follows:

 

PRELIMINARY

  1. Short title,- This Act may be called “The Indian Easements Act, 1882.”

Local extent,-It extends to the territories respectively administered by the Governor of Madras in Council and the Chief Commissioners of the Central Provinces and Coorg;

Commencement,-It shall come into force on the first day of July, 1882.

  1. Savings,- Nothing herein contained shall be deemed to affect any law not hereby expressly repealed; or to derogate from-

(a) any right of the Government to regulate the collection, retention and distribution of the water of rivers and streams flowing in natural channels, and of natural lakes and ponds, or of the water flowing, collected, retained or distributed in or by any channel or other work constructed at the public expense for irrigation;

(b) any customary or other right (not being a licence) in or over an immovable property which the Government, the public or any person may possess irrespective of other immovable property; or

(c) any right acquired or arising out of a relation created before this Act comes into force.

  1. Construction of certain references to Act XV of 1877 and Act IX of 1871,- All references in any Act or Regulation to sections 26 and 27 of the Indian Limitation Act, 1877 or to sections 27 and 28 of Act No. IX of 1871, shall, in the territories to which this Act extends, be read as made to sections 15 and 16 of this Act.

CHAPTER I

OF EASEMENTS GENERALLY

  1. “Easement” defined,- An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own.

Dominant and servient heritages and owner,-The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage; and the owner or occupier thereof the servient owner.

           Explanation,- In the first and second clauses of this section, the expression “land” includes also things permanently attached to the earth; the expression “beneficial enjoyment” includes also possible convenience, remote advantage and even a mere amenity; and the expression “to do something” includes removal and appropriation by the dominant owner for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon.

Illustrations

(a) A, as the owner of a certain house, has a right of way to enter over his neighbour B’s land for purposes connected with the beneficial enjoyment of the house.  This is an easement.

(b) A, as the owner of a certain house, has the right to go on his neighbour B’s land, and to take water for the purposes of his household, out of a spring therein. This is an easement.

(c) As, as the owner of a certain house, has the right to conduct water from B’s stream to supply the fountain in the garden attached to the house. This is an easement.

(d) A, as the owner of a certain house and farm, has the right to graze a certain number of his own cattle on B’s field, or to take, for the purpose of being used in the house, by himself, his family, guests, lodgers and servants, water or fish out of C’s tank or timber out of D’s wood, or to use, for the purpose of manuring his land, the leaves which have fallen from the trees on E’s land.  These are easements.

(e) A dedicates to the public the right to occupy the surface of certain land for the purpose of passing and repassing.  This right is not an easement.

(f) A is bound to cleanse a watercourse running through his land and keep it free from obstruction for the benefit of B, a lower riparian owner.  This is not an easement.

  1. Continuous and discontinuous, apparent and non-apparent easements,- Easements are either continuous or discontinuous, apparent or non-apparent.

A continuous easement is one whose enjoyment is, or may be, continued without the act of man.

A discontinuous easement is one that needs the act of man for its enjoyment.

An apparent easement is one the existence of which is shown by some permanent sign which, upon a careful inspection by a competent person, would be visible to him.

A non-apparent easement is one that has no such sign.

Illustrations

(a) A right annexed to B’s house to receive light by the windows without obstruction by his neighbour A.  This is a continuous easement.

(b) A right of way annexed to A’s house over B’s land.  This is a discontinuous easement.

(c) Rights annexed to A’s land to lead water thither across B’s land by an aqueduct and to draw all water thence by a drain. The drain would be discovered upon careful inspection by a person conversant with such matters.  These are apparent easements.

(d) A right annexed to A’s house to prevent B from building on his own land.  This is a non-apparent easement.

  1. Easement for limited time or on condition,- An easement may be permanent, or for a term of years or other limited period, or subject to periodical interruption, or exercisable only at a certain place, or at certain times, or between certain hours, or for a particular purpose, or on condition that it shall commence or become void or voidable on the happening of a specified event or the performance or non-performance of a specified act.
  1. Easements restrictive of certain rights,- Easements are restriction of one or other of the following rights, namely:

(a) Exclusive right to enjoy,- The exclusive right of every owner of immovable property (subject to any law for the time being in force) to enjoy and dispose of the same and all products thereof and accessions thereto.

            (b) Rights to advantages arising from situation,- The right of every owner of immovable property (subject to any law for time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.

Illustrations of the rights above referred to

(a) The exclusive right of every owner of land in a town to build on such land, subject to any municipal law for the time being in force.

(b) The right of owner of land that the air passing thereto shall not be unreasonably polluted by other persons.

(c) The right of every owner of a house that his physical comfort shall not be interfered with materially and unreasonably by noise or vibration caused by any other person.

(d) The right of every owner of land to so much light and air as pass vertically thereto.

(e) The right of every owner of land that such land, in its natural condition, shall have the support naturally rendered by the subjacent and adjacent soil of another person.

          Explanation,- Land is in its natural condition when it is not excavated and not subject to artificial pressure; and the ‘subjacent and adjacent soil’ mentioned in this illustration means such soil only as in its natural condition would support the dominant heritage in its natural condition.

(f) The right of every owner of land that, within his own limits, the water which naturally passes or percolates by, over or through his land shall not, before so passing or percolating, be unreasonably polluted by other persons.

(g) The right of every owner of land to collect and dispose within his own limits of all water under the land which does not pass in defined channel and all water on its surface, which does not pass in a defined channel.

