Ayodhya Verdict - Land to be dvided

AYODHYA ISSUES FOR BRIEFING

1. Whether the disputed site is the birth place of Bhagwan Ram?

The disputed site is the birth place of Lord Ram. Place of birth is a juristic person and is a deity. It is personified as the spirit of divine worshipped as birth place of Lord Rama as a child. Spirit of divine ever remains present every where at all times for any one to invoke at any shape or form in accordance with his own aspirations and it can be shapeless and formless also.

2. Whether the disputed building was a mosque? When was it built? By whom? The disputed building was constructed by Babar, the year is not certain but it was built against the tenets of Islam. Thus, it cannot have the character of a mosque.

3. Whether the mosque was built after demolishing a Hindu temple?

The disputed structure was constructed on the site of old structure after demolition of the same. The Archaeological Survey of India has proved that the structure was a massive Hindu religious structure.

4. Whether the idols were placed in the building on the night of December 22/23rd, 1949?

The idols were placed in the middle dome of the disputed structure in the intervening night of 22/23.12.1949.5. Whether any of the claims for title is time barred? O.O.S. No. 4 of 1989, the Sunni Central Board of Waqfs U.P., Lucknow and others Vs. Gopal Singh Visharad and others and O.O.S. No.3 of 1989, Nirmohi Akhara and Another Vs. Sri Jamuna Prasad Singh and others are barred by time.

6. What will be the status of the disputed site e.g. inner and outer courtyard?

It is established that the property in suit is the site of Janm Bhumi of Ram Chandra Ji and Hindus in general had the right to worship Charan, Sita Rasoi, other idols and other object of worship existed upon the property in suit. It is also established that Hindus have been worshipping the place in dispute as Janm Sthan i.e. a birth place as deity and visiting it as a sacred place of pilgrimage as of right since time immemorial. After the construction of the disputed structure it is proved the deities were installed inside the disputed structure on 22/23.12.1949. It is also proved that the outer courtyard was in exclusive possession of Hindus and they were worshipping throughout and in the inner courtyard (in the disputed structure) they were also worshipping. It is also established that the disputed structure cannot be treated as a mosque as it came into existence against the tenets of Islam

GIST OF THE FINDINGS by S.U.Khan J.

1. The disputed structure was constructed as mosque by or under orders of Babar.

2. It is not proved by direct evidence that premises in dispute including constructed portion belonged to Babar or the person who constructed the mosque or under whose orders it was constructed.

3. No temple was demolished for constructing the mosque.

4. Mosque was constructed over the ruins of temples which were lying in utter ruins since a very long time before the construction of mosque and some material thereof was used in construction of the mosque.

5. That for a very long time till the construction of the mosque it was treated/believed by Hindus that some where in a very large area of which premises in dispute is a very small part birth place of Lord Ram was situated, however, the belief did not relate to any specified small area within that bigger area specifically the premises in dispute.

6. That after some time of construction of the mosque Hindus started identifying the premises in dispute as exact birth place of Lord Ram or a place wherein exact birth place was situated.

7. That much before 1855 Ram Chabutra and Seeta Rasoi had come into existence and Hindus were worshipping in the same. It was very very unique and absolutely unprecedented situation that in side the boundary wall and compound of the mosque Hindu religious places were there which were actually being worshipped along with offerings of Namaz by Muslims in the mosque.

8. That in view of the above gist of the finding at serial no.7 both the parties Muslims as well as Hindus are held to be in joint possession of the entire premises in dispute.

9. That even though for the sake of convenience both the parties i.e. Muslims and Hindus were using and occupying different portions of the premises in dispute still it did not amount to formal partition and both continued to be in joint possession of the entire premises in dispute.

10. That both the parties have failed to prove commencement of their title hence by virtue of Section 110 Evidence Act both are held to be joint title holders on the basis of joint possession.

