Shrimati Krishna Wati Seth vs The Competent Authority (Urban Ceiling Officer) Amritsar and others

Sukhdev Singh Kang, J.—This judgment will dispose of Civil Writ Petition No. 2707, 3286, 3466 and 4412 of 1979, since common question of law are involved therein.

The Parliament for making a provision for the imposition of ceiling on vacant land in urban agglomerations enacted the Urban Land (Ceiling and Regulations) Act, 1976 hereinafter called ''the Act''). It will be usesul to notice the relevent statutory provisions, which arise for interpretation in these cases, at the very outset :--

S. 2--In this Act, unless the context otherwise requires xxxxx xxxxx xxxx

(g) "land appurtenant", in relations to any building means--

(1) 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 is 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, and 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;

xxxxx xxxxx xxxxx

(q) "Vacant land" means land, not being land mainly used for the purpose of agriculture, in an agglomeration, but does not include--

(i) land on which construction of a building is not premissible 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 keep his cattle other then for the purpose of dairy farming or for the purpose of breeding of live-stock, on any land situated in the 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 purposes of this clause.

Persons not entitled to hold vacant land in excess of the ceiling limit.--Except as otherwise provided in this Act, no person shall be entitled to hold any vacant land, in excess of the ceiling limit, in the territories to which this Act applies under sub-section (2) of section 1.

Ceiling limit.--(1) subject to the other provisions of this section, in the case of every person, the ceiling limit shall be.

XXX XXX XXX

(5) Where any firm or unicorporated association or body of individuals holds any other land on which there is a building with a dwelling unit therein, or holds both vacant land and such other land, then, the right or interest of any person in the vacant land or such other land or both, as the case may be, on the basis of his share in such person.

xxx xxx xxx

(9) 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.

The questions that call for consideration of the cases are :--

(i) Whether in view of prohibition of section 3 against erection of any building within 30 metres on either side of a scheduled road, such land abutting on the scheduled road have to be excluded from consideration while determining the permissible vacant land;

(ii) if there are more than one building containing dwelling units constructed on the same plot of land, whether the land appurtenant to each of such building containing dwelling units has to be taken into consideration while determining the area of the vacant land;

(iii) Whether section 4(9) of the Act is applicable only to those land-owners, who own a vacant piece of land and also another piece of land on which there is a building with a dwelling unit therein and it is not applicable in a case where the building stands on the piece �of land, which is under consideration, for determining the extent of vacant land.

It is clear from clause (i) of sub-section (q) of section 2 of the Act that where any building regulation prohibit the construction of buildings on any land to the extent of 500 sq. metres of land shall fell within the definition of land appurtenant and shall not be included in the vacant land. The Schedule Road Act prohibits the construction of any building within 30 metres of a schedule road. The grand Trunk Road and the Amritsar-Sarhali-Ferozepore-Fazilka Road have been declared to be scheduled roads under that Act. Therefore, the lands abutting on these two roads upto a depth of 30 metres on which building cannot be constructed have to be excluded while determining the vacant land, but with one rider that only 500 square metres of land in each case, shall be excluded, not with standing anything contained in the Schedule Roads Act.

From the definition of land appurtenant, it is manifest that in case of any building constructed before the appointed day with a dwelling unit therein, an additional 500 square metres of land continuous to the minimum extent of appurtenant land, as defined in sub clause (1) of section 2 (q), shall be included in the term "Land appurtenant." In order to provide ecological balance and healthy environment open spaces have been directed to be left around the buildings. So, if two independent building having dwelling units therein are constructed on a plot, the appurtenant land as defined above has to be left in relation to both the buildings having dwelling units, for both such building an area of 1000 metres as land appurtenant and contiguous land shall have to be left and this area will not be included while determining the ceiling on vacant land....In this view of mine, I am fortified by a recent decision of Division Bench of Allahabad High Court in State of U.P. v. L.J. Jhonson (1978) R.C.R. 574.