(h) The right of every owner of land that the water of every natural stream which passes by, through or over his land in a defined natural channel shall be allowed by other persons to flow within such owner’s limits without interruption and without material alteration in quantity, direction, force or temperature: the right of every owner of land abutting on a natural lake or pond into or out of which a natural stream flows that the water of such lake or pond be allowed by other persons to remain within such owner’s limits without material alteration in quantity or temperature.

(i) The right of every owner of upper land that water naturally rising in, or falling on, such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally thereto.

(j) The right of every owner of land abutting on a natural stream, lake or pond to use and consume its water for drinking, household purposes and watering his cattle and sheep; and the right of every such owner to use and consume the water for irrigating such land, and for the purposes of any manufactory situate thereon; provided that he does not thereby cause material injury to other like owners.

           Explanation,- A natural stream is a stream, whether permanent or intermittent, tidal or tideless, on the surface of land or underground, which flows by the operation of nature only and in a natural and known course.

CHAPTER II

THE IMPOSITION, ACQUISITION AND TRANSFER OF EASEMENTS

  1. Who may impose easements,- an easement may be imposed by anyone in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed.

 

Illustrations

(a) A is a tenant of B’s land under a lease for an unexpired term of twenty years, and has power to transfer his interest under the lease.  A may impose an easement on the land to continue during the time that the lease exists or for any shorter period.

(b) A is a tenant for his life of certain land with remainder to B absolutely.  A cannot, unless with B’s consent, impose an easement thereon which will continue after the determination of his life interest.

(c) A, B and C are co-owners of certain land. A cannot, without the consent of B and C, impose an easement on land or any part thereof.

(d) A and B are lessees of the same lessor. A of a field X for a term of five years and B of a field Y for a term of ten years.  A’s interest under his lease is transferable; B’s is not.  A may impose on X, in favour of B, a right of way terminable with A’s lease.

  1. Servient owners,- Subject to the provisions of section 8, a servient owner may impose on the servient heritage any easement that does not lessen the utility of the existing easement, But he cannot, without the consent of the dominant owner, impose an easement on the servient heritage which would lessen such utility.

Illustrations

(a) A has, in respect of his mill, a right to the uninterrupted flow thereto, from sunrise to noon, of the water of B’s stream.  B may grant to C the right to divert the water of the stream from noon to sunset; provided that A’s supply is not thereby diminished.

(b) A has, in respect of his house, a right of way of over B’s land.  B may grant to C, as the owner of a neighbouring farm, the right to feed his cattle on the grass growing on the way; provided that A’s right of way is not thereby obstructed.

  1. Lessor and mortgagor,- Subject to the provisions of section 8, a lessor may impose, on the property leased, any easement that does not derogate from the rights of the lessee as such, and a mortgagor may impose, on the property mortgaged, any easement that does not render the security insufficient.  But a lessor or mortgagor cannot, without the consent of the lessee or mortgagee, impose any other easement on such property, unless it be to take effect on the termination of the lease or the redemption of the mortgage.

           Explanation,- A security is insufficient within the meaning of this section unless the value of the mortgaged property by one-third, or, if consisting of buildings, exceeds by one half, the amount for the time being due on the mortgage.

  1. Lessee,- No lessee or other person having a derivative interest, may impose on the property held by him as such an easement to take effect after the expiration of his own interest, or in the derogation of the right of the lessor or the superior proprietor.
  1.   Who may acquire easements,- An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or, on his behalf, by any person in possession of the same.

One of two or more co-owners of immovable property may, as such, with or without the consent of the other or others, acquire an easement for the beneficial enjoyment of such property.

No lessee of immovable property can acquire, for the beneficial enjoyment of other immovable property of his own, an easement in or over the property comprised in his lease.

  1. Easement of necessity and quasi-easements,- Where one person transfers or bequeaths immovable property to another,-

(a) If an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or

(b) If such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer of bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement;

(c) If an easement, in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or

(d) If such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.

Where a partition is made of the joint property of several persons,-

(e) If an easement over the share of one of them is necessary for enjoying the share of the another of them, the latter shall be entitled to such easement; or

(f) If such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.

The easements mentioned in this section, clauses (a), (c) and (e), are called easements of necessity.

Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee.

Illustrations

(a) A sells B a field then used for agricultural purposes only.  It is inaccessible except by passing over A’s adjoining land or by trespassing on the land of a stranger.  B is entitled to a right of way, for agricultural purposes only, over A’s adjoining land to the field sold.

(b) A, the owner of two fields, sells one to B, and retains the other. The filed retained was, at the date of the sale, used for agricultural purposes only and is inaccessible except by passing over the field sold to B.   A is entitled to a right of way, for agricultural purposes only, over B’s field to the field retained.

(c) A sells B a house with windows overlooking A’s land, which A retains.  The light which passes over A’s land to the windows is necessary for enjoying the house as it was enjoyed when the sale took effect.  B is entitled to the light and A cannot afterwards obstruct it by building on his land.

(d) A sells B a house with windows overlooking A’s land.  The light passing over A’s land to the windows is necessary for enjoying the house as it was enjoyed when the sale took effect.  Afterwards A sells the land to C. Here C cannot obstruct the light by building on the land, for he takes it subject to the burdens to which it was subject in A’s lands.

(e) A is the owner of a house and adjoining land.  The house has windows overlooking the land. A simultaneously sells the house to B and the lands to C.  The light passing over the land is necessary for enjoying the house as it was enjoyed when the sale took effect.  Here A impliedly grants B a right to the light, and C takes the land subject to the restriction that he may not build so as to obstruct such light.

