Dipak Kumar Sen, J.
1. Alokendra Nath Mitter, the petitioner herein, applied to the Public Works Department, Salt Lake Branch, Government of West Bengal for allotment of a plot of land under the Salt Lake City Extension Scheme. By a letter dated the 11th August, 1975, the Assistant Secretary, Public Works Department, Government of West Bengal on behalf of the Governor offered a plot measuring about 5 cottahs in Sector I/II of the Salt Lake township for demise to the petitioner on lease for 999 years on the following conditions :--
(a) The petitioner would pay a premium or salami at the rate of Rs. 7000/-per cottah.
(b) The petitioner would deposit 50% of the said premium or salami as earnest money with the Reserve Bank of India Calcutta within a specified time and submit to the Government the receipted challan along with a formal application by way of unconditional acceptance of the terms of the proposed lease.
(c) The balance 50% of the premium or salami would be payable within two months from the date when the petitioner would be informed that the land was ready for delivery of possession.
2. Pursuant to the aforesaid, the petitioner duly deposited a sum of Rs. 17,500/- being 50% of the premium or salami and filed an application in the prescribed form accepting the offer.
3. By a letter dated the 28th October, 1975 the petitioner was informed by the Assistant Secretary, Government of West Bengal that he had been allotted Plot No. 28 in Block AB of Section I of the Salt Lake township. By a subsequent letter dated the 12th December, 1975 the said Assistant Secretary informed the petitioner that the said plot was ready for delivery of possession and that on actual measurement the area of the plot had been found to be 5.1992 cottahs. The petitioner was directed to pay a sum of Rs. 18,614/- towards the balance premium or salami within 60 days from the date of the said letter by depositing the said amount in the Reserve Bank of India, Calcutta. The petitioner was also directed to pay an additional sum of Rupees 30/- on account of the cost of fixing boundary pillars in the said plot.
4. The petitioner accordingly deposited the said amounts of Rs. 18,614.40 as also Rs. 30/- as directed.
5. By a letter dated the 2nd March, 1976, the said Assistant Secretary thereafter directed the petitioner to forward a draft deed of lease in respect of the said plot and to complete the execution and registration of the lease within 90 days from the date of issue of the said letter.
6. The petitioner alleges that he duly prepared a deed of lease, had the same duly stamped and submitted the same to the authorities for execution.
7. Thereafter, the Officer on Special Duty, Public Works Department, Metropolitan Development Branch of the Government of West Bengal by his letter dated the 10th May, 1976 directed the petitioner to 'submit an attested copy oi' the petitioner's return, if any, under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the said Act) or to file an affidavit before a First Class Magistrate furnishing the details of the petitioner's lands and buildings, if any, and also the land held by the petitioner's family in the urban areas of India. The petitioner was further directed to furnish a declaration that his acquisition of the said plot would not be hit by the said Act.
8. On or about 21st May, 1975, the petitioner affirmed an affidavit in the Court of the Metropolitan Magistrate, Calcutta. The particulars of land and building owned by the petitioner in the urban areas of India as stated in the said affidavit were as follows : (a) Premises No. 266B, Bipin Behari Ganguly Street, Calcutta on a fully built up area of two cottahs, 3 Chittacks, 5 sq. ft.; (b) Premises No. 10/5A Justice M. N. Mitra Row, Calcutta on a fully built up of one Cottah, 3 Chittacks, 43 sq. ft.; (c) Undivided 1/4th share in Premises No. 25, Bentink Street, Calcutta area of 6 Cottahs, 8 Chittacks which was also covered by building; (d) Undivided l/4th share in Premises No. 211/1A, and 221/1B, Bipin Behari Ganguly Street, Calcutta fully covering an area of 11 Cottahs 8 Chittacks, 25 sq. ft.; (e) Undivided 1/4th share in 36, Becharam Chatterjee Street, Behala approximately 10 Cottahs in area, covered by temporary structures and occupied by refugees since 1968.
9. The petitioner declared that in acquiring the said Plot No. 28 measuring 5 Cottahs he would not be affected by provision of the said Act and would not be liable to submit any return thereunder.
10. By a letter dated the 2nd November, 1976 the Deputy Secretary to the Government of West Bengal informed the petitioner that it had been determined by the Competent Authority on the petitioner's affidavit that after acquiring the said plot the petitioner would be holding vacant land in excess of ceiling limit in urban area and hit by the provision of the said Act. The petitioner was further informed that execution of the lease in respect of the said plot was accordingly not possible and he was requested to surrender the same to the Government immediately. The petitioner was also informed that on receipt of his letter of surrender necessary action for refund of the salami deposited by him would be taken up.
