JUDGMENT :

(G.S. Patel, J.) :

1. Rule. Rule returnable forthwith.

2. Prayer clauses (a) and (b) of the Petition at pages 24 and 25 read:

“(a) That this Hon’ble Court be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction directing the Respondents to implement the Government Resolutions dated 1st August 2019 read with 23rd June 2021 and raise the appropriate demand in respect of the surplus vacant land of the said property and implement the policy decision as contained in the said Government Resolutions dated 1st August 2019 read with 23rd June 2021 and upon payment of such demand relieve the Petitioners of all the terms and conditions of exemption order dated 15th May 2008, i.e., Exhibit “B”;

(b) That this Hon’ble Court be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ, order or direction calling upon record and proceedings in respect of Letter dated 22nd April 2022 (Exhibit “L” to the Petition) issued by Respondent No.1 and after going through the same, be pleased to quash and set aside the same.”

3. But these will require some moulding for the reasons that will shortly become apparent.

4. The 1st Petitioner owns lands CTS Nos. 124 and 125 of Village Marol, Taluka Andheri. This is undoubtedly a substantial tract of land, said in the Petition to be nearly 17492.70 sq mtrs, i.e., over four acres altogether. The 2nd Petitioner is a developer.

5. It all began on 15th May 2008 when the Additional Collector and competent authority under the Urban Land (Ceiling And Regulation) Act 1976 (“the ULC Act”) passed an order exempting surplus vacant lands from the application of Chapter III of the ULC Act. This was a conditional order. The competent authority declared that an area of 5387.17 sq mtrs from the total holding was surplus vacant land. This itself requires an explanation and reference may be had to a schedule at page 45 where we find the relevant details. First, there is an area statement in this table relatable to the property card and this shows CTS Nos. 124 and 125 as admeasuring 15,669.20 sq mtrs. This is slightly less than the Petitioners claim. Of this, the area in possession of the Petitioners was 12025.25 sq mtrs. Another 1547.80 sq mtrs was under a DP Reservation for a road, and further 2100 sq mtrs was under a reservation for a recreation ground. This left the “net balance land” which was computed at 8377.40 sq mtrs. The retainable land within the ceiling limit under the ULC Act and not being vacant was stated to be 2990.23 sq mtrs.

6. Deducting this retainable land, i.e., land that could be retained by the owner, of 2990.23 sq mtrs, from the net balance land (after correcting for land records etc and after deducting reservations) from the net balance land of 8377.40 sq mtrs, the surplus vacant land was 5387.17 sq mtrs. We may note that this surplus vacant land had on it another reservation for rehabilitation and resettlement of project affected persons. This is how the figure of 5387.17 sq mtrs was arrived at as being the surplus vacant land.

7. We pause briefly for a moment to note the decision of a five Judge Bench of the Supreme Court in Maharao Sahib Shri Bhim Singhji v Union of India & Ors, (1981) 1 SCC 166, which dealt with a challenge to the constitutionality of the ULC Act. The Supreme Court upheld the constitutionality of the Act except for Section 27(1) because this restricted the transfer of any urban or urbanisable land with a building or a portion of a building and which was within the ceiling area. Effectively, the Supreme Court held that such a restriction on property would be unconstitutional and could not be sustained. As we shall presently see this, will have some bearing on the argument that Mr Takke learned AGP has to make in relation to the Government Resolutions (“GRs”) in question before us.

8. The ULC Act stood repealed by the Urban Land (Ceiling & Regulation) Repeal Act,