JUDGMENT : BELA M. TRIVEDI, J. 1. The petitioners, who happen to be the legal heirs of the original owner late Shri Amrutlal Jamnadas Lakdawala of the subject land, had filed the present petition for quashing and setting aside the order dated 19.12.1986 passed by the respondent No. 1 - competent authority and Deputy Collector (Annexure-B) and the order dated 22.10.1990 passed by the ULC Tribunal, Surat (Annexure-C) declaring the land admeasuring 1066.7 sq. mtrs. out of the Survey No. 486 as the excess vacant land. 2. It appears that the petition was earlier disposed of by the Single Bench vide the order dated 05.05.1999 on the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the ULC Act) having been repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as the Repeal Act), having come into force. Being aggrieved by the said order, the State Government had preferred the Letters Patent Appeal No. 456 of 2003. The Division Bench vide the common order dated 29.07.2004 allowed the said Letters Patent Appeal along with others, and set aside the order passed by the Single Bench and further remanded the matter to the Single Bench for deciding it afresh on merits. The respondent No. 1 thereafter filed an affidavit-in-reply, to which the petitioners have filed an affidavit-in-rejoinder. It also appears that pending the petition, considering the subsequent events, the Surat Urban Development Authority, the Town Planning Officer and the Surat Municipal Corporation were permitted to be impleaded as the respondent Nos. 3 to 5 in the petition. 3. As per the case of the petitioners, late Shri Amrutlal Jamnadas Lakdawala had filled in form No. 1 under Section 6 of the ULC Act, declaring his holdings including the land bearing Survey No. 486 admeasuring 1 acre 2 gunthas i.e. 5767 sq. mtrs. situated at village Vasu. According to the petitioners, the said Amrutlal had applied on 13.08.1976 to the State Government seeking exemption in respect of the said land bearing Survey No. 486 under Section 20 of the ULC Act for using it for agricultural purpose. The competent authority by the order dated 23.05.1978 held that as the said land was falling within the agricultural zone, it could not be treated as the vacant land and therefore, the question of granting exemption does not arise (Annexure-A). The competent authority by the order dated 23.05.1978 held that as the said land was falling within the agricultural zone, it could not be treated as the vacant land and therefore, the question of granting exemption does not arise (Annexure-A). The respondent No. 1-competent authority thereafter vide the order dated 15.12.1980 filed the form No. 1 of the said Amrutlal on the ground that the said land fell within the agricultural zone in the master plan. It appears that the said order was taken in the suo motu review by the State Government and without giving any opportunity of hearing to the said Amrutlal, the State Government set aside the order of competent authority and remanded the case to the competent authority for deciding it afresh after holding requisite inquiry. The competent authority thereafter again reconsidered the case and vide the order dated 19.12.1986 held that the said Amrutlal held 1066.7 sq. mtrs. of land, out of the Survey No. 486 as the excess vacant land (Annexure-B). It appears that thereafter the said Amrutlal Jamnadas having expired on 25.07.1988, the petitioners preferred an appeal before the ULC Tribunal along with the application seeking condonation of delay on the ground that they were not aware about the said order passed by the competent authority. The said appeal was registered as Appeal No. 20 of 1990 before the ULC Tribunal. The said Tribunal taking lenient view regarding the delay, condoned the same, however dismissed the appeal on merits vide the impugned order dated 22.10.1990 (Annexure-C). Hence, the petitioners had filed the present petition. 4. After the remand of the petition by the Division Bench, the petitioner No. 2 had filed an affidavit-in-rejoinder stating inter-alia that subject land being Survey No. 486 (New Block/Survey No. 281) of Vesu was an agricultural land, placed in the agricultural zone in the master plan at the time of commencement of the ULC Act, and new master plan published by SUDA putting the same in residential zone, could not be made applicable as the same was made effective from 22.11.1988. The petitioners further contended that the petitioners were eligible for five units and not one, as granted by the ULC authorities. The petitioners further contended that the petitioners were eligible for five units and not one, as granted by the ULC authorities. The petitioner also contended that the competent authority was aware about the canal passing from the middle of the land bearing Survey No. 486 dividing the same in three parts, and therefore, the land required to be kept open under the SUDA Building Regulations, where the construction was not permissible in the margin land upto 12 mtrs, could not have been treated as the vacant land. Alternatively, it has been stated that the actual physical possession of the subject land was not taken over by the respondent authorities, inasmuch as the subject land was covered under the Preliminary Town Planning Scheme No. 6 (Vesu), Surat and under the said scheme, the old