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CASE NO.: Appeal (civil)  10461 of 1983

PETITIONER: State of Maharashtra & Anr.                              

RESPONDENT: Vs. B.E. Billimora and Ors.                                  

DATE OF JUDGMENT: 14/08/2003

BENCH: S.B.  Sinha

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       Interpretation of provision of  Section 2(q) vis-Ã -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

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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

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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

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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

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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 â\200\223

(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.