LAYOUT LOCK AND UNLOCK PRICES

Advocate S Selvakumar | Advocate at Koramangala | Advocate at HSR

Bangalore is strategically located; whereas the growth of Mumbai and Chennai are limited by sea cost, coastal zone regulations, Bangalore has no such problems limiting its expansion, since land is available in plenty. Inspite of availability of land in plenty, the property rates are increasing due to several factors. The rates, which started falling during 1997, are moving upwards from 2001. Though this phenomenon is being attributed to the RealEstate Cycle, the occurrence appears to be too frequent in Bangalore to be generalised as being due to the Real Estate Cycle. Real estate agents are exploiting this boom in real estate prices, by quoting highly inflated value of the property at the first enquiry and only persons with good market knowledge can negotiate and settle the property transaction for a reasonable rate. Many times, two adjacent and similar properties are sold for different rates with the difference unjustifiably uneven. The sellers quote the rates based on their liabilities, requirements, the Real estate agents play a dubious role to pocket fat commissions.

                                                        TABLE -1

“Real Estate Reporter” data

Increase in Land Rates:

Sl. No.	Location	2001	2002	Growth in Percen- tage	2003	Growth in Percen- Tage	2004	Growth in Percen- tage
		Rate per Sft in Rs.	Rate per Sft in Rs.		Rate per Sft in Rs.		Rate per Sft in Rs.
01.	Banashankari	1125	1075	- 4.4	1175	+ 9.30	1400	+ 19.14
02.	Bannerghatta Road	____		____	775	+ 19.23	900	+ 16.13
03.	HSR Layout	------	775	------	1250	+ 61.30	1700	+ 36
04.	J.P. Nagar	1150	1175	+ 2.17	1200	+ 2.12	1625	+ 35.41
05.	Koramangala	1350	1800	+ 33.33	1900	+ 5.56	2400	+ 26.31
06.	Malleswaram	1600	1600	------	1600	------	2100	+ 31.25
07.	M.G. Road	3500	4250	+ 21.42	4250	------	4500	+ 5.88
08.	Yeshwanthpur	------	800	------	825	+ 3.12	1300	+ 57.57
09.	Rajajinagar	975	1300	+ 33.33	1375	+ 5.76	1550	+ 12.72
10.	Vijaynagar	1000	1075	+ 7.50	1300	+ 20.93	1700	+ 30.76

The chart above shows the rate growth in certain selected areas of Bangalore from 2001 to 2004. It may be observed HSR Layout has recorded a growth of 61.30% during 2003, the highest among selected centres. Koramangala has registered a growth of 33.33% during 2001-2002, Yeshwanthapura, hitherto neglected area has an impressive growth of 57.57% during the year 2004, in contrast to a growth of 3.12% during 2003.

The growth in old areas like Malleswaram and Rajajinagar is not so abnormal as the development is almost saturated, any growth in construction/ development of land is because of demolition of old structures and due to demolishing of residential premises, which are then replaced by commercial buildings. Most of the residents in these areas are moving to peripheral areas and once a peaceful residential area these areas are gradually becoming highly polluted and crowded.

The most frequently explained reason for growth is inflation. Income Tax Act has cost inflection index to account for inflation, with 1980 as a base with 100 points, which goes on increasing based on inflation. The inflation aided for the years 2001-02, 2002-03, 2003-04 and 2004-05 are as provided hereunder (see Table-2).

One may observe that the increase in the rates have not much relevance to the inflation. Though inflation has a part to play in increase of property rates, there are various other factors, which propel the rise of property price in Bangalore. The universally accepted supply-demand position plays an important role, which is again influenced by the local factors.

TABLE-2

Cost inflection index

Year	Points	Percentage of growth
2001-02	426
2002-03	447	4.93%
2003-04	463	3.58%
2004-05	480	3.67%

Acquisition of Land by Government:

The Government of Karnataka acquires land in peripheral areas of Bangalore supposedly for a social cause like providing sites to the needy person, and also for development. But more often than not the various agencies of government acquire more land than required. The proposed projects Arkavathy Layout and Bangalore-Mysore infrastructure corridor are classical examples of the recurring mistakes committed by the Government. There seems, to be no proper assessment of requirements of the citizens for whom the said land is being acquired/distributed and some influential persons/land sharks operate in acquisitions. Such excess lands are retained by the government and allotted to persons who have a say in the government. As such land gets locked causing paucity, curtailing the free supply.