(f) A is the owner of a house and adjoining land.  The house has windows overlooking the land. A, retaining the house, sells the land to B, without expressly reserving any easement. The light passing over the land is necessary for enjoying the house as it was enjoyed when the sale took effect.  A is entitled to the light, and B cannot build on the land so as to obstruct such light.

(g) A, the owner of a house, sells B a factory built on adjoining land. B is entitled, as against A, to pollute the air, when necessary, with smoke and vapours from the factory.

(h) A, the owner of two adjoining houses, Y and Z, sells Y to B, and retains Z.  B is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Y as it was enjoyed when the sale took effect, and A is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Z as it was enjoyed when the sale took effect.

(i) A, the owner of two adjoining buildings, sells one to B retaining the other.  B is entitled to a right to lateral support from A’s building, and A is entitled to a right to lateral support from B’s building.

(j) A, the owner of two adjoining buildings, sells one to B and other to C.  C is entitled to lateral support from B’s building and B is entitled to lateral support from C’s building.

(k) A grants lands to B for the purpose of building a house thereon.  B is entitled to such amount of lateral and subjacent support from A’s land as is necessary for the safety of the house.

(l) Under the Land acquisition Act, 1870, a Railway Company compulsorily acquires a portion of B’s land for the purpose of making a siding.  The Company is entitled to such amount of lateral support from B’s adjoining land as is essential for the safety of the siding.

(m) Owing to the partition of joint property, A becomes the owner of an upper room in a building and B becomes the owner of the portion of the building immediately beneath it. A is entitled to such amount of vertical support from B’s portion as is essential for the safety of the upper room.

(n) A lets a house and grounds to B for a particular business.  B has no access to them other than by crossing A’s land.  B is entitled to a right of way over that land suitable to the business to be carried on by B in the house and grounds.

  1. Direction of way of necessity,- When a right to a way of necessity is created under Section 13, the transferor, the legal representative of the testator, or the owner of the share over which the right is exercised, as the case may be, is entitled to set out the way, but it must be reasonably convenient for the dominant owner.

When the person so entitled to set out the way refuses or neglects to do so the dominant owner may set it out.

  1. Acquisition by prescription,- Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years,

and where support from one person’s land, or things affixed thereto , has been peaceably received by another person’s land subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years,

and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years,

the right to such access and the use of light or air, support or other easement shall be absolute

Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.

Explanation I,- Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.

            Explanation II,- Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof  and of the person making or authorising the same to be made.

          Explanation III,- Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section.

Explanation IV,- In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage.

When the property over which a right is claimed under this section belongs to Government, this section shall be read as if, for the words “twenty years” the words “sixty years” were substituted.

Illustrations

(a) A suit is brought in 1883 for obstructing a right of way.  The defendant admits the obstruction, but denies the right of way.  The plaintiff proves that the right was peaceably  and openly enjoyed by him, claiming title thereto as an easement and as of right, without interruption, from 1st January, 1862 to 1st January 1882.  The plaintiff is entitled to easement.

(b) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years.  The defendant proves that for a year of that time the plaintiff was entitled to possession of the servient heritage as lessee thereof and enjoyed the right as such lessee.  The suit shall be dismissed, for the right of way has not been enjoyed as an easement for twenty years.

(c) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years.  The defendant proves that the plaintiff on one occasion during the twenty years had admitted that the user was not of right and asked his leave to enjoy the right.  The suit shall be dismissed, for the right of way has not been enjoyed “as of right” for twenty years.

  1. Exclusion in favour of reversioner of servient heritage,- Provided that, when any land upon, over or from which any easement has been enjoyed or derived has been held under or by virtue of any interest for life or any term of years exceeding three years from the granting thereof, the time of the enjoyment of such easement during the continuance of such interest or term shall be excluded in the computation of the said last mentioned period of twenty years in case the claim is, within three years next after the determination of such interest or term, resisted by the person entitled, on such determination, to the said land.

Illustration

A sues for a declaration that he is entitled to a right of way over B’s land. A proves that he has enjoyed the right for twenty five years, but B shows that during ten of these years C had a life-interest in the land, that on C’s death B became entitled to the land and within two years after C’s death he contested A’s claim to the right.  The suit must be dismissed, as A, with reference to the provisions of this section has only proved enjoyment for fifteen years.

  1. Rights which cannot be acquired by prescription,- Easements acquired under section 15 are said to be acquired by prescription, and are called prescriptive rights.

None of the following rights can be so acquired-

(a) a right which would tend to the total destruction of the subject of the right, or the property on which, if the acquisition were made, liability would be imposed;

(b) a right to the free passage of light or air to an open space of ground;

(c) a right to surface water not flowing in a stream and not permanently collected in a pool, tank or otherwise;

(d) a right to underground water not passing in a defined channel.

  1. Customary easements,- An easement may be acquired in virtue of a local custom.  Such easements are called customary easements.

Illustrations

(a) By the custom of certain village every cultivator of village land is entitled, as such, to graze his cattle on the common pasture.  A having become the tenant of a plot of uncultivated land in the village breaks up and cultivates that plot.  He thereby acquires an easement to graze his cattle in accordance with the custom.

(b) By the custom of a certain town an owner or occupier of a house can open a  new window therein so as substantially to invade his neighbour’s privacy. A builds a house in the town near B’s house.  A thereupon acquires an easement that B shall not open new windows in his house so as to command a view of the portions of A’s house which are ordinarily excluded from observation, and B acquires a like easement with respect to A’s house.