11. That for some decades before 1949 Hindus started treating/believing the place beneath the Central dome of mosque (where at present make sift temple stands) to be exact birth place of Lord Ram.

12. That idol was placed for the first time beneath the Central dome of the mosque in the early hours of 23.12.1949.

13. That in view of the above both the parties are declared to be joint title holders in possession of the entire premises in dispute and a preliminary decree to that effect is passed with the condition that at the time of actual partition by meets and bounds at the stage of preparation of final decree the portion beneath the Central dome where at present make sift temple stands will be allotted to the share of the Hindus.

Order:-

Accordingly, all the three sets of parties, i.e. Muslims, Hindus and Nirmohi Akhara are declared joint title holders of the property/ premises in dispute as described by letters A B C D E F in the map Plan-I prepared by Sri Shiv Shanker Lal, Pleader/ Commissioner appointed by Court in Suit No.1 to the extent of one third share each for using and managing the same for worshipping.

A preliminary decree to this effect is passed. However, it is further declared that the portion below the central dome where at present the idol is kept in makeshift temple will be allotted to Hindus in final decree.

It is further directed that Nirmohi Akhara will be allotted share including that part which is shown by the words Ram Chabutra and Sita Rasoi in the said map.It is further clarified that even though all the three parties are declared to have one third share each, however if while allotting exact portions some minor adjustment in the share is to be made then the same will be made and the adversely affected party may be compensated by

allotting some portion of the adjoining land which has been acquired by the Central Government. The parties are at liberty to file their suggestions for actual partition by metes and bounds within three months. List immediately after filing of any suggestion/ application for preparation of final decree after obtaining necessary instructions from Hon'ble the Chief Justice. Status quo as prevailing till date pursuant to Supreme Court judgment of Ismail Farooqui (1994(6) Sec 360) in all its minutest details shall be maintained for a period of three months unless this order is modified or vacated earlier

Previously barred categories of expatriates now allowed sponsoring families in UAE

In a major move 57 categories of expatriate workers who had previously been barred in UAE from sponsoring their children and family members can now do so by depositing Dh5,000 per person, a senior Ministry of Interior official has said. Major General Nasser Al Awadi Al Menhali, Assistant Undersecretary for Naturalisation, Residency and Ports Affairs at the Ministry of Interior, Monday that 57 categories of workers previously barred from sponsoring family members' residence visas would now be able to do so.

"Previously, some professions such as drivers, bakers, tailors and cooks were not allowed to sponsor their family members, regardless of how much money they earned. Now we have solved their issues by allowing them to sponsor their families if they pay the required deposit," Major General Al Menhali said. He said the decision applied mostly to low-skilled and semi-skilled workers.

The affected categories include welders, blacksmiths, goldsmiths, plumbers, mechanics, laundry workers, car washers, grocers, sales people, butchers and construction workers.

In January 2009 About 57 categories of expatriates will be restricted from sponsoring their families even if they earn the minimum required salary. The following categories are included:

* Cooks (Arabic cuisine cook, continental cuisine cook, falafel maker, sweets maker, pastry maker, assistant cook)

* Certain skilled categories like welder, blacksmith, goldsmith, plumber, tile worker, painter (automobile painter), engine worker, assistant mechanic

* Laundry worker, car washer, grave digger, grocer, salesman, waiters, office boys, butcher

* Makeup man, hairdresser, barber, tailor, decoration jobs

* Drivers (pickup driver and private drivers)

* Trainers like falcon trainer and private tutor.

