State of U.P. & Ors Vs. L.J.
Johnson & ANR, [1983] INSC 118 (8 September 1983)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
THAKKAR, M.P. (J)
CITATION: 1983 AIR 1303 1983 SCR (3) 897 1983
SCC (4) 110 1983 SCALE (2)292
CITATOR INFO :
RF&E 1992 SC1567 (8,11,15)
ACT:
Urban Land (Ceiling & Regulation) Act,
1976-Sec. 4(9) read with s. Z(g) (ii) and (iii)-Interpretation of-Land- Partly
built and partly open-Principles for determining the ceiling area. Holding of
separate plot of open land not necessary to attract s. 4(9).
Words & Phrases-'land appurtenant', and
'appurtenances' - explained.
HEADNOTE:
The first respondent in civil appeal No. 2005
of 1982 had a parcel of land measuring 2530 sq. metres with a building
constructed on a small portion of it, in an urban agglomeration falling within
category specified in Schedule I of the Urban Land (Ceiling and Regulation)
Act, 1976. As the aforesaid first respondent wanted to sell some portion of the
open land, he sought permission from the competent authority for that purpose.
The competent authority refused to give permission on the ground that the total
area of land in his possession exceeded the cieling limit of 2000 sq.
metres prescribed by the Act for that area.
In appeal the District Judge held that the first respondent was entitled to
exclude 500 sq. metres in view of the bye-laws prevailing in that area and
another 500 sq. metres for the beneficial and convenient enjoyment of the
building to satisfy the requirement of the town planning and environmental purposes
and since after excluding these portions of the areas there was no excess and
the land was not covered by the Act, the refusal of permission by the competent
authority was not legally valid. In a writ petition filed by the State the High
Court strongly relied on the provisions of s. 4(9) read with s. 2. 2(q)(ii) of
the Act and upheld the decision of the District Judge. The State challenged the
High Court's interpretation of the principles laid down in the Act for
computing the ceiling area. The facts of other appeals and petitions were
similar.
Allowing the appeals and petitions;
disapproving the view taken by the District Judge and the High Court; laying
down the method of computing the ceiling area and sending back the cases to
competent authority to get fresh computations done.
HELD: It is clear that there can be only
three categories of Urban lands (1) land which is entirely open in the sense
that it does not contain any construction of building, 898 (2) where the entire
land is covered by building or dwelling house, and (3) land on a part of which
there is a building with or without a dwelling unit thereon ant the rest of the
land is vacant. [907 F-H] So far as the first category is concerned, no
complexity is because any open area in excess of 2000 sq.
metres in category States will be taken over
by the Government. For instance, if an open land without construction consists
of 6000 sq. metres, the computation of the ceiling area would present no
difficulty because 4000 sq. metres will be taken over by the Government and
2000 sq.
metres will be left to the landholder.
Secondly, if the entire land is covered by a building, such an area would
completely fall outside the ambit of the Act and no question of computation
would arise. Thirdly, a question arises as to what would happen if there is a
land on a part of which there is a building with a dwelling unit and an area
(open land) which is appurtenant thereto is vacant. Section 4(9) of the Urban
Land (Ceiling and Regulation) Act, 1976 provides for meeting such a
contingency. [907 H, 908 A-C] Section 4(9) contemplates 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. This sub section has to be read in conjunction with s.
2 (q) (ii) and (iii), which defines 'vacant
land'. [908 D-G] The plain language in which sub-s. (9) of s. 4 had been
expressed clearly shows that when the legislature used the word 'appurtenant',
it meant to qualify the land which was occupied by the building. The words
'appurtenant thereto' qualify the building which precedes the land. The
expression appurtenant' shows that the legislature intended that in taking into
consideration the land, it must be the land not contiguous or close to the
building but the very land on which the building stands. Similarly, the words
'other land occupied by the building' also lead to the same conclusion.
[909 H, 910 A-B] 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. [911 E-P] Words & Phrases,
Legally Defined (Vol. 1-2nd Edn.) at p. 105; Words & Phrases, Judicially
Defined (Vol. I); Words
Stroud's Judicial Dictionary Third Edn., at
p. 176 referred to.
Bearing in mind the well settled rule of
construction that the language of a beneficial statute must be construed so as
to suppress the mischief and advance its object there could be no other
interpretation of the words "appurtenant or other land" than that the
land appurtenant means not a land contiguous 899 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 s. 4(9).
[911 G-H] The scheme of the Act seems to be
that if there is a constructed building with a dwelling unit, the structure
thereon cannot 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. [912 G-H] The High Court was absolutely wrong in
importing the concept of contiguity on the assumption that s. 4(9) was
attracted only if the person concerned held a distinct parcel of land which was
vacant land. The argument that once a plot contains a building, the whole of
the plot would be exempt from the ceiling area cannot be countenanced on a
plain and simple interpretation of s. 2 (q) ii) read with s.
