Ayodha Prasad Devidayal vs The State Of Maharashtra And Ors.
2001 Latest Caselaw 525 Bom

JUDGMENT

D.B. Bhosale, J.

By this petition, the petitioner challenges the order dated 29th July, 1986 passed by the Deputy Collector and ompetent Authority, Ulhasnagar Urban Agglomeration Thane and order dated 28th March, 1989 passed by the Additional Collector, Thane in appeal bearing No. ULC/A/33/86, filed by the petitioner. The petitioner has taken exception to the aforesaid orders, on the ground that the authorities below have committed grave error in treating the co-owners of the property as a single person within the meaning of section 2(i) of the Urban Land (Ceiling and'Regulation) Act, 1976, (for short "Act of 1976") and have defined the benefit of an independent ceiling limit under section 4(1) to the co-owners.

2. The facts leading to the instant petition are as follows : The deceased father of the petitioner Shri Devidayal Ramdin Pandey and one Tapsi Bindeshwari Partdey purchased land bearing Survey No- 191/1, 192/2 and 199/3 admeasuring 14,416.90 sq. mtrs. by registered sale deed dated 28th January, 1968 (for short "said land"). It has been specifically averred that both Devidayal and Tapsi had one half share, each in the said property and both these persons were not related. The deceased Devidayal father of the petitioner filed returns under section 6(1) of the Act of 1976, before the Competent Authority, wherein the aforesaid three survey numbers were mentioned amongst some other properties which ultimately were taken into account while determining the total holding of the father of the petitioner. In the instant petition we are concerned with the abovereferred three survey numbers only. The said properly is situated at Kalyan and in the said agglomeration, under section 4(c) of the Act of 1976, the ceiling limit is 1500 sq. mtrs. Mr. Mehere has restricted his challenge, contending that the father of the petitioner and Tapsi are separate persons/individuals and both separately and independently entitled to retain vacant land upto ceiling limit, namely 1500 sq. mtrs. The petitioner has claimed that after the death of Devidayal, the petitioner and respondent No. 3, sons of devidayal, are each entitled for independent ceiling limit in respect of one half share of Devidayal in the said property i.e. upto 750 sq. mtrs. Mr. Mehere, learned counsel appearing for the petitioner, fairly cohceded that the petitioner and respondent No. 3 being sons of Devidayal, trie' original declarant under section 6(1), after his death, are hot separately entitled to hold land upto full independent ceiling limit under section 4(1) of the Act of 1976.

3. Mr. Mehere, learned counsel for the petitioner contended that the Competent Authority/Deputy Collector has erroneously treated Devidayal and Tapsi, two separate persons as one and allowed them to retain 1500 sq. mtrs. together. According to him, even if it is assumed that there is no partition between Devidayal and Tapsi by metes and bounds, still their shares are definite and ascertainable and in view thereof both are independently entitle to retain 1500 sq. mtrs. out of their one half share in the said land. According to the petitioner, the said land admeasures 14,416.90 and after deduction of 8,677.30 sq. mtrs. of land under road and reservation, the total vacant land comes to 5,739.60. The one half share of each of the co-owners namely Devidayal and Tapsi comes to 2,869.79 sq. mitrs and after deducting 1500 sq. mtrs. of land which each of them are entitled to retain, only 1,369 sqmtrs.. Is surplus. Mr. Mehere, further, contended that the whole approach of the Deputy Collector is wrong and illegal in dividing the ceiling limit between two co-owners, and allowing them to retain 750 sq. mtrs. each and declaring 2,119 sq. mtrs. of the land as surplus. In other words, he contended that while granting the ceiling, the Appellate Authority has wrongly and illegally allowed the petitioner together with respondent No. 3 to retain only half of the ceiling limit namely 750 sq mtrs. and declared their holding surplus by 2,119 sq. mtrs. Mr. Malawankar, the learned counsel appearing for the respondents on the other hand contended that the co-owners fall in the category of body of individuals within the meaning of section 2(i) of the Act of 1976. He further contended that the co-owners in the present case purchased the said property jointly and it is not separated by rnetes and bounds, and in view thereof entitled for only on ceiling limit i.e. 1500 sq mtrs. together.

4. It would be advantageous at this stage to refer to relevant provisions of the Act of 1976, for better appreciation of the submissions advanced before us by the learned counsel appearing for the parties. Section 6(1) provides that the persons, holding vacant land in excess of celling limit, to file the statement within the prescribed period before the Competent Authority. Section 6(1) reads thus :-

"Every person holding vacant land in excess of the ceiling limit at the commencement of this Act shall, within such period as may be prescribed, file a statement before the Competent Authority having jurisdiction specifying the location, extent, value and such other particulars as may be prescribed of all vacant lands and of any other on which there is a building, whether or not with a dwelling unit therein, held by him (including the nature of his right, title or interest therein) and also specifying the vacant lands within the ceiling limit which he desires to retain :

Provided that in relation to any State to which this Act applies in the first instance, the provisions of this Sub-section shall have effect as if for the words "Every person holding vacant land in excess of the ceiling limit at the commencement of this Act", the words, figures and letters "Every person who held vacant land in excess of the celling limit on or after the 17th day of February, 1975 and before the commencement of this Act and every person holding vacant land in excess of the ceiling limit at such commencement" had been substituted.

