Andhra HC (Pre-Telangana)
The Commissioner Of Land Revenue And ... vs Mrs. Shaheen Begum And Ors. on 18 January, 1991
Equivalent citations: 1991(3)ALT648
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
JUDGMENT P. Venkatarama Reddi, J.
1. This writ appeal arises out of the judgment of the learned single Judge allowing the writ petition filed by the respondents herein and quashing the orders of the Special Officer & Competent Authority, Urban Land Ceilings, Hyderabad as confirmed by the Commissioner of Land Reforms and Urban Land Ceiling and declaring that each of the writ petitioners does not hold any vacant urban land in excess of the ceiling limit.
2. The writ petitioners (who are respondents herein) claim to be co-owners of certain open lands and buildings situate in the Urban Agglomeration of Hyderabad. The 2nd respondent passed an order dated 1-10-1987 under Section 8 (4) of the Andhra Pradesh Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the Act') after making an enquiry into the declarations filed by the writ petitioners holding that each of the writ petitioners holds surplus vacant land to the tune of 6,077.49 sq. meters which they are liable to surrender. The said order passed by the 2nd appellant was confirmed by the Commissioner or Land Reforms and Urban Land Ceiling -the 1st appellant herein, by an order dated 14-12-1988. Challenging these orders, the writ petition was filed and as already stated the learned single Judge allowed the writ petition declaring that none of the writ petitioners held excess vacant land. A glance at the following table will give an idea of the items in dispute and the findings recorded by the original -authority:
TABLE __________________________________________________________________________________________ Description of Extent sought to be Conclusion of the land under Extent excluded by the Special Officer dispute writ petitioners U.D.C. _________________________________________________________________________________________ 1 2 3 4 _________________________________________________________________________________________ Vacant land in 20,639 Sq. Entire extent. Claim rejected S.No. 14 of meters Claim made on the Treated an vacant Yellareddiguda. ground that it is land.
water-stagnated area.
Building Nos. 1192 Sq. meters Appurtenant land Claim rejected
8-3-948 & 949 1766 sq. meters and additional Treated as non-dwelling
Yellareddiguda. (plinth area) appurtenant land units
of 1000 sq. meters appurtenant land
each in addition to 500 sq. meters
the plinth area sought has been excluded
to be excluded on the apart from the
ground that they are plinth area.
dwelling units.
Two sheds 500 sq. meters each
erected by Fire towards appurtenant Disallowed.
Service Deptt. land claimed.
used as work-shop
by them.
Servant Quarters 1716.44 Appurtenant land of Only 500 sq. metres
(I, II & III) (sq.meters.) 500 sq. meters each allowed.
claimed.
Garage 34 sq. meters Apppurtenant land Disallowed.
(Or 94.72 sq. of 500 sq. meters
meters.) claimed.
Swimming Pool 182.16 sq. 500 sq. meters appur- Disallowed.
tenant land claimed.
3. The learned single Judge accepted the claim of the writ petitioners in respect of each of the above items. Regarding the first item - open land at Yellareddyguda, the learned Judge relying upon certain letters issued by the Municipal Corporation of Hyderabad and Bhagyanagar Urban Development Authority, held that the land in question cannot be treated as vacant land inasmuch as it is a water-logged area and the building permission was refused by the Corporation on that ground. The learned single Judge held that the writ petitioners are entitled to appurtenant land as claimed by them in respect of items 2 to 6 referred to above in the table. It is on the basis of these findings, the learned single Judge declared the writ petitioners as non-surplus holders of vacant land.
4. In this writ appeal, the findings of the learned single Judge have been assailed by the learned Government Pleader contending that there is no warrant in law for declaring the writ petitioners as non-surplus holders in acceptance of their claim. The learned Government Pleader relies upon the orders of the appellant authorities and contends that the conclusions of the authorities concerned are in accordance with the provisions of the Act and need no interference.
5. On the other hand, the learned Counsel for the respondents Sri Dasaratharamaiah supports the judgment under appeal contending that there is no error of law committed by the learned single Judge. He points out that the approach adopted by the authorities concerned is contrary to the Act, He also points out that there was undue delay in finalising the enquiry and if at this stage the matter is remitted back to the apellants for any reason, it would cause serious prejudice to the writ petitioners.
6. Now we will take up the first question whether the open land of 5159 sq. metres ( being l/4th share of each of the writ petitioners) situate at Yellareddiguda can be treated as 'vacant land' within the meaning of Section 2 (q) of the Act.
7. The respondents relied upon the letters dated 28-4-1982 and 1-2-1983 issued by the Bhagyanagar Urban Development Authority (hereinafter referred to as 'Huda') and the Municipal Corporation of Hyderabad ( hereinafter referred to as 'MCH') and claimed that the land being water-logged and building construction thereon being impermissible, it does not answer the description of 'vacant land' as given in the Act. This contention based upon the said letters has been accepted by the learned single Judge. The Special Officer and Competent Authority relied upon the letters dated 23-8-1986 and 10-12-1986 issued by the HUDA and MCH, on a reference made by him and held the land in question as vacant land. The Appellant Authority viz., Commissioner of Land Reforms and Urban Land Ceilings, while affirming the order of the Competent Authority observed that "the land use as indicated in the master plan has to be taken into account and if so the land in question cannot be categorised as non-vacant land". The learned single Judge observed that the Special Officer and Competent Authority should not have relied upon the later communications of HUDA and MCH, that too without disclosing the same to the writ petitioners. The learned single Judge also held that even going by later communications the land at Yellareddiguda cannot be treated as vacant land for the purpose of the Act.
8. Let us notice the relevant provisions of the Act in brief. Section 3 enjoins 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 cealing limit in the territories to which the Act applies. The ceiling limit prescribed under Section 4 read with Schedule -I is 1,000 sq. meters for the Urban Agglomeration of Hyderabad. Section 6 casts an obligation on the person holding the vacant land in excess of the ceiling limit at the commencement of the Act to file a statement before the Competent Authority in the prescribed form and within the prescribed time setting out the particulars of the vacant land or any other land on which there is a building with or without dwelling unit The expression 'commencement of the Act' has been given a special connotation under the Explanation to Sub-section (1) of Section 6. In so far as it is relevant, it reads as follows:
'In this Sub-section 'commencement of the Act' mean-
(i) the date on which this Act comes into force in any State,
(ii) where any land, not being vacant land situated in a State in which this Act is in force has become vacant land by any reason whatsoever, the date on which such land becomes vacant land;..."