Failure of BDA to complete the projects:

BDA though is super active in land acquisition, and allotment, it is however lethargic in developing the said layouts. The Anjanapura layout, Visveswaraiah layouts are underdeveloped and may take years to have proper infrastructure in order for people to construct houses and reside there. The allotment in Arkavathy layout is yet to be completed. Thus due to the inability of the BDA to complete any project undertaken by it within its own estimated time inflation is fuelled. Further it is faulty compensatory packages for acquisition of property, which forces the land owners to resort to litigation. This is especially true in Arkravathy layout where the compensation package is not even close to the real market price at which the land in the same area is being privately traded. Thus whereas the compensation package in some other areas were atleast 80 % of the real market value in most parts of Akravathy layout the said land is being acquired for less than 20 % of its market value and it is this unrealistic valuation which has caused the landowners to fight the acquisition tooth and nail.  There are well-developed pockets in the said Arkavathy layout, which BDA proposes to bulldoze. This is a strange logic, when the purpose of acquisition is to allot sites to construct houses; the demolition of constructed houses belies any logic. The residents of many developed layouts claim that they have constructed houses much before notification and BDA has not done proper survey. This leads to B.D.A.’s acquisition plans facing legal hurdles because in most cases the residents go to the court and obtain a stay of the proposed acquisition by the BDA and at present the High Court of Karnataka is looking into the matter and hence the BDA has not been able to achieve any break through in allotting the sites in the notified areas notified for acquisition. Many such under developed layouts in and around the city fuel the price rise, as the land gets locked up for some years and people seldom purchase sites in underdeveloped layouts.

Stamp duty and Registration charges:

Stamp duty in Karnataka is very high and the Government of the day increases the duty payable ever so often and coupled with the regular increase in prescribe guidance value for registration of transfer of immovable properties. Though the rates are marginally reduced; the apartments are at the receiving end. The Government of Karnataka has fixed the stamp duty for flats for first sale at par with other properties and has removed the duty on slab basis thus an apartment valued ten lakhs attracts a stamp duty of Rs.80,000/- where as it was Rs.42,000 earlier.

Assume that an immovable property is transferred three times. Actual value of the immovable property is Rupees ten lakhs. The stamp duty and registration charges are 10%.

(a)          Cost to the 1^st transferee inclusive of stamp duty and registration

       charges Rs. 10,00,000+10% = Rs. 11,00,000.

(b)   The first transferee does not want to loose anything but transfers the

       property at acquisition rate, without any profit Rs. 11,00,000 + 10%= 12,10,000/- (cost to the IInd Transferee)

(c)   The 2 ^nd transferee also sells the property at acquisition cost without

      any lose or gain Rs.12,10,000+10% = Rs.13,31,000/- (cost to the

      III Transferee)

The stamp duty on any property includes the cost of land and that of structure thereon. There is provision in the Stamp Act for depreciation on old buildings, however the registering authorities do not allow for depreciation on old building and generally levy stamp duty as is applicable to a new building. Further the purchasers of the old building do not avail of the said provisions due to the practical difficulties faced since the entire system for fixing market value is not transparent and the procedure for fixing and appraisal of the property is a cumbersome and time consuming process which discourages the genuine purchasers. Thus frequent transfers of property leads to increase in price due to addition of the cost of Stamp duty and registration charges to the cost of the property, though the actual property rate remains constant during the said period.

Guidance value:

The Department of Registration and Stamps prescribe guidance value for registration of transfer of immovable properties. These rates are revised every year.  These are minimum values on which stamp duty and registration charges are payable. Even if a property is transferred for a value less than prescribed guidance value, the stamp duty are registration are payable as per the guidance value. The government revised   the guidance value from 02/08/2004. The revised values are more than the previous values, thus for instance in certain parts of M. G. Road, the market rate for the upper floors of a office building is between the range of Rs. 2,500/- to 3,000/-, however the actual market rate prevailing is considerably higher at Rs. 4,550/-.  The revised guidance has prescribed separate values for apartments and flats, depending upon the type of flooring. Every time when guidance values are increased, the property rates correspondingly soar to higher rates. The rates have registered a huge growth from August 2004 on wards on account of increased guidance value.

