M/S. KEWAL COURT PVT. LTD. AND ANRversusTHE STATE OF WEST BENGAL AND ORS.

                   [2023] S.C.R. 724 : 2023 INSC 884



                             CASE DETAILS

             M/S. KEWAL COURT PVT. LTD. AND ANR.
                                      v.
             THE STATE OF WEST BENGAL AND ORS.
                      (Civil Appeal No. 6257 of 2014)
                            OCTOBER 09, 2023
           [SURYA KANT AND DIPANKAR DATTA, JJ.]
                              HEADNOTES
      Issue for consideration: The issue pertains to the true construction,
meaning and import of the expression ‘vacant land’ contained in Section
2(q) of the Urban Land (Ceiling and Regulation) Act, 1976 especially with
reference to sub-clause (i) thereof.
     Urban Land (Ceiling and Regulation) Act, 1976 – s.2(q) –
Expression ‘Vacant land’ – Construction, meaning and import of –
Interpretation and scope of s.2(q)(i) & (ii):
      Held: Discordance between *Jhonson’s case [two-Judge Bench] and
**Billimoria’s case [three-Judge Bench] on interpretation of s. 2(q)(i) –
Ceiling Act is an expropriatory legislation – `Payment’ u/s. 11 of the Act
to a land owner is not fair and just market value of the surplus vacant land
– Principles of strict construction would thus be attracted to such a statute
– Interpretation, spirit and object of the Ceiling Act, as it was envisaged at
the time of its enactment, when juxtaposed against the regressive impact
experienced in different States which is indicated in the statement of objects
and reasons of the Repeal Act, needs determination of all the related issues by
a larger bench – Thus, matter to be placed before Hon’ble CJI for appropriate
directions – Reference to larger bench. [Para 33-37]

       LIST OF CITATIONS AND OTHER REFERENCES

      *State of U.P. and Others v. L.J. Jhonson and Others (1983) 4 SCC
110 : [1983] 3 SCR 897; Meera Gupta (Smt.) v. State of West Bengal and
Others (1992) 2 SCC 494 : [1991] 1 Suppl. SCR 501; Angoori Devi (Smt.) v.
                                     724
 M/S. KEWAL COURT PVT. LTD. AND ANR. v. THE STATE                       725
            OF WEST BENGAL AND ORS.

State of Uttar Pradesh and Others (1997) 2 SCC 434; Angoori Devi (Smt.)
v. State of U.P. and Others (1997) 7 SCC 757; **State of Maharashtra and
Another v. B. E. Billimoria and Others (2003) 7 SCC 336 : [2003] 2 Suppl.
SCR 603; Atmaram Aggarwal v. State of U.P. (1993) 1 Suppl. SCC 1; Kunj
Behari Lal v. District Judge, Gorakhpur (1997) 6 SCC 257 – referred to.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6257 of 2014.
     From the Judgment and Order dated 19.05.2011 of the High Court at
Calcutta in FMA No. 1738 of 2004.
     Appearances:
    Jaideep Gupta, Sr. Adv., Vikas Mehta, Rajat Sehgal, Munir Ahmed,
Samyak Jain, Ms. Rachita Chawala, Kunal Chaiterji, Advs. for the
Appellants.
     Rakesh Dwivedi, Sr. Adv., Ms. Madhumita Bhattacharjee, Eklavya
Dwivedi, Ms. Urmila Karpurkayastha, Ms. Srija Choudhury, Anant,
Sandeep, L. C. Agrawala, Pankaj Agarwala, Ms. Reena Pandey, Gautam
Barua, Anurag Pandey, Chira Ranjan Addy, Advs. for the Respondents.

       JUDGMENT / ORDER OF THE SUPREME COURT

                              JUDGMENT
     SURYA KANT, J.
      1. The issue that falls for consideration in this case revolves around
the true construction, meaning and import of the expression ‘vacant land’
contained in Section 2(q) of the Urban Land (Ceiling and Regulation) Act,
1976 (in short, the ‘Ceiling Act’), especially with reference to sub-clause
(i) thereof.
      2. Notwithstanding the fact that ‘urban land’ or any regulatory
measures in relation thereto fall within the exclusive domain of a State
Legislature in terms of Entry 18 of List II—State List under the Seventh
Schedule of the Constitution, the Ceiling Act was enacted by Parliament,
in exercise of its powers under Article 252 of the Constitution for which as
726          SUPREME COURT REPORTS                         [2023] 13 S.C.R.