Thus, a parcel of land which may not have been vacant initially i.e., 17-2-1976, if it becomes vacant land subsequently by any reason whatsoever, a statement has to be filed in accordance with Section 6. Section 8 provides for preparation of draft statement as regards the vacant land held by a person in excess of the ceiling limit. The draft statement is prepared on the basis of the statement filed under Section 6 and after such enquiry as the Competent Authority may deem fit to make. On the receipt of objections to the draft statement, such objections have to be considered by the Competent Authority after giving the objector a reasonable opportunity of being heard and on disposal of such objections, a final statement has to be prepared under Section 9 determining the vacant land held by the person concerned, in excess of the ceiling limit. On service of the final statement under Section 9, Section 10 provides for a notification to be punished giving the particulars of the vacant land held by such person in excess of the ceiling limit which is liable to be acquired by the State Government and palling for the claims of the persons interested in such vacant land. After considering the claims of the persons interested, the Competent Authority will determine the nature and extent of such claims and pass appropriate orders under Sub-section (2) of Section 10. The subsequent step that has to be taken by the Competent Authority is laid down in Sub-section (3) of Section 10. Section 10 (3) provides that the Competent Authority may, by notification published in the Official Gazette of the State, declare that the excess vacant land referred to in the notification published in Sub-section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon publication of such declaration such land shall be deemed to have been vested absolutely in the State Government free from all encumbrances with effect from the date so specified. Where any vacant land is thus vested in the State Government, Sub-section (5) of Section 10 empowers the Competent Authority to take possession of the land after service of a notice. Section 11 provides for payment of compensation for the vacant land deemed to have been acquired by the State Government under Sub-section (3) of Section 10.
9. The crucial expression 'vacant land' is defined by Section 2(q). Section 2(q) defines 'vacant land' as land not being land mainly used for 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 being constructed on the appointed day with approval of the appropriate authority 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."
"Building Regulations" mean regulations contained in the master plan or the law in force governing the construction of buildings. (Vide Section 2(b)).
'Master Plan' is defined by Section 2(h) to mean 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.
10. We have to consider whether the open land situate in S.No. 14 of Yellareddiguda is a vacant land within the meaning of Section 2(q). Indubitably unless it is a vacant land, it cannot be computed in the ceiling area of the landholder much less can it vest in the State Government. Coming to the specifics of this case, we have therefore to see whether under the building regulations in force, the construction of buildings is not permissible over the land in question. The letters addressed by the HUDA and MCH are relevant if at all, only in the context of answering this question.
11. The Supreme Court in State of Gujarat v. Purshottamdas, had occasion to interpret Section 2(q)(i) of the Act in juxtaposition to the provisions of the Bombay Town Planning Act. Section 29(1) of Bombay Town Planning Act reads as follows:
"29. (1) On or after the date on which the local authority's declaration of intention to make a scheme under Section 22 or the notification issued by the State Government under Section 24 is published in the Official Gazette,-
(a) no person shall within the area included in the scheme erect or proceed with any building or work or remove, pull down, alter, make any substantial repair to any building part of a building, a compound wall or any drainage work or remove any earth, stone or material, or sub-divide any land, or change the user of any land or building unless such person has applied for and obtained the necessary permission which shall be contained in a commencement certificate granted by the local authority in the form prescribed....."
The Gujarat High Court took the view that the ban contained in Clause (a) extracted above, brought the lands in question within Section 2(q)(i) of the Act and therefore it cannot be treated as vacant land. The Supreme Court did not endorse the view of the High Court and while reversing the Judgment on this aspect, held that the embargo against the construction of a building must be total and Sub-clause (i) of Section 2(q) is not intended to cover the cases where buildings could be constructed after obtaining the necessary permission from the local authorities. The Supreme Court observed as follows:
"Assuming for purposes of argument that Section 29(1) (a), Bombay Town Planning Act, 1954 amounted to a building regulation it cannot be said that the construction of building on the land in question was not permissible at all. Section 29(1)(a), Bombay Town Planning Act, 1954 only required a person who owned a piece of land situated within an area included in the scheme to obtain the permission from the local authority before erecting or constructing any building or pulling down or altering any building as provided therein. Merely because Section 29(1)(a), Bombay Town Planning Act, 1954 requires a person owning the land to which a scheme applied to obtain permission of the local authority to construct a building on it, it cannot be said that the land was one on which construction of building was not permissible. The embargo in question was not total. It was only where the ban was complete it could be said that no construction was permissible on the land. The High Court omitted to notice that the owners were entitled to construct buildings on the lands after the permission was accorded by the local authority. The finding of the High Court that by virtue of Section 29(1)(a), Bombay Town Planning Act, 1954 the lands fell outside the definition of 'vacant land' in the Act ;is, therefore, unsustainable".
In fact, in the very judgment of the Full Bench of the Allahabad High Court in State v. Radha Raman Agarwal, relied upon by the learned single Judge, the same view was expressed. It is apposite to extract the relevant observations of the Full Bench in the aforementioned case:
"Clause (i) refers to land on which construction of a building is not permissible at all either under the building regulations or under the Master Plan. The prohibition as to construction must, however, be absolute, like the land covered by green belt area or plot preserved for green park or play ground."
The view of the Full Bench has been endorsed by the Supreme Court in the decision referred to supra. The same test has therefore to be applied in judging the character of the land situated in an Urban Agglomeration (vis-a-vis Section 2(q)(i) of the Act,.
12. To resolve the issue on hand, one has to refer to the building regulations in force including the master plan. In fact that was the approach rightly made by the Appellate Authority, though the ultimate conclusion reached by the Appellate Authority is not wholly in conformity with the said approach. We are of the view that no findings can be reached merely on the basis of the letters issued by the HUDA and MCH; at best, they have secondary value.
13. Sri T. Dasaratharamaiah, the learned counsel for the respondents has drawn our attention to the Building Bye-laws of 1972 framed under the Hyderabad Municipal Corporation Act which were in force on the date of commencement of the Act. Bye-law No. 12 reads as follows:
(12) Site to be properly drained:
No building intended for human habitation shall be erected upon a site incapable of being properly drained".
