Page 83 - GSTL_30th April 2020_Vol 35_Part 5

2020 ] RAJASTHAN STATE MINES & MINERALS LTD. v. COMMR. OF C. EX. & S.T., JAIPUR 569
aside the order of the lower appellate Court and restore the decree of the
Court of first instance with costs in all courts.”
Further, in the case of Chheda Housing Development Corporation v. Bibijan
Shaikh Farid, the Hon’ble High Court of Bombay observed as under :-
15. The question is whether on account of the term in the clause which
permits acquisition of slum TDR the appellants in so far as the additional
FSI is concerned, are not entitled for an injunction to that extent. An im-
movable property under the General Clauses Act, 1897 under Section
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 any-
thing attached to the earth. If, therefore, any benefit arises out of the land,
then it is immovable peruperty. Considering Section 10 of the Specific
Relief Act, such a benefit can be specifically enforced unless the respond-
ents establish the compensation in money would be an adequate relief.
Can FSI/TDR be said to be a benefit arising from the land. Before an-
swering that issue we may refer to some judgments for that purpose. In
Sikandar and Ors. v. Bahadur and Ors. 27 ILR 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
Section 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 in-
strument. A Division Bench of the Oudh High Court in Ram Jiawan and
Anr. v. Hanuman Prasad and Ors. AIR 1940 Oud 409 also held, that
bazaar dues, constitute a benefit arising out of land and therefore a lease
of bazaar 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. MANU/UP/0120/1974 : AIR 1974
All 473 on a consideration of Section 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, con-
sequently must be held to be immovable property and an Agreement for
use of TDR consequently can be specifically enforced, unless it is estab-
lished that compensation in money would be an adequate relief.”
Further, the issue was examined by the Hon’ble High Court of Bombay
again in the case of Shadoday Builders Private Ltd. and Ors. v. Jt. Charity Com-
missioner and Ors. (supra) wherein the issue was in respect of sale of trans-
ferable development right is immovable property or not?
The Hon’ble High Court observed as under :-
“5. The principal issue which arose before the Learned Joint Charity
Commissioner as to whether the TDR could be termed as a movable prop-
erty, is concluded and is not more res integra in view of the judgment of
the Division Bench of this court reported in 2007 (3) Mh.L.J. 402 in the
matter of Chheda Housing Development Corporation v. Bibijan Shaikh
Farid and ors. Para no. 15 of the said judgment is material and is repro-
duced hereunder.
15. The question is whether on account of the term in the clause which
permits acquisition of slum TDR the appellants insofar as the additional
F.S.I. is concerned, are not entitled for an injunction to that extent. An
immovable property under the General Clauses Act, 1897 under Section
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.”
GST LAW TIMES  30th April 2020  83