STATE OF U.PversusNAND KUMAR AGGARWAL AND ORS.

                      STATE OF U.P                                              A
                           v.
               NANDKUMARAGGARWALANDORS.

                          NOVEMBER 19, 1997

         [SUJATA V. MANOHAR AND D.P. WADHWA, JJ.]                               B


      Urban land (Ceiling & Regulations) Act, 1976-Ss. 2, 6 (I), 33 Claim
for exemption from ceiling as being agricultural land-It is actual use of the
land on the relevant date.. that would decide its status as agricultural or C
otherwise-Though revenue records showed it as agricultural land and as
per the master plan it was to be for agriculture, it was used for brick making
on the date on which the Act came into force, and therefore cannot be
exempted-It is the main use that will decide the actual nature of the land
even if a portion is used for agricultural-land within an urban agglomeration
will not be 'urban land' if used for agricultural purposes.                    D
     The question involved in this appeal by the State is, whether the lands
in question which were actually used for brick making but entered in
revenue records and stated purpose of which in the master plan was
agriculture, could be exempted from ceiling under the Urban Land (Ceilings
Regulations) Act. The Competent authority and the District Judge, on appeal,    E
had refused exemption from ceiling, but the High court, relying on the
revenue records and the stated purpose in the Master plan, held that it was
agricultural land and therefore. not subject to ceiling.

      Allowing the appeal, this Court

       HELD: 1. High Court was not correct in holding that the land was         F
being mainly used for the purpose of agriculture merely on the strength of
the purpose in the 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 Urban ceiling
Act. Simply because land is entered in the revenue record would not mean        G
that it is being used mainly for the purpose of agriculture. Here the land is
mainly usedJor the purpose of brick kiln business of the first respondent.
It is not material if a small portion of the land was used for the purpose of
agriculture as well. (235-D-F(
     2. An affidavit was filed by the first respondent before the Secretary,    H
                                     229
    230                     SUPREME COUP-T REPORTS [1997] SUPP. 5 S.C.R.

A   Local Self Government, Lucknow for the purpose of seeking exclusion of the
    land in village Para from the ceiling 'operations'. This affidavit of the 1st
    respondent showed that the land in question was being used mainly for the
    purpose of brick kiln business. In the master plan the area in question is
    no doubt shown as agriculture. From the schedule mentioned in the definition
B   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 Naga;- Mahapalika). The land
    in question will not be urban land though situated within the limits of an
    urban agglomoration, if it is mainly used for the purpose of agriculture.
    Operating of a Bhatta cannot certainly be an agriculture purpose.
C                                                               1231-G; 234-G-Hj

         3. It is correct that the land in question is entered in the revenue
    record but at the same time the record shows that the land is being used for
    Bhatta. The foremost question is whether the land in question though
    agricultural was being mainly used for the purpose of agriculture on the
D   appointed day Seeing the definition and the affidavit of the 1st respondent
    dated August 13, 1976 the answer is obvious that land in question is not
    being used for the purpose of agriculture. 1235-BI

          4. Agriculture under the explanation to clause (o) has a limited.
    meaning. It includes horticulture but does not include cultivation of every
E   type of vegetation or rearing of animals or birds. That apart, to hold that land
    is mainly used for the purpose of agriculture it is not enough even ifthe land
    is entered in 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 (A) is not, as the purpose to which the land, though
F   agriculture and so entered in the revenue records, was being used for
    running of brick-kiln. 1235-C-DI

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7168 of 1996.

         From the Judgment and Order dated 20. IO. 89 of the High Court in W.P.
G   No. 1242of1986.

          G. K. Mathur, Arvind Kr. Shukla and Ashok K. Shrivastava for the
    Appellant.

          Arun Sikri, Mrs. Madhu Sikri and V.K. Rao for the Respondents.