Bye-law No. 15 is as follows:
"(15). Sites containing pits, quarries, etc. No building shall be erected on a site which comprises or includes a pit, quarry, or other excavation or any part thereof unless such site has been prepared or left in a manner and condition suitable for building purposes to the satisfaction of the commissioner". Mr. Dasaratharamaiah contends that having regard to water-logging of the land as revealed by the letters of HUDA and MCH dated 28-4-1982 and 1-2-1983, the construction of building is not permissible as per the aforementioned bye-laws and hence Clause (i) of Section 2(q) of the Act is directly attracted. We are unable to agree with this submission. Bye-law No. 15 need not detain us for long. First of all, it is not the claim of the writ petitioners either in the objections filed or in the affidavit in support of this writ petition that there are any pits on the land in question. There is only a vague and cryptic reference to the word 'pits' in the letter of HUDA dated 28-4-1982. It is mentioned in the letter that the site in respect of S.No.14 of Yellareddiguda falls in "water-stagnated area (pits) as per the existing land-use plan for Zone No. IV& ". Assuming that there are some pits on a portion of the land, it does not mean that no' building can be permitted thereon. The bye-law itself contemplates that a building could be constructed on the land with pits after making the site suitable for building purpose to the satisfaction of commissioner. We cannot in any way understand the bye-laws as placing an absolute restraint on the construction of building on the land having pits.
14. We have now to consider the effect of bye-law is No. 12. The Crucial expression used in the bye-law "if it is incapable of being drained". Unless it could be held as a matter of fact that even after taking diligent and technically feasible steps the water cannot be draged out, the ban against construction does not come into play. However, if the site is such that it is incapable of being drained properly- may be for certain external or uncontrollable circumstances, bye-law No. 12 operates as an absolute bar against building construction. It is possible to visualise that an area which is apparently water-logged can be made use of for construction purposes by devising reasonable remedial measures to arrest such water-logging and the Corporation authorities on being satisfied about the remedial measures taken, might grant permission for construction on such land. Much depends upon the facts of each case. No factual investigation has been made from this angle by the authorities concerned.
15. From the letters relied upon by the learned Counsel for the respondents herein, it is not possible to say that the entire land is 'water-logged' and that there is a ban on construction. The total extent of land involved is 20,639 sq. meters. The letters dated 28-4-1982 issued by the HUDA and the letter dated 1-2-1983 issued by the MCH were with reference to the applications for building permission submitted by Smt. Sharoof Jehan Begum and others. It is mentioned in the letter of HUDA that the site in respect of S .No. 14 of Yellareddiguda falls in water-stagnated area. The subsequent letter dated 1-2-1983 issued by the MCH is merely based upon HUDA's letter dated 28-4-1982. It is not known what exactly was the are of site for which the building permission was sought. The application and plan relating to the site in question has not been filed either before the concerned authority or even in the writ proceedings. Even if a part of land in respect of which building permission was applied for is deemed to be water-logged or marshy, it cannot be taken for granted that the entire remaining part of the land is of the same character. There is yet another reason why these letters cannot be viewed as having a last say in the matter. The language employed in these letters is in very general terms. The nature and extent of water-logging and the possibility of draining it under given conditions is not ascertainable from a perusal of the letters. In this context we may point out that mere water stagnation is not the determinative factor, but it has to be seen whether such water stagnation is an irremediable phenomenon shutting out the possibility of undertaking remedial measures. On the question as to what weight is to be attached to the letters of HUDA and MCH (dated 28-2-1982 and 1-2-1983 respectively), there is one more aspect which we would like to advert to. It is mentioned in the letters of HUDA and reiterated by MCH that the site falls in "water-stagnated area (pits) as per the existing land-use plan for Zone No. IV". The Bhagyanagar Urban Development Authority Zoning Regulations, 1981 and the Zonal Development Plan produced before us by the learned Government Pleader do not indicate any such classification as 'water-stagnated' area or 'covered by pits'. In the subsequent letter dated 23-8-1986 issued by the HUDA, it has been made clear that as per the Zonal Development Plan, the land-use is classified as partly commercial and partly meant for parks and playgrounds (recreational use). Thus the letter dated 28-4-1982 proceeds on a wrong factual assumption that that 'land-use plan' identifies the land in question as water-stagnated area.
16. Thus, having regard to the interpretation placed on Section 2(q)(i) by the Supreme Court in the above mentioned case, we are unable to say that the 1975 Building Bye-laws place an absolute embargo on the construction of buildings over the land affected by water-logging in some measure or the other. The material on record does not establish beyond doubt that the open land with which we are concerned is affected by water logging to such an extent as to make it incapable of use for construction purpose.
17. Apart from the building regulations aforementioned there was a Development Plan in operation for the area covered by the Hyderabad Municipal Corporation. The Development Plan was sanctioned by the Government in G.O.Ms.No. 414 (M.A.) Department dated 27-9-1975 in exercise of the powers under the repealed Section 464(1) of the Hyderabad Municipal Corporation Act, 1955. Statement No. II annexed to the G.O. containes Zoning Regulations. Till the new Zonal Development Plan was formulated under G.O.Ms.No. 692 (Municipal Administration) dated 29-10-1980 for Division IV (in which the land in S.No. 14 of Yellareddiguda admittedly lies), the Development Plan prepared and sanctioned under Section 464 of the Hyderabad Municipal Corporation Act remains in force by virtue of Section 11 of the Andhra Pradesh Urban Areas (Development) Act, 1975, (for short,' A.P.U.D. Act'). So also, the Zoning Regulations of 1975 framed under Hyderabad Municipal Corporation Act were in operation till the new Zoning Regulations were framed by the Government under Section 59 of the A.P.U.D. Act in the year 1981. The Development Plan for Hyderabad city together with the Zoning Regulations issued under G.O.Ms.No. 414, Municipal Administration, dated 27-9-1975 has been placed before us by the learned Government Pleader. The writ petitioners did not place any reliance on the old Development Plan or the Zoning Regulations of 1975 either before the Urban Land Ceiling Authorities or in the writ petition. However, in the course of arguments in this writ appeal, the learned Counsel for the respondents has drawn our attention to Items 3 and 4 at page 31 of the Official Booklet containing the G.O. and contends that the land in question falls within the Recreation Zone. The relevant portion reads as follows:
_______________________________________________________________________________________________ S.No. Locality Reference Approxi- Perpose for which present use.
