K. N. Goyal, J. - (1.) THIS writ petition arises out of proceedings for declaration of surplus land under the Urban Land (Ceiling and Regulation) Act, 1976.
(2.) THE respondent Mrs. Rakesh Murthy holds a Bungalow No. 31, Butlerganj, Lucknow. On a notice being issued to her under the said Act she filed an objection in which a plea was taken that she was merely a licensee and not an owner and as such there was no question of any surplus land being "held'' by her. On facts also it was pleaded that the area of the land mentioned in the notice was not correct and further that there were three dwelling units and not one on the land. Ultimately the competent authority found that the correct area was 8290 sq. metres out of which she was entitled to the benefit of 6545 and odd sq. metres, and declared 1745 and odd sq. mts. as excess vacant land. Against this declaration the respondent filed an appeal before the learned District Judge. In the memorandum of appeal, which is Annexure No. C-1 to the counter affidavit, again the same legal pleas were taken and it was urged that nothing should have been declared as surplus land. When the appeal came up for hearing before the learned District Judge the only point pressed was that the competent authority had wrongly allowed the benefit of only two servants' quarters whereas actually there was 11 servants' quarters and for each of them the respondent was entitled to have 500 sq. metres as additional appurtenant land. This plea was not specifically taken in the ground of appeal but was nevertheless entertained by the learned District Judge who thereupon issued a commission to an Advocate. The Advocate-commissioner gave a report on 4-1-1982 in which he said that there were five servants quarters. Against this report the respondent filed an objection and thereupon the Advocate-commissioner was sent again and this time he stated that actually there were seven servants' quarters. This was accepted by the learned District Judge and accordingly the appeal was allowed and it was held that there was no surplus land at ail. Aggrieved by this decision the State has filed this writ petition. The writ petition came up for hearing before a learned Single Judge (Hon'ble S. S. Ahmad, J.). The question on which the learned Single Judge was addressed was whether "appurtenant land" is to be separately allowed for servants quarters ? On behalf of the respondent reliance was placed on State of U. P. v. L. J. Johnson, 1978 AWC 731 in which it was observed, inter alia, as follows :- "............Even if the dwelling unit is in the nature of a servant quarter or out-houses, land appurtenant to it shall have to be left apart from the land appurtenant to the main building." On behalf of the State it was pointed out that the said decision in Johnson's case has been reversed by Hon'ble the Supreme Court in State of U. P. v. L. J. Johnson, 1983 AWC 798. The learned Single Judge was of the opinion that the question whether the decision of the Division Bench of this Court in Johnson's case stands completely overruled by the Supreme Court decision or not requires the attention of another Division Bench. It was in these circumstances that this case has been referred to a Division Bench and has come up before us.
(3.) WE have heard learned counsel for the parties. Learned Standing counsel Sri H. N. Tilhari has pointed out that the respondent herself in her objection had never raised the plea that there were several servants' quarters. All that was said in her objection was that there were three dwelling units. The competent authority itself allowed appurtenant land for the main building as well as for a Guest House as well as for two servants' quarters, i. e. 4 dwelling units including the main building. This was itself more than what was claimed in the respondent's objection in which only three dwelling units were mentioned. In the memorandum of appeal nothing was said about the number of dwelling units or of servant's quarters. As against this, learned counsel for the respondent Sri V. B. Upadhya has pointed out that it was not urged on behalf of the State before the District Judge that a commission need not, in view of the pleadings, be issued for ascertaining the number of servants' quarters. No objection was raised on behalf of the State against the commissioner's report.;