1.i National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects

2. ii National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects Disclaimer 1. The material contained herein is for private circulation and reference purposes only. 2. The views expressed in the articles, write-ups, surveys, etc., contained in the background material are those of the concerned authors, individuals, organisations, agencies etc., and should not be construed as the views of the Institute of Chartered Accountants of India or any of its Committees or Boards. 3. The Institute of Chartered Accountants of India or any of its Boards or Committees does not undertake the responsibility for the accuracy or otherwise of any views expressed or facts included in the background material. 4. The Institute of Chartered Accountants of India or any of its Boards or Committees also does not accept any responsibility for the actions taken by the reader on the basis of the material contained in the background material. 5. The copyrights in respect of the material included in the background material rests with the respective authors, organisations, etc. 3. iii National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects I am pleased that Committee for Co-operatives & NPO Sectors of the Institute of Chartered Accountants of India (ICAI) is organising a National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects, I am glad that the same is being hosted by Western India Regional Council (WIRC) of ICAI. It is overwhelming to see progress achieved by the co-operative sector in its century long movement after experiencing many ups and downs. Over the years, Cooperatives have strived hard to build a better world by advancing sustainable development, social integration and decent work. Co- operatives empower their members and thereby strengthen communities. They promote food security and enhance opportunities for small agricultural producers. They are better tuned to local needs and better positioned to serve as engines of local growth. By pooling resources, they improve access to information, finance & technology and their underlying values of self-help, equality and solidarity. They work for overall improvement of their members & other stakeholders in challenging economic times. Committee for Co-operatives & NPO Sectors has been working towards strengthening Co-operatives & NPO sectors and simultaneously exploring the new professional opportunities for members. In its endeavours, the Committee has sent various representations to authorities such as CBDT, NABARD, and various State Governments. The Committee has also been taking initiatives to update the knowledge of the members through various publications and conducting of conferences, seminars, workshops, etc. This seminar is another step towards imparting knowledge in the field. CCONPO has launched a certificate course on Management, Taxation, Laws, Accounting and Auditing concerning Co-operative societies & NPOs for the benefit of our members. I believe that programmes like this could be a great learning experience for Chartered Accountants. By attending these programmes and hearing the learned subject experts, members can emerge with greater comprehension and knowledge accompanied with invaluable tips and information from practical wisdom and experience of expert concerned. I wish all the delegates a fruitful, professionally enriching experience from this National Conference. With best Regards CA. Subodh K. Agrawal President The Institute of Chartered Accountants of India Message 4. iv National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects Dear Participants, It is heartening to note that the Committee for Co-operatives and NPO Sector of the Institute is organising a National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects on 3rd & 4th August at Mumbai. By way of organising such programmes, the ICAI tries to be instrumental in enriching the professional base of its members. The Government along with other regulatory bodies takes all possible steps to regulate these sectors by enacting various laws and assuring their compliance by them. The Chartered Accountants can play a vital role in this area by ensuring the fulfilment of various regulatory provisions by these organisations. Definitely this leads to the need for our members to maintain and expand their knowledge base on these regulatory provisions. In todays busy schedule, taking out time to read and understand the new regulations or changes made in the existing ones sometimes becomes difficult. This Conference is aimed at not only towards disseminating the developments in the regulations in these sectors but also providing guidance to the members to explore more professional opportunities in other sectors also. Eminent speakers from professional fields have been invited to share their views with the audience which will be of great help in professional development not only to our Fellow Chartered Accountants but also for other stakeholders. I am impressed with the topics chosen for the workshop and the experts invited to share their wisdom amongst the delegates. I am sure that the deliberations in the workshop would be of high standard and provide an opportunity to the delegates to interact with the experts having experience and expertise in Co-operative and NPO Sector. I would like to congratulate CA. Anuj Goyal, Chairman, Committee for Co-operatives & NPO Sector, CA Tarun J. Ghia, Vice-Chairman, Committee for Co-operatives & NPO Sectors and other members of the Committee for organizing this National Conference which would surely help our members and other participants to be well equipped and take a lead. On this occasion, I extend warm greetings and felicitations to the participants and wish the programme all success. Date : July 24, 2013 Place: New Delhi CA. K. Raghu Vice-President, ICAI Message 5. v National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects Welcome to all the participants, On behalf of the Committee for Co-operatives and NPO Sector of the Institute, I take the pleasure of welcoming all the participants to the two days National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects at K.C Auditorium, Churchgate, Mumbai that is being hosted by Western India Regional Council of ICAI. With a comparatively new Committee for Co-operatives and NPO Sectors formed in 2011, we Chartered Accountants are now focusing on yet another sector of the Country. These two dynamic Sector provides an opportunities to the Chartered Accountants in the field of Internal Audit, Statutory Audit, Auditors on behalf of donors and funding agencies, reviewers of financial management systems, advisors on financial management systems, etc. NPOs are generally registered either as a society or a trust or a section 25 Company under the respective laws namely the Societies Act, Trust Act or the Companies Act, 1956. Depending upon the law under which it is registered, it has to get its accounts audited as required under the respective laws. I am sure that this Conference would enhance the understanding of the participants towards the importance of compliance and good governance in NPO and Co-operative Sector, professional opportunities for CAs in NPO Sector, redevelopments, fungible FSI, stamp duty registration aspects and many more. I would like to express my gratitude to CA. Subodh K. Agrawal, President, ICAI and CA. K. Raghu, Vice President, ICAI for giving this oppurtunity to the Committee for Co-operatives and NPO Sector for organising this National Conference. I wish to place on record my thanks to Justice V. M Kanade, Honble Justice, Bombay High Court, CA. Tarun J. Ghia, Vice-Chairman, CCONPO who has been instrumental in successful organisation of this Conference and my colleauges in Central Council for sparing their valuable time and making efforts for organising the Conference. I am confident that, this would be a great learning experience for the participants. Date : July 28, 2013 CA. Anuj Goyal Place : New Delhi Chairman Committee for Co-operatives and NPO Sectors, ICAI Message 6. vi National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects Dear Participants, I am immensely happy to welcome all the delegates to the National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects being organised by the Committee for Co-operatives & NPO Sectors of ICAI on 3rd and 4th August at Mumbai. The 2 day Convention aims to focus and offer a clear picture on various functional areas, issues which have grey areas and require discussion and debate. It is an open secret that many of our CA members are frequently engaged in drafting of various property and commercial documents. In this context, it is pertinent to mention that CAs have been inculcated with high degree of analytical and interpretational skills. Some of the CAs are equally proficient in usage of the language of English and have very effective communication skills. They are drafting documents which are not only excellent in language but are second to none in terms of consideration of relevant laws and addressing minute issues of facts and possible situations. Such functions by the CAs will also recognise their true capability and will enhance image of the profession at large. The events like this are in continuation of the position of the ICAI as the partners in Nation building. For Chartered Accountants, the importance of updation of knowledge is of quintessential importance. Continuing Professional Education is all about absorption, assimilation, comprehension and practical application of the knowledge acquired for the benefit of clients, employers and for the professionals themselves. It is my firm belief that by attending programme like this and hearing the erudite faculties, one can emerge with a greater comprehension and knowledge, often loaded with invaluable tips and insights that come out of practical wisdom and experience and which cannot be readily found in a conventional text book or reference manual. I thank CA. Subodh K. Agrawal, Honble President, ICAI and CA. K. Raghu, Honble Vice-President, ICAI for encouraging and guiding in organising this Conference. I also thank CA. Anuj Goyal, Chairman, Committee for Co-operatives & NPO Sectors for his wholehearted support and able guidance and involvement in organising the Conference and my colleagues in Central Council of ICAI for sparing time to join and add value to this Conference. I am extremely thankful to his highness Justice V. M. Kanade, Judge, Bombay