The definition of the word ''Land appurtenant'' further indicated that if there are more than on dwelling units constructed on the same plot of land, land appurtenant to each dwelling unit has to be taken into consideration in determining the area of the vacant land, even if the dwelling unit is in the nature of a servant quarter or out house land appurtenant to it shall have to be left apart from the land appurtenant to the main building.

The language of section 4(9) is clear and unambigous. It applies only to a person, who holds a vacant plot of land and also holds another plot of land, on which there is a building with a dwelling unit therein. The words ''also'' and ''any other'' are significant and provide a key to the construction of this sub-section. It postulates two distinct piece of land, and in that case the land occupied by the building and the land appurtenant there to shall be taken into account in calculating the extent of vacant land held by such a person; otherwise the land occupied by a building and the land appurtenant thereto do not fall within the definition of vacant land. An exception has been carved out by this sub-section to the general rule enshrined in clause (q) of section 2.) However, this sub-section will not be attracted to a person who holds a piece of land which a building with a dwelling unit has been constructed, in that case, even if the area of that plot of land is in excess of the permissible limit, then while determining the permissible vacant land, the land occupied by the building and the land appurtenant thereto shall not be taken into account and after deducting this area, the landlord will be entitled to retain in Amritsar town, which fails in the category ''C'' (1500 square metres of land). Only if there is more land that will be declared in excess of the permissible area This very view has been taken in State of U.P. and other''s Case (supra). It has been observed :--

The learned Advocate-General contended that for the applicability of section 4 (9), it is not necessary that there must be a vacant land and another piece of land having a building with a dwelling unit on it and that in calculating the extent of vacant land held by a person the extent of land occupied by the building and the land appurtenant thereto shall be taken into account even in a case where there is only one piece of land held by the person. As pointed out earlier, the expression ''a person holds vacant land and also hold any other land presupposes that the other land must be different from vacant land and on the other land there must be a building with a dwelling unit therein It is the extent of such other land occupied by the building and the land appurtenant to it does not constitute vacant land (and) there appears to be no justification for taking the aforesaid land into account in calculating the extent of vacant land in a case where the building stands on the same land which is under consideration for determining the extent of the vacant land.

Now let us apply these principles to the facts of the cases in hand.

In Civil Writ Petition No. 2707 of 1979, petitioner owns Bungalow No. 6 situated on the G.T. Road outside Model Town, Amritsar. The total area of this bungalow is 2180 square metres. The built up area along with land appurtenant and contiguous land comes to 1470 square metres. The competent authority declared 680 square metres as vacant land in excess of the ceiling limit. The appellate authority accepted that there were buildings housing servant quarters apart from the main bungalow. Both had separate dwelling units. However, he did not allow allowance of 500 square metres of the land contiguous to the buildings housing the servant quarters. He also did not give the allowance of 500 square metres, though he accepted that the land abutted on the scheduled road. He was of the view that the petitioner had not furnished any proof that the land could not be utilized for building purposes. No proof is needed. The language of the Scheduled Roads Act is very clear. It prohibits the construction of any building upto a distance of 30 metres from a scheduled road. So the petitioner Smt. Krishana Wati was entitled to the exclusion of 1000 square metres of land which was denied by the authorities. She has been declared to have 680 square metres of excessive land. In view of my above finding, however, the land owned by her will fall within the ceiling limit.

Apart from these above two allowances, the case of Smt. Krishna Wati, does not fall within the purview of sub-section (9) of section 4 The land owned by her was only one plot of land, on which there is a building with a dwelling unit, while in determining the ceiling of her vacant land, she is entitled to exclude 1470 square metres of land and the land appurtenant thereto if this land is deducted, then she is left with only 710 square metres of vacant land, which is well within the ceiling limit.

