1. The petitioners are intending to purchase survey Nos. 40, 55/1 and 55/2 of village Fajalpur in Baroda District. These lands are situate on the bank of Mahisaaar river and abut on ravines. They are situate on the National Highway from Ahmedabad to Bombay. Sukhabhai Himatbhai, Natwarbhai Shabhai, Balvantbhai Habhai, Kanaivalal Ratilal and Kamalaben widow of Baldevbhai Ratilal are the intending vendors. The lands in question are situate at a distance of 16 Kms. from the limits of Baroda Municipal Corporation. They are, therefore, governed by Gujarat Vacant Lands in Urban Areas (Prohibition of Alienation) Act, 1972. The petitioners applied under sub-section (3) of Section 7 for exempting the lands in question from the provisions of the said Act. That application was rejected by the Collector of Baroda by his order dated l4th April 1974. The petitioners appealed against that order to the State Government. The appeal was dismissed on 14th August 1974.
2. It is that order which is called in question by the petitioners in this petition.
3. Mr. B. R. Shah who appears for the petitioners has contended before me that the refusal on the part of the State Government to grant exemption in respect of the lands in question is contrary to law.
4. In order to examine the contention which Mr. B. R. Shah has raised before me, it is necessary to turn to subsection (3) of Section 7 of the said Act. It was under this sub-section that the petitioners made the -present application to the Collector of Baroda. Sub-section (3) of Section 7 provides as follows:-
'(3) Subject to any rules that may be made in this behalf or to any general or special orders of the State Government, the Collector may, by order in writing, exempt any alienation or other transfer of any vacant land from the provisions of this Act in case the land is to be used for any educational, scientific, industrial or commercial purpose or for such other purpose as may be prescribed.'
The petitioners want exemption of these lands from the provisions of the said Act because they want to establish an industry to manufacture finished goods out of raw materials consisting of by-products supplied by Indian Petro-Chemicals Ltd. It is, therefore, clear that the petitioners want these lands to be exempted from the provisions of the said Act because they want to use them for an industrial purpose. Requirement of sub-section (3) of Section 7 of the said Act is, therefore, satisfied. However, sub-section (3) of Section 7 has been made subject to any rules which the State Government may make in that behalf and also to any general or special orders which the State Government may issue. No. special or general orders made in this behalf have been produced before me. Therefore, I am required to consider only the requirement of the Rules. The State Government has made Gujarat Vacant Lands in Urban Areas (Prohibition of Alienation) Rules, 1972. Rule 5 is the rule which has a bearing on the application for exemption made under subsection (3) of Section 7. Clause (c) of sub-rule (1) of R. 5 deals with a case where 13 vacant land is required for an industrial purpose. It provides as follows:
'The collector shall not exempt under sub-section (3) of Section 7 any alienation or other transfer of any vacant land from the provisions of the Act unless the land is to be used. .. .
(c) for an industrial purpose by an industry established or to be established in the State requiring land for use within one year from the date of the application for exemption for the purpose of an industry already established, or as the case may be, for the purpose of an industry to be established where such expansion programme, or as the case may be, establishment has been approved, by the Central or the State Government, where necessary ... ... ... .... ... ... ... provided that the Collector shall not exempt any alienation or other transfer of any vacant land to be used for a Purpose specified in clause (c) or (d) except with the previous approval of the Government.'
Clause (c) of sub-rule (1) of Rule 5 lays down that the land should be required to be used for an industrial purpose by an industry established or to be established in the State. It is beyond dispute that the Petitioners want to establish an industry in the State and that they want the land for such an industrial purpose. It is not in dispute before me that they would use the land within one year from the date of the application for exemption and establish an industry. Mr. M. B. Shah has, however, raised a contention before me that there is nothing to show that the establishment of this industry has been approved by the Central Government or the State Government. I shall revert to this aspect of the controversy a little later. Ex-facie, therefore, the conditions under which exemption in respect of lands in question is sought under sub-section (3) of Section 7 read with clause (c) of subrule (1) of Rule 5 are satisfied.
5. However, the exemption has been refused on three grounds. Firstly, it has been refused on the ground that the lands in question are likely to fall within the proposed Metropolitan Special control area. The petitioners have averred that Metropolitan special control area is an area where chemical Organic industries and industries based on by-products or Petroleum products are required to be located. This averment made on behalf of the petitioners has not been controverted or denied on behalf of the respondents. It is, therefore clear that if the lands in question fall within the Metropolitan special control area they are much more eminently suited for the purpose of the establishment of an industry which the petitioners want to establish rather than come in way of such a project. It appears to me that the situation of the lands in question within the proposed Metropolitan special control area has been taken into account by the authorities below for a purpose for which it can never be taken into account. I may also state that the Metropolitan plan of the City of Baroda which includes the special control area is still a Proposal. One does not know whether it would be finalised and when, Therefore, in my opinion, it was an error on the part of the authorities below to take into account an uncertain factor and to refuse exemption on that ground. Refusal of exemption on this grounds is, in my opinion, arbitrary.
6. The second factor which has weighed by authorities below is that there are high and low tension power lines laid below the soil in the area. The existence of the high and low tension power lines can at the most subject the petitioners to a condition that nothing will be done by them within such vicinity of those high and low tension power lines as is necessary by which any damage would be caused either to those power lines or to any one or anything else. It cannot be a ground for refusal of exemption in absolute terms. Mr. B. R. Shah tells me that the existence of high and low tension power lines will require the petitioners at the most to leave a margin of 200' from these power lines unused.
7. The third factor which has been taken into account is the existence of the National Highway. The existence of National Highway may create traffic problem and ever increasing traffic may require it to be expanded. However, on this ground exemption cannot be refused in absolute terms. The petitioners may be subjected to a condition of leaving 100' margin from the National Highway unbuilt for the purpose of public safety as well as for the purpose of future development. In my opinion, therefore, the respondents were in error in refusing to grant exemption to the petitioners in respect of the lands in question.
8. It may be noted that this project of establishing an industry by ihe petitioners on the lands in question has been approved by the Gujarat State Financial Corporation. The Industries Officer, Baroda, has also recommended its establishment. It may also be noted that the lands in question abut on the ravines of Mahisagar. If such lands which are otherwise useless are put to a useful purpose and if an industry is established there it will cater to the needs of the starving people. There was, therefore, no reason for the respondents to refuse exemption to the petitioners in respect of the lands in question in absolute terms. They could have subjected them to terms in order to safeguard other interests.
9. For the reasons stated above the orders made by the authorities below cannot be sustained. I, therefore, allow this petition, issue a writ of mandamus directin1z the respondents to cancel the impugned orders and to grant to the petitioners in respect of the lands in question exemption under sub-section (3) of Section 7 of the said Act. I may add that it will be open to the respondents to subject the petitioners to such terms and conditions as are reasonable and necessary for the purpose of protection of high and low tension power lines and for other purposes mentioned in this judgment. It will be open to the respondents to consider whether the permission of the Central Government or State Government is necessary for the purpose of establishing the industry in question and, if it is necessary, whether the petitioner has obtained it. It is needless for me to say that if such a permission is necessary and if the petitioners have not. obtained it, compliance with the writ issued by this Court shall be held up until they obtain such permission. Rule is made absolute with costs.
10. Rule made absolute.