N.H. Bhatt, J.
1. This is a petition by a citizen who presently is the sole proprietor of a piece of land bearing Final Plot No. 348/A+B admeasuring roughly 3,730.20 sq. yds. equivalent to 3,118.90 sq. mtrs. situated in a part of the City of Ahmedabad. The Final Plot is of the scheme No. 3 of the Ellisbridge Town Planning Scheme. There is no controversy that the petitioner is the owner of the said land since 30th June 1982, but before that, the land belonged to a firm (of which the petitioner was the partner) running under the name and style of 'M/ Section Thakore Associates' having formally been floated on 26-8-1975, but having coming into existence on 12-8-1975. The said partnership firm had submitted the relevant plans some time in the year 1975 for the purpose of putting up a construction on the land. The plans were passed by the Town Development Officer of the respondent No. 3-Corporation on 29-10-1975 and soon on getting the said permission the construction was started and on 28-1-1976, the 'appointed day' under the Urban Land (Ceiling and Regulation) Act, 1976, the construction had come up to the plinth level. The plans that were sanctioned provided for a building complex consisting of 33 shops on the ground floor and 28 residential blocks in seven-stories from the first floor level each floor having four flats. This type of construction is in Civil Engineering and Municipal Laws known as 'Podium and Tower Type'. In that construction, the plinth area is 777.10 sq. mtrs. As per the Municipal Building Laws, there is a concept of Floor Space Index which cannotes the total available area for construction permissible under the relevant Rules and bye-laws of the respondent No. 3-Corporation. As the land admeasured 3,118.90 sq. mtrs. the said complex could put up only that much construction on the ground floor, with further areas on upper floors. In other words they could not put up under the building bye-laws any further construction in the remaining open land. This is exactly what is meant by the Floor Space Index. This is evident from the Certificate Annexure-B given by the respondent No. 3.
2. The Act in question puts restriction on the use of the vacant land. The petitioner firm, however, had to approach the State Government under Sections 20 and 27(2) of the Act. As a matter of fact Section 27(1) partly has been declared ultra vires by the Supreme Court and Section 27(2) would not have any application. In fact the permission was sought on the ground of hardship under Section 20 of the Act and the order of the State Government is to be found at Annexure-C which in my view should conclude this litigation fully and finally. It is the order of the State Government dated 24-10-1979. The first part mentions the background and the opinion of the Competent Authority, who certified that if the building as proposed was complete, no 'vacant' land was likely to be there. The Government then proceeds lo state as follows which 1 translate:..On considering the above mentioned facts presented by the petitioner and the documents and proofs, the Government is convinced that if the permission to sell under Section 27(2) of the Urban Land (Celling and Regulation) Act, is not granted, the petitioner will be put to 'undue hardship'.
On the strength of the circumstances alias facts if the petitioner is not given permission to sell the shops at this stage, the petitioner will be put to undue hardship. The Government is convinced of it. Pursuant thereto out of the construction so put up the Government hereby gives permission to sell the shops alongwith the ancillary land on the following conditions:
The applicant shall have to produce before the Competent Authority an affidavit about completing seven-storeied building as per the sanctioned plans on the land in question, and also an indemnity bond that after the said seven-storeyed building was complete, if there remained any surplus land, the Government will be free to acquire the same (obviously under the provisions of the Act).
3. The above order once for all shows that the Government at that stage permitted the petitioner's firm to complete the seven-storeyed building and of that moment then gave permission to sell those shops individually also, obviously under certain terms and conditions. Though the Competent Authority had told the Government in his report that if the seven-storeyed building was put up no surplus 'vacant' land as per the provisions of the Act was likely to be there, the Government kept the question open and granted permission to go ahead with the construction. Whatever label may be attached to this permission, whatever section may be referred to or not referred to in this order, one thing is amply clear that despite the Government being conscious of the possibility of there remaining no surplus 'vacant'' land, the Government allowed the petitioners to put up the construction and the petitioner has completed the construction. Now, if the Floor Space Index is a criteria at the time when the building was complete there was no 'vacant' land. The Certificate Annexure-C given by the Municipal Authority is a clear proof of it. The things went on, but now the Municipality had made some change in the rule regarding Floor Space Index. They say that in respect of Podium Tower Type building (and none also) annexe can be put because for such type of buildings in this area the Floor Space Index is now 1.5. There is no controversy on this aspect also. Taking advantage of this relaxation exceptionally made by the Municipal Corporation in respect of their peculiar type of building, the petitioner made a proposal for a sort of an annexe building and the controversy arose. The Government has now come forth with a move that they are entitled to claim such surplus vacant land. So, the first and foremost question that requires to be decided is, whether there is any 'vacant' land which can be now acquired by the Government under the provisions of the Act. I reiterate that the certificate Annexure-B shows that on the date the Act came into force, the land which was unbuilt but for which building permission was already