to marking mate area area is to be
on map. reserved (in acres)
_______________________________________________________________________________________________ (1) (2) (3) (4) (5) (6) _______________________________________________________________________________________________ RECREATION
3. Near S.I.E.T. Institute D.R.4. 8.82 Recreation Vacant Yousufguda. Green belt. land
4. South of Yosufguda police lines D.R. 5 6.76 Recreation Vacant and north of Jubilee Hills Park. land.
18. The learned government pleader has submitted that the above columns are wholly inapplicable because the land in question is in a different locality. On the other hand the learned government pleader contends that Item No. 5 in the same page is the relevant column. The same is extracted hereunder:
_______________________________________________________________________________________________ (1) (2) (3) (4) (5) (6) _______________________________________________________________________________________________ PUBLIC AND SEMI PUBLIC
5. Fire Station at Punjagutta. D.P. 6 3.30 For Expansion. Vacant and Residential
19. If as contended by the learned Government Pleader, Item No. 5 is relevant, no question of prohibition against construction will arise. It is not necessary for us to make or direct a further probe into this aspect, because, as already noticed, even if the land was non-vacant on the day on which the Act came into force, if it subsequently becomes vacant by reason of change of land-user or otherwise, the landholder is bound to file a statement and such land will be dealt with in accordance with the provisions of the Act We have, therefore, to necessarily examine the position as per the new building regulations.
20. What then is the position according to the new Building Regulations, that is to say, the regulation in force as on the date of preparing the final statement by the Competent Authority? The content of old Building bye-law No. 12 of Hyderabad Municipal Corporation Act has not undergone any change. In the new Building bye-laws of 1981, bye-law No. 17.3 corresponds to the old bye-law No. 12. Hence the comments we have made with reference to the old bye-law will hold good vis-a-vis the position obtaining under the new Bye-law as well. It is relevant to notice also bye-law No. 17.8 which enjoins that "no proposed construction shall contravene any of the Zoning Regulations". By "Zoning Regulations" what is obviously means is the "Zoning Regulations framed under the AP.U.D. Act, 1975. It is necessary to advert to the material provisions of the A.P.U.D. Act ;and the Bhagyanager Urban Development Authority Zoning Regulations, 1981 (hereinafter referred to as 'the Zoning Regulations') which came into force from 5-9-1981 because they form part of the Building Regulations within the meaning of Section 2(b) of the Act. Sub-section (5) of Section 13 of the AP.U.D. Act enjoins that after "coming into operation any of the plans in any area within the Development Area, no development shall be undertaken or carried out in that area unless such development is also in accordance with such plans." The Zonal Development Plan for Division No. IV as contemplated by Section 7(1) of the A.P.U.D. Act was prepared by HUDA and the same was approved by the Government under Section 9(1) of the said Act by G.O.Ms.No. 692 (Municipal Administration) dated 29-10-1980. The Zonal Development Plan so prepared, inter alia, contains classification of areas according to land-uses. Clause 6 of the Zoning Regulations deals with land-use zones and uses permitted. They are - (i) residential; (ii) commercial, (iii) industrial; (iv) recreational; (v) agricultural (green); and (vi) special reservation. Clause 6.1.1 states that the zones are located and bounded as shown on the Development Plan. The various buildings and occupancy uses to be permitted in these zones are as given in Appendix 'C (Vide Clause 6.1.2.). In Appendix 'C-9', under the Category 'recreational use zone', it is laid down that 'this zone is especially set apart for public and semi-public recreational use' which includes playgrounds and parks. Clause 6.3.1 enjoins that "where the use of a site is specifically designated on the Development Plan, it shall be used only for the purpose so designated". The other regulations are not relevant for our purpose.
21. It is therefore clear that the Zonal Development Plan is the key to understand the uses to which the land in a particular area could be lawfully utilized. A copy of the Zonal Development Plan has been placed before us by the learned Government Pleader. On a perusal of the plan, it appears to us that a part of the land of the writ petitioners is earmarked for commercial purpose, another part for residential purpose and yet another portion for park and play-ground (recreational use). It is not possible for us to say how much extent is earmarked for recreational purpose and how much extent is meant for residential and commercial use. The Zonal Development Plan and HUDA Regulations have not been referred to by the Appellant-authorities, nor even by the learned single Judge. The Competent Authority as well as the Appellate Authority having noted the fact that in the letters addressed by the HUDA and MCH, the land-use has been indicated to be partly commercial, partly residential and partly for recreational purpose, treated the entire land as vacant land. But no reason has been given as to why even the portion of the land earmarked for recreational purpose (park and play-ground) should be treated as vacant land within the meaning of Section 2(q). As already observed by us, the area classified and set apart for recreational purpose cannot be considered to be vacant land because the construction of buildings thereon will be in contravention of statutory building regulations referred to above, unless of course the land-use is changed after following the due procedure. Hence, in any view of the matter, the parcel of land reserved for recreational use (part and play-ground) should have been treated as non-vacant land. Coming to the judgment under appeal on this aspect, we must say that the learned single Judge has fallen into an error in holding as follows:
"It therefore follows that even assuming that the land in question could be utilized for playground/park under the Green Belt progamme, as suggested by the Hyderabad Urban Development Authority and the Municipal Corporation of Hyderabad. the same cannot be treated as vacant land for the purpose of the Act".
The learned single Judge has not given any reason as to why the area that has not been earmarked for playground/park but classified as commercial/residential area should also be treated as non-vacant land. Thus, the alternative finding given by the learned Judge is vitiated by an error apparent on the face of record. There is another allied aspect. It is not known whether the land set apart for recreational use is waterlogged or the other area meant for residential and commercial use is waterlogged. As already indicated, it is also not clear as to how far and to what extent the so-called water-logging has the effect on building construction over the commercial/residential area in the light of the building bye-law aforementioned. The relevant aspects have not been borne in mind nor investigated by the appellants herein or by the learned single Judge. Moreover, the Competent Authority relied upon the letters received from HUDA and MCH in the year 1986 after the preparation of the draft statement. There is nothing on record to show that the writ petitioners were apprised of the contents of the Said letters. Even in the counter it is not stated that the declarants were made aware of the letters. The Competent Authority is under an obligation to afford reasonable opportunity to the objector under Sub-section (2) of Section 10. The material gathered behind the back of the declarant after the draft statement was served, cannot be pressed into service without giving due opportunity to the declarant to the declarant to rebut the same. It is therefore clear that the impugned order and the final statement prepared by the Competent Authority are vitiated by violation of principles of natural justice.
