PETITIONER:
STATE OF U.P.
Vs.
RESPONDENT:
NAND KUMAR AGGARWAL & ORS.
DATE OF JUDGMENT: 19/11/1997
BENCH:
SUJATA V. MANOHAR, D.P. WADHWA
ACT
HEADNOTE
JUDGMENT
THE 19TH DAY OF NOVEMBER, 1997 Present:
Hon’ble Mrs. Justice Sujata V.Manohar
Hon’ble Mrs. Justice D.P.Wadhwa G.K.Mathur, Sr.Adv., Arvind Kr.Shukla, Ashok K.Shrivastava, Advs. with him for the appellant Arun Sikri Sr.Adv., Mrs.Madhu Sikri, V.K.Rao. Advs., with him for the Respondents.
JUDGMENT
The following Judgment of the Court was delivered: D.P. Wadhwa, J.
This appeal is against the judgment of the Allahabad High Court allowing the writ petition filed by the 1st respondent holding that the agricultural land comprised in village Para falling within the boundary of Lucknow Mahapalika was exempt under the Urban Land (Ceiling & Regulations) Act, 1976 (for short ‘the Act’)
Issue involved in this appeal is very narrow, After the enforcement of the Act of February 17, 1976 1st respondent filed return under Section 6(1) of the Act before the Competent Authority constituted under the Act. First respondent gave details of the properties and one such property was land measuring 16 Bighas 1 Biswa 7 Biswansis in village Para. The Competent Authority after examing the return sent a. draft statement to the 1st respondent showing the land in village Para as agricultural land. However, he proposed this land to be surplus land after applying the parameters fixed under the Act. In this appeal we are not concerned with other properties of the 1st respondent.
Against the order of the Competent Authority 1st respondent filed an appeal before the District Judge, Lucknow under Section 33 of the Act who dismissed the appeal. Feeling aggrieved the 1st respondent filed writ petition in the High Court. By the impugned judgment the High Court held that the agricultural land in village Para could not be declared as surplus land and could not be taken into account while determining the ceiling limit. The decisions of the Competent Authority and the District Court were set aside and the matter was remanded back by the High Court to the Competent Authority for determining of surplus land, if any, in the light of the observations and findings recorded in the judgment.
The question that arises for consideration is: was the land in village Para which is subject matter of the proceeding used mainly for agricultural purposes at the relevant time, being the data when the Act came into force? To answer this question we may have to refer to various definitions as contained in Section 2 of the Act relating to master plan (clause h), urban agglomeration (clause n), urban land (clause o), urbanisable land (clause p) and vacant land (clause q). But before that we may refer to an affidavit dated August 13, 1976 filed by the 1st respondent before the Secretary, Local Self Government, Lucknow for the purpose of seeking exclusion of the land in village Para from the "ceiling operations". In this affidavit the 1st respondent stated that he was doing brick kiln business and had his "Bhatta" at village Para, tehsil and district Lucknow and that the brick kiln was covering an area of 16 Bighas 1 Biswa 7 Biswansis out of which brick kiln was actually operating in about 7 to 8 Bighas with brick kiln structure in 2 Bighas and 8 Bighas of land was still available for earth digging for the purpose of brick kiln. 1st respondent further said in this affidavit that the business of brick kiln had been carried out in his family from the time of his father and was one of the chief sources of his livelihood. He said under the Act the area covered by the brick kiln business was not specifically excluded but the Government had power to exempt the same. He further explained that brick kiln business could not be done unless substantial are for digging the earth ad for drying of the manufactured ‘Kachcha’ bricks was available and area was also required for huts of the brick-layers for their residences. Area was also needed for stacking the manufactured bricks. 1st respondent, showed that the land in question was being used mainly for the purposes of brick kiln business. Master plan of Lucknow prepared under the Utter Pradesh Urban Planning and Development Act, 1973 inclusive of the village Para has been brought to the record. It show that the land in question is falling within the limits of Luckow Nagar Mahapalika.
Coming back to the definitions as contained in Section 2 of the Act, which are as under:
"(h) "master plan", in relation to
an area within an urban
agglomeration or any part thereof,
means the plan (by whatever name
called) prepared under any law for
the time being in force or in
pursuance of an order made by the
State Government for the
development of such area or part
thereof and providing for the
stages by which such development
shall be carried out;
(n) "urban agglomeration",-
(A) in relation to any State or
Union territory specified in Col.