Prohibition on issue of Khatas:

The city is surrounded by seven City Municipal Councils and one Taluk Municipal Council. Many of the lands in these areas were notified for acquisition or agricultural lands or falls in green belt area. Municipal Council are collecting betterment charges and issuing khatas (Municipal administration record MAR 19) without any regard for procedures laws in force. This led to uncontrolled growth. In order to control, these unplanned and illegal developments, the Government of Karnataka issued a notification during 2003 prohibiting collection of betterment charges and issue of Kathas from 29/05/2003. Subsequently as the municipal councils faced resource crunch, the Government issued orders to municipal councils to collect property tax under self-assessment scheme through form no. 3, which is just a receipt for payment of property tax. The Katha (MAR19) is a prerequisite for approval of plan. As the municipal councils are not issuing Kathas, no building plans are approved and the construction activity has come to stand still around Bangalore, creating artificial scarcity of land.

Approval of Layouts:

Any layout formed needs approval of BDA, BMRDA. Though many layouts are developed around Bangalore, they are not approved by authorities. Such an unapproved layouts may be notified for acquisition by government agencies. Purchasers, mostly middle-income group do not prefer such layouts. BDA and BMRDA frequently publishes the list of unapproved layouts and cautions the people from purchasing sites in such layouts. So well developed layouts remain unsold, causing shortage of land.

Concentration of Public Offices, Service Centres:

Many of the public offices are concentrated in and around Vidhana Soudha. The private offices are located in central Business district. Even one can see the concentration of educational institutions, hospitals, and recreational centres at one place. Naturally people would like to reside near to their workspace. This is more so in case of offices of Information Technology, Business process out sourcing, and call centres, where employees have to stay late hours. Commuting during late hours is risky. So one may find concentration of residential clusters around work places, which has influenced the price rise in certain pockets in east Bangalore.  Persons employed in software and other related industries prefer group housing for safety.  Such group housing colonies are concentrated around the work places, which have led to price rise.  Inspite of heavy price, IT personnel prefer such locations.

Construction Costs / Lending rates:

The cost of all construction materials has increased. The cement and steel form major portion of construction, and rates of both have increased abnormally.  Many financial institutions have increased the lending rates for Home Loans, thus finance and acquiring a house has become costly, thus increasing the acquiring cost, leading to price rise. Mostly it is demand and supply factor responsible for price rise. As the population of the city is growing, the availability of land is restricted on account of various factors discussed.

GPA FOR PROPERTY TRANSACTIONS

Advocate Selvakumar | property advocates in Bangalore | property lawyer Bangalore 

            Power of Attorney is one of the documents which is being executed most extensively pertaining to the transactions involving transfer of properties, irrespective of modes of conveyance. The main reason being inability of the person, either the transferee or   the  transferor  to be present at different place at the same time. In order to complete such transactions, in his/her absence, General Power of Attorney is executed, authorising another person to do acts or certain acts on his/her behalf. Such an instrument empowering a specified person to perform such act in his absence is termed as General Power of Attorney, as envisaged in the Power of Attorney Act 1882.

            The instrument of Power of Attorney is based on the concept of Law of Agency, wherein the Principal, i.e., the person who executes Power of Attorney, authorizes his Agent, i.e., the person in whose favour such Power of Attorney is executed, to do all such necessary acts specified in the Power of Attorney on his behalf and further ratifies such acts of the Agent and the said concept has been recognized under the statute thereby giving legal sanctity.

Competency of the Parties:

            The following are the mandatory requirements before executing Power of Attorney:

                                                                          

            Majors: It is necessary that both the Principal and the Agent must have attained the age of majority because contract entered between two parties, wherein, either of the one is a minor, is not recognized under Law. Hence, it is very important that both the parties should be above 18 years of age.

            Sound Mind:   It is also important that both the Principal and the Agent must be of the sound mind since the contract with the person of unsound mind does not bind the parties to such a contract.

Types of Power of Attorney:

            There are two types of Power of Attorney. They are:

Ø  General Power of Attorney: General Power of Attorney gives wide power to the agent to do various acts on behalf of the Principal, without any specifications.

Ø  Special Power of Attorney:       Special Power of Attorney is executed in those cases wherein the agent is empowered to do such acts specified in such Power of Attorney. In this kind of Power of Attorney, the power given to the agent will be revoked as soon as that particular act for which the power of attorney is executed, is performed and once such an act is completed, Power of Attorney does not subsist.

