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Judgment
Sivaraman Nair, J.—There are six petitioners. The first three are brothers and the next three are their sisters. They challenge a common appellate order dated 22.5.1989 passed by the 1st respondent dismissing three appeals filed by petitioners 1 to 3 against the orders dt.26.6.1982 and 22.12.1988 which the 2nd respondent had made u/s 9 of the Urban Land (Ceiling and Regulation) Act, 1976 (for short ''the Act''). The orders related to Urban Land in old No. l42/C corresponding to Municipal numbers 1.8.161. to 164 on Penderghast Road, Secunderabad. Respondents found petitioners Ho 3 to have 706.34 Sq.metres each of surplus land above the ceiling limits fixed u/s 4 of the Urban Land (Ceiling and Regulation) Act, 1976. Petitioners submit that the above finding contained in the appellate order, which affirmed the order of the 2nd respondent, is illegal and unsustainable.
Petitioners 1 to 3-the brothers, purchased 6794 Sq. metres of land consisting of a few residential buildings by sale deed No. 6629/73 dt. 18-10-1973 from the previous owners. They contend that at that time, the land consisted of a residential bungalow, three out houses (residential), one garage, one store room and one toilet. They entered into an agreement on 5-7-1974 for sale of 3989 Sq. metres of land on which stood six out of the seven buildings, except the garage, to their sisters-petitioners 4 to 6, for an amount of Rs. 1,10,000/-. Petitioners 1 to 3 submit that they had received an amount of Rs. 30,000/- from petitioners 4 to 6 on 5.7.1974 when possession of the portion covered by the agreement was handed over to them. It is the case of petitioners 1 to 3 that they had disclosed these facts in their returns under the Income Tax Act for the relevant assessment years. The sale could not, however, be completed due to the pendency of proceedings, u/s 295 of the Income Tax Act for acquisition of the above property by the Department, and also due to the fact that the Municipal authorities had not effected mutation of names in the Municipal Property Registers. According to petitioners 1 to 3, they commenced construction of a servants'' quarters and a water tower in the open land in their possession and completed the same, by which time, the Municipal Authorities issued notice u/s 461 of the Municipal corporation Act objecting to the unauthorised construction. That notice was dated 5.11.1975. It was thereafter that the Act came into force on 17.2.1976.
The first petitioner filed a return u/s 6 of the act. He claimed that each of the three transferors petitioners 1 to 3-was entitled to exemption of appurtenant and additional appurtenant lands to the extent of 1,000 Sq. metres each in respect of the three portions of the residential buildings and appurtenant land of 500 Sq. metres in respect of the non-residential buildings. He claimed such exemption in respect of the Water Tower and Servants'' Quarters which were allegedly constructed before the commencement of the Act. He also claimed that the agreement for sale dt.5-7-74, whereby petitioners 4 to 6 were put in possession of 3989 Sq. metres of land was partly performed by payment of Rs. 30,000/- and simultaneous delivery of possession of land and buildings and, therefore, that extent was not includible in the holding of petitioners 1 to 3. He submitted that in either case, petitioners 1 to 3 or 4 to 6 were not holding excess land which they were liable to surrender under the Act, since none of them had urban land in excess of the ceiling limits.
After considering the return, the 2nd respondent issued a draft declaration u/s 8(1) and notice u/s 9 of the Act, holding that there were only one bungalow, three out houses and a water tank in the property at the relevant time, and the built-up area and the maximum extent of appurtenant and additional land would be allowed in respect thereto. The second respondent proposed that the surplus land with each of the three declarants would be 1264.66 Sq.metres and that was liable to be surrendered. Petitioners filed objections. After conducting a statutory inquiry including local inspection on 28-12-1981, the 2nd respondent held in his order u/s 8(4) and final statement u/s 9 of the Act that each of petitioners 1 to 3 was liable to surrender 706.34 Sq. metres of land.
