M.N. CHANDURKAR, Actg. C.J.

This petition arises out of proceedings for declaration of surplus vacant land under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as " the Act"). Admittedly C.T.S. Nos. 977/B and 1257 originally belonged to one Narhar Pawar, who died sometime in 1960 leaving behind him his widow, two major sons, one widowed daughter-in-law, two married daughters an one unmarried daughter.

2. Before the competent authority it was the contention of the petitioner that the property left behind by Pawar was co-parcenary property and that the seven heirs left by him should be treated as co-parceners and for the purpose of proceedings under the Act, one seventh share in the total land in question should be taken into account. In addition, it was contended that the petitioners had submitted a layout to the Pune Municipal Corporation on 2nd July, 1975 and that layout was liable to be taken into consideration for ascertaining whether there was any vacant land. It was also contended that the petitioners have built a commercial building and they were entitled to the benefit of the guidelines of exemption provided for under section 20 of the Act. All the objections were rejected by the competent authority, who declared an area of 5070.07 sq. ms. as excess vacant land, which was to be acquired by the Government.

3. In appeal the Collector, who was the Appellate Authority, Pune Urban Agglomeration, Pune, took the view that each of the heirs who inherited to property of Pawar ought to be treated as exclusive owner of his one seventh share. He rejected the other objections but remanded the matter to the competent authority for determination after ascertaining the share of each of the seven members to make a fresh calculation of the surplus area. This order is challenged by the owners of the property in six separate petitions, which are being disposed of by this common judgment.

4. When this matter was earlier heard on 5th August, 1983 it was contended by the learned Counsel appearing on behalf of the petitioners that having regard to the provisions of section 2(q)(i) of the Act, two-thirds of the area of the plots in question was such that no construction was possible to be made upon it and that area could not, therefore, be treated as vacant land. According to the learned Counsel, if the she of each owner of the property is separately considered and benefit of the provisions in section 2(q)(i) is given to each one of the petitioners, there is no surplus land which could be declared as such under the Act. Reliance was placed on a decision of the Division Bench of this Court in Wit Petition No. 1771 of 1979 decided on 31st January, 1983 (B.B. Billimoria & anr. v. State of Maharashtra and others)1, in support of the contention that the petitioners were as a matter of right entitled to the exclusion of the two-thirds of the area of the plots in question for purposes of calculating excess vacant land. It appeared at that time that the decision of the Division Bench relied upon by the learned Counsel for the petitioners needed reconsideration. This petition was, therefore, referred to the Full Bench and that is how this petition and the connected petitions are now heard by this Full Bench.

5. Since a pure question of law has been argued before us with regard to the nature and scope of section 2(q)(i) of the Act, it is necessary first to refer to the decision in Billimorias case, on which reliance was placed by the learned Counsel for the petitioner and the correctness of which has been disputed on behalf of the State. In Billimorias case the land in question belonged separately to the two petitioners. The land belonging to petitioner No. 1 was to the extent of 3308.61 sq. m. and the land belonging to petitioner No. 2 was 3172.05 sq. m. Making allowance for 1000 sq. m. of land which was permissible to be retained under the Act, and area of 2308.61 sq. m. and an area of 2172.05 sq. m. was declared surplus as belonging to petitioners Nos. 1 and 2 respectively. These orders were challenged by the land owners in the petition under Articles 226 and 227 of the Constitution of India. Before the Division Bench it was contended on behalf of the petitioners in that case that according to the building regulations be used for construction, which necessarily meant that on the remaining two-thirds portion of the land held by each of the petitioners, no construction was permissible. This was not disputed and the Division Bench took the view that having regard to the provisions of section 2(q)(i) if on a particular area of a large piece of land construction of building is not permissible then that area on which construction of such building is not permissible must necessarily be excluded from the definition of "vacant land" in section 2(q)(i) of the Act. The relevant observations of the Division Bench are as follows :

"...........While one is interpreting sub-clause (i) of Clause (q) of section 2 one cannot take the land as a whole and then say that this land, on small area of which construction of building is permissible, should be treated as vacant land. If on a particular area of a large piece of land construction of building is not permissible then that area on which construction of such building is not permissible must necessarily be excluded from the definition of the "vacant land" as mentioned in section 2(q)(i). It would be highly artificial and it will lead to absurd results if one treats the land as a whole and holds that if in any part of that land construction of the building is permissible then on part of the land can be excluded from the definition of vacant land. Any rule of construction cannot permit such construction sought to be put on the words contained in section 2(q)(i)."

