SUVARNA SMRITY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS writ petition under article 226 is directed against the orders passed by the authorities under the Urban Land (Ceiling and Regulation) Act, 1976 declaring the petitioners as surplus holder to the extent of 8109. 10 sq. mtrs.

(2.) BRIEFLY, the facts of the case are as follows : - The petitioner No.1 is a partnership firm and petitioner Nos. 2 to 8 are its partners. The partnership firm owns property bearing CTS No.2973 in 'c' ward in the city of Kolhapur. The land area of the said property admeasures about 16793 sq. mtrs. The property consists of land with several structures. There is no dispute that the structures standing on the property were constructed prior to the commencement of the Act. The structures are leased to Zilla Parishad of Kolhapur. It is the case of the petitioners that taking into consideration the land occupied by the structures, land appurtenant and other non-buildable land and ceiling area applicable for the city of Kolhapur which falls in category 'd', it was not necessary for the petitioners to file statement under section 6 of the Act. However, by way of abundant caution the petitioners filed statement under section 6 disclosing the said property as the property held by the petitioner No.1 firm.

(3.) WE find considerable force in the contention of Mr. Mhamane. In Prabhakar Narhar Pawar's case the Full Bench of this Court has considered the scope and effect of section 2 (q) (i) of the Act. It was held by the Full Bench that the said provision does not contemplate general exclusion of land from the purview of the Act to the extent of 2/3rd or one-half or whatever may be the extent of land on which no building can be constructed under the relevant building regulation in force in the area under consideration irrespective of whether a building is proposed to be constructed or not as on the date of commencement of the Act. To that extent it was held by the Full Bench that the judgment of the Division Bench in Billimoria's case (1983) 2 Bombay C. R. 618 was overruled. However, it was further held by the Full Bench that if there is already a sanctioned plan or plan submitted for approval on the date of commencement of the Act on the basis of which the land on which a building cannot be constructed under section 2 (q) (i) can be definitely ascertained then such area which is required to be kept compulsorily open will be liable to be excluded from the portion of the Act. In the present case, admittedly, plans were sanctioned and the buildings were constructed long prior to the commencement of the Act and therefore the area which is liable to be kept compulsorily open or area which is non-buildable under the relevant development rules cannot be treated as vacant land within the meaning of section 2 (q) and is therefore liable to be excluded. Both the authorities have unfortunately failed to consider this aspect of the case. In these circumstances, the impugned orders passed by the authorities are liable to be quashed and set aside. The matter is remanded back to the competent authority for a fresh decision in the light of the observations made in this judgment. Needless to mention that the competent authority shall give an opportunity of hearing before deciding the matter. Rule is made absolute accordingly. No order as to costs. Certified copy expedited. Rule made absolute. .