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1978 Supreme(All) 104
HIGH COURT OF ALLAHABAD
RADHA RASTOGI, J.
State Of U. P. - Appellant
Versus
L. J. Jhonson - Respondent
Civil Misc. Writ No. 3689 of 1977
Decided on : Feb 10, 1978
A.K. Yog
Section 4(9) of the Urban Land (Ceiling and Regulation) Act, 1976 applies only where a person holds vacant land and also holds some other land on which there is a building with a dwelling unit therein, and not where on a piece of land there is a building with a dwelling unit therein and some open space.
Headnote:
URBAN LAND (CEILING AND REGULATION) ACT, 1976 - SECTION 2(Q), 3, 4(9) - INTERPRETATION - COMPUTATION OF VACANT LAND - EXCLUSION OF LAND ON WHICH CONSTRUCTION IS NOT PERMISSIBLE UNDER BUILDING REGULATIONS AND LAND OCCUPIED BY BUILDING AND LAND APPURTENANT THERETO - SECTION 4(9) NOT APPLICABLE WHERE ON A PIECE OF LAND THERE IS A BUILDING WITH A DWELLING UNIT THEREIN AND SOME OPEN SPACE.
Fact of the Case:
The owner of a property in Dehradun applied for permission to sell the property under Section 27 of the Urban Land (Ceiling and Regulation) Act, 1976. The competent authority refused permission, finding that the property exceeded the ceiling limit of 20.00 square meters. The owner appealed to the District Judge, who allowed the appeal, holding that after excluding the land on which construction was not permissible under the Building Bye Laws of the City Board, Dehradun, and the land occupied by the building and land appurtenant thereto, the land left was within the permissible limit.
Finding of the Court:
The High Court upheld the order of the District Judge, holding that the competent authority had erred in its interpretation of Section 4(9) of the Act. The court held that Section 4(9) applies only where a person holds vacant land and also holds some other land on which there is a building with a dwelling unit therein, and not where on a piece of land there is a building with a dwelling unit therein and some open space.
Issues: Whether the competent authority erred in its interpretation of Section 4(9) of the Urban Land (Ceiling and Regulation) Act, 1976.
Ratio Decidendi: The court held that Section 4(9) of the Act applies only where a person holds vacant land and also holds some other land on which there is a building with a dwelling unit therein, and not where on a piece of land there is a building with a dwelling unit therein and some open space. The court found that the competent authority had erred in its interpretation of Section 4(9) and that the District Judge was correct in holding that the land left after excluding the land on which construction was not permissible under the Building Bye Laws of the City Board, Dehradun, and the land occupied by the building and land appurtenant thereto, was within the permissible limit.
Final Decision: The High Court dismissed the writ petition filed by the State of Uttar Pradesh and the Competent Authority, Dehradun, challenging the order of the District Judge.
R. R. Rastogi, J.
1. SRI L. T. Jhonson, respondent No. 1, was owner of premises No. 186, Rajpur Road, Dehradun, having a total area of 2530 square metres. He moved an application on 28-4-1977 under Section 27 of the Urban Land (Ceiling and Regulation) Act, 1976, here- inafter referred to as "the Act" for permission to sell the aforesaid premises to Major General Prem Chandra, resident of B 96, Basant Bahar, New Delhi. The competent authority refused to grant the permission applied for, since, in his opinion, after excluding 192.09 sqr. metres because of the provisions of U. P. Roadside Land Control Act 1945, there was still left 2337 square metres, which was more than the ceiling limits of 20.00 square metres, permitted under the Act for Dehradun. SRI Jhons-on preferred an appeal against that order before the District Judge. Two submissions were made on his behalf, firstly, under Rule 44 of the Building Bye Laws of City Board, Dehradun, he was required to leave 25 feet in front 15 feet in the back and 20 feet on either side and that worked out to 1092 square metres and after excluding the same he was left only with 1438 square metres, which was below the premissible limit; and, secondly, he could construct only over 60 percent of the total area of the land and that would exclude about 1030 square metres and he would thus have been left with 1500 square metres only which was also within the permissible limit. The Building Bye Laws of the City Board, Dehradun, were produced before the District Judge. The District Judge accepted the submissions made on behalf of the respondent and held that after excluding the land on which constructions were not permissible, the land left was within the permissible limit and hence permission under Section 27 of the Act should have been granted. This order forms the subject matter of challenge in this writ petition filed by the State of Uttar Pradesh and the Competent Authority, Dehradun.
2. AFTER hearing the parties at some length I am of the opinion that the order of the District Judge does not suffer from any legal infirmity. Section 3 of the Act provides that "except as otherwise provided in this Act, on and from the commencement of this Act, no person shall be entitled to hold any vacant land in excess of the ceiling limit, in the territories to which this Act applies under sub-section (2) of Section 1." The definition of 'vacant land' is contained in Section 2 (q) of the Act and the relevant portion reads as follows :-
"(q) "vacant land" 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, appointed day with the approval of the appropriate authority and the land appurtenant to such building ; and fiii) in an 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 ;"
(The proviso to this clause is not necessary for the present purpose).
The definitions of "building regulations" and "land appurtenant" may also be looked into and they are as under :-
"(b) "Building regulations" means the regulations contained in the master plan, or the law in force governing the construction of buildings" ;
"(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) In an area where there are no building regulations, an extent of five hundred square metres contiguous