22. In view of the foregoing discussion, we are of the view that the issue whether the whole or part of land in S.No. 14 of Yellareddiguda is vacant land has not been considered by the concerned authorities and the learned single Judge from a proper perspective, keeping in view the relevant building regulations, the Zonal Development Plan and the true nature of the land. The entire controversy was' sought to be resolved with reference to the letters emanating from HUDA and MCH, which as already indicated, do not clinch the issue and which were not even put to the declarants. We are, therefore, constrained to set aside the order passed by the Competent Authority (Urban Land Ceilings) as; confirmed by the Appellate Authority as well as the judgment of the learned single Judge and to direct the Competent Authority to examine de novo the question whether the whole or any part of the open land in S.No. 14 or Yellareddiguda (of a total extent of 20,639 sq. meters) can be treated as vacant land within the meaning of Section 2(q) of the Act in the light of the relevant Building Regulations read with the Zonal Development Plan, bearing in mind the observations made hereinabove, after giving opportunity of being heard to the writ petitioners. If need be, the Competent Authority may inspect the area and take the assistance of an expert for the purpose of arriving at proper conclusion, but whatever ;material it seeks to rely upon should be disclosed to the writ petitioners and they should be given sufficient opportunity to meet any adverse points appearing against them. If it is found that the stagnant water, if any, cannot be drained out or the site is otherwise unfit for construction on account of the alleged water-logging even after taking technically feasible remedial measures, the portion of land affected by water-logging, if any, shall be excluded. The Competent Authority will also exclude the portion of land, if any falling within the recreational use zone meant for parks/playgrounds as per the Zoning Regulations and the Zonal Development Plan indicating land-uses.
23. According to the computation made by the Competent Authority in the final statement, there is an extent of 11,858 sq. meters of land in the premises bearing Nos.8-3-948 and 949, part of which is covered by buildings and structures. The Competent Authority excluded the plinth area of various buildings to the tune of 3685 sq. meters from the holding of the declarants and further excluded an extent of 2,500 sq. meters towards appurtenant and additional appurtenant land. Thus, an extent of 6185 sq. meters has been treated as 'protected area' under Sub-section (11) of Section 4 of the Act. The learned single Judge has directed further allowance of 4,000 sq. meters towards appurtenant land.
24. We shall now proceed to consider the next question whether the learned single Judge is justified in allowing appurtenant land for the various buildings and structures. Before we take up specific items of dispute for consideration, we may refer in brief to the relevant provisions of the Act. Section 4 prescribes the ceiling limit of vacant land which a person is entitled to hold. For the purpose of computation of vacant land held by a person, the land occupied by a building with a dwelling unit ;therein and the land appurtenant thereto shall also be taken into account under Section 4(9) of the Act. At the same time, Sub-section (11) of Section 4 declares that 'nothing in Sub-section (9) and other Sub-section s shall be construed as empowering the Competent Authority to declare any land referred to in Sub-clause (ii) or Sub-clause (iii) of Clause (q) of Section 2 as excess vacant land. Section 2(q) defining 'vacant land' has already been extracted supra. However, for ready reference, we would like to extract Clause (ii) of Section 2(q) which is the relevant clause. ' Vacant land' means land not being land mainly used for purpose of agriculture, in an urban agglomeration, but does not include-
(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 approval of the appropriate authority and the land appurtenant to such building;...."
Thus the land occupied by any building and the land appurtenant to such building stands excluded from the purview of 'vacant land'. It cannot, therefore, be acquired under the provisions of the Act. Of course, in order to fall within the exclusionary clause, the building must be one constructed before or is being constructed on the appointed day with the approval of the appropriate authority. However, the land covered by a building with dwelling unit and the land appurtenant thereto enters into the computation of total holding of a person along with the other vacant land held by him. But to protect the said land from acquisition under the Act, Sub-section (11) of Section. 4 makes an explicit declaration that such land (covered by building with dwelling unit and the land appurtenant thereto) cannot be deemed to be excess vacant land. Thus, the extent of land occupied by a residential building together with the appurtenant land enjoys immunity from acquisition though the said extent counts towards the ascertainment of ceiling area.
25. Now let us notice the definition of 'appurtenant land' as per Section 2(g) of the Act, in so far it is relevant. '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 meters:... and includes, in the case of any building constructed before appointed day with a dwelling unit therein, an additional extent not exceeding five hundred square meters of land if any, contiguous to the minimum extent referred to in Sub-clause (i),....."
The word 'building' has not been defined by the Act. However, Section 2(e) defines 'dwelling unit' as follows:
"'Dwelling unit' in relation to a building or a portion of a building, means a unit of accommodation, in such building or portion, used solely for the purpose of residence."
