R.R Rastogi, J.:— This petition under Article 226 of the Constitution arises out of proceedings under the Urban Land (Ceiling and Regulation) Act, hereinafter referred to as ‘the Act’. The petitioner, Ved Prakash Gupta, held vacant land in excess of the ceiling limit at the commencement of the Act and he filed a statement under Section 6(1) of the Act wherein he disclosed the following properties as belonging to him:—
(1) plots nos. 777 Ka and 787 Ka in Baralpartapur.
(2) a plot on Meerut-Delhi Road in front of the Plastic of India Factory.
(3) residential house situated at 83/84, Shanti Nagar, Railway Raod, Meerut, in which the petitioner had ⅓rd share and his wife had another ⅓rd share, and
(4) shops nos. 8 and 9, Sarrafa Bazar, Meerut, in which the petitioner had 1 share.
2. It was claimed by the petitioner that the land shown at serial no. 1 was agricultural land and, therefore, was not covered by provisions of the Act. As for the other properties he claimed benefit of land appurtenant. The competent authority determined 12, 364.10 square metres of land as surplus with the petitioner by order dated 22-4-1978. Aggrieved the petitioner-filed an appeal. The learned District Judge, Meerut, found that the residential house was liable to be ignored because after considering the covered area of 554 sqr, meters and after determining land appurtenant to it, there was no surplus land left. As regards shops the entire area was covered and, therefore, the same is liable to be ignored. The total area of plots nos. 777 and 787 and the land in front of the Plastic of India Factory came to 12934.10 sqr meters and it would not be treated as agricultural land because it was included in the Master plan. According to the learned District Judge under Direction 20 of U.P (Regulation of Building Opera-tions) Directions, 1960, the petitioner could make construction only on an area of 7760.46 meters out of the aforesaid total area of 12934.10 sqr. meters, and after deducting 1500 sqr. meters, being the permissible ceiling limit therefrom, the petitioner was found to be in possession of 6260.46 Sqr. meters as surplus land. Aggrieved the petitioner has come up by way of this writ petition before this Court.
3. It was submitted before me on behalf of the petitioner by his learned counsel, Sri V.K Barman, that on the view taken by the learned appellate court the petitioner should have been allowed to retain the aforesaid 7760.46 sqr. meters area in addition to 1500 sqr. meters being the ceiling limit permitted under the Act. On the other hand, the learned Standing Counsel urged before me that the appellate court was not justified in ignoring from consideration the area on which under the Buildings Regulations construction was not permissible.
4. After considering the submissions made before me I find that the view taken by the learned appellate Court is erroneous in law but since the State has not come up by way of writ petition before this Court, it would not be possible to interfere with the order passed by the appellate court. The Act has been enacted with the object to provide for the imposition of a ceiling on vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomerations to subserve the common good. In the first instance it applies to certain States mentioned in sub-section (2) of Section 1, including the State of Uttar Pradesh. The urban agglomerations have been specified in four categories. In the State of U.P the urban agglomerations fall within categories C and D only for which the ceiling limit is fixed at 1500 and 2000 sqr. meters respectively.
5. Section 3 of the Act says that on and from the commencement of this Act no person shall be entitled to hold any vacant land in excess of the ceiling limit to which this Act applies, under sub-section (2) of Section 1. ‘Vacant land’ has been defined in clause (q) of Section 2 to mean: ‘land not being land mainly used for the purpose of agriculture, in an urban agglomeration, but does not include:
(i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated;
(ii) in an area where there are building regulations, the 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 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’.
Proviso (omitted)”
Sub-clause (i) of the above clause alone is relevant for the present purpose and according to it land in an urban agglomeration on which construction of building is permissible under the building regulations in force in the area in which such land is situated will not be treated as vacant land. The definition of the expression land appurtenant' may also be read at this place. It is contained in clause (g) of section 2 and reads:—
‘(g) ‘Land appurtenant’, in relation to any building, means:
(i) in an area where there are building regulations, the minimum extent of land required under such regulations to be kept as open space for the enjoyment of such building, which in no case shall exceed five hundred square metres or
(ii) in an area where there are no building regulation, an extent of five hundred square metres contiguous to the land occupied by such buildings, 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 sub-clause (ii), as the case may be.'
6. The necessity for reading this definition arises for the reason that the petitioner held vacant land and also held other land on which there is a building with a dwelling unit therein. Now, sub-section (9) of Section 4 provides:—
“‘9’ Where a person holds vacantlland and also holds any other land on which there is a building with a dwelling unit therein, the extent of such other land occupied by the building and the land appurtenant thereto shall also be taken into account in calculating the extent of vacant land held by such person.”
7. The scope of this provision came up for consideration before a Division Bench of our Court in State of Uttar Pradesh v. L.J Jhonson, 1978 AWC 731. The first question to which the Bench addressed itself was: whether under Section 2(q)(i) land, which is required to be left open under the municipal bye-laws or the building regulations, falls outside the purview of vacant land and is to be excluded from consideration in addition to ‘land appurtenant’ as defined in Section 2(g). It has been laid down that Section 2(g) overrides the provisions contained in the building regulations and the municipal bye-laws in view of section 42 of the Act. It could not have been the intention of the legislature to provide for five hundred square metres of land as land appurtenant to any building plus an additional five hundred square metres contiguous to the minimum extent referred to in sub-clauses (i) and (ii) of Section 2(g) and over and above that area to provide for land required to be kept as open space under the building regulations. It has been held ‘the provisions contained in clauses (g) and (q) (i) of Section 2 have to be read together and in an harmonious manner to arrive at the correct definition of vacant land. Read in such a light the inference is unavoidable that clause (i) of Section 2(q) is not applicable to land which is required to be left as open space under the municipal bye-laws or the building regulations. Land provided as land appurtenant to the building under the Act takes care of that requirement. Vacant land has to be determined after excluding land covered by the building and the land appurtenant to it.’
8. Coming to Section 4(9) it has been laid down:
“Land covered by the building and land appurtenant to it does not constitute vacant land and there appears to be no justification for taking the aforesaid land into account in calculating the extent of vacant land in a case where the building stands on the same land which is under consideration for determining the extent of the vacant land.'
9. However, where a person holds vacant land and also holds any other land on which there is a building with a dwelling unit therein, sub-section (9) of Section 4 of the Act provides that the extent of such other land occupied by the building and the land appurtenant thereto, shall also be taken into account in calculating the extent of vacant land held by such person.
10. In the present case the petitioner held vacant land which consisted of plots Nos. 777 and 787 and land in front of the Plastic of India Factory and also held land in which there is residential house, and so recourse should have been taken to Section 4(9) of the Act for finding out the extent of vacant land held by him. It was, however, not so done. The residential house and the shops were excluded from consideration for determination of the extent of vacant land and as for the two pieces of vacant land also only so much area thereof on which construction could have been made under the building regulations was taken into consideration by the appellate court and from that after deducting 1500 sqr. meters, the remaining has been held to be surplus with the petitioner. I do not think that the petitioner can be allowed to retain this area of 7760.46 sqr. metres over and above the ceiling limit of 1500 sqr. metres as was contended by the learned counsel for the petitioner. As noted above since the State has not challenged this decision, the court cannot interfere in the order passed by the appellate court. So far as the petitioner is concerned, it cannot be said that the impugned order is, in any way, to his disadvantage. In the result, therefore, the petition has no merit and is dismissed with costs.
11. Petition dismissed.
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