State Of Maharashtra & Anr vs B.E. Billimora And Ors

Interpretation of provision of Section 2(q) vis-à-vis sub-

section (9) of Section 4 of the Urban Land (Ceiling & Regulations) Act,

1976 (for short 'the Act') is the primal question in this appeal. Two

ancillary questions have also been raised by Mr. Dholakia, learned

senior counsel appearing on behalf of the appellants, namely, (i) as to

whether two strangers acquiring property jointly would come within the

definition of 'person' as contained in Section 2(i) of the Act; and

(ii) whether clause (i) of Section 2(q) would be applicable in a case

where the building did not exist on the appointed date.

The facts are not in dispute.

The respondents being strangers acquired land bearing C.T.S.

No.82 measuring 5428.09 sq. metres situated at Koregaon Park, Pune.

They individually also owned one flat each in Bombay. The permissible

ceiling limit of vacant land in terms of Section 4 of the Act would be

1000 sq. metres.

In terms of the Building Rules applicable in Koregaon Park, two-

third of the area is statutorily required to be kept vacant. The

relevant provisions of the Building Rules framed by the Collector of

Poona for Koregaon Park are as under :

"1. The minimum area of a building plot shall be as

mentioned in the lay-out. No building plot as shown

in the lay-out shall be sub-divided.

3. Only one main building together with such

outhouses as are reasonably required for the bona

fide use and enjoyment by its occupants and their

domestic servants shall be permitted to be erected

in any building plot.

Provided that this restriction shall not

prevent the erection of two or more buildings on the

same plot, if the plot admeasures at least twice or

thrice as the case may be (according to the number of

buildings) the minimum size required. Provided also

that the same open space shall be required around

each main building as if each of these were in a

separate building plot.

9. Not more than one-third of the total area of

any building plot shall be built upon. In

calculating the area covered by buildings the plinth

area of the buildings and other structures excepting

compound walls, steps, open ottas and open houds or

wells with parapet walls not more than 4 feet high or

chajja and weather sheds shall be taken into account.

Area covered by a staircase and projection of any

kind shall be considered as built over,

Provided a balcony or gallery which

(a) is open on three sides;

(b) has no structure underneath on ground

floor;

(c) projects not more than 4 feet from the

wall; and

(d) length of which measured in a straight

line does not exceed the length of the

wall to which it is attached;

shall not be counted in calculating the built

over area.

10. No building shall contain more than two storeys

including the ground floor.

15. No building shall exceed 100 feet in length in

any direction."

The two-third of the area which is to be left vacant in the

instant case would be about 3600 sq. metres.

In the said area, as it appears from a letter dated 27.02.1979

issued from the Office of the Assistant Engineer (Dev. Plan), Pune

Municipal Corporation to Shri A.D. Aroskar, Chartered Architect, that

housing for weaker sections is not permitted in Koregaon Park area in

terms of the decision of the Construction Committee of Pune Urban

Agglomeration, under the Act.

Our attention has been drawn to a decision of the Bombay High

Court in Meherbai Karl Khandalawala and Others vs. The Competent

Authority under Urban Land Ceiling and Regulation Act, 1976 and Others

[1988 Mh. L.J.543], from a perusal whereof it appears that Koregaon

Park which was formed in the year 1920 as a model colony was to be

divided into 122 plots given to various parties on lease in perpetuity.

The area of Koregaon Park has been treated differently and has been

given special attention having regard to the fact that it was to be

nurtured as a green area.

The land in question is situated within a green colony. The

plots cannot be sub-divided nor, thus, can be given to any other

person. The lands in question are, therefore, not available for

distribution, equitable or otherwise.

The respondents being tenants in common, their right, title and

interest in the land would be half and half. The definition of the

word 'person' as contained in Section 2(i) although merits liberal

construction, but the respondents would not come within the purview

thereof. It would, therefore, be not correct to contend that they

together would be entitled only to one unit.

So far as the submission of Mr. Dholakia to the effect that as

on the appointed day, no construction had been made on the land in

question and only a building plan therefor has been sanctioned, the

exception contained in Section 2(q) of the Act would not be

applicable is concerned, we may notice that clause (i) of Section 2(q)

excludes the 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 from the definition of 'vacant land'. The

area where there are building regulations, the land occupied by any

building which has been constructed before, or is being constructed on,

the appointed day with the approval of the appropriate authority and

the land appurtenant to such building is also excluded. A plain and

literal meaning attributed to clause (i) of Section 2(q) leaves no

manner of doubt that for the purpose of applicability thereof, it is

not necessary that constructions must exist on the appointed day. What

is necessary is as to whether construction of a building is permissible

or not. The scheme of the Act particularly Section 29 thereof clearly

shows that regulation of construction of building with dwelling units

was contemplated by the makers of the legislation. As regard the space

which is to be left vacant for the purpose of construction of building,

a restriction of construction of building with dwelling units having

been provided for in the Act, it is idle to suggest that for the

purpose of exclusion of land in terms of clause (i) of Section 2(q),

constructions must have existed on the land on the appointed day. Had

the intention of the Parliament been to exclude only such lands which

have been directed to be left vacant only on the constructed buildings

in terms of the building regulations, the same would have been stated

expressly.

Indisputably the respondents had applied for sanction of the

building plan and the same had been granted. They, thus, on the

appointed day in terms of the building regulations having regard to the

purport and object of the Act were, thus, in our opinion entitled to

get the vacant land required to be kept in terms of the building plan

excluded.