Survey No. 486 was given new Survey No. 281 and the petitioners were allotted the original plot Nos. 34, 35 and 36 admeasuring 2400 sq. mtrs. According to the petitioners, the said original plots were reconstituted as final Plot No. 37 admeasuring 1990 sq. mtrs. under the Preliminary Town Planning Scheme No. 6 (Vesu) as per Annexure R-V collectively. The petitioners were also served with the notice under Section 67 of the Town Planning Act for variation in the area of land in question, and pursuant to the said notice, the possession of excess land was handed over by the petitioners to the Surat Municipal Corporation, and the petitioner had also paid the incremental contribution under the said TP Scheme (Annexure R-VI). According to the petitioners, they are in possession of the said final plot No. 37. 5. The respondent No. 1 has filed additional affidavit-in-reply, contending inter-alia that after the declaration of subject land as the excess vacant land, the notification under Section 10 (3) was issued on 12.09.1989 and the notice under Section 10(5) was also issued to the petitioners through registered post, which was received by them. Thereafter the possession of subject land was taken over on 17.03.1990 as per the panchnama drawn (Annexure A7), and the order for compensation under Section 11 was also passed. The respondent No. 4 – Town Planner has also filed affidavit-in-reply stating inter-alia that the draft town planning scheme was framed under the Gujarat Town Planning and Urban Development Act, 1976, which was approved by the State Government on 22.12.1995. The respondent No. 4 – Town Planner has also filed affidavit-in-reply stating inter-alia that the draft town planning scheme was framed under the Gujarat Town Planning and Urban Development Act, 1976, which was approved by the State Government on 22.12.1995. Thereafter, the Preliminary Town Planning Schcme was approved by the State Government on 29.09.2008, and the final Town Planning Scheme was approved by the State Government on 22.01.2014 (Annexure R-1 collectively). Under the said scheme, the revenue Survey No. 281 admeasuring 2400 sq. mtrs. was given final plot No. 37 admeasuring about 1990 sq. mtrs. It is further stated that the allotment of final plot to the concerned persons with their respective proportion of original plot, was reflected in the map prepared by the competent authority. The respondent No. 3 i.e. SUDA has also filed an affidavit-in-reply stating inter-alia that as per regulation No. 14 of the General Development Control Regulations, which came into force from 03.03.1986, no development was permissible within 4.5 mtrs. from the canal. The said regulation was subsequently amended in the year 2004, and it was provided that no development was permissible within 9 mtrs. from the canal. 6. The learned advocate Mr. Gandhi for the petitioners submitted that the land in question was originally agricultural land for which the exemption under Section 20 was also sought, however the competent authority at the relevant time, had replied that the land was already under the agricultural zone in the master plan and therefore, no such exemption was required. He further submitted that the competent authority thereafter had filed the form filled in by the father of the petitioners, however, the State Government having taken the case in review, had, ex-parte without granting any opportunity of hearing to the deceased Amrutlal, set aside the order of competent authority and remanded the case for deciding it afresh. According to him, the competent authority though considered that the canal was passing through the said survey number, had erroneously declared 1066.7 sq. mtrs. out of the said survey number as excess vacant land. The Appeal filed by the late Shri Amrutlal was also wrongly rejected by the ULC Tribunal. He brought to the notice of the Court that the possession of the land in question having not been taken over by the respondent-State, the petitioners were allotted the final plot No. 37 in lieu of the original plot Nos. The Appeal filed by the late Shri Amrutlal was also wrongly rejected by the ULC Tribunal. He brought to the notice of the Court that the possession of the land in question having not been taken over by the respondent-State, the petitioners were allotted the final plot No. 37 in lieu of the original plot Nos. 34, 35 and 36 and that the petitioners are in possession of the said final plot. He lastly submitted that the petitioners were not served with any notice under Section 10(6) of the ULC Act and therefore, possession if any, taken on the paper by drawing panchnama, could not be said to be legal possession of the State Government. However, the learned AGP Mr. Venugopal Patel strenuously urged that the possession of the land in question was already taken over on 17.03.1990 by drawing panchnama. He further submitted that the ULC Act having been repealed in March 1999, the subject land had legally vested in Government with possession. Relying upon the affidavit-in-reply filed by the respondents and map annexed to the affidavit-in-reply filed by the respondent No. 4 the Town Planner, he submitted that the final plot was allotted to the concerned persons in respect of their respective right in the original plot as per the map and accordingly, the ownership