11. By his letter dated the 16th June, 1979, the petitioner made a representation before the Public Works Metropolitan Development Department and in support filed a report of a Chartered Engineer and Surveyor dated the 27th February, 1979. The petitioner was thereupon informed by the Section Officer, Public Works Metropolitan Development Department that it was not possible for the Government to allow the petitioner to hold or transfer the said plot. The petitioner was again directed to surrender the said plot and apply for return of salami deposit.
12. The petitioner is aggrieved by the aforesaid. The petitioner contends that the Competent Authority under the said Act decided the matter without any information to the petitioner and without any hearing. He contends further that vacant land in urban area owned by the petitioner measured only about 45 sq. meter whereas under the said Act the petitioner is entitled to hold 500 sq. metres of vacant land. The properties of the petitioner of which the petitioner was the sole owner or held an undivided share did not contain any vacant land within the meaning of the Act as such land appertaining to the said premises had to be kept vacant under the relevant municipal regulation and being less than 500 sq. metres were not to be taken into account in calculating vacant land for the purpose of the said Act,
13. In this application the petitioner has challenged the order and/or decision of the Public Works Department, Metropolitan Development Branch refusing to execute the lease in respect of the said plot in favour of the petitioner on inter alia the following specific grounds :--
(a) The Department has no authority to direct the petitioner to surrender the said plot under the said Act.
(b) Section 4 (1) of the said Act is ultra vires the said Act itself.
(c) The petitioner does not hold any vacant land which falls within the mischief of the said Act.
(d) Even after the acquisition of the said plot the petitioner's holding of vacant land would not exceed the ceiling limit imposed by the said Act.
14. The present Rule was issued on the 16th July, 1979 calling upon the respondents, namely, the Assistant Secretary, Public Works Department, Calcutta, the Deputy Secretary, Government of West Bengal, Public Works Department, Metropolitan Development Branch, Salt Lake Development Project Calcutta; the Competent Authority, Urban Land (Ceiling and Regulation) Act 1976 and the State of West Bengal to show cause why appropriate writs should not be issued directing them not to give any or any further effect of the impugned orders.
15. Learned Advocate appearing for the respondents stated on instruction that the issues involved in these proceedings were pure questions of law and as such it was not necessary to file any affidavit in opposition to this application. He however submitted for record that the respondents did not admit any of the allegations in the petition. With the consent of the parties the service of the Rule on the respondents was waived and the matter was heard on merits.
16. At the hearing learned Advocate for the respondents relied upon and drew my attention to Sections 4 (1) (a) and 4 (9) of the said Act which provide as follows :--
'4 (1) (a) : Where the vacant land is situated in an urban agglomeration falling within category A specified in Schedule I, five hundred square metres.'
4 (9) : Where a person holds vacant land and also holds any other land on which there is a building with a dwelling unit therein, the extent of such other land occupied by the building and the land appurtenant thereto shall also be taken into account in calculating the extent of vacant land held by such person'.
Learned Advocate contended that by reason of the provisions of the said sections if the plot in dispute was transferred to the petitioner by way of a long term lease the petitioner would be holding vacant land far in excess of the ceiling limit. The urban area involved fell within category 'A' specified in Schedule I of the Act and the petitioner was entitled to hold only 500 sq. metres i. e. about 5379 sq. ft. The Salt Lake Authorities were, therefore, justified in refusing to execute a lease in respect of the said plot in favour of the petitioner and cancelling the allotment thereof to him as otherwise they would be violating the provisions of the said Act and committing an illegality.
17. Learned Advocate for the petitioner on the other hand referred to Section 2 (q) and Section 4 (11) of the Act which read as follows :--
'2 (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 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 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.'
'4 (11). For the removal of doubts it is hereby declared that nothing in Subsections (5), (6), (7), (9) and (10) shall be construed as empowering the competent authority to declare any land referred to in Sub-clause (ii) or Sub-clause (iii) of Clause (q) of Section 2 as excess vacant land under this Chapter.'
18. Learned Advocate for the petitioner contended that buildings owned by the petitioner having been constructed in accordance with municipal plans and not having any excess vacant land did not come within the mischief of Section 4 (9) of the Act. The petitioner holds only 45 sq. metres of open land which is far below the ceiling limit of 500 sq. metres.
19. The following further sections of the said Act appears to be of some relevance in the instant case :
2 (g) : 'Land appurtenant', in relation to any building,' means --
(i) in any 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 dwellling 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. 'Except as otherwise provided in this Act, on and from the commencement of this Act, no person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which this Act applies under Sub-section (2) of Section 1.'
