( 1 ) IN view of the importance of the question raised in the Writ Petition, the matter has been placed before us for decision.

( 2 ) THE question relates to the scope and ambit of Cl. (b) of S. 2 (q), Urban Land (Ceiling and Regulation) Act, 1976 (Act 33 of 1976) (shortly called the Act ).

( 3 ) THE matter arises in this way : respondent 1, Radha Raman Agarwal is the owner of the four plots of land measuring 1420, 125, 300, and 100 sq. metres respectively. In all it measures 1945 sq. metres. The plots are located in Bareilly city which is a category C of the urban agglomeration in Schedule I of the Act. The maximum ceiling prescribed for such cities is 1500 sq. metres. The competent authority initiated proceedings under the Act for determining the excess land held by respondent 1. By order dated April 30, 1977 it was held that an extent of 445 sq. metres is surplus which respondent 1 is not entitled to hold. Respondent 1 preferred an appeal to the District Judge, Lucknow who allowed the appeal and held that no part of the land held by respondent 1 is in surplus. He has observed that under the Building Regulations or Direction 20-C, 1176 sq. metres of the land in respect of which no construction of building is permissible and, therefore, liable to be excluded from the ceiling limit under Cl. (i) of S. 2 (q ). He has stated thus : "it is not disputed that the Regulation of Buildings Operations Act 1958 was applied to Bareilly in November, 1971. Direction 20 (c) of the R. B. O. Act lays down that depending upon the area of the plot, certain portion of the land is not to be built upon. The area on which construction is prohibited under the R. B. O. Act is not to be taken into account while calculating the vacant land under s. 2 (q) of the Ceiling Act. In the light of the above Direction 20 (c) of the R. B. O. Act, an area of 1176 sq. metres is not to be constructed upon and hence this area is to be excluded from the total area (1945 sq. metres) of the four plots. The vacant land with the appellant is, thus, 769 sq. metres only and this is far less than the vacant land he is entitled to retain. I must, therefore, accept the contention of the appellant that there is no surplus land with him. "

( 4 ) THE State has challenged the decision of the learned District Judge in this petition under Art. 226 of the Constitution.

( 5 ) IN order to appreciate the contentions raised before us, it is necessary to refer to a few provisions of the Act. Under S. 3 of the Act it is provided 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.

( 6 ) SECTION 4 prescribes the ceiling limit with reference to four categories of urban agglomeration.

( 7 ) SECTION 2 (q) defines vacant land 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 : xx xx xx proviso is omitted as unnecessary. "land appurtenant has been defined under S. 2 (q) as follows : "2 (q) 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 e