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TMI Blog1983 (9) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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. 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 auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 contig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts, 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 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 en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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