A tank situated within the municipal limits of Calcutta can be considered 'vacant land' under S. 2(q) of the Urban Land (Ceiling and Registration) Act, 1976, if construction of a building on it is not expressly prohibited by the building regulations applicable to the area.

The only question that fails for determination in this application under Article 226 of the Constitution of India is whether a tank situated within the municipal limits of Calcutta is a 'vacant land' under S. 2(q) of the Urban Land (Ceiling and Registration) Act, 1976 (Act for short). The question arises on the following facts.

2. The petitioner is the owner of premises No. 6B, Ironside Road, Calcutta which include a tank. According to the petitioner the total area of 'vacant land' held by her is within the ceiling laid down by the Act. On August 19, 1979 she gave a notice to the respondent No. 2, the competent authority under the Act, intending to transfer of an area of 500 Sq. metres of the said tank by way of sale in favour of Purbarag Samabaya Abasan Limited, a Housing Co-operative Society registered under the Co-operative Societies Act, in accordance with the provisions of S. 26 of the Act. In reply to the said notice the respondent No. 2 informed the petitioner, by his letter dated October 16, 1979 (Annexure 'C' to the application) that the provisions of S. 26 of the Act were not applicable to the intended transfer as she held vacant held in excess of the ceiling limit; her notice had not been acknowledged as a valid one; and the transfer of premises No. 6B, Ironside Road could not be allowed.

3. In this application the petitioner challenges the said letter of the respondent No. 2 on the ground that tank cannot be treated as 'vacant land' under S. 2(q) of the Act and excluding the tank, the other 'vacant land' owned and possessed by the petitioner does not exceed the limit prescribed under the Act. In support of her contention the petitioner relied upon clause (i) of S. 2(q) of the Act, which provides that 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 is not to be treated as vacant land. According to the petitioner the rules as to the use of building sites and the execution of building work within the municipal limits of Calcutta, as detailed is Schedule XVI of the Calcutta Municipal Act 1951, do not permit construction of a building on a land which is a tank and consequently Clause (i) of S. 2(q) of the Act comes in aid of the petitioner to exclude the tank, she proposes to transfer, from the vacant land belonging to her.

4. Mr. Sadhan Gupta, the learned Additional Advocate General appearing of the respondent Nos. 1 & 2 on the other hand contended that the provisions of the Calcutta Municipal Act or the rules made there under do not expressly bar construction of any building on a land which is a tank and consequently tank has got to be treat s 'vacant land' under the Act.

5. On going through the relevant provisions of the Calcutta Municipal Act in the light of the definition of 'vacant land' under the Act, I am unable to accept the contention of the petitioner. Rule 1 in part I of Schedule XVI of the Calcutta Municipal Act 1951, as amended by the amending Act of 1977 provides in its different clauses, land which cannot be used as a site for the erection of a building and the relevant clauses read as follows:–

"(1) …. …. ….

(2) If the site is within ten metres of a tank, unless the owner taken or satisfies the Commissioner that he will take, such action as will prevent any risk of the drainage of the building passing into the tank;

(3) If the site is a filled up tank, or has been filed up with, or used for depositing rubbish, offensive matter or sewage, unless the Commissioner has caused the site to be examined and granted a certificate to the effect that it is from sanitary and engineering point of view, fit to be built upon;

(4) If the building to be erected is intended for human habitation, unless the site is certified by the Commissioner to be dry and well drained, or unless the Commissioner is satisfied that it is capable of being drained and that the owner will take necessary steps to drain it; and

(5) …. …. ….

6.