In the case of Civil Writ Petition No. 3286 of 1979, it has been averred that the land abuts on the Amritsar-Sarhali-Ferozepore-Fazilka Road. The respondents have not specifically controverted this fact. The petitioners were thus entitied to the allowance of 500 square metres of land while determing their ceiling of vacant land. This allowance has not been given to them. They hold 2237 square metres and 737 square metres of land has been declared in excess of the permissible limit. Only 237 square metres is in excess with the Petitioners. The second plea of the petitioners that both partners Dharam Pal and Hari Krishan were each entitled to a separate permissible limit is not tenable. The land is owned by a partnership firm Messrs D.D. Hari Krishan and others. A firm is included in the definition of "Person" given in clause (i) of section 2. Under the Act, a person is entitled to hold 1500 square metres of land at Amritsar. The holding has to be seen with the partnership firm in this case and not its partners individually.

The third contention reaised by Mr. Mongia that the vacant land was purchased for industrial purposes. An application u/s 21 of the Act for examption from the operation of this Act had been given and was still pending with the State Government. During the pendency of this application, the authorities under the Act will not decide the case of the permissible limit of vacant land. Mr. Mongia has not been able to point out any provision of the Act or any other law, which enjoins upon the authorities acting under this Act to stay their hands during the pendency of application u/s 21 for exemption. The law does not so require. The State Government had not issued any stay orders So, the competent authority was not obliged to wait for the result of the representation u/s 21 of the Act.

The petitioner in Civil Writ Petition No. 4412 of 1970 own 4270 square metres of land at Amritsar. They have set up a factory there. The building area is 298 square meter comprised in two separate buildings. The competent authority allowed the petitioner to retain 1500 square metres of land besides the built up area of 500 square metres of the land appurtenant. He declared 1972 square metres of the land in excess of the permissible limit.

Mr. A.C Jain, the Learned Counsel for the petitioner, has contended that there were two separate buildings on the land and that an area of 500 square metres of appurtenant land should have been allowed for each of the two buildings. The authorities had given no reason for not making this allowance for both the buildings In clause (9) (i) of section 2 the allowance of 500 square metres as appurtenant land has to be given for every building. There was no reason to with-hold the same in the present case.

Mr. Jain''s second contention that during the pendency of the application u/s 2 of the Act, the authorities should not have decided the case of the petitioners, has no merit. The law does not prohibit the authorities under the Act from performing their duties during the pendency of a representation u/s 21 of the Act. Admittedly, the State Government has not issued any stay orders. The authorities erred in disallowing 501 square metres for the second building. Their orders are modified to the extent that the petitioner has 1472 square metres of excess vacant land.

In the case of Jagtar Singh (Civil Writ Petition No. 3466 of 1979). 315.78 square metres of land out of 1815 78 square metres of land situated in the Green Avenue, Amritsar, have been declared to be in excess of the permissible limit. There are admittedly two buildings with dwelling units theirin. The allowance of contiguous land has been given only qua one building. This is clearly against the law. The petitioner was entitled to a further allowance of 500 square yards regarding the second building with a living unit. The area declared in excess with him is only 315.75 square metres. In view of my above conclusion he in fact has no vacant land beyond the permissible limit. Furthermore, this was one plot of land and he is entitled to a permissible area of 1500 square metres of vacant land apart from the area occupied by a building and the land appurtenant thereto and the contiguous and.

To sum up, Civil Writ Petition Nos. 2707, and 3466 of 1979, are allowed, the order of the authorities declaring land in excess of the permissible limit in case of Smt Krishna Wati and Jagtar Singh are set side and it is declared that they have no land in excess of the permissible limit.

So far as Messrs D.D. Hari Krishna and others in Civil Writ Petition No. 3286 of 1979, are concerned, the orders of the competent authority and the appellate authority are modified. The petitioner has only 237 square metres of land in excess. The orders of the competent authority and the appellate authority in case of Messrs Indra Woollen Textile Mills (Civil Writ Petitioner No. 4412 of 1979) are modified. The petitioners have 1472 square metres of vacant land in excess of the permissible limit. There shall be no orders as to costs.