4(9). Section 4(9) would be attracted
regardless of whether the landholder owned a distinct part of land on which
there is no construction along with any other parcel of land where there is
some construction. [913 D-F] A combined reading of s. 4(9) and s. 2 (q) (ii)
and (iii) would lead to the irresistible inference that in cases which fall
within the third category mentioned above for determining the ceiling area the-
(1) total area of the land of a landholder is first to be determined and if the
total area, built or unbuilt, falls below 2000 sq. metres in category areas,
there would be no question of any excess land, (2) where, however, there is a
building and a dwelling unit then the area beneath the building and the
dwelling unit would have to be excluded while computing the ceiling.
Further if there are any bye-laws requiring a
portion of the land to be kept vacant, the landholder would be allowed to set apart
the said land to the maximum extent of 500 sq. metres. Ho would also be allowed
to retain an additional area of 500 sq. metres for the beneficial use of the
building so that he may enjoy the use of a little compound also for various
purposes. [912 B-E] After excluding these items if the land falls below the
ceiling limit there would be no question of excess but if there is excess that
is beyond the ceiling limit, the same would have to be taken over by the
Government. [912 E] Where, however, it is found that any person holds vacant
land in two or more categories of urban agglomerations specified in Schedule I,
the computation and determination of ceiling area is to be done in accordance
with the formula laid down in cl. (a) to (d) of g. 4(1) of tho Act. [915 E-F]
900 Where a person has several plots, some completely vacant and some partly
built and partly vacant, for computation of the ceiling area the competent
authority will have to total the entire area of the lands in various places,
completely vacant or partly built and partly vacant and permit the landholder
to retain 2000 sq. metres or less as provided in clauses (a) to (d) of s. 4(1)
and give the landholder the option (as provided under s. 6) to select the area
which he desires to retain provided that does not exceed the ceiling limit.
[915 H, 916 A-C] M/s. Eastern Oxygen &
Acetylene Ltd. v. State of Madhya Pradesh, A.I.R. 1981 MP 17, approved.
State of Uttar Pradesh & Anr. v. L. J.
Johnson & Anr.
(1979) All. LJ 1222, overruled.
In Civil Appeal No. 2005 of 1982 on the facts
of the case, in order to determine the computation of the ceiling area, first
exclude the built area which is 464 sq. metres and then exclude the deductions
allowed under s. 2(g) i.e., 1000 sq. metres. Therefore, the total deduction
would be 1464 sq. metres which is within the ceiling limit of 2000 sq. metres
but as actual area is 2530 sq. metres the excess would be 530 sq. metres which
will be taken over by the State [914 C-E] & CIVIL APPELLATE JURISDICTION:
Civil Appeal Nos.
2005/82, 995, 1021-27180, 2927-28/81,
2006-07, 2008-24, 2025, 2026-27, 2028, 2029, 2030-33, 2176, 2179, 2180-84,
2234, 2235, 2241, 2178, 3224-28 and 2832/82 and 6840, 6943, 6842, 6846,
6847-52, 6855-6860, 6861, 6863, 6870, 6871, 6873-80, 6882, 6889, 6890-92, 6881,
6845, 6872, 6883-6888, 6899-6915, 6918, 6919-22, 6923-6943, 6945-54, 6969-76,
7174- 7200, 7342-7347, 7202-45, 7247-54, 7257-83, 7296, 7297 to 7311, 7313,
7314-7333, 7201, 7335-7340, 8211-8217, 8218-23, 8224, - 8230, 8231, 8243,
8245-8256, 8261, 8260, 8262-8265, 8296-8329, 8337-59, 8375-76, 8377-8377C.
8378-8385 of 1983.
Appeals by Special leave & by Certificate
from the Judgments and orders dated the 30th October, 1978, 8th November, 1978,
12, 15, 16th January, 1979, 8th, 12th, 17th, 21st, 23rd February, 1979, 2nd,
5th, 12th, 26th, 30th March, 1979, 2nd, 4th, 17th, 23rd, 25th, 26th April,
1979, 2nd, 7th, 9th, 10th, 16th May, 1979, 4th, 5th, 6th, 10th, 13th, 16th,
23rd July, 1979, 11th, 14th, 18th, 26th September, 1979, 24th October, 1979,
5th, 8th and 21st November, 1979, 10th, 12th, 18th December, 1979 and 15th,
16th, 21st January, 1980, 14th, 17th, 18th, 20th, 21st, 26th, 27th and 28th
March, 1980, 1st, 15th, 30th April, 1980, 5th May, 1980, 30th June, 1980, 4th,
5th, 14th, 19th, 20th and 28th August, 1980., 2nd, 5th, 15th September, 1980,
12th January, 1981, 10th 901 February, 1981, 9th, 11th, 13th March, 1981, 2nd,
8th, 11th, 18th, 21st May, 1981, 7th, 20th July, 1981, 7th August, 1981, 25th,
28th, 29th September, 1981, 12th, 15th, 16th, 19th, 21st, 23rd October, 1981,
2nd, 3rd 4th, 6th, 11th, 12th, 13th, 17th, 23rd, 24th. 27th November, 1981,
1st, 2nd, 23rd December, 1981, 11th, 18th, 26th February, 1982, 1st, 15th
March, 1982, 5th April, 1982, 21st and 27th, May, 1952 of The Allahabad High Court
in Civil Misc. Writ Nos.
