Case: State Of Maharashtra  Vs. B.E. Billimoria

G.P. Mathur, J. 1. The State of Maharashtra has preferred this appeal by special leave against the judgment and order dated 31.1.1983 of High Court of Bombay by which the writ petition filed by respondents No.1 and 2 was allowed and the orders passed by the Competent Authority and the Appellate Authority under the Urban Land (Ceiling & Regulations) Act, 1976 (for short the Act) were set aside and it was declared that the respondents do not hold any land in excess of the ceiling limit of Pune Agglomeration. The notification issued under Section 10(3) of the Act was also set aside.2. B.E. Billimoria (respondent no.1) and Laxmidas Kalyanji Kapadia (respondent no.2) together owned a plot bearing CTS No. 82, Koregaon Park, Pune having an area of 5428.09 sq. meters. In the statement filed under Section 6 of the Act respondent no.1 disclosed that besides above he owned a flat having an area of 297.28 sq. meter in a building owned by a co-operative housing society in Bombay. Respondent no.2 disclosed that besides CTS no. 82, Koregaon Park, Pune he owned a residential flat having an area of 111.11 sq. meters in a building owned by a co-operative society in Bombay. His wife was also in possession of a part of an industrial building and the area of the same was 235.78 sq. meters. The Competent Authority held that respondent no.1 owned half of CTS No. 82, Koregaon Park, Pune the area whereof came to 2714.05 sq. meters. He further held that the flat being in Bombay which is in Category A of Schedule I of the Act, for calculating the area thereof in terms of Category B in which Pune in situate, the area had to be doubled and therefore the area of the flat occupied by him in Bombay should be taken to be 594.56 sq. meters. It was thus held that respondent no.1 held 3308.61 sq. meters of land and as the ceiling limit in Pune and 1,000 sq. meters, he was holding 2308.61 meters of excess land. With regard to respondent no.1 the area of the flat held in Bombay was doubled to 222.22 sq. meters and after adding the area of the part of the industrial building in possession of his wife, namely, 235.78 sq. meters and 2714.05 sq. meters in CTS No. 882, Koregaon Park, Pune, he was held to be holding 3172.05 sq. meters of land. The excess area held by respondent no.2 was thus determined as 2172.05 sq. meters. Feeling aggrieved by the orders of the Competent Authority the respondents preferred appeals which were dismissed by a common judgment and order dated 20.1.1979 by the Appellate Authority, Pune and the findings recorded by the Competent Authority were affirmed.3. Thereafter the respondents preferred a writ petition under Article 227 of the Constitution before the High Court of Bombay. The High Court held that each of the respondents should be taken to be holding an area of 2714.07 sq. meters in CTS No. 82 Koregaon Park, Pune. The building regulations in the aforesaid area did not permit construction on more than one-third of the total area of the plot and as such construction was not possible on an area of 1809 sq. meters and therefore the same could not be treated as vacant land within the meaning of Section 2(q) of the Act. The High Court further held that the area of the flats owned by the respondents in Bombay could not be taken into consideration as no vacant land had been allotted to them by the co-operative society. The vacant land held by each of the respondents thus came to 905 sq. meters which was well within the ceiling limits of 1000 sq. meters for Pune. On these findings the writ petition was allowed and the orders passed by the Competent Authority and the Appellate Authority were set aside and it was declared that the respondents do not hold any land in excess of the ceiling limit of Pune agglomeration.3. Shri S.K. Dholakia, learned senior counsel, appearing for the appellant has submitted that Section 3 of the Act lays down that except as otherwise provided in the Act, on and from the commencement of the Act, no person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which the Act applies. In terms of Section 2(1) person includes an individual, a family, a firm, a company or an association, or body of individuals whether incorporated or not and therefore a body of individuals would come within the meaning of the word person and the said body of individuals is not entitled to hold any vacant land in excess of ceiling limit in view of Section 3 of the Act. The contention is that as respondent nos. 1 and 2 together own CTS No. 82 Koregaon Park, Pune the said land should be treated as a single unit and the High Court should not have proceeded on the basis that the land held by each of the respondents was half of the total area namely, 2714.05 sq. meters and thereafter determined the ceiling area which each of the respondents was entitled to hold. We are unable to accept the contention raised. It is true that in view of Section 2(1) of the Act, "body of individuals whether incorporated or not will be deemed to be a person, but this provision has to be read in the light of Section 4 which prescribes the ceiling limit for every person in each categories namely, A,B,C, and D of Urban Agglomeration. Sub-section 5 of the Section 4 of the Act reads as under: Section 4. Ceiling Limit - (1) xx xx xx (2) xx xx xx (3) xx xx xx (4) xx xx xx (5) Where any firm or unincorporated association or body of individuals holds vacant land or holds any other land on which there is a building with a dwelling unit therein or holds both vacant land and such other land, then, the right or interest of any person in the vacant land or such other land or both, as the case may be, on the basis of his share in such firm or association or body shall also be taken into account in calculating the extent of vacant land held by such person. This provision makes it absolutely clear that where any firm or incorporated association or body of individuals holds vacant