Petitioners 1 to 3 filed appeal against that order before the 1st respondent. He dismissed the appeal by his order dt.22-5-1989 in affirmance of the order of the 2nd respondent. In doing so, he repelled the contention of the appellants that the agreement of sale dt.5-7-1974 which had been partly performed, entitled petitioners 4 to 6 to be holders of the land to the extent of 3989 Sq. metres.
In the memorandum of appeal, petitioners 1 to 3 had assailed the order of the 2nd respondent on the ground that the buildings having been owned by three of them, appurtenant and additional appurtenant lands should have been allowed separately to each of them. They also contended that the extent of 3989 Sq. metres of land agreed to be sold to petitioners 4 to 6 should have been dealt with separately, since they had entered possession pursuant to and in part-performance of the agreement on payment of part of the consideration on 5-7-1974 before the Act came into force. Appellants also contended that the Servants'' Quarters which was constructed prior to 1975 should have been excluded from the ceiling provisions along with appurtenant and additional appurtenant lands of 500 Sq. metres each. Similar contentions were raised in respect of the Water Tower and Garage also. In notes of argument, they supplemented these submissions by referring to G.M.No. 7230/ ULC/ 76-2 dated 1-3-1977 and claimed 3,000 Sq. metres of vacant land for the three petitioners and 2,000 Sq. metres made upto 500 Sq. metres each for four non-residential buildings.
The appellate order dealt with all these points and affirmed the original order. Petitioners urged the same contentions before us. The ground that the ceiling area should have been dealt with separately in respect of petitioners 1 to 3 and 4 to 6 on the basis of the agreement for sale dated 5-7-1974 was negatived by the 2nd respondent on the basis of the decision of the Supreme Court in Ashrafuddin v. State of A.P, AIR 1982 S.C. 912. The 1st respondent examined this contention in greater detail and held that the far more restrictive definition of the term "to hold" in Section 2(1) of the Act fully justified the 2nd respondent in ignoring the agreement for sale. Though a ground was raised in the Writ Petition that the above decision did not apply to the facts of this case, counsel advisedly, did not urge this point with any emphasis. We are satisfied that the principle of Ashrafuddin (1 supra) should apply with greater force to the cases under the Act in view of the restrictive definition of the term "to hold" in Section 2(1). A person in possession pursuant to a partly performed agreement for sale does not hold the land under the definition. We fully agree with the findings of the respondents on this point.
Nor do we find any merit in the submission that the three purchasers of the property should have been treated as separate entities in respect of one and the same residential unit and allowed 3,000 Sq. metres of appurtenant land, 1,000 Sq. metres each for three of them separately. This contention is urged on the basis of the Government Memo. dt.1-3-1977 referred to above. We are of the opinion that any clarification which the Government would have issued of any statutory provision may not bind this Court if it is not in consonance with the statutory provision. We also find, on an examination of the above memorandum, that it applies only to cases where portions of a building are purchased and enjoyed as separate and independent units and such purchase and separate enjoyment is evidenced by registered documents. The fact that each unit had a separate municipal number was also to be treated as relevant factor in that regard. In the present case, none of these facts were pleaded or proved. Even at this late stage, these facts are not on record. Therefore, even assuming that the respondents were bound by the clarification issued by the Government of India, refusal of relief on the basis of the Memo. dt.1-3-1977 was fully justified in the absence of any factual foundation in the returns or objections to the draft statement or the Memorandum of appeal. We, therefore, repel this contention.
Petitioners submit that the respondents erred in not allowing 1264 Sq. metres of land occupied by internal roads. The 2nd respondent refused to grant this exemption for the reason that the petitioners had not produced any evidence like layout and plan approved by the Municipal authorities for laying internal roads. As a matter of fact, the sketch showing the existing buildings etc., in the holding which the petitioners have produced as material paper 5 along with the Writ Petition, does not contain any indication of any such internal road. We are, therefore, not inclined to hold that the second respondent erred in refusing to grant exemption on this count. We are also satisfied that the appellate authority had adverted to the contention raised before him and the materials in support of the same to the extent they were relevant, in affirming the findings of the 2nd respondent. We are not inclined to reopen these findings on the basis of correspondence initiated by the petitioners in 1986, long after the Act came into force and proceedings were initiated thereunder.