6. Having so construed the provision of section 2(q)(i) the Division such took the view that two-thirds of 2714.05 sq. ms. of land owned by each of the petitioners was liable to be excluded from the consideration of vacant land, and since the areas of the flats in a building owned by a co-operative society were not liable to be taken into account for the purpose of the Act, the Division Bench took the view that neither of the petitioners held land in excess of the ceiling limit in Pune Agglomeration.

7. Mr. Karnik, appearing on behalf of the petitioner, has, at the very outset, made it clear that he was not in a position to support the very crated proposition laid down by the Division Bench in paragraph 6 of the judgment that in all cases two-thirds area of the plot on which building cannot be constructed in accordance with the building regulations that area must be necessarily excluded from the definition of "vacant land" in section 2(q)(i) of the Act. According to the learned Counsel, however, he would like to restrict the ratio of the Division Bench to such lands on which there could never be constructed a building such as, according to the learned Counsel, building specified in Regulations 18 and 19 of the Building Rules and bye-laws of the Pune Municipal Corporation. In Regulation 18, it is provided :

"Between any building and the boundary of the plot at its sides other than the front and rear thereof an open space of not less than 10 feet shall be left provided however that this regulation shall not apply to Bhambarda Gaothan, Pulachi Wadi, Dagdi Pool Wadi and the Gaothan area on the Pune City side of the river Mutha."

Regulation 19 provides :

"Every main building whether residential or otherwise shall have at the rear thereof an open space exclusively belonging thereto and free from any erection except a well, houd, detached privy or bathroom, covered washing place etc. Such open space shall extend to the full width of such building and the distance of such building at any point to the rear boundary of the plot shall both be less than 20 feet."

According to the learned Counsel, under Regulation 18, no building was permissible to be constructed within ten feet area between the boundary of the plot and the building on its two sides except the front and the rear. Further, according to the learned Counsel, under Regulation 19 an area of twenty feet between the rear boundary of the plot and the main building is statutorily requited to be maintained irrespective of whether a building is intended to be constructed thereon or not, and the competent authority must, while determining vacant land proceed to determine the extent of the area of the land indicated above on which no building could be built under the said regulations. In other words, the contention is that the land which will be covered by strips on both sides of a building with a width of ten feet and the strip at the rear with a width of twenty feet could never be treated as vacant land under section 2(q)(i), and in the instant case, according to the learned Counsel for the petitioners, though admittedly no building has been sanctioned nor was any building contemplated, the building rules and bye-laws of the Pune Municipal Corporation, should have been considered by the competent authority, who should have ascertained as to what is the extent of the area on which no building could be constructed and that are should have been excluded for the purpose of computation of vacant land. According to the learned Advocate General, appearing on behalf of the State, the construction placed by the Division Bench on the definition in section 2(q)(i) of the At defeats the very purpose of the Act, the purpose being that the Act is intended to achieve the following objectives :

(i) to prevent the concentration of urban lands in the hands of a few persons and speculation and profiteering therein.

(ii) to bring about the socialisation of vacant land in urban agglomerations to subserve the common good to ensure equitable distribution.

(iii) to discourage construction of luxury housing leading to conspicuous consumption of scarce building materials, and

(iv) to secure orderly urbanisation.

These objectives were referred to us from the decision of the Supreme Court in (Bhim Sinhgji v. Union of India)2, A.I.R. 1981 S.C. 234 at page 259, paragraph 60. According to the learned Advocate General, the construction put by the Division Bench has the effect of allowing a large part of the area of vacant land without the owner having ever intended to use it for construction being excluded as non-vacant land with the result that the very purpose of the Act will be defeated.

8. In order to appreciate the contentions raised before us, it is necessary provided to refer to a few provisions of the Act. Under section 3 of the Act it is that except a otherwise provided in the Act, on and from the commencement of the Act, no person shall be entitled to hold any vacant land in excesss of the ceiling limit in the territories to which this Act applies under sub-section (2) of section 1. The date of commencement of the Act is 17th February, 1976. Section 4 prescribes the ceiling limit with reference to four categories of urban agglomeration. "Vacant land" is defined in section 2(q) of the Act which reads as follows :

"(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;

(ii) in an area where there are building regulations, the land occupied by any building which has been constructed before, or being constructed on, the appointed day with the approval of the appropriate authority and the land appurtenant too 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 :

Provided that where any person ordinarily keeps his cattle, other than for the purpose of dairy farming or for the purpose of breeding 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 purposes of this clause."