High Court for inaugurating this Conference and sharing his rich experience and words of wisdom with us. I welcome all of you to this Conference with the hope that the Conference turn out to be quite a learning and memorable experience to all of you. Date : July 28, 2013 CA. Tarun J. Ghia Place : New Delhi. Vice-Chairman Committee for Co-operatives & NPO Sectors, ICAI. Message 7. vii National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects Programme Structure National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects organised by Institute of Chartered Accountants of India, Committee for Co-operatives & NPO Sectors, on August 3 & 4, 2013 at Mumbai DAY-1 (3rd August, 2013) ACTIVITY SCHEDULE ACTIVITY/TOPICS GUEST/SPEAKERS TIME BREAKFAST 8:30 am to 9:00 am Inaugural Session Shri Justice V.M. Kanade 9.00 am - 11.00 am Real Estate scenario in general and its impact on property redevelopments (to give complete picture of market scenario and expected impact on present as well as near future redevelopments) Shri D. L. Desai 11.00 am - 11.30 am Recent developments in co-operative laws (including 97th constitutional amendments, amendments in laws and procedural aspects, latest model bye-laws, appointment of auditors, etc.) Shri N. R. Nikam 11.30 am - 12.00 noon Redevelopments, joint developments, self developments : Legal and taxation issues (covering MOU, DA, Joint DA, Self development, Bank Guarantee, POA, freehold, leasehold, tenancy, MHADA properties, Taxation, TDS, Corpus Fund, Hardship compensation, rental compensation, TDR, fungible, role of PMC, tendering, invitation to offer) CA. Tarun Jamnadas Ghia 12.00 noon - 01.00 pm LUNCH 01.00 pm - 02.00 pm Structural Audits in co-op societies - requirements and compliances responding to notices u/s. 354 of the MMC Act Shri Satish Dhupelia 02.00 pm - 02.30 pm Laws governing co-operative societies, trusts, real estate transactions Dr. Sanjay Chaturvedi 02.30 pm - 03.15 pm TEA 03.15 pm - 03.45 pm Concept and Working of Fungible FSI (Calculation and measurement of Fungible FSI, Methodology of its application, premium payable, division between present owners and developer, changes in DCR in view of Fungible FSI) Shri Manoj Daisaria and Shri Sudhir Y. Ghate 03.45 pm - 04.30 pm Cell Towers an income avenue or a menace? (Analytical studies and views of both sides, Cell Towers radiation hazards, precautions, probable solutions, rights of members dissenting to cell towers, taxation of cell tower income, TDS compliances) Prof. Girish Kumar and Ms. Neha Kumar 04.30 pm - 05.00 pm 8. viii National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects ACTIVITY/TOPICS GUEST/SPEAKERS TIME Service tax aspects (w.r.t. redevelopments, ordinary maintenance of co-op. societies, repairs to properties, renting of properties, cell towers spaces, trusts, etc.) Shri Sushil Solanki and CA. A. R. Krishnan 05.00 pm - 06.00 pm DAY-2 (4th August, 2013) VAT issues (in re-developments, in repairing of properties) Adv. Kishor T. Lulla 09.30 am - 10.30 am Property transactions by trusts (Acquisition of properties, transfer of properties, development of properties, permission of Charity Commissioner, change reports, documentation, auditors responsibility, stamp duty on registration wrt trust properties) Adv. Aditya Prakash Rao 10.30 am - 11.00 am Stamp duty and registration aspects (w.r.t. society transactions, renting of properties, release deeds, family partition, gifts, exchange of properties, power of attorneys, company owned flats, stamp duty in repairs of properties, see schedule to stamp duty, wills, etc.) Shri Santosh Kumar 11.00 am - 11.30 am Redevelopments and Self Developments Financing Options Due Diligence and other critical issues CA. Dilip Pendse 11.30 am - 12.00 noon Right to Information w.r.t. governance of co-op. societies and charitable trusts and in the process of redevelopment (Legal and procedural aspects) Shri Shailesh Gandhi 12.00 noon - 12.30 pm Disputes, complaints, petitions, appeals before co- op registrars, co-op. court : laws and procedural aspects (Covering issues of jurisdictions, over lapping jurisdictions, co-operative disputes, redevelopment disputes) Imminent Faculty 12.30 pm - 01.00 pm Labour and welfare laws : Legal and Procedural Compliances (Concerning co-operative societies and trusts and associations) Shri M. B. Gajare 01.00 pm - 01.30 pm 9. ix National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects Contents Sr. No. Subject Page No. Technical Sessions 1. Redevelopments, joint developments, self developments : legal and taxation issues (covering MOU, DA, Joint DA, Self development, Bank Guarantee, POA, freehold, leasehold, tenancy, MHADA properties, Taxation, TDS, Corpus Fund, Hardship compensation, rental compensation, TDR, fungible, role of PMC, tendering, invitation to offer) CA. Tarun Jamnadas Ghia 2 2. Laws governing co-operative societies, trusts, real estate transactions Dr. Sanjay Chaturvedi 16 3. Concept and Working of Fungible FSI (Calculation and measurement of Fungible FSI, Methodology of its application, premium payable, division between present owners and developer, changes in DCR in view of Fungible FSI) Shri Manoj Daisaria and Shri Sudhir Y. Ghate 20 4. Cell Towers - an income avenue or a menace? (Analytical studies and views of both sides, Cell Towers radiation hazards, precautions, probable solutions, rights of members dissenting to cell towers, taxation of cell tower income, TDS compliances) Prof. Girish Kumar and Ms. Neha Kumar 47 5. Service tax aspects (w.r.t. re-developments, ordinary maintenance of co-op. societies, repairs to properties, renting of properties, cell towers spaces, trusts etc.) Shri Sushil Solanki and CA. A. R. Krishnan 73 6. VAT issues (in redevelopments, in repairing of properties) Adv. Kishor T. Lulla 86 7. Property transactions by trusts (Acquisition of properties, transfer of properties, development of properties, permission of Charity Commissioner, change reports, documentation, auditors responsibility, stamp duty on registration w.r.t trust properties) Adv. Aditya Prakash Rao 103 8. Stamp duty and registration aspects (w.r.t. society transactions, renting of properties, release deeds, family partition, gifts, exchange of properties, power of attorneys, company owned flats, stamp duty in repairs of properties, see schedule to stamp duty, wills, etc.) Shri Santosh Kumar 123 9. Right to Information w.r.t. governance of co-op. societies and charitable trusts and in the process of redevelopment (Legal and procedural aspects) Shri Shailesh Gandhi 126 10. Labour and welfare laws : Legal and Procedural Compliances (Concerning co-operative societies and trusts and associations) Shri M. B. Gajare 137 10. x National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects Sr. No. Subject Page No. 11. Redevelopments & Self Developments Legal and Tax Issues CA. Tarun Ghia 145 12. 97th Amendment - Gujarat High Court Judgment Order (1) 153 13. Multi State Co-operatives Bill, 2010 192 14. The Maharashtra Co-operative Societies (Amendment) Ordinance, 2013 221 15. Salient Features on 97th Amendment Act 261 16. The Multi State Co-operative Societies Bill, Summary 263 17. The Constitution 97th Amendment Act, 2011 264 11. 1 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects Shri D.L. Desai (Shankarbhai) has been elected as the Trustee of Builders Association of India (BAI) after having served as the Hon. Gen. Secretary, Hon. Gen. Treasurer, and Vice President of BAI. He was earlier the Chairman of Mumbai Centre during 1998-2000. Family circumstances compelled him to give up his studies after matriculation and he joined the family firm M/s. Desai Lallubhai & Co., doing business of trading in tiles, sanitaryware, cement and construction material. Later sometime in 1979, he started real estate business. He joined BAI in 1966 and is one of the founder members of BAI Mumbai Centre. He has the unique distinction of actively participating in all the All India Builders Convention held by the Centre in 1981, 1996, 2001 and 2003. The vexed problem of Sales Tax on Works Contract from 1986 to 1988 could be resolved during his tenure 1998-2000 as Chairman of Mumbai Centre. (Incidentally, he was heading the Centres Sub-Committee from 1988 onwards). It is due to his efforts that Indian Construction is now recognised as number one journal of the Construction Industry in India. He gave it a new look, refurbished it and started a series of new features in it. As a matter of fact, he charted a new path of giving service to the members through Bombay Construction and Indian Construction. Another area, which held his interest, was publishing series of books on topics affecting the industry. It is also worthwhile to mention here that, during his tenure, the financial strength of the Centre has leaped to greater heights. As an Editor, he has also published the following books for and on behalf of BAI Mumbai Centre: 1. Central Excise and the Construction Industry also covering Service Tax. 2. Civil Contractors Referencer Statutory requirements. 3. Select Labour Laws for Construction Industry A Profile. 4. Employees State Insurance Act, 1948 Its applicability to the Construction Industry An insight through judicial pronouncements. He is the recipient of Journalist of the year 2001 Award from Accommodation Times and Institute of Construction Management & Research, Navi Mumbai, presented him an Award for his contribution to journalism in construction related journals and publications. During his tenure, as the Mumbai Centres Chairman, he started a new experiment of the Centre taking up stalls in construction industry related exhibitions. This resulted in a better co-operation with other likeminded organisations. In addition, BAI could increase awareness amongst architects, consultants and contractors by taking part in such exhibitions. He is the recipient of Honorary Membership from Practicing Engineers Architects & Town Planners Association (India). 12. 