many as 11 States passed a Resolution authorising the Parliament to enact
a law imposing a ceiling on urban property, more so after the imposition
of a ceiling on agricultural lands in most of the States. The Ceiling Act
was, consequently, enacted to provide, inter alia, imposition of a ceiling
on ‘vacant land’ in urban agglomeration, the acquisition for such lands in
excess of the ceiling limit, to regulate the construction of buildings on such
lands and also to prevent the concentration of urban land in the hands of a
person etc.
      Legislative Scheme of the Ceiling Act:
      3. Section 3 provides that ‘on and from the commencement of this
Act’, no person shall be entitled to hold any ‘vacant land’ in excess of
the ceiling limit in the territories to which the Act applies under Section
1(2) thereof. Section 4 provides distinct ceiling limits for different urban
agglomerations falling within categories A to D in Schedule I. Section 6
of the Ceiling Act obligates the person holding ‘vacant land’ in excess of
ceiling limit to file statement whereupon the Competent Authority would
prepare a draft statement under Section 8 of the Act and after considering
any objection received against it, Section 9 contemplates a final statement
determining the vacant land held by the person concerned. Such ‘vacant land’
shall then be notified under Section 10 of the Act and would be acquired by
the State Government. Once, the ‘vacant land’ is notified as excess land,
the competent authority under sub-Section (3) would issue a declaration
whereupon the ‘vacant land’ shall be deemed to have vested absolutely in
the State Government free from all encumbrances. The person in possession
of the ‘vacant land’ on receipt of the notice in writing under sub-section (5)
must surrender or deliver possession thereof to the State Government and in
the event of his refusal or failure to comply with such order, the Competent
Authority is authorised under sub-section (6) to take possession of the vacant
land by use of force as may be necessary.
     4. The land owner who has been expropriated of the ‘vacant land’
would receive `payment’ as may be determined on receipt of his claim in
accordance with Section 11 of the Ceiling Act.
      5. Section 20 nevertheless empowers the State Government either on
its own motion or otherwise to exempt such ‘vacant land’ from the provisions
of the Ceiling Act if it is found to be necessary or expedient in the public
 M/S. KEWAL COURT PVT. LTD. AND ANR. v. THE STATE                         727
    OF WEST BENGAL AND ORS. [SURYA KANT, J.]

interest and/or when the State Government is satisfied that the applicability
of the provisions of taking away the land would cause undue hardship to
such person.
     6. In the context of the facts on record which are discussed succinctly
hereinafter, Section 2(b),(g),(o) and (q) of the Ceiling Act have some bearing
and the same are reproduced below:
     “2. Definition.—In this Act, unless the context otherwise requires,—
           xxx xxx xxx
          (b) “building regulations” means the regulations contained in the
     master plan, or the law in force governing the construction of buildings;
           xxx xxx xxx
           (g) “land appurtenant”, in relation to any building, means—
           (i) in an area where there are building regulations, the minimum
     extent of land required under such regulations to be kept as open space
     for the enjoyment of such building, which in no case shall exceed five
     hundred square metres; or
          (ii) in an area where there are no building regulations, an extent
     of five hundred square metres contiguous to the land occupied by
     such building,
           And includes, in the case of any building constructed before the
     appointed day with a dwelling unit therein, an additional extent not
     exceeding five hundred square metres of land, if any, contiguous to
     the minimum extent referred to in sub-clause (i) or the extent referred
     to in sub-clause (ii), as the case may be;
           xxx xxx xxx
           (o) “urban land” means,—
          (i) any land situated within the limits of an urban agglomeration
     and referred to as such in the master plan; or
           (ii) in a case where there is no master plan, or where the master
     plan does not refer to any land as urban land, any land within the limits
     of an urban agglomeration and situated in any area included within
728          SUPREME COURT REPORTS                         [2023] 13 S.C.R.


      the local limits of a municipality (by whatever name called), a notified
      area committee, a town area committee, a city and town committee, a
      small town committee, a cantonment board or a panchayat,
        but does not include any such land which is mainly used for the
      purpose of agriculture.
        Explanation.—For the purpose of this clause and clause (q),—
        (A) “agriculture” includes horticulture, but does not include—
        (i) raising of grass,
        (ii) dairy farming,
        (iii) poultry farming,
        (iv) breeding of live-stock, and
         (v) such cultivation, or the growing of such plant, as may be
      prescribed;
        (B) land shall not be deemed to be used mainly for the purpose of
      agriculture, if such land is not entered in the revenue or land records
      before the appointed day as for the purpose of agriculture:
         Provided that where on any land which is entered in the revenue or
      land records before the appointed day as for the purpose of agriculture,
      there is a building which is not in the nature of a farm-house, then, so
      much of the extent of such land as is occupied by the building shall
      not be deemed to be used mainly for the purpose of agriculture:
          Provided further that if any question arises whether any building
      is in the nature of a farm-house, such question shall be referred to the
      State Government and the decision of the State Government thereon
      shall be final;
         (C) notwithstanding anything contained in clause (B) of the
      Explanation, land shall not be deemed to be mainly used for the purpose
      of agriculture if the land has been specified in the master plan for a
      purpose other than agriculture;
                          xxx              xxx             xxx
 M/S. KEWAL COURT PVT. LTD. AND ANR. v. THE STATE                         729
    OF WEST BENGAL AND ORS. [SURYA KANT, J.]