The definition is in very wide terms inasmuch as it defines "vacant land" as land not being land mainly used for the purpose of agriculture, but the three clauses in the definition describe the land which is not to be treated as vacant. We shall come to these three clauses a little later. In section 2(g) the words land appurtenant" have been defined as follows:

"(g) land appurtenant, in relation to any building, means--

(i) in an area where there are building regulations, the minimum extent of land required under such regulations to be kept as open space for the enjoyment of such building, which in no case shall exceed five hundred square meters; or

(ii) in an area where there are no building regulations, an extent of five hundred square metres contiguous to the land occupied by such building,

and includes, in the case of any building constructed before the appointed day with a dwelling unit therein, an additional extent not exceeding five hundred square metres of land, if any, contiguous to the minimum extent referred to in sub-clause (i) or the extent referred to in sub-clause (ii), as the case may be;"

The definition of "land appurtenant" quoted above deals with two categories of areas, one is an area where there are building regulations and the other, area where there are no building regulations. In an area where there are building regulations, the land appurtenant is the minimum extent of land required under the regulations to be kept as open space for the enjoyment of such building, but the land appurtenant cannot in any case exceed five hundred square metres. In an area where there are no building regulations, he land appurtenant is five hundred square metres of land contiguous to the land occupied by the building. Apart from the five hundred square metres of land appurtenant which is specified in the main part of the definition, there is an extension of the definition in the inclusive part which provides that in the case of any building constructed before the appointed day with a dwelling unit therein, an additional area of five hundred square metres of land contiguous to the minimum extent of land specified in sub-clauses (i) and (ii) of the definition is also to be treated as land appurtenant. "Dwelling unit" is defined in section 2(e). In relation to a building or a portion of a building it means a unit of accommodation, in such building or portion, used solely for he purpose of residence.

9. Now, to ascertain the surplus land which could be so declared under the At, it is first necessary to decide the total land which is held by a person, which means the land is either owned by the person concerned or he possesses such land as tenant or as mortgagee or under an irrevocable power of attorney or under hire-purchase agreement or partly in one of the said capacities and partly in any other of the said capacity or capacities. This is clear from the definition of the words "to hold" in section 2 (i) of the Act. Now, after the total land held by a person is determined, in order to determine vacant land, on has to go to the definition in section 2(q) which, as already pointed out, is in three parts. Sub-clauses (i) to (iii) and the proviso in the definition declare as to what is not vacant land. The competent authority has, therefore, to ascertain as to what is not vacant land as contemplated by the Act. Under sub-clause (i) it is provided that 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 is not vacant land. It is well-known that building regulations made by local authorities such as Municipal Councils or Municipal Corporations do not permit construction of a building in the entire open land in possession and ownership of the person concerned. The words "building regulation" have been defined in section 2(b) of the Act to mean the regulations contained in the master plan, or the law in force governing the construction of buildings. It is not in dispute that so far as the pune Municipal Co-operations is concerned, apart from Regulations 18 and 19 which require certain open spaces to be left on the sides of building and at a the rear and set-off in the front, the Regulations also require that the total area on which constructions to be made will not exceed one-third of the plot with the obvious result that the remaining two-thirds of the plot is the land on which construction of a building is not permissible. Sub-clause (ii) also deals with an area where there are building regulations. Under that sub-clause the land which is not vacant is the land occupied by any building which has been constructed before, or is being constructed on, the appointed day, that is, 17th February 1976, with the approval of the appropriate authority and the land appurtenant to such building. So far as sub-clause (ii) is concerned, the effect of it is that in an area where there are building regulation, the land occupied by a building along with the land appurtenant, that is to say, along with five hundred square metres of land under section 2(g)(i) and an additional area of five hundred square metres in case the building was constructed before the appointed day will not be treated as vacant land. In other words, the land on which the building actually stands coupled with five hundred square metres of land being land appurtenant, and if the building is constructed before the appointed day, then a further area of five hundred square metres of land is not to be treated as vacant land. Sub-clause (ii) deals with an area where there are no building regulations and in such a case the actual extent of the land occupied by a building which has been constructed before or is being constructed on the appointed day and the land appurtenant to such building is not to be treated as vacant land. Even under sub-clause (ii) if the building has a dwelling unit and is constructed before the appointed day an additional area of five hundred square metres is treated as land appurtenant there to.

We are not concerned with the proviso which is really in the nature of special provisions for the purpose of excluding from the computation of the vacant land that portion of the land where a person ordinarily keeps his cattle other than for the purpose of dairy farming or for the purpose of breeding of live-stock in a village within an urban agglomeration.

