K.P. Singh, J
1. The writ petition has been filed by the State of U.P. against the judgment of Shri K. C. Sharma, District Judge, Dehradun, dated 2-7-79 in Urban Land Ceiling Appeal No. 89 of 1979 Shri Gurmeet Singh Pal versus State of U.P. and others whereby it has been held that the opposite party No. 1 in the present writ petition did not possess any excess vacant land.
2. It has not been disputed before me that the opposite party No. 1 owned and possessed an open piece of land measuring 2409 sq. metres. A draft statement u/s 8(3) of the Urban Land (Ceiling and Regulation) Act, 1976 was served upon the opposite party No. 1 intimating that 409 sq. metres excess land was possessed by him and requiring him to file any objection thereto.
3. The opposite party No. 1 contested the draft statement on the ground that under the Dehradun Nagar Palika Byelaws, no construction could be made upon 1444 sq. metres land, hence he was not possessed of any excess land.
4. Secondly, it was contended that a Leechi grove existed over the disputed land, hence it was exempted from the definition of land" under the above-mentioned Act.
5. The competent authority through its order dated 30-4-1979 (Annexare I attached with the writ petition) repelled the contentions raised on behalf of the opposite party and confirmed the draft statement served upon the oppsite party No. 1 in the present writ petition. Aggrieved by the order of the competent authority the opposite party No. 1 had preferred an appeal which was allowed by the District Judge through his impugned judgment dated 2-7-1979. Now the State of U.P. has approached this Court under Article 226 of the Constitution.
6. The learned Counsel for the State has contended before me that since the disputed land was an open piece of land, the opposite party No. 1 can hold maximum vacant land under the provisions of the Act to the extent of 2000 sq. meters only. According to him the appellate authority has patently erred in taking shelter behind the provisions of Section 2(g) of the Act. He has further contended that in the circumstances of the present case the provisions of Section 2(q)(i) of the Act would not be applicable in view of the decisions of this Court reported in
7. The learned Counsel for the opposite party has tried to refute the contentions raised on behalf of the Petitioner and supported the judgment of the appellate authority on the grounds mentioned in the impugned judgment. He further submitted that the Petitioner challenged the correctness of the decision in 1978 AWC 731 in the Writ Petition and did not make any specific allegations that the opposite party No. 2 was not entitled to the area permitted by the appellate authority on the ground that there did not exist any building over the disputed land. According to the learned Counsel for the opposite party, the opposite party did not possess any excess land in view of the provisions of Section 2(g) read with Section 2(q)(i) of the Act as held by the appellate authority.
8. I have considered the contentions raised on behalf of the parties and I have gone through the impugned judgment of the appellate authority. In my opinion, the appellate authority has patently erred in taking shelter behind the provisions of Section 2(g) of the Act which is wholly inapplicable to the facts and circumstances of the present case. Section 2(g) of the Urban Land (Ceiling and Regulation) Act, 1976 reads as below :
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, 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 maybe.
9. The aforesaid Section 2(g) defines land appurtenant" in relation to any building which pre-supposes existence of a building. In the present case the disputed land is an open piece of land and no building exists over any portion thereof hence there does not arise the applicability of the provisions of Section 2(g) of the Act to the facts and circumstances involved. The appellate authority has patently erred in holding that in the present case the owner is entitled to retain only,1000 square metres as appurtenant land and additional appurtenant land in addition to permissible ceiling limit of 2000 square metres in the district in question.
10. Section 2(g) of the above-mentioned Act defines vacant land" which 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 date with the approval of the appropriate authority and the land appurtenant to such building ; and
(iii) in 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.
11. During the course of arguments the counsel for the parties placed reliance upon the ruling reported in
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 ................... Read in such a light the inference is unavoidable that cl. (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.
12. In view of the above extract, I think that the contention of the learned Counsel for the opposite party No. 1 is not correct that the open piece of land of the opposite party No. 1 cannot be characterised as vacant land within the meaning of the provisions of Section 2(q)(i) of the Act. The other sub-clauses of Sections 2(q) and 2(g) of the Act do not apply to the facts and circumstances of the present case as there did not exist any building on the relevant date (i.e. the date when the Act has been applied to the land in question). Thus, the appellate authority has patently erred in holding that the opposite party No. 1 in the present writ petition did not possess any excess vacant land.
13. Perusal of the impugned judgment indicates that the claim of the opposite party No. 1 regarding a Leechi grove has not at all been examined by the lower appellate Court. Hence it would be in the interest of justice to send the case back to the lower appellate Court for re-examining the claim of the opposite party No. 1 strictly in accordance with law.
14. As regards the contention of the opposite party No. 1 that the Petitioner did not allege in the writ petition that the opposite party No. 1 was not entitled to the benefit of Section 2(g) of the Act on the ground that there did not exist any building over any portion of the disputed land it is sufficient to indicate that the facts mentioned in the judgments attached with the writ petition did disclose that the disputed land was only an open piece of land and there did not exist any building, hence I have entertained the contention of the learned Counsel for the Petitioner that the appellate authority has patently erred in applying Section 2(g) of the Act to the facts and circumstances of the present case when there was no building over the disputed land nor consideration of appurtenant land was needed.
15. In the result, the writ petition succeeds and the impugned judgment of the appellate authority is hereby quashed and the appellate authority is directed to re-examine the claim of the opposite party No. 1 strictly in accordance with law. Parties are directed to bear their own costs.
