STATE OF MAHARASHTRA AND ANR. versus B.E. BILLIMORIA AND ORS.

Citation: [2003] SUPP. 2 S.C.R. 603 · Decided: 14-08-2003 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Appeal(s) allowed

Judgment (excerpt)

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STATE OF MAHARASHTRA AND ANR. 
V. 
B.E. BILLIMORIA AND ORS. 
AUGUST 14, 2003 
[V.N. KHARE, CJ., S.B. SINHA AND G.P. MA THUR, JJ.] 
Urban Land (Ceiling & Regulations) Act, 1976; Ss. 2(9), 3, 4(9) & 
Building rules thereunder: 
A 
B 
Ceiling limit-Applicability of-Vacant /and-Exclusionary clauses- C 
Interpretation of-Held: Since both owners having independent title ih the 
plot, they are owners of equal share in the plot excluding two third area of 
the lane! need to be kept vacant-Such area of plot cannot be considered as 
vacant /and-They have been allotted flats in a building owned by a co-
operative Society-It can not be construed that they are owners/in possession D 
of any vacant /and-Section 4(8) & 4(9) not attracted-Area of flats could 
not be clubbed with vacant /and-High Court rightly directed to exclude 
such area of the land for the purpose of determining the ceiling limit-Hence 
land held by them falls within the ceiling limit-Transfer of Property Act-
Section 45-lnterpretation of Statutes. 
Words and Phrases: 
'vacant land', 'Exclusionary Rule' and 'ceiling limit'-Meaning of 
E 
Respondents owned a plot at Pune and two flats in Mumbai. Wife of 
respondent No.2 also owned a part of an industrial building. The competent 
authority held respondents in possession of certain land in excess of the land F 
ceiling limit in Pune. Aggrieved, respondents unsuccessfully filed appeals 
before the Appellate Authority. Hence, they preferred writ petition before the 
High Court. Allowing the writ petition, High Court held that in view of the 
building regulations construction on 2/3rd area of the plot was not permitted, 
it could not be treated as vacant land and area of the flats owned by them could G 
not be clubbed with the area of the plot for the purpose of determining ceiling 
limit since the area of the flat could not be treated as vacant land. Hence the 
present appeal by the State. 
It was contended for the appellants that the plot should be treated as 
603 
II 
604 
SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R. 
A single unit since both the respondents jointly owned it; that in the absence of 
any construction, respondents could not claim that only 1/3rd area of the plot 
could be taken into consideration as vacant land; and that area of flats in 
Mumbai owned by respondents could not be excluded for consideration as 
vacant land. 
B 
Dismissing the appeal, the Court 
HELD: Per Mathur, J. (for himself and CJI): 
1.1. In view ofspecific provision of law as contained in Section 4 of the 
Urban Land (Ceiling & Regulations) Act only the share ofrespondent Nos.I 
C and 2 had to be taken into consideration in the plot at Pone, as both of them 
together hold the plot. Further, as per specific provision, as contained in 
Section 45 of the Transfer of Property Act, 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 plot. (609-C, D, F, G] 
D 
2.1. As per building regulations 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 the plot of the respondents at 
Pone, 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. 
E meters. It is not possible to take any other view. [610-E, F] 
2.2. Respondents have merely been allotted flats in a building owned 
by a co-operative society. There is absolutely no material 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 
F 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 of the Act would not apply. Thus, the view taken by the 
Competent Authority and the Appellate Authority that the area of the flats in 
G Bombay had to be clubbed with the vacant land held by the respondents in 
Pone was patently wrong and the High Court has rightly set aside the same. 
. (612-B, C, D] 
Per Sinha, J. (Supplementing): 
1.1. The land in question is situated within a green colony. The plots-
H cannot be sub-divide

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