       q) “vacant land” means land, not being land mainly used for the
     purpose of agriculture, in an urban agglomeration, but does not include
     –
        (i) land on which construction of a building is not permissible
     under the building regulations in force in the area in which such land
     is situated;
        (ii) in an area where there are building regulations, the land occupied
     by any building which has been constructed before, or is being
     constructed on, the appointed day with the approval of the appropriate
     authority and the land appurtenant to such building; and
        (iii) in an area where there are no building regulations, the land
     occupied by any building which has been constructed before, or is
     being constructed on, the appointed day and the land appurtenant to
     such building:
        Provided that where any person ordinarily keeps his cattle, other than
     for the purpose of dairy farming or for the purpose of breeding of live-
     stock, on any land situated in a village within an urban agglomeration
     (described as a village in the revenue records), then, so much extent
     of the land as has been ordinarily used for the keeping of such cattle
     immediately before the appointed day shall not be deemed to be vacant
     land for the purposes of this clause.”
     FACTS:
      7. The appellants purchased premises no. 24/7, Raja Santosh Road,
Alipore, Kolkata, measuring 3429 sq.m. by way of Registered Conveyance
Deed on 11th July, 1974. They applied to the Calcutta Municipal Corporation
[in short, ‘CMC’] for sanction of the building plan for which CMC issued
notice dated 23rd August, 1974 requiring them, to comply with certain
requisitions. The appellants claimed to have furnished the requisite
information on 17th October, 1974 but the CMC neither did sanction nor
reject their building plan within the stipulated period.
     8. Meanwhile, the Ceiling Act came into force on 17th October, 1976.
West Bengal is placed amongst the States where the Act was applied by virtue
of Section 1(2) thereof. Kolkata City admittedly falls within category ‘A’
730          SUPREME COURT REPORTS                          [2023] 13 S.C.R.


specified in Schedule I of Section 4(1) of the Ceiling Act with the Ceiling
Limit of 500 sq.m. The appellants filed a statement under Section 6(1) of the
Ceiling Act. They also applied for exemption in terms of Section 4(3) and
Section 20 of the Ceiling Act for construction of a Group Housing Scheme.
      9. The Competent Authority issued a draft statement [Section 8]
on 30th April, 1979 in which the retainable land was shown as 699 sq.m.
and 3115.50 sq.m. was determined as `vacant land’. A Notification under
Section 10(1) was issued on 7th November, 1979 followed by a declaratory
Notification under Section 10(3) on 5th January, 1980 whereby land
measuring 2929 sq.m. was held to be ‘excess vacant land’ with effect from
16th January, 1980 and which was deemed to have been acquired by the
State Government.
     10. The State Government, thereafter, issued a notice under Section
10(5) of the Ceiling Act on 4th March, 1980 asking the appellants to deliver
possession of the ‘vacant land’.
      11. The appellants challenged the action of the State declaring the land
‘vacant’ before the High Court in a writ petition wherein the parties were
directed to maintain the status quo on 15th April, 1980. The writ petition
was dismissed by a learned Single Judge on 25th June, 1987. The appellants
then filed an intra-court appeal in which ad interim order was allowed to
continue. The said appeal was finally dismissed on 19th May, 2011. The
appellants then approached this Court and on 21st November, 2011 the
parties were directed to maintain the status quo and not to create 3rd party
rights or change the nature and character of the property.
     12. The precise contention raised before the High Court and reiterated
before us on behalf of the appellants is that the procedure of calculating
‘excess vacant land’ adopted by the Competent Authority is derogatory to
Section 2(q)(i) and 2(q)(ii) read with Clause 20(2) of Building Regulations
notified under the Calcutta Municipal Corporation Act, 1951.
     13. It is broadly an admitted fact that the appellants in their statement
under Section 6(1) of the Ceiling Act declared the entire piece of land
measuring 3429 sq.m. as ‘vacant land’. They, however, in their objection
against the draft statement claimed existence of a structure, the area of which
was liable to be excluded from ‘vacant land’ in view of Section 2(q)(ii) of
 M/S. KEWAL COURT PVT. LTD. AND ANR. v. THE STATE                          731
    OF WEST BENGAL AND ORS. [SURYA KANT, J.]

