AFTAB AHMAD Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is a petition filed under Article 226 of the Constitution, challenging and order of the District Judge, Allahabad dated 11-10-1977. By this order the District Judge dismissed the appeal filed by the petitioner under Section 33 of the Urban Land (Ceiling and Regula tion) Act, 1976 (Act No. 33 of 1976) (hereinafter referred to as Act No. 33 of 1976 ). Upon a notice being served on the petitioner under Section 6 of the Act No. 33 of 1976, the petitioner filed a statement stating that he did not possess any land as surplus. One of the pleas taken in the objection was that as plot Nos. 987 (. 50) acres was out of urban agglomeration and other plots, viz. 455 (. 40), 458 (. 12), 460 (. 11), 871 (1. 31) and 1003 (. 60) were agricultural plots, as such they were liable to be excluded for the purposes of calculating the area of the petitioner. The ceiling limit of the town of Gorakhpur where the land in dispute is situated is 2000 sq. metres. The competent authority rejected the objection of the petitioner and after deducting 2000 sq. metre found that 8780 sq. me tre land was surplus with the petitioner. Against the said order of the Pres cribed Authority, the petitioner preferred an appeal under Section 33 of the Act. The appeal was dismissed, hence the writ petition. One of the main grounds advanced in appeal before the learned District Judge was that as the six plots, mentioned above, were grove and, therefore, liable to be exempted from the operation of the Act. Section 2 (o) defines the expression 'urban land. ' The relevant portion of this definition is as under: ". . . . . . . . . . . . . . . . . . but does not include any land which is mainly used for the purpose of agriculture. . . . . . . . . . . . " The Explanation given to clause (o) of Section 2 lays down: "for the purpose of this clause and clause (p)- (A) "agriculture" includes horticulture, but does not include- (i) raising of grass, (ii) dairy farming, (iii) poultry farming, (iv) breeding of live-stock, and (v) such cultivation, or the growing of such plant, as may be prescribed; (B) land shall not be deemed to be used mainly for the purpose of agriculture, if such land is not entered in the revenue or land records, before the appointed day as for the purpose of agriculture: Provided that where on any land which is entered in the revenue or iand records before the appointed day as for the purpose of agriculture, there is a building which is not in the nature of a farm house, the so much of the extent of such land as is occupied by the building shall not be deemed to be used mainly for the purpose of agriculture. Provided further that if any question arises where any building is in the nature of a farm house, such question shall be referred to the State Government and the decision of the State Government thereon shall be final; (C) Notwithstanding anything contained in clause (B) of this Explanation, land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master plan for the purpose other than agriculture; Reading the definition, it would be found that agricultural land which has been defined as 'agriculture' in 2 (o) (A) has to be excluded for the pur pose of calculating the ceiling area. However, there are two riders for the said purpose. The first rider is that the land must have been used mainly for the purpose of agriculture and must be entered in the revenue or land records before the appointed day. The second rider is that land must not have been shown in the master plan for the purpose other than an agricul ture. In the instant case, the learned District Judge found that the land in question had been shown in the master plan for purposes other than agricul tural purposes, as such, the petitioner was not entitled to the exclusion of the aforesaid six plots. This leads us to the consideration of the question whether there existed any master plan for the city of Gorakhpur which could attract clause (c) of 2 (A ). The expression 'master plan' has been defined in clause (h) of Section 2 of U. P. Act No. 33 of 1976. The said definition reads as under: " (h) '-master plan," in relation to an area within an urban agglomeration or any part thereof, means the plan (by whatever name called) prepared under any law for the time being in force or in pursuance of an order made by the State Government for the development of such area or part thereof and providing for the stages by which such development shall be carried out; In order to qualify the requirements of clause (e) of Section 2-A it is necessary that a 'master plan' must have been prepared and enforced in pur suance of an order made by the State Government for the development of such area. So far as the State of Uttar Pradesh is concerned, there are two relevant acts dealing with the matter in issue; the first act to which, a reference may be made is the U. P. (Regulation of Building Operations) Act, 1958. This Act had been enacted for the purpose of checking haphazard development of the cities and for laying down regulations in accordance with which the constructions had to proceed. Section 5-A provided that if, in the opinion of the State Government, and regulated area requires to be developed according to the master plan, it may cause such a plan to be prepared either through a controlling authority or through such other agency as it may think fit. This Section 5- A was introduced by the U. P. Act No. 41 of 1976. Apart from the U. P. (Regulation of Building Operations) Act, 1958 an other Act which is required to be considered is the U. P. Urban Planning and Development Act, 1973. Chapter III deals with master plan and zonal development plan. Section 10 also provides that after a master plan has been prepared, the same shall be sanctioned by the State Government. Upon the sanction being granted, the plan comes into operation under Section 12 of the said Act. A counter affidavit has been filed on behalf of the State Government admitting that the master plan which has been prepared for the city of Gorakh pur had not been approved by the State Government. In paragraph 7 of the said counter affidavit, the averment made is only to the effect that a master plan had been prepared and that the objections to the same had been invited. But there is no averment made in this paragraph stating that the master plan' so prepared, had been sanctioned by the State Government. As the master plan had not been sanctioned, it could not come into force. Consequently, Explanation (C) of Section 2 (o) could not be pressed into service. Hence, the six plots, belonging to the petitioner, could not be treated as part of urban Land. In this view of the matter the judgment cannot be sustained. The next question raised for consideration is whether the petitioner succeeded in establishing that the land was mainly used for the agricultural purposes at the relevant time. Since neither the District Judge nor the Prescribed Authority examined this aspect of the question, it appears appro priate that the judgment of the District Judge be quashed and the case be sent back to him for deciding the case afresh in the light of observations made above. The District Judge will now consider whether the six plots, claimed by the petitioner, fulfill the requirements of law of being agricultural land and of clause (B) of Explanation 2 to Section 2 (o ). In the result, the writ petition succeeds and is allowed. The order of the District Judge dated 11-10-1977 is set aside and the case is sent to him for deciding the case afresh. No order as to costs. .