  1. Transfer of dominant heritage passes easement,- Where the dominant heritage is transferred or devolves, by act of parties or by operation of law, the transfer or devolution shall, unless a contrary intention appears, be deemed to pass the easement to the person in whose favour the transfer or devolution takes place.

Illustration

A has certain land to which a right of way is annexed.  A lets the land to B for twenty years. The right of way vests in B and his legal representative so long as the lease continues.

CHAPTER III

THE INCIDENTS OF EASEMENTS

  1. Rules Controlled by contract or title,- The rules contained in this Chapter are controlled by any contract between the dominant and servient owners relating to the servient heritage, and by the provisions of the instrument or decree, if any, by which the easement referred to was imposed.

Incidents of customary easements,- And when an incident of any customary easement is inconsistent with such rules, nothing in this Chapter shall effect such incident.

  1. Bar to use unconnected with enjoyment,- An easement must not be used for any purpose not connected with the enjoyment of the dominant heritage.

Illustrations

(a) A, as owner of a farm Y, has right of way over B’s land to Y.  Lying beyond Y, A has another farm Z, the beneficial enjoyment of which is not necessary for the beneficial enjoyment of Y.  He must not use the easement for the purpose of passing to and from z.

(b) A, an owner of a certain house has a right of way to and from it.  For the purpose of passing to and from the house, the right may be used, not only by A, but by the members of his family, his guests, lodgers, servants, workmen, visitors and customers: for this is a purpose connected with the enjoyment of the dominant heritage. So, if A lets the house, he may use the right of  way for the purpose of collecting the rent and seeing that the house is kept in repair.

  1. Exercise of easement – Confinement of exercise of easement,- The dominant owner must exercise his right in the mode which is least onerous to the servient owner; and when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined

Illustrations

(a) A has a right of way over B’s field.  A must enter the way at either end and not at any intermediate point.

(b) A has a right annexed to his house to cut thatching grass in B’s swamp.  A, when exercising his easement, must cut the grass so that the plants may not be destroyed.

  1. Right to alter mode of enjoyment,- Subject to the provisions of section 22, the dominant owner may, from time to time, alter the mode and place of enjoying the easement, provided that he does not thereby impose any additional burden on the servient heritage.

           Exception,-The dominant owner of a right of way cannot vary his line of passage at pleasure, even though he does not thereby impose any additional burden on the servient heritage.

Illustrations

(a) A, the owner of a saw-mill, has a right to flow of water sufficient to work the mill.  He may convert the saw-mill into a corn-mill, provided that it can be worked by the same amount of water.

(b) A has a right to discharge on A’s land the rain water from the eaves of A’s house. This does not entitle A to advance his eaves if, by so doing, he imposes a greater burden on B’s land.

(c) A as the owner of a paper-mill, acquires a right to pollute a stream by pouring in the refuse-liquor produced by making in the mill paper from rags.  He may pollute the stream by pouring in similar liquor produced by making in the mill paper by a new process from bamboos, provided that he does not substantially increase the amount, or injuriously change the nature of the pollution.

(d) A, a riparian owner, acquires as against the lower riparian owners, a prescriptive right to pollute a stream by throwing sawdust into it.  This does not entitle A to pollute the stream by discharging into it poisonous liquor.

 

  1.        Right to do acts to secure enjoyment,- The dominant owner is entitled, as against the servient owner, to do all acts necessary to secure the full enjoyment of the easement; but such acts must be done at such time and in such manner as, without detriment to the dominant owner, to cause the servient owner as little inconvenience as possible; and the dominant owner must repair, as far as practicable, the damage (if any) caused by the acts to the servient heritage.

Accessory rights,- Rights to do acts necessary to secure the full enjoyment of an easement are called accessory rights.

Illustrations

(a) A has an easement to lay pipes in B’s land to convey water to A’s cistern.  A may enter and dig the land in order to mend the pipes, but he must restore the surface to its original state.

(b) A has an easement of a drain through B’s land.  The sewer with which the drain communicates is altered.  A may enter upon B’s land and alter drain, to adopt it to the new sewer, provided that he does not thereby impose any additional burden on B’s land.

(c) A, as owner of a certain house, has a right of way over B’s land.  The way is out of the repair, or a tree is blown down and falls across it.  A may enter on B’s land, repair the way or remove the tree from it.

(d) A, as the owner of a certain field, has a right of way over B’s land.  B renders the way impassable.  A may deviate from the way and pass over the adjoining land of B, provided that the deviation is reasonable.

(e) A, as owner of a certain house, has a right of way over B’s field.  A may remove rocks to make the way.

(f) A has an easement of support from B’s wall.  The wall gives way.  A may enter upon B’s land and repair the wall.

(g) A has an easement to have his land flooded by means of a dam in B’s stream.  The dam is half swept away by an inundation.  A may enter upon B’s land and repair the dam.

  1. Liability for expenses necessary for preservation of easement,-The expenses incurred in constructing works, or making repairs, or doing any other act necessary for the use or preservation of an easement, must be defrayed by the dominant owner.
  1. Liability for damage from want of repair,- When an easement is enjoyed by means of an artificial work, the dominant owner is liable to make compensation for any damage to the servient heritage arising from the want of repair of such work.
  1. Servient owner not bound to do anything,- The servient owner is not bound to do anything for the benefit of the dominant heritage , and he is entitled, as against the dominant owner, to use the servient heritage in any way, consistent with the enjoyment of the easement, but he must not do any act tending to restrict the easement, or to render its exercise less convenient.

