N.N. Sharma, J.@mdashThis petition is directed against order by Sri. K.C. Sharma, learned District Judge, Dehradun dated 5-5-1980 who allowed Ceiling appeal No. 55 of 1980 and modified the order of learned competent authority u/s 4, Sub-clause (4) of Urban Land (Ceiling and Regulation) Act (Act No. 33 of 1976) dated 19-3-1980.
2. Disputed plots are 108, 109 and 114, measuring 2013.48 sq. meters, 1460.76 Sq. meters and 2013.48 Sq. meters respectively situate in Kishanpur, Dehradun. It appears that opposite party No. 1 filed a statement u/s 6, Sub-clause (1) of the Urban Land (Ceiling and Regulation) Act claiming that no part of the land held by him was excess vacant land within the meaning of this Act. The competent authority prepared a draft statement u/s 8 of the Act proposing to declare an area measuring 3487.72 Sq. meters as surplus land. An objection was filed by opposite party No. 1 which was repelled and an area measuring 3487.72 Sq. meters was held as surplus land on 19-3-1980 vide Annexure No. 1.
3. Opposite party No. 1 went up in appeal (Ceiling Appeal No. 55 of 1980) which was partly allowed by the impugned judgment on 5-5-1980 vide Annexure No. 2. The area of surplus land was reduced to 611.27 Sq. meters only.
4. This writ petition assails the judgment of the appellate authority.
5. Sri. P.K. Misra learned Standing Counsel for the State argued that appellate authority mis-construed the provisions of Section 2(q)(i) of the said Act. Section 2(q)(i) of the aforesaid Act reads as below:
"2(q)(i). Vacant land means land, not being 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 situate."
6. Learned Standing Counsel urged that no building or tree stood on the disputed land and under such circumstances the nature of the land could not be anything less than the vacant land.
7. It appears that the provisions of buildings bye-laws No. 44 City Board Dehra Dun are applicable to the facts of this case. The said bye-law is as below:
"44. The following restrictions with regard to the keeping of upon space, etc. in the matter of construction of buildings shall be applicable:
| SI No | Area of plot | Open space | Minimum open | ||
| Front | Back | Sides | space | ||
| 1. | 500 to 1000 Sqft. | 4 | 1.1/2 | 1.1/2 | One third. |
| 2. | 1001 to 4500 " | 4 | 2 | 2 | do |
| 3. | 4501 to 10000 " | 15 | 7.1/2 | 7.1/2 | Half |
| 4. | 10001 to 12000 " | 15 | 10 | 10 | do |
| 5. | 12001 to 18000" | 20 | 15 | 15 | 60 |
| 6. | 18001 and above " | 25 | 15 | 20 | 30 |
Thus having regard to the area of the 3 plots, the present case falls under category No. 5 ; under this category minimum open space which has to be left open and on which building cannot be constructed is 60% of the total area.
8. Acting on the said bye-law learned appellate authority found that an area of 1000 Sq. meters in each of the said three plots could not be deemed vacant land as no building activity is permissible thereon. Thus after the exclusion of that area, vacant land of plots came to 2611.27 Sq. meters.
9. Deharadun City falls under category-D and the permissible ceiling limit of vacant land in City of Dehradun is 2000 square meters. Thus the surplus area in possession of opposite party No. 1 came to 611.27 square meters only.
10. Sri. V.S. Jauhari, learned Counsel for the opposite parties tried to up-held the findings of appellate authority. In this connection he relied upon a Single Judge decision of this Court in State of Uttar Pradesh v. Someshwar Prasad 1982 AWC 443, which posited:
The land on which construction is not permissible under the Building Regulations in force in the area in which such land is situate, cannot be held as vacant land. The question is whether there is any prohibition on the construction of a building upon such land. The Bye-Law No. 44 enjoins the leaving of an open space of minimum of 30% of the plot, which means that no constructions can be made at least on that much area of land. If there is no prohibition and building can be raised thereon, it will be deemed to be vacant land. In the case of
Clause(i) of Section 2(q) was applicable only in respect of land whereupon construction of a building is expressly prohibited by the Building Regulation in force in the area in which such land is situate. I am of the view that if the building Bye- laws indicated that a certain percentage of the area is not to be built upon that part of the land will not be a vacant land. Similarly if the building Bye-laws require that minimum area of the land has to be kept as open space it means that there is an implied prohibition from making construction on that land. In this view of the matter the Building Bye- Law No. 44 which was applicable to all lands situated in the Municipal limit of Dehradun City would come under the purview of implied prohibition....
