THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT APPEAL No.1479 of 2004 Dated:12.09.2011 Between: Mr.Pradeep Kumar Dev .. Appellant And Visakhapatnam Urban Development Authority, Visakhapatnam, represented by its Vice Chairman and others .. Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT APPEAL No.1479 of 2004 JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao) The writ appeal is by the petitioner against the in limini dismissal order passed by the learned Single Judge. The petitioner, statedly, is the owner of ancestral property admeasuring Acs.09.40 cents in T.S.No.125, Block No.16 (part) of Visakhapatnam. The property jointly belongs to V.Chandra Chudamani Dev - father of the petitioner, and his family members. After coming into force of the Urban Land (Ceiling and Regulation) Act 1976 (the ULC Act), the petitioner and his family members filed declarations under Section 6(1) of the ULC Act being C.C.No.2449 of 1976 etc., declaring their respective shares of land in T.S.No.125. The Special Officer and Competent Authority (SO) under the ULC Act enquired into the same and issued a notice under Section 8(3) of the ULC Act along with the preliminary draft statement under Section 8(1) of the ULC Act inviting objections from the petitioner and others. On the ground that the objections were not filed, the final statement under Section 9 read with 8(4) of the ULC Act was issued followed by declarations under Sections 10(1) and 10(3) of the ULC Act, as well as notice under Section 10(5) of the ULC Act taking possession under Section 10(1) of the ULC Act. The petitioner and 11 others filed writ petition being W.P.No.4398 of 1996 against respondents 1 to 3 herein. It is necessary to notice that an extent of 5,000 sq. metres was allegedly utilized by the first respondent, namely, Visakhapatnam Urban Development Authority (VUDA) for the purpose of laying a road. This happened immediately after issuance of final statement in the earlier round. Be that as it is, presumably for this reason the petitioner contended that 5,000 sq. metres is the land on which no building is permissible and, therefore, it is not a vacant land. By an order dated 01.05.1997 this Court disposed of W.P.No.4398 of 1996 directing the SO to consider the objections raised by the petitioners within two months from the date of receipt the said order. In obedience thereto, the SO passed orders on 07.12.2001 determining the vacant land in excess of the ceiling limit under the ULC Act. While doing so, the SO excluded an extent of 5,000 sq. metres covered by 100 feet wide Master Plan road from the holding of the family members of Late V.Chandra Chudamani Dev. The petitioner made a representation on 15.05.2002 requesting the VUDA for payment of compensation for 5,000 sq. metres, which was earmarked for the road in the Master Plan and which was allegedly used for laying down the road. As there was no response, he filed W.P.No.14989 of 2004 praying this Court to issue a writ of mandamus directing the respondents to pay compensation by initiating appropriate proceedings. The learned Single Judge dismissed the writ petition at the admission stage observing as under. Learned counsel for the petitioner contends that once the land cannot be treated as vacant land as held by the competent authority, petitioner still continues to the owner, but he cannot be deprived of the said land without being paid the compensation. In view of the same, respondents occupation of petitioner’s property over an extent of 5,000 sq. mts. by the respondents without acquiring and paying compensation is unauthorized, illegal and violative of Articles 14 and 300-A of the Constitution of India. I see no force in the submission made by the learned counsel for the petitioner. The petitioner cannot have an advantage of excluding the lands from the ceiling on the ground that the lands were taken possession of by the respondents for the purpose of roads which cannot be computed to his holding as vacant land and the same has to be excluded from his holding. After obtaining benefit of such exclusion, he cannot turn around and say that he is entitled for compensation for the lands which were excluded from holding were in possession of the respondents. The very filing of writ petition and submission made by the petitioner’s counsel that the respondents possession is unauthorized, is nothing but speculative in nature. In this appeal, the Senior Counsel for the appellant submits that the land on which construction of a building is not permissible as per the building regulations in force in the area cannot be treated as a vacant land for the purpose of the ULC Act and, therefore, the same cannot be treated as within the holding of the petitioner and his family members. When once the land does not form part of the vacant land, it is non-surplus holding and if the same is utilized by VUDA, the petitioner cannot be deprived of the compensation. Mere exclusion of the land from the holding of the