State of
U.P. Vs. Nand Kumar Aggarwal & Ors
[1997] INSC 833 (19 November 1997)
SUJATA
V. MANOHAR, D.P. WADHWA
ACT:
HEADNOTE:
THE
19TH DAY OF NOVEMBER, 1997 Present:
Hon'ble
Mrs. Justice Sujata V.Manohar Hon'ble Mrs. Justice D.P.Wadhwa G.K.Mathur, Sr.Adv.,
Arvind Kr.Shukla, Ashok K.Shrivastava, Advs. with him for the appellant Arun Sikri
Sr.Adv., Mrs.Madhu Sikri, V.K.Rao. Advs., with him for the Respondents.
The
following Judgment of the Court was delivered:
D.P. Wadhwa,
J.
This
appeal is against the judgment of the Allahabad High Court allowing the writ
petition filed by the 1st respondent holding that the agricultural land
comprised in village Para falling within the boundary of Lucknow Mahapalika was
exempt under the Urban Land (Ceiling & Regulations) Act, 1976 (for short
`the Act') Issue involved in this appeal is very narrow, After the enforcement
of the Act of February 17, 1976 1st respondent filed return under Section 6(1)
of the Act before the Competent Authority constituted under the Act. First respondent
gave details of the properties and one such property was land measuring 16 Bighas
1 Biswa 7 Biswansis in village Para. The
Competent Authority after examing the return sent a. draft statement to the 1st
respondent showing the land in village Para
as agricultural land. However, he proposed this land to be surplus land after
applying the parameters fixed under the Act. In this appeal we are not
concerned with other properties of the 1st respondent.
Against
the order of the Competent Authority 1st respondent filed an appeal before the
District Judge, Lucknow under Section 33 of the Act who
dismissed the appeal. Feeling aggrieved the 1st respondent filed writ petition
in the High Court. By the impugned judgment the High Court held that the
agricultural land in village Para could not
be declared as surplus land and could not be taken into account while
determining the ceiling limit. The decisions of the Competent Authority and the
District Court were set aside and the matter was remanded back by the High Court
to the Competent Authority for determining of surplus land, if any, in the
light of the observations and findings recorded in the judgment.
The
question that arises for consideration is: was the land in village Para which is subject matter of the proceeding used
mainly for agricultural purposes at the relevant time, being the data when the
Act came into force? To answer this question we may have to refer to various
definitions as contained in Section 2 of the Act relating to master plan
(clause h), urban agglomeration (clause n), urban land (clause o), urbanisable
land (clause p) and vacant land (clause q). But before that we may refer to an
affidavit dated August
13, 1976 filed by the
1st respondent before the Secretary, Local Self Government, Lucknow for the purpose of seeking
exclusion of the land in village Para
from the "ceiling operations". In this affidavit the 1st respondent
stated that he was doing brick kiln business and had his "Bhatta" at
village Para, tehsil and district Lucknow and that the brick kiln was covering
an area of 16 Bighas 1 Biswa 7 Biswansis out of which brick kiln was actually
operating in about 7 to 8 Bighas with brick kiln structure in 2 Bighas and 8 Bighas
of land was still available for earth digging for the purpose of brick kiln.
1st
respondent further said in this affidavit that the business of brick kiln had
been carried out in his family from the time of his father and was one of the
chief sources of his livelihood. He said under the Act the area covered by the
brick kiln business was not specifically excluded but the Government had power
to exempt the same. He further explained that brick kiln business could not be
done unless substantial are for digging the earth ad for drying of the
manufactured `Kachcha' bricks was available and area was also required for huts
of the brick-layers for their residences. Area was also needed for stacking the
manufactured bricks. 1st respondent, showed that the land in question was being
used mainly for the purposes of brick kiln business. Master plan of Lucknow prepared under the Utter Pradesh
Urban Planning and Development Act, 1973 inclusive of the village Para has been
brought to the record. It show that the land in question is falling within the
limits of Luckow Nagar Mahapalika.
Coming
back to the definitions as contained in Section 2 of the Act, which are as
under:
"(h)
"master plan", in relation to an area within an urban agglomeration
or any part thereof, means the plan (by whatever name called) prepared under
any law for the time being in force or in pursuance of an order made by the
State Government for the development of such area or part thereof and providing
for the stages by which such development shall be carried out;
(n)
"urban agglomeration",-
(A) in
relation to any State or Union territory specified in Col.
(1) of
Sch. 1, means,-
(i) the
urban agglomeration specified in the corresponding entry in Col. (2) thereof and includes the peripheral area
specified in the corresponding entry in Col.