3689/77, 7722/79, 6315, 6319, 6322, 6326,
6327, 6329, 5059, 5060, of 1979, 7392/78, 6286/78, 8264, 8265, 8266, 8651,
8654, 8655, 8659, 8660, 8661, 8696, 8697, 8698, 8765, 8766, 8767, 8773, 8774,
8653, 8259, 8210, 8258, 6288, 6690, 8263, 7394-95, 6287, 4104, 6302, 7393,
7739, 7743, 7744. of 1978, 4902/79, 339/79, 1167/78, 1860/78, 4772-4776/79,
2976/76.
8647, 4106/78, 5217/77, 8257/78, 8268, 8652,
8656, 8658, 8699, 8769, 7399, 7400, 7401, 8261, 8270, 8274, 6283, 6693, 4248,
5828, 6695/78, 1387, 3262, 537, 1459/79, 5820, 4249, 1086, 5081, 3028,
4725-28/79, 6692, 6694, 5824/78, 3027, 3030, 3031. 3032, 3033, 3035/79,
1419/77, 5827/78, 4105/78, 5825/78, 5237, 6189, 6633, 6634/79, 7396/77, 6190,
7049, 5232, 5233, 5234-38, 4903/79, 8768/78, 1612, 2316, 2312, 2775,
2776-78/79, 8271-72178, 1385, 1390, 1392, 1446-51, 2513-15, 2520, 2521,
1388-89, 1391, 2530, 2869, 1467-75, 2529, 1123, 2779-81, 2868, 3263-3264, 3658,
3307, 345179, 10359, 10353-58, 10360/78, 2516-18, 2522 and 2532, 1451- 1462.
1464-1466, 1455-60/7745/78, 344/79, 1184, 1586, 5823, 5833178, 694, 697-712,
841-842, 843, and 893/79, 2060-67, 2068-2070, 8267, 442, 443, 446-52, 481,
538/79, 8829-32, 8862-8864, 8910, 8912/78, 340-42/79, 5192, 5225, 5822, 6282,
6284-85, 6303, 7731, 7742/78, 2953-56, 2519, 3654-55, 1548, 1705, 1708-09,
8833, 6314, 6318, 6321, 3402, 1706-07, 1710/79, 5831/78, 7993, 6339, 6331,
6333-36, 6338, 6340, 9432, 9431, 8345, 9430, 7989/79, 4247/78, 10558/79,
2883/80, 596, 2689, 2888, 1938, 2581, 2580, 5364/80, 10563, 5830/79, 3245/80,
7738/79, 447/80, 2755, 1712, 2895, 7173/80, 8510/79, 1939/801 7429, 7903, 3604,
6190, 7911, 3338, 1937, 3933/80, 8273/70, 5369/80, 7163/80, 356/81, 2803,
2804-06, 2125/81, 595/80, 2803/79, 2804, 3656/79, 10723/80, 9382, 8430, 8192, 9595,
8286, 8429, 9383/80, 6625/81, 6626, 6624, 5600/88, 7983/80, 11296/80, 8408/81,
5257/80, 10093/80, 1453/79, 1942/80, 1943, 1940, 2352, 7172, 5260/80, 9134/78,
4456/79, 9744/78, 4107/78, 2790, 517580/80, 646/819 6609/80, 5257/79, 650/81,
10406/80, 338, 8278, 5456/79, 8262/78, 6332/79, 3555, 250, 9629/81, 442/80,
648/81, 5258, 5253, 196/81, 3244/79, 5256, 6354, 2392/81, 8277/79, 8348/79,
6353, 7714, 7726, 6352, 6317/81, 8347, 3034/79, 1454/80, 10633/80, 8879/80,
14320/81, 1063/80, 6064/79, 3605/80, 14990/81, 75/82, 2853/82, 902 3933/80,
3758/82, 8681/81, 5258/80, 7598/80, 7234-35, 7237/80, 2978: 2974/80, 1956/82,
5256/80, 2831/82, 3430/82, 7594/80 and 2778 of 79 For The Appellants:
Dr. L.M. Singhvi Prathvi Raj, B.P. Maheshwari
and B.P. Singh For The Respondents:
S.N. Kacker, R.K Jain Dr. Y.S. Chitale, Dr.