2 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects Elected Central Council Member of the ICAI At the ICAI, Member of the Direct Tax Committee, Member of BOS, Member of Committee on Industry, Member of Public Finance Committee, Member of the Disciplinary Committee, Member of Committee on Banking, Insurance and Pension, Member of Professional Development Committee, Member of Committee on Economic, Commercial Laws and WTO, Member of Editorial Board, Member of Internal Audit Standards Board, Member of Committee on International Taxation. Vice Chairman of the Committee on Co operatives and NPO Sectors of the ICAI Vice Chairman of the Committee on Governmnet Accounting of the ICAI Member, Committee for Government Accounting, South Asian Federation of Accountants (SAFA) Brief details of professional contributions: Born and brought up in Saurashtra and completed schooling from Kamani Forward High School, Amreli, Saurashtra, Gujrat. B. Com. From H R College of Commerce & Econ., Mumbai. Practicing Chartered Accountant since 1984. Partner in M/s. TMG and Associates with core area of practice being consultancy, appellate and drafting/documentation works. Consultant to various redevelopment projects. Pleaded in person Writ Petitions at Bombay High Court and Brought directions for transparency in empanelment for and allotment of bank branch audits. Obtained directions of transparency and objectivity in empanelment for and allotment of co- operative audits at State level as well as Divisional level. Has initiated steps for transparency and objectivity in empanelment for and allotment of co- operative audits at State level as well as Divisional level in Gujrat State. As also in empanelments in concurrent audits in banks. As a speaker addressed Several times Commissioners of Income Tax on Taxation of shares and securities transactions and Tax issues in construction industry, redevelopments and immovable property transactions etc. Officers of Registrar of Companies, Sales Tax Officers and Assistant Commissioners of Sales Tax on topics of professional interests. The Institute of Valuers comprising Architects, engineers and other valuers on legal and tax aspects on redevelopments. ICAI All India conferences on accounting and tax aspects in entertainment industry, tax issues in construction industry and immovable property transactions. CA. Tarun Jamnadas Ghia 13. 3 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects Various seminars organized by WIRC. Public meetings on union budget proposals. Addressed more than 250 meetings of Chartered Accountants and others organized by WIRC, ICAI and others. As a writer contributed articles in Newspapers like Times of India (Property Section), DNA (Money Section), Janmabhoomi, Vyapar, Commodity World, Asian Age, and trade journals like Construction World, Bombay Construction and Indian Construction. Was interviewed live on CNBC Awaz News when MOFA was not revalidated for a short period after March 2005. Professional journals like the Chartered Accountant Journal, Income Tax Review, Bombay Chartered Accountants Journal, the Chartered Accountant Practice Journal, Taxmann, Sales Tax Review. Association with professional organisations: Co-opted member on the Representation Committee of the Institute of Chartered Accountants of India. Co-opted member on the Journal Committee of the Bombay Chartered Accountants Society. Co-opted in the Core Group of the Chamber of Tax Consultants. Was Member of WIRC and a Chairman of Members in Industry Committee of WIRC of ICAI. Was a member of the Managing Committee of Sales Tax Practioners Association of Maharashtra, Convener of Journal Committee and a Member of Committee for Protection of Tax Payers. Advisor to: Builders Association of India on direct tax matters and for their representations to the Government and other concerned authorities. Right to Information Act: Regular writer on RTI in newspapers and professional journals. Addressed meetings of professionals and successfully pleaded petitions at State and Central levels. Arbitration: Successfully pleaded arbitration proceedings at appellate levels in respect of share market transactions. Forensic Accounting: Member of the India Forensic Research Foundation. Well read on Construction laws, property laws, BMC laws, rent control laws, co-operative laws, stamp duty and registration laws, RTI law and is conversant with reading of building plans related approvals and their respective relevance and significance under the general laws and under direct and indirect tax laws. Lecturer: Formerly, lecturer in senior colleges affiliated to Mumbai University in the subjects of accountancy and Income tax. Was a visiting faculty for the subject of Income Tax in the intensive Coaching Classes conducted by ICAI for Inter C.A. students. Am a a visiting faculty for the subject of Income Tax in the intensive Coaching Classes conducted by the Bombay Chartered Accountants Society. Always available : To members in respect of any issue pertaining to the fraternity at large or even individual issues pertaining to the ICAI. 14. 4 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects CA. Tarun Jamnadas Ghia PART I : KEY ISSUES IN REDEVELOPMENT OF PROPERTIES Co-operative housing and premises societies having old and dilapidated structures contemplate redevelopment as the only viable alternative. In some cases even when the buildings are not old or dilapidated, they contemplate redevelopment to avail advantage of incentive schemes of higher Floor Space Index (FSI) including Transferable Developments Rights (TDR). Upon such contemplations, the first step is generally appointment of a project management consultant (PMC). The Notification of the Department of Co-operation in the context of redevelopments issued under the provisions of Section 79A of the Maharashtra Co-operative Societies Act, 1960 requires a co-operative society to appoint a project management consultant in the initial stage of the process of redevelopment. This requirement would also apply to a co-operative society undertaking self development or contract development. The spirit of the Notification inter alia is that the process of redevelopment should be carried out transparently, objectively and in accordance with and within the framework of applicable laws. Therefore, the process of inviting proposals should be such that, whether the developers are invited by tendering system or by invitation for expression of interest, all interested developers get an opportunity to submit their offers. Many a times it is observed that a developer is selected on the basis of highest offer. However, when it comes to drafting documents, differences arise about the details of the offer and the legal aspects to be incorporated in the documents. To avoid such scenario and to ensure that offers are not vague and are comparable, it is desirable that the tenders or the invitations are comprehensive and the legal aspects from the points of views of the society and the members are incorporated therein so that the commercial terms offered by the developers become really comparable. This will also lead to selection of the developer on objective criteria. It is desirable that the documents of redevelopment are drafted by the consultants of the society in an iron clad manner. People sometimes get attracted by good designs of the plans of the new buildings. However, they should realize that the new plans will materialize with the help of good documentation. In the interest of the society and its members, the redevelopment agreement, power of attorney, individual agreements and the bank guarantee should be as specific and elaborate as much possible leaving no vagueness for possible defalcation or disputes. The documentation process will not be complete in one stroke. The draft will be modified and remodified by the society and the developer to take care of their respective interests. The consultant of the society is required to ensure that the draft safeguards the interests of the society and its individual members and at the same time he should be able to accommodate the practical and reasonable requirements of the developer without prejudicing the interests of the society and its members. In such a scenario to maintain transparency in drafting, it is desirable and more convenient that the drafts get exchanged in the email track mode so that only the changes and the modifications are attended. Notification dated 24 10 2011 the Government of Maharashtra relaxed provisions of Development Control Regulations by granting option of additional floor space index of 0.33 by payment of premium. In this context, first aspect which needs clarity is that due to grant of such additional FSI aggregate of FSI 15. 5 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects has not increased. Thus if a co-operative housing society is presently entitled to aggregate FSI at 2 including TDR-FSI, then the same remains capped at 2 only and does not increase to 2.33. In such an example, the original land FSI remains at 1 and in respect of TDR- FSI of additional 1, there is now an option that either one may buy entire TDR FSI from the open market or alternately one may buy newly introduced 0.33 FSI from municipal corporation and buy only 0.67 from the open market. One will be inclined to buy 0.33 FSI from the municipality for the reason that the premium for such additional FSI payable to the municipal corporation is far lesser than the prevailing market price of TDR- FSI. In the cases of redevelopments, the society/flat owners/occupants/tenants may expect that such benefit would be passed on by the developers to them. As an offshoot of such additional FSI upto 0.33 available at a premium from the municipality, the need and consequently the demand for TDR FSI would reduce to that extent and correspondingly the market price of TDR-FSI has started coming down. The salient features of the additional FSI being offered in place of TDR FSI to the extent upto 0.33 so far as relevant to redevelopments of co-operative housing societies are summarised below: i. Additional 0.33 FSI is optional and non-transferable. It is to be granted as on application and to be used on the same plot. ii. The total maximum permissible FSI, with 1.33 FSI, Road FSI and TDR shall be restricted to 2.00. iii. As per concept of TDR, additional FSI shall be permissible on gross plot area. iv. Additional FSI available as per Regulation 33, shall be related to basic FSI of 1.00 only. v. In Mumbai Suburban District, construction upto 1.00 additional FSI is permissible through use of TDR. 0.33 FSI being optional and part of overall ceiling of use of 1.00 TDR, any disclosure made for use of TDR / FSI, while making agreements with purchasers under MOFA Act, shall be held valid for use of 0.33 FSI. vi. No vertical extension of existing building by utilizing 0.33 FSI shall be permitted with erection of columns in the required marginal open space. vii. The relaxation of premium i.e.10% of normal premium shall be charged while condoning