1. This petition is directed against the order dated 10th March, 1987 passed by the Dy. Secretary to the Govt. of Rajasthan, Urban Development & Housing Department u/s. 34 of the Urban Land (Ceiling & Regulations) Act, 1976 (for short ‘the Act’).
2. Briefly the facts are that the petitioner filed a statement or return as envisaged u/s. 6(1) of the Act read with Rule 3 of the Urban Land Ceiling & Regulations Rules, 1976 on 6th Oct. 1976. Thereafter, survey was conducted under the orders of respondent No. 4 Competent Authority and ultimately the Competent Authority passed the order Ex. 4 dated 9-6-82. The Competent Authority determined the total ceiling area. There are two covered tanks in the petitioner's house known as Rainbow House, Paota, Mandore Road comprised of 4961 square meters including constructed area and open land.
3. The controversy in the present writ petition is very limited in respect of the two tanks. The Competent Officer allowed 500 square meters as land appurtenant to one tank and 200 sq. meters as land appurtenant to another tank. The covered area of the first tank is 20.9 per square meters and of the other tank, the covered area is 11.40 per square meters. Both the tanks are separate and away from the main building. No appeal was preferred before the Appellate Authority. However, the Govt. in exercise of the revisional powers, set aside the order of the Competent Authority and remanded the matter back to the Competent Authority. It was observed in the impugned order Ex. 7 that there is no provision for giving land as land appurtenant to water tanks and Competent Officer has erred in allowing the land as land appurtenant to water tanks treating them as constructed portions. In this view of the matter, the order of the Competent Authority was set aside and he was directed to redetermie the extent of the land appurtenant allowed to very small constructed portion which should not be treated as separate units but as part of the main building.
4. Thus, the question which arises for consideration in this writ petition is as to whether the petitioner can claim land measuring 500 sq. meters and 200 sq. meters as land appurtenant to the two tanks.
5. The expression land appurtenant has been defined in Sec. 2(g) of the Act which reads as under:—
“Land appurtenant”, in relation to any building, means 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; or
(ii) in an area where there are no building regulations an extent of five hundred square meters 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 meters of land, if any, contiguous to the minimum extent referred to in sub-clause (1) or the extent referred to in sub-clause (ii) as the case may be;”
6. The expression dwelling unit has also been defined in Sec. 2(c) which reads as under:—
“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;
7. It may be stated that the expression buildings as such has not been defined, but a dwelling unit in relation to a building or a portion of building may be a unit of accommodation in such building or portion used solely for the purpose of residence and there can be a dwelling unit in a building or a portion of building. In the definition of expression land appurtenant, it would appear that in clause (i) of Sec. 2(g) if 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 would be considered to be land appurtenant but a limit is placed in this definition. It must not exceed 500 sq. meters. It is not in dispute that so far as the present case is concerned, the petitioner has been allowed only 500 square meters as land appurtenant to one tank and 200 squares meters as land appurtenant to another tank and this is because this was the only open land available in the compound of the house.
8. The whole question, therefore, is as to whether the two tanks can be considered as building and on that basis whether the petitioner can claim a land as land appurtenant to the extent mentioned above.
9. Learned counsel for the petitioner supported the petitioner's case by making a reference to a full bench decision of the Allahabad High Court in Agra Concrete Pipe Co. v. The Competent Authority, Agra reported in AIR 1987 All 232. In that case, there were three tanks in the factory building separated by 6-7 feet. The total area of the premises of the factory including the water-tanks was 10881.2 square meters and the Competent Officer after enquiry declared 6771.8186 square meters as surplus land. An appeal was preferred before the District Judge and the learned District Judge held that the tanks are buildings within the preview of the Act and that finding was not challenged before the High Court. The learned District Judge however held that the three tanks are contiguous and 500 square meters land cannot be allowed for each tank. It was this aspect which was under challenge before the High Court. The High Court held that the tanks are separate and they cannot be regarded as three parts of one tank. It was further held that the fact that they are contiguous is no ground to deny the entitlement of appurtenant land in respect of each tank. It may be stated that so far as this finding is concerned, the tanks are buildings was not in dispute and it was conceded by the standing counsel before the Competent Authority. Although, in the aforesaid full bench decision, it has been held that the owner of the property can claim 500 square meters as land appurtenant in respect of each shed when the sheds are contiguous.
10. The question still remains as to whether the tank is a building. As already stated, the expression ‘building’ has not been defined. So we will have to look to the dictionary meaning of the expression ‘building’.
11. In Chambers 20th Century Dictionary the word ‘building’ means anything built, the art of erecting houses. In Webster's Third New International Dictionary the word ‘building’ means a thing built, a constructed edifice designed to stand to more or less permanently, covering a space of land, usually covered by a roof and more or less completely enclosed by walls and serving as a dwelling, store house, factory, shelter for animals or other useful structure distinguished from structures not designed for occupancy (as fences or monuments) and from structures not intended for use in one place (as boats or trailers) even though subject to occupancy.
12. In Law Lexicon Vol. I with regard to the expression building, it is stated as under:—
“The word “building” has not to be defined in the U.P Zamindari Abolition and Land Reforms Act, and must be construed in its ordinary grammatical sense unless there is something in the contest or object of the statute to show that it is used in a special sense different from its ordinary grammatical sense.
“From this definition it does not appear that the existence of a roof is always necessary for a structure to be regarded as a building. Residential buildings ordinarily have roofs but there can be a non residential building for which a roof is not necessary. A large stadium or an open air swimming pool constructed at a considerable expense would be a building as it is a permanent structure and designed for a useful purpose. The question as to what is “building” u/s 9 of U.P Zamindari Abolition and Land Reforms Act must always be a question of degree a question depending on the facts and circumstances of each case.
“Building has two distinct connotations. According to one a “building” is usually understood a structure of considerable size, and intended to be permanent or at least to endure for a considerable time. According to another “building” will mean and include an art of a building “let or to be let separately”.
13. Having regard to the above meaning of the word ‘building’, it would appear that the expression ‘building’ is not confined to a dewlling house but the expression needs to be given an extended meaning to include all constructions of a permanent nature or character, not boundary walls and fences. If the legislature had intended that such structures in the form of tanks etc. are not to be considered building; the matter would have been specifically specified in that form while enacting the defining provision. In the definition of the expression ‘land appurtenant’, there is a simple use of the word building. In our opinion, the word building is a word of wider connotation so as to include anything build, any structure erected which may be of permanent nature except canal, walls fences etc. In this light, in our opinion, the two tanks in the present case would fall within the expression building' and the petitioner can claim 500 sq. meters of land as land appurtenant to each tank. In the light of the above consideration, in our opinion, the view taken by the Dy. Secretary to the Government in Ex. 7 cannot be sustained as the same does not appear to be correct.
14. The learned Deputy Government Advocate submitted that the case was remanded at the instance of the counsel for the petitioner by the Deputy Secretary. It may be so but that is no ground to deny the petitioner his right to present the writ petition on the ground of erroneous view of law. Any concession in the matter of law would not in any way affect the petitioner's right. Therefore, the submission of the learned Deputy Government Advocate has no substance.
15. No other point has been pressed before us.
16. In the result, this writ petition is allowed and the order of the Deputy Secretary to the Government in the Urban Development and Housing Department Ex. 7 dated 10-3-87 is set aside. As a consequence thereof, the order of the Competent Officer stands restored.
Petition allowed.
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