Meera Agarwal and R.C. Mishra in CAs. 994 & 1021-1027 of 1980.
Pramod Swarup and Arun Madan in CA. 2026-2027
of 1982.
A.K Srivastava in CA. 208-2024 of 1980.
S.K. Bisaria, Pradeep Misra and Sudhir Kulshreshtha
in CA. 2176/82.
R.N. Sharma and N.N. Sharma in CA. 7191/83 @
SLP. 2350/80.
Probir Mitra in CA. 2178 of 1982.
The Judgment of the Court was delivered by
FAZAL ALI, J. Wedded to the ideal of achieving a socialist pattern of State and
building up an egalitarian society as mandated in the Preamble of the
Constitution of India and incorporated in the directive principles contained in
part IV, which are indeed the heart and soul of the Constitution as held by
this Court on several occasions, the Central Government brought forth the
present legislation called the Urban Land -(Ceiling & Regulation) Act, 1976
(Act No. 33 of 1976) (hereinafter referred to as the 'Act'). To avoid anomalies
and controversies, inequalities and inconsistencies, the Central Government
obtained the consent of the State Governments so as to pass a central law which
would apply equally to all the States. The Act applies to the States and Union
Territories and contains a schedule (Schedule I) in which the ceiling of urban
903 areas has been mentioned and which differs from area to area in' various
States and Union territories to which the Act applies.
In the first phase at the hearing of the
appeals, the constitutional validity of the Act was challenged but the
Constitution Bench upheld the validity of the Act in the case of Union of
India, etc. v. V.B. Chaudhry etc. etc.(1) It is therefore manifest that the
challenge to the Act no longer survives.
The Act was sought to be implemented by the
States which empowered the competent authority to determine the ceiling area in
accordance with the provisions of the Act and take over the excess land. In due
fairness to the citizens, the Act provides an appeal to a judicial authority
(District Judge) to examine the correctness of the decision of the competent
authority.
In the instant case the matter has travelled
right from the competent authority to the' High Court and the case has been
placed before us for judging the correctness of the grounds taken by the High
Court in determining the excess area of lands which come within the ambit of
the ceiling fixed by the Act. We propose to decide all the 200 and odd appeals
and the special leave petitions by one common judgment as the question of law
relating to the interpreta- tion of the principles contained in the various
sections of the Act to determine the ceiling area is more or less common to all
the appeals.
Before we proceed to detail the relevant
provisions of the Act, we would like to point out the aims and objects of the
Act in the light of which the pivotal provisions have to interpreted. The aims
and objects are contained in the Preamble of the Act, the relevant portions of
which may be extracted thus:
"An Act to provide for the imposition of
a ceiling on vacant land in urban agglomerations, for the acquisitions, 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 904 therein and with a view to brining
about an equitable distribution of land in urban agglomerations to subserve the
common good.
WHEREAS it is expedient 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 opening words of the preamble, viz., An Act to provide
for the imposition of a ceiling on vacant land in urban agglomerations"
clearly indicate that the pith and substance of the Act is that a ceiling
should be imposed on vacant lands situated in urban areas which may or may not
have building constructed thereon. Side by side the other dominant object to be
achieved seems to be to prevent the concentration of urban land in the hands of
a few persons so as to checkmate speculation and profiteering therein on the
one hand and to bring about an equitable distribution of land amongst the urban
population. The second clause of the preamble merely repeats and stresses what
is contained in the opening part.
Analysing, therefore, the real object which
'the Act seeks to achieve, it seems to us that the provisions have to be construed
against the background of two important considerations:- (1) that the vacant
land must be situated in an urban rather than a rural area, and (2) that even
in those portions of urban land which contain buildings, substantial relief
should be given to the owner for the beneficial enjoyment of the property left
with him so that the Act may not be dubbed as being of a confiscatory nature.
Moreover, the Act governs only urban vacant
lands or lands which contain building or dwelling units or outhouses and the
areas 905 set apart in compliance with the respective byelaws have to be taken
into account while computing the ceiling area applicable to the towns and
territories concerned Before discusing the problem in L.J. Johnson's case which
has given rise to these appeals, we would first like to give a birds eye view
of the various provisions of the Act which are relevant to the decisions of
these appeals.
