March 2009
FSI-TDR : FSI/TDR is benefit arising from the land, consequently must be held as immovable property : Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963.
By Dr. K. Shivaram, Ajay R. Singh, Advocates
New Page 1
27 FSI-TDR : FSI/TDR is benefit arising from
the land, consequently must be held as immovable property : Flats (Regulation of
the Promotion of Construction, Sale, Management and Transfer) Act, 1963.
The agreement under consideration is an agreement for
entrusting the work of development to a party with added rights to sell the
constructed portion to flat purchasers, who would be forming a Co-operative
Housing Society to which society, the owner of the land, is obliged to convey
the constructed portion as also the land beneath construction on account of
statutory requirements.
The Court observed that an immovable property under the
General Clauses Act, 1897 u/s.3(26) has been defined as under :
” (26). ‘immovable property’ shall include land, benefits
to arise out of land, and things attached to the earth, or permanently
fastened to anything attached to the earth.” If, therefore, any benefit arises
out of the land, then it is immovable property. Considering S. 10 of the
Specific Relief Act, such a benefit can be specifically enforced unless the
respondents establish that compensation in money would be an adequate relief.
Can FSI/TDR be said to be a benefit arising from the land ?
In Sikandar & Ors. v. Bahadur & Ors., XXVII Indian Law Reporter, 462, a
Division Bench of the Allahabad High Court held that right to collect market
dues upon a given piece of land is a benefit arising out of land within the
meaning of S. 3 of the Indian Registration Act, 1877. A lease, therefore, of
such right for a period of more than one year must be made by registered
instrument. A Division Bench of the Oudh High Court in Ram Jiawan and Anr. v.
Hanuman Prasad and Ors., AIR 1940 Oudh 409 also held that bazar dues
constitute a benefit arising out of the land and therefore a lease of bazar dues
is a lease of immovable property. A similar view has
been taken by another Division Bench of the Allahabad High Court in Smt.
Dropadi Devi v. Ram Das and Ors., AIR 1974 Allahabad 473 on a consideration
of S. 3(26) of General Clauses Act. From these judgments what appears is that a
benefit arising from the land is immovable property. FSI/TDR being a benefit
arising from the land, consequently must be held to be immovable property and an
agreement for use of TDR consequently can be specifically enforced, unless it is
established that compensation in money would be an adequate relief.
[Chheda Housing Development Corpn., a Partnership firm
v. Bibijan Shaikh Farid & Ors., 2007 (3) MHLJ 402 (Bom.).]