* Guards

* Laborer (construction workers)

Salary overdue for more than one year cannot be claimed as per UAE Federal Labour Law

I worked in a company for more than three years. Almost one month ago, I submitted my resignation from work upon obtaining a better job; I worked for the company for salary and commission basis. I had not received my salary for more than a year. I used to receive my commission and company told me that I would be paid in full at the end of my limited contract, which has expired. I asked company for my end of service gratuity which includes my commission, tickets, leave arrears and overdue salary for almost 13 months. At present company is delaying the settlement of my rights. I turned to the Ministry of Labour where the legal researcher told me that as per the law I may not demand the company to pay the overdue salary which are from more than one year back, however the other rights may be claimed especially since the company is currently the said salary. Is there an article in the labour law entitling the employer not to pay salary over dues for more than one year although the employer was delaying the payment of such salary and used to promise every time, witnessed by my colleagues, that he would pay the said salary once the companies condition improves and, finally, he promised to settle this matter upon the expiry of the contract. Can I use my colleagues in the company to testify before the competent court for obtaining my overdue salary? Please advice and guide me so that I can get my overdue salary along with my labour rights.

Article 6 of the Federal Labour Law No8 of 1980,which states that no claim for any of the rights provided for in this law shall be heard if brought to court after the lapse of one year from the date of accrual. There for, the questioner may not claim for the overdue salary from more than one year ago. However the questioner may claim the remaining right stated by the questioner pertaining to the end-of service gratuity on the basis that it becomes due sa soon as the contract expires.

Answer By Advocate Mohammad Ebrahim Al Shaiba

Article 6 of the Federal Labour Law No8 of 1980

Without prejudice to the provisions concerning the collective labour disputes, stipulated hereunder, if the employer, worker or any beneficiary thereof lodges claim concerning any of the rights occurring to any of them under this law, he is required to apply to the concerned Labour Department, and the latter shall call both parties and will take whatever is considered necessary for settlement of dispute between them amicably. But if amicable settlement has not been reached, the said department must refer the dispute to the competent Court within a fortnight from the date of application being submitted to it. The case so referred should be accompanied with a memo giving a summary of the dispute, evidence of both parties and the comments of the Department.

Within three days from date of receipt of the application the Court will fix a hearing for the case, and a summon to this effect will be served upon both parties of the dispute. The Court may request a representative to appear for the Department of Labour to explain the contents of the memo submitted by it.

In all cases no claim for any rights due according to the provisions of this Law will be heard after lapse of one year from date of its maturity, neither will the action be heard if the procedures provided for in this Article have not been complied with.

ID card registration to be linked to visas

Abu Dhabi: Expatriates in Abu Dhabi and three northern emirates will soon be able to register for National Identity (ID) cards when they undergo the required medical tests for their residence visas, Gulf News learned on Wednesday.

The new system is expected to be in operation by the end of this year.

Dr Ali Al Khoury, Director General of Emirates Identity Authority (EIDA), said the move was part of the authority's new strategy for 2010-2013 which aims to complete the registration of about six million expatriates, who have not yet registered for ID cards, within three years.

Gulf News had earlier reported that Umm Al Quwain had linked medical tests for residence visas with the ID card registration process from May 30 this year.

"Our strategy is to complete enrolling all expatriates within three years [possibly by May 2013] since we started linking visa issuance and renewal process with the ID card registration," Al Khoury said.

Practical difficulties

Although a federal law stipulated that December 31, 2010 was the deadline by which all residents must have an ID card, the higher management committee of EIDA, consisting of senior federal ministers and higher officials, will investigate the practical difficulties in this regard, Al Khoury added.

The director general said the new move would be implemented gradually.

"We are studying the possibilities ... whether to begin in Abu Dhabi first or in three northern emirates — Ajman, Ras Al Khaimah and Fujairah," Al Khoury said.

The official said EIDA had rented commercial space near the primary medical centre in Mussaffah, with a view to the new process of linking medical tests for residence visas with ID registrations in Abu Dhabi.

"After undergoing a medical test, the visa applicants can complete the process only after registering for ID cards," Al Khoury said.

A single application for an ID card, residence visa and labour card would be introduced in the future when the three documents would be integrated as part of a new strategy, the department said.

