K. N. Seth, J. - (1.) (for self and for Satish Chandra, C. J.) :-These petitions filed by the State of U. P. under Article 226 of the Constitution arise out of proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 (Act No. 33 of 1976) (hereinafter referred to as the Act) and are directed against the orders of the appellate authority constituted under the Act. The basic question involved in these petitions relates to the criteria for determining the extent of vacant land which a person is entitled to hold in an urban agglomeration in the territories to which the Act applies.
(2.) WITH the object to provide for the imposition of a ceiling on vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomerations to subserve the common good the Parliament passed the Act which applies in the first instance to certain States mentioned in the Act, including the State of U. P. and all the Union territories. The urban agglomerations have been classified in four categories.. By Section 4 the ceiling limit of the vacant land in the four categories has been specified. In the State of U. P. the urban agglomerations fall under categories C and D for which the ceiling limit is fixed at one thousand five hundred and two thousand square metres respectively. Section 3 of the Act prescribes that except as otherwise provided in the Act, on and from the commencement of the Act, no person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which the Act applies. Restriction has been imposed only in respect of vacant land which has been defined under Section 2 (q) to mean "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, the appointed day with the approval of the appropriate authority and the land appurtenant to such building; and (iii) 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 : Provided..............." The expression "land appurtenant'' is defined in Section 2 (g) as follows :- " "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 ;" The question for consideration is whether under Section 2 (q) (i) land, which is required to be left open under the municipal bye laws or the building regulations falls outside the purview of vacant land and is to be excluded from consideration in addition to "land appurtenant" as defined in Section 2 (g). It was urged that since construction of a building is not permissible under the municipal bye laws or under the building regulations over such land, it cannot be treated as vacant land and an allowance has to be made for it in addition to 'land appurtenant'. In this connection our attention was invited to certain provisions of the U. P. (Regulation of Building Operation) Act, 1958, and the building bye laws framed by some Municipal Boards which provide for set back lines from the plinth of the building. It cannot be disputed that such requirements are enforced for purpose of allowing a minimum extent of land around the building for convenient enjoyment of the building and also for town planning and environmental purposes. It is for the same purposes that the Act has made provision for land appurtenant in relation to a building. What is contemplated under Section 2 (q) (i) is that land which is to be maintained as open space like greenpark play ground etc. where no construction is permissible at all under any regulations contained in the Master plan or the law governing the construction of buildings. It does not cover cases where a part of the land is to be left open for beneficial and convenient enjoyment of the building or to satisfy the requirements for town planning and environmental purposes. This is obvious from Section 2 (g) which prescribes that 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 shall not exceed the limit mentioned in that provision. If the building regulations require more land to be kept as open space, the extent of such land shall not exceed five hundred square metres. This provision over-rides the provisions contained in the building regulations and the municipal bye laws in view of Section 42 of the Act. It could not have been the intention of the legislature to provide for five hundred square metres of land as land appurtenant to any building plus an additional five hundred square metres contiguous to the minimum extent referred to in sub-clauses (i) and (ii) of Section 2 (g) and over and above that area to provide for land required to be kept as open space under the building regulations. The provisions contained in clauses (g) and (q) (i) of Section 2 have to be read together and in an harmonious manner to arrive at the correct definition of vacant land. Read in such a light the inference is unavoidable that clause (i) of Section 2 (q) is not applicable to land which is required to be left as open space under the municipal bye laws or the building regulations. Land provided as land appurtenant to the building under the Act takes care of that requirement. Vacant land has to be determined after excluding land covered by the building and the land appurtenant to it. Further exclusion of the area required to be kept as open space under the municipal bye laws or the building regulations is not permissible.
(3.) THE definition of the word 'land appurtenant' further indicates that if there are more than one dwelling units constructed on the same plot of land, land appurtenant to each dwelling unit has to be taken into consideration in determining the area of the vacant land. Even if the dwelling unit is in the nature of a servant quarter or out-house, land appurtenant to it shall have to be left apart from the land appurtenant to the main building. Where a person holds vacant land and also holds any other land on which there is a building with a dwelling unit therein, 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 building with a dwelling unit whether contiguously situated or not. In view of this provision if the area occupied by the building and the land appurtenant thereto is less than the ceiling limit then the holder would get a part of the other vacant land to the extent the said area is short of the ceiling limit. If, however, the land under the building and the land appurtenant thereto is held in excess of the ceiling area, (though it may not be vacant land by virtue of Section 2 (q) (ii) and (iii)) the holder will lose the other vacant land in its entirety. The learned Advocate General contended that for the applicability of Sec. 4 (9) it is not necessary that there must be a vacant land and another piece of land having a building with a dwelling unit on it and that in calculating the extent of vacant land held by a person the extent of land occupied by the building and the land appurtenant thereto shall be taken into account even in a case where there is only one piece of land held by the person. As pointed out earlier, the expression "a person holds vacant land and also holds any other land" pre-supposes that the other land must be different from vacant land and on the other land there must be a building with a dwelling unit therein. It is the extent of such other land occupied by the building and the land appurtenant thereto that enters into the calculation for determining the extent of vacant land held by such person. Land covered by the building and land appurtenant to it does not constitute vacant land and there appears to be no justification for taking the aforesaid land into account in calculating the extent of vacant land in a case where the building stands on the same land which is under consideration for determining the extent of the vacant land.;