Illustrations

(a) A, as owner of a house, has a right to lead water and send sewage through B’s land.  B is not bound, as servient owner, to clear the watercourse or scour the sewer.

(b) A grants a right of way though his land to B, as owner of a field.  A may feed his cattle on grass growing on the way, provided that B’s right of way is not thereby obstructed; but he must not build a wall at the end of his land so as to prevent B from going beyond it, nor must he narrow the way so as to render the exercise of the right less easy than it was at the date of the grant.

(c) A, in respect of his house, is entitled to an easement of support from B’s wall.  B is not bound, as servient owner to keep the wall standing and in repair.  But he must not pull down or weaken the wall as to make it incapable of rendering the necessary support.

(d) A, in respect of his mill, is entitled to a watercourse through B’s land.  B must not drive stakes so as to obstruct the watercourse.

(e) A, in respect of his house, is entitled to a certain quality of light passing over B’s land.  B must not plant trees so as to obstruct the passage to A’s windows of that quantity of light.

  1. Extent of easements,- With respect to the extent of easements and the mode of their enjoyment, the following provisions shall take effect:

           Easements of necessity,- An easement of necessity is co-extensive with the necessity as it existed when the easement was imposed.

Other easements,- The extent of any other easement and the mode of its enjoyment must be fixed with reference to the probable intention of the parties, and the purpose for which the right was imposed or acquired.

In the absence of evidence as to such intention and purpose-

           (a) Right of way,- A right of way of any one kind does not include a right of way of any other kind;

(b) Right to light or air acquired by grant,- The extent of a right to the passage of light or air to  a certain window, door or other opening, imposed by a testamentary or non-testamentary instrument, is the quantity of light or air that entered the opening at the time the testator died or the non-testamentary instrument was made;

(c) Prescriptive right to light or air,- The extent of a prescriptive right to the passage of light or air to a certain window, door or other opening is that quantity of light or air which has been accustomed to enter that opening during the whole of the prescriptive period irrespectively of the purposes for which it has been used;

(d) Prescriptive right to pollute air and water,- The extent of a prescriptive right to pollute air or water is the extent of pollution at the commencement of the period of user on completion of which  the right arose; and

(e) Other prescriptive rights,- The extent of every other prescriptive right and the mode of its enjoyment must be determined by the accustomed user of the right.

  1. Increase of easement,- The dominant owner cannot, by merely altering or adding to the dominant heritage, substantially increase an easement.

Where an easement has been granted or bequeathed so that its extent shall be proportionate to the extent of the dominant heritage, if the dominant heritage is increased by alluvion, the easement is proportionately increased, and if the dominant heritage is diminished by diluvion, the easement is proportionately diminished:

Save as aforesaid, no easement is affected by any change in the extent of the dominant or the servient heritage.

Illustrations

(a) A, the owner of a mill has acquired a prescriptive right to divert to his mill part of the water of a stream.  A alters the machinery of his mill.  He cannot thereby increase his right to divert water.

(b) A has acquired an easement to pollute a stream by carrying on a manufacture on its banks by which a certain quantity of foul matter is discharged into it.  A extends his works and thereby increases the quantity discharged.  He is responsible to the lower riparian owners for injury done by such increase.

(c) A, as the owner of a farm, has a right to take for the purpose of manuring his farm, leaves which have fallen from the trees on B’s land.  A buys a field and unites it to his farm.  A is not thereby entitled to take leaves to manure this field.

  1. Partition of dominant heritage,- Where a dominant heritage is divided between two or more persons, the easement becomes annexed to each of the shares, but not so as to increase substantially the burden of the servient heritage:

Provided that such annexation is consistent with the terms of the instrument, decree or revenue proceeding (if any) under which the division was made, and in the case of prescriptive rights, with the user during the prescriptive period.

Illustrations

(a) A house to which a right of way by a particular path is annexed is divided into two parts, one of which is granted to A, the other to B.  Each is entitled, in respect of his part, to a right of way by the same path.

(b) A house to which is annexed the right of drawing water from a well to the extent of fifty buckets a day is divided into two distinct heritages, one of which is granted to A, the other to B.  A and B are each entitled, in respect of his heritage, to draw from the well fifty buckets a day; but the amount drawn by both must not exceed fifty buckets a day.

(c) A, having in respect of his house, an easement of light, divides the house into three distinct heritages.  Each of these continues to have the right to have its windows unobstructed.

  1. Obstruction in case of excessive user,- In the case of excessive user of an easement the servient owner may, without prejudice to any other remedies to which he may be entitled, obstruct the user, but only on the servient heritage:

Provided that such user cannot be obstructed when the obstruction would interfere with the lawful enjoyment of the easement.

Illustration

A, having a right to the free passage over B’s land of light to four windows, six feet by four, increases their size and number.  It is impossible to obstruct the passage of light to the new windows without also obstructing the passage of light to the ancient windows.  B cannot obstruct the excessive user.

CHAPTER IV

THE DISTURBANCE OF EASEMENT

  1. Right to enjoyment without disturbance,- The owner or occupier of the dominant heritage is entitled to enjoy the easement without disturbance by any other person.

Illustration

A, as the owner of a house, has a right of way over B’s land.  C unlawfully enters on B’s land and obstructs A in his right of way. A may sue C for compensation, not for the entry, but for the obstruction.