deficiencies in open spaces ( as applicable for use of slum TDR). Many a times, societies first enter into Memorandum of Understanding with the interested developer and development agreement is relegated to a subsequent stage. As far as entering into MOU is concerned, the recourse to MOU should be taken only when it is very much necessary and in general, entering into MOU should be avoided because MOU is generally drafted on broad terms and is many times dependent on happening or non-happening of a particular contingency. Thereafter, development agreement is drafted. Development agreement is drafted elaborately including even the minute and procedural aspects. The problems would arise if in such detailed draft, differences arise on some aspects between the society and the developer. In the ongoing competition amongst the developers to procure the re-development project, they are also ready and willing to take over the responsibility of obtaining conveyance and such other documents and that too within the specified time period. While drafting such MOU, the basic principle would apply that substance of the document and not the nomenclature of the document would decide its true nature and therefore the substance of the terms of MOU should be such that it does not create a development contract. The substance would also decide income tax implications. The society needs to be quite cautious as on substance even MOU may become an enforceable contract. The society should provide for expiry of the MOU at the end of an agreed period. That the society must get conveyance is not a new law. Law has always been the same since 1963 onwards that the housing entity is entitled to conveyance of the land underneath and appurtenant to the building(s) within the prescribed time period. However, as pre amended law was not effective at the implementation stage, therefore, amended provisions provide easy procedure for deemed conveyance 16. 6 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects and the time limits have been cast upon the competent authority to decide the application for deemed conveyance. Law will have to settle in a manner that once a society or other kind of housing organization has been formed, then simply because a few agreements have not been stamped or registered cannot disentitle the housing organization from the benefit of deemed conveyance. This is for the reason that provisions continue that a housing entity can be formed under an application by only 60% is of the flats. Once the housing entity is formed, under the pre amended provisions also, there are numerous decisions of civil courts and consumer courts wherein while directing the promoters to convey property in favour of a housing entity, the courts have not, and very rightly so, looked into the aspect as to whether all the flat purchase documents were subjected to stamp duty payment and registration requirements. The provisions have been amended to be more beneficial in nature to provide for expeditions formation of society and deemed conveyance against the failure by promoters to do so within prescribed time period. Therefore, the amended provisions cannot deny the benefit which was available in the pre amended provisions as the amendments have been brought to make the law more beneficial to the flat purchasers. By the competent authority as well as by some other quarters a view is propagated that for obtaining deemed conveyance certificate, documents like building plans, commencement certificate, occupation certificate, completion certificate, property cards, would be required to be furnished by the society. Such a view appears to be beyond logic and not supported by the provisions of the law. Rules cannot travel beyond the specific provisions of the law. The matter of income tax on development agreements by transferable development rights has reached to the Bombay High Court. If the High Court rules that such development agreement is not taxable, no cause of concern arises. But in a possible adverse decision that such transaction per se is a taxable transaction, then the question would arise in whose hands the same is taxable. If the society is the taxable entity, tax burden would run into lacs or crores of rupees whereas the tax benefits available to individual assesses can reduce the tax liability to nil or negligible level and keep the society and its members safe. Here it may be noted that in the case of Aurovilla Co-operative Housing Society, argued by this writer, Income Tax Tribunal held that the society is not taxable entity in such a transaction. From legal as well as tax points of view, concept that the beneficial and de facto and therefore true ownership of the property are with the members and not the society is more appropriate view. Redevelopment transaction needs to be structured and documented accordingly. Such concept would recognize and protect individual property rights of the members in a better way and would make the document more tax friendly. Many legal, tax and stamp duty issues need to be discussed in the context of redevelopments so that the professional colleagues play meaningful roles in this field and particularly in the matters in which they are concerned either as stakeholders or as consultants. New concept of fungible FSI has been introduced very recently and is likely to have much impact on the entitlements of the flat owners and tenants even in cases where development agreements have been executed. Many societies in suburban areas are either contemplating or are in the process of redevelopments of their properties. The recent amendments in the Development Control Regulations would affect all such societies. The benefit of new fungible FSI is maximum being 35% for residential buildings. For the commercial and industrial buildings the same is quite moderate being only 20%. The Development Control Regulations have been recently amended under which inter alia for a residential building additional fungible FSI has been created to the extent of 35% including in respect of amenity areas including dry balconies, porches, flower beds, pocket terraces etc. Such additional compensatory FSI has been freezed at 35% of the normal FSI including TDR-FSI implying that if the aggregate FSI including TDR FSI is at 2 in respect of a plot of land, now in the proposed new residential building, such additional FSI can be available to the extent of .70. Such FSI of .70 has been named fungible FSI 17. 7 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects which for all practicle purposes mean indirect increase in the FSI. Such FSI, except as available and to be utilized upon the existing rehab portion, is to be purchased by payment of premium calculated as a percentage of the ready reckoner rates. However, to protect the interests of the existing owners and occupiers so as to avoid the transfer of fungible FSI in respect of existing building to the free sale portion by the developers, it has also been further clarified that the fungible FSI in respect of rehab portion would not be transferable to the free sale area of the developer. The Municipal Commissioner was quite aware about the uses and misuses of the flexible amenity areas being created by the developers. In very few cases, hitherto the members of the societies were given the benefit of amenity area exceeding 25%, although much more was created as amenity area. To ensure that the benefits of redevelopment go to the members and tenants and is not unscrupulously transferred to sale portions of the developers, the Municipal Commissioner has categorically provided that firstly the fungible FSI emerging in respect of the rehab portion is to be used for rehab portion only and secondly that the same would have to be utilized proportionately for the members and tenants with reference to their existing premises. This has been done to ensure that the more influential members and tenants are not able to corner the same in higher proportions for their premises to the disadvantage of less influential ones. More importantly, the fungible FSI need not be distinguished from the normal FSI as far as design of the premises is concerned with the result that overnight the possible enhanced area would increase by 35%. This 35% may be used for creating dry balcony, niche, flowerbeds and alternatively may be used to create one more room. In most cases, a person having the choice now to have 35% for flower beds, dry balcony etc. or to have one more room, is likely to decide that instead of new flat comprising one bed room hall kitchen and flower bed, dry balcony, niche areas he would prefer to have outright a new flat comprising two bed room hall kitchen. Amended D. C. Rules will have overall positive effect as it would remove disparity between developers who were capable to manage higher usable FSI vis a vis those who were not either capable or were not willing to . Amended D. C. Rules will have more benefits for the members of the societies and the tenants. Upright professionals with sound legal technical knowledge and strong leanings towards the benefits and safety of the members and tenants only can enable them to reap the benefits created for them. Prevalent practice in respect of redevelopment of immoveable properties is that after obtaining Intimation of Disapproval (IOD) from the municipal authorities, the developer gives a notice to the occupants in the existing premises for the reasons inter alia that the terms of IOD require that only after the demolition of the existing premises/structures, the developer would be entitled to apply for and obtain Commencement Certificate(CC). This practice is fallacious in law as well as in logic. This practice is disadvantageous and risky to the developers as well as to the flat owners/tenants/occupants. However, once enlightened, the members of the society should be firm to get the same implemented. IOD is issued under the provisions contained in the Mumbai Municipal Corporation Act, 1888. Thereafter, the Maharashtra Regional Town Planning Act, 1966 got enacted. Section 2(7) of the MRTP Act contains definition of the term development. According to this definition, the term development includes inter alia demolition of any existing building, structure or erection or part of such building, structure or erection. Provisions of section 43, 44 and 45 of the said MRTP Act require that no development can commence without obtaining CC. Combined reading of the provisions of the MRTP Act would mean that demolition is also a development or is a part of the development process, and development process cannot commence without a CC from the concerned authority. Legally speaking, IOD contains various conditions, fulfillment whereof only leads to obtainance of CC implying that if any of the conditions of the IOD are not fulfilled, CC may not be granted. In such a view of the matter, imagine the situation, wherein, the existing building has been demolished on the basis of IOD and because of non-fulfillment of the conditions like aviation clearance, environmental 18. 