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SUPREME COURT OF INDIA
D.A. DESAI, O. CHINNAPPA REDDY AND A. VARADARAJAN, JJ.
Abu Khan and others, Appellants
Versus
Union of India and others, Respondents.
Civil Appeal No. 1816 (N) of 1970, D/- 30-9-1993.
– Section 4(9) contemplates that if a person holds vacant land as also other portion of land on which there is a building with a dwelling unit, the extent of land occupied by the building and the land appurtenant thereto shall be taken into account in calculating the extent of the vacant land. This sub–section has to be read in conjunction with Section 2(q)(ii)(iii). A combined reading of these two statutory provisions would lead to the irresistible inference that in cases which fall within the third category mentioned above, the (1) total area of the land of a landholder is first to be determined and if the total area, built or unbuilt falls below 2000 sq. metres in category areas, there would be no question of any excess land, (2) where, however, there is a building and a dwelling unit then the area beneath the building and the dwelling unit would have to be excluded while computing the ceiling. Further, if there are any bye–laws requiring a portion of the land to be kept vacant the landholder would be allowed to set apart the said land to the maximum extent of 500 sq metres. He would also be allowed to retain an additional area of 500 sq metres for the beneficial use of the building so that he may enjoy the use of a little compound also for various purposes.
After excluding these items if the land falls below the ceiling limit there would be no question of excess but if there is excess that is beyond the ceiling limit, the same would have to be taken over the Government. The scheme of the Act seems to be that if there is a constructed building with a dwelling unit, the structure thereon cannot be treated as open land for the purpose of declaring it as excess land beyond the ceiling limit. Similarly, the land kept open under the municipal regulations (upto 500 sq metres) and an additional 500 sq metres appurtenant to the land would not be available for being declared as excess land beyond the ceiling limit. The central idea governing this philosophy of putting a ceiling on urban land is that in an urban area none can hold land in excess of the ceiling regardless of whether the land is entirely open or whether there is a structure consisting of a dwelling unit thereon, subject to the rider mentioned above. Indeed, if the intention would have been to take over the entire open land without giving any benefit of appurtenant land to the landholder then the Act would perhaps be liable to be challenged on the ground of being of a confiscatory nature and would fall beyond the permissible limits of the directive principles enshrined in Part IV of the Constitution. Furthermore, such an interpretation would discourage new building enterprises or factories or industrial units coming up in the urban areas which would be contrary to the very tenor and spirit of the act — See decision in State of U.P. v. L.J. Johnson, AIR 1983 SC 1301 = 1983(4) SCC 110 = 1983 LJ (SC) 921 = 1983 All LJ 1261.
Judgment
DESAI, J.:- One Sumerkhan had five sons and two daughters. They were Imam Khan, Sodey Khan, Rahmat Khan, Hanif Khan, Gafoor Khan and Hazran and Mima respectively. Out of these five sons, Hanif Khan and Gafoor Khan were declared as evacuees. Sumerkhan had died leaving two houses bearing Nos. 11/5/168 and 11/5/180 situated in Jodhpur in the State of Rajasthan. On Hanif Khan and Gafoor Khan being declared evacuees, their undivided 2/5th share in the aforementioned two houses was declared evacuee property. Abu Khan, appellant No. 1 is the son of Sodey Khan. He was also suspected to have migrated to Pakistan and therefore, he was declared an evacuee. Series of proceedings successively taken by Abu Khan culminated in order dated April 16, 1959 by the Custodian-General of Evacuee Property remanding the matter for a fresh enquiry. In the fresh enquiry Abu Khan was held not to be an evacuee. After the decision was recorded in favour of Abu Khan that he was not an evacuee, he approached the competent authority for separation of the non-evacuee interest in the aforementioned two houses stating therein that only the share of Gafoor Khan and Hanif Khan has been declared to be evacuee property. The State Competent Officer who dealt with this proceeding held as per his order dated January 27, 11959 that Abu Khan had 2/15th share in the said property and the share of the female claimants was 7/15th. The share of two evacuees Gafoor Khan and Hanif Khan was declared to be 6/15th. The State Competent Officer after determining the shares of the various claimants as also of the two evacuees gave a choice to the non-evacuees to purchase the evacuee interest for a price that was to be determined by the Competent Authority. It is at that stage that respondent No. 6 Maljimal entered the picture. The Managing Officer-cum-Assistant Custodian of Evacuee property moved an application on February 10, 1959 before the State Competent Officer that of the two houses, one house bearing No. 11/5/168 has been put in possession of respondent No. 6 Maljimal, who was a displaced person and the same may be allotted to Maljimal on the assessed price. The State Competent Officer by his order dated March 3, 1959 directed that house No. 11/5/168 should be given to Maljimal and house No. 11/5/180 should be purchased by Abu Khan and other non-evacuees. It appears that in the meantime respondent No. 6 Maljimal preferred an appeal before the Custodian-General questioning the correctness of the decision in the fresh enquiry by Assistant Custodian holding that Abu Khan was not an evacuee. This appeal was dismissed confirming that Abu Khan was not an evacuee. By that time, respondent No. 6 Maljimal had occupied the property and therefore, the State Competent Officer directed that house No. 11/5/168 should be given to the refugee allottee who is residing therein and the other house may be given to Abu Khan and other non-evacuee claimants, provided they were prepared to purchase the evacuee interest therein. Abu Khan preferred an appeal against this order to the Appellate Officer. This appeal was allowed by the Appellate Authority holding that even though some hardship is likely to be caused to the displaced allottee who was in occupation of the house, he is not without a remedy because the Central Government may take action under Section 20-B of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. Taking cue brain the observation of the Appellate Officer, respondent No. 6 Maljimal moved an application before the Government of India under Section 20-B. To this application neither Abu Khan nor other non-evacuees having an interest in the property involved in the dispute were impleaded as parties. When Abu Khan came to know about the application made by respondent No. 6, he filed an application before the Secretary, Government of India, Ministry of Rehabilitation pointing out therein that respondent 6 Maljimal cannot complain of any hardship because as far bac
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