Dr. R. R. Misra, J. - (1.) THE present writ petition arises out of proceedings taken against the petitioner under the Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as the Act). THE petitioner owned properties at Meerut to the extent of about 1825 Sq. metres and a plot at Delhi covering an area of about 252 Sq. metres. THE said plot at Delhi is built up leaving no vacant area at all. THE Competent Authority, Meerut drew up draft statement of the case under the said Act ana the same is alleged to have been sent to Sri Goel at New Delhi as required by Section 8 (3) of the Act. Sri Goel, petitioner, was a teacher in the Modern School of New Delhi and after retirement he has been running Lakshman Public School at Delhi. At the relevant time when the draft statement was sent he was residing at New Delhi on the aforesaid plot of 252 Sq. metres. Since Sri Goel resided permanently at Delhi, the Competent Authority had sent a registered letter despatched on 29-7-78 to the petitioner at his New Delhi address. THE said letter is alleged to have been refused by the petitioner. Taking the said refusal to be valid service in accordance with law and the fact that no objection was filed, the Competent Authority drew up a statement and made a final order dated 25-10-78 and thereunder declared an area of 1077.40 Sq. metres as surplus. Aggrieved against the same an appeal was filed by the petitioner before the District Judge, Meerut, who also dismissed the appeal by the impugned order dated 19-8-81.
(2.) I have heard learned counsel for the petitioner as well as the Standing Counsel. One of the contention raised on behalf of the petitioner before the authorities below as well as before me is that the relevant registered letter containing the draft statement, which was purported to have been sent to the New Delhi address of the petitioner, was never tendered by the Postman concerned to the petitioner, nor the same had been refused from being taken by the petitioner as is on the endorsement of the said letter. After the impugned order was passed by the Competent Authority the petitioner filed an application supported by an affidavit before the District Judge stating that the petitioner never knew about the proceedings under the said Act, as a result of which he could not file any objection. It was further contended that the property at New Delhi was not at all liable to be taken into consideration and there is no vacant area for the purposes of the Ceiling in the hands of the petitioner. The point raised on behalf of the petitioner was that the only property that could be taken into account for the purposes of the Act was the one that was at Meerut and if a proper opportunity of hearing had been afforded to the petitioner, he could have satisfied the Competent Authority that he possess no excess land over and above the prescribed ceiling limit. It is further submitted that these assertions and contentions of the petitioner urged before the lower appellate court and its effect were not considered at all. All that has been done is that both the opposite parties relying on the said alleged service proceeded erroneously assuming that no objection had been filed by the petitioner. Hence it is submitted that the impugned orders suffer from a manifest error of law and are liable to be set aside as the Competent Authority was not entitled to proceed on the basis that the said registered letter was served on the petitioner. In regard to the contention that the property at Delhi could not be taken into account as there was no vacant area for the purposes of determining the ceiling area in the hands of the petitioner, the position has been cleared by Supreme Court in the case of State of U. P. v. L. J. Johnson, 1983 AWC 798. In paragraph 25 at page 806 the Supreme Court has held : ".........The scheme of the Act seems to be that if there is a constructed building with a dwelling unit, the structure thereon connot be treated as open land for the purpose of declaring it as an excess land beyond the ceiling limit. Similarly, the land kept open under the municipal regulations (upto 500 sq. metres) and an additional 500 sq. metres appurtenant to the land would not be available for being declared as excess land beyond the ceiling limit. The central idea governing this philosophy of putting a ceiling on urban land is that in a urban area none can hold land in excess of the ceiling regardless of whether the land is entirely open or whether there is a structure consisting of a dwelling unit thereon subject to the rider mentioned above. Indeed, if the intention would have been to take over the entire open land without giving any benefit of appurtenant land to the land holder then the Act would perhaps be liable to be challenged on the ground of being of a confiscatory nature and would fall beyond the permissible limits of the directive principles enshrined in Part IV of the Constitution. Furthermore, such an interpretation would discourage new building enterprises or factories or industrial units coming up in the urban areas which would be contrary to the very tenor and spirit or the Act. " Thus, it is manifest that even in the case of a land on a part of which there is a building as dwelling unit and rest of which is vacant, the open area which is appurtenant to that building would be allowed to be retained for the beneficial use of the building so that the person concerned may enjoy the use of a little compound also for various purposes. Since in the present case the entire building at New Delhi is built up in my opinion, no part of the land at New Delhi could be taken into consideration for determining the surplus area and the Competent Authority as well as the District Judge have plainly gone wrong in adding up the area of the plot at New Delhi by referring to section 4 (9) of the Act.
(3.) AS regards the land at Meerut, undisputably Meerut is C class city. For the purposes of the Act 1500 sq. metres are exempted. According to the Competent Authority, the petitioner was in possession of 1825 sq. metres of land situate at Meerut. AS is clear from the counter affidavit filed on behalf of the Competent Authority, out of the said area vide order dated 23-10-78 the petitioner was allowed to sell 747.60 sq. metres from the ceiling area. Accordingly, a sale deed was also executed by the petitioner in favour of Sri Manohar Lal Gupta, opposite party no. 3. Record shows that possession was also handed over to this vendee. The petitioner did not accept the calculation given in the draft statement. Therefore, in view of the above facts and also on the ground that no opportunity had been afforded to him as contemplated by law for filing the objection, the petitioner seriously objected to the calculation of the ceiling area. It is therefore, urged on behalf of the petitioner that the impugned orders are liable to be set aside and the matter may be sent back to the Competent Authority for re-determination as to whether in regard to Meerut property there is any excess beyond the ceiling prescribed for ' C ' class City.;