10. Now, the scheme of the definition of vacant land appears to be very clear. Apart from the general provisions that all land, which is not land mainly used for the purpose of agriculture, is to be classified as vacant land. Under Clauses (i) to (iii) and the proviso, the land of the category specified in these clauses and the proviso is not to be included when the extent of vacant land is to be computed for the purpose of making a declaration by way of final statement contemplated by section 9 of the Act. The common thread which runs through sub-clauses (i) to (iii) is that land on which it is impermissible to construct a building or the land on which a building is already constructed for is being constructed on the appointed say and the appurtenant land is not to be included as vacant land having regard to the relevant building regulations, if there are any. Clauses (i) to (iii) refer to land on which under the building regulations construction of building is not permissible and land which is actually occupied by the building which is either constructed before the appointed day or is being constructed on the appointed day with the approval day of the appropriate authority. Sub-clauses (ii) and (iii) both contemplate that the land on which the building stands or is being constructed along with the appurtenant land is to be excluded from the concept of vacant land. The distinguishing feature in the two clauses is that Clause (ii) refers to an area where there are building regulations and Clause (iii) refers to an area where there are no building regulations. Where building regulation are in force, necessary approval of the appropriate authority has to be taken if the building is to be constructed. In a area where there are no building regulations the question of the building being constructed with the approval of the appropriate authority does not arise, and that is why sub-clause (iii) refers only to a building which has been constructed before or is being constructed on the appointed day.

11. There is no dispute that the vacant land has to be determined with reference to the day of commencement of the Act and the relevant date is 17th February, 1976. So far as sub-clause (i) is concerned, the question as to whether construction of building is or is not permissible according to the building regulationshas to be determined with reference to 17th February 1976. We have already referred to the definitions of the words "building regulations", which mean regulations contained in the master plan, and the meaning of the expression "master plan" is also given in the Act itself in section 2(h) and it means, in relation to an area within an urban agglomeration or any part thereof, the plan prepared under any law for the time being in force or in pursuance of an order 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. Now, when a question arises as to whether construction of a building is not permissible under the building regulations in force, it is possible that there may be an absolute ban or prohibition under the relevant master plan where under no circumstances construction of building is possible on a given piece of land. Such piece of land may have been reserved for a purpose and on such reservation construction of a building would not at all be permissible. But, when we come to an instance like the present one in which there is an open plot of land which is admittedly a house site on which a building could be constructed, it is difficult to see how any part of the land can be excluded under sub-clause (i) of section 2(q) on hypothetical considerations. Section 3 of the Act and the procedural provisions thereof which are intended to implement the provisions of the said section contemplate the determination of the quantum of vacant land on facts as they exist on the date of commencement of the Act. Therefore, in a given case where the owner of a land claims that certain land which is owned by him should be excluded on the ground that construction of a building is not permissible under the building regulations in force, it is obvious that he will have to show that the building regulations are attracted in his case. For a person, who, on the commencement date, never even submitted a plan for construction on his land or for a person who has not even submitted a plan for construction of any building, the relevant building regulations are wholly irrelevant and he is not affected by the building regulations. It appears to us that when sub-clause (i) refers to land on which construction of a building is not permissible under the building regulations, it was contemplated that on the date of commencement of the Act, that is, 17th February, 1976, the owner intended to construct a building on the plot in question and the plan of the building was either already sanctioned or he had submitted the plan for sanction. Where a building plan is already sanctioned and such sanctioned plan is operative on 17th February, 1976 or a plan has already been submitted for sanction, it could be ascertained with certainty as to how much land could be identified as land on which construction of a building is not possible. Sub-clause (i) of section 2(q) does not, in our view, contemplate a general exclusion of land from the purview of the Act to the extent of two-thirds or one-half (sic) or whatever may be the extent of land on which no building can be constructed under the relevant building regulations in force in the area under consideration irrespective of whether a building is proposed to be constructed or not on the date of commencement of the Act. We are, therefore, unable to subscribe to the broad proposition laid down by the Division Bench that in all cases of vacant land, irrespective of whether on the commencement date a building was propose to be constructed or not, sub-clause (i) has the effect of a exclusion from the purview of the Act such land on which construction of a building is not generally permissible, which is two-thirds of the area of the total plot in Pune Such a construction will defeat the very purpose of the Act. An illustration as to how such a construction will defeat the purpose of the Act may be now given. Let us take the case of a person who owns six thousand square metres of land, then on the ratio of the decision of the Division Bench, Four thousand square metres of land will have to be totally excluded on the footing that thereon no construction is possible. Assuming that this is so out of the remaining two thousand square metres of land one thousand square metres of land is allowed to be retained being the ceiling limit. If at some future date the owner proposes to construct a building, it is not necessary that he should restrict his construction only to the one-third area of the one thousand square metres of land which he was allowed to retain in addition to four thousand square metres as stated above, because for the purposes of the building regulations the area on which he can build will be determined having regard to the area of five thousand square metres of land which is in actual possession of the owner. Thus he will be entitled to construct on the one-third area out of the five thousand square metres. This could necessarily include a part of the land which has been assumed to be incapable of being constructed upon according to the Division Bench judgment with the inevitable result that the land two-thirds of the area of the whole plot, which is excluded fort the computation of vacant land again be comes available of construction which evidently is not contemplated by the legislature. The construction placed by the Division Bench on the scope of sub-clause (i) and section 2(q) is, in our view, clearly likely to defeat the purpose of the Act and such a construction must, therefore, be avoided. So far as sub-clause (i) of section 2(q) of the Act is concerned, we must, therefore, hold that the decision of the Division Bench in Billimorias case (supra), which hold that if on a particular are of a piece of land construction of a building is not permissible, then that area must necessarily be excluded from the definition of "vacant land" as mentioned in section 2(q)(i) of the Act, requires to be overruled.

