Harihar Dinkar Kale and others vs D.K. Afzalpurkar and others

M.L. Pendse, J.—by registered sale deed, dated January 3, 1966 Govid Devadikar, his wife Saraswati Devadikar and Harihar Kale and his wife Sushilabai Kale purchased property bearing final plot No. 13 out of the town planning Scheme No. 1 at Bhamburda, Shivaji Nagar, Poona. The property was a built-up house and was partly tenanted. Devadikar and kale occupied the remaining portion. Devadikar and Kale are not related, but are friends. After taking possession of the property, on January 27, 1967 and agreement was executed between Devadikar and Kale, setting out that the object of purchase was to construct independent buildings for two separate families for the purpose of their residences. The agreement further recites that both the families and their children desired to construct buildings in future and though the relations are cordial, to avoid any conflict or dispute in future it was decided to divide the property in two parts as set out in the agreement.

After the advent of the Urban Land (Ceiling-and Regulations) Act. 1976, the petitioners filed return u/s 6(1) of the Act. The Competent Authority after considering the objections filed by the petitioners to the draft declaration, passed final order u/s 8(4) of the Act on December 5, 1977 declaring that the petitioners are holders of excess vacant land to the extent of 1108 sq. metres. The decision of the Competent Authority was challenged by the petitioners by filing appeal before the Collector and Appellate Authority, Poona Urban Agglomeration, but the appeal was dismissed by order, dated January 20, 1979, and this order is under challenge is this petition filed under Article 226 of the Constitution of India.

Sri. Sali, Learned Counsel appearing on behalf of the petitioners, submitted that the two authorities below committed an error in treating the two families as one unit and permitting retention of only 1000 sq. metres. The Learned Counsel submitted that the perusal of the sale deed and the agreement entered into between the two families after the date of the sale deed unmistakably establishes that the two families were separate units and could not be clubbed together by treating them as a single unit. There is considerable merit in the submission of the Learned Counsel. The appellate authority found that the agreement entered into in January 1967, that is long before the advent of the Act, was genuine. The Appellate Authority declined to treat the two families as separate units only on the ground that the property was not subdivided by mets and bonds. The Appellate Authority is clearly in error, because Division Bench of this Court, and to which one of us (Pendse.J.) was a party, held that it is not necessary that the property should be divided by metes and co-owners to claim that the property is held separately by determined shares. In view of the decision of the Davison Bench in Shardaben Mafatlal & others v. V. N. Karandikar and another 1982 Mah. U. 732 and with which we respectfully agree, the order of the Appellate Authority cannot be sustained.

Sri Sali also submitted that the two authorities below were in error in ignoring the built up area and the area adjacent to such built-up area while calculating the excess vacant land. The question as to the exclusion of built-up are and the adjoining area is settled by the decision of the Supreme Court in the judgment State of U. P. and others V. L J. Johnson and another, 1984 Mah. U. 76. It is therefore necessary to set aside the order passed by the Competent Authority as well as the Appellate Authority and remit the proceedings back to the competent Authority to reconsider the matter by treating the two families as separate units. The Competent Authority will examine the question of exclusion of built-up area and the adjoining area in accordance with the decision of the Supreme Court in Johnson''s case.

Accordingly, petition succeeds and the order, dated December 5, 1977 passed by the Competent Authority and the order, dated January 20, 1979 passed by the Collector and Appellate Authority in Appeal No. 19 of 1978 are set aside and the proceedings Eire remitted back; to the Competent Authority for fresh declaration in accordance with the direction given in the judgment.

There will be no order as to costs.