8 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects clearance, permission by tree authority or any of them not materializing. In such a situation, the project would get halted and the dwellers may become homeless. Early vacating of the existing premises is not advantageous even for a developer because, amongst other things, the developer has to start paying rental compensation from the date of vacating the premises. The above risk factors to the occupants and disadvantage to the developer are the result of non implementation of the correct position of the relevant law. Even if the developer is ready and willing to go for demolition of the building on the basis of the IOD, the members of the society can point out the correct law and dissent to such premature demolition. The law has been consistently and logically interpreted by the Supreme Court that if there are two statutes operating upon the subject matter and the provisions are contradictory then in that case, the provisions, to the extent they are contradictory, of the later statute will prevail. It is therefore very much necessary that the existing building is not allowed to be demolished before a Commencement Certificate is obtained or in any case all other compliances necessary to obtain Commencement Certificate are met. PART II. ROLE OF PROJECT MANAGEMENT CONSULTANT IN REDEVELOPMENT OF A PROPERTY IN A CO-OPERATIVE SOCIETY : Model of Redevelopment Services by a Project Management Consultant As a co-operative housing or premises society initiates process of redevelopment of its property, the first legal requirement it needs to fulfill in terms of relevant circular the department of co-operation is appointment of a project management consultant (pmc). Appointment of pmc lays down foundation of entire redevelopment as successful completion of redevelopment largely depends upon ability, integrity, uprightness and transparent and reasoned approach of pmc. PMC should be knowledgeable on all legal and construction aspects of the redevelopment and should be aware of the redevelopment business so that he applies his knowledge and imagination to various stages of redevelopment in a manner that the society gets the best of the terms without compromising at all with safety aspects. Although nature and quantum of redevelopment services to be provided by a pmc would differ from case to case but a generalized model list is presented below as prepared on the basis of experience of pgv project management consultants. A society may select all or any of the services depending upon facts of its case and after interaction with the pmc. 1. Preparation of the feasibility report in respect of the subject property. 2. Taking steps for conveyance in favour of the society. 3. Invite and receive offers from interested developers and present the same before the managing committee with recommendation about selection. The recommendation report to be speaking and reasoned one. 4. Draft of tender document or offer form in consultation with the society. Such draft should also be given to interested members of the society who may like to invite the developers in their respective contacts. News paper advertisement, if considered necessary should be drafted in consultation with the managing committee. PMC to analyse the tenders analysed and to apprise managing committee about such analysis. Interested developers may seek clarifications from pmc. 5. To each intending developer submitting the tender or offer form, pmc should issue an acknowledgement receipt. 19. 9 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 6. Best of the financial terms including corpus fund, larger area flats for each member, hardship compensation, rental compensation at prevailing market rate with due increment in case of rental market going up, best of amenities, strict legal terms in documentation, flexibility on the part of the developer to meet peculiar needs of society and its members should be some of the prominent criteria for selection of the developer. 7. Managing committee should tentatively select developer on consideration of recommendation by pmc and general body meeting should take final decision on selection of developer. 8. Offers should be submitted by all the developers in standard tender or offer format to allow comparision. 9. PMC should draft Letter of Intent/Appointment on consideration of legal implications thereof. 10. PMC should co-ordinate with the office of registrar of co-operative societies in respect of redevelopment process and should draft correspondence, papers and documents to be submitted to the office of the registrar in connection with redevelopment process. 11. Drafting of redevelopment documents as per society instructions and in consideration of applicable laws including MOFA, 1963, MCS Act, 1960, Transfer of Property Act, 1882 and other property laws, laws and regulations concerning developments and constructions, bye laws of the society. 12. Drafting documents on consideration of income tax, VAT, service tax laws. 13. Drafting/amending bank guarantee. 14. Drafting power of attorney. 15. Drafting individual agreement for each member. 16. Vetting TDR documentation from legal and taxes point of view. 17. Provision of services of the architect, engineer, chartered accountant, advocate in the matters connected with the process of redevelopment. 18. As may be needed, attending meetings of members to explain and/or to interact with members. 19. Filing of income tax returns of the society for the years during which redevelopment project continues. 20. Manner of disclosure of benefits of redevelopment in individual income tax returns of the members in the relevant years, at the request of the member. 21. Drafting correspondence on behalf of the society with architect, municipal authorities and others in relation to redevelopment project. 22. Drafting various circulars and letters and resolutions for the society in relation to matters connected with redevelopment project. 23. Drafting documents should be in absolutely transparent manner. 24. PMC services should primarily be in the nature of consultation and suggestions. Drafting of documents should also done after thorough discussion of the issues at stake and after considering views of the society and after explaining pmcs views. Ultimate decisions should be left upon the society. PMC should help society in decisions making process but should not insist that the decisions must be taken only in the manner it wants. Redevelopment is a subject wherein lot of misconceptions lie; wherein lot of public concern lies. Drafting of iron clad documents is the single most important aspect in any redevelopment and the pmc should be 20. 10 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects able to assure that as far as redevelopment documentation is concerned, any member can compare the same with that of any other society and the member will himself be able to satisfy that documentation is the safest and takes care of every interest of the individual member as well as the interests of the society as well as takes care of the safety of the committee members. Drafting of tender form or offer form should be such that only the developers with merits and commitment would come forward as the drafting would clearly convey message that draftsman knows construction laws, property laws, stamp duty, registration laws, revenue laws, regulatory provisions and more importantly the draftsman knows the possible wrongs in the redevelopment projects and the necessary plugs to prevent such possible wrongs. Before accepting assignment, pmc should understand expectations of society and should explain the exact role that the pmc would perform in a particular project. PMC appointment should be under proper documentation. Nothing speaks better than actual work. PART III. DEEMED CONVEYANCE IN FAVOUR OF A CO-OPERATIVE HOUSING SOCIETY OR OTHER HOUSING ENTITY: 1. MOFA, the regulatory territorial law in the State of Maharashtra : Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer Act, 1963 (in this article referred to as the Act) popularly known as MOFA was enacted initially for a temporary period of five years to regulate the promotion of construction, sale, management and transfer of flats in the State of Maharasthtra. The duration of the Act was extended, from time to time till 31st March, 2005. Thereafter, probably inadvertently, the Act was not extended for some time. It was realized that the acute shortage of housing in several areas of the State of Maharashtra, especially in metropolitan cities like Mumbai, Pune, Nagpur, etc., was increasing day by day due to continuous flow of population from rural areas to urban areas and in order to prevent the mal-practices it was expedient to have this Act as perpetuity. Therefore, an Ordiance was promulgated extending the Act perpetually with a retrospective effect from 1st April, 2005. 2. Time bound provisions for formation of housing entity and execution of conveyance : Provisions contained in the Act since its enactment in 1963 did require a promoter including a builder, developer, a cooperative housing society constructing flats for sale to take steps to form a housing entity i.e. either a co-operative society, company or apartment ownership association, by submitting application for formation of a co-operative society or a company or taking steps for constitution of apartment ownership association, as the case may be, within 4 months from the date on which 60% of the total number of the flats are sold. The original Act also provided for mandatory conveyance of the subject land and building in favour of the housing entity either within the agreed time period, and in the absence of any agreed time period, within 4 months from the date of registration of cooperative society or a company or constitution of the association of apartment owners, as the case may be. 3. MOFA in its original form did not have required teeth : However, the Act did not have required teeth and as a consequence hardly any promoter must have formed housing entity within the prescribed time period and in majority of the cases conveyances have not been executed by the promoters for years. Although, it is possible to form a housing entity of the flat purchasers without co-operation of the promoter but legal remedies available for enforcing conveyance at the civil court for specific performance or at consumer court for deficiency in service and/or at criminal court for violation of MOFA have been time consuming and the problems are more compounded in the cases wherein landlord has expired and the legal heirs are scattered. 