ORDER
1. This is a petition filed under Art. 226 of the Constitution of India for issue of a writ of mandamus of any other appropriate writ or order or direction declaring the order dated 1-10-1987, passed by the 2nd respondent, declaring 6,077-49 square Meters of land as surplus holding in the hands of each of the petitioners under S. 9 of the Urban Land (Ceiling and Regulation) Act, 1976 (Act No. 33 of 1976), hereinafter referred to as 'the Act', and the order dated 14-12-1988, passed by the 1st respondent, affirming the order of the 2nd respondent, as unconstitutional, illegal and arbitrary.
2. The facts giving rise to the filing of the above writ petition do not admit of any controversy and may be briefly stated : The petitioners, four in number, are co-sharers of three different properties, more fully set out in the declaration submitted by them under S.6(1) of the Act. Of the three different properties in respect of which the declaration was submitted, two are vacant lands, situate at Yellareddyguda and Karvan Graveyards. The first property, bearing Municipal Nos. 8-3-948 and 949, situate at Ameerpet, consists of two buildings, two sheds, three quarters intended for servants, one garage and one swimming pool. The surplus holding in respect of the first property, determined by the 2nd respondent in 5,673-63 Square Meters. The total extent of the second property, covered by Survey No.14 of Yellareddyguda, is 20,639-10 Square Meters. The whole of it was determined by the 2nd respondent as surplus land in the hands of allthe petitioners put together. The third property was excluded from the holding of the petitioners on the ground that it was wakf property. The order passed by the 2nd respondent was mechanically confirmed by the 1st respondent,
3. Aggrieved by the same, the above writ petition was filed.
4. Sri T. Dasaradharamayya, learned counsel appearing for the petitioners, submits that both the respondents were in error in not granting to the petitioners various allowances permitted under the Act in respect of various structures forming part of the first property and that both the authorities below also committed an error in treating the second property, situate at Yellareddyguda as vacant land.
5. I shall not deal with the property situate at Yellareddyguda. As already stated, this property is 20,630-10 Square Meters in extent. It is the definite case of the petitioners that the entire land is water-logged, that no constructions on the said land are permissible, that in fact permission sought from the Municipal Corporation of Hyderabad for raising structures on the said land was refused and that the same should not be treated as vacant land. Reliance is placed on the letter dated 28-4-1982, addressed to the petitioners by Bhagyanagar Urban Development Authority, now known as Hyderabad Urban Development Authority, in response to their application dated 16-4-1988 and the contents of the letter may be usefully extracted :
'With reference to your application cited, I am to state that the site in respect of S.No.14 of Yellareddyguda, Hyderabad, falls in water stagnated area (pits) as per the existing land use plan for Zone No. IV.'
Reliance is also placed upon the following communication dated 1-2-1983, addressed by the Special Officer of the Municipal Corporation of Hyderabad to the petitioners in response to their application dated 28-4-1982 seeking permission for raising constructions on the land in question:
'With reference to your application abovecited, I am to inform you that the site in respect of S.No.14 of Yellareddyguda falls in water stagnated area as per the existing land use plan for Zone No.IV.
In the light of the orders in Lr. of B.D.A., bearing No. 3703/PD-II/BDA/82, dated 28-4-1982, the permission for building construction in S.No.14 of Yellareddyguda, cannot be granted as the said land being the water logged throughout the year and there is no provision to out let the same.'