  1. Suit for disturbance of easement,- The owner of any interest in the dominant heritage, or the occupier of such heritage, may institute a suit for compensation for the disturbance of the easement or of any right accessory thereto:

Provided that the disturbance has actually caused substantial damage to the plaintiff.

          Explanation I.- The doing of any act likely to injure the plaintiff by affecting the evidence of the easement, or by materially diminishing the value of the dominant heritage, is substantial damage within the meaning of this section and section 34.

          Explanation II.- Where the easement disturbed is a right to the free passage of the light passing to the openings in a house, no damage is substantial within the meaning of this section, unless it falls within the first Explanation, or interferes materially with the physical comfort of the plaintiff, or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit.

            Explanation III.- Where the easement disturbed is a right to the free passage of air to the openings in a house, damage is substantial within the meaning of this section if it interferes materially with the physical comfort of the plaintiff, though it is not injurious to his health.

Illustrations

(a) A places a permanent obstruction in a path which B, as tenant of C’s house, has a right of way.  This is substantial damage to C, for it may affect the evidence of his reversionary right to the easement.

(b) A as owner of a house, has a right to walk along one side of B’s house.  B builds a verandah overhanging the way about ten feet from the ground, and  so as not to occasion any inconvenience to foot-passengers using the way.  This is not substantial damage to A.

  1. When cause of action arises for removal of support,- The removal of the means of support to which a dominant owner is entitled does not give rise to a right to recover compensation, unless and until substantial damage is actually sustained.
  1. Injunction to restrain disturbance,- Subject to the provisions of the Specific Relief Act, 1877, sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement,-

(a) If the easement is actually disturbed— when compensation for such disturbance might be recovered under this Chapter;

(b) If the disturbance is only threatened or intended— when the act threatened or intended must necessarily, if performed, disturb the easement.

  1. Abatement of obstruction of easement,- Notwithstanding the provisions of section 24, the dominant owner cannot himself abate a wrongful obstruction of an easement.

CHAPTER V

THE EXTINCTION, SUSPENSION AND REVIVAL OF EASEMENTS

  1. Extinction by dissolution of right of servient owner,- When, from a cause which preceded the imposition of an easement, the person by whom it was imposed ceases to have any right in the servient heritage, the easement is extinguished.

Exception.— Nothing in this section applies to an easement lawfully imposed by a mortgagor in accordance with section 10.

Illustration

(a) A transfers Sultanpur to B on condition that he does not marry C.  B imposes an easement on Sultanpur.  Then B marries C.  B’s interest in Sultanpur ends, and with it the easement is extinguished.

(b) A, in 1860, lets Sultanpur to B for thirty years from the date of the lease.  B in 1861, imposes an easement on the land in favour of C, who enjoys the easement peaceably and openly as an easement without interruption for twenty nine years.  B’s interest in Sultanpur then ends, and with it C’s easement.

(c) A and B, tenants of C, having permanent transferable interest in their respective holdings.  A imposes on his holding an easement to draw water from a tank for the purpose of irrigating B’s land. B enjoys the easement for twenty years.  Then A’s rent falls into arrear and his interest is sold.  B’s easement is extinguished.

(d) A mortgages Sultanpur to B, and lawfully imposes an easement on the land in favour of C in accordance with the provisions of section 10.  The land is sold to D in satisfaction of the mortgage-debt.  The easement is not thereby extinguished.

  1. Extinction by release,- An easement is extinguished when the dominant owner releases it, expressly or impliedly, to the servient owner.

Such release can be made only in the circumstances and to the extent in and to which the dominant owner can alienate the dominant heritage.

An easement may be released as to part only of the servient heritage.

          Explanation I.— An easement is impliedly released—

(a) where the dominant owner expressly authorizes an act of a permanent nature to be done on the servient heritage, the necessary consequence of which is to prevent his future enjoyment of the easement, and such act is done in pursuance of such authority;

(b) when any permanent alteration is made in the dominant heritage of such a nature as to show that the dominant owner intended to cease to enjoy the easement in future.

Explanation II.– Mere non-user of an easement is not an implied release within the meaning of this section.

Illustrations

(a) A, B and C are co-owners of a house to which an easement is annexed.  A without the consent of B and C, releases the easement.  The release is effectual only as against A and his legal representative.

(b) A grants B an easement over A’s land for the beneficial enjoyment of his house.  B assigns the house to C.  B then purports to release the easement.  The release is ineffectual.

(c) A, having the right to discharge his eaves-droppings into B’s yard, expressly authorises B to build over this yard to a height which will interfere with the discharge.  B builds accordingly.  A’s easement is extinguished to the extent of the interference.

(d) A, having an easement of light to a window, builds up that window with bricks and mortar so as to manifest an intention to abandon the easement permanently.  The easement is impliedly released.

(e) A, having a projecting roof by means of which he enjoys an easement to discharge eves-droppings on B’s land, permanently alters the roof so as to direct the rain water into a different channel and discharge it on C’s land.  The easement is impliedly released.

  1. Extinction by revocation,- An easement is extinguished when servient owner, in exercise of a power reserved in this behalf, revokes the easement.
  1. Extinction on expiration of limited period or happening of dissolving condition,- An easement is extinguished where it has been imposed for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires or the condition is fulfilled.
  1. Extinction on termination of necessity,- An easement of necessity is extinguished when the necessity comes to an end.

