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Judgment
K.K. Srivastava, J.—This is an appeal filed against judgment dated 9.7.1986 of a learned Single Judge of this Court delivered in Civil Writ Petition No. 3071 of 1979. The appellants Pran Nath Kapoor and his wife Smt. Primila Wati are the owners of House No. 52, Circular Road, Amritsar. The Competent Authority under the Urban Land (Ceiling and Regulation) Act 1976 considered the property of the appellants for computing surplus vacant land upon a statement filed by the appellant Pran Nath under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (for short the Act 1976). The Competent Authority while computing the vacant surplus land in Kothi No. 52, Circular Road, Amritsar found the total area of the land as 2090 Sq. Mts., while the servant quarters had covered built up area of 51 Sq. Mts. The gate had covered built up area of 26 Sq. Mts. The total built up area was, thus, 264.50 Sq. Mts. The Competent Authority allowed 500 Sq. Mts. area as land appurtenant to the main building and further area of 500 Sq. Mts. as land contiguous thereto in respect of the main building u/s 2(q) (ii) of the Act 1976. He allowed 500 Sq. Mts. as a land appurtenant to the servant quarters. A total area of 1764.50 Sq. Mts. comprising of built up area, appurtenant land and land contiguous was, thus, deducted from the total area of 2090 Sq. Mts. leaving a balance of 325.50 Sq. Mts. The Competent Authority declared an area of 325 Sq. Mts. surplus in the holding of the appellants
Feeling aggrieved against the order of the Competent Authority the Urban Land Ceiling Officer, Amritsar, the appellants filed an appeal u/s 33 of the Act 1976 before the Appellate Court of Competent Authority, which was dismissed vide judgment dated 21.9.1979. Thereafter, the appellants filed a writ petition in this Court being Civil Writ Petition No. 3071 of 1979, which came up for hearing before a learned Single Judge of this Court (Hon''ble D.S. Tewatia, J) as then he was on 9.7.1986 and the same was dismissed. Now the judgment of the learned Single Judge has been assailed in this appeal.
We have heard learned counsel for the appellants and learned D.A.G. Punjab for the respondents. We have perused the judgment of the learned Single Judge as also the judgments of the Appellate Authority and Competent Authority - the Urban Land Ceiling Officer, Amritsar.
The relevant provisions of the Urban Land (Ceiling and Regulation) Act, 1976 may be noticed. The land of the appellants is situated in the city of Amritsar in the State of Punjab. As per item No. 11 of the 1st Schedule appended to the Act, Amrisar falls in ''C'' category. The ceiling limit as provided for in Section 4 of the Act 1976 in respect of category ''C is 1500 Sq. Mts. Section 4(1)(c) of the Act 1976 provides as under:
"4(1) - Subject to the other provisions of this section, in the case of every person, the ceiling limit shall be, -
a)...............
b)...............
c) where such land is situated in an urban agglomeration falling within category ''C specified in Schedule I, one thousand five hundred square metres;
d)..............."
The vacant land is defined u/s 2(q) of the Act 1976, which reads as under:
"2(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 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, the appointed day with the approval of the appropriate authority and the land appurtenant to such building; and
(iii) 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:
Provided that where any person ordinarily keeps his cattle, other than for the purpose of dairy farming or for the purpose of breeding of livestock, on any land situated in a village within an urban agglomeration (described as a village in the revenue records), then, so much extent of the land as has been ordinarily used for the keeping of such cattle immediately before the appointed day shall not be deemed to be vacant land for the purposes of this clause."
The land appurtenant in relation to any building has been defined u/s 2(g) of the Act 1976, which reads as under:
"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) 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 constructed 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;"
Section 4, Sub-section (9) of the Act 1976 provides that:
"4(9) - Where a person holds vacant land and also holds any other land on which there is a building with a dwelling unit therein, the extent of such other land occupied by the building and the land appurtenant thereto shall also be taken into account in calculating the extent of vacant land held by such person."
