Shaukat Ali vs District Judge and Others

R.H. Zaidi, J.—By means of this petition, under Article 226 of the Constitution of India, Petitioner prays for a writ, order or direction in the nature of certiorari quashing the judgments and orders, dated 12.5.1983 and 3.2.1983. contained in Annexures-5 and 6 to the writ petition, passed by Respondent Nos. 1 and 2 respectively in the proceedings under Urban Land (Ceiling and Regulation) Act, 1976, hereinafter referred to as the ''Act.''

It appears that it was in the year 1976, immediately after the Act was enforced, Petitioner filed his return u/s 6(1) of the Act disclosing the area of residential and agricultural land held by him on the relevant date. Thereafter, the Petitioner was served with the draft statement u/s 8(3) by the Respondent No. 2, the competent authority, whereby 13807.18 mts. land of the Petitioner was sought to be declared as excess vacant land. Against the aforesaid draft statement, the Petitioner filed his objection mainly contending that agricultural land cannot be taken into consideration for the purpose of the present Act. It was also pleaded that over plot No. 409 on an area measuring 2 bighas 3 biswas, there existed old construction which was used as farm house for keeping cattle, the same was incorrectly included while calculating the ceiling limit of the Petitioner. Petitioner also filed an application u/s 20 of the Act before the State Government for the exemption of the agricultural land.

By means of an order, dated 3.2.1983 the objection of the Petitioner was rejected and area measuring 13807.18 mts. out of his land was declared as excess vacant land by the competent authority. Aggrieved by the judgment and order passed by the competent authority, Petitioner preferred an appeal before the appellate authority, the Respondent No. 1. The appeal filed by the Petitioner also failed and was dismissed by the appellate authority vide its order dated 12.5.1983. Aggrieved by the orders passed by the competent authority and the appellate authority, the Petitioner filed the present petition and challenged the validity of the said orders as stated above.

A counter-affidavit has been filed on behalf of the Respondents controverting the facts stated in the writ petition and mainly asserting that it was on 12.4.1978 that the Master Plan was sanctioned for Aligarh and a draft statement was issued to the Petitioner thereafter, therefore, the authority below did not commit any error of law or jurisdiction in calculating the ceiling limit and declaring an area measuring 13807.18 mts. as excess vacant land. Paragraph No. 4 of the counter-affidavit is reproduced below:

That the contents of Paras 2 and 4 of the writ petition are denied to the extent that the land of the Petitioner is agricultural, because it has already been sanctioned under the Master Plan dated 12.4.1978 and also that the residential house is an old construction, in absence of any evidence to the effect.

Learned Counsel for the Petitioner submitted that on the appointed day as defined in Clause (a) of Section 2 of the Act, the land in dispute was recorded as agricultural land, therefore, the same cannot be taken into consideration for the purpose of calculating the ceiling limit of the Petitioner as the same does not come within the definition of Urban land as defined in clause (o) of Section 2 of the Act. He has also placed reliance upon the decision of Apex Court in Smt. Atia Mohammadi Begum v. State of U.P. and Ors. 1993 (1) ALJ 1132.

On the other hand, learned standing counsel has submitted that the appointed day for the purpose of present case, shall be on the date when the Master Plan was enforced in Aligarh. After enforcement of Master Plan, the competent authority had the jurisdiction to determine the ceiling area of the Petitioner and to declare excess vacant land, if any, held by him. In support of his submission, the learned standing counsel placed reliance upon the provisions of Clause (o) of Sections 2 and 6 of the Act. In substance, the submission by the learned standing counsel is that the Act will have to be given effect to by stages meaning thereby, even if, on the appointed day there existed no Master Plan and the Master Plan is thereafter sanctioned and enforced the Act shall apply from the date of enforcement of the Master Plan. He submits that in the present case, Master Plan was enforced on 12.4.1978, therefore, the competent authority was justified in issuing draft statement u/s 8 of the Act after the said date and to determine the ceiling limit of the Petitioner.

I have considered the rival submissions made by the learned Counsel for the parties. In my opinion, since the controversy involved in the present case already stands concluded by the decision of the Apex Court in Atia Mohammadi Begum''s case (supra), and there is no scope for the argument to the contrary. In the aforesaid decision, it was ruled by the Apex Court of the country as under:

The scheme of the Act supports the construction that the aforesaid Explanation (C) means that if the land has been specified in the Master Plan existing at the time of commencement of the Act for, a purpose other than agriculture, then the land shall not be deemed to be mainly used for the purpose of agriculture by virtue of the Explanation and not if the land is specified in a Master Plan preferred after the commencement of the Act. The plain language of Explanation (C) bears this construction and requires it to be so construed in order to harmonise it with the other provisions and scheme of the Act. Just as the holder of the land cannot by his subsequent actions reduce the area of the vacant land in excess of the ceiling limit, the authorities too cannot by any subsequent action increase the area of the excess vacant land by a similar action. The ''Master Plan'' defined in Section 2(h) and referred in the definition of ''Urban land'' in Section 2(o), including Explanation (C) therein, is obviously a Master Plan prepared and in existence at the time of commencement of the Act when by virtue of Section 2 of the Act, rights of the holder of the land under the Act get crystallised and extinguish his right to hold any vacant land in excess of the ceiling limit.

It is not disputed that the Act came into force in the year 1976. The right of the parties will have to be determined with reference to the appointed day as defined under Clause (a) of Section 2 of the Act which was admittedly in the year 1976. Subsequent enforcement of the Master Plan on 12.4.1978 will not deprive the Petitioner of his right to hold the agricultural land in addition to the land as specified under the Act. If the agricultural land held by the Petitioner is excluded from consideration, it is not disputed that there remains no land to be declared an excess vacant land. The argument made by the learned standing counsel to the contrary is not acceptable to me. In view of the aforesaid discussions, the writ petition deserves to be allowed.

The writ petition succeeds and is allowed with costs. The orders passed by the authorities below dated 12.5.1983 and 3.2.1983 are hereby quashed.