Petitioners submit that respondents erred in law in refusing to allow appurtenant land in respect of water tower (600 Sq. metres), servants'' quarters (1030 Sq. metres) and Garage with appurtenant land (502 Sq. metres).
The 2nd respondent had allowed 19 Sq. metres occupied by the water tank, 1510 Sq. metres for the bungalow in addition to 1046 Sq. metres, 1072 Sq. metres and 1028 Sq. metres respectively for three out-houses, each having plinth area of 46,72 and 28 Sq. metres respectively. 1st respondent affirmed these exemptions. The Government Pleader submitted before us that in respect of the three out-houses, allowance of maximum extent of appurtenant lands was not justified. He invited our attention to the provision contained in Section 2(g) read with Section 2(q)(ii) of the Act to the effect that such allowance shall be only of "minimum extent of land required under building regulations to be kept as open space for the enjoyment of such building, which in no case shall exceed five hundred Sq. metres." He submitted that only a lesser extent of land relevant to the size of the building as per Municipal Regulations should have been exempted. We feel that there is some force in this submission. But it is not necessary to reopen this issue at this stage, since the State has not chosen to challenge those exemptions.
There remains only three items of exemptions which the petitioners have claimed in this Writ Petition - (1) the servants'' Quarters with appurtenant land (1030 Sq. metres), (2) the garage and appurtenant land (542 Sq. metres) and (3) appurtenant land for the Water Tower (500 Sq. metres) making up 2072 sq. metres.
The appellate authority, in its order dt.22-5-1989, has considered these points and entered positive findings. He entered a specific finding of fact that the Water tank (tower) is part and parcel of the main building. It also found that such a structure could not be treated as a separate building. The 1st respondent found further that petitioners did not produce any evidence to show that the Servants'' Quarters was constructed as a separate building as per permission I granted by the Municipal Corporation, nor did they produce any evidence about the time of construction. The only material on which petitioners rely is that at the time of inspection on 28-12-1981, the competent authority who had observed the existence of the water tank as a separate structure should have found the Servants'' Quarters also and allowed exemption of that building and separate appurtenant and additional appurtenant land. We are not inclined to entertain this submission and reopen the findings of fact on this question, for the only reason that the respondent could as well have refused to exempt the area of 19 Sq. metres covered by the Water Tank.
Respondents refused to consider those claims of the petitioners for the reason that there was no evidence in support of the claim, except the notice dated 5-11-1975 alleged to have been received from the Municipal Corporation. Respondents refused to accept and act on the basis of that notice. We are not told what action did the petitioners take pursuant thereto. Though petitioners have produced copy of that notice as material paper No. 3, they have not chosen even to state what action did they take. A perusal of that document, in the absence of any statement as to what happened after or pursuant thereto, does not inspire confidence in us of the need to reopen the finding, even assuming that we may, in extreme cases, reopen findings of fact based on evidentiary materials.
The Government Pleader invited our attention to the recitals contained in Schedule ''A'' to the agreement of sale dated 5-7-1974 where the property was described as
"All that portion situated on the West of the premises bearing No. 142/C Pendurghast Road, Secunderabad comprising of bungalow, out-houses, kitchen, store room and open land appurtenant thereto including the land on which there are rocks, boulders, etc."
It is significant that there is no reference at all to any Servants Quarters or garage while other structures like out-houses are specifically referred to. This fact adds assurance to affirm the refusal made concurrently by respondents 2 and 1 to take cognisance of a separate garage and Servants'' Quarters as having been in existence on the appointed day.
