I own commercial premises in a residential-cum-commercial complex at Panjim (Goa) and there is an open space at the back of the apartment for which uzu fruct rights have been conferred in perpetuity upon the owner of the only residential apartment at the back of the building, which is the only access to the area. Originally, there was no opening in the back wall of my property whereas the living room and the bedroom windows of the residential apartment sold with uzu fruct rights, opened on to this area. As I intended to use the premises for running a bar-cum-restaurant, I approached the developer to permit me to pierce a hole in the blank wall to facilitate the installation of an exhaust fan so that the kitchen smoke and the cooking smells could be vented in the open area. The residential apartment owner has objected to this and filed a police complaint on grounds of violation of her privacy, smoke and smell pollution and impingement of uzu fruct rights. What is the correct position?-- JohnD'Souza, Panjim
There is no doubt that your exhaust fan is bound to permeate foul smells and cause smoke pollution. It would also force the residential apartment owner to keep windows closed to minimise damage to her curtains and upholstery and also lower the risk of landing with a breathing problem. The imminent need to keep the windows shut could indeed be interpreted as an invasion of her privacy and interference with her rights guaranteed under the deed of sale, as uzu fruct rights. Uzu fruct rights under the Portuguese civil code (which is still applicable in Goa) when translated in simple English, would mean the right to enjoy the fruits of the soil which also includes the air space above it. It would, therefore, be appropriate for you to either make alternate arrangements for emission of your nauseating gaseous discharge and least of all install a tall metal flue to the top of the building to avoid nuisance and annoyance to your neighbour. (This is provided such a chimney would not interfere withthe rights and privileges of upper floor occupants of the building.) Logically, if the default persists, the apartment owner enjoying uzu fruct rights could approach the courts of law and seek an injunction against you to close the bar-cum-restaurant. Please do seek legal advice by all means but nevertheless try and solve the problem amicably.
I own an apartment in a co-operative society building at Mumbai since 1991, which I now wish to sell and the purchaser is insisting that I should obtain clearances under section 34 & 69UC of the Income Tax Act, as also a No Objection Certificate to the transfer the apartment from the co-operative society. What is the correct position?
-- V G Desai, Mumbai
If the sale consideration that you would be receiving from the intended purchaser is Rs 75 lakh or more, then it is necessary for you and the purchaser to jointly file an application to the Statutory Authority under Sec. 69UC of the Income Tax Act within 15 days of your entering into an agreementto sell and secure their concurrence to the sale of property and not exercising their right of pre-emptive purchase. Application has to be proffered in Form 37(I). If the sale consideration of any property exceeds Rs 5 lakh then the registering authority requires a clearance in Form 230A from your Income Tax assessing authority. This is under Sec. 34 of the IT Act. In this clearance, the assessing authority states that the registration of the sale deed would not prejudice the rights of the IT department to recover appropriate taxes from the seller.
The co-operative societies by-laws vary from society to society and generally stipulate that the transfer of ownership should have their prior approval. Please, therefore, check your society's rules and act in consonance with their requirements.
My parents owned a 5,000 sq yards (4,000 sq metres approximately) property at Kanpur, which as per my father's will and after the death of my mother was to be divided equally between me and my brother. To provideaccess from the existing 60-ft road on the east side of the parcel of land and to facilitate subsequent plotted development, it was also stipulated that an internal 15-ft-wide road running north be maintained as a common passage with unremitted rights of ingress and access and both the brothers shall have an equal but undivided interest in the parcel of land identified as common passage.
However, the property was to be divided east-west. As a result the common passage has divided my share of the property in two equal quadrangles and this has created development problems. When I approached my brother to mutually restrict the common passage up to the western boundary of area assigned to him he objected on the ground that I would be getting additional land without a commensurate gain to him. How do we resolve this issue?
-- J K Verma, Kanpur
As things stand, both of you are equal owners of the undivided parcel of land comprising common passage. Therefore, legally your brother also holds 50 percent ownership of this area which may be exclusively serving your part of the property. If your property is getting divided in two parts, so is your brother's and hence both of your are at an equal disadvantage.
If you wish to acquire exclusive rights on the part of the passage running through the area assigned to you, then you, in all fairness, either offer to compensate him financially or else assign additional land to him corresponding to 50 per cent of the passage area that you wish to hold exclusively on the eastern side of your property abutting his land on the west side. Once this adjustment is agreed to, then the terms of understanding can be reduced to writing, and acted upon. The agreements so executed should be duly registered with the registrar of assurances at Kanpur in the interest of long-term peace and harmony.
G P Khungar is a real estate consultant and a former director (corporate affairs) of Ansals Ltd
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