petitioner and others does not divest them of their title and their deprivation without paying compensation is unconstitutional. VUDA has not filed any counter affidavit before the learned Single Judge or in the writ appeal. The Standing Counsel for VUDA submits that as the land is earmarked for road in the Master Plan, VUDA is entitled to develop the same. ULC Act is a regulatory legislation for imposition of ceiling on vacant land in urban agglomerations. The purpose is to prevent concentration of urban land in the hands of a few persons resulting in speculation and profiteering. Section 3 of the ULC Act declares that no person shall be entitled to hold any vacant land in excess of the ceiling limit as prescribed in Section 4. Section 5 renders any transfer of vacant land in excess of ceiling limits by way of sale, mortgage, lease or otherwise, null and void. Section 6 requires every person holding vacant land in excess of the ceiling limits to file a statement before the competent authority specifying the location, extent, value and other particulars as may be prescribed. Section 8 of the ULC Act empowers the SO to determine the land in excess of ceiling limits after conducting enquiry in accordance with the provisions of the ULC Act. After determination of the excess vacant land as per Sections 8(4) and 9 of the ULC Act, the land has to be acquired and taken possession in accordance with the provisions contained in Sections 10, and 11 of the ULC Act. Thus, Sections 4 to 10 of the ULC Act specifically refer to vacant land and not urban land or agricultural land. If the land in urban agglomeration cannot be treated as urban land under Section 2(o) of the ULC Act and also as vacant land for the purpose of Section 2(q) of the ULC Act, the same cannot be included in the holding of a declarant. As per Section 2(o) of the ULC Act, “urban land” means any land situated within the limits of an urban agglomeration and referred to as such in the Master Plan; if there is no Master Plan or the land is not referred to as urban land in the Master Plan, any land within the limits of an agglomeration and situated in any area included within the local limits of a Municipality, a notified area committee, a town area committee, a city and town committee, a small town committee, a cantonment board or a panchayat, shall be urban land, but if the land is used mainly for agriculture purpose, it shall not be considered as urban land. Section 2(q) of the ULC Act defines “vacant land” as under. Vacant land means, land, not being 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. A plain reading of the above would show that the land in an urban agglomeration, which is not mainly used for the purpose of agriculture, shall be vacant land. There are, however, three exceptions to this. Firstly, if the construction of a building is not permissible under the building regulations in force in the area in which it is situated the land cannot be vacant land. Secondly, in an area where there are building regulations, the land occupied by any building which has been constructed before the appointed day and the land appurtenant to such building and, thirdly, even if there are no building regulations, the land occupied by any building which has been constructed before coming into force of the Act and the land appurtenant thereto. The petitioner contends that an extent of 5,000 sq. metres in T.S.No.125, Block No.16 (part) of Visakhapatnam was earmarked for 100 feet wide Beach road. The petitioner also relies on the order dated 07.12.2001 under Section 8(4) of the ULC Act passed by the SO for this purpose. A perusal of the same would show that an extent of 10,157.20 sq. metres is covered by 100 feet wide Beach road laid down by VUDA in the year 1980 having been earmarked for road in the Master Plan prepared by the then Town Planning Trust vide Map No.4, TP.No.59/65. Out of this an extent of 5078.60 sq. metres devolved on the family members of late V.Chandra Chudamani Dev. The SO, for this reason, excluded 5,000 sq. metres as it was earmarked for road in the Master Plan. When the land owned by a declarant situated in the urban agglomeration cannot be considered as a vacant land, the declarant is entitled to seek its exclusion from the holding. It will be free from all encumbrances and if the land is taken by VUDA the person deprived of the land is entitled for compensation. We however hasten to add that it is a question to be gone into after the respondents filed their counter affidavits. As the writ petition was dismissed at the admission stage, we are inclined to allow the writ appeal setting aside the order of the learned Single Judge and remand the matter for fresh disposal after VUDA and other respondents file their counters. The writ appeal is accordingly allowed and the matter shall stand remitted to learned Single Judge for fresh disposal. There shall be no order as to costs. ________________ (V.V.S. RAO, J) ___________________ (K.G.SHANKAR, J) 12.09.2011 KH