K. C. Agarwal, J. - (1.) -
(2.) THIS writ petition under Article 226 of the Constitution of India has been filed by Krishna Gopal Singhal against judgment of the District Judge, Kanpur, dated 27-8-1980, declaring 448.50 Sq. meter land as surplus. The petitioner owns two plots ; One is plot no. 63/4 in Mohalla Harbansmohal, Kanpur, measuring 309 Sq. m. A house having an area of 256 sq. meters existing on a portion of this plot. The other plot is in Panki Kanpur, measuring 1134.50 sq. meters. This is completely vacant land. The competent authority allowed 1000 sq. metres of land to the petitioner and declared the balance possessed by him, which was in the area 443.50 sq. meters, as surplus. The authority also delineated the excess land in the Panki plot. In the appeal before the District Judge, one of the controversies was about the date on which the house on plot no. 63/4 was constructed. The District Judge found that there was no evidence on record to prove that this house had been constructed before coming into force of the Urban Land (Ceiling and Regulations) Act, 1976 (hereinafter referred to as the 'Act'). On that basis he concurred with the competent authority by finding that the building could not be ignored. The next controversy was that certain percentage of land was required to be left open for the purpose of making constructions. The said percentage has to be ignored while calculating the vacant land. The submission of the learned counsel is not correct. This point came up for interpretation before the Division Bench of this Court in State of U. P. v. L. J. Johnsons, 1978 AWC 731. It was observed in that case that the requirements as such provided for in the U. P. (Regulation of Building Operations) Act are enforced for the purpose of allowing a minimum extent of land to lie vacant for convenient enjoyment of building and also for town-planning and environmental purposes. For that purpose, the Act has made provision for land appurtenant to a building as contained in section 2 (g) (1) of the Act. In reference to section 2 (g) (1), the Division Bench has observed ; " This is obvious from Sec. 2 (g) which prescribes, that in an area where there are building regulation the minimum extent of land required under such regulations to be kept as open space for the enjoyment of such building shall not exceed the limit mentioned in that provision. " Section 2 (g) is therefore exhaustive. However if there is a vacant piece of land, section 2 (g) will not apply to that case. It has been held by this Court in S. N. Duggal v. State of U. P. decided on 16-8-84 that section 2 (g) (1) is not meant for application to the case like the present. The submission of the learned counsel is, therefore, not correct. The learned counsel next urged that it is not necessary for the land appurtenant under section 2 (g) that the same should be contiguous to the land and if a person holds vacant land as such, be would be entitled to 1000 sq. m. in respect of its situation. This submission also is not correct. 1000 sq. m. is allowable to the building if there is a vacant land available at the spot where the building is situate. If the benefit is available in respect of land contiguous to it, the meaning of the expression ' land appurtenant ' has been dealt with exhaustively in State of U. P. v. L. J. Johnsons, 1983 AWC 798. The observations made are to be found in paragraph 23 of the said judgment ! " Thus taking the legal and dictionary meaning of the word 'appurtenant' or ' appurtenances' the inescapable conclusion is that the words 'either other land or appurtenances' are meant to indicate that the land in question should form an integral part of the main land containing the building in question. We have indicated above which is that the land appurtenant means not a land contiguous to some other land but the very land which is a part of the same plot or area which contains the building or dwelling house. This also seems to be the avowed object of Section 4 (9) of the Act. "
(3.) THE last argument of the learned counsel for the petitioner was that on the basis of figures arrived at by the District Judge, only 134 sq. m. could be declared surplus, inasmuch as, according to his submission, the land constructed upon and the land which was appurtenant to the building had to be left from calculation. This submission runs counter to the decision of the Supreme Court in State of U. P. v. L. J. Johnsons (Supra). In this case while dealing with this controversy the Supreme Court observed ; " Section 4 (9) contemplated that if a person holds vacant land as also other portion of land on which there is a building with a dwelling unit, 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. " In paragraph 29, the Supreme Court had taken into account the constructed land as well as the land appurtenant and thereafter it declared 530 sq. m. as surplus. Therefore, the submission has no tenability.;