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

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 (1 = appeal accepted, 0 = rejected): 0

Explanation:
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