The relevant provisions in this case are
sections 2(c), 2(q)(ii), 3 and 4(9). Section 2(c) states that the 'ceiling
limit' means the ceiling limit specified in s. 4(1). This brings us to s. 4(1)
at once. The various clauses of s. 4(1) (a) to (d) prescribe ceiling limits in
urban agglomerations falling within different which may be extracted thus:
"4(1) - Subject to the other provisions
of this section, in the case of every person, the ceiling limit shall be- (a)
where that vacant land is situated in an urban agglomeration falling within
category A specified in Schedule I, five hundred square metres;
(b) where such land is situated in an urban
agglomeration falling within category specified in Schedule I, one thousand
square metres;
(c) where such land is situated in an urban
agglomeration falling within category specified in Schedule I, one thousand
five hundred square metres;
(d) where such land is situated in an urban
agglomeration falling within category specified in Schedule I, two thousand
square metres." In the instant case, we are concerned with the land in the
' town of Dehradun situated in the State of Uttar Pradesh, which was the
subject matter of the writ petition before the Allahabad High Court. It is
indisputable that the land in Johnson's case (supra) falls under category where
the ceiling limit is 2000 sq. metres. The only problem which is required to be
resolved in these group of appeals by special leave by and large concerns the
interpretation of s.
4, sub-s. (9) of the Act. All the appeals are
from Uttar 906 Pradesh but the principles laid down by us would apply to all
the States and Union Territories. In fact, the substratum and the fate of the
case depends on the outcome of the appeal arising out of State of Uttar Pradesh
& Anr. v. L.J. Johnson & Anr.(1) decided by the Allabhabad High Court
and which has been taken as a sample case so that other appeals would merely
follow the decision in Johnson's case (c.A. No. 2005/82 in this Court).
There are some other cases like A. No. 995/80
where the facts and principles may differ but we do not intend to decide or go
into the intricacies of the other points involved therein and will leave the
competent authority to determine the excess land in the context of other points
and in the light of the law laid down by us. In these appeals, we are mainly
concerned with the interpretation of s. 4 (9) and the allied construction of s.
2(g) and 2(q) (iii) of the Act and their impact on s. 4(9). It follows,
therefore, that once the view taken in Johnson's case in regard to this
question is reversed all the matters will have to go back to the competent authority
for a decision in the light of the view taken by this Court. This will be the
ultimate outcome because in all the allied matters there is only a cryptic
order disposing of the concerned matter in accordance with the view taken by
the High Court in Johnsan's case in regard to the interpretation of s. 4 (9).
The remaining questions raised by the land-holders will have to be resolved and
the actual computation of excess land, if any, would have to be undertaken by
the competent authority on remand.
Before going into the merits of Johnson's
case we may briefly narrate the admitted facts. It appears that the respondent
(Johnson) had a parcel of land, the total area of which was 2530 sq. metres on
which there was a building.
After the coming into force of the Act. he
wanted to sell some portion of the open land in his possession to Maj. Gen.
Prem Chandra, a resident of Vasant Vihar, New
Delhi. The competent authority refused permission to sell on the ground that
the total area in possession of Johnson being 2530 sq.
metres, it exceeded the ceiling limit and
therefore no permission to sell could be given. Johnson thereafter filed an
appeal before the District Judge assailing the decision of the competent
authority as being based r on a wrong interpretation of the provisions of the
Act. The District 907 Judge after considering the provisions of s. 2 (g), 2 (q)
(ii) held that the owner was entitled to exclude 500 sq metres in view of the
bye-laws prevailing in Dehradun and another 500 sq. metres for the beneficial
and convenient enjoyment of the building to satisfy the requirement of town
planning and environmental purposes. This, according to the District Judge,
flowed as a logical consequence of s. 2 (g) of the Act. Ultimately, the
district judge held that after excluding the portions of areas indicated above,
there was no excess and the land was not covered by the Act and the refusal of
permission by the competent authority was not legally valid.
Against the decision of the District Judge,
the State filed a writ petition before the High Court contending that the
interpretation placed by the District Judge was wrong and the competent
authority was fully justified in computing the area. The High Court Strongly
relied on the provisions of s. 4 (9) read with s. 2(q)(ii) and upheld the
decision of the District Judge and accordingly dismissed the writ petition.
After this decision, a number of petitions were filed before the High Court
which were decided by it in the light of the decision taken in Johnson's case.
Before proceeding to s. 4 (9) of the Act, we
might mention as a prelude the nature, character and the spirit of the Act. The
Act applies only to urban areas and not to any other area. Secondly, the
statute fixes the ceiling limit in various urban areas of all the States where
the Court has to determine the extent of the ceiling. It is clear that there
can be only three categories of Urban lands- (1) land which is entirely open in
the sense that it does not contain any construction or building, (2) where the
entire land is covered by building or dwelling house, and (3) land on a part of
which there is a building with or without a dwelling unit thereon and the rest
of the land is vacant, So far as the first category is concerned, no complexity
is involved because any open area in excess of 2000 sq. metres in category
States will be taken over by the Government. For instance, if an open land
without construction consists Of 6000 sq. meters, the 908 computation of the
ceiling area would present no difficulty because 4000 sq. metres will be taken
over by the Government and 2000 sq. metres will be left to the landholder.