26. Having referred to the relevant provisions, we will now discuss itemwise whether and to what extent the appurtenant land is admissible in respect of the various buildings:
(2) Two main buildings in premises bearing Nos. 8-3-948 and 949: The Competent Authority, Urban Land Ceilings treated the above buildings as non-dwelling units on the ground that the offices of the Fire Service Department are located therein. The Competent Authority therefore allowed only 500 sq. meters as appurtenant land under Section 2(g)(i) of the Act. The Competent Authority itself noted in the impugned order that portions of the said buildings are being used for the residential purpose of Fire Service officials. These buildings were allotted by the Government to the fire service Department in the year 1965 under the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act. There is no reason to think that the user of a part- of the building for residential purpose is forbidden or unauthorised. It is not anybody's case that the buildings themselves were designed and constructed only for non-residential purposes such as housing an office or business establishment Under these circumstances, there is no apparent reason why the said buildings shall not be treated as buildings containing dwelling units. On the undisputed facts, an unit of accommodation in a portion of the building is being used solely for the purpose of residence, may be by the tenants. Hence, the buildings in question squarely answer the description 'building With dwelling unit' within the meaning of Section 2(e) of the Act. The mere fact that a substantial portion of the building was or is being used for office does not necessarily militate against the factum of existence of dwelling unit in a portion of the building within the meaning of Section 2(e). Hence, we are of the view that the direction of the learned single Judge that additional appurtenant land of 500 sq. meters should be allowed in respect of each of these buildings is in conformity with law. However, there is a qualification which we would like to add. The additional extent to be allowed as appurtenant land shall be contiguous to and in continuation of the 500 sq. meters already allowed by the Competent Authority. The whole idea of allowing the appurtenant land is to ensure the effective and convenient enjoyment of the building, either in present or in future. The appurtenant land cannot be allowed at a spot unconnected to the building in terms of contiguity. If, having regard to the location of various buildings, the situation of appurtenant land allotted to each of the buildings and the available open space, it is not possible to ear-mark the additional appurtenant land so as to be contiguous to the 500 sq. meters already allowed, there should be corresponding reduction in the additional extent of appurtenant land to be allowed under the inclusive clause of Section 2(g) of the Act. In this context it is significant to note the expressions - 'if any' and 'not exceeding' used in the inclusive clause. The said expressions support the interpretation that it is only the extent of land contiguous to the appurtenant land allowed under Clause (i) which in again contiguous to the building that could be given as additional extent under the inclusive clause of Section 2(g). Neither the appurtenant land nor the additional appurtenant land can be allocated on a notional basis. The Competent Authority while passing fresh orders in terms of this judgment, shall consider this aspect.
Two sheds being used by the Fire Service Department:
27. (3) The respondents-writ petitioners claim that two sheds erected by the Fire Service Department and which has been in existence since 1972 should be treated as 'buildings' for which appurtenant land of 500 sq. meters each is to be allowed. Admittedly these structures were put up by the tenant (Fire Service Dept.) and they were being used by the Fire Service as work-shops. The Competent Authority declined to allow any appurtenant land for these two sheds on the ground that they are not proved to be authorised structures. The learned single Judge relied upon the observations of the Full Bench of the Allahabad High Court in Agra Concrete Pipe Co. v. Competent Authority, Agra, and held that the sheds having been put up before the Act came into force, the declarents are entitled to exclude the plinth area of the two sheds and also 1,000 sq. meters towards appurtenant land irrespective of the fact whether the structures were authorised or unauthorised, we are unable to agree with the learned single Judge in this regard. The nature of these sheds could be seen from the letter addressed by the Director of Fire Service, dated 21 -7-1987 to one of the writ petitioners found at page 375 of the original record. It reads as follows:
"With reference to your letter cited, I have to inform you that temporary sheds of Punjagutta Fire Station with wooden poles and zinc sheet roof were erected in November 1972 in the premises bearing Door No. 8-3-948/949, Ameerpet, Hyderabad.& "
Prima facie, it looks to us that these temporary structures without walls erected by the tenant cannot be regarded as buildings even if we give a wider meaning to the term 'building'. However, it is not necessary to pursue this point further. In our view, the land covered by the building and the appurtenant land can be excluded under Section 2(q)(ii) read with Section 2(g) only if it is held by the declarants. That the holding of land with building and/or other vacant land is the sine qua non for the application of the Act is quite evident from the various provisions of the Act-Sections 3,4,6,9, 10 and 18. The expression 'to hold' in relation to a land with building has been given a special connotation by the Explanation to Sub-section (11) of Section 4 which reads as follows:
"For the purposes of this section and Sections 6, 8 and 18, a person shall be deemed to hold any land on which there is building (whether or not with a dwelling unit therein) if he-
(i) owns such land and the building or
(ii) owns such land but possesses the building or possesses such land and the building, the possession, in either case, being as a tenant under a lease, the unexpired period of which is not less than ten years at the commencement of this Act, or as a mortgage or under an irrevocable power of attorney, or a hire-purchase agreement or partly in one of the said capacities and partly in other of the said capacity or capacities;
(iii) possesses such land but owns the building, the possession being as a tenant under a lease or as a mortgage or under an irrevocable power of attorney or a hire-purchase agreement or partly in one of the said capacities or partly in any other of the said capacity or capacities."
The land covered by these sheds erected by the tenant viz., Fire Service Department, assuming that they are 'buildings' cannot be said to have been 'held' by the writ petitioners within the meaning of the deeming provision contained in the Explanation to Section 4(11). The declarants/writ petitioners do not satisfy the criteria laid down by the Explanation vis-a-vis the temporary sheds erected by the tenant, as they neither own nor possess the sheds in any of the capacities mentioned therein. In the view we have taken, it is not necessary to go into the further question whether in the absence of proof of approval by the concerned authority for the buildings constructed before the appointed day, any exclusion could be claimed under Clause (ii) of Section 2(q) of the Act. The correctness and applicability of the Allahabad decision need not also be gone into, by us. Thus, for different reasons, we affirm the conclusion of the Urban Land Ceiling Authorities in this behalf and set aside the relevant part of the judgment under appeal.
