K. J. SHETTY, C. J.

( 1 ) THIS petition under Art. 226 of the Constitution is directed against the judgement dated Aug. , 1, 1980 made by the District Judge, Agra in Civil Misc. Appeal No. 265 of 1978. That appeal was preferred against the order dated July 12, 1978 of the Competent Authority, Agra constituted under the Urban Land (Ceiling and Regulation) Act 1976.

( 2 ) PETITIONER is a firm engaged in the business of manufacture of concrete pipes. It has a factory building and also three huge ground level water tanks measuring 80 x 120, 40 x 120 and 40 x 120 separated by 6-7 feet. These are obviously meant for curing concrete cement pipes. The entire premises of the factory including the water tanks cover in all 10881. 2 sq. mt.

( 3 ) UPON coming into force of the Urban Land (Ceiling and Regulation) Act 1976 (the act) petitioner filed statement before the Competent Authority as required under S. 6 (1) of the Act. The Competent Authority after inquiry declared 6771. 8186 square metres as surplus land. Being aggrieved by the said order, petitioner appealed to the District Judge Agra. Pursuant to the order in the appeal, additional evidence of one V. P. Sharma Architect and registered Valuer was produced. That evidence was found necessary in regard to the question whether the tanks could be regarded as buildings. The District Judge after appreciating the material on record has held that the tanks are buildings within the purview of the Act. Mr. Dubey, learned Standing Counsel for the respondents does not dispute that finding. There is, therefore, no dispute with regard to that aspect of the matter. Question, however, remains to be considered is whether petitioner is entitled to retain 500 square metres as appurtenant land in respect of each tank.

( 4 ) LEARNED District Judge after looking at the map has observed that the three tanks are contiguous and, therefore, appurtenant land for 500 square metres for each tank cannot be allowed under S. 2 (g) (i) of the Act. Mr. Agarwal, learned counsel for the petitioner urged that there is no finding recorded by learned District Judge that each tank is not distinct and separate building and denial of appurtenant land to each tank only on the ground that they are contiguous is unjustified. Mr. Dubey for the respondent has, however, urged that all the three tanks must be considered as one building since they are contiguous.

( 5 ) THE contention of Mr. Agarwal is justified and must be accepted as correct. There is, no material before us to hold that the three tanks in question form part of a larger tank. They are indeed distinct and different. They measure 80 x 120 x 40 x 120 and 40 x 100. Each is separated at a distance of 6 to 7 ft. from the other. They cannot, therefore, be regarded as three parts of one tank. Learned District Judge has also proceeded on the basis that they are different but contiguous. The fact that they are contiguous is no ground to deny the entitlement of appurtenant land in respect of each tank.

( 6 ) S. 2 (G) (I) provides :"2 (G ). "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) xx xx xx xx"6-A. While dealing with the scope of the "appurtenant land", under the Act the Supreme Court in State of U. P. v. L. J. Johnson, AIR 1983 SC 1303 observed :"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 and ceiling limit. Similarly, the land kept open under the municipal regulations (up to 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

Click Here to Read the rest of this document