Secondly, if the entire land is covered by a
building, such an area would completely fall outside the ambit of the Act and
no question of computation would arise. Thirdly, a question arises as to what
would happen if there is a land on a part of which there is a building with a
dwelling unit and an area (open land) which is appurtenant thereto is vacant.
This category of land would doubtless present some difficulty in making the
computation and the principles on which such computation is to be made. Section
4 (9) is designedly and artistically drafted to meet such a contingency which
may be extracted thus:- "Where a person holds vacant land and also holds
any other land on which there is a building with a dwelling unit therein, 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." (Emphasis supplied) In order to understand the
import of s. 4 (9) it may be necessary to extract clauses (i) and (ii) of s. 2
(q) which run thus:
"(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 Gland 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 ..."
Clause (i) gives a blanket exemption to any land situated in an urban area
where the entire area is covered by land on which it is not permissible to
raise a building which will not be deemed to be 909 vacant land within the
meaning of s. 2 (q). This is because such land in an urban area cannot be used
for building purposes but being vacant falls beyond the purview of the Act.
Clause (ii) postulates that where a land is occupied by any building
constructed before or on the appointed day ('appointed day' has been defined in
s. 2 (a) of the Act) and there is some vacant land appurtenant to the said
building, land which is built upon and any area which is left out in accordance
with the building regulations would not be included in the ceiling area. The
term 'land appurtenant to such building' would mean the contiguous land which
remains after giving full allowance for the area left out under the municipal
or building regulations subject to a maximum of 500 sq. metres and another 500
sq. metres which may be left for the beneficial use of the owner. The words
'land appurtenant' used in s. 4 (9) takes us to its connotation as defined in
s. (2) (g) (i) and (ii) which may be extracted thus:
"(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 tub-clause (ii?, as
the case may be;" It may, however, be necessary to explain the terms 'land
appurtenant' or 'other land' as used in s. 4 (9) and s. 2(g) (ii) as a wrong interpretation
of these terms by the High Court has made confusion worse confounded. To begin
with, the plain language in which sub-s. (9) of s. 4 has been expressed clearly
shows that when the legislature used the word 'appurtenant', it meant to
qualify the 910 land which was occupied by the building. The words 'appurtenant
thereto ' qualify the building which precedes the land. The expression
'appurtenant' shows that the legislature intended that in taking into
consideration the land, it must be the land not contiguous or close to the
building but the very land on which the building stands.
Similarly, the words 'other land occupied by
the building' also lead to the same conclusion, viz., that the other land will
not be land in some other plot but refers only to the very land a portion of
which is occupied by the building.
In Words and Phrases, Legally Defined (Vol.
I-2nd Edn.) at p. 105 it is clearly mentioned that 'land' do not usually pass
under the word 'appurtenances' with reference to other land, in its strict
sense, but they do pass if it appears that the word is used in a larger sense,
Land has been held to pass under this word where is a gift of a house with its
appurtenances. There has been a distinction between a gift of a land with
appurtenances and a gift with the land appertaining thereto. A chose in action
does not ordinarily pass as appurtenant 'to other property'. The word
'appurtenance' has been further defined thus:
"Appurtenance, in relation to a
dwelling, or to a school, college or other educational establishment, includes
all land occupied therewith and used for the purposes thereof ..The word
'appurtenances' has a distinct and definite meaning, and though it may be
enlarged by the context. yet the burden of proof lies on those who so contend Prima
facie, it imports nothing more than what is strictly appertaining to the
subject- matter of the device or grant, and which would. in truth, pass without
being specially mentioned." Similarly, at page 220 in Words and Phrases,
Judicially Defined (vol. I) the word 'appurtenances' has been defined thus:
"The word 'appurtenances' includes all
the incorporeal hereditaments attached to the land granted or demised such as
rights-of way, of common, or piscary, and the like but it does not include
lands in addition to that granted." (Emphasis supplied) Likewise, in Words
and Phrases, Permanent Edition (Vol.
3A) at p. 546, the word 'appurtenances' has
been explained thus 911 "The word 'appurtenances', which is ordinarily
used in connection with real property, while strictly confined to those
incorporeal hereditaments that are commonly annexed to land and houses,
includes corporeal articles of personal property.. 'Appurtenances' as used in a
deed of trust of certain real estate conveying all and singular the tenements,
hereditaments, and 'appurtenances' thereto belonging or in anywise
appertaining, means things belonging to another thing as principal, and which
pass as incident to the principal thing." (Emphasis supplied) In Stroud's
judicial Dictionary (Third edn.) at page 176, the word 'appurtenances' has been
defined thus, "By the grant of a messuage; or a messuage with the
appurtenances, doth pass no more than the dwelling house, barn dove-house, and
buildings adjoining, orchard, garden, yard, field, or piece of void ground,
lying near and BELONGING to messuage, and houses adjoining to the dwelling-
house, and the close upon which the dwelling-house is built, at the most."
