A. N. DIVECHA, J. ( 1 ) ). The order passed by and on behalf of the State of Gujarat (respondent No. 2 herein) on 22nd June 1989 under Section 34 of the Urban Land (Ceiling and Regulation) Act 1976 (the Act for brief) is under challenge in this petition under Articles 226 and 227 of the Constitution of India. Thereby respondent No. 2 declared the holding of petitioner No. 1 to be in excess of the ceiling limit by 1399. 52 square metres. ( 2 ) ). The facts giving rise to this petition move in a narrow compass. The petitioners were holding certain vacant lands within the urban agglomeration of Surat on the appointed day for the purposes of the Act. They therefore filed the required declaration in the prescribed form under Section 6 (1) of the Act. Pursuant thereto a draft statement was prepared and it came to be served to the petitioners in accordance with Section 8 thereof. After hearing the parties by his order passed on 14th September 1983 under Section 8 (4) of the Act the Competent Authority at Surat (respondent No. 1 herein) declared. the holding of the petitioners to be in excess of the ceiling limit by 11011 square metres. The aggrieved petitioners carried the matter in separate appeals before the Appellate Authority under Section 33 of the Act. Their appeals came to be registered as Appeals Nos. Surat - 235 to 239 of 1983 By the order passed by the Appellate Authority on 30th August 1986 their appeals came to be accepted and the matter came to be remanded to respondent No. 1 for his fresh decision according to law. Thereupon after hearing the petitioners by his order passed on 31st January 1987 respondent No. 1 came to the conclusion that the holding of the petitioners was not in excess of the ceiling limit. Its copy at Annexure-A to this petition. It appears that the State of Gujarat was aggrieved by the order at Annexure-A to this petition and at its instance the matter was carried in appeal before the Appellate Authority under Section 33 of the Act. It came to be registered as Appeal No. Surat-30 of 1987. By the order passed on 21st November 1987 the Appellate Authority accepted the appeal and remanded the matter to respondent No. 1 for its fresh decision according to law. It came to be registered as Appeal No. Surat-30 of 1987. By the order passed on 21st November 1987 the Appellate Authority accepted the appeal and remanded the matter to respondent No. 1 for its fresh decision according to law. Thereupon after hearing the petitioners by his order passed on 30 January 1988 respondent No. 1 again came to the conclusion that the holding of the petitioners was not in excess of the ceiling limit. Its copy is at Annexure-B to this petition. It appears to have come to the notice of the concerned officer of respondent No. 2. He appears to have found it not according to law. Its suo motu revision under Section 34 of the Act was thereupon contemplated. A show cause notice therefore came to be issued on 1 September 1988 calling upon the petitioners to show cause why the order at Annexure-B to this petition should not be revised. A copy of the aforesaid show cause notice is at Annexure-C to this petition. After hearing the petitioners by the order passed by and on behalf of respondent No. 2 on 22nd June 1989 the impugned order at Annexure-C to this petition came to be set aside and the holding of petitioner No. 1 was declared to be surplus by 1399. 52 square metres and the holding of the remaining petitioners was declared to be within the ceiling limit. Its copy is at Annexure-D to this petition. The aggrieved petitioners have thereupon approached this Court by means of this petition under Articles 226 and Z27 of the Constitution of India for questioning its correctness. ( 3 ) ). Respondent No. 2 has included one property bearing Plot No. 28 in Survey No. 483 situated at Adajan to be in the holding of petitioner No. 1. It is an admitted position on record that it was a residential building in a co-operative society. It cannot therefore be included in the holding of petitioner No. 1 in view of the binding ruling of the Supreme Court in the case of Meera Gupta v. State of West Bengal reported in AIR 1992 Supreme Court at page 1587. ( 4 ) ). The only other property found to be held jointly by the petitioners was the one bearing Town Planning No. 1 Final Plot No. 30/b admeasuring in all 6974. 79 square metres. ( 4 ) ). The only other property found to be held jointly by the petitioners was the one bearing Town Planning No. 1 Final Plot No. 30/b admeasuring in all 6974. 79 square metres. From that land it was found that 353. 31 square metres was for the road-line. No construction on that strip of land would be permissible. That strip of land in all admeasuring 353. 31 square metres was therefore required to be excluded in view of the definition of vacant land contained in Section 2 of the Act It has rightly been excluded from the holding of the petitioners. The balance area from that parcel of land was to the tune of 6621. 69 square metres. ( 5 ) ). It is not in dispute that by virtue of the decree passed by the competent Court at Surat in 1969 the aforesaid parcel of land was divided equally amongst petitioner No. 1 and his three sons that is petitioners Nos. 2 to 4. It is not in dispute that the said parcel of land was a joint family properly in the hands of petitioner No. 1. In a suit for partition by the uncle of petitioner No. 1 the decree for partition came to be passed way back in 1969 and the aforesaid parcel of land was divided equally among petitioner No. 1 and his three sons who are petitioners Nos. 2 to 4. Respondent No. 2 has however taken the view that on the appointed day for the purposes of the Act petitioner No. 5 was a minor and he would be having a share in the joint family property and as such irrespective of the decree passed by the competent Court the aforesaid parcel of land ought to have been divided equally among five co-parceners that is the father and his four sons who are the petitioners in this case. The author of the impugned order at Annexure-D to this petition has thereafter proceeded to club the one-fifth share of petitioner No. 5 with that of his father that is petitioner No. 1 on the ground that petitioner No. 5 was minor on the appointed day. ( 6 ) ). I think it would not be open to respondent No. 1 to go behind the decree passed by the competent Court. ( 6 ) ). I think it would not be open to respondent No. 1 to go behind the decree passed by the competent Court. It is true that petitioner No. 5 was a minor on the appointed day for the purposes of the Act. It is not