Shri Ambicapratapsinh Sisodia vs Union Of India (Uoi) And R.S. ...
2003 Latest Caselaw 171 Bom

JUDGMENT

R.M. Lodha, J.

1. Heard Mr. Milind Sathe, learned counsel for the petitioner and Mr. R.S. Apte, learned counsel for the respondents.

2. Assailing the order of the Appellate Authority dated 9.08.1991 under Section 33 of the Urban Land (Ceiling and Regulation) Act, 1976 (for short, "Act of 1976"), confirming the order of the Competent Authority dated 8.4.1985 whereby final statement under Section 9 of the Act of 1976 was issued by the Competent Authority, tw ofold submission was advanced by the learned counsel for the petitioner: (i) that under the Building Regulations, the petitioner is required to keep as open space two third of the area of the entire land for the enjoyment of such building and accordingly under Section 2(g)(i), the petitioner is entitled to 500 sq. mts. as land appurtenant to each structure and, therefore, the Competent Authority committed error in declining the petitioner to retain area to that extent and (ii) that the petitioner has already made an application for exemption under Section 21 and in the alternative under Section 20 of the Act of 1976 and, therefore, despite final statement having been made under Section 10 of the said Act, the State Government is bound to consider the said application on its own merits.

3. Benefit of unnecessary details, brief facts leading to the controversy are:

The petitioner is the owners of land admeasuring 17889.38 sq. mtrs. situate at 12-A Lal Bahadur Shashtri Marg, Pune. The said property consists of main bungalow, an outhouse, garage, servant' quarters, godowns, stables etc. According to the petitioner, all these structures admeasure 1642 sq. mts. The land is covered by Building Regulations called "the Scheme of Restrictions". It is the petitioner's case that under the said building Regulations the maximum permissible built up area is restricted to one third of the plot area and consequently two third in unbuildable land is required to be kept as open space and has to be treated as land appurtenant. The petitioner filed a statement under Section 6(1) of the Act of 1976 in respect of the said land. A joint inspection was carried out by the Authority concerned and as per the computation by the Competent Authority, the details of built up area, land appurtenant and additional land appurtenant are as under:

Sr. No. Description of Building Built up area (in sqm.) Land Appur tenant.

(In sqm.) Additional land appur tenant .

(In sq. m. ) Total holding

1. Main Bungalow 584.54 500.00 500.00 17685 sqm

2. Servant Quarters 068.25 232.81 500.00

-

3. Dust Sin.

006.41

-

-

-

4. W.C.

005.48 077.85

-

-

5. Water Tank 002.13

-

-

-

6. Cattle Shed (Residential) 095.40 209.49 500.00

-

7. Trainee's office (Residential).

051 .09 147.43 500.00

-

8. Garage & Servant Quarters.

087.79 190.45 500.00

-

921.09 1358.03 2500.00

4. A draft statement in the aforesaid terms was thus served upon the petitioner by showing the following details:

"Built up area   921.09 sq.m.

Land Appurtenant   1358.03     "

Additional land Appurtenant   2500.00     "

Road of set.

1281.56     "

Total :

6060.68     "

Total Holding   17685.00 sq.m.

minus   6061.00     "

Excess vacant   11634.00     "

5. Pursuant to the draft statement served upon the petitioner, the petitioner appeared before the Competent Authority. The Competent Authority on 8.4.1985 confirmed the draft statement and final statement was issued under Section 9 of the Act. This order of 8.4.1985 was carried in appeal by the petitioner before the Appellate Authority unsuccessfully and the Appellate Authority on 9.8.1991 dismissed the appeal.

6. The Competent Authority in the order dated 8.4.1985 held thus:

" As per the draft statement, the built up area is 921.09 sq. mtrs. If the version of the Advocate that only 1/3rd of the total area of the holding is permitted, then, further an area of 4973.91 sq. mtrs., is possible for construction. The land appurtenant and the additional land appurtenant as per the definition given in Section 2(q)(ii) of the ULC Act cannot be treated as vacant land. Presuming that 2/3rd of the area viz. 11790 sq. mtrs is not to be treated as vacant land appurtenant additional land appurtenant. Hence, while permitting the balance of the 1/3rd area viz., 4973.91 sq. mtrs., for construction purposes, 2/3rd shares of the total holding has to be taken into consideration. While determining 1/3rd are permissible for construction. It is therefore, wrong to say that 2/3rd of the area has to be excused and then out of the 1/3rd area, the built up area, the land appurtenant additional land appurtenant has to be appurtenant additional land appurtenant has to be determined and excess vacant land (out of 1/3 rd area) is to be determined. In support of my above contention, I rely on the following observation made by the Full Bench of the Bombay High Court, in the case of P.N. Pawar v. State of Maharashtra.

