Punjab-Haryana High Court
Pran Nath Kapur And Ors. vs Secretary To Government, Punjab And ... on 9 July, 1986
Equivalent citations: AIR1988P&H48, AIR 1988 PUNJAB AND HARYANA 48, (1986) 2 LANDLR 469, 1986 REVLR 341, 1986 PUNJ LJ 568
ORDER
1. The Competent Authority; Amritsar, vide order Annexure P.2 dt 20th September, 1978, declared an area of 325 Square maters as surplus in the hands of the petitioners under the provisions of Urban Land (Ceiling and Regulation) Act) of 1976, ( hereinafter referred to as the Act). An appeal against that order (sic) Annexure P.4, dated 21st Feb, 1979. The petitioner have impugned both the orders through the present writ petition.
2. The case set up by the petitioners in the writ petition, inter alia, is that after the exclusion of the built up area, the area appurtenant thereto to the extent of 500 Square meters and contiguous area to the extent of 500 meters, the vacant area that remains available is less than 1500 Square meters. which area they are entitled to keep in terms of S. 4 of the Act, that in any case the surplus area on which the petitioners are not permitted to build under the concerned development scheme of the Improvement Trust, which comes to 345 Square meters, had to be excluded and when that area is excluded then nothing remains in his hand which could be declared as surplus area.
3. The counsel for the petitioners has reiterated the aforesaid case as set up in the Writ Petition. In support of his first submission; he has placed reliance on a Supreme Court judgment reported as State of U. P. v. L. J. Johnson, AIR 1983 SC 1303.
4. There is no merit in the contention advanced on behalf of the petitioners. However, before dealing with his contention, reference to material facts may be made which can be stated thus. The property in question is Kothi No. 52, Circular Road, Amritsar, the plot area whereof is 2090 square meters. The area under construction of the main building is 187.50 Sq. meters and the area under servant quarters is 51 Sq. meters and the area under the gate is 26 meters. Total constructed area comes to 264.50 Square meters. The Competent Authority allowed 500 square meters as area. appurtenant to the main building and 500 Sq. meters as an area contiguous to the main building and additional 500 meters as area appurtenant to servant quarters. The petitioners were thus allowed to retain the constructed are a plus 1000 Square meters appurtenant area and 500 meters as contiguous area and then an area of 325 square meters was declared surplus in the hands of the petitioners.
5. Now coming to the contention advanced on behalf of the petitioners, that they were entitled to 1500 meters vacant land over and above the area that the Competent Authority had given an allowance of i.e. over and above the constructed area plus 1000 meters as appurtenant area plus 500 meters as contiguous area, it may be observed that the matter stands concluded by their Lordships in Johnson's case (AIR 1983 SC 1303)(supra) an authority which the petitioner's counsel too has pressed into service in support of his submission. Their Lordships had held that in view of the provisions of sub-section (9) of S. 4 of the Act and the provisions of S. 2(q)(i)(ii) of the Act, the competent Authority while making an allowance for the built up area and the appurtenant land and the contiguous land, has to treat the said area as part of the vacant land while calculating the extent of vacant land held by the owner in question. In other words, what their Lordships had ruled is that notwithstanding the definition of the vacant land is given in Clause (q)of S. 2 of the Act, total area of a plot including the built up area and the area appurtenant thereto and the contiguous area shall be treated as vacant land while calculating the extent of vacant land held by such a person. Sub-section (11).0f S. 4, makes that fact evident, which is in the following terms, had been enacted by the legislature by way of safe guard of, area appurtenant to the constructed area and t contiguous area, being declared as an excess vacant area, by virtue of the provisions of sub-section f9) of S. 4 of the Act:--
"For the removal of doubts it is hereby declared that nothing in sub-sections (5), (6), (7), (9) and (10) shall be construed as empowering the competent authority to declare any land referred to in sub-clause (ii) of sub-clause (iii) of clause (q) of Section 2 as excess vacant land under this Chapter."
Provision of sub-section (11) was enacted with a view to see that the land appurtenant thereto and the contiguous area is never declared as excess vacant land under this Chapter, in the event of the area under construction along with the permissible land appurtenant thereto and the contiguous land happen to exceed the permissible limit of vacant land allowed to the owner under S. 4 of the Act.
6. In view of the ratio of their Lordships judgment, the contention of the learned counsel that the petitioners were entitled to keep 1500 square meters vacant land over and above the area, which had been allowed by the Competent Authority, has no merit.
7. As to the second contention of the learned counsel that the Competent Authority should have made a further allowance of 345 square meters area as the petitioners were not permitted to raise any construction thereto in view of the restriction contained in the development scheme in question, it may be observed that such an area falls within the category of land appurtenant as defined by Clause (g) of S. 2 of the Act and the said section allows land appurtenant only to the extent of 500 square meters, whatever may be the area, which may carry the restrictions regarding raising of construction thereon.
8. For the reasons aforementioned, I find no merit in this petition and dismiss the same, with no order as to costs.