21. 11 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 4. Implementation of MOFA has not been effective so far : The very objective of MOFA since its enactment is to effectively prevent abuses and malpractices due to acute shortage of housing in the several areas of the State. Government has realized that the implementation of the Act has not been effective enough particularly with reference to some of its provisions with the result that the objective behind enactment of the Act has not been fully achieved. Therefore, in the year 2005 Government initiated steps in an effort to remedy the situation. 5. Amendments carried out to MOFA and Rules : It is in this background that effort of the Government in the form of amendments carried out by the Amendment Act 2005 passed in the year 2008 and followed by amendment in rules as notified on 27 09 2010 is to be appreciation. The amendments carried out by the Amendment Act 2005 and the MOFA Rules include provisions for formation of a co-operative society within the prescribed time period and more importantly provision for execution of conveyance in favour of the housing entity to be formed of flat purchasers within the prescribed time period. 6. Amendments to the Act and Rules strengthen provisions for formation of housing entity and for mandatory conveyance : Amendments carried out to the Act and the Rules do strengthen provisions for formation of a co-operative society, in case the promoter fails to do so within the prescribed time period. Predominantly, the Act has been amended to strengthen the provision of execution of convenience in favour of the housing entity within the prescribed time period by providing for issuance of unilateral deemed conveyance in favour of the housing entity. 7. Flat agreements must be duly stamped and registered : For registration of a co-operative society, the flat purchasers should elect a chief promoter at their meeting. For enforcing formation of a co-operative society and for enforcing unilateral deemed conveyance under amended MOFA and amended rules, it is necessary that agreements between the promoter and the flat purchasers are duly stamped and registered as required under the provisions of under Bombay Stamp Act 1958 and Registration Act 1908 respectively. 8. Competent Authority : Task of implementation of amended provisions concerning mandatory formation of cooperative society and granting unilateral deemed conveyance has been entrusted to a Competent Authority being an officer not below that rank of District Deputy Registrar of Co-operative Societies to be appointed by the State Government. 9. Provisions for mandatory formation of a co-operative society : It is provided that if the promoter fails within the prescribed time period to submit an application to the Registrar for registration of society in the manner provided in the Maharashtra Co-operative Societies Act, 1960, the Competent Authority may, upon receiving an application, in the prescribed form, affixed with court fee stamps of Rs. 1,000/-, from the persons who have taken flats from the promoter, after verifying authenticity of the applicants request and after giving the concerned promoter a reasonable opportunity of being heard, direct the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar concerned, to register the society. Such application may be presented either by the Chief Promoter or an authorised agent accompanying an authority letter duly signed by the applicant and accepted by the authorised representative. An authorised agent may be an advocate or any other person. 22. 12 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 10. Provisions for unilateral deemed conveyance : 10.1.Submission of Application : If the promoter fails to execute conveyance in favour of the housing entity, within the prescribed period, the members of such housing entity may make an application in prescribed form affixed with court fee stamps of Rs. 2,000/- to the concerned Competent Authority accompanied by the true copies of the registered agreements for sale, executed with the promoter by each of the individual members of the housing entity who have purchased flats and all other relevant documents (including the occupation certificate, if any ), for issuance of unilateral deemed conveyance in its favour and to have it registered. Such application may be presented either by the housing entity or its authorised agent accompanying an authority letter duly signed by the applicant and accepted by the authorised representative. An authorised agent may be an advocate or any other person. 10.2.Scrutiny and admission of application : On receipt of an application, office of the Competent Authority shall endorse date of receipt thereupon and shall as soon as possible, examine it and satisfy itself that the person presenting it has authority to do so and that it conforms with all the provisions of the Act and the Rules made thereunder. If the Competent Authority is satisfied that the application is complete in all respect, it shall cause the application to be registered, as admitted, in the appropriate register to be maintained in the prescribed form. However, if the application is not complete, the Competent Authority may send a notice in the prescribed form to the applicant/s to rectify the defects or comply with such requirements, as it may deem fit to conform with all the provisions of the Act, and the Rules, within a period of fifteen days of the receipt of such notice, which for sufficient cause may be extended for a further period of not more than 15 days. If the stated defect in an application is rectified, the Competent Authority shall cause it to be admitted and register the application in the appropriate register to be maintained in prescribed form. 10.3.Written statement by the Opponent: On admitting the application, the Competent Authority shall, within a period of fifteen days thereof, issue a notice in prescribed form to the opponent/s requiring him/them to file the written statement on the day, date and place as may be specified therein. Such notice shall be served on the opponents by registered post acknowledgment due or under certificate of posting on the last known address. On the date fixed as aforesaid, the opponent shall appear either in person or through his advocate or his authorized representative before the Competent Authority and shall file a written statement. 10.4.Hearing of application : The Competent Authority shall issue necessary notice to all the parties regarding the date fixed for hearing the application and publish or display the date fixed for the hearing thereof on its office notice board sufficiently in advance. On the date of hearing, if the applicant appears and the opponent or any of the opponents, does not or do not appear, as the case may be, the Competent Authority shall decide the application ex-parte. However, if before deciding the application, the Opponent appears and shows a sufficient cause for his non-appearance on the earlier occasion(s), he shall be heard in the matter as if he had appeared before the Competent Authority on the earlier day. 23. 13 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects If on the date fixed for hearing or on any other day to which the hearing may be adjourned, the applicant does not appear either in person or by his authorised representative, when application is called for hearing, the Competent Authority may dismiss the application. If, on the date fixed for hearing or any other day to which the hearing may be adjourned, the Opponent/s does/do not appear either in person or through his/their authorised representative, when the application is called for hearing, the Competent Authority may decide the same on merits after hearing the applicant or his authorised representative, if present. 10.5.Production and inspection of documents: The parties shall file the documents referred to in the pleadings at the time of filing application and written statement, as the case may be. If either party satisfies the Competent Authority that any document is relevant and the same is in the custody of the opposite party, the Competent Authority may, by an order in writing, direct such party to produce such document on the next date of hearing. If the party so ordered, fails to produce such documents on the next date of hearing, the Competent Authority may draw adverse inference against such party and hearing of the original application shall not be postponed till filing of such documents or for the reasons of such non compliance of the order. If the Competent Authority is satisfied that the documents required to be produced, cannot be brought before the Competent Authority for sufficient reasons like its volume or otherwise, the Competent Authority may allow the opposite part to take inspection of the documents within seven days from the date of order of such inspection. If the Competent Authority is satisfied that the opponent had no access to the documents earlier and the filing of additional statement is necessary, it may allow the filing of such additional statement. 10.6.Procedure for hearing the application: On receipt of the statement of the opponent, the applicant shall prove contents of the application and also deal with the contention of defences. The opponent likewise may file reply in support of the defence on the next date, if he so desires. No cross-examination of any of the parties shall be permitted. On receipt of the replies, the Competent Authority shall proceed to hear oral arguments of the parties and after hearing, shall close the proceedings for the order. 