11. It appears that the said decision was based upon a Division Bench of Calcutta High Court in
A tank with water in it is not a building site either Under Rule 1 or Rule 2 of Part I of Schedule 16 of the Calcutta Municipal Act and as such, construction of building on such tank is not permissible under the building Regulations of the said Act. Therefore, such tank comes Under Clause (ii) of Section 2(q) and it is not a "vacant land" within the meaning of Section 2(q) AIR 1975 SC 1234.
12. The next authority relied-upon by the learned Single Judge occurs in Dattatray Shankarbhat Ambalgi v. State of Maharashtra AIR 1981 Bom 327 which posited:
Under Section 2(q)(i) land can be said to be taken out of the purview of the definition of ''vacant land'' only when there is a total prohibition on construction of buildings upon such land under the relevant building Regulation. Thus what is contemplated by Section 2(q)(i) is that the building Regulations totally prohibit the building activity upon certain lands by any individual or public authorities or even by the State Government. But if the Regulations allow the building activity not by a person who holds the land but by public bodies or the State Government then certainly construction of building is permissible. Once it is found that construction of building is permitted either by an individual or even by a public authority then certainly it is ''vacant land'' and cannot be taken out of the definition. AIR 1980 Delhi 106, Disting.
13. I have carefully perused the facts of this case which are in point.
14. Learned Advocate for the State relied upon State of U.P. v. L.J. Jhonson 1978 AWC 731. His contention was that the aforesaid authority was not considered by the learned Single Judge and is binding on me.
15. It appears that in that case the question which came up for decision was about Section 4(9) of the said Act. A casual look at Section 4(9) of the said Act shall go to disclose that it is attracted when a person is holding vacant land in addition to other land with a building thereon. The question which was decided in that case was about the determination of the vacant land in such cases.
16. Learned Counsel for the State also referred to the definition of ''land appurtenant'' as laid down in Section 2(g) of the said Act:
(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 meters ; 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 construted 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.
The aforesaid authority and provision is clearly distinguishable as in the instant case there is neither any building nor any tree situate on this land.
17. Learned Counsel for the Petitioner pointed out that Section 2(q)(i) deals with land on which construction of a building is not permissible under the building Regulations in force in the area in which such land is situate like green park or play ground, etc. and under such circumstances opposite party No. 1 was not entitled to the benefit of Section 2(q)(i) aforesaid. I do not subscribe to this view. There is nothing in that provision. Section 2(q)(i) cited above or in the authority State of Uttar Pradesh v. L.J. Jhonson 1978 AWC 731 (Supra) which confines the definition of Section 2(q)(i) to any play ground or green park only.
18. A mere look at Sections 2(q)(ii) and 2(q)(iii) shall go to disclose that Section 2(q)(i) is operable on land on which construction of a building is impermissible under the building Regulations in force and which may be otherwise vacant.
19. Section 2(q)(ii) and 2(q)(iii) contemplate cases of land on which buildings stand or are under construction. Had it been otherwise, the land, on which building is not situate and construction activity is impermissible under the building Regulations, would have been left unprovided for and could have fallen within the definition of ''vacant land'' as given above. That does not appear to be the intent of legislature while enacting Section 2(q)(i) aforesaid.
20. In this view of the matter I do not find, that the judgment of learned appellate authority suffers from any illegality or clerical error and has to be affirmed.
21. Thus the writ petition is dismissed. No order as to costs.