6. It may be thus noted that as early as on 1-2-1983 the Special Officer of the Municipal Corporation of Hyderabad refused to grant permission to the petitioners for raising structures on the land covered by Survey No.14 of Yellareddyguda on the ground of the said land being water logged throughout the year. The 2nd respondent, however, chose to rely upon the latter communications received from the Hyderabad Urban Development Authority and the Municipal Corporation of Hyderabad in response to her querries without notice to the petitioners. In the impugned order of the 2nd respondent it is stated that the Vice-Chairman of the Hyderabad Urban Development Authority informed the 2nd respondent that the use of the land in question was earmarked as 'commercial park/play ground'. It is also stated in the impugned order of the 2nd respondent that the Commissioner, Municipal Corporation of Hyderabad, by his letter dated 10-12-1986 informed the 2nd respondent that the land in question was needed by the Municipal Corporation of Hyderabad for development of park/play ground under the Green Belt Programme. In the communication dated 23-8-1986, addressed to the 2nd respondent by the Hyderabad Urban Development Authority, a request was also made to the 2nd respondent not to rely upon its earlier communication in respect of use of the land in question. It is obvious that both the latter communications from the Hyderabad Urban Development Authority and the Municipal Corporation of Hyderabad were procured by the 2nd respondent for the purpose of denying the statutory benefits to the petitioners and that both the authorities, viz., HyderabadUrban Development Authority and Municipal Corporation of Hyderabad, issued the latter communications, relied upon by the 2nd respondent, without notice to the petitioners and obliged the 2nd respondent. I must, however, observe that the genuineness of both the communications, relied upon by the petitioners, is not doubted. Only a feeble suggestion was made in the impugned order of the 2nd respondent that no originals of the communications received by both the authorities are filed. In fact, it is noticed from the order of the 2nd respondent herself that she was requested by the Hyderabad Urban Development Authority not to act upon its earlier communication. No reliance can, therefore, be placed upon the latter communications of the Hyderabad Urban Development Authority and the Municipal Corporation of Hyderabad. In any event, it may be noted that both the authorities, viz. Huda and Mch., resiling from their earlier stand, stated that the land in question was needed for park/ play ground under the Green Belt Programme.
7. In State v. Radha Raman Agarwal (FB), : AIR1987All272 (FB) while adverting to the scope of Cls. (i) and (ii) of S.2(q) of the Act, a Full Bench of the Allahabad High Court held : (at p. 272):
'Clauses (i) and (ii) of S.2(q) providing for exclusion of vacant land from provisions of Act are not overlapping. They are matually exclusive. They deal with the different categories of land. Cl.(1) refers to land on which construction of a building is not permissible at all either under the building regulations or under the Master Plan. The prohibition as to construction must, however, be absolute, like the land covered by Green belt area or plot preserved for green park or playground...'
It, therefore, follows that even assuming that the land in question could be utilised for play ground/park under the Green Belt Programme, as suggested by the Hyderabad Urban Development Authority and the Municipal Corporation of Hyderabad, the same cannot be treated as vacant land for the purpose of the Act. Both the authorities are, therefore, in an error in including the landcovered by Survey No.14 of Yellareddyguda in the holding of the petitioners.
8. I shall now advert to the submissions made by the learned counsel for the petitioners in respect of the first property covered by Municipal Nos. 8-3-948 and 949, situate at Ameerpet. As already stated, this property consits of two buildings, two sheds, three quarters intended for servants, one garage and one swimming pool.
9. Sri T. Dasaradharamayya, learned counsel appearing for the petitioners, complains that both the main buildings were erroneously treated by the 2nd respondent as non-dwelling units. It is noticed from the impugned order of the 2nd respondent herself that one portion of each building is being used for residential purposes of the officers of the Fire Service Department to which both the buildings were let out. Sri Dasaradharamayya, therefore, pleads that in respect of the said two buildings the petitioners should have been granted allowance of 1,000 Square Meters each by way of appurtenant land as provided under S. 2(g)(ii) of the Act. S.2(g)(ii) of the Act reads thus:
Section 2(g). 'land appurtenant' in relation to any building, means-
(i) xx xx xx
(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 sub-clause (ii), as the case may be.'
Admittedly both the building, treated as non-dwelling units by the 2nd respondent, were constructed before the Act came into force. Also admittedly portions of both the buildings are being used for the purpose of residence of the officers of the Fire Service Department. In terms of S.2(g)(ii) of theAct the petitioners should have been granted an allowance of 1,000 square meters in respect of each of the buildings.
10. Sri T. Dasaradharamayya, learned counsel appearing for the petitioners, next contends that no allowance whatsoever was given by the 2nd respondent in respect of the two sheds, erected by the Fire Service Department before the Act came into force for running an automobile work shop. Allowance prayed for by the petitioners was refused on the ground that the sheds were unauthorised structures. It is not denied that the sheds are not buildings. The ground of refusal to grant allowance to the petitioners in respect of the sheds, it is urged by Sri Dasardnaramayya, learned counsel appearing for the petitioners, is wholly untenable. Reliance is placed upon the decision in M/s. Agra Concrete Pipe Co. v. Competent Authority, Agra (FB), : AIR1987All232 wherein a Full Bench of the Allahabad High Court held that the entitlement of appurtenant land would not depend upon the conformity of the structure, with building regulations. In other words, once there are structures put up by the declarant before the Act came into force, the declarant would be entitled to the statutory allowance irrespective of the fact whether the structures are authorised or unauthorised. Respondents 1 and 2 should have, therefore, granted an allowance of the total plinth area of the two sheds and an additional area of 1,000 Square Metres towards appurtenant land.