28. (4) Servant Quarters: There are three servant quarters in the premises bearing Nos. 8-3-948 and 949. These servant quarters are marked as 4,5 and 6 in the plan which is on record. They have plinth areas of 52.88,39.72 and 83.85 sq. meters respectively. These are also being used by the tenant, viz., Fire Service Department. The Competent Authority following the clarification issued by the Government in Memo No. 4006/UC-II/82-2 dated 10-5-1983 allowed appurtenant land of 500 sq. meters for these three 'buildings' put together. Thus, the plinth area of the three servant quarters plus 500 sq. meters of appurtenant land was treated as protected land under Section 4(11) of the Act. The learned single Judge took the view that "servant quarter or out house situated apart from the main building will be a building in its own right (apart from the main building)". The learned Judge relying upon the judgment of the Allahabad High Court in State of U.P. v. L.J. John, 1978 All L.J. 1222 held that a servant quarter will be entitled to land appurtenant under Section 2(g) of the Act apart from the land left with the main building. We find that this judgment has been reversed by the Supreme Court in State of U.P. v. L.J. John, . In the view taken by the learned single Judge, he allowed an extent of 500 sq. meters in respect of each of the quarters as appurtenant land, and therefore directed exclusion of the same from, the holding of the writ petitioners. We are of the view that the learned Judge is not justified in granting the allowance of appurtenant land for each of the servant quarters. We are of the view that the question whether appurtenant land should be allowed in respect of a servant quarter or quarters apart from the appurtenant land left with the main building, depends upon the facts of each case. No broad and unqualified proposition could be laid down that a servant quarter being a building should in its own right earn the eligibility for the grant of appurtenant land. We are inclined to think that the normal presumption should be that a servant quarter is an integral part of an adjunct to the main building, residence of servant in a small adjacent room is so intimately connected with the main building that it would be difficult to disassociate the same from the main building. If that be the case, a servant quarter need not always be accorded the status of an independent building which can have appurtenant land of its own under Section 2(q)(ii). The word 'building' occurring in Section 2(q) need not necessarily mean each one of the buildings existing on a premises irrespective of their nature, use, extent and location so as to be eligible to get appurtenant land in its own right. It would not be reasonable to place an interpretation that however small a building may be and however much it is connected with the main building for which the 'land appurtenant' has already been allowed, that building shall be treated as a distinct and separate unit for the purpose of granting the benefit of appurtenant land. Section 2(q)(ii) cannot be interpreted in such a way as to give an unintended advantage to the landholder to the detriment of the socio-economic objectives sought to be achieved by the Act. For instance, let us taken a case where there is a small guard room of about 5 sq. meters area attached to the compound wall of the building. 1,000 sq. meters appurtenant land and additional appurtenant land has already been allowed in respect of the main building. There is nothing to show that the said guard room has no access unless some more appurtenant land is made available. Does the law contemplate the allowance of appurtenant land independently to this small guardroom merely because the guard room answers the description of 'building'? Taking a realistic view of the matter and without doing any violence to the language employed, we do not think that such a guard room ought to be treated as a distinct building unit so as to be eligible for the appurtenant land in addition to the appurtenant land already allowed for the building to which it is attached. However, there may be cases where the servant quarter or the out house or the guard room may be quite far off the main building having no access either through the land appurtenant to the main building or through public road. In such a case, it is possible to take the view that it is a separate and distinct building for which the allowance towards appurtenant land is admissible in law. Thus, as a legal proposition, it cannot be enunciated that any and every servant quarter or put house or guard room within the premises of the main building is eligible for the benefit of appurtenant land under the provisions of the Act. The second aspect to be borne in mind in this context is that it is not necessary to invariably allow appurtenant land and additional appurtenant land to the extent of 500 sq. meters each. It may be noted that 500 sq. meters is the maximum that could be allowed as is evident from the expression 'which in no case shall exceed' occurring in Section 2(g) of the Act.
29. Bearing the above principles in view, we have to examine whether the writ petitioners are entitled for the allowance of appurtenant land vis-a-vis servant quarters. We find from the plan that the three servant quarters are quite close to one of the main buildings (for which we have already allowed additional appurtenant land) and they are adjacent to each other. They appear to form together one single block and we do not find any gap between one structure and another. The Competent Authority allowed 500 sq. meters as land appurtenant for all the three quarters put together. In doing so, the Competent Authority followed the clarificatory instructions issued by the government though it has not given any specific reasons of its own. Having regard to the situation and structural integrality of the three quarters (marked as 4,5 and 6 in the plan), we must say that the Competent Authority has taken a reasonable view treating the building as one and allowing the appurtenant land on that basis. But the Competent Authority itself having allowed 500 sq. meters towards appurtenant land for this block of servant quarters, there is no apparent reason why it has not allowed additional appurtenant land under the inclusive clause of Section 2(g). Admittedly the building unit - consisting of 3 servant quarters, is being used for residential purpose of the staff of Fire Service Department. When once the building consisting of the servant quarters has been treated by the Competent Authority as distinct from the main building unit and hence allowed appurtenant land of 500 sq. meters, logically it follows that it should be eligible for additional appurtenant land not exceeding 500 sq. meters as a dwelling unit In view of this, while we set aside the order of the learned single Judge on this issue, at the same time, we modify the order of the Competent Authority so as to give the writ petitioners the benefit of additional appurtenant land under the inclusive clause of Section 2(g). However, we would like to make it clear that the additional appurtenant land to be allowed need not necessarily be the maximum of 500 sq. meters specified in Section 2(g). That apart, as already pointed out by us, the additional appurtenand land to be allowed should be contiguous to the appurtenant land of 500 sq. meters allowed by the Competent Authority. If sufficient land is not available beyond and contiguous to the appurtenant land of 500 sq. meters (apart from the appurtenant land allowed for the main building), the additional appurtenant land to be allowed for the servant quarters can be reduced to the extent necessary. In other words, the extent of additional appurtenand land that could be allowed for servant quarters has to be worked out by the Competent Authority within the maximum limit of 500 sq. meters keeping in view the considerations of contiguity and avoidance of over-lapping.
30. The learned counsel for the respondents has cited the Full Bench decision of Allahabad High Court in M/S Agra Concrete Pipe Co. case (3 supra) to support his contention that each of the servant quarters should be treated as a separate and independent building. We do not think that the aforementioned decision can be relied upon by the respondents. The following crucial observations at paragraph 5 of the judgment bring out the distinction between the facts of that case and the facts in the instant case:
"There is no material before us to hold that the three tanks in question form part of a large tank. They are indeed distinct and different. They measure 80' x 120' x 40' x 120' and 40' x 100'. Each is separated at a distance of 6 to 7 ft. from the other. They cannot, therefore, be regarded as three parts of one tank. Learned District Judge has also proceeded on the basis that they are different but contiguous. The fact that they are contiguous is no ground to deny the entitlement of appurtenant land in respect of each tank".
As already noticed, the three servant quarters really form one building without being separated from one another. Neither the replies filed before the Competent Authority nor the averments in the affidavit filed in support of the writ petition disclose any special features to support an inference that they are distinct and separate buildings as in the Allahabad case. The case of the respondents herein is more akin to the case of the two sheds mentioned at paragraph 8 of the judgment. It is useful to extract the relevant observations of the learned Judges:
"This takes us to the next contention urged by Mr. Agarwal. He urged that the petitioner has two sheds. He is also entitled to 500 sq. meters in respect of each of the sheds. We do not think that we could accept this submission. Learned District Judge has rejected this claim on the ground that the two sheds are adjoining sheds and should be treated as one structure. In other words, he has proceeded on the basis that although there are two numbers given to the sheds they form parts of the same structure or building. We do hot find any infirmity in this finding and accordingly reject the contention urged by the petitioner".