the Ceiling Act. Such an objection did not find favour with the Competent
Authority, which after excluding retainable area measuring 500 sq.m. as
per Section 4(1)(a), declared the remaining land measuring 2929 sq.m. as
‘vacant land’.
     14. As of now, we need not consider the question whether there existed
any `building’ within the meaning of sub-clause (ii) of Section 2(q) of the
Ceiling Act on the subject land which could qualify for exclusion from the
permeates of a ‘vacant land’. This is largely a question of fact and will be
determined at the time of final hearing.
       15. The arguments of Shri Jaideep Gupta, learned Senior Counsel for
the appellants are predominantly restricted to the interpretation and scope of
sub-clause (i) of Section 2(q) of the Ceiling Act. His precise case is that as
per the statutory Building Regulations in force, construction of a building is
permissible only up to 50% area of the subject land and the remaining 50%
is required to be kept open. The half of the land, which is unconstructable,
is liable to be excluded from the total area of ‘vacant land’. In this manner,
land measuring 1714.50 sq.m. will stand excluded under Section 2(q)(i).
Out of the remaining ‘vacant land’ measuring 1714.50 sq.m., the appellants
are entitled to retain 500 sq.m. as per the ceiling limit [see Section 4(1)(a)]
and in this manner the ‘excess vacant land’ that can be acquired from them
comes to 1214.50 sq.m. only and not 2929 sq.m. Further, if the appellants’
plea to exclude the area covered under an existing building is accepted, in
that case, the area of `vacant land’ gets further reduced in view of sub-clause
(ii) of Section 2(q) of the Ceiling Act.
       16. Shri Rakesh Dwivedi, learned Senior Counsel for the respondents
contrarily urged that under the Building Regulations, 2/3rd area of the
‘vacant land’ can be utilized for construction and not 50% as claimed by the
appellants. Secondly, the lands which are to be excluded under sub-clause
(i) of Section 2(q) are such lands where no construction is permissible at all
under the Building Regulations. He illustratively refers to the lands notified
as ‘green belt’, ‘forest land’, ‘playground’ or for such other public purposes
as may have been described in the Town Planning Scheme whereunder
construction of a building is prohibited in an area. Shri Dwivedi maintains
that entire land measuring 3429 sq.m. has been rightly treated as ‘vacant
land’, out of which the appellants are entitled to retain 500 sq.m. only. Hence,
732            SUPREME COURT REPORTS                         [2023] 13 S.C.R.


the Competent Authority is right in determining the surplus ‘vacant land’
in the hands of the appellants.
      17. We, thus, revert back to the question formulated at the outset,
namely, what should be the true interpretation of the meaning of Section
2(q)(i) and (ii) of the Ceiling Act for determination of `vacant land’?
      18. State of U.P. and Others vs. L.J. Jhonson and Others1 is the first
holding by a two-Judge Bench of this Court to throw light on the provisions
of the Ceiling Act. That was a case where the respondent (Jhonson) had a
parcel of land admeasuring 2530 sq.m. in Dehradun city on which there stood
a building. He wanted to sell some portion of the open land in his possession
but the Competent Authority refused permission on the ground that the total
area in his possession was exceeding the ceiling limit. The District Judge as
well as the High Court held that Jhonson was entitled to retain 500 sq.m. as
the permissible area and another 500 sq. m. for the benefit and convenient
enjoyment of the building to satisfy the requirement of town planning and
environmental purposes. After excluding 1000 sq.m. area, there was no
`vacant land’ left with Jhonson. The High Court, in this regard, relied upon
Section 4(9) read with Section 2(q)(ii) of the Ceiling Act. On an appeal, this
Court consciously resolved to construe the nature, character, spirit and entire
scheme of the Act. Clauses (i) to (iii) of Section 2(q) were appropriately
paraphrased [See para 14]. Though the controversy did not relate to sub-
clause (i) of Section 2(q), this Court made an endeavour to opine on all the
sub-clauses of that provision as may be seen from paragraphs 15 and 17 of
the Report reproduced below:
       “15. So far as the first category is concerned, no complexity is involved
       because any open area in excess of 2000 sq metres in Category D States
       will be taken over by the Government. For instance, if an open land
       without construction consists of 6000 sq metres, the computation of
       the ceiling area would present no difficulty because 4000 sq metres
       will be taken over by the Government and 2000 sq metres will be left
       to the landholder. Secondly, if the entire land is covered by a building,
       such an area would completely fall outside the ambit of the Act and
       no question of computation would arise. Thirdly, a question arises

1
      (1983) 4 SCC 110
M/S. KEWAL COURT PVT. LTD. AND ANR. v. THE STATE                      733
   OF WEST BENGAL AND ORS. [SURYA KANT, J.]

  as to what would happen if there is a land on a part of which there
  is a building with a dwelling unit and an area (open land) which is
  appurtenant thereto is vacant. This category of land would doubtless
  present some difficulty in making the computation and the principles
  on which such computation is to be made. Section 4(9) is designedly
  and artistically drafted to meet such a contingency which may be
  extracted thus:
       “Where a person holds vacant land and also holds any other land
       on which there is a building with a dwelling unit therein, the
       extent of such other land occupied by the building and the land
       appurtenant thereto shall also be taken into account in calculating
       the extent of vacant land held by such person.”
                                                    (emphasis supplied)
  17. Clause (i) gives a blanket exemption to any land situated in an
  urban area where the entire area is covered by land on which it is not
  permissible to raise a building which will not be deemed to be vacant
  land within the meaning of Section 2(q). This is because such land in
  an urban area cannot be used for building purposes but being vacant
  falls beyond the purview of the Act. Clause (ii) postulates that where a
  land is occupied by any building constructed before or on the appointed
  day [‘appointed day’ has been defined in Section 2(a) of the Act] and
  there is some vacant land appurtenant to the said building, land which
  is built upon and any area which is left out in accordance with the
  building regulations would not be included in the ceiling area. The term
  ‘land appurtenant to such building’ would mean the contiguous land
  which remains after giving full allowance for the area left out under
  the municipal or building regulations subject to a maximum of 500 sq
  metres and another 500 sq metres which may be left for the beneficial
  use of the owner. The words ‘land appurtenant’ used in Section 4(9)
  takes us to its connotation as defined in Section 2(g)(i) and (ii) which
  may be extracted thus:
       “(g) ‘land appurtenant’, in relation to any building, means—
       (i) in an area where there are building regulations, the
       minimum extent of land required under such regulations to be
734            SUPREME COURT REPORTS                        [2023] 13 S.C.R.


