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High Court Of Rajasthan
Judgename : P.C.JAIN
PADMAKAR VYAS - Appellant
Versus
STATE OF RAJASTHAN - Respondent
CIV. WRIT PETITION 1339 Of 1994
Decided On : 11/12/1997
URBAN LAND (CEILING AND REGULARISATION) ACT, 1976 - SECTION 2(Q) - INTERPRETATION - VACANT LAND - LAND APPURTENANT TO BUILDING - CALCULATION OF CEILING AREA - CLUBBING OF PROPERTIES - INDIVIDUAL ASSESSMENT OF PROPERTIES - KEY LEGAL PRINCIPLE - EACH PROPERTY TO BE ASSESSED SEPARATELY FOR CEILING PURPOSES, EXCLUDING CONSTRUCTED AREA AND LAND APPURTENANT THERETO.
Fact of the Case:
Petitioners, cosharers in ancestral property, filed statements under Section 16(1) of the Urban Land (Ceiling and Regularisation) Act, 1976 (the Act). The Authorised Officer estimated their total vacant land at 4994.22 sq. m. and ordered acquisition of 497.61 sq. m. from each petitioner after allowing 2000 sq. m. to each. The Divisional Commissioner dismissed their appeals. Petitioners challenged the orders, arguing that the Authorised Officer erred in clubbing all properties, including those found to be in order, with the property in question.
Finding of the Court:
The court held that the Authorised Officer and the Divisional Commissioner erred in clubbing the vacant land of properties found to be in order with the land of the property in question. Each property must be assessed individually, and land found appurtenant must not be clubbed with land where surplus land is found.
Issues: Whether the Authorised Officer and the Divisional Commissioner erred in clubbing the vacant land of properties found to be in order with the land of the property in question.
Ratio Decidendi: The court relied on the Supreme Court cases of State of U.P. v. L.J. Jhonson and Smt. Meena Gupta v. State of West Bengal, which held that vacant land for the purpose of ceiling is land not being land mainly used for agriculture, but situated in an urban agglomeration, excluding land occupied by any building with a dwelling unit, and land appurtenant to such building. The court also relied on its own decision in Dr. S.S. Bhandawat v. State of Rajasthan, which held that tanks in a petitioner's house amounted to buildings, and the petitioner could claim 500 sq. m. of land as land appurtenant to each tank.
Final Decision: The court allowed the writ petition, set aside the impugned orders of the Authorised Officer and the Divisional Commissioner, and held that each property must be assessed separately for ceiling purposes, excluding constructed area and land appurtenant thereto.
P. C. JAIN, J.
( 1 ) THIS writ petition is directed against the order dated 28-9-1991 (Annx. 4) of the Authorised Officer, Bikaner and the order dated 10-1-1994 (Annex. 5) passed by the Divisional Commissioner, Bikaner by which it was held that urban land measuring 497. 61 sq. m. in respect of Govindnarain and Padmakar was acquirable. Urban Land (Ceiling and Regularisation) Act, 1976 (hereinafter referred to as the Act ).
( 2 ) THE brief facts material for the decision of this petition may be stated as follows. Petitioner No. 1s father late Shri Govindharain Vyas and petitioner Padmakar Vyas were the cosharers in the ancestral property described in para 2 of the petition on the date of the coming into force of the Act. Petitioner No. 1 and Shri Govindnarain had, therefore, equal shares in the aforesaid properties. It may be stated that this fact was not disputed in the impugned orders. Both the above petitioners filed separate statements as required by Section 16 (1) of the Act. Copies of the above statements have been annexed with the petition and are marked Annex-1 and Annex-2. Notice under Section 8 (3) of the Act was issued by the Authorised Officer to petitioner No. 1 and Shri Govindnarain. The copy of the notice has been submitted with the petition and marked Annex. 3. Objections were submitted by Shri Govindnarain through his counsel Shri Bulakidas. The Authorised Officer vide his order dated 28-9-1991 estimated the total area of vacant land held by the petitioner and Shri Govindnarain as 4994. 22 sq. m. and passed order for acquiring 497. 61 sq. m. from each of the two cosharers after allowing 2000 sq. m. to each petitioner. The copy of the impugned order is Annex. 4. Aggrieved by the above order Shri Govindnarain and petitioner No. 1 preferred separate appeal before the Divisional Commissioner, Bikaner under Section 33 of the Act which were numbered as 6/91 and 7/91 respectively. It may be stated that during the pendency of the appeal Govindnarain died on 2-8-1992 and petitioners Nos. 1 and 2 were substituted as appellants in place of late Shri Govindnarain. Since the petitioner Nos. 3 and 4 also have equal share in the ancestral property held by the petitioner No. 1, they have also been impleaded as petitioners in this case.
( 3 ) A reference regarding the material finding arrived at by the competent authority may be referred. The Authorised Officer held : (i) that the land area in property No. 1 situated at Chugaran Mohalla measuring 72-36 sq. m. was fully constructed, (ii) property at Jagman Well contained 2. 55 sq. m. construction and the remaining 101. 45 sq. m. was left by him as land appurtenant to the building, (iii) in relation to Chukhati Mohalla there was constructed area of 180. 50 sq. m. was considered as land appurtenant thereto, (iv) in relation Rani Bazar property the construction area was 56. 35 sq. m. and the remaining 170. 75 sq. m. was considered as land appurtenant thereto. (v) in relation to the property as Gajner Road, Outside Jassusar Gate constructed area was 50. 43 sq. m. Land measuring 500 sq. m. was allowed as land appurtenant thereto. However, while calculating the vacant land with the petitioner No. 1 late Shri Govindnarain, the Authorised Officer included the total area of land ignoring the constructed building and held as such by the above two persons. He estimated the total area of the land to be 2497. 61 sq. m. and after allowing 2000 sq. m. ordered acquisition of 497. 61 sq. m. as the land found surplus. The Divisional Commissioner, Bikaner committed a legal serious error and dismissed the appeals and confirmed the order of the Authorised Officer dated 28-9-1981. The copy of the order of the Divisional Commissioner, Bikaner is Annex. 5.
( 4 ) THE petitioners in the petition have assailed the above impugned orders on the ground that they are contrary to law and, therefore, liable to be quashed by issuance of an appropriate writ, direction of order. It was averred that there
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