10.7.Decision on application within 6 months : The Competent Authority shall, within reasonable time and in any case not later than six months from the date of receipt of the application, after making such enquiry as may be deemed necessary it and after verifying the authenticity of the documents submitted by the parties and after hearing them and giving the parties sufficient opportunities as required under the Act and the principles of natural justice, pass such appropriate order as it deems fit, as provided under the Act. 10.8.Issuance of unilateral deemed conveyance by the Competent Authority : On being satisfied that it is a fit case for issuing such certificate, the Competent Authority shall issue a certificate to the Sub-Registrar or any other appropriate Registration Officer under the Registrar or any other appropriate Registration Officer under the Registration Act, 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. 24. 14 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 10.9.Registration of unilateral deemed conveyance : Along with the unilateral instrument of conveyance, the Sub-Registrar or the concerned appropriate registration Officer shall, notwithstanding anything contained in the Registration Act, 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 applicant(s) a reasonable opportunity of being heard, may, on being satisfied that it was fit case for unilateral conveyance, register that instrument as deemed conveyance.. PART IV : ISSUES IN DEEMED CONVEYANCE Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer Act,1963 (in this article referred to as the Act ) popularly known as MOFA regulating promotion of construction, sale, management and transfer of flats in the State of Maharashtra did have onerous provisions inter alia for formation of a housing entity and execution of conveyance in a time bound frame. However, the Act did not have required teeth. Provisions of deemed conveyance have recently become operative. However, law and the procedure are yet to be digested. Here is an attempt to address some of the issues involved. First of all the provisions of deemed conveyance can be activated only when the promoter (including builder/developer ) has failed to execute conveyance within the prescribed time period. MOFA continues to provide that only when no time period for conveyance has been agreed upon between the flat purchasers and the promoter then the prescribed time period of four months from the date of formation of the housing entity i.e. a co-operative society, an association of apartment owners or a limited company. In all likelihood, the promoter will mention a longer time period for conveyance in new agreements thereby making the deemed conveyance provisions inoperative during such agreed time period. Buyers have little or no choice but to sign the flat purchase agreements with the promoters on dotted the lines. Although, the law continues to provide an option to form a society, an association or a company and duty has been cast upon promoter to form such housing entity within four months from the date of sale of minimum 60% of the flats, amended provisions provide expeditious process for formation only society type of entity. Formation of a company would not require a promoters involvement. Vaguely worded amended provisions providing that if a promoter fails to form a society within prescribed time period, then the Competent Authority may, upon receiving an application from the persons who have taken flats from the promoter, direct the concerned co-operative registrar to register a society, cannot mean that the amended provisions require that all the flat purchasers must apply for registration of society as only 60% or above would suffice. This is because the Circular requiring that minimum 60% of flat purchasers can file application for registration of society continues to be operative. Amended provisions are only for facilitating expeditious registration of a society on default by promoter. If a view is taken that all the flat purchasers would have to apply for registration of a society then the very provisions enabling expeditious registration of a society would get defeated as there may be a flat purchaser being a relative of the promoter or a flat purchaser interested in acting for the benefit of the developer for some reasons who may decline to join in formation of the society. In the matter of registration of society, Court has, even in the pre-amended provisions, taken a logical and upright view that a builder/developer has no locus standi to oppose such registration as his rights to sell his flats do not in any manner get prejudiced by society registration. The most important issue arises with regard to requirement of stamping and registration of individual flat agreements. Amended provisions require that application for deemed conveyance will be accompanied by the true copies 25. 15 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects of the registered agreements for sale, executed with the promoter by each individual member of the housing entity. Such wordings have led to a view that the purchase agreements in respect of all the flats have to be stamped and registered. Such a view appears to be incorrect for reasons including that provisions enabling formation of a society under an application by only 60% of the flats continue; amended provisions are beneficial intending for expeditious formation of society; wordings of the amended provisions refer to the members and not to flat purchasers. What will happen in a case when all the agreements including, chain of agreements in cases of resales of flats, are either not fully stamped or not registered Pre-amended provisions enabled societies to get conveyance without reference to stamp duty payment and registration aspects of the individual flat purchase agreements. Even if some of the flat purchase documents are not stamped, the government does not lose revenue, because government in any case collects stamp duty on present market value of the entire property minus stamp duty paid on flat purchase agreements with the promoter. Further, the government can always enforce payment of stamp duty on unstamped or deficiently stamped documents. The society can recover the loss due to defective documents of members billing the members. If non-payment of stamp duty by a few flat purchasers results into non conveyance, it would mean an advantage to delinquent promoter. Once a housing entity has been legally formed, conveyance should be an automatic process as otherwise requirement of stamp duty and registration by all the flat purchasers would tantamount loop holes against the spirit of the amended beneficial provisions. Under the pre-amended provisions we have court decisions directing promoters to convey property in favour of a housing entity without going into details, and very rightly and logically so, as to whether stamp duty and registration requirements were complied with in respect of all flat transactions or not. Under the law, if some flat agreements with promoter are unstamped or unregistered, the promoter is more responsible if he has collected more than 20% of the price of the flat. A view is being propagated that for obtaining deemed conveyance certificate, documents like building plans, commencement certificate, occupation certificate, completion certificate, property cards, would be required to be furnished by the society. Such a view seems grossly misplaced as such requirements would be directly in contradiction to letter and spirit of amended provisions relating to deemed conveyance which even otherwise have not specified such requirements. Providing such documents are the duty and obligations of the promoter unless he has given the same to the housing entity. It seems, such additional requirements are propagated so that non availability of such documents can lead to unreasonable demands. Competent Authority would only issue a certificate to Registration Authority that it is a fit case for granting unilateral deemed conveyance in favour of the housing entity. Thereafter, the Registration Authority would serve summons to promoter to show cause as to why unilateral instrument of conveyance should not be registered as deemed conveyance. Apprehensions are being expressed as to what kind of hearing will once again take place. It is submitted that the Registration Authority cannot in any case review the decision already taken by the Competent Authority that it is a fit case to grant unilateral deemed conveyance. Powers of Registering Authority will have to be confined to as provided in the Registration Act,1908 in respect of verification of documents and identity of persons appearing before it. No time limit has been specified within which Registration Authority would have to act but in the absence of substantial powers and duties on its part, unreasonable delay may not be possible. 26. 16 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects Dr. Sanjay Chaturvedi a Commerce Graduate from University of Mumbai and was conferred PhD degree in Real Estate Finance from University of Mumbai. He has presented many papers in National and International conferences and published. He authored eight books on various aspects of Real Estate and allied subject. He is visiting faculty at Department of Commerce, University of Mumbai, NMIMS University and other reputed institutions. At present he is Executive Editor of Accommodation Times and Maharashra Co- operative Housing Society Times. He is also Director at Accommodation Times Institute of Real Estate Management and Research Foundation. In the past he had freelanced for Reuters and other international news agencies 27. 17 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects Laws governing co- operative societies, trusts, real estate transactions Dr. Sanjay Chaturvedi 28. 18 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 29. 19 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 30. 20 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects NAME : Shri. Manoj V. Daisaria ADDRESS : 801, Skyline Epitome, Kirol Road, Nr.Jolly Gymkhana, Vidyavihar (West), Mumbai 400 086. DATE OF BIRTH : 29th November, 1959 QUALIFICATION : H.S.C. K.J.Somaiya College, Mumbai. GD ARCH. 1982 From Rachna, Sansad Academy of Architecture, Mumbai. B. ARCH. 1982 From Academy of Architecture, Mumbai. EXPERIENCE : - Joined Fathers Firm in 1982 - Handled Project From Major, Developers in and around Mumbai, Goa, Ahmedabad - At present involved in development of I.T. Parks, Multiplexes, Malls Corporate Offices, Residential Town Ship, Slum Redevelopment etc. - Also involved in Charitable works like Hospitals, Schools, Cemetery etc PROFESSIONAL EXPERIENCE AND ACHIEVEMENT Our firm is appointed as Project Management Consultant in Category A by Maharashtra Housing Area Development Authority. Shri. Manoj Daisaria was appointed as a special invitee for District Planning Committee appointed by Government of Maharashtra in the year 2000. Shri ManojDaisaria was President of PEATA (INDIA) (Practicing Engineers Architect & Town Planners Association) (2007 2009) 31. 