R. R. Rastogi, J. - (1.) SRI L. T. Jhonson, respondent No. 1, was owner of premises No. 186, Rajpur Road, Dehradun, having a total area of 2530 square metres. He moved an application on 28-4-1977 under Section 27 of the Urban Land (Ceiling and Regulation) Act, 1976, here- inafter referred to as "the Act" for permission to sell the aforesaid premises to Major General Prem Chandra, resident of B 96, Basant Bahar, New Delhi. The competent authority refused to grant the permission applied for, since, in his opinion, after excluding 192.09 sqr. metres because of the provisions of U. P. Roadside Land Control Act 1945, there was still left 2337 square metres, which was more than the ceiling limits of 20.00 square metres, permitted under the Act for Dehradun. SRI Jhons-on preferred an appeal against that order before the District Judge. Two submissions were made on his behalf, firstly, under Rule 44 of the Building Bye Laws of City Board, Dehradun, he was required to leave 25 feet in front 15 feet in the back and 20 feet on either side and that worked out to 1092 square metres and after excluding the same he was left only with 1438 square metres, which was below the premissible limit ; and, secondly, he could construct only over 60 percent of the total area of the land and that would exclude about 1030 square metres and he would thus have been left with 1500 square metres only which was also within the permissible limit. The Building Bye Laws of the City Board, Dehradun, were produced before the District Judge. The District Judge accepted the submissions made on behalf of the respondent and held that after excluding the land on which constructions were not permissible, the land left was within the permissible limit and hence permission under Section 27 of the Act should have been granted. This order forms the subject matter of challenge in this writ petition filed by the State of Uttar Pradesh and the Competent Authority, Dehradun.
(2.) AFTER hearing the parties at some length I am of the opinion that the order of the District Judge does not suffer from any legal infirmity. Section 3 of the Act provides that "except as otherwise provided in this Act, on and from the commencement of this Act, no person shall be entitled to hold any vacant land in excess of the ceiling limit, in the territories to which this Act applies under sub-section (2) of Section 1." The definition of 'vacant land' is contained in Section 2 (q) of the Act and the relevant portion reads as follows :- "(q) "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 regulations in force in the area in which such land is situated ; (ii) in an area where there are building regulations, the land occupied by any building, which has been constructed before or is being constructed on, appointed day with the approval of the appropriate authority and the land appurtenant to such building ; and fiii) in an area where there are no building regulations, the land occupied by any building which has been constructed before, or is being constructed on the appointed day and the land appurtenant to such building ;" (The proviso to this clause is not necessary for the present purpose). The definitions of "building regulations" and "land appurtenant" may also be looked into and they are as under :- "(b) "Building regulations" means the regulations contained in the master plan, or the law in force governing the construction of buildings" ; "(g) "land appurtenant", in relation to any building, means- (i) in an area where there are building regulations, the minimum extent of land required under such regulations to be kept as open space for the enjoyment of such building, which in no case shall exceed five hundred square metres ; or (ii) In an area where there are no building regulations, an extent of five hundred square metres contiguous to the land occupied by such building, and includes, in the case of any building constructed before the appointed day with a dwelling unit therein, an additional extent not exceeding five hundred square metres of land, if any, contiguous to the minimum extent referred to in sub-clause (i) or the extent referred to in sub-clause (ii), as the case may be;" It would appear, therefore, that only that land would be treated as vacant land which is not mainly used for the purpose of agriculture and is situated in an urban agglomeration. While computing the extent of vacant land under the provisions of the Act, land on which construction of a building is not permissible under the building regulations in force and further the land occupied by any building and land appurtenant to such building are to be excluded. As for finding out land appurtenant to any building, the minimum extent of land required under building regulations to be kept as open space for the enjoyment of such building is to be found out. Where there are no building regulations, 500 square metres contiguous of the land occupied by such building is to be treated as land appurtenant to the building. It is not in dispute that in the instant case there are building regulations in force in the area in which the disputed property is situated. Under the Building Bye Laws of the City Board, Dehradun, it is necessary to leave 25 feet in front, 15 feet in the back and 20 feet on either side, as open space. The learned District Judge accepted the contention made before him on behalf of the respondent No. 1 that such open space worked out to 1092 square metres. Even if there had been no building regulations in force, 500 square metres contiguous to the land occupied by the building was to be treated as land appurtenant to the building. Besides, the area occupied by the building is also to be excluded and such area is 629 square metres as stated in para 2 of the counter affidavit. There is anofher aspect and it is that the Roadside Land Control Act, 1945, is in force in the district of Dehradun. The Competent Authority excluded 192.09 square metres land for being covered by the provisions of that Act. That calculation also is not correct because construction cannot be raised within 200 feet from the centre of the road. The front portion of the building standing on the disputed land is 41 metres facing the road. It cannot be said, therefore, that there is any excess vacant land because of the operation of this Act. Thus, from whatever angle the case might be considered, the vacant land was within the permissible limit.
(3.) I do not think that Section 4 (9) of the Act is applicable to the instant case as contended by the learned Standing Counsel. That sub-section reads as under :- "Where a person holds vacant land and also holds any other land on which there is a building with a dwelling unit there in, 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 view taken by the Competent Authority in regard to the interpretation of this provision is not correct. This sub-section clearly contemplates the case where a person holds vacant land and also holds some other land on which there is a building with a dwelling unit therein. It does not contemplate a case where on a piece of land there is a building with a dwelling unit therein and some open space. There should be two different pieces of land, one vacant and the other having a building with a dwelling unit therein. The distinction becomes very clear if a reference is made to sub-sections 5, 6 and 7 of this very section besides other provisions as well, particularly Sections 6 and 8 of the Act. I, therefore, do not think that Section 4 (9) of the Act was attracted to this case.;