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. The
Allahabad High Court, therefore, clearly misdirected itself in putting a wrong
and loose interpretation on the words 'appurtenant or other land'. It is well
settled that the language of a beneficial statute must be construed so as to
suppress the mischief and advance its object. Bearing this in mind, we can see
no other interpretation of the words 'appurtenant or other land' than the one
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 s. 4 (9) of the Act.
In the ultimate analysis the position is
quite clear that s 4 (9) contemplates 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 912 Land occupied by the building and the land appurtenant
thereto shall betaken into account in calculating the extent of the vacant
land. This sub-section has to be read in conjunction with s. 2 (q) (ii) and
(iii). A combined reading of these two statutory provisions would lead to the
irresistible inference that in cases which fall within the third category
mentioned above, the- (1) total area of the land of a landholder is first to be
determined and if the total area, built or unbuilt, falls below 2000 sq. metres
in category areas, there would be no question of any excess land, (2) where,
however, there is a building and a dwelling unit then the area beneath the
building and the dwelling unit would have to be excluded while computing the
ceiling.
Further, if there are any byelaws requiring a
portion of the land to be kept vacant, the landholder would be allowed to set
apart the said land to the maximum extent of 500 sq metres. He would also be
allowed to retain an additional area of 500 sq. metres for the beneficial use of
the building so that he may enjoy the use of a little compound also for various
purposes.
After excluding these items if the land falls
below the ceiling limit there would be no question of excess but if there is
excess that is beyond the ceiling limit, the same would have to be taken over
by the Government. For instance, A has 4000 sq. metres of land out of which
2000 sq. metres is covered by building then in such a case the landholder will
be entitled to keep the whole of the covered area, i.e., 2000 sq. metres plus
1000 sq. metres (500 under the municipal byelaws and another 500 for beneficial
use) and the excess would only 1000 sq. metres. The scheme of the Act seems to
be that if there is a constructed building with a dwelling unit, the structure
thereon cannot 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 an urban area none can hold land
excess of the ceiling regardless of whether the land is entirely open or
whether 913 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
landholder than 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 of the Act.
Coming now to Johnson's case, while the High
Court of Allahabad was right in interpreting these provisions in so far as it
held that the built area plus upto 500 sq. metres allowed under the municipal
byelaws and another 500 sq.
metres as additional area for beneficial
enjoyment had to be excluded but it seems to have committed a grave error of
law in applying this principle to concrete cases which had come up before it.
Further, the High Court was absolutely wrong in importing the concept of contiguity
on the assumption that s. 4(9) was attracted only if the person concerned held
a distinct parcel of land which was vacant land. As discussed above, these
words do not envisage that there should be land other than the one which
contains a building which is to be taken into consideration while computing the
excess land but the section really refers to the very land which is a part of
the plot which contains the building. The argument that once a plot contains a
building, the whole of the plot would be exempt from the ceiling area cannot be
countenanced on a plain and simple interpretation of s. 5(q)(ii) read with s.
4(9). In fact s. 4(9) itself puts the matter beyond controversy by qualifying
the words 'other land occupied by the building and the land appurtenant
thereto'. The expression 'thereto' manifestly shows that the intention of
legislature was to the land on which building or the dwelling unit stands. In
other words, the vacant land which contains a building would include
appurtenant land or any other land situated in that particular plot.
We have gone through the judgments of the
High Court, the District Judge and that of the competent authority and we are
not satisfied that all the details which are required for the purpose of
determining the ceiling have been mentioned in any of the judgments. So far as
Johanson's case is concerned, all that is mentioned is that the total area of
urban land was 2530 sq. metres, including the built 914 area. So far as the
built area is concerned, it is mentioned as 464 sq. metres but the details of
the calculations have not been given which would have to be redetermined by the
competent authority. Even on the facts mentioned in the judgments of the High
Court and the courts below the position appears to be as follows .
Total area of the land owned by the
landholder, is 2530 sq. metres. Prima facie 530 sq. metres is above the ceiling
limit.
In order however to calculate as to whether
or not Johson had exceeded the permissible limit, we have to compute in the
following manner:
First exclude the built area which is 464 sq.
metres (it is not clear whether 464 includes the area of servant quarters also
which are also mentioned to be existing there). Then exclude the deductions
allowed under s. 2(g).
i.e, 1000 sq. metres. Therefore, the total
deduction would be 1464 sq. metres which is within the ceiling limit of 2000
sq. metres but as the actual area is 2530 sq. metres the excess would be 530
sq. metres which will be taken over by the State. The High Court seems to have
made a wrong calculation by not relying on s. 4(9) and in wrongly importing the
concept of 'other land' being a distinct plot.