Section 4(11) of the Act contains a provision of removal of doubts and provides as under:
"4(11) - For the removal of doubts it is hereby declared that nothing in Sub-sections (5), (6), (7), (9) and (10) shall be construed as empowering the competent authority to declare any land referred to in Sub-clause (ii) of Sub-clause (iii) of Clause (q) of Section 2 as excess vacant land under this Chapter."
Learned counsel for the appellants has urged that the learned Single Judge has wrongly interpreted the judgment in the case of State of Uttar Pradesh and Others Vs. L.J. Johnson and Others, and consequently, he committed an error in upholding the order of the Competent Authority and also of the Appellate Authority declaring the area of 325 Sq. Mts. as surplus land in the holding of the appellants. He has referred to the judgment of the Supreme Court in the case of State of U.P. v. L.J. Johnson (supra) and referred to the observations of the Apex Court made in para 24 at page 1808, which runs as under:
"In the ultimate analysis the position is quite clear that 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) and (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 land-holder is first to be determined and if the total area, built or unbuilt, falls below 2000 Sq. metres in category D 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 land-holder 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.''
The learned counsel for the appellants then referred to the observations made in para 30 as under :
"To sum up, the effect of the view that in Johnson''s case virtually comes to this. Section 4(9) would be attracted regardless of whether the landholder owned a distinct part of land on which there is no construction along with any other parcel of land where there is some construction. In other words, whether or not there is a surplus will not depend on whether the landholder holds a separate plot of land which is open land. To take the other view is to hold that if there is no separate plot but the construction is on the same plot then even if the entire plot comprises 10,000 sq. metres that would fall beyond the purview of Section 4(9) even if the structure is built only on 1000 sq. meters of land. Such an interpretation of Section 4(9) cannot be accepted by us as it goes against the very spirit and intent of the Act and allows the landholder to escape the ceiling area of merely putting a construction on a plot of land owned by him."
The learned Single Judge held that "in view of the ratio of their Lordships'' judgment, (in the case of State of U.P. v. L.J. Johnson (supra), the contention of the learned counsel that the petitioners were entitled to keep 1500 Sq. Mts. vacant land over and above the area, which had been allowed by the Competent Authority, has no merit."
The learned counsel for the appellant urged that the case of State of U.P. v. L.J. Johnson (supra) came up for consideration before the Apex Court subsequently in the case of Smt. Meera Gupta Vs. State of West Bengal and others, . In the case of Meera Gupta v.. State of West Bengal (supra) the learned Single Judge of the Calcutta High Court decided the writ petition and took aid from some observations made in the two judgments of the Apex Court in the case of Maharao Sahib Shri Bhim Singhji Ors. Vs. Union of India (UOI) and Others, and State of U.P. v. L.J. Johnson (supra) and allowed the writ petition. An appeal was filed by the State of West Bengal which was allowed by the learned Single Judge was set aside. An appeal was filed by special leave by Smt. Meera Gupta before the Apex Court and the same came up for hearing before a two-Judge Bench of the Supreme Court when it was considered that Johnson''s case may have to be tested and the matter was ordered to be heard by a larger Bench of at least three Judges. The judgment rendered in the case of Smt. Meera Gupta (supra), thus, assumed significance as L.J. Johnson''s case was re-considered. While considering the Johnson''s case, the Apex Court held that it fell in the first category of the vacant land as defined in Section 2(g) of the Act 1976 which refers to land on which destruction of a building is not permissible under the building regulations enforce in the area in which such land is situated. It may be pointed out that the case in hand is one which is not covered by the first category, referred to above. Undisputedly, the land, which is to be considered in this case, is the one which is covered under the second and third category of Section 2(g) of the Act 1976 (which is re-produced earlier).