Sub-delegation of power:

      The general principal is that an agent can neither sub-delegate his powers to a Sub-agent nor can appoint another power of attorney. The said principle is well expressed in Latin maxim “Delegate non protest delegate”, which means a person who is delegated with certain powers cannot delegate such powers to a third person. But, section 190 of the Indian Contract Act provides certain exceptions, wherein the agent can appoint sub-agent. However, such sub-delegation must be done in connivance with the Principal, who has to ratify all the acts done by the agent on his behalf. The following are the circumstances under which Sub-delegation is permitted:

1.      The nature, custom of the trade is such that it requires the appointment of sub-agents.

2.      The recitals in such power of attorney authorizes the agent to sub-delegate his powers to another agent.

Registration and Notarization:

             Under Section 17 of the Registration Act, if any transaction involves transfer, assignment or creation of right, title and interest over the immovable property and the value of such property is Rs.100 or more, then registration of such documents is mandatory.

            As regards execution of Power of Attorney, if the principle assigns right, title and interest over the immovable  property in favour of the agent and authorize the agent to execute any document on his behalf, in such case registration of the power of attorney is preferable. However, if the agent is delegated with the powers which does not involve any kind of assignment or transfer of interest over the immovable property, then power of attorney notarized before Notary Public or even before the Magistrate, is considered to be authenticate documents.

            Thus for example, if a person executes Power of Attorney, authorising the Power of Attorney Holder to execute sale deed on his behalf before the proper registering officer, then it is advisable to get such power of attorney registered. On the other hand, if Power of Attorney is executed, authorizing the power of attorney holder to prosecute or defend the suit, then GPA can be notarized before Notary Public. However, the Court shall presume that a power of attorney executed before and authenticated by Notary public or any Court, Judge, Magistrate, Indian Consul or Vice-consul or Representative of the Central Government was so executed and authenticated. If the Power of Attorney is not signed and sealed as required under law, it is nothing more than a waste paper.

            In either of the case, each page of the document, whether registered or notarized, has to bear official stamp of the Sub-Registrar office or Notary Public and must disclose the registration number, Book number and signature of the Sub-Registrar or Notary. If the same is notarized, then, apart from the above, appropriate Notary Stamp has to be affixed.

Outside India:

            Section 85 of the Indian Evidence Act applies equally to documents authenticated by Notaries Public of other countries. However, the same has to be done by the designated Officers. So any power of attorney executed outside India shall be authenticated by notary of such country or Indian Consul/Embassy.

Stamp Duty:

            Power of attorney, executed and notarized in any country in favour of Power of Attorney Holder, residing in India, has to be duly stamped within four months from the date of receipt of the same and the stamp duty in such case has to be at the District Registrar’s office. However, if the same is executed in India, the same has to be executed on the document sheet, duly stamped. Stamp duty in either of the case will be Rs.100- if the same is executed in favour of one to five of them and if power of attorney is given to more than five persons, then the actual stamp duty payable is Rs.200/-.

Cancellation of G.P.A:

            Power of Attorney can be cancelled by either of the parties to the said contract. However, the same has to be done by giving proper notice to the other, clearly mentioning the intention of the person to revoke the said Power of Attorney and notice to that effect has to be given to the public. However, the Principal cannot cancel the agency after the agent exercises his powers partially. If the power of attorney is given only for the specific purpose and that purpose is fulfilled or if either of them dies or becomes unsound, then such an instrument automatically gets cancelled. Nevertheless, proper notice is a must.

            If the agent himself has any interest in the property which is the subject matter of the agency, then the same cannot be cancelled unless the agent agrees.

            Representation of Owner:

            In Bangalore, there are many instances wherein it is seen that the Power of Attorney Holder, in his individual capacity, representing himself as the owner instead of the actual owner will convey immovable property, which act does not confer any kind of right over the purchasers since the document itself is void and not binding on the parties. So it is very important to verify as to whether the conveyance has been made by the GPA Holder, duly representing his Principal/Owner.

            In the recent times, with the growing boom of real estate in Bangalore, the instrument of General Power of Attorney is playing a major role, not only in regard to sale or purchase of the property, but also in all other related fields. However, abundant caution has to be taken at the time of executing Power of Attorney and also cancellation of the same because the same can also be used as a weapon involving acts of fraud or conspiracy to misguide and cheat public