The only question which survives for our consideration is as to

whether for the purpose of determination of ceiling area, the land over

which the flats of the respondents situated at Bombay were required to

be taken into consideration for the purpose of sub-section (9) of

Section 4 of the Act. So far as those flats in Bombay are concerned,

the respondents did not hold any vacant land appurtenant thereto. They

were entitled, as a matter of right, to exclusively possess and own the

structures alone. No land appurtenant to the said structure

exclusively belongs to them.

The said Act being expropriatory legislation is required to be

construed strictly. [See M/s D.L.F. Qutab Enclave Complex Educational

Charitable Trust vs. State of Haryana and Ors. [2003 (2) SCALE 145

para 41].

In Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. and

Others [(2003) 2 SCC 111], this Court held:

"An owner of a property, subject to reasonable

restrictions which may be imposed by the

Legislature, is entitled to enjoy the property

in any manner he likes. A right to use a

property in a particular manner or in other

words a restriction imposed on user thereof

except in the mode and manner laid down under

statute would not be presumed.

The statutory interdict of use and enjoyment of

the property must be strictly construed. It is

well-settled that when a statutory authority is

required to do a thing in a particular manner,

the same must be done in that manner or not at

all. The State and other authorities while

acting under the said Act are only creature of

statute. They must act within the four-corners

thereof."

In terms of the provisions of the Act, land in excess of the

ceiling area was to vest in the State Government. By reason of the

provisions contained in Section 2(q) of the Act, the Parliament has

defined the term 'vacant land'. Strict meaning has to be attributed to

the said words as expression 'means' has been used. From the

definition of 'vacant land', land which is not mainly used for the

purpose of agriculture has been excluded. Further thereto, what is

required to be excluded would be those lands as are specified in

clauses (i), (ii) and (iii) thereof.

The exclusionary clauses contained in the definition of 'vacant

land' must, therefore, receive a liberal construction.

Section 2(q) of the Act keeping in view the fact that expression

'means' has been used would be prima facie restrictive and exhaustive.

The said provision is neither vague nor ambiguous. It cannot also be

said that sub-section (9) of Section 4 provides a contrary context.

It is trite that when a statutory enactment defines its terms,

the same should govern what is proposed, authorised or done under or by

reference to that enactment. [See Wyre Forest District Council vs.

Secretary for State for the Environment (1990 (1) All. E.R. 780 at

785].

It is also trite that all statutory definitions have to be read

subject to the qualification variously expressed in the interpretation

clause which created them particularly when the definition is

exhaustive. The only exception to the aforementioned rule would be

where there exist provisions, the meaning therefor is required to be

determined in the context in which the word has been used.

The words 'vacant land' have been defined as land subject to

certain exception.

Those exclusionary clauses must be interpreted liberally. The

charging section is Section 3 which provides that persons shall not be

entitled to hold any vacant land in excess of the ceiling limit in the

territory to which it applies. Ceiling limit has been provided in

terms of Section 4 but the same is subject to other provisions

contained therein. The scheme of the Act in general and the purport

and object thereof in particular do not lead to a conclusion that what

has been excluded from the definition of 'vacant land' should be

included for another purpose. There does not exist any reason as to

why the plain and unequivocal meaning cannot be given to the said

definition.

For the purpose of determination of the ceiling limit as stated

in sub-section (9) of Section 4 of the Act, a person must not only hold

a vacant land but also must hold any other land on which there is a

building with a dwelling unit therein which clearly goes to show that

such other land on which there is a building for the purpose of sub-

section (9) of Section 4 must be a land other than a vacant land.

It is well-settled that the provisions of the statute are to be

read in the text and context in which they have been enacted. It is

well-settled that in construction of a statute an effort should be made

to give effect to all the provisions contained therein. It is equally

well-settled that a statute should be interpreted equitably so as to

avoid hardship. So interpreted the decision of this Court in Meera

Gupta (Smt.) vs. State of West Bengal and Others [(1992) 2 SCC 494]

commends to us in preference of the decision of this Court in State of

U.P. and Others vs. L.J. Johnson and Others [(1983) 4 SCC 110]. Meera

Gupta's case (supra) has been followed by this Court in Atma Ram

Aggarwal and Others vs. State of U.P. and Others [(1993) Supp. (1) SCC

1] and Kunj Behari Lal vs. District Judge, Gorakhpur and Others [(1997)

6 SCC 257].

We are not unmindful of the observations made by a two-Judge

Bench of this Court in Angoori Devi (Smt.) vs. State of U.P. and Others

[(1997) 2 SCC 434] stating that the decisions of this Court in

Johnson's case (supra) and Meera Gupta's case (supra) are in conflict

with each other and Johnson's case should hold the field. However, in

Angoori Devi's case (supra), the conflict was not resolved by the

Constitution Bench to which a reference was made by a three-Judge Bench

in Angoori Devi (Smt.) vs. State of U.P. and Others (1997) 7 SCC

757].

In view of our discussions aforementioned, it must be held that –

(1) that the respondents having independent title to the property in

question, are entitled to the two separate units under the said

Act;

(2) despite the fact that no construction had been raised on

appointed day, they are entitled to the benefit under sub-clause

(i) of clause (q) of sub-section (2) of the Act; and

(3) for the purpose of determination of ceiling limit, the area of

the flats belonging to the respondents in Bombay would not be

taken into consideration. I, thus, agree with the conclusion

arrived by the High Court.

With these additional reasons, I respectfully agree with the

opinion of Hon'ble Mathur, J.