Cancellation of sale and purchase agreements for off-plan properties in Dubai

The recently published Executive Council Decree No. 6 of 2010 changes the way in which sale and purchase agreements (SPAs) for off-plan properties in Dubai can be cancelled. The decree supplements the provisions of Law No. 13 of 2008 which established a registration system for off-plan sales. Although the decree covers a range of important issues in this area, it is the articles that deal with the cancellation of SPAs that will be of most interest to purchasers of off-plan properties

Streamlining the notice procedure prior to the publication of the decree, in order to cancel a SPA, the developer had to notify the Land Department of a breach on the part of a purchaser. The Land Department would then serve on the purchaser a termination notice, giving 30 days for the breach to be rectified.

The decree subtly changes this relatively new process by allowing the developer to notify the purchaser directly, albeit with an obligation to copy the notice to the Land Department. There is still a requirement for the Land Department to notify the purchaser but the decree suggests that time for compliance will run from the date of the developer's original notice.

Therefore, a purchaser may have very little time from receiving the Land Department notice to remedy the breach or come to an arrangement with the developer to prevent a cancellation. Certainly, these changes streamline the cancellation process and call for even greater caution on the part of purchasers when faced with payment requests and notices from developers.

Retaining funds

As well as the notice procedure, the consequence of a cancellation by a developer has also been slightly varied by the decree. Following a cancellation, provided there has been some construction (or the lack of construction cannot be attributed to any fault on the part of the developer), the developer is entitled to retain certain funds, depending on the level of completion. Where construction is beyond 60 per cent, the developer may retain up to 40 per cent of the purchase price. Where the project is less than 60 per cent complete, the developer may retain up to 25 per cent of the purchase price.

The most notable change brought about by the Decree relates to cases where construction is beyond 80 per cent complete. Here, as well as the pre-existing right to sell the unit at auction to recover the amount due from the purchaser, the developer now has the option of cancelling the SPA and retaining up to 40 per cent of the purchase price.

There are express provisions in the decree allowing a developer to apply to the courts for an order to claim any shortfall between the amount it is entitled to retain under the decree and the amount that has actually been paid by the purchaser. Similarly, where an excess amount has been paid by the purchaser, there are provisions detailing how this excess should be returned to the purchaser.

Where construction has not commenced, the consequence of cancellation depends on whether the lack of construction is due to some fault on the part of the developer. Where there is no such fault, 30 per cent of the amount paid by a purchaser can be retained. However, if the developer is deemed to be at fault, no retention is allowed and the full amount paid must be returned. Although the decree provides a list of causes that are deemed to be outside the developer's control, and gives examples of negligent actions — the decision is ultimately determined by the Land Department based on the facts presented to it. It should be noted that the decree confirms that leveling works and installment of infrastructure will be deemed to be evidence of

construction having commenced for the purposes of determining the parties' financial liability on cancellation.

Limiting arguments

In summary, whatever the motivation of the Land Department, the result of this new decree has been a marked increase in the number of cancellation notices served, often with little or no regard for the underlying reasons for the purchaser's default. Although purchasers may dispute the validity of a developer's cancellation claim, the Land Department has issued an administrative circular limiting the arguments they will consider as constituting valid defenses.

Unfortunately, delays under six months, failure to complete infrastructure works and failure to provide previously promised finance are just a few legitimate reasons for purchaser's non-payment that are not included in the list of ‘approved' defenses. In those circumstances, while a purchaser may have strong technical grounds to dispute a cancellation, it seems that those grounds will not be considered by the Land Department and so the SPA will be cancelled, with the consequential retention of purchaser funds by the developer.

And so, while containing some important safeguards of purchaser's rights, mainly in relation to ongoing projects, in the area of cancellations the decree has simply encouraged developers to take advantage of a streamlined cancellation procedure with its limitations on possible purchaser defenses. In that regard, in Dubai's real estate game the playing field may still not be regarded as entirely level.

The writers are a partner and an associate at law firm Taylor Wessing