             kept as open space for the enjoyment of such building, which in
             no case shall exceed five hundred square metres; or
             (ii) in an area where there are no building regulations, an extent
             of five hundred square metres contiguous to the land occupied
             by such building,
             and includes, in the case of any building constructed before
             the appointed day with a dwelling unit therein, an additional
             extent not exceeding five hundred square metres of land, if any,
             contiguous to the minimum extent referred to in sub-clause (i)
             or the extent referred to in sub-clause (ii), as the case may be;”
      19. Thus, according to Jhonson1, Section 2(q)(i) gives a blanket
exemption to any land situated in an urban area where the entire area is
covered by land on which it is not permissible to raise a building. Such
land will not be deemed to be ‘vacant land’ because the same cannot be
used for building purposes and thus falls beyond the purview of the Act.
As per Jhonson1 the `blanket exemption’ connotes an `entire area’ of an
urban agglomeration where no construction is permissible at all. In essence,
Jhonson1 while explicitly dealing with a situation falling under Section
2(q)(ii) also deemed it necessary to interpret each and every sub-clause of
Section 2(q) of the Ceiling Act. It was surely not an obiter-dicta.
      20. In Meera Gupta (Smt.) vs. State of West Bengal and Others2,
a three-Judge Bench of this Court noticed that Smt. Probhavati Poddar
(Proforma Respondent) was owner of two properties, one comprising
414.56 sq.m. of land of which 321 sq.m. was covered by a building and the
other comprising 339.65 sq.m. vacant plot. She entered into an Agreement
to Sell with Smt. Meera Gupta—the Appellant. A notice was served by the
Competent Authority on the proposed vendor and vendee under Section 6(1)
of the Ceiling Act directing the vendor to file the statement in Form No. 1
as she was holding ‘vacant land’ within the Calcutta Urban Area in excess
of the ceiling limit of 500 sq.m. Eventually, a draft statement was prepared
depicting 254.21 sq.m. of ‘vacant land’, against which objections raised
by Smt. Poddar were rejected and the same was notified as ‘excess vacant


2
      (1992) 2 SCC 494
 M/S. KEWAL COURT PVT. LTD. AND ANR. v. THE STATE                         735
    OF WEST BENGAL AND ORS. [SURYA KANT, J.]

land’ in the hands of Smt. Poddar. There also, this Court considered the
expression ‘vacant land’ as defined under sub-clauses (i) to (iii) of Section
2(q) of the Ceiling Act and laid down as follows:
     “11. To begin with “vacant land” as per the definition given in clause
     (q) of Section 2 means land as such, not being land mainly used for
     the purpose of agriculture, but situated in an urban agglomeration.
     “Vacant land”, however, does not include, as per the definition, land
     of three categories. The first category is land on which construction
     of a building is not permissible under the building regulations in force
     in the area in which such land is situated. But this is a category with
     which we are not concerned in the instant case. Johnson case3 is of
     this category. The second category is of land occupied by any building
     in an area, where there are building regulations, which has been
     constructed upon, or is under construction on the appointed day, with
     the approval of the appropriate authority, and the land appurtenant to
     such building. This means that if the building stood constructed on the
     land prior to January 28, 1976, the land occupied under the building is
     not vacant land. It also covers the land on which any building was in
     the process of construction on January 28, 1976 with the approval of
     the appropriate authority. That too is not “vacant land”. Additionally,
     the land appurtenant to these two kinds of buildings is also not “vacant
     land”. The third category likewise conditioned is of land occupied by
     any building in an area where there are no building regulations, which
     has been constructed before January 28, 1976 or is in the process of
     construction on such date, and the land appurtenant to these two kinds
     of buildings.”
       21. The three-Judge Bench in Meera Gupta2, with utmost respect,
misconstrued Jhonson1 as if it dealt with Section 2(q)(i) category and after
distinguishing it on that count, the Court proceeded to interpret sub-clauses
(ii) and (iii) of Section 2(q) in the following manner:
     “12. The aforesaid three categories of lands would otherwise be
     “vacant land” but for the definitional exclusion. The specific non-
     inclusion of these three categories of land is by itself an integral part
     of the definitional and functional sphere. The question that arises
     what happens to lands over which buildings are commenced after the
736            SUPREME COURT REPORTS                        [2023] 13 S.C.R.