11. Sri T. Dasaradharamayya, learned counsel appearing for the petitioners, next contends that both the authorities unjustly referred to grant allowance in respect of three quarters intended for servants admittedly built long before the Act came into force. That the three quarters intended for servants are distinct and separate is also not challenged. In In Re. St. Peter The Great, Chichester, 1961 (2) All ER 513 Chancellor Buckle pointed out three tests to decide whether a particular structure is 'building' or not:
(i) would an ordinary man think that the structure was a building?
(ii) has the relevant structure four waits and a road? and
(iii) can anyone say that the structure was built?
These three tests were accepted by the Allahabad High Court as reasonable in Newand Ram v. Gaon Samaj, 1961 ALJ 910 (913, 914). Applying these tests, a roofed structure having four walls will be 'building' if an ordinary man would think that the structure was a building and if anyone could say that the structure was built (i.e., constructed). Thus a servant quarter or cut-house etc., situated apart from the main building, will be a 'building' in its own right (apart from the main building). This conclusion finds support from the view expressed by life Allahabad High Court in State of Uttar Pradesh v. L.J. Jhoson, 1978 AWC 731 (734, Para 5) that a servant quarter or out-house will be entitled to land appurtenant under S.2(g) of the Act apart from the land appurtenant left with the main building. It was held:
'The definition of the word 'land appurtenant' further indicates that if there are more than one dwelling units constructed on the same plot of land, land appurtenant to each dwelling unit has to be taken into consideration in determining the area of the vacant land. Even if the dwelling unit is in the nature of a servant quarter or out-house, land appurtenant to it shall have to be left apart from the land appurtenant to the main building.'
It is submitted that as the word 'building' has not been defined in the Act, the term must be understood in the comprehensive sense in which it is understood in urban areas (just as the term 'buildings' in S.9 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, should be understood in the sense in which it is understood in the rural areas). As such, not only roofed structure will be building, but whatever goes with or is considered to be part of 'building' is also included in the term 'building'. Thus portico, drive-way or approach road, chabutra, court-yard, garage etc., are included in the term 'building',as these are incidental to or a portion of the building. (See: State of U.P. v. Smt. Ram Sri, : AIR1976All121 . This conclusion appears to be supported by the Act also. Under the Act subject to S.4(9), ceiling is imposed on vacant land. Building and land appurtenant thereto are excluded from the purview of 'vacant land' under S.2(q) of the Act. The words 'vacant land' indicate that the building (i.e., roofed structure) and things which go with, or, are part of building, are excluded from the purview of the Act, i.e., these are included in the term 'building'. The petitioners shall, therefore, be entitled to the benefits provided under S.2(q) of the Act and should have been granted an allowance of 500 square metres in respect of each of the quarters. Relying upon the instructions received from the Government, the respondents erroneously granted an allowance of 500 Square Meters only.
12. Sri T. Dasaradharamayya, learned counsel appearing for the petitioners, also submits that in respect of the swimming pool, forming part of the property, no allowance was granted by the respondents. It is rightly urged by the learned counsel that swimming pool is also a building within the meaning of the Act. In fact, in M/s. Agra Concrete Pipe Co. v. Competent Authority, Agra (supra) the Full Bench of the Allahabad High Court held that water tanks were structures entitled to allowance under S. 2(q)(i) of the Act. Both the respondents were, therefore, in error in not granting allowance of 500 square meters to the petitioners on that count.
13. Sri T. Dasaradharamayya, learned counsel appearing for the petitioners, lastly submits that both the respondents also committed an error in not granting allowance to the garage on the ground that it was part of the main building. It is nowhere stated in the impugned order that the garage forms part of the main building. The garage is entirely a different structure situate slightly away from the main building. The petitioners would, therefore, be entitled to an allowance of 500 square metres on this count.
14. It, therefore, follows that both the respondents should have granted an allowance of 26,312-73 square metres to thepetitiners in which case the petitioners would be left with no surplus land at all. I, therefore, quash the impugned orders passed by both the respondents.
15. The writ petition is accordingly allowed. No costs. Advocate's fee Rs.500/-.
16. Petition allowed.