land, then the right or interest of any person in such vacant land shall be taken into account on the basis of his share in such firm or association or body. In view of this specific provision only the share of respondent nos.1 and 2 had to be taken into consideration in CTS No. 82, Koregaon Park, Pune, as both of them together hold the said plot. Section 45 of the Transfer of Property Act deals with joint transfer for consideration and it lays down that where immovable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical as nearly as may be, with the interests to which they were respectively entitled in the fund; and where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced. The second paragraph of this Section lays down that in the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property. In view of this specific provision both the respondents shall be presumed to be owners of equal shares in the plot as there was no evidence to the contrary. Therefore, the High Court rightly held that each of the respondents held half area of the aforesaid plot, namely, 2714.05 sq. meters. 5. Shri Dholakia has next submitted that the High Court has erred in excluding two-third area of CTS No. 82 Koregaon Park, Pune, while determining the ceiling area applicable to each of the respondents. Learned counsel has urged that as no construction had been made on the plot and the same was totally vacant, it could not be ascertained as to on which portion of the plot of the building would be constructed and which portion had to be left vacant under the building regulations and therefore the respondents could not contend that while determining the vacant land only one-third of their share in the plot should be taken into consideration. Section 2(q) of the Act defines "vacant land" and clause (i) thereof which is relevant is being reproduced below:- "2(q) vacant land means land, not being land mainly used for the purpose of agriculture, in an urban agglomeration, but does not including, -(i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated." A plain reading of the provision would show that any land on which construction is not permissible under the building regulations in force in the area would not come within the ambit of vacant land. Sub-rule (9) of Rule 2 of the Building Rules framed by the Collector of Poona for Koregaon Park lays down that not more than one-third of the total area of any building plot shall be built upon and in calculating the area covered by a building the plinth area of the building and other structures excepting compound walls, shall be taken into account. It further provides that any area covered by staircase and projections of any kind shall be considered as built over. The appellant does not dispute the applicability of this Building Rule to Koregaon Park area where plot of land CTS No. 82 is situate. The definition of "vacant land" as given in Section 2(q) clearly provides that land on which construction of a building is not permissible under the building regulations in force in the area has to to be excluded. As under the relevant rules in force in the area construction was not permissible on two-third of the area of the plot, the High Court was perfectly justified in holding that for determining the vacant land in CTS No. 82, Koregaon Park, Pune, two-third portion of each of the respondents had to be excluded and thus the vacant land held by each one of them in the said area was only 905 sq. meters. In fact, on the plain language of the Statute and the prohibition contained in the Building Rules in Koregaon Park area, which are in operation, it is not possible to take any other view. 6. Learned counsel for the appellant has also assailed the finding of the High Court that the area of the flats held by the respondents in Bombay should be excluded and has submitted that there is no legal basis for doing so. In our opinion, the contention raised has no substance. The relevant provisions in this regard are Sub-sections (8) and (9) of Section 4 and Explanation appended to the said Section which are being reproduced below: "(8) Where a person, being a member of a housing co-operative society registered or deemed to be registered under any law for the time being in force, holds vacant land allotted to him by such society, then the extent of land so held shall also be taken into account in calculating the extent of vacant land held by such person.(9) Where a person holds vacant land and also holds any other land on which there is a building with a dwelling unit therein, the extent of such other land occupied by the building and the building and the land appurtenant thereto shall also be taken into account in calculating the extent of vacant land held by such person.(10) xx xx xx(11) xx xx xxExplanation - For the purposes of this section and Sections 6, 8 and 18 a person shall be deemed to hold any land on which there is a building (whether or not with dwelling unit therein) if he -(i) owns such land and the building; or(ii) owns such land but possesses the building or possesses such land and the building, the possession, in either case, being as a tenant under a lease, the unexpired period of which is not less than ten years at the commencement of this Act, or as a mortgagee or under an irrevocable power of attorney or a hire-purchase agreement or partly in one of the said capacities and partly in any other of the said capacity or capacities; or(iii) possesses such land but owns the building, the possession being as a tenant under as lease or as a mortgagee or under an irrevocable power of attorney or a hire-purchase agreement or partly in one of the said capacities or partly in any other of the said capacity or capacities." 