Counsel for the petitioners argued that appurtenant and additional appurtenant land in respect of any structure which is a ''building'' which has a dwelling unit and appurtenant land for non-residential units should have been allowed. He relied on the Government of India Memorandum dt.1-3-1977. He referred us to the decision of the Allahabad High Court in Agra Concrete Pipe Co. Vs. Competent Authority, Agra and Another, . He also invited our attention to a decision of the Supreme Court in Mrs. Meera Gupta v. State of West Bengal, Judgment Today 1991 (4) S.C. 162.
We have given our reasons why we are not pursuaded to go by the Government Memorandum in preference to the provisions of the statute. Another reason why we do not propose to expatiate on this aspect is that it may become necessary only if we find our way to reopen the findings of fact concurrently entered by both respondents. The claim for appurtenant land in respect of the water tank is based on the contention that it is a separate non-residential ''building''. We are of the opinion that there is no reason to disturb the finding that water tank was not a separate building, but only part of the main building. In this view, the area occupied by water tank alone may be entitled to be excluded from the purview of the ceiling provisions and not any appurtenant land.
The claim for exclusion of the Servant (Watchman''s) quarters along with appurtenant and additional appurtenant land should necessarily fail, because of the concurrent findings of the respondents that the petitioners had not produced any evidence to prove the construction of Servant''s (Watchman''s) quarter or to show any legal provision that it was enough for the petitioners just to state that the building was in existence prior to 1976 to claim allowance of that building and appurtenant and additional appurtenant land in respect thereof. The decision in Meera Gupta, Judgment Today 1991 (4) S.C. 162 can apply only if there is a finding that a building was in existence at least on the appointed day. There is no such finding in this case, nor are we shown any reason why we should interfere with the orders even in spite of the absence of any such finding. In the absence of such a finding of fact, we need not discuss the decision in Meera Gupta (3 supra).
The question which arose for consideration in Agra Concrete Pipe Co. (2 supra) was whether three tanks used for curing concrete pipes within the premises of the factory formed part of one tank or whether they were separate and independent units. The statutory authorities found the three separate tanks to be in existence on the relevant date. On a further finding that "each is separated by a distance of 6 to 7 feet from the other, a full bench of the Allahabad High Court held that-
"they cannot therefore, be regarded as three parts of one tank."
We have referred to the fact that the 1st respondent entered a positive finding that as per check measurement there were only the main building of which the water tank was a part and three out houses, all of which were duly taken into account in calculating the Ceiling area which the petitioners were entitled to hold.
On the question of appurtenant land, the Full Bench of the Allahabad High Court held in Agra Pipe Co. (2 supra) that the land holder was entitled to 500 Sq.metres of appurtenant land in respect of each of the tanks. That in respect of any building, the appurtenant land which may be allowed shall be 500 Sq. metres and no loss seems to have been assumed by the Full Bench. We find it difficult to accept that assumption. Nor do we find it necessary to examine in any greater detail the further statement that - "all that is required is that there should be building regulations, in force in the area where the structure of building has been constructed". We would rather have read and considered other provisions also of Sections 2 and 4 before venturing a statement in such absolute terms.
It is however not necessary for us to dilate upon these aspects in view of the fact that there is no pleading-much less any proof - to upset the finding contained in the order of the 1st respondent that "water tank is part and parcel of the main building and is not a separate building entitling it to appurtenant land." It is also relevant in this connection to refer to the statement contained in para 7 of the counter affidavit of the respondents to the following effect:
"in reply to the allegation in para 8 of the affidavit it is submitted that as per check measurements there are 3 out-houses, existing in the premises; as such they were taken into account. The contention of the Writ Petitioner that there is a water tower and garage also existing is not correct and no documentary evidence has been produced by the Writ Petitioners during the statutory inquiry."
We are inclined to accept this assertion as correct for yet another reason - there has been no reference to any of the three structures in the agreement for sale dated 5.7.1974 which immediately preceded the Act. We have already referred to the recitals contained in the agreement for sale. Sale deed dated 18.10.1973 did not contain any reference to servants quarters or water Tower as separate buildings. Absence of any reference to such structures in the agreement for sale and the check measurement fully supports the orders of respondents 2 and 1.