       appointed day and the building progresses to completion thereafter. On
       the appointed day, these lands were vacant lands, but not so thereafter
       because of the surface change. Here the skill of the draftsman and the
       wisdom of the legislature comes to the fore in cognizing and filling up
       the gap period and covering it up in the scheme of sub-section (9) of
       Section 4. The visible contrast between “vacant land” and “any other
       land” held by a person on which there is a building with a dwelling unit
       therein becomes prominent. The said “any other land” is reckoned and
       brought at par with the “vacant land” for the purpose of calculating the
       final extent of vacant land. It seems to us that the expression “vacant
       land” in the first portion of the provision connotes land minus land
       under buildings constructed or in the process of construction before
       and on the appointed day, and the expression “vacant land” in the latter
       portion of the provision connotes the sum total of “vacant land” of the
       first order and distinctly the “other land” on which is a building with
       a dwelling unit therein of which construction commenced after the
       appointed day, and the land appurtenant thereto. Such an interpretation
       is required by the context as otherwise the concept of the appointed day
       and the gap period would be rendered otiose. The legislature cannot
       be accused to have indulged in trickery or futility in giving something
       with one hand and taking it away with the other. “Any other land” in
       the sequence would thus mean any other built-upon land except the
       one excluded from the expression “vacant land” on account of it being
       occupied by a building which stood constructed, or was in the process
       of construction, on the appointed day.”
      22. The Bench finally concluded that “The interpretation we have
put to the provisions pertinently relate to sub-clauses (ii) and (iii) of clause
(q) of Section 2. This interpretation in express terms cannot apply to sub-
clause (i) of clause (q) of Section 2. Johnson case [(1983) 4 SCC 110] as
said before, is a case under sub-clause (i) of clause (q) of Section 2. ……..
xx……….. xx…………xx……….xx”
     23. In Angoori Devi (Smt.) vs. State of Uttar Pradesh and Others3,
a two-Judge Bench of this Court was confronted with a dispute re: the


3
      (1997) 2 SCC 434
    M/S. KEWAL COURT PVT. LTD. AND ANR. v. THE STATE                          737
       OF WEST BENGAL AND ORS. [SURYA KANT, J.]

interpretation of sub-section (9) of Section 4 read with sub-section (q) of
Section 2 of the Ceiling Act. The State of Uttar Pradesh relied upon Jhonson1.
It was then pointed out that Jhonson1 was considered and distinguished by
a three-Judge Bench in Meera Gupta2. This Court, thereafter, took stock of
the anomalous observation in Meera Gupta2 to the effect that Jhonson1 was
a case dealing with sub-clause (i) of Section 2(q) of the Ceiling Act. After
the correct appraisal of Jhonson1 which was actually a case of ‘vacant land’
within the meaning of sub-clauses (ii) and (iii) of Section 2(q) and was not
confined to Section 2(q)(i) only, the matter was referred to a Larger Bench
as may be seen from the following operative part of the order:
      “17. It has been contended that Johnson case [(1983) 4 SCC 110] had
      specifically dealt with the definition of vacant land as given in Section
      2(q)(ii) and (iii). It will not be right to say that the Johnson case [(1983)
      4 SCC 110] was confined to Section 2(q)(i) of the Act.
      18. There is some force in this contention. The principle laid down in
      Meera Gupta case [(1992) 2 SCC 494] has been applied in the case of
      Atma Ram Aggarwal v. State of U.P. [1993 Supp (1) SCC 1]. Since
      Meera Gupta case [(1992) 2 SCC 494] was decided by a Bench of three
      Judges, the contention raised by the respondents should be considered
      by a larger Bench. This case may be placed before the Hon’ble the
      Chief Justice of India for appropriate direction.”
     24. Angoori Devi3 was then placed before a three-Judge Bench on
March 19, 1997 when it was referred to a Larger Bench of five-Judges.
The reference order is reported as Angoori Devi (Smt.) vs. State of U.P.
and Others4.
      25. However, before the matter could be heard by a five-Judge Bench,
the legal regime underwent a complete U-turn. The Ceiling Act was repealed
initially by way of an Ordinance notified on 11th January, 1999, initially in
the States of Haryana, Punjab and all the Union Territories. The Parliament
thereafter enacted the Urban Land [Ceiling and Regulation] Repeal Act,
1999 which came into force in the States of Haryana and Punjab and all the
Union of Territories with effect from 11th January, 1999, and in other States


4
     (1997) 7 SCC 757
738            SUPREME COURT REPORTS                       [2023] 13 S.C.R.


from the date of adoption of the Repeal Act under Clause (2) of Article 252
of the Constitution. The State of Uttar Pradesh also adopted the Repeal Act
and, consequently, the Ceiling Act ceased to operate in the State of Uttar
Pradesh. It rendered the reference in Angoori Devi4 case to a five-Judge
Bench as infructuous.
      26. It is extremely important to quote paragraph 4 of the Statement of
Objects and Reasons dated 17th February, 1999 of the Repeal Bill, which
interestingly said that:
       “4. The proposed repeal, along with some other incentives and
       simplification of administrative procedures, is expected to revive
       the stagnant housing industry. The repeal will facilitate construction
       of dwelling units both in the public and private sector and help
       achievement of targets contemplated under National Agenda for
       Governance. The repeal will not, however, affect vesting of any vacant
       land under sub-section (3) of section 10 of the Urban Land (Ceiling and
       Regulation) Act, 1976 the possession of which has been taken over by
       the State Governments. It will not affect payments made to the State
       Governments for exemptions. The exemptions granted under section
       20 of the Act will continue to be operative. The amounts paid out by
       the State Governments will become refundable before restoration of
       the land to the former owners.”
      While we do not mean to infuse any binding force in a Statement of
Objects and Reasons, but it certainly gives us a glimpse of the miserable
failure of a reformatory legislation.
      27. We may now turn to State of Maharashtra and Another vs. B.E.
Billimoria and others5 --a dictum rendered by a three-Judge Bench and
the sheet anchor of Shri Jaideep Gupta, learned Senior Counsel for the
appellants.
     28. That was a case where Billimoria (Respondent No. 1) and Laxmi
Bai Kalyanji Kapadia jointly owned a plot measuring 5428.09 sq.m in
Koregaon Park, Pune. In addition, Billimoria owned a flat having an area
of 297.28 sq.m in a building owned by a co-operative housing in Mumbai.