7. What is important to note here in that for the applicability of Sub-section (8) it is necessary that a person should have been allotted a vacant land by a housing co-operative society. Similarly, to come within the purview of Sub-section (9) the person must hold vacant land and also any other land on which there is a building with a dwelling unit. The meaning of the expression "any other land on which there is a building" has been given in the Explanation to Section 4 and this shows that the person must either own the land and the building or own the land and possess the building or possess the land and the building or possess the land but own the building. Therefore, the ownership or possession of the land over which the building stands is a necessary condition for applicability of anyone of the Sub-sections of Section 4. The respondents have merely been allotted flats in a building owned by a co-operative society. There is absolutely no material on record to show that they are either owners of any land or they are in possession of any land. It is the housing co-operative society which is the owner of the land over which the building has been constructed and the respondents are merely allottees of one of the flats in the building. Therefore they cannot be held to be either owners of any land or in possession of any land and consequently Sub-section (8) or (9) of Section 4 would not apply. In these circumstances, the view taken by the Competent Authority and the Appellate Authority that the area of the flats in Bombay had to be clubbed with the vacant land held by the respondents in Pune was patently wrong and the High Court has rightly set aside the same. In view of the discussion made above, the

Decision:
0[ds]This provision makes it absolutely clear that where any firm or incorporated association or body of individuals holds vacant land, then the right or interest of any person in such vacant land shall be taken into account on the basis of his share in such firm or association or body. In view of this specific provision only the share of respondent nos.1 and 2 had to be taken into consideration in CTS No. 82, Koregaon Park, Pune, as both of them together hold the said plot. Section 45 of the Transfer of Property Act deals with joint transfer for consideration and it lays down that where immovable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical as nearly as may be, with the interests to which they were respectively entitled in the fund; and where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced. The second paragraph of this Section lays down that in the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property. In view of this specific provision both the respondents shall be presumed to be owners of equal shares in the plot as there was no evidence to the contrary. Therefore, the High Court rightly held that each of the respondents held half area of the aforesaid plot, namely, 2714.05 sq.plain reading of the provision would show that any land on which construction is not permissible under the building regulations in force in the area would not come within the ambit of vacant land. Sub-rule (9) of Rule 2 of the Building Rules framed by the Collector of Poona for Koregaon Park lays down that not more than one-third of the total area of any building plot shall be built upon and in calculating the area covered by a building the plinth area of the building and other structures excepting compound walls, shall be taken into account. It further provides that any area covered by staircase and projections of any kind shall be considered as built over. The appellant does not dispute the applicability of this Building Rule to Koregaon Park area where plot of land CTS No. 82 is situate. The definition of "vacant land" as given in Section 2(q) clearly provides that land on which construction of a building is not permissible under the building regulations in force in the area has to to be excluded. As under the relevant rules in force in the area construction was not permissible on two-third of the area of the plot, the High Court was perfectly justified in holding that for determining the vacant land in CTS No. 82, Koregaon Park, Pune, two-third portion of each of the respondents had to be excluded and thus the vacant land held by each one of them in the said area was only 905 sq. meters. In fact, on the plain language of the Statute and the prohibition contained in the Building Rules in Koregaon Park area, which are in operation, it is not possible to take any otherthe applicability of Sub-section (8) it is necessary that a person should have been allotted a vacant land by a housing co-operative society. Similarly, to come within the purview of Sub-section (9) the person must hold vacant land and also any other land on which there is a building with a dwelling unit. The meaning of the expression "any other land on which there is a building" has been given in the Explanation to Section 4 and this shows that the person must either own the land and the building or own the land and possess the building or possess the land and the building or possess the land but own the building. Therefore, the ownership or possession of the land over which the building stands is a necessary condition for applicability of anyone of the Sub-sections of Section 4. The respondents have merely been allotted flats in a building owned by a co-operative society. There is absolutely no material on record to show that they are either owners of any land or they are in possession of any land. It is the housing co-operative society which is the owner of the land over which the building has been constructed and the respondents are merely allottees of one of the flats in the building. Therefore they cannot be held to be either owners of any land or in possession of any land and consequently Sub-section (8) or (9) of Section 4 would not apply. In these circumstances, the view taken by the Competent Authority and the Appellate Authority that the area of the flats in Bombay had to be clubbed with the vacant land held by the respondents in Pune was patently wrong and the High Court has rightly set aside the