It is significant to note that the petitioners had not produced any positive proof indicating that the findings contained in the appellate order and the assertions contained in the counter affidavit filed on behalf of the respondents with reference to the check-measurement are factually wrong. We are, therefore, not in a position to hold that the respondents erred in not considering the built up area of servants (watchmen''s) quarters and garage along with appurtenant lands or appurtenant land in respect of the water tower. In this view, we find that the Government Pleader may perhaps be right in his submission that the petitioners did get more allowance than was due to them in fixing the ceiling limits u/s 4 of the Act.
We do not think it necessary for us to examine the seeming conflict between State of Uttar Pradesh and Others Vs. L.J. Johnson and Others, and Mrs. Meera Gupta v. State of West Bengal (3 supra). Those decisions were rendered on the basis of facts which were found or were admitted and were disclosed by the record. It may become necessary to examine this aspect only in a case where the facts are undisputed or are fully established on the basis of pleadings and proof before the statutory authorities. We may also usefully refer to the principle that once a Constitution Bench has spoken about the validity of a statutory provision, any subsequent decision of the Court has to be read and understood in the light of and in furtherance of the former as was held in N. Meera Rani Vs. Government of Tamil Nadu and Another, . The decision in Mrs. Meera Gupta (3 supra) must therefore be understood in the light of Union of India (UOI) and Others Vs. Valluri Basavaiah Chowdhary and Others, , in which a Bench of five Judges of the Supreme Court upheld the validity of the Act and the extension of the provision thereof to the urban agglomeration of Warangal. We will usefully extract the following observations from para 6 of the unanimous judgment of the Constitution Bench delivered by A.P. Sen, J.:
"6. The primary object and the purpose of the Urban Land (Ceiling and Regulation) Act, 1976, ''the Act'', as the long title and preamble show, is to provide for the imposition of a ceiling on vacant land in urban agglo merations, for the acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings on such land and for matters connected there with, with a view to preventing the concentration of Urban Land in the hands of a few persons and speculation and profteering therein, and with a view to bringing about an equitable distribution of land in Urban agglomerations to subserve the common good, in furtherance of the directive principles of Article 39(b) and (c)."
We are saved further embarassment of probing the matrix of the ratio in Johnson (4 supra) in comparison with Mrs. Meera Gupta (3 3upra). The former disposed of over 200 appeals under the Act, dealing with determination of ceiling area and excess urban land on the basis of the decision in Valluri Basavaiah (6 supra). Meera Gupta (3 supra) has left that decision- Johnson (4 supra) unimpaired.
In the light of Valluri Basavaiah (6 supra) in which the Constitution Bench held that the primary object and purpose of the Act among other things, was "to provide for the imposition of a ceiling on vacant land in Urban Agglomeration, and to regulate the construction of buildings on such (excess) and", we are not persuaded to agree to the submission of counsel for the petitioners that the effect of the decision in Mrs. Meera Gupta (3 supra) is to obligate the statutory authorities to take cognisance of any construction of buildings undertaken by owners of excess land in defiance of law between the date of commencement of the Act and the appointed day. It is needless to state that such a construction will defeat the very purpose of the Act and may frustrate the ceiling provisions altogether. Apart from the above, the facts as found in this case do not call for the application of Mrs. Meera Gupta (3 supra), which dealt with the question whether construction of buildings after commencement of the Act but before the appointed day, on land, which was ''vacant land'' on the former date would enable the holder thereof to claim exclusion of that land from ceiling limits in the light of Section 2(q)(ii) read with Section 4(9) of the Act. In the present case neither on the date of commencement of the Act nor on the appointed day was there any building on the land except those which were taken into account by the respondents.
In the result, the Writ Petition is devoid of merit. We accordingly dismiss the same with costs. Advocate''s fee Rs. 500/-.