Page 84 - GSTL_30th April 2020_Vol 35_Part 5

570 GST LAW TIMES [ Vol. 35
If, therefore, any benefit arises out of the land, then it is immovable prop-
erty. Considering section 10 of the Specific Relief Act, such a benefit can
be specifically enforced unless the respondents establish that compensa-
tion 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., 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 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 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 bazaar dues, constitute a benefit arising out of
the land and therefore a lease of bazaar dues is a lease of immovable prop-
erty. A similar view has been taken by another division Bench of the Al-
lahabad High Court in Smt. Dropadi Devi v. Ram Das and ors., AIR
1974 Allahabad 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, 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.”
The Division Bench has held that since TDR is a benefit arising from the
land, the same would be immovable property and therefore, an agreement
for use of TDR can be specifically enforced. The said dictum of the Divi-
sion Bench is later on followed by a Learned Single Judge of this court in
2009 (4) Mh.L.J. 533 in the matter of Jitendra Bhimshi Shah v. Mulji
Narpar Dedhia HUF and Pranay Investment and ors. The Learned Judge
relying upon the judgment of the Division Bench in Chheda Housing De-
velopment Corporation (supra) has held that the TDR being an immovable
property, all the incidents of immovable property would be attached to
such an agreement to use TDR. In view of the judgments of this court (su-
pra), in my view, the order of the Charity Commissioner that no permis-
sion under Section 36 is required as TDR is a movable property cannot be
sustained and therefore, the application filed by the respondent no. 2 -
Trust under Section 36 of the said Act would have to be considered on the
touchstone of the principles applicable to such a sale by a trust.”
As the Hon’ble High Court observed in the case of Sadoday Builders Private
Ltd. and Ors. (supra) that transferable development right is immovable
property, therefore, the transfer of development rights in the case in hand is
termed as immovable property in terms of Section 3(26) of General Clauses
Act, 1897 and no service tax is payable as per the exclusion in terms of Sec-
tion 65B(44) of the Finance Act, 1994.”
19. Similar view has been expressed by the Coordinate Bench of this
Tribunal in the case of Mormugao Port Trust v. Commissioner of Cus., C. Ex. & S.T.,
Goa - 2017 (48) S.T.R. 69 (Tri. - Mumbai). The relevant paragraphs of the order
which are relevant is reproduced as under :
“20. We may mention here that there are situations where a co-venturer or
a partner may render a taxable service to the joint venture or the firm. This
may happen if, for instance, the partner in individual capacity enters into a
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