Explanation - in this section "commencement of this Act" means, -(i) the date on which the Act comes into force in any State;

(ii) where any land, not being vacant land, situated in a State in which this Act is in force has become vacant land by any reason whatsoever, the date on which such land becomes vacant land;

(iii) where any notification has been issued under clause (n) of section 2 in respect of any area in a State in which this Act is in force, the date for publication of such notification.

Section 6(1) specifically provides that every "person" holding vacant land in excess of ceiling limits is Independently required to file the statement specifying the vacant lands within the ceiling limit which he desires to retain. Section 2(1) of the Act of 1976 defines "person" which reads thus :

"person" Includes an Individual, a family, a firm, a company, or an association or body of individuals, whether incorporated or not;

The definition of "person" includes an Individual, a family, a firm, a company, or an association of body of individuals, whether incorporated or not. Section 4 provides the "celling limit" upto which every "person" is entitled to retain land. In the present case, admittedly the land is situated in an urban agglomeration falling within Category C specified in Schedule I, and hence under section 4(l)(c) the ceiling limit is 1,500 sq mtrs. Section 4(1)(c) reads thus:

"where such land is situated in an urban agglomeration falling within Category D specified in Schedule I, two thousand square metres."

5. Now, on close reading of the aforesaid provisions, the word "person" assumes importance. Section 6(1) obliges every "person" to file statement before the Competent Authority specifying the vacant lands within the ceiling limit which he desires to retain. The definition of "person" under clause (i) of section 2, includes an individual, a family, a firm, a company or an association or body of individuals. The definition of "person" does not expressly include joint owners. We are, therefore, not required to consider whether joint owners fall within the categories included in the definition of "person", and more particularly in the category of "association" or "body of individuals". In the Instant petition, admittedly the father of petitioner Devldayal and Tapsi, are not members of the family. The definition of family under clause (f) of section 2 of the Act of 1976, in relation to "person" means only an individual, the husband or wife or their unmarried minor children. Devidayal and Tapsi, admittedly have filed separate returns under section 6(1) of the Act of 1976. Both have one half definite and ascertainable share in the said property. The Deputy Collector in his order dated 29.6.1986, has divided property half-half between Devidayal and Tapsi. In our opinion, therefore, the co-owners are neither "association" nor "body of individuals" and hence do not fall within the definition of "person". Somewhat similar situation arose before this Court in the case of Sharadaben Mafatlal and Ors. v. V. N. Karandikar. In that case the statement under section 6(1) of the Act of 1976 was filed by one co-owner. The enquiry into the statement revealed that the land involved in that case was held by eight different persons and they were holding separate distinct shares in the property. The other co-owners had not filed statement under section 6(1) of the Act of 1976. The Competent Authority held that eight co-owners were tenants-in-common with the pre-determined shares. It is further held that the shares of the co-owners though determined are not demarcated and property is not divided by metes and hounds. The property should not be treated as held by the "body of individuals". This Court while dealing with aforesaid situation in para 6 held thus :

"Turning to the merits of the case, the Competent Authority has recorded a clear cut finding that the property was held by the petitioners as tenants-in-common with a defined share. It is well settled that where the property is held by tenants-in-common having a defined share, then the holders could not be treated as joint holders merely on the ground that the property is not divided by metes and bounds. The assumption of the Competent Authority that as long as the properly is not divided by metes and bounds, it is imperative to consider undivided holding as holding of a body individuals is clearly wrong. The reliance by Shri Joshi in this connection on the decision of the Supreme Court reported in 82 I. T. R. 818 (supra) is very appropriate. On the first principle itself, it is impossible to sustain the conclusion recorded by the Competent Authority. Apart from that fact the petitioners could not be termed as a person within the definition of that expression contained in section 2(i) of the Act. The expression "person" includes an individual, a family, a firm a company or an association or body of" individuals whether incorporated or not. In our judgment, tenants-in-common cannot be treated.as an association, or body, of individuals. In this view of the matter, the interim order passed by the Competent Authority cannot be sustained and so also the notice, copy of which is annexed as Exhibit C to the petition, which was issued in pursuance of the interim order."

6. On a similar footing, in the facts of the present case we have no hesitation in holding that if the shares of the co-owners are definite and ascertainable, there can be no justification for treating such persons as falling within the category of "body of individuajs" as contemplated under , section 2(i) of Act of 1976. In the present case, Devidayal and Tapsi are two independent individuals. They cannot be said to be the members of family or a firm or a company or an association or body of individuals. Devidayal and Tapsi have filed independent returns under section 6(1) of the Act of 1976. Therefore, in our cpnsidened view each of them will be entitled to hold land seperately upto the ceiling limit, i.e. upto 1500 sq. mtrs. As a result of this, the petitioner together with respondent No. 3 being heir of Devidayal, is entitled to retain 1500 sq. mtrs. from the vacant land 2,869.79 falling to the share of Devidayal. Therefore, after deducting 1500 sq. mtrs. from 2869.79 sq. mtrs., only 1.369 sq. mtrs. would be surplus. In the circumstances, we allow the writ petition and direct the Competent Authority to prepare final statement and serve upon the petitioner and respondent No. 3 being heirs of Devidayal the declarant together with the notice under section 9 of the Act in the manner laid down in section 8(3) of the Act of 1976, and to initiate proceedings under sections 9 and 10 of the Act of 1976 to acquire the surplus land as above. The orders of the authorities below are quashed and set aside and substituted by this order. The Competent Authority to proceed further in the light of the observation made in the Judgment.

7. Accordingly, Rule is made absolute. There will be no order as to costs.