(1) of Sch. 1, means,-
(i) the urban agglomeration
specified in the corresponding
entry in Col. (2) thereof and
includes the peripheral area
specified in the corresponding
entry in Col. (3) thereof; and
(ii) any other area which the State
Government may, with the previous
approval of the Central Government,
having regard to its location,
population (population being more
than one lakh) and such other
relevant factors as the
circumstances of the case may
require, by notification in the
official Gazette, notification in
the official Gazette, declared to
be an urban agglomeration and any
agglomeration so declared shall be
deemed to belong to category D in
that Schedule and the peripheral
area therefor shall be one
kilometre;
(B) in relation to any other State
or Union territory, means any area
which the State Government may,
which the previous approval of the
Central Government, having regard
to its location, population
(population being more than one
lakh) and such other relevant
factors as the circumstances of the
case may require, by notification
in urban agglomeration and any
agglomeration so declared shall be
deemed to belong to category D in
Sch. 1 and peripheral area therefor
shall be one kilometre;
(o) "urban land" means,-
(i) any land situated within the
limits of an urban agglomeration
and referred to as such in the
master plan; or
(ii) in a case where there is no
master plan, or where the master
plan does not refer to any land as
urban land, any land within the
limits of an urban agglomeration
and situated in any area included
within the local limits of a
municipality (by whatever name
called), a notified area committee,
a town area committee, a city and
town committee, a small town
committee, a canotment board or a
panchayat,
but does not include any such land
which is mainly used for the
purpose of agriculture.
Explanation, - For the purpose of
this clause and C1. (o).
(A) "Agriculture" includes
horticulture, but does not
include,-
(i) raising of grass,
(ii) dairy farming,
(iii) poultry farming,
(iv) breeding of live-stock and
(v) such cultivation, or the
growing of such plant, as may be
prescribed;
(B) land shall not be deemed to be
used mainly for the purpose of
agricultural, if such land is not
entered in the venture or land
records before the appointed days
as for the purpose of agriculture:
Provide that where on any land
which is entered in the revenue or
land records before the appointed
day as for the purpose of
agriculture, there is a building
which is not in the nature of a
farm-house then, so much of the
extent of such land as is occupied
by the building shall not be deemed
to be used mainly for the purpose
of agriculture:
Provided further that if any
question arises whether any
building is in the nature of a
farm-house, such question shall be
referred to the State Government
and decisions of the State
Government thereon shall be final;
(C) notwithstanding anything
contained in Cl. (B) of this
explanation, land shall not be
deemed to be mainly used for the
purpose of agriculture if the land
has been specified in the master
plan for a purpose other than
agriculture;
(p) "urbanisable land" means land
situated within an urban
agglomeration, but not being urban
land;
(q) "vacant land" means 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 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
not building regulations, the land
occupied by any building which has
been constructed before, or is
being constructed on, the appointed
day and the land appurtnant to such
building:
Provided that where any person
ordinarily keeps his cattle other
than for the purpose of dairy
farming or for the purpose of
breeding of live-stock, on any land
situated in a village within an
urban agglomeration (described as a
village in the revenue records),
then, so much extent of the land as
has been ordinarily used for the
keeping of such cattle immediately
before the appointed day shall not
be deemed to be vacant land for the
purpose of this clause."
In the master plan the area in question is no doubt shown as agriculture. If we refer to the Schedule mentioned in the definition of urban agglomeration it could be seen that area in question falls within urban agglomeration as it is situated within the peripheral area of the Municipal Corporation of Lucknow (Lucknow Nagar Mahapalika). the land is question will not be urban land if though situated within the limits of an urban agglomeration, it is mainly used for the purpose of agriculture. Operating of a Bhatta cannot certainly be an agriculture purpose, Mr. Rohtagi, learned counsel for the 1st respondent submitted that Explanation to clause (o) shows as what is not included in agriculture and since Bhatta is not one of the entries therein it would mean that operating Bhatta would be an agriculture purpose. We do not find any substance in the submission. It is correct that the land in question is entered in the revenue record but at the same time is entered shows that the land is being used for Bhatta. The foremost question is: if the land in question though agriculture was being mainly used for the purpose of agriculture was being mainly used for the purpose of agriculture on the appointed day? Seeing the definitions as set out above and the affidavit of the 1st respondent that the land in question is not being mainly used for the purpose of agriculture. Agriculture under the explanation to clause (o) has limited meaning. It includes horticulture but does not include cultivation of every type of vegetation or rearing of animals or birds. That apart to hold land is mainly used for the purpose of agriculture it is not enough even if the land is entered in the revenue records before the appointed day used for the purpose of agriculture or even if so entered the master plan gives purpose of the land other than agriculture. In the present case though (B) and (C) to the explanation are satisfied but (A) is not as the purpose to which the land, though agriculture and so entered in the revenue records, was being used for running of brick- Kiln. High Court was not, therefore, correct in holding that the land was being mainly used for the purpose of agriculture merely on the strength of the purpose in master plan which is specified as agriculture (Krishi Bhumi) and that the land is entered in the revenue records. High Court has wrongly applied Explanation B to clause (o) of Section 2 of the Act. Simply because land is entered in the revenue record would not mean that it is being used mainly for the purpose of agriculture. Here the land is mainly for the purpose of brick kiln business of the 1st respondent. It is not material if a small portion of the land was being used for the purpose of agriculture as well.
Accordingly, the appeal is allowed, the impugned judgment of the High Court is set aside and that of the Competent Authority and the District Judge restored to the extent that the land in village Para is not exempt from the provisions of the Act and could be taken into account while determining the ceiling limit under the Act. There will be no order as to costs.