Illustration

A grants B a field inaccessible except by passing over A’s adjoining land.  B afterwards purchases a part of that land over which he can pass to his field.  The right of way over A’s land which B had acquired is extinguished.

  1. Extinction of useless easement,- An easement is extinguished when it becomes incapable of being at any time and under any circumstances beneficial to the dominant owner.
  1. Extinction by permanent change in dominant heritage,- Where, by any permanent change in the dominant heritage, the burden on the servient heritage is materially increased and cannot be reduced by the servient owner without interfering with the lawful enjoyment of the easement, the easement is extinguished, unless—

(a) It was intended for the beneficial enjoyment of the dominant heritage, to whatever extent the easement should be used; or

(b) the injury caused to the servient owner by the change is so slight that no reasonable person would complain of it; or

(c) the easement is an easement of necessity.

Nothing in this section shall be deemed to apply an easement entitling the dominant owner to support of the dominant heritage.

  1. Extinction on permanent alteration of servient heritage by superior force,- An easement is extinguished where the servient heritage is by superior force so permanently altered that the dominant owner can no longer enjoy such easement:

Provided that, where a way of necessity is destroyed by superior force, the dominant owner has a right to another way over the servient heritage, and the provisions of section 14 apply to such way.

Illustrations

(a) A grants to B as the owner of a certain house, a right to fish in a river running through A’s land.  The river changes its course permanently and runs through C’s land.  B’s easement is extinguished.

(b) Access to a path over which A has a right of way is permanently cut off by an earthquake. A’s right is extinguished.

  1. Extinction by destruction of either heritage,- An easement is extinguished when either the dominant or the servient heritage is completely destroyed.

Illustration

A has a right of way over a road running along the foot of a sea-cliff. The road is washed away by a permanent encroachment of the sea.  A‘s easement is extinguished.

  1. Extinction by unity of ownership,- An easement is extinguished when the same person becomes entitled to the absolute ownership of the whole of the dominant and servient heritage.

Illustrations

(a) A, as the owner of a house, has a right of way over B’s field.  A mortgages his house, and B mortgages his field to C. Then C forecloses both mortgages and becomes thereby absolute owner of both house and field, the right of way is extinguished.

(b) The dominant owner acquires only part of the servient heritage; the easement is not extinguished, except in the case illustrated in section 41.

(c) The servient owner acquires the dominant heritage in connection with a third person, the easement is not extinguished.

(d) The separate owners of two separate dominant heritages jointly acquire the heritage which is servient to the two separate heritages: the easements are not extinguished.

(e) The joint owners of the dominant heritage jointly acquire the servient heritage: the easement is extinguished.

(f) A single right of way exists over two servient heritages for the beneficial enjoyment of a single dominant heritage.  The dominant owner acquires only one of the servient heritages.  The easement is not extinguished.

(g) A has a right of way over B’s road.  B dedicates the road to the public.  A’s right of way is not extinguished.

  1. Extinction by non-enjoyment,- A continuous easement is extinguished when it totally ceases to be enjoyed as such for an unbroken period of twenty years.

A discontinuous easement is extinguished when, for a like period, it has not been enjoyed as such.

Such period shall be reckoned, in the case of a continuous easement from the day on which its enjoyment was obstructed by the servient owner, or rendered impossible by the dominant owner, and, in the case of a discontinuous easement, from the day on which it was last enjoyed by any person as dominant owner:

Provided that if, in the case of a discontinuous easement, the dominant owner, within such period, registers under the India Registration Act (III of 1877), a declaration of his intention to retain such easement, it shall not be extinguished until a period of twenty years has elapsed from the date of the registration.

Where an easement can be legally enjoyed only at a certain place, or at certain times, or between certain hours, or for a particular purpose, its enjoyment during the sand period at another place, or at other times or between other hours or for another purpose, does not prevent its extinction under this section.

The circumstance that, during the said period, no one was in possession of the servient heritage, or that the easement could not be enjoyed, or that a right accessory thereto was enjoyed, or that the dominant owner was not aware of its existence, or that he enjoyed it in ignorance of his right to do so, does not prevent its extinction under this section.

An easement is not extinguished under this section,-

(a) where the cessation is in pursuance of a contract between the dominant and servient owners;

(b) where the dominant heritage is held in co-ownership, and one of the co-owners enjoys the easement within the said period; or

(c) where the easement is necessary easement.

Where several heritages are respectively subject to rights of way for the benefit of a single heritage, and the ways are continuous, such rights shall, for the purposes of this section, be deemed to be a single easement.

Illustration

A has, as annexed to his house, rights of way from the high road thither over the heritages X and Z and the intervening heritage Y.  Before the twenty years expire, A exercises his rights of way over X.  His rights of way over Y and Z are not extinguished.

  1.          Extinction of accessory rights,- Where an easement is extinguished, the rights (if any) accessory thereto  are also extinguished.

Illustration

A has an easement to draw water from B’s well.  As accessory thereto he has, right of way over B’s land to and from the well.  The easement to draw water is extinguished under section 47.  The right of way is also extinguished.

  1. Suspension of easement,- An easement is suspended when the dominant owner becomes entitled to possession of the servient heritage for a limited interest therein, or when the servient owner becomes entitled to possession of dominant heritage for a limited interest therein.
  1. Servient owner not entitled to require continuance,- The servient owner has no right to require that an easement be continued; and, notwithstanding the provisions of section 26, he is not entitled to compensation for damage caused to the servient heritage in consequence of the extinguishment or suspension of the easement, if the dominant owner has given to the servient owner such notice as will enable him, without unreasonable expense, to protect the servient heritage from such damage.