(3) thereof; and
(ii)
any other area which the State Government may, with the previous approval of
the Central Government, having regard to its location, population (population
being more than one lakh) and such other relevant factors as the circumstances
of the case may require, by notification in the official Gazette, notification
in the official Gazette, declared to be an urban agglomeration and any
agglomeration so declared shall be deemed to belong to category D in that
Schedule and the peripheral area therefor shall be one kilometre;
(B) in
relation to any other State or Union territory, means any area which the State
Government may, which the previous approval of the Central Government, having
regard to its location, population (population being more than one lakh) and
such other relevant factors as the circumstances of the case may require, by
notification in urban agglomeration and any agglomeration so declared shall be
deemed to belong to category D in Sch. 1 and peripheral area therefor shall be
one kilometre;
(o)
"urban land" means,-
(i) any
land situated within the limits of an urban agglomeration and referred to as
such in the master plan; or
(ii)
in a case where there is no master plan, or where the master plan does not
refer to any land as urban land, any land within the limits of an urban
agglomeration and situated in any area included within the local limits of a
municipality (by whatever name called), a notified area committee, a town area
committee, a city and town committee, a small town committee, a canotment board
or a panchayat, but does not include any such land which is mainly used for the
purpose of agriculture.
Explanation,
- For the purpose of this clause and C1. (o).
(A)
"Agriculture" includes horticulture, but does not include,-
(i) raising
of grass,
(ii) dairy
farming,
(iii) poultry
farming,
(iv) breeding
of live-stock and
(v) such
cultivation, or the growing of such plant, as may be prescribed;
(B) land
shall not be deemed to be used mainly for the purpose of agricultural, if such
land is not entered in the venture or land records before the appointed days as
for the purpose of agriculture:
Provide
that where on any land which is entered in the revenue or land records before
the appointed day as for the purpose of agriculture, there is a building which
is not in the nature of a farm-house then, so much of the extent of such land
as is occupied by the building shall not be deemed to be used mainly for the
purpose of agriculture:
Provided
further that if any question arises whether any building is in the nature of a
farm-house, such question shall be referred to the State Government and
decisions of the State Government thereon shall be final;
(C) notwithstanding
anything contained in Cl. (B) of this explanation, land shall not be deemed to
be mainly used for the purpose of agriculture if the land has been specified in
the master plan for a purpose other than agriculture;
(p)
"urbanisable land" means land situated within an urban agglomeration,
but not being urban land;
(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 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 not building regulations, the land occupied by any
building which has been constructed before, or is being constructed on, the
appointed day and the land appurtnant to such building:
Provided
that where any person ordinarily keeps his cattle other than for the purpose of
dairy farming or for the purpose of breeding of live-stock, on any land
situated in a village within an urban agglomeration (described as a village in
the revenue records), then, so much extent of the land as has been ordinarily
used for the keeping of such cattle immediately before the appointed day shall
not be deemed to be vacant land for the purpose of this clause." In the
master plan the area in question is no doubt shown as agriculture. If we refer
to the Schedule mentioned in the definition of urban agglomeration it could be
seen that area in question falls within urban agglomeration as it is situated
within the peripheral area of the Municipal Corporation of Lucknow (Lucknow Nagar Mahapalika). the
land is question will not be urban land if though situated within the limits of
an urban agglomeration, it is mainly used for the purpose of agriculture.
Operating of a Bhatta cannot certainly be an agriculture purpose, Mr. Rohtagi,
learned counsel for the 1st respondent submitted that Explanation to clause (o)
shows as what is not included in agriculture and since Bhatta is not one of the
entries therein it would mean that operating Bhatta would be an agriculture
purpose. We do not find any substance in the submission. It is correct that the
land in question is entered in the revenue record but at the same time is
entered shows that the land is being used for Bhatta. The foremost question is:
if the land in question though agriculture was being mainly used for the purpose
of agriculture was being mainly used for the purpose of agriculture on the
appointed day? Seeing the definitions as set out above and the affidavit of the
1st respondent that the land in question is not being mainly used for the
purpose of agriculture. Agriculture under the explanation to clause (o) has
limited meaning. It includes horticulture but does not include cultivation of
every type of vegetation or rearing of animals or birds. That apart to hold
land is mainly used for the purpose of agriculture it is not enough even if the
land is entered in the revenue records before the appointed day used for the
purpose of agriculture or even if so entered the master plan gives purpose of
the land other than agriculture. In the present case though (B) and (C) to the
explanation are satisfied but (A) is not as the purpose to which the land,
though agriculture and so entered in the revenue records, was being used for
running of brick- Kiln. High Court was not, therefore, correct in holding that
the land was being mainly used for the purpose of agriculture merely on the
strength of the purpose in master plan which is specified as agriculture (Krishi
Bhumi) and that the land is entered in the revenue records. High Court has
wrongly applied Explanation B to clause (o) of Section 2 of the Act. Simply
because land is entered in the revenue record would not mean that it is being
used mainly for the purpose of agriculture. Here the land is mainly for the
purpose of brick kiln business of the 1st respondent. It is not material if a
small portion of the land was being used for the purpose of agriculture as
well.
Accordingly,
the appeal is allowed, the impugned judgment of the High Court is set aside and
that of the Competent Authority and the District Judge restored to the extent
that the land in village Para is not exempt from the provisions of the Act and
could be taken into account while determining the ceiling limit under the Act.
There will be no order as to costs.
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