Thus, the Full Bench Judgment of the Allahabad High Court, far from supporting the writ petitioners' plea, goes against the same.
31. (5) Garage: From the plan, it is evident that there is a garage abutting the servant quarters with a plinth area of 94.72 sq. meters marked as No. 7 in the plan. However, in the order of the Competent Authority, the area of the said garage is mentioned as 34 sq. meters instead of 94.72 sq. meters. Actually the garage of 34 sq. meters bearing No. 7 in the plan is the one attached to the residential house treated as dwelling unit by the Competent Authority. There seems to be an inadvertent mistake in the order wile mentioning the area of the two garages (No. 7 and 16 in the plan). The garage of 34 sq. meters has been clubbed to the dwelling unit of 176 sq. meters. The particular garage with which we are concerned is little away from the main building (referred to as NDU-I in the order), and it is adjacent to the servant quarters. Actually it is in-between the servant quarters and the shed (No. 8 in the plan). The Competent Authority has clubbed this garage with the servant quarters and, as already noticed, allowed an appurtenant land of 500 sq. meters for the servant quarters. No separate appurtenant land has been allocated to the garage. The learned single Judge held that the garage is "entirely a different structure situated slightly away from the main building". The learned Judge directed an allowance of 500 sq. meters towards appurtenant land. The Competent Authority has not given any reasons as to why the garage is not eligible for any appurtenant land. The Appellate Authority observed that "there is no specific mention of a garage as a separate entity under the definition of 'building' under Hyderabad Municipal Corporation Act, 1955 though a mention has been made of other structures". The Appellate Authority has missed to notice that the definition of 'building' under Section 2(b) of Hyderabad Municipal Corporation Act, is an inclusive definition. The said inclusive definition covers even structures like out-house, stable, latrine, shed, platform, etc. Hence, there is no difficulty in treating this garage which is fairly big as a building. The Competent Authority however clubbed this garage to the servant quarters which we feel is neither logical nor reasonable. It is relevant to note that the Central Government (Works and Housing Department) by its Circular dated 18-11-1976 clarified that a verandah constructed as per the building plan should be treated as a building. Viewed from any angle, the Appellate Authority's approach is therefore not correct. It is a different matter if the garage is treated as an integral and inseparable part of the main building itself, as discussed supra. But there is no such material in the present case. The Competent Authority has not said so and it is not urged before us that the garage shall be deemed to be an inter-connected or integral part of the main building itself. Hence we agree with the learned single Judge that appurtenant land should be allowed for garage. At the same time, we are not prepared to hold that the writ petitioners are entitled to retain 500 sq. meters as land appurtenant to the garage. Under Section 2(g) of the Act, the minimum that should be treated as appurtenant land is the minimum extent of land required under the Building Regulations to be kept as open space for the enjoyment of the building. The maximum extent that could be allowed is 500 sq. meters. The minimum extent is to be ascertained from the Building bye-Laws of the Hyderabad Municipal Corporation or the Zoning Regulations of HUDA. As we have discussed hereinabove, how much appurtenant land is to be allowed for a structure which is not in the nature of a main building depends upon the facts of each case. The Competent Authority shall therefore allow appurtenant land to the garage a reasonable extent within the maximum limit of 500 sq. meters keeping in view the minimum open space required under the Building regulations and other factors such as convenient access to the garage.
32. (6) Swimming Pool: Whether any appurtenant land has to be allowed for the swimming pool, is the last point in dispute. The plinth area of the swimming pool is 182.16 sq. meters and it is marked as No. 15 in the plan. It is a little away from Building No. II and the residential building (No. 3 in the plan). The Competent Authority had merely excluded the plinth area of this swimming pool. No appurtenant land has been allowed. The reasons for not allowing appurtenant land have not been spelt out in the impugned orders. It does not appear from the record that this swimming pool is incapable of being used as swimming pool any longer. It is not contended before us nor is there anything on record to show that the swimming pool is an integral part of the main building. The Full Bench of the Allahabad High Court in M/s. Agra Concrete Pipe Co. case (3 supra) approved the finding of the lower Tribunal that the water tank constructed by an industry for curing competent pipes is a building for which appurtanant land has to be allowed. In a recent case - Municipal Corporation of Greater Bombay v. Indian Oil Corporation the Supreme Court, (1992) Scale 1140 while interpreting the term 'building' as defined by Section 3(3) of the Bombay Municipal Corporation Act, held that the petrol storage tank resting on earth without being fixed with nuts and bolts is a structure and hence falls within the definition of 'building'. The Supreme Court held that property tax was leviable thereon. We have a similar definition of the term' 'building' under the Hyderabad Municipal Corporation Act. The swimming pool, which is fairly large in area can therefore be legitimately regarded as a building. In fact, it is not specifically contended before us that the swimming pool is not a building. We are, therefore, of the view that it is proper to allow a reasonable extent of the land as appurtenant to swimming pool. The learned single Judge directed allowance of 500 sq. meters, but we are not prepared to go to that extent and give a direction that 500 sq. meters which is the maximum prescribed should necessarily be allowed. What we have said above in respect of 'garage' will equally hold good in regard to fixation of appurtenant land for' the swimming pool as well.
33. In the light of the above discussion and the reasons set out above, we set aside the judgment under appeal as well as the orders of the appellants and we direct the Special Officer and Competent Authority to revise the draft statement suitably, call for objections thereto and issue a fresh final order and statement in accordance with this judgment after giving due opportunity to the respondents to state their case. As the finalisation of the case has been considerably delayed, we would direct that the fresh order shall be passed within a period of four months from the date of receipt of this judgment We would like to make it clear that nothing in this judgment shall affect the findings of the Competent authority with regard to the exclusion of 1039 sq. meters of land taken over for road widening and 7318 sq. meters treated as Wakf property.
34. The Writ appeal is accordingly allowed. No order as to costs. Government pleader's fee: Rs.300/-.
35. Immediately after the Judgment has been delivered, the learned counsel for the respondents has made an oral request for grant of leave to appeal to the Supreme Court. In our view, no substantial question of law of general importance that requires to be considered by the Supreme Court arises in this case. Therefore, leave is refused.