            Compensation for damage caused by extinguishment or suspension,- Where such notice has not been given, the servient owner is entitled to compensation for damage caused to the servient heritage in consequence of such extinguishment or suspension.

Illustration

A, in exercise of an easement, diverts to his canal, the water of B’s stream.  The diversion continues for many years, and during that time the bed of the stream partly fills up.  A then abandons his easement, and restores the stream to its ancient course.  B’s land is consequently flooded. B sues A for compensation for the damage caused by the flooding.  It is proved that A gave B a month’s notice of his intention to abandon the easement, and that such notice was sufficient to enable B, without unreasonable expense, to have prevented the damage.  The suit must be dismissed.

  1. Revival of easements,- An easement extinguished under section 45 revives (a) when the destroyed heritage is before twenty years have expired, restored by the deposit of alluvion; (b) when the destroyed heritage is a servient building and before twenty years have expired such building is rebuilt upon the same site; and (c) when the destroyed heritage is a dominant building and before twenty years have expired such building is rebuilt upon the same site and in such a manner as not to impose greater burden on the servient heritage.

An easement extinguished under section 46 revives when the grant or bequest by which the unity of ownership was produced is set aside by the decree of a competent court.  A necessary easement extinguished under the same section revives when the unity of ownership ceases from any other cause,

A suspended easement revives if the cause of suspension is removed before the right is extinguished under section 47.

Illustration

A as the absolute owner of field Y, has a right of way thither over B’s field Z.  A, obtains from B a lease of Z for 20 years.  The easement is suspended so long as A remains lessee of Z.  But when A assigns the lease to C, or surrenders it to B the right of way revives.

CHAPTER VI

LICENCES

  1.   “Licence” defined,- Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.
  1. Who may grant licence,- A licence may be granted by any one in the circumstances and to the extent in and to which he may transfer his interests in  the property affected by the licence.
  1. Grant may be express or implied,- The grant of a licence may be express or implied from the conduct of the grantor, and an agreement which purports to create an easement, but is  ineffectual for that purpose, may operate to create a licence.
  2. Accessory licences annexed by law,- All licences necessary for the enjoyment of any interest, or the exercise of any right, are implied in the constitution of such interest or right. Such licences are called accessory licences.

Illustration

A sells the trees growing on his land to B.  B is entitled to go on the land and take away the trees.

  1. Licence when transferable,- Unless a different intention is expressed or necessarily implied, a licence to attend a place of public entertainment may be transferred by the licensee; but, save as aforesaid, a licence cannot be transferred by the licensee or exercised by his servants or agents.

Illustrations

(a) A grants B a right to walk over A’ field whenever he pleases.  The right is not annexed to any immovable property of B.  The right cannot be transferred.

(b) The Government grants B a licence to erect and use temporary grains-sheds on Government land. In the absence of express provision to the contrary, B’s servants may enter on the land for the purpose of erecting sheds, erect the same, deposit grain therein and remove grain therefrom.

  1. Grantor’s duty to disclose defects,- The grantor of a licence is bound to disclose to the licensee any defect in the property affected by the licence, likely to be dangerous to the person or property of the licensee, of which the grantor is, and the licensee is not aware.
  1. Grantor’s duty not to render property unsafe,- The grantor of a licence is bound not to do anything likely to render the property affected by the licence dangerous to the person or property of the licensee.
  1. Grantor’s transferee not bound by licence,- When the grantor of the licence transfers property affected thereby, the transferee is not as such bound by licence.
  1. Licence when revocable,- A licence may be revoked by the grantor, unless,–

(a) it is coupled with a transfer of property and such transfer is in force;

(b) the licensee, acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution.

           

           

  1. Revocation, express or implied,- The revocation of a licence may be express or implied.

Illustrations

(a) A, the owner of a field, grants a licence to B to use a path across it. A with intent to revoke the licence, locks a gate across the path.  The licence is revoked.

(b) A, the owner of a field grants a licence to B to stack hay on the field. A lets or sells the field to C.  The licence is revoked.

  1. Licence when deemed revoked,- A licence is deemed to be revoked,-

(a) when, from a cause preceding the grant of it, the grantor ceases to have any interest in the property affected by the licence;

(b) when the licensee releases it, expressly or impliedly, to the grantor or his representative;

(c) where it has been granted for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires, or the condition is fulfilled;

(d) where the property affected by the licence is destroyed or by superior force so permanently altered that the licensee can no longer exercise his right;

(e) where the licensee becomes entitled to the absolute ownership of the property affected by the licence;

(f) where the licence is granted for a specified purpose and the purpose is attained or abandoned, or becomes impracticable;

(g) where the licence is granted to the licensee as holding a particular office, employment or character, and such office, employment or character ceases to exist;

(h) where the licence totally ceases to be used as such for an unbroken period of twenty years, and such cessation is not in pursuance of a contract between the grantor and the licensee;

(i) in the case of an accessory licence, when the interest or right to which it is accessory ceases to exist.

  1. Licensee’s rights on revocation,- Where a licence is revoked, the licensee is entitled to a reasonable time to leave the property affected thereby and to remove any goods which has been allowed to place on such property.
  1. Licensee’s rights on eviction,- Where a licence has been granted for a consideration, and the licensee, without any fault of his own, is evicted by the grantor before he has fully enjoyed, under the licence, the right for which he contracted, he is entitled to recover compensation from the grantor.
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