"Sub-clause (1) of Section 2(i) does not in our view, contemplate a general exclusion of land from the purview of the Act to the extent of 2/3rd or 1/2 or whatever may be the extent of land on which no building can be constructed under the relevant building regulations in force in the area under consideration; irrespective of whether a building proposed to be constructed or not on the date of commencement of the Act. Further, in para 12, the Full Bench also observed as follows:

Having regard to what we have said earlier we cannot accept the contention of Billimoria case that two thirds of the total area of the land in the instant case will be straightaway liable to be included for the purpose of computation or vacant land and dwelling area.

In view of my above decision, I pass the following Order:-

ORDER.

I, Shri R.G. Sabmnis, DEO(ULC) and Competent Authority for Pune, Kirkee, Dehu Ropad, & Deolali Cantonments hereby order that princess Maheshwari Devi possess excess vacant land in B.No. 12-A Victoria Road, in Pune Cantonment to the extent of 11624 sq. mtrs., and that the excess vacant land will be determined under the provisions of the ULC Act, 1976."

7. Though before the Appellate Authority on behalf of the petitioner the contention was raised that the Competent Authority should have excluded the two third area where buildings are not allowed under Building Regulations and such land must be tested as non-vacant land, yet in the light of the full Bench judgment of this Court in Prabhakar Narhar Pawar v. State of Maharashtra & Anr. 1984 Mh.L.J.63, the learned counsel for the petitioner did not argue this aspect before us and in our opinion rightly so. The contention before us as noted above by the learned counsel for the petitioner is that every structure should be allowed appurtenant land to the maximum extent of 500 sq.mt. under Section 2(g)(i) as two third of total area of land is not buildable under Building Regulations. We are afraid the contention cannot be accepted. Section 2(g) which defines "land appurtenant" reads thus:

"(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 squar 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 no 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."

8. Under Clause (i) of the definition of Section 2(g) as aforenoted, the maximum area of land appurtenant to the extent of 500 sq. mts. can be retained by the holder as land appurtenant in relation to any building where there are building Regulations operative. While computing land appurtenant under Clause (i) what is required to be seen is the extent of land required under Regulations as open space for enjoyment of such building but by doing so the fact that two third of the entire land cannot be built under Building Regulations cannot be imported. The land appurtenant for each building has to be computed on the basis of extent of land required for enjoyment of such building which is required to be kept open space under Building Regulations. Maximum limit of land appurtenant under Clause (i) is 500 sq. meters and if for a building under the building Regulations certain open spaces to be left on the sides of the building and the rear and set off in the front is less than that limit, then only to that extent the building and the appurtenant and thereto shall not be treated as vacant land. Keeping this construction of 2(g)(i) in mind, the computation by the Competent Authority by providing land appurtenant of 232.81 sq. mts., 077.85 sq. mts., 209.49 sq. mts., 147.43 sq.mts. and 190.45 sq. mts. for servant quarters, w.c. cattle shed, Trainees Office and servant quarters respectively cannot be faulted and seems to be in conformity with the legal provisions. Incidentally we may note that the petitioner has been given benefit of additional land appurtenant to the extent of 500 sq. mts. to each of the building viz. Main bungalow, servant quarters, cattle shed (residential), and the garage and servant quarters because they were treated as dwelling units by the Competent Authority. We are not going into the correctness of this aspect as to whether the petitioner was entitled to additional land appurtenant of 500 sq. mts. each for cattle shed, trainee's office and garage and servant quarters, since that is not an issue raised before us. The first contention raised by the learned counsel, therefore, is overruled.

9. As regards the second contention, even the learned counsel for the respondents did not dispute that the application made by the petitioner for exemption under Section 21 and in the alternative under Section 20 of the Act of 1976 deserves to be considered despite the fact that final statement has been notified. As there is no controversy on this aspect, we are satisfied that this aspect needs to be reconsidered by the Secretary, Ministry of Defence, Government of India, New Delhi.

10. Consequently, we dispose of the writ petition by following order:

(i) The Secretary, Ministry of defence, Government of India, New Delhi is directed to consider the petitioner's application dated 5.3.1992 for exemption expeditiously and preferably within four months from the date of receipt of this order. If necessary, the Secretary, Ministry of Defence, Government of India, New Delhi may hear the petitioner in this regard before taking any decision in the matter.

(ii) In the light of the consideration of the petitioner's application dated 5.3.1992 and decision taken thereon by the Secretary, Ministry of Defence, Government of India, New Delhi, the final statement under Section 10 of the Act of 1976 shall be re-notified.

11. No costs.