SIDHESWAR SAHOO Vs. SPECIAL OFFICER AND COMPETENT AUTHORITY

JUDGEMENT

(1.) The order passed by the competent authority under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the Act'), annexed as Annexure -2 and the order of the appellate authority, annexed as Annexure -3, are being challenged in this writ application by the petitioner who happens to be the legal representative of the surplus holder late Moti Dei. Their Lordships, after rejecting other contentions of petitioner as question of facts concluded by competent authority, found as follows : 5. So far as the lands alleged to have been covered by the agricultural lands, the competent authority has held that the lands are covered in the residential zone of the Master Plan for the Cutback City. While defining 'urban land' in Section 2(O) of the Act. it is no doubt indicated that it does not include any land which is mainly used for the purpose of agriculture. Explanation (3) to the said sub -section clearly states that the land shall not be deemed to be used mainly for the purpose of agriculture, if such land is not entered in revenue records before the appointed date as for the purpose of agriculture. Explanation (C) clearly states that 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 a purpose other than agriculture. In view of the aforesaid provisions and the land in question having been shown in the residential zone of the master plan, it cannot be said to be used mainly for the purpose of agriculture and, it would, therefore, not be excluded from the definition of the 'urban land'. The petitioner's contention on this score is, therefore, wholly unfounded. 6. In course of hearing of the writ application apart from reiterating the stand taken in the writ application, which we have discussed earlier, Mr. Ramdas, strenuously argued that the residential house of the petitioner should be totally excluded from computation on a proper interpretation of the provisions of the Urban Land (Ceiling and Regulation) Act. He further contended that plot No. 3238 having been found to be water logged, the authority committed error in taking that into account in computing the ceiling surplus. So far as plot No. 3238 is concerned, the petitioner's contention is based on a misconception as the same had been excluded from computation of the ceiling, as would appear from the order of the competent authority under Annexure -2. The only question that survives for consideration is whether the residential house of the petitioner should be totally excluded while computing the ceiling in respect of the vacant land or not. 7. In the case of State of U. P. and Ors. etc. v. L.J. Johnson and Anr. etc. (AIR 1933 SC 1303), their Lordships of the Supreme Court after analysing Section 4(9), 2(g) and 2(q) (ii) and (iii) came to the conclusion that if a person holds vacant land as also other portion of land on which there is a building with a dwelling unit, then 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. It was further held that where a person held several plots, some completely vacant and some partly built and partly vacant, then the legislative intention is clear that the land -holder will be permitted to hold only an area of 2000 sq meters in category 'D' area. In other words, according to the judgment though the building is to be excluded from computation but while allowing the retention the land covered by the building has to be taken into account and the ceiling -holder would be entitled to retain only the total extent of land as provided under the Act which may include the residential building. Mr. Ramdas, the learned counsel places before us a recent judgment of the Supreme Court in the case of Smt. Mira Meera Gupta v. State of West Bengal and Ors. (JT 1991 (4) SC 162) in support of his contention that any land on which a building has been constructed prior to the appointed day, remains outside the purview of vacant land under the Act and, therefore, that cannot be taken into account for any purpose of computation what soever. In the aforesaid decision their Lordships after examining the provisions of Section 2(q), 2(q), 4(9) and 4(11) came to hold that if the building stood constructed on the land prior to January 28, 1976, then the land occupied under the building is not vacant land. He further held that the land on which any building was in the process of construction on January 28, 1976 with the approval of the appropriate authority, then that too is not 'vacant land' and in addition the land appurtenant to these two kinds of buildings is also not 'vacant land'. Their Lordships further held that there is a visible contract between 'vacant land' and 'any other land' used in Sub -section (9) of Section 4 and it is the said 'any other land' that is reckoned and brought at par with the 'vacant land' for the purpose of calculating the final extent of vacant land. Their Lordships further held : 'It seems to us that the expression 'vacant lands' in the first portion of the provision connotes land minus land under buildings constructed or in the process of construction before and on the appointed day, and the expression 'vacant land' in the latter portion of the provision connotes the sum total of 'vacant land' of the first order and distinctly the 'other land' on which is a building with a dwelling unit therein of which construction commenced after the appointed day and the land appurtenant thereto.' Their Lordships of the Supreme Court after analysing Sub -section (11) of Section 4 of the Act held : 'Sub -section (11) of Section 4 means to convey that what is not vacant land under Sub -clauses (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.' Ultimately in paragraph -14 of the said judgment their Lordships further held : 'If the construction of a building with a dwelling unit therein had begun after the appointed day, then it is all the same 'any other land' to be reckoned for calculating the extent of vacant land held by a person. And if the construction of a building with a dwelling unit therein on land had been completed or was in progress by and on the appointed day, then it is not 'any other land' to be reckoned for calculating the extent of vacant land held by a person.' - - - -

(2.) IN view of the aforesaid decision of the Supreme Court, if there is a building on any portion of the land which building had been either completed or was in process of construction prior to 28th of January, 1976, then the said land cannot be taken into account for computation of the vacant land in the hands of the land -holder under Section 4(9) of the Act. According to Mr. Ramdas, even though such a contention had not been taken in the writ application but this being a pure question of law and being available to the petitioner because of the latest judgment of the Supreme Court and the petitioner's valuable rights are being taken away, he may be permitted to urge the same. We fine sufficient force in the aforesaid submission of Mr. Ramdas, appearing for the petitioner. While, therefore, we conclude all the findings arrived at by the competent authority in respect of all other lands but we remit the matter to the competent authority for coming to a conclusion as to whether the dwelling unit of the petitioner had been constructed on any portion of the land prior to the appointed day, namely, 28th January, and if he finds that the building had been completed or was in process of construction by 26th January 1976, then the said land together with the lands appurtenant thereto have to be excluded from the computation of the vacant land in the hands of the surplus -holder. The petitioner would have the opportunity of leading evidence that the building in question had been constructed or was in the process of construction prior to the said appointed day. We make it clear that the findings of the authorities below on all other points are affirmed and cannot be reopened. The orders under Annexures 2 and 3 are quashed so far as they relate to the land covered by the dwelling house of the petitioner and the matter is remitted to the competent authority for redetermination in accordance with our observations made in this judgment bearing in mind the decision of the Supreme Court in Smt. Meera Gupta's case referred to supra. This writ application is allowed to the extent indicated above. There would be no order as to costs. The petitioner is directed to appear before the competent authority on 11 -2 -1992 whereafter the competent authority would fix the further date of hearing and would proceed in accordance with law. D.M. Patnaik, J. I agree.