21 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects FACTS FIGURES FORMULAE COMPILED BY:- MANOJ DAISARIA 32. 22 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects DCR 35(4) Compensatory FSI (Floor Space Index): Percentage Premium Residential 35% 60% Industrial 20% 80% Commercial 20% 100% DCR 33(7), 33(9), 33(10) This FSI admissible for Rehab. component - without charging premium. DCR 33(5) & Re-development in suburbs (1.0 + TDR) Fungible fsi on consumed fsi of existing structure - without charging premium. This fungible FSI for rehab. component to be used for over and above eligible area for existing tenants and not for sale components. Applicability :- 1) Not applicable if I.O.D. is issued but building is not completed and apply at the option of owner. New rules can be availed. 2) If I.O.D. is issued for layouts / sub-divisions This rule to be applicable to balance plot potential. 3) The fungible FSI is useable as regular FSI. 4) Not permissible in C.R.Z 33. 23 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects RESIDENTIAL BUILDING COMMERCIAL BUILDING 33(7) REDEVELOPMENT OF CESSED BUILDINGS IN ISLAND CITY REDEVELOPMENT IN SUBURBS IMPACT ON:- PROVISIONS PRIOR TO AND AFTER MODIFIED D.C. REGULATION OPEN SPACES 34. 24 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects RESIDENTIAL BUILDING FREE OF FSI AREA AS PER EARLIER REGULATION. RESIDENTIAL BUILDING FREE OF FSI AREA AS PER PRESENT POLICY 35. 25 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects COMMERCIAL BUILDING FREE OF FSI AREA AS PER EARLIER REGULATION. 36. 26 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects COMMERCIAL BUILDING FREE OF FSI AREA AS PER PRESENT POLICY 37. 27 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 33(7) REDEVELOPMENT ON CESSED BUILDING ON ISLAND CITY FREE OF FSI AREA AS PER EARLIER REGULATION. 33(7) REDEVELOPMENT ON CESSED BUILDING ON ISLAND CITY FREE OF FSI AREA AS PER PRESENT POLICY 38. 28 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects REDEVELOPMENT IN SUBURBS FREE OF FSI AREA AS PER EARLIER REGULATION REDEVELOPMENT IN SUBURBS FREE OF FSI AREA AS PER PRESENT POLICY 39. 29 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects THANK YOU 40. 30 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects B. E. CIVIL Distinction passed in the year 1976 Retired as Chief Engineer Devlopment Plan Of Municipal Corporation Of Greater Mumbai He is well conversant with Development Control Regulations Of Greater Mumbai n worked in M C G M for 35 years Shri S. Y. GHATE 41. 31 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 42. 32 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 43. 33 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 44. 34 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 45. 35 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 46. 36 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 47. 37 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 48. 38 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 49. 39 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 50. 40 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 51. 41 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 52. 42 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 53. 43 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 54. 44 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 55. 45 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 56. 46 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 57. 47 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects Dr. Girish Kumar received Ph.D. degree in Electrical Engineering from IIT Kanpur in 1983. From 1983 to 1985, he was a Research Associate in the Electrical Engineering Department, Univ. of Manitoba, Winnipeg, Canada. From 1985 to 1991, he was an Assistant Professor in the Electrical Engineering Department, Univ. of North Dakota, Grand Forks, USA. Since 1991, he is at IIT Bombay, where he is currently a Professor in the Electrical Engineering Department. His areas of interest are: Microstrip Antennas and Arrays, Broadband Antennas, Microwave Integrated Circuits and systems. He has written more than 200 papers in the international and national journals and conference proceedings. He is an author of the book entitled Broadband Microstrip Antennas published by Artech House, USA in 2003. He has been working on hazards of microwave radiation for the last one decade. He has written several reports and given presentations at various forums on the topic related to Cell Phone and Tower Radiation Hazards and Solutions. He is also chairman of the company Wilcom Technologies Pvt. Ltd., which is an IIT Bombay incubated company. Wilcom has developed more than 100 products, such as, mobile phone jammers, signal enhancers, radiation shield, antennas, power dividers, couplers, filters, amplifiers, etc. 58. 48 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects Cell Towers - an income avenue or a menace ? Dr. Girish Kumar 59. 49 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 60. 50 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 61. 51 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 62. 52 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 63. 53 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 64. 54 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 65. 55 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 66. 56 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects Ms. Neha Kumar completed her B.Tech. in Industrial Biotechnology from Anna University, Chennai in May 2009. Immediately after graduation, she joined as Director of Wilcom Technologies Pvt. Ltd., which is an IIT Bombay incubated company. She specializes in the study of biological effects of electromagnetic radiation emitted from devices such as, cell phones, cell towers, TV and FM towers, Wi-Fi, etc. on the health of humans, birds, animals and the environment. She has studied several 100s of journal publications and websites on this subject and has interacted with several experts, researchers, doctors and patients around the world who have been affected with prolonged exposure to mobile tower/phone radiation. Her report Biological effects of Electromagnetic Radiation co-authored with Prof. Girish Kumar, IIT Bombay has received great appreciation and several media articles have appeared based on the same. She has presented papers at international conferences and written articles for newspaper and college magazines. She has also given talks at KEM Hospital, Mumbai, Xavier Institute of Engineering, Rotary Clubs, Environmental Hazards Protection Forum - Penang, Malaysia and several other places. She is involved with radiation measurements from cell tower antennas at several residential areas and offices, and has found a strong correlation between high radiation levels and health effects like headaches, fatigue, memory problems, joint pains, miscarriages and even cancer. Recently she started her own company NESA (stands for Non- Ionizing Electromagnetic Radiation Shielding Alternatives), which carries out radiation measurement and has cell tower radiation measurement products as well as several radiation shielding products like Radiation Shield, Window Shielding Films, Curtains, Wall Papers etc. Ms. Neha Kumar 67. 57 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects Cell Towers Radiation Hazards and Solutions Neha Kumar 68. 58 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 69. 59 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 70. 60 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 71. 61 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 72. 62 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 73. 63 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 74. 64 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 75. 65 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 76. 66 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 77. 67 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 78. 68 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 79. 69 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 80. 70 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects 81. 71 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects Dr. K S Parthasarathy is formerly Secretary, Atomic Energy Regulatory Board (AERB) and formerly Raja Ramanna Fellow, Department of Atomic Energy. A Ph.D in medical physics from the University of Leeds, UK, he was a consultant to the International Atomic Energy Agency (IAEA) Vienna. He was a Research Associate in the University of Virginia Medical Centre, Charlottesville, USA. He has assisted AERB in developing radiation protection policies on radiation installations, equipment and practices. He is a free lance science journalist registered with the EurekAlert news agency of the American Association for the Advancement of Science, the British Medical Association, the American Medical Association and the NucNet, The Communications Network for Nuclear Energy and Ionizing Radiation Dr. K S Parthasarathy 82. 72 National Conference on Co-operative Societies, Trusts, Redevelopment of Properties, Legal and Taxation Aspects Do Not Fear The Tower Shri K.S. Parthasarathy Possible risks from cell tower/phone radiation have been a topic of discussion in the media. With breathtaking progress in mobile phone technology, there has been unbridled increase in the use of mobile phones nationwide. Cell towers have sprung up everywhere. The agents selling protective accessories have attributed all types of diseases and symptoms to these towers and encouraged the public to believe in them. Cell tower radiation has a million times less energy than that of x-rays or gamma rays. It cannot damage the cells in the body to change some of them into rogue cells, which multiply uncontrollably to cause cancer. It may just warm up the tissue. Since all the studies on this subject have been conducted for a period of less than 20 years, we may still have to go a longer way before we get definitive proof. But the results obtained thus far are reassuring. After a c