12. When the extent of the vacant land is to be determined, it is clear that what is sought to be excluded under each one of the heads must be separately determined by the competent authority. The owner of the land will be entitled to the benefit of each one of the sub-clauses as well a the proviso if they are relevant on the facts of a given case. There may be cases where the land which is sought to be excluded by sub-clause (ii)can be included in the land which is sought to be excluded by sub-clause (i). Where, for example; on a given piece of land the area of two-thirds of the land is not to be constructed upon but this area of two-thirds is more than the land occupied by the building as well as the land appurtenant to the building, then the owner will not be entitled to a separate exclusion both under sub-clauses (i) and (ii), because the area under sub-clause (i) will obviously include the land appurtenant which is referred to in sub-clauses (i) and (ii). Indeed, this position was not disputed by Mr. Karnik. But since vacant land has to be determined on the basis of totality of the land owned by or in possession of the owner as contemplated by section (2)(i) of the Act, the competent authority will have to determine separately the land which falls under sub-clauses (i), (ii), (iii) and the proviso of section 2(q) of the Act subject to some land falling in Clause (ii) being covered by Clause (i). Having regard to what we have said earlier, we cannot accept the contention advanced before us on behalf of the petitioners on the ratio of the decision of Billimorias case, that two-thirds of the total area of the land in the instant case will be straight way liable to be excluded for the purpose of computation of vacant land and ceiling area.