granted could not have been built upon by the petitioner because of the Building Regulations of the Municipality. It is true that when the Act came into force the building was not ready, but the Government granted the permission to complete it. So, it can be said that under Section 20 of the Act, the Government granted a sort of an exemption. If the Government was bent on having the land adjudged surplus at that point of time and it is insisted on whatever vacant land being there, the picture perhaps could have been different. Various arguments put forward by the learned Assistant Government Pleader, Mr. R. R. Shah regarding the surplus land being there at the time of the coming into force of the Act are of no consequence, because the Government in its administrative statutory discretion did not claim any right and allowed the petitioner to go ahead with the construction of the Podium Tower Type Building. The moment the building became over, the total building space was exhausted and the remainder land was required to be kept unbuilt under the Municipal Regulations. So, at the time the building was complete the open land that was there and which can be stated to be vacant land also because it was unbuilt upon, could not be designated as a 'vacant' land because as per Clause (i) of Section 2(q) of the Act, in that much part of the land no construction of a Building could be had under the building Regulations in force in the area in which the building is situated. So, two positions would emerge:
(1) When the Act came into force, there was only pinth level construction and the rest of the land was open and peahaps the Government could have insisted on its having been adjuged and earmarked for the Governmental purpose in the form of compulsory acquisition under the Act. The Government did not do so and permitted the party to carry on the construction. It is no doubt true that there is no such specific permission as such to be found in Annexure-C and the occasion for passing that order Annexure-C was granting permission purparting to be one granted under Section 27 of the Act, but the Government made it clear to the petitioner that it is open to him to go ahead with the construction. With this permission the building was made complete and if any land still remains surplus, the Government's rights to claim that land is not in any way adversely affected.
(2) When the building became over, as per the Floor Space Index which is a Municipal Regulation, that open land could not be built up. It was not 'vacant' land whatsoever in terms of Section 2(q)(i) of the Act. So, the question is whether Government could claim any part of the land when the building was complete and my answer is a clear 'no' in the facts and circumstances narrated hereinabove.
4. Mr. Shah, the learned Assistant Govt. Pleader, however, very vigorously urged before me that Clause (i) of Section 2(q) of the Act is confined to only that land which is entirely open at the time the Act came into force and it would not deal with a vacant land which is partly vacant and partly built upon or was being built upon. For support of his submission he has placed reliance in sons observations of the Supreme Court in para-17 of the judgment in the case of the State of U.P and Ors. v. L.J. Johnson and Anr. : 3SCR897 . The words that are relied upon are:
17. Clause (i) gives a blanket exemption to any land situated in an urban area where the entire (Mr. Shah asked me to lay emphasis on the word 'entire') area is covered by land on which it is not permissible to raise a building which will not be deemed to be vacant land within the meaning of Section 2(q).
5. It is to be noted that the Supreme Court was not dealing with a case of an entirely vacant plot, but while examining various Schemes it envisaged that Clause (i) would deal with an open land entirely unbuilt upon. That does not mean and in my view cannot mean that if a substantial part of an open land is vacant Clause (i) will not at all be attracted. In the case on hand out of the total area of 3,118.90 sq. mtrs. only 777.10 sq. mtrs. floor area is occupied by the construction and about three limes of that area is vacant. Can we say that all this vacant area is 'vacant' land minus the land which is referred to in Clause (ii). It cannot be so. If a portion of land on which construction of building is not permissible under the Building Regulations in force in the area that land cannot be 'vacant' land, and unless it is vacant land the rigorous ban contained in Section 3 of the Act will not be attracted at all. Clause (ii) of Section 2(q) of the Act deals with a different situation altogether. There also Building Regulations come in the picture. Even if the case of the petitioner is taken to be falling under Clause (ii) the land which has been constructed upon and the land appurtenant to such building and the land further to be left open is to be excluded, but that does not mean that all other land is necessarily to be declared vacant land. Such land cannot be built upon as per the Municipal Building Regulations.
5.1 In above view of the matter the Government's present insistence to have some land as surplus land and, therefore, the petitioner not being able to take the advantage of the fortitious circumstance of the relaxation made by the Municipality only qua his building and similar building (but not otherwise) cannot be objected to.
6. The result is that the petition stands allowed to the following extent:
It is declared that there is no surplus vacant land which could be acquired by the Government under the Provisions of the Urban Land (Ceiling and Regulation) Act at the time the seven-storeyed building was complete and the Orders Annexures-E, F, G and H resting on that claim of the Government obviously do not survive. It would be open to the Municipal Authorities to deal with the question afresh in accordance with law. Rule made absolute to the above extent with no order as to costs.
7. The operation of this judgment is stayed for a period of four weeks from today in order to enable the respondent-State to have further recourse in accordance with law.