right in final plot was as per their share in the original plot. 7. Having regard to the submissions made by learned advocates for the parties and to the documents on record, it appears that the petition was earlier disposed of by the Single Bench on the ULC Act having been repealed by the Repeal Act in 1999, however, the said order having been set aside by the Division Bench in the Letters Patent Appeal, preferred by the State Government, again matter was remanded for deciding it afresh on merits. In this regard, it may be stated that as observed by the Supreme Court in the case of Rameshchandra Shamjibhai Raniga vs. State of Gujarat and Others, 2000 (4) GLR 2777 , the power of judicial review being part of basic structure of the Constitution, power of Court to examine whether the order passed under the Principal Act was valid or not, would survive. Hence, though the ULC Act was repealed in 1999, pending this petition, the Court could examine the validity of the impugned orders passed by the ULC Authorities, when the said Act was in force, in the light of the subsequent developments which have taken place. 8. As stated herein above, pending the ULC proceedings and the pending present petition, the draft town planning scheme was finalized and accordingly, old survey No. 486 was given new Survey No. 281 and the original plot No. 34, 35 and 36 were given to the survey No. 281, admeasuring 2400 sq. mtrs. Thereafter, the said original plots were reconstituted as final plot No. 37 admeasuring 1900 sq. mtrs., which was allotted to the petitioners. It appears that the petitioners were also served with the notice under Town Planning Act with regard to the variation in the area and about handing over of possession of the excess land. The petitioners also appear to have paid the incremental contribution as per Annexure R-VI annexed to the affidavit-in-rejoinder filed by the petitioners. The Court had repeatedly asked the learned AGP as to how the petitioners were allotted the original plot No. 34, 35 and 36, and thereafter the reconstituted plot No. 37, if the possession of the original survey No. 486 (New Survey No. 281) was taken over by the State Government in 1990 as sought to be claimed by the respondents, however no satisfactory explanation has been submitted by any of the respondents in affidavits filed by them. Though it has been sought to be shown that the possession of the subject land i.e. original survey No. 486 was taken over by drawing panchnama on 17.03.1990, it appears that the actual physical possession was not taken over from the petitioners, nor any entry was made in the revenue record in that regard. As a result thereof, the petitioners came to be allotted the original plot No. 34, 35, 36 and reconstituted the final plot No. 37 in lieu of the said original plot, as per the redistribution statement produced at Annexure R-1 collectively annexed to the affidavit-in-reply filed by the respondent No. 4. In view of the said statements and map annexed to the said statements, it appears that the said final plot was allotted to the petitioners subject to the rights of the concerned persons if any existing in the original plots. In view of the said statements and map annexed to the said statements, it appears that the said final plot was allotted to the petitioners subject to the rights of the concerned persons if any existing in the original plots. The Court therefore finds substance in the submission of learned advocate Mr. Gandhi that the possession of the old survey No. 486 (New Survey No. 281) having not been taken over from the petitioners on the date of the repeal of ULC Act, the subject land could not be said to have legally vested in the Government. The respondent-State authorities have also failed to establish as to how the land in question had stood legally vested in the Government before the ULC Act was repealed, more particularly when the petitioners have been allotted the final plot in lieu of the original plot under the T.P. Scheme. 9. Even otherwise, as transpiring from the impugned order passed by the ULC Tribunal, out of the total area of survey No. 486 admeasuring 1 acre 2 gunthas, an area of 18 gunthas was occupied by the canal, and the remaining area of 24 gunthas out of survey No. 486 was shown in the holdings of late Shri Amrutlal. It further appears that the Tribunal had considered the definition of vacant land, as contained in Section 2(q) of the ULC Act and also Rule 14 of the SUDA Building Rules, which specifically prohibited construction within 15 mtrs. on the either side of the bank of river. However, the Tribunal did not grant any deduction of such margin land, where the construction was not permissible, and which could not have been treated as the vacant land under Section 2(q) of the said Act. The Court also therefore finds substance in the submission of Mr. Gandhi that the competent authority as well as the Tribunal had committed error in including such margin area where the construction was not permissible, in the holdings of the deceased Amrutlal, for declaring the same as vacant land. 10. In that view of the matter, the impugned orders passed by the Tribunal as well as by the competent authority being erroneous, are quashed and set aside. The petition stands allowed accordingly. Rule is made absolute.