K. N. Seth, J.

1. (FOR self and FOR Satish Chandra, C. J.) :- These petitions filed by the State of U. P. under Article 226 of the Constitution arise out of proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 (Act No. 33 of 1976) (hereinafter referred to as the Act) and are directed against the orders of the appellate authority constituted under the Act. The basic question involved in these petitions relates to the criteria FOR determining the extent of vacant land which a person is entitled to hold in an urban agglomeration in the territories to which the Act applies.

2. WITH the object to provide for the imposition of a ceiling on vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomerations to subserve the common good the Parliament passed the Act which applies in the first instance to certain States mentioned in the Act, including the State of U. P. and all the Union territories. The urban agglomerations have been classified in four categories. By Section 4 the ceiling limit of the vacant land in the four categories has been specified. In the State of U. P. the urban agglomerations fall under categories C and D for which the ceiling limit is fixed at one thousand five hundred and two thousand square metres respectively.

Section 3 of the Act prescribes that except as otherwise provided in the Act, on and from the commencement of the Act, no person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which the Act applies. Restriction has been imposed only in respect of vacant land which has been defined under Section 2 (q) to mean "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 is being constructed on, the appointed day with the approval of the appropriate authority and the land appurtenant to 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..............."

The expression "land appurtenant'' is defined in Section 2 (g) as follows :-

" "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 metres; 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 ;"

3. THE question for consideration is whether under Section 2 (q) (i) land, which is required to be left open under the municipal bye laws or the building regulations falls outside the purview of vacant land and is to be excluded from consideration in addition to "land appurtenant" as defined in Section 2 (g). It was urged that since construction of a building is not permissible under the municipal bye laws or under the buil