in dispute that petitioner No. 5 was very much in existence when the aforesaid decree came to be passed in 1968. Smt. Mehta for the petitioners states at the Bar that petitioner No. 5 was born on 28th August 1965 as per his School Leaving Certificate. She has in her custody a xerox copy of the original School Leaving Certificate. It has been shown to Shri Chhaya for the respondents. He does not dispute that position transpiring from the aforesaid School Leaving Certificate. The existence of petitioner No. 5 on the date of the decree need not however by itself result in declaration of the decree passed by the competent Court as not binding. It is not in dispute that the aforesaid decree passed by the competent Court was on the record of the case. Smt. Mehta for the petitioners has shown to me a xerox copy of its certified copy. It has been shown to Shri Chhaya for the respondents. He does not dispute its correctness. It transpires therefore that the suit was filed in April 1965. Petitioner No. 5 was not born on that day. He was born about four months thereafter. He was however alive on the date of the decree that came to be passed in that suit. It appears that the parties to the suit missed the fact of his existence. It is equally possible that the parties might have thought at that time that the father and the other elder brothers of petitioner No. 5 would take care of him thereafter and that is why his share was not separately set apart in the decree. Be that as it may the fact remains that the aforesaid parcel of land was divided equally among petitioner No. 1 and his three sons who are petitioners Nos. 2 and 4 to the exclusion of petitioner No. 5 in equal proportion. Under the decree each of them got his one-fourth share in the aforesaid parcel of land. This decree became final qua the parties thereto. 2 and 4 to the exclusion of petitioner No. 5 in equal proportion. Under the decree each of them got his one-fourth share in the aforesaid parcel of land. This decree became final qua the parties thereto. If petitioner No. 5 was aggrieved thereby on attainment of majority he might have questioned its correctness by means of an appropriate proceeding and might have sought reopening of the partition. Smt. Mehta for the petitioners states at the Bar that petitioner No. 5 has instituted no proceeding whatsoever for questioning the correctness of the aforesaid decree. As transpiring from the School Leaving a Certificate petitioner No. 5 can be said to have attained majority way back on 28th August 1983. If no proceeding has been instituted by him after attaining majority the aforesaid decree passed by the competent Court would become final as between the petitioners herein. I think it was not open to respondent No. 2 to have gone behind that decree and divided the aforesaid parcel of land equally among the petitioners that is the father and his four sons contrary to the terms of the decree. ( 7 ) ). The correct position as reflected in the aforesaid decree passed by the competent Court would be that each of the first four petitioners will have his one-fourth share in the aforesaid parcel of land. The area thereof is found to be 6521. 69 square metres. That position is not in dispute. Its one-fourth would be to the urban agglomaration of Surat fixed under the Act is 1500 square metres. In that view of the matter the holding of each of the first four petitioners is in excess of the ceiling limit by 155. 40 square metres approximately. The total excess in the holding of the petitioners jointly would be to the tune of 621. 69 square metres after allowing to each of the first four petitioners one unit of 1500 square metres from the total area of 6621. 69 square metres. That area deserves to be declared surplus. ( 8 ) ). 40 square metres approximately. The total excess in the holding of the petitioners jointly would be to the tune of 621. 69 square metres after allowing to each of the first four petitioners one unit of 1500 square metres from the total area of 6621. 69 square metres. That area deserves to be declared surplus. ( 8 ) ). It is difficult to accept the submission urged before me by Smt. Mehta for the petitioners to the effect that the land which is required to be compulsorily kept open under the Building Regulations while constructing any property therein was rightly excluded by the Competent Authority and respondent No. 2 was not justified in not excluding it from the holding of the petitioners. The reason therefore is simple Under the relevant Building Regulations margin land is required to be kept open for beneficial use of the constructed property. In this connection a reference deserves to be made to the ruling of this Court in the case of Anilkumar Ravishanker Trivedi v. Competent Authority and Additional Collector reported in 1994 (2) Gujarat Current Decisions at page 609 It has been held therein that the margin land which is required to be kept open under the Building Regulations while constructing a building therein will have to be included within the purview of vacant land as defined in Section 2 (q) of the Act. In that view of the matter the aforesaid submision urged before me by Smt. Mehta for the petitioners cannot be accepted. ( 9 ) ). In view of my aforesaid discussion I am of the opinion that the impugned order at Annexure-D to this petition cannot be sustained in law in toto. It deserves to be modified by declaring that the holding of the petitioners is in excess of the ceiling limit by 621. 69 square metres. The matter deserves to be remanded to respondent No. 1 for preparing the final statement under Section 9 (1) of the Act in the light of this judgment of mine after giving an opportunity to the petitioners to select the excess land for surrender. On preparation of such final statement the petitioners would be required to surrender the land they have so chosen for surrender. ( 10 ) ). In the result this petition is party accepted to the aforesaid extent. On preparation of such final statement the petitioners would be required to surrender the land they have so chosen for surrender. ( 10 ) ). In the result this petition is party accepted to the aforesaid extent. The order passed by and on behalf of respondent No. 2 on 22nd June 1989 at Annexure-D to this petition is modified by declaring that the combined holding of the petitioners is in excess of the ceiling limit by 621. 69 square metres. The matter is remanded to respondent No. 1 for taking further action in the light of this judgment of mine. Rule is accordingly made absolute to the aforesaid extent with no order as to costs. .