20. The object of the said Act as set out therein are the following :--
(a) Imposition of a ceiling on vacant land in urban agglomeration;
(b) Acquisition of such land in excess of the ceiling limit;
(c) Regulation of construction of building on such land with a view to prevent concentration of the urban land in the hands of a few and to bring about an equitable distribution of land in urban agglomeration.
21. In the instant case it is not in dispute that the existing holding of the petitioner and the said plot which the petitioner proposes to acquire all come within the definition of urban land. It is also not in dispute that ceiling so far as the petitioner is concerned is 500 sq. metres and the petitioner is not entitled to hold any vacant land in excess of 500 sq. metres.
22. Vacant land has been defined clearly in Section 2 (q) and does not include land on which construction of a building is not permissible under the building regulations in force in the area or land occupied by building which has been constructed at the material time and the land appertaining to such building.
23. Land appurtenant to buildings has been defined in Section 2 (g) and means minimum extant of land required under regulations if any to be kept open but up to a limit of 500 sq. metres.
24. The petitioner's case is that his existing holding consists of covered area of 1306.46 sq. metres and vacant land of only 121.83 sq. metres as land appurtain-ing to the buildings. No part of such land can be held to be vacant land under Section 2 (q).
25. The case of the respondents rest only on Sub-section (9) of Section 4 of the said Act which provides that where a person holds vacant land and also holds any other land on which there is a building or a dwelling unit the land occupied by the building and the land appurtaining thereto shall also be taken into account in calculating the extent of the vacant land. Sub-section (11) of Section 4 of the Act however makes it quite clear that nothing in Section 4 (9) would be construed to have empowered the competent authority to declare any land referred to in Section 2 (q) (ii) or (iii) as excess vacant land.
26. On a consideration of the entire scheme of the Act it appears to me that even if the construction of Sub-section (9) of Section 4 of the said Act as suggested by the respondents is accepted to be correct the same cannot apply at this stage in the case of the petitioner as it is nobody's case that at present the petitioner is holding any vacant land. It is only after the petitioner acquires the plot as vacant land then the said Sub-section (9) might come into play and the question of the petitioner holding any vacant land beyond the ceiling might arise.
27. It also appears to me that Sub-section (9) of Section 4 does not expressly provide anything contrary to what has been laid down in Section 2 (q) of the Act. On the contrary, it has been clarified by Section 4 (11) that the Competent Authority by taking recourse to Section 4 (9) cannot declare any vacant land as excess.
28. In any event, it is possible to reconcile Sections 2 (q), 2 (g) and 4 (9). Where land appurtaining to a building exceeds 500 sq. metres then it ceases to get the benefit of exemption of Section 2 (g) and comes within the mischief of Section 4 which imposes the ceiling. Therefore in determining or calculating the holding of vacant land by any person the Competent Authority has to take into account any land occupied by any building and the land appurtaining thereto. Land occupied by any building comes within the ambit of Section 2 (q) and in no case can be held to be vacant land. Land appurtenant to such building is covered by Section 2 (g) and as long as the same does not exceed 500 sq. metres cannot be categorised as vacant land. All that Section 4 (9) lays down is that the Competent Authority will take into account land occupied by building and land appurtenant thereto in determining whether any person's holding of vacant land exceed the ceiling or not. Section 4 (9) does not empower the Competent Authority to override any other express section of the Act. On the contrary Section 4 (11) expressly debars the Competent Authority from overriding Section 2 (q). The construction of the relevant sections as suggested on behalf of the respondents is not only contrary to the well-known principle of harmonious construction of statutes but will in effect make Sections 2 (q) and 2 (g) of the said Act nugatory.
29. In the instant case the lands appurtaining to the buildings in the petitioner's existing holding do not exceed 500 sq. metres in toto. Therefore, even if such holdings are taken into account it cannnot be held that the petitioner would be holding vacant land beyond the ceiling, in the event, the said plot is demised to him.
30. For the reasons above the petitioner succeeds in this application. A writ in the nature of Mandamus will issue directing the respondents not to give effect to the impugned decision of the Competent Authority holding that after acquiring the said plot the petitioner would be holding vacant land in excess of the ceiling limit and to call upon the petitioner to surrender the allotment of the said plot in his favour and obtain refund of the salami paid by him in respect of the said plot. There will be a further direction on the respondents to act in accordance with law and demise the said (plot) in favour of the petitioner. There will be no order as to costs.