5
      (2003) 7 SCC 336
 M/S. KEWAL COURT PVT. LTD. AND ANR. v. THE STATE                          739
    OF WEST BENGAL AND ORS. [SURYA KANT, J.]

Kapadia also owned a residential flat having an area of 111.11 sq.m. in
a building owned by a cooperative housing in Mumbai. The Competent
Authority under the Ceiling Act held that Billimoria owned half of the plot in
Koregaon Park which came to 2714.05 sq.m. The area of his flat in Mumbai
was added to hold that Billimoria owned 3308.61 sq.m. which was in excess
of the ceiling limit of 1000 sq.m. in Pune city, to the extent of 2308.61 sq.m.
Kapadia was also found owning more than the permissible retainable land.
      29. Billimoria challenged the decisions of the competent authority and
the appellate authority in a writ petition before the High Court of Bombay.
The High Court relied upon the Building Regulations as were in force in
the Koregaon Park area of Pune whereunder no construction on more than
1/3rd of the total area of the plot was permissible. The High Court viewed
that since no construction was possible on an area of 2308 sq.m., the same
could not be treated as ‘vacant land’ within the meaning of Section 2(q)(i)
of the Act. The remaining land was held to be within the permissible ceiling
limit of Pune city.
     30. The aggrieved State approached this Court. In his leading judgment,
G.P. Mathur, J. [for Khare, CJ and himself] analysed Section 2(q)(i) and
affirmed the view taken by the High Court, laying down as follows:
     “A plain reading of the provision would show that any land on which
     construction is not permissible under the building regulations in force
     in the area would not come within the ambit of “vacant land”. Sub-rule
     (9) of Rule 2 of the Building Rules framed by the Collector of Pune
     for Koregaon Park lays down that not more than one-third of the total
     area of any building plot shall be built upon and in calculating the area
     covered by a building the plinth area of the building and other structures
     excepting compound walls, shall be taken into account. It further
     provides that any area covered by staircase and projections of any
     kind shall be considered as built over. The appellant does not dispute
     the applicability of this building rule to Koregaon Park area where the
     plot of land CTS No. 82 is situate. The definition of “vacant land” as
     given in Section 2(q) clearly provides that land on which construction
     of a building is not permissible under the building regulations in force
     in the area has to be excluded. As under the relevant rules in force in
     the area construction was not permissible on two-thirds of the area
740           SUPREME COURT REPORTS                           [2023] 13 S.C.R.


      of the plot, the High Court was perfectly justified in holding that for
      determining the vacant land in CTS No. 82, Koregaon Park, Pune,
      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 metres. In fact, on the plain language of the statute and
      the prohibition contained in the Building Rules in Koregaon Park
      area, which are in operation, it is not possible to take any other view.”
                                                             (emphasis applied)
       31. S.B. Sinha, J., in his separate concurring opinion held that the
Ceiling Act, being an expropriatory legislation, is required to be construed
strictly. Since Parliament has excluded the categories of lands as are specified
in sub-clauses (i), (ii) and (iii) of Section 2(q) from the definition of ‘vacant
land’, such exclusionary clauses must receive a liberal construction. The
expression ‘means’ in Section 2(q) of the Ceiling Act was held to be, prima
facie, restrictive and exhaustive. The previous decisions of this Court in
Jhonson1, Meera Gupta2, Atmaram Aggarwal vs. State of U.P. [1993
Supp(1) SCC 1], Kunj Behari Lal vs. District Judge, Gorakhpur [(1997) 6
SCC 257] besides the observations by a two-Judge Bench in Angoori Devi3,
as well as the reference made by the three-Judge Bench in Angoori Devi4 to
a larger Bench of five-Judges were duly noticed. It was then concluded that:
      “32. It is well settled that the provisions of the statute are to be read in
      the text and context in which they have been enacted. It is well settled
      that in construction of a statute an effort should be made to give effect
      to all the provisions contained therein. It is equally well settled that
      a statute should be interpreted equitably so as to avoid hardship. So
      interpreted the decision of this Court in Meera Gupta v. State of W.B.
      [(1992) 2 SCC 494] commends to us in preference of the decision of
      this Court in State of U.P. v. L.J. Johnson [(1983) 4 SCC 110]. Meera
      Gupta case [(1992) 2 SCC 494] has been followed by this Court in
      Atma Ram Aggarwal v. State of U.P. [1993 Supp (1) SCC 1] and Kunj
      Behari Lal v. District Judge, Gorakhpur [(1997) 6 SCC 257].
      33. We are not unmindful of the observations made by a two-Judge
      Bench of this Court in Angoori Devi v. State of U.P. [(1997) 2 SCC
      434] stating that the decisions of this Court in Johnson case [(1983) 4
      SCC 110] and Meera Gupta case [(1992) 2 SCC 494] are in conflict
 M/S. KEWAL COURT PVT. LTD. AND ANR. v. THE STATE                        741
    OF WEST BENGAL AND ORS. [SURYA KANT, J.]

