K. C. Agarwal, J. - (1.) :-
(2.) THIS petition under Article 226 of the Constitution has been filed by the State of U. P. against the judgment of the District Judge, Meerut, dated 30th September, 1981, accepting the appeal of Respondent 1 Prem Chandra Jain filed under Section 33 of Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the Act'). Respondent 1 Prem Chandra Jain submitted a statement under Section 6 (I) of the Act on 14-2-1977. This statement was in respect of five properties : (i) House No. 13/1596/1/3 Mutriban Street, Saharanpur City, which is double storeyed building (residential unit), measuring 246.25 square meters, totally covered with no vacant land, (ii) House No. 13/1616, Mutriban Street, Saharanpur City, measuring 18.50 square metres, totally built up, residential unit (iii) plot no. 30/15/48/1, Mutriban Street, measuring 31.35 square metres, (iv) House No. 2/1414 on Rampur Road, Saharanpur (commercial unit) in which built up area is 582.10 square metres and appurtenant land is 1248 square metres, and (v) plots nos. 32 to 35, 43 and 44 of Pardhuman Nagar, Saharanpur City measuring 3020 square metres. After perusal of the statement and making the necessary enquiry, as was felt necessary, the Competent Authority proposed to declare 1792.60 square metres as excess vacant land. An objection was filed by respondent 1 to the draft statement. The Competent Authority dismissed the objection and confirmed the proposal of the draft intending to declare 1972.60 square metres as surplus. Against this judgment, Respondent 1 preferred an appeal. The learned District Judge, Meerut, allowed the appeal by holding that as no constructions were permissible on an area measuring 1966.35 square metres on account of Regulation 20 of U. P. (Regulation of Building Operations) Act, 1958, this area was liable to be excluded from the definition of vacant land. According to this view, construction was permissible only on 1580 square metres which was well within the ceiling limit prescribed for Meerut, where the properties in question are situate. In this view, he allowed the appeal and set aside the judgment of the Competent Authority by holding that Respondent 1 did not possess any land liable to be declared as surplus. Aggrieved, the State has filed the present writ.
(3.) THE first question that arises for decision in the instant case is whether Section 2 (q) (i) could be applied to the land required to be left vacant under Regulation 20 of U. P. (Regulation of Building Operations) Act, 1958. "Vacant land" has been defined in Section 2 (q) (i), which reads as under : "Vacant land 'means land, not being land mainly used for the purpose of agriculture, in an urban agglomeration, but does not include- (i) land on which construction of a building is not permissible under the building regulation in force In the area in which such land is situated." This controversy came up for decision before this Court in State of U. P. v. L. J. Johnson, 1978 AWC 731. In that case, the question for consideration was whether under Section 2 (q) (i), the land, which is required to be left open under the Municipal bye-laws or the building regulations, falls outside the purview of the 'vacant land' and was to be excluded from consideration in addition to "land appurtenant", as defined in Section 2 (g) of the Act. The District Judge, against whose judgment the writ petition had been preferred, took the view that apart from the built in area and the land appurtenant to the building, an area of 1092 square metres, which the land holder was required to keep as open space under the bye-laws of the City Board, Dehra Dun, had also to be excluded under Section 2 (q) (i) while computing the area of vacant land. The Division Bench disapproved the above finding of the District Judge by holding that the area, which is required to be kept as open space under the bye-laws, does not fall within the purview of Section 2 (q) (i) and to that extent the District Judge was wrong in applying the aforesaid provision. However, on Section 4 (9), the view of the Division Bench was that : "Section 4 (9) of the Act provides that the extent of such other land occupied by the building and the land appurtenant thereto shall also be taken into account in calculating the extent of vacant land held by such person. The use of the expression "any other land" makes it abundantly clear that the provision applies where there is a vacant land and another piece of land having a dwelling unit whether contiguously situated or not." ;