13. We may refer to certain decisions on which reliance was placed by the learned Counsel for the petitioners, though on consideration of those decisions we find that they are hardly of any assistance to the petitioners for the proposition that the learned Counsel has advanced before us. Reliance was placed on the decision of the Delhi High Court in (Shanti Devi v. competent authority)3, A.I.R. 1980 Delhi 106. In that decision, the learned Judges of the Delhi High Court took the view that section 2(q)(i) of the Act contemplated that the activity of building is not permissible on the date when the land is sought to be dealt with and not at any future time and the possibility that such activity could come to be permitted in future or that there are buildings constructed in the area or that there is no prohibition to construct in an unapproved colony or that there is no permanent prohibition to construct would not be sufficient to treat the land as vacant land within the meaning of the provision. So far as the decision holds that the relevant date for determination for the purpose of section 2(q)(i) of the Act is the date on which the land is sought to be dealt with, that is, the commencement date referred to in section 3 there can be no dispute. In a part of the decision, the Division Bench seems to have taken the view that land notified for acquisition under the Land Acquisition Act must be held to be one on which construction of buildings was not permitted. We are really not concerned with that view, so far as the present petitions are concerned, but it is sufficient to point out that the correctness of that view has not been accepted by this Court in (Dattatraya v. State of Maharashtra)4, 1981 Mh.L.J. 764 and in an unreported decision of this Court in (D.P. Dani and others v. State of Maharashtra)5 , Writ Petition No. 1650 of 1979 decided on 31st January, 1983. In Dattatrayas case the contention was that certain plots of land which were reserved for various public activities, such as building of primary school, high school, civil hospital, bus terminus etc. under the Town Planning Scheme should be excluded for the purpose of computation of vacant land, because, according to the petitioners, in that case no building activity was permitted on those lands so far as the petitioners were concerned. The Division Bench after referring to the primary object of the Act as set out in the case of (Union of India v. Vallari Basavaiah Choudhary and others)6, A.I.R. 1970 S.C. 1415 rejected the contention that merely because the petitioners are prohibited from constructing any building under the building regulations contained in the Town Planning Scheme the land should not be treated as vacant land. The Division Bench found that if the regulations allowed the building activity not to a person who held that land but by public bodies or the State Government then certainly construction of building was permissible and once it is found that construction of building is permitted either by an individual or even by public authority then certainly it is "vacant land" and cannot be taken out of the definition. This decision does not support the contention of the learned Counsel for the petitioners that even if no building is contemplated and no plan has been sanctioned, merely because there are some building regulations which prohibit generally construction over two-thirds of the total area of the plot that area of two-thirds of the plot should be excluded for the purpose of vacant land. In Danis case a notification sanctioning the development plan of Pune was issued on 7th July 1966, but no further steps were taken by the Government for acquiring the petitioners land. On 28th July, 1971 the Government confirmed the purchase notice issued by the petitioners under section 49 of the Town Planning Act but excluded a part of the area from the acquisition. On 23rd June, 1972 a declaration was made under section 126 of the Town Planning Act read with section 6 of the Land Acquisition Act. The land was duly demarcated and proceedings under section 9 of the Land Acquisition Act for determination of compensation were also going on. It was the claim of the petitioners, relying on the decision of the Delhi High Court, that since the building activity would not be permitted in future on the land held by the holder and the land should be regarded as non-vacant land. The argument was as far as the petitioner were concerned, no building activity was permissible. This argument was rejected by the Division Bench in the following words (para 8) :

"........We are unable to accept the meaning that is sought to be read in the definition of vacant land by the Delhi High Court on which reliance is placed by Mr. Andhyurjina. Merely because as a result of acquisition proceedings initiated in respect of a land a prudent person will not contemplate construction on the same. It does not mean that the construction of a building is not permissible under the building regulations in force in the area in which the land is situated. It is only where construction of a building is not permissible under the building regulations that the land is taken out of the purview of the Urban Ceiling Act. What is necessary is the legal impermissibility and not prudently refraining from constructing on the land. Those are the clear words to be found in section 2(q)(i) of the Ceiling Act."

While these observation have our respectful concurrence, we have already pointed out that so far as section 2(q)(i) of the Act is concerned, there must either be complete prohibition for construction activity by development plan or master plan or there must already be a sanctioned plan or a plan submitted for approval on the date of commencement of the Act on the basis of which a building cannot be constructed under section 2(q)(i) could be definitely ascertained. In the absence of any of the above conditions in the case of open land which falls in Clause (i) of section 2(q)(i) all land in excess of the ceiling limit specified in section 4 will be taken over by the Government.

14. The learned Counsel for the petitioners then contended that the matter has already been remanded to the competent authority by the Appellate Authority for determination of separate one-seventh shares of each of the tenants-in-common. What is however contended is that since each one of the tenants-in-common is entitled to the ceiling to the ceiling area, a separate final statement must also be made by the appropriate authority in respect of each of the co-owners. We do not see what objection there could be to such a course. Section 9 of the Act provides that after the disposal of the objections under section 8(4), the competent authority shall make the necessary alterations in the draft statement in accordance with the orders passed on the objections aforesaid and shall determine the vacant land held by the person concerned in excess of the ceiling limit. It is obvious, therefore, that on a plain reading of section 9 of the Act, vacant land is to be determined with reference to each person in a case like this, and therefore, in respect of each of the seven person the competent authority will have to determine whether it exceeds the ceiling limit and make final statement as contemplated by section 9 of the Act.

15. Since the matter is being remanded back the petitioner will also be entitled to raise fresh contentions as are permissible to him for computation of vacant land also in respect of Survey No. 1257. The petitioner will, however, not be entitled to re-open the questions which have already been decided so far as rejections of this claim on the footing that he had already submitted an application for exemption under section 20 of the Act.

16. Besides the petitioner five other co-owners have also filed Writ Petition Nos. 1036 to 1040 of 1980. With the consent of the Counsel we have taken up all these five petitions, because the same order has been challenged in all these five petitions. All these petitions fail. The competent authority will now deal with the matters in the light of this judgment. Rules issued in these petitions are discharged. However, there will be no order as to costs of these petitions.