In the Johnson''s case (supra), as seen above, the Supreme Court had in para 30 held that Section 4(9) of the Act would be attracted regardless of whether the landholder owned a distinct part of the land on which there is no construction along with any other parcel of land where there is some construction. In other words, whether or not there is a surplus, will not depend on whether the land holder holds a separate plot of land which is open land. In L.J. Johnson''s case (supra), the total area of urban land was 530 Sq. Mts. including the built up area which was mentioned as 464 Sq. Mts. After allowing the deductions u/s 2(q) of the Act of 1000 Sq. Mts. the total area deductable was calculated as 1464 Sq. Mts. which was well within the ceiling limit of 2000 Sq. Mts. prescribed under category (d) in the Act as the permissible area. The Supreme Court held that the balance area of 530 Sq. Mts. will be above the ceiling limit and as such, liable to be declared as surplus area in the holding of the land holder. The built up area and the land appurtenant and contiguous land were all taken into consideration while computing the vacant land within the permissible limit of 2000 Sq. Mts. u/s 4(9) of the Act 1976.
In the case of Smt. Meera Gupta (supra), the Supreme Court after considering the scheme of the Act, the definition of land appurtenant as contained in Section 2(g)(i) and (ii) and vacant land as defined by Section 2(q) and Section 4(9) and (11) of the Act 1976, held in para 14 as under:
"At this juncture, Sub-section (11) of Section 4 may be noticed. It provides removal of doubts declaring, inter alia, that nothing in Sub-section (9) shall be constructed as empowering the competent authority to declare any land referred to in Sub-clause (ii) or Sub-clause (iii) of Clause (q) of Section 2 as excess vacant land under this Chapter. Though this provision is not happily worded, yet when meaningfully construed in the context, it means that a building which gets excluded by virtue of the definition of "vacant land" gets clothed with the protective cloak for not being reckoned again as any other land, over which there is a building with a dwelling unit therein. Sub-section (11) of Section 4 means to convey that what is not vacant land under Sub-clause (ii) and (iii) of Clause (q) of Section 2 cannot go to add up as "vacant land" under Sub-section (9) of Section 4 by descriptive overlapping. If we wipe out the distinction of "vacant land" and "any other land" as demonstrated in Sub-section (9) of Section 4, we strangulate and destroy the spirit and life-blood of the "appointed day" and the gap period. We would loathe giving such a construction and would rather opt for a construction which carries out the objectives of the Act, primary of which is to fix a ceiling limit on the holding of vacant lands, conditioned as they are on the appointed day, and as held on the date of commencement of the Act."
It will, thus, be abundantly clear that in L.J. Johnson''s case (supra) the "vacant Land" fell in the first category as provided in Section 2(q) whereas the vacant land in the instant case is of second and third category. It is also now well settled that once the building with land appurtenant and contiguous land thereto are excluded from the definition of "vacant land", the same cannot again be treated as any other land over which there is a building with a dwelling unit therein. In other words, the building with a dwelling unit therein and appurtenant land and contiguous land thereto cannot be treated as "vacant land" and are to be excluded altogether while computing vacant! land in the holding of the land-holder.
Now coming to the facts of the instant case, the built up area of 264 Sq. Mts. together with 1000 Sq. Mts. area of appurtenant land @ Rs. 500/- Sq. Mt. each for the main building and servant quarters and another 500 Sq. Mts. area as contiguous land for the main building which have been allowed by the Competent Authority -Urban Land Ceiling Officer, Amritsar are not be considered while computing the vacant land in the holding of the appellants. That being so, the balance area of 325 Sq. Mts. of vacant land remains which is well within the ceiling limit prescribed under the Act 1976 in category ''C'' shown at Serial No. 11 of the first schedule. u/s 4(1)(c) of the Act 1976 the ceiling limit in respect of a land situated in an urban agglomeration falling within category ''C'' specified in Schedule I, is 1500 Sq. Mts. we are of the considered view that the learned Single Judge was in error in taking into consideration the built up area appurtenant land and contiguous land which comes to 17864 Sq. Mts. in computing the vacant land and thereby upholding the order of the Competent Authority - Urban Land Ceiling Officer, Amritsar declaring an area of 325 Sq. Mts. as surplus land in the holding of the appellants. Resultantly, the appeal is allowed and the judgment of the learned Single Judge dismissing the writ petition is set aside. The writ is allowed and the impugned orders of the Appellate Authority under the Urban Land (Ceiling and Regulation) and the Competent Authority, Urban Land Ceiling Regulation are quashed and it is declared that there is no surplus vacant land in the holding of the appellant.