This however is not permissible. The
landholder cannot have it both ways. He cannot take the benefit of the
exclusion and then add that benefit to the total ceiling area in order to
compute the excess. For these reasons, therefore, we p do not agree with the
view taken by the High Court or the District Judge regarding the computation of
the ceiling area.
To sum up, the effect of the view taken in
Johnson's case virtually comes to this. Section 4(9) would be attracted
regardless of whether the landholder owned a distinct part of land on which
there is no construction alongwith any other parcel of land where there is some
construction alongwith any other parcel of land where there is some
construction. In other words, whether or not there is a surplus will not depend
on whether the landholder holds a separate plot of land which is open land. To
take the other view is to hold that if there is no separate plot but the
construction is in the same plot then even if the entire plot comprises 10,000
sq. metres that would fall beyond the purview of section 4(9) if the 915
structure is built only on 1000 sq. metres of land. Such an interpretation of
s. 4(9) cannot be accepted by us as it goes against the very spirit and intent
of the Act and allows the landholder to escape the ceiling area by merely
putting a construction on a plot of land owned by him.
On the other hand, the Madhya Pradesh High
Court in M/s. gr Eastern oxygen and Acetylene Ltd. v. State of Madhya
Pradesh(1) seems to have taken a correct view in holding that nothing turns
upon whether or not the landholder holds open land and a separate parcel of
land with a dwelling unit thereon. The High Court in paragraph 5 rightly
pointed out that it will necessitate reading the words "not contiguous to
the vacant land" after the words "any other land" in sub-
section (9) of s. 4 and such qualifying words cannot be read into the provision
by implication. If this be the interpretation then it would mean that if there
is a boundary wall which separates the construction from the open land, the
land would be within the purview of the ceiling and if there is no such wall it
would fall outside the purview. Such an interpretation, would lead to a most
absurd and anomalous situation. The Madhya Pradesh High Court was, therefore,
fully justified in expressing its dissent from judgment of the Allahabad High
Court. We fully endorse the decision of the Madhya Pradesh High Court.
Where, however, it is found that any person
holds vacant land in two or more categories of urban agglomerations specified
in Schedule I, the computation and determination of ceiling area is to be done
in accordance with the formula laid down in cl. (a) to (d) of s. 4 (1) of the
Act.
In fine, therefore, the position in the
instant case, as already pointed out by us, is that even taking into account
the concessions and exemptions granted to Johnson, the landholder, the land in
his possession exceeds the ceiling of 2000 sq. metres by 530 sq. metres which
will have to be declared as surplus.
Before concluding we might dwell on one more
aspect of the matter which flows as a logical corollary of our interpretation
of the various provisions of the Act;
Where a person has several plots, some
completely vacant and some partly built and partly vacant, a question may arise
as to how 916 the computation of the ceiling area is to be made in such cases.
This presents no difficulty in view of what we have fully discussed in our
judgment because it is manifest that the legislature intended to leave with the
landholder only the area of 2000 sq. metres in category area or the various
ceiling areas mentioned in different categories of s. 4 (1) of the Act. It is
manifest that in such cases the competent authority will have to total the
entire area of the lands in various ' places, completely vacant or partly built
and partly vacant and permit the landholder to retain 2000 sq.
metres or less as provided in clauses (a) to
(d) of s. 4 (1) and give the landholder the option (as provided under s. 6) to
select the area which he desires to retain provided that does not exceed the
ceiling limit.
By way of postscript we might dwell on
certain consequences of the legislation flowing from the interpretation which
we have put on the various provisions of the Act. The Act being a social piece
of legislation should have been implemented long ago but as its constitutional
validity was challenged, which was decided by this Court only in 1979 as
indicated above, the operation of the Act remained stayed.
The second phase however began when the
correctness of the manner in which computation was to be made as held by the
Allahabad High Court was challenged by the State which also we have now decided
in this judgment. We hope and trust that all the States will now go ahead with
implementing the Act and take over the excess land in order to distribute them
according to the tenor, spirit and provisions of the Act. Any further delay is
likely to defeat the very object for which the Act was passed.
For the reasons given above, we allow all
these petitions and appeals, set aside the judgments of the High Court and send
back the cases to the competent authority to get fresh computations done in all
the cases and then determine the ceiling area in the light of the principles
enunciated and the law laid down by us. Civil appeal No. 995 of 1980 is also
remanded to the competent authority for redetermination of the ceiling area as
indicated above. In the circumstances of the case, there will be no order as to
costs.
H.S.K. Appeals and petitions dismissed.
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