JUDGMENT Sudhir Narain, J.
1. The petitioner has challenged the order dated 22.2.1995 passed by the Prescribed Authority releasing the land in dispute under Section 21 (2) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short 'the Act') and the order of the respondent No. 1 dated 7.3.1998 dismissing the appeal against the aforesaid order.
2. The facts, in brief, are that respondent No. 3 filed an application under Section 21 (2) of the Act against the petitioner claiming release of surplus land in Premises No. 14A Radha Nagar (Delbill Nagar). Mathura on the allegation that the petitioner was a tenant of an accommodation whose covered area was 676 sq. ft. and the total land was 5701 sq. ft. It was further alleged, that the surplus land was needed by her family to raise construction for which she had obtained permission from the Mathura-Vrtndaban Development Authority, Mathura.
3. The petitioner contested the application that the landlady did not require the land to raise any construction for her personal need and there was no surplus land in the tenancy of the petitioner. He further stated that some constructions including Septic Tank, Water Tank, Chabutra, Cow Shed, Coupe for hen, Kitchen. Bathroom and tin-shed, etc. were in his tenancy and they have not been shown in the site plan of the application.
The Prescribed Authority appointed a Commissioner. He submitted a report that the constructed portion was 676 sq. ft. and the total land under the tenancy of the petitioner was 5701 sq. ft. He found that the map has been sanctioned by the Mathura-Vrindaban Development Authority, Mathura and the petitioner was entitled to get release the surplus land. The petitioner preferred an appeal against this order before the District Judge Respondent No. 1 has dismissed the appeal on 7.3.1998.
I have heard Sri Janardan Sahai, learned counsel for the petitioner, and Sri R. S. Chauhan, learned counsel for respondent No, 3.
Learned counsel for the petitioner submitted that the respondents mis-interpreted the provisions of Section 21 (2) of the Act and wrongly declared the land as surplus land. His contention is that the area covered by the constructed portion as well as appurtenant land should be first calculated and double the area of such land should be left to the tenant and whatever remains thereafter, can be declared as surplus land. Section 21 (2) reads as under :
"The Prescribed Authority may on an application of the landlord in that behalf order the eviction of a tenant from any surplus land appurtenant to the building under tenancy if it is satisfied that the land is required for constructing one or more new buildings, or for dividing it into several plots with a view to the sale thereof for purposes of construction of new buildings, and in either case, that the competent authority under any law for the time being in force has approved a plan for the said purpose.
Explanation.--Where the appurtenant land including passage exceeds double the covered area of the building, excess area shall be deemed to be surplus land."
4. The tenant is entitled besides constructed portion the land appurtenant to it for use and occupation of the building. The definition of 'building' under Section 3 (t) is as under :
"Building", means a residential or non-residential roofed structure and includes --
(i) any land (including any garden), garages and outhouses, appurtenant to such building ;
(ii) any furniture supplied by the landlord for use in such building ;
(iii) any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof."
5. The tenant is entitled to land including any garden, garage and outhouses appurtenant to such building. The extent of such land if it exceeds covered area is to be treated as surplus land. The submission of the learned counsel for the petitioner is that the land appurtenant to it and the constructed area should be taken as one unit and double the area from such land [including the land covered by construction and appurtenant land) should be left to the tenant. This submission cannot be accepted. The intention of the Legislature is that a tenant should be provided appurtenant land including any garden, garage and outhouse appurtenant to such building but if the total vacant area exceeds the area covered by construction, that should be declared as surplus, in Jaipal Singh Tyagi v. VIth Additional District Judge and others, 1978 ARC 244, the Court, considering the Explanation to sub-section (2) of Section 21 of the Act, held that the tenant is entitled to vacant land for the purpose of treating appurtenant land only to the extent of the area covered by constructions, in case the constructed area was 50 sq, yards, the tenant is entitled to retain further 50 sq. yards as appurtenant land.
6. The Prescribed Authority has found that the total constructed area is 676 sq. ft. The petitioner is further entitled to 676 sq. ft. The total area is 5701 sq. ft. If the area 1394 sq. ft. is excluded, the surplus land comes to 4307 sq. ft. The landlady had claimed, as shown in the map, the total area of it comes to 4070 sq. ft. which is less than the area according to the Explanation to subsection (2) of Section 21 of the Act. There is no error in the order of the respondents.
7. The next submission of the learned counsel for the petitioner is that the landlady never accepted the petitioner as tenant of the land in dispute, therefore the application under Section 21 (2) of the Act was not maintainable-The landlady in para 2 of the application stated that the petitioner was claiming tenancy of the entire land and therefore, she is filing the application for releasing the land in question as surplus land. The petitioner filed objection to the application and it was stated by him that he was tenant of the entire property. On these assertions, the application under Section 21 (2) of the Act was maintainable.
8. The third submission of the learned counsel for the petitioner is that on the disputed land Septic Tank. Water Tank. Chobutra. Cow Shed, Coupe for hen, Kitchen, Bathroom and tin-shed, etc. were in his tenancy and they should have also been taken as constructed area. It is urged that respondent Nos. 1 and 2 acted illegally in excluding such constructions. The prescribed authority and the appellate authority both have recorded concurrent finding that these constructions were made by the petitioner without the consent of the landlady, in Harisn Chandra and another v. Mohd./small and others. 1990 ALR 914, it was held that if construction has been raised by the tenant on open piece of land, he cannot claim that he is tenant of the building as the landlord had let out open piece of land and not constructed building.
9. The last submission of the learned counsel for the petitioner is that respondent Nos. 1 and 2 have not recorded any finding that if the constructions were raised by the landlady, it will be required bona fide by her. The landlady had stated that she wanted to raise construction over the land in dispute for the need of her family. It was, however, not necessary to record any finding regarding bona fide need of the landlady for constructions. The requirement of bona fide need of the landlord for a building is contemplated under Section 21 (1) (a) of the Act but not under Section 21 (2) of the Act. This view was taken in Sri Jai Pal Singh Tyagi v. Vlth Addl. District Judge and others, 1978 ARC 244, and Shiva Saran Singh v. IIna Addl. District Judge. Sultanpur and others. 1981 ARC 504.
10. in view of the above discussion there is no merit in the writ petition and it is accordingly dismissed.