     with each other and Johnson case [(1983) 4 SCC 110] should hold the
     field. However, in Angoori Devi case [(1997) 2 SCC 434] the conflict
     was not resolved by the Constitution Bench to which a reference was
     made by a three-Judge Bench in Angoori Devi v. State of U.P. [(1997)
     7 SCC 757]
     34. In view of our discussions aforementioned, it must be held that:
     (1) that the respondents having independent title to the property in
     question, are entitled to the two separate units under the said Act;
     (2) despite the fact that no construction had been raised on the
     appointed day, they are entitled to the benefit under sub-clause (i) of
     clause (q) of Section 2 of the Act; and
     (3) for the purpose of determination of the ceiling limit, the area of
     the flats belonging to the respondents in Bombay would not be taken
     into consideration. I, thus, agree with the conclusion arrived at by the
     High Court.”
                                                         [emphasis applied]
       32. Shri Jaideep Gupta, learned Senior Counsel for the appellants
strongly relied upon Billimoria5 as a binding precedent on the interpretation
of Section 2(q)(i) and urged to remit the case to the Competent Authority to
re-determine the ‘vacant land’ in the hands of the appellants after excluding
the area on which no construction is permissible under the Building
Regulations of Calcutta Municipal Corporation. On the other hand, Shri
Rakesh Dwivedi, learned Senior Counsel for the respondents strenuously
urged that the outcome in Billimoria5 was largely influenced by the fact
that there were two joint owners of the subject property who were held
entitled to their separate units under the Ceiling Act and each such unit was
required to exclude 2/3rd area where construction was impermissible and
after such exclusion, what was left in the hands of Billimoria or Kapadia was
definitely less than the retainable land measuring 1000 sq.m. in Pune Urban
area. To say it differently, the contention is that Billimoria5 is not founded
upon a plenary interpretation of Section 2(q)(i) of the Ceiling Act and what
has been held therein is an acknowledgement of two separate independent
units of each co-owner, where 2/3rd area of each unit was required to be
kept open mandatorily as per the Building Regulations.
742            SUPREME COURT REPORTS                           [2023] 13 S.C.R.


      33. We have considered the rival submissions. There is undoubtedly a
note of discordance between Jhonson1 [two-Judge Bench] and Billimoria5
[three-Judge Bench]. Jhonson1, on facts, was not a case under Section 2(q)
(i) but this Court consciously resorted to interpret and explain the entire
scheme of the Act including the fall out of Section 2(q)(i) thereof. Meera
Gupta2 mis-applied Jhonson1, hence, was rightly doubted in Angoori
Devi3. However, before the controversy could be authoritatively settled by
a five-Judge Bench, Angoori Devi3 was rendered infructuous due to repeal
of the Ceiling Act in the State of Uttar Pradesh. Unfortunately, the lead
judgement in Billimoria5 did not even notice Jhonson1 though apparently
it was brought to the notice of the Bench. We say so for the simple reason
that the concurring opinion specifically refers to Jhonson1. Billimoria5 did
not expressly overrule Jhonson1. Whether Jhonson1, to the extent it opined
on Section 2(q)(i) of the Ceiling Act, has been impliedly overruled or not,
is a debatable issue.
     34. Billimoria5 perhaps lends support to the contentions raised on
behalf of the appellants.
     35. The Ceiling Act indeed is an expropriatory Legislation. The
`payment’ under Section 11 of the Act to a land owner is not fair and just
market value of the surplus vacant land. Principles of strict construction
would thus be attracted to such a statute.
     36. The words, “….in an area” as incorporated in all the sub-clauses
of Section 2(g) and 2(q) also deserve special attention but have not been
explicitly discussed in any of the cited decisions.
      37. We are thus of the considered opinion that the interpretation, spirit
and object of the Ceiling Act, as it was envisaged at the time of its enactment,
when juxtaposed against the regressive impact experienced in different
States which is indicated in the Statement of Objects and Reasons of the
Repeal Act, invite an authoritative determination of all the related issues
by a Larger Bench. This case may, therefore, be placed before Hon’ble the
Chief Justice of India for appropriate directions.


Headnotes prepared by:                                     Matter to be placed before
Nidhi Jain                                    Hon’b le CJI for appropriate directions.