H         The Judgment of the Court was delivered by



                                                                                       f
               SATE v. N.K. AGGARWAL [D.P. WADHWA, J.]                        231
      D.P. WADHWA, J. This appeal is against the judgment of the Allahabad            A
High Court allowing the writ petition filed by the I st 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, I 976 (for short 'the Act').
       Issue involved in this appeal is very narrow. After the enforcement of         B
the Act on February 17, 1976 !st respondent filed return under Section 6(1)
of the Act before the Competent Authority constituted under the Act. First
respondent gave details of his properties and one such property was land
measuring 16 Bighas I Biswa 7 Biswansis in village Para. The Competent
Authority after examining the return sent a draft statement to the Ist
respondent showing the land in village Para as agricultural land. However, he         c
proposed this land to be surplus land after applying the parameters fixed
under the Act. Jn this appeal we are not concerned with other properties of
the I st 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             D
dismissed the appeal. Feeling aggrieved the I st respondent filed writ petition
in the High Court. By the impugned judgment the High Court held that the
agricultur?I 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
                                                                                      E
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 consic1eration 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 date when the Act came into force? F
  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 I st respondent before the Secretary, Local Self G
 Government, Lucknow for the purpose of seeking exclusion of the land in
  village Para from the "ceiling operations". In this affidavit the Ist 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 l 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 H
    232                     SUPREME COURT REPORTS 11997] SUPP. 5 S.C.R.

A Bighas of land was still available for earth digging for the purpose of brick
  kiln. 1st respondent further said in this affidavit that 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
B had power to exempt the same. He further explained that brick kiln business
  could not be done unless substantial area for digging the earth and 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. Ist respondent, therefore, prayed that his
  'Bhatta' land which was in Chak No. 1341 in village Para be ordered to be
C excluded from the ceiling area. This affidavit of 1st respondent showed that
  the land in question was being used mainly for the purpose of brick kiln
  business. Master plan of Lucknow prepared under the Uttar Pradesh Urban
  Planning and Develpoment Act, 1973 inclusive of the village Para has been
  brought to the record. It shows that the land in question is falling within the
   limits of Lucknow Nagar Mahapalika.
D
         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
E           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 agglo111eration" ,-
                (A) in relation to any State or Union territory specified in Col. (1)
F           of Sch. I 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
G           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 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 therefore
H


                                                                                        r
            shall be one Kilometre;
      SATE v. N.K. AGGARWAL [D.P. WADHWA, J.]                        233

    (B) in relation to any other State or Union territory, means any        A
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, declare to be an urban agglomeration and any
agglomeration so declared shall be deemed to belong to category D           B
in sch. I and peripheral area therefore shall be one kilometre;

(0) "urban land" means,-

   (i) any land situated within the limits of an urban agglomeration
and referred to as such is the master plan; or
                                                                            c
    (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 cantonment board or a panchayat,       D
but does not include any such land which is mainly used for the
purpose of agriculture.
Explanation. - For the purpose of this clause and Cl. (0),-
(A) "agriculture" includes horticulture, but does not include,-             E
(i) raising of grass,
(ii) dairy farming,
(iii) poultry farming,
(iv) breeding of live-stock, and                                            F
(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 agriculture, if such land is not entered in the revenue or land
records before the appointed day as for the purpose of agriculture: G

    Provided 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:                                                           H
    234                      SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A               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 the decision 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
B          purpose of agriculture ifthe 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;

c              (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 such land
            is situated;
D
                (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

E               (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:

                Provided that where any person ordinarily keeps his cattle, other
            than for the purpose of dairy fanning or for the purpose of breeding
F
            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."
G        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 in question will not be urban land if
  though situated within the limits of an urban agglomeration, it is mainly used
H for the purpose of agriculture. Operating of a Bhatta cannot certainly be an
             SATE v. N.K. AGGARWAL [D.P. WADHWA, J.]                    235
agriculture purpose. Mr. Rohtagi, learned counsel for the I st respondent A
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 Bhatia 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 the record shows that the land is
being used for Bhatta. The foremost question is: if the land in question B
though agricultural 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 I st respondent dated August 13, 1976 the answer is obvious 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
ho1ticulture but does not include cultivation of every type of vegetation or C
rearing of animals or birds. That apart to hold that 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 D
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 E
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 used 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.
                                                                               F
      Accordingly, the appeal is allowed, the impugned judgment of the High
Court is set aside and that of 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 Jim it under the Act. There will be no order as to costs.
                                                                               G
l.M.A                                                       Appeal. allowed.