STATE OF UTTAR PRADESH Vs. SOMESHWAR PRASAD

JUDGEMENT

(1.) This writ petition is directed against an order of the District Judge, Dehra Dun who allowed an appeal as an Appellate Authority under the Urban Land (Ceiling and Regulation) Act. The State has come up in this writ petition. The relevant facts are as follows; "someshwar Prasad Respondent No. 1 filed a statement under Section 6 (1) of the Urban Land (Ceiling and Regulation) Act, hereinafter referred to as the Act claiming that no part of the land held by him was excess vacant land within the meaning of the Act. The Competent Authority prepared a draft statement under Section 8 of the Act proposing to declare an area of 933 square metre as excess vacant land. An objection was filed by Someshwar Prasad but the Competent Authority declared 933 square metre as excess vacant land by his order dated 17th January, 1978. Someshwar Prasad thereafter filed an appeal before the Appellate Authority. The learned District Judge held that under Bye-law No. 44 of Dehradun Municipality Building Bye Laws no construction was permis sible over 60% or' the aforesaid plot and after excluding the same under Section 2 (q) (i) no part of the land held by Someshwar Prasad could be said to be excess vacant land. Consequently, the order of the Competent Authority was set aside by the Appellate Authority holding that Somesh war Prasad did not have any excess vacant land. " Learned Standing Counsel argued that the Appellate Authority mis construed the provisions of Section 2 (q) (i) of the Act to hold that a land which had to be left as open space under the Municipal Bye Laws was not vacant land as contemplated under the provisions of Section 2 (q) (i ). It was further argued that there were no constructions over the entire land in dispute and consequently the provisions of Section 2 (q) (ii) and Section 2 (q) (iii) of the Act were not at all attracted. Learned counsel for the respondent Somesh war Prasad, however argued that if certain area could not be built upon at all under the provisions of the Building Bye Laws of the State prevalent in Dehra Dun that area could not be treated as excess vacant land. It is evident from the above that the entire plot No. 1385/1 measuring 3 square metres was an open land and was not built upon. The question to be determined in this case is whether there is any excess vacant land in this plot. Dehra Dun city comes under Category D and the permissible ceiling limit of vacant land there is 2,000 square metres. Since Someshwar Prasad had 933 square metres of land in excess of the permissible limit it was held by the Competent Authority to be surplus. But the contention on behalf of Sri Someshwar Prasad is that according to the Bye Laws of the City Board Dehra Dun 60% of the land had to be kept vacant and could not be built up on and that land would not be deemed to be vacant land. English translation of Building Bye-law No. 44 of the Building Bye laws of City Board Dehraduu reads as follows: "44. The following restrictions with regard to the keeping of open space etc. in the matter of construction of buildings shall be applica ble:- S. No. Area of plot Front Open space Back Sides Minimum open space, 1. 500 to 1000 Sft. 4 1 1/2 1 One third 2. 1001 to 4500 ,, 4 2 2 do 3. 4501 to 10000 ,, 15 7 1/2 7 Half 4. 10001 to 12000 ,, - 15 10 10 do 5. 12001 to 18000,, 20 15 15 60 6. 18001 and above 25 15 20 30 The Bye law also indicates that the provisions of the U. P. Regulation of Build ing Operations Act, 1958 is in inapplicable to all the area falling within the Municipality of Dehra Dun, vide notification dated 16-8- 1967. The plot of land is situate within the Municipal limits of Dehra Dun. The plot measures 2933 square metres which is equivalent to 31544 square feet. It, therefore, falls into the last category i. e. serial No. 6 and the last column shows that minimum open space is 30 per cent. Thirty percent of 2933 square metres is equivalent to 879. 9 square metres. The question then is whether this area would be treated as vacant land or not. In other words, the consideration is whether the provisions of Section 2 (q) (i) would be applica ble. The provisions of Sections 2 (q) (II) and (III) do not arise for admittedly there is no construction on this site. Section 2 (q) (i) reads as follows: "2 (q) (i ). Vacant 1 and means land, not being mainly used for the of agriculture in an urban agglomeration, but does not in purpose clude- (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 situate. " The above provision makes it clear that the land on which construction is not permissible under the Building Regulations in force in the area in which such land is situate, cannot be held as vacant land, The question is whether there is any prohibition on the construction of a building upon such land. The Bye- law No. 44 enjoins the leaving of an open space of a minimum of 30 per cent of the plot, which means that no constructions can be made at-least on that much area of land. If there is no prohibition and a building can be raised thereon, it will be deemed to be vacant land. In case of Dattaray v. State (A. I. R. 1981 Bom. 326), a Division Bench was considering the provisions of Section 2 (q) (i) of the Act. The Division Bench opined that what is contemplated is that the Build ing Regulations totally prohibit the building activity upon certain lands by any individual or public authorities or even by the State Government. If it is found that construction of building is permitted either by an individual or even by a public authority then certainly it is vacant land and cannot be taken out of the definition A Division Bench of the Calcutta High Court in the case of Srila Moitra v. State (A. I. R. 1981 Cal. 126) dissented from and overruled a decision of a single Judge of that Court who held that clause (i) of Section 2 (a) was applicable only in respect of land whereupon construction of a building is expressly prohibited by the Building Regulations in force in the area in which such land is situate. I am of the view that if the building Bye-laws indicated that a certain percentage of the area is not to be built upon that part of the land will not be a vacant land. Similarly, if the building Bye-laws require that minimum area of the land has to be kept as open space it means that there is an implied prohibition from mak ing construction on that land. In this view of the matter the building bye-Law No. 44 which was applicable to all lands situated in the Municipal limit of Dehradun city would come under the purview of implied prohibition. As seen above, the total area of plot is 2933 square metres. Thirty percent of this land is 879. 9 square metres. The ceiling limit for Category D city like Dehra Dun is 2,000 square metres. It is, therefore, apparent that the res pondent had some land in excess of the ceiling limit. It is, therefore, obvious that the District Judge has committed a manifest error of law in interpreting Section 2 (q) (i) of the Act and in calculating the surplus area with the respon dent. The Standing Counsel had argued that the Urban Land (Ceiling and Regulation) Act was enacted to subserve the common good and that the pro visions of Section 2 (q) should be construed in a manner consistent with the object of the legislation. It is no doubt true that such legislation should be con strued keeping in view the object of the legislation. However, it is also neces sary to keep in mind the well settled principle of law that an expropriatory legislation has to be strictly construed, even though such a legislation has been enacted for public good. It is incumbent on the Court to apply the provisions of the Act strictly for the landholder may otherwise suffer an irreparable loss. Even though the legislation is for public good, but the authorities under the Act are under a duty to see that the provisions of the Act are duly and fully complied with before any land is declared surplus. In the present case, the Appellate Authority did not apply the correct tests and erred in holding that there was 933 square metres of vacant land. The order of the Appellate Authority cannot be sustained and must be set aside. I order accordingly and send back the case to the Appellate Authority to re-determine the surplus area in the light of the observations made above. There will no order as to costs. .