State of U.P. vs Mangal Sen and Another

B.D. Agarwal, J.—This writ petition under Article 226 of the Constitution is directed against the order of the District Judge, Meerut, u/s 33 of the Urban Land (Ceiling and Regulation) Act, 1976 (for short the Act) dated September 10, 1981.

The Respondent No. 1 submitted statement before the Competent Authority as required u/s 6(1) of the Act. A draft statement accompanied with notice was issued by the Competent Authority in accordance with Section 8(1) of the Act. The Respondent filed objection against the same contending that there is No. surplus land with him. The objection was repelled by the Competent Authority on March 28, 1980 with the finding that the land measuring 675.82 sq. meters is to be considered surplus with the said Respondent. The Respondent preferred appeal against this order. The appeal was allowed on September 10, 1981 as the learned District Judge was of the opinion that in view of Section 2(q)(i) of the Act there was No. surplus land with the Respondent.

Aggrieved, the State has preferred this appeal. The Respondent No. 1 has not appeared despite notice.

Dispute does not exist on the point that the land held by the Respondent No. 1 is as under:

1.Land covered by building (House No. 218 Ishwari, Meerut).

... 2583 sq. metres.

2.Land comprised in Khasra plot No. 2905 in Meerut 2149.82 metres.

5.The ceiling limit in the urban agglomeration concerned is 1500 sq. metres. The competent authority has taken the view that excluding 15 sq. meters, the balance out of the entire area, namely, 675.82 sq. meters is to be regarded as surplus held as such by the Respondent within the meaning of Section 3 of the Act. The appellate court was of the opinion that entire area covered by the house is to be excluded in view of Section 2(q)(ii) and that Section 4(9) is not in question because there is No. land appurtenant to the building and that the entire plot over which the building stands is covered up. It observed, however, that in view of Section 2(q)(i), the vacant land in this case is not to be taken as including 999.08 sq. metres because under the U.P. (Regulation of Building Operations) Act, 1958 construction is not permissible thereon. In this manner on giving the benefit of 999.09 sq. metres out of 2149.82 sq. metres which is the area of plot No. 2905 the conclusion arrived at is that there is No. surplus-the ceiling limit itself being 1500 sq. metres.

In State of U.P. v. L.J. Johnson 1983 AWC 798 at page 803 the Supreme Court laid down that where the entire urban land is covered by building or dwelling house, as in the present case, such an area would completely fall outside the ambit of the Act and No. question of computation would arise. Section 4(9) comes in picture, it was held, 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. No. such situation exists in this case the reason being that the entire piece of land where the dwelling unit numbered as house No. 218 is situate is covered and there is No. area appurtenant to the same. The Competent Authority has erred in adding up, therefore, 25.83 sq. metres which is the area comprised in the building for the purpose of arriving at the surplus. Vacant land as defined in Section 2(q)(ii) excludes land occupied by building constructed before the appointed day.

The question arises next with respect to the area in khasra plot No. 2905 which is 2149.82 sq. metres. In State of U.P. v. L.J. Johnson, 1983 AWC 798 (supra) at page 803 the Supreme Court also clarified that urban land which is entirely open in the sense that it does not contain any construction or building may be taken over by the State excluding there from of course so much of area as is within the ceiling limit prescribed u/s 4 of the Act. In that view on excluding 1500 sq. metres the balance left would be 649.82 sq. metres.

The learned Standing Counsel contends that there could be No. justification for the learned District Judge to have made exclusion of 99.08 sq. metres in addition. Section 2(q)(i) of the Act relied upon by the Appellate Court reads:

"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.

9.This came up for interpretation before a Division Bench of this Court in State of Uttar Pradesh Vs. L.J. Jhonson, . It was observed that the requirements such as provided for in the U.P. (Regulation of Building Operations) Act, are enforced for the purpose of allowing a minimum extent of land around the building for convenient enjoyment of the building and also for town planning and environmental purposes. For that purpose the Act has made provision for land appurtenant in relation to a building as contained in Section 2(q)(i). In reference to Section 2(q)(i) the view taken by the Division Bench is:

What is contemplated u/s 2(q)(i) is that land which is to be maintained as open space like green park, play ground etc. where No. construction is permissible at all under any regulations contained in the Master Plan or the law governing the construction of buildings. It does not cover cases where a part of the land is to be left open for beneficial and convenient enjoyment of the building or to satisfy the requirements for town planning and environmental purposes. This is obvious from Section 2(g) which prescribes that 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 shall not exceed the limit mentioned in that provision.

It is true that the interpretation placed upon Section 4(9) of the Act by the Division Bench of this Court has been reversed by the Supreme Court in State of U.P. v. L.J. Johnson 1983 AWC 798, but so far as the interpretation concerning Section 2(q)(i) is concerned, the Supreme Court has not taken a different view. On the other hand, the Supreme Court seems to have approved the view of this Court on that aspect as appearing from the observation that if a building site is completely open and un built, then the entire area of the open land should be treated as vacant and the benefit of Section 2(q)(i) should not be available to such a piece of land. In Ved Prakash Gupta Vs. District Judge and Others, a learned Single Judge of this Court also took the view that Clause (i) of Section 2(q) is not applicable to land which is required to be left as open space under the municipal bye-laws or the Building Regulations. Land provided as land appurtenant to the buildings u/s 2(g) takes care of that requirement--see also State of U.P. and Another Vs. Gurmeet Singh Pal and Another, . The appellate court was, therefore, not right in having given the benefit of 999.08 sq. metres from out of the area comprised in plot No. 2905. Land to the extent of 649.82 sq. metres out of plot No. 2905 would appear to be surplus within the meaning of Section 3/4 of the Act being above the ceiling limit.

The petition succeeds in part accordingly. The order made by the District Judge, Meerut, Respondent No. 2 dated September 10, 1981 (Annexure''2'' to the writ petition) is set aside. The appellate court shall determine the surplus land afresh in accordance with the law and the observations contained herein. There will be No. order as to costs.