The interpretation of section 2(q)(i) of the Urban Land (Ceiling and Regulation) Act, 1976, and the determination of vacant land for the purpose of declaring surplus land under the Act.

Headnote:
URBAN LAND (CEILING AND REGULATION) ACT, 1976 - SECTION 2(Q)(I) - INTERPRETATION - VACANT LAND - EXCLUSION OF LAND ON WHICH CONSTRUCTION OF BUILDING IS NOT PERMISSIBLE - RATIO OF BILLIMORIA'S CASE OVERRULED.
Fact of the Case:

The petitioners, co-owners of a property, challenged the declaration of surplus vacant land under the Urban Land (Ceiling and Regulation) Act, 1976 (the Act). They contended that the property was co-parcenary property and each co-owner should be treated as an exclusive owner for the purpose of calculating vacant land. They also claimed the benefit of the guidelines of exemption provided under section 20 of the Act.
Finding of the Court:

The Court held that the ratio of the Division Bench decision in Billimoria's case, which held that two-thirds of the total area of the land would be straight way liable to be excluded for the purpose of computation of vacant land and ceiling area, was incorrect and required to be overruled. The Court clarified that sub-clause (i) of section 2(q) of the Act contemplates that the activity of building is not permissible on the date when the land is sought to be dealt with, not at any future time. The Court further held that the competent authority must determine separately the land which falls under sub-clauses (i), (ii), (iii) and the proviso of section 2(q) of the Act subject to some land falling in Clause (ii) being covered by Clause (i).
Issues: 1. Whether the ratio of the Division Bench decision in Billimoria's case, which held that two-thirds of the total area of the land would be straight way liable to be excluded for the purpose of computation of vacant land and ceiling area, was correct. 2. Whether the activity of building is not permissible on the date when the land is sought to be dealt with, or at any future time.
Ratio Decidendi: 1. The Court held that the ratio of the Division Bench decision in Billimoria's case was incorrect and required to be overruled. The Court clarified that sub-clause (i) of section 2(q) of the Act contemplates that the activity of building is not permissible on the date when the land is sought to be dealt with, not at any future time. 2. The Court further held that the competent authority must determine separately the land which falls under sub-clauses (i), (ii), (iii) and the proviso of section 2(q) of the Act subject to some land falling in Clause (ii) being covered by Clause (i).
Final Decision: The Court discharged the rules issued in the petitions and remanded the matter back to the competent authority for fresh determination of vacant land in accordance with the judgment. The petitioners were allowed to raise fresh contentions as permissible for computation of vacant land in respect of Survey No. 1257, but were not allowed to re-open the questions already decided regarding the rejection of their claim for exemption under section 20 of the Act.

JUDGMENT - M.N. CHANDURKAR, Actg. C.J.:---This petition arises out of proceedings for declaration of surplus vacant land under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as " the Act"). Admittedly C.T.S. Nos. 977/B and 1257 originally belonged to one Narhar Pawar, who died sometime in 1960 leaving behind him his widow, two major sons, one widowed daughter-in-law, two married daughters an one unmarried daughter.

2. Before the competent authority it was the contention of the petitioner that the property left behind by Pawar was co-parcenary property and that the seven heirs left by him should be treated as co-parceners and for the purpose of proceedings under the Act, one seventh share in the total land in question should be taken into account. In addition, it was contended that the petitioners had submitted a layout to the Pune Municipal Corporation on 2nd July, 1975 and that layout was liable to be taken into consideration for ascertaining whether there was any vacant land. It was also contended that the petitioners have built a commercial building and they were entitled to the benefit of the guidelines of exemption provided for under section 20 of the Act. All the objections were rejected by the competent authority, who declared an area of 5070.07 sq. ms. as excess vacant land, which was to be acquired by the Government.

3. In appeal the Collector, who was the Appellate Authority, Pune Urban Agglomeration, Pune, took the view that each of the heirs who inherited to property of Pawar ought to be treated as exclusive owner of his one seventh share. He rejected the other objections but remanded the matter to the competent authority for determination after ascertaining the share of each of the seven members to make a fresh calculation of the surplus area. This order is challenged by the owners of the property in six separate petitions, which are being disposed of by this common judgment.

4. When this matter was earlier heard on 5th August, 1983 it was contended by the learned Counsel appearing on behalf of the petitioners that having regard to the provisions of section 2(q)(i) of the Act, two-thirds of the area of the plots in question was such that no construction was possible to be made upon it and that area could not, therefore, be treated as vacant land. According to the learned Counsel, if the she of each owner of the property is separately considered and benefit of the provisions in section 2(q)(i) is given to each one of the petitioners, there is no surplus land which could be declared as such under the Act. Reliance was placed on a decision of the Division Bench of this Court in Wit Petition No. 1771 of 1979 decided on 31st January, 1983 (B.B. Billimoria anr. v. State of Maharashtra and others)1, in support of the contention that the petitioners were as a matter of right entitled to the exclusion of the two-thirds of the area of the plots in question for purposes of calculating excess vacant land. It appeared at that time that the decision of the Division Bench relied upon by the learned Counsel for the petitioners needed reconsideration. This petition was, therefore, referred to the Full Bench and that is how this petition and the connected petitions are now heard by this Full Bench.

5. Since a pure question of law has been argued before us with regard to the nature and scope of section 2(q)(i) of the Act, it is necessary first to refer to the decision in Billimoria's case, on which reliance was placed by the learned Counsel for the petitioner and the correctness of which has been disputed on behalf of the State. In Billimoria's case the land in question belonged separately to the two petitioners. The land belonging to petitioner No. 1 was to the extent of 3308.61 sq. m. and the land belonging to petitioner No. 2 was 3172.05 sq. m. Making allowance for 1000 sq. m. of land which was permissible to be retained under the Act, and area of 2308.61 sq. m. and an area of 2172.05 sq. m. was declar

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1983 Supreme(Bom) 214

The interpretation of section 2(q)(i) of the Urban Land (Ceiling and Regulation) Act, 1976, and the determination of vacant land for the purpose of declaring surplus land under the Act.

Cases Referred (1)