JUDGMENT The judgment of the Court was as follows :–– This writ petition involves a short question as to whether a Thikader is entitled to raise construction or not. 2. Shortly stated the fact of the matter is as follows:–– The petitioner is a thika tenant in respect of Premises No.3, Meridith Street, Calcutta and has been paying rent to the State. Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 came into force with effect from 18th January, 1982 (hereinafter referred to as 'the said Act'). Section 20 of the said Act provides for a rule making power, in terms whereof a rule was made known as Calcutta Thika Tenancy (Acquisition and Regulation) Rules, 1982 (hereinafter referred to as 'the said Rules'). The said Act was amended in terms of the Calcutta Thika Tenancy (Acquisition and Regulation) Amendment Act, 1993. 3. It is not in dispute that in terms of the provision of the said Act a Thika Tenant becomes a direct tenant under the State. 4. By reason of the aforementioned Amendment Act, 1993, inter alia, sub-sections (3) and (4) of Section 6 were amended. 5. Section 6(1) as it originally stood and sub-sections (3) and (4), as amended by Section 7 of the said Amendment Act read thus :–– "(1) Subject to the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976) and the provisions of this Act, every thika tenant and any tenant, in respect of other lands which vest under Section 5, occupying any land under landlord on the date of commencement of this Act, shall occupy such land on such terms and conditions as may be prescribed directly under the State as if the State had been the landlord in respect of that land. (3) The interests of thika tenant and tenants of other lands holding directly under the State under sub-section (1) shall be heritable and shall not be transferable except inter se amongst the heirs and existing co-shares-interest or to the prospective heirs, subject to the provisions of sub-section (1) of Section 7. (3) The interests of thika tenant and tenants of other lands holding directly under the State under sub-section (1) shall be heritable and shall not be transferable except inter se amongst the heirs and existing co-shares-interest or to the prospective heirs, subject to the provisions of sub-section (1) of Section 7. (4) The thika tenants and tenants of other lands holding directly under the State under sub-section (1) shall be entitled to construct pucca structures in accordance with the building plans sanctioned under the Calcutta Municipal Corporation Act, 1980 (West Bengal Act LIX of 1980), and the rules made thereunder, or the Howrah Municipal Corporation Act, 1980 and the rules made thereunder, according as the land may be situated within Calcutta as defined in Clause (9) of Section 2 of the Calcutta Municipal Corporation Act, 1980 (West Bengal Act LVIII of 1980), or Howrah as defined in Clause (15) of Section 2 of the Hawrah Municipal Corporation Act, 1980 for –– (a) Residential and business purposes for themselves and the Bharatias under them; and (b) essential common facilities like common pathway, common bath, toilet, water supply, drainage, sewerage, lighting and similar other purposes". 6. Rule 3 (k) which is material for the purpose of this case, reads thus :–– "No part of the land shall be used or permitted to be used for any purpose, other than that for which it was occupied on the date of commencement of the Act, or in any manner which renders it unfit for use for the purpose for which it was occupied on such date". 7. The contention raised in this application is that upon amendment of sub-sections (3) and (4) of the Act, Rule 3(k) has become redundant and in any event, the respondents are bound to grant permission to the petitioner to raise construction in terms of the provision of Regulation 13 of the Calcutta Municipal Corporation Building Regulations. According to the petitioner, there existed structures which were used for business purpose consisting of shop-rooms. 8. It is not disputed that the petitioner filed an application for sanction of a building plan which was forwarded by Thika Controller to the authorities of the Calcutta Municipal Corporation. According to the petitioner, there existed structures which were used for business purpose consisting of shop-rooms. 8. It is not disputed that the petitioner filed an application for sanction of a building plan which was forwarded by Thika Controller to the authorities of the Calcutta Municipal Corporation. Calcutta Municipal Corporation, however, raised an objection that the said permission for Pucca construction was wrongly granted as only on the residential portion of the site plan existing five shops were lying undisturbed and therein no residential portion was shown. 9. On 3.11.995 an application was filed by the petitioner before the Thika Controller for clarification inter alia, stating that nowhere in site plan it was mentioned residential portion. 10. The Thika Controller, however, was of the opinion that a mistake had been committed by him by giving permission earlier in view of Rule 3(k) aforementioned as the purpose of the tenancy can not be changed. The petitioner filed another application on 14.3.1995 explaining the position, a copy whereof is contained in Annexure 'F' to the writ application. However, according to the petitioner, he had been filing those applications under wrong impression that such permission was required to be obtained from the Thika Controller. 11. An affidavit-in-opposition has been filed wherein, inter alia, it was stated that one Lachmi Mani Dasi filed a writ application in this Court questioning the vires of the said Act and some of the provisions thereof were declared unconstitutional. State of West Bengal thereafter filed a special leave application and such leave was granted and the judgment and order of this Court dated 8.7.1987 was stayed and status quo were directed to be maintained as of today in the pending appeals. 12. After the aforementioned amendment came into force, Lachmi Mani Dasi also filed a writ application before the Supreme Court of India which was marked as Writ Petition No. 273 of 1995 wherein a Rule was issued and the matter was directed to be heard along with C. A. No. 3713 to 3900 of 1987 before the Constitution Bench. It is also stated that from a receipt as contained in Annexure 'A' to the said Affidavit-in-Opposition it would appear that the address of the petitioner is 68/A, Meridith Street and not 3, Meridith Street. It is also stated that from a receipt as contained in Annexure 'A' to the said Affidavit-in-Opposition it would appear that the address of the petitioner is 68/A, Meridith Street and not 3, Meridith Street. It is also denied that there exists any residential portion at 3, Meridith Street and thus, according to the respondents no permission could be given. It is stated that the earlier permission dated 1.8.1994 was given through inadvertence. 13. Mr. S. K. Ghosh, the learned Counsel, appearing on behalf of the appellant, inter alia, submitted that, keeping in view the fact that the respondents had earlier granted permission of construction, it cannot now take recourse to the provision of Rule 3(k) of the said Rules. In any event the learned Counsel contends the said Rule 3(k) must be held to be ultra vires Sections 6(3) and 6(4). It has also been submitted that the Thika Controller in fact has granted permission in more than 150 cases. The learned Counsel has further drawn my attention to the statements made in the affidavit-in-reply and in particular Annexures 'E', 'F' and 'G' thereto for showing that there does not exist any inconsistency in the identity of the land. 14. Mr. Tapan Dutta, the leaned Counsel, appearing on behalf of the respondents, on the other hand, submitted that as in terms of sub-section (1) of Section 6 a Thika Tenant becomes a tenant under the State on the condition prescribed under the Rules. Rule 3(k) would be applicable despite amendment. It is submitted that sub-sections (3) and (4) of Section 6 as amended in the year 1993 cannot control subsection (1) of Section 6. 15. From the facts as noticed hereinbefore, it is thus, evident that earlier the Thika Controller had granted permission but he sought to withdraw the same without assigning any reason therefor. 16. It is a settled law that rules framed under an Act being in the nature of subordinate Legislation cannot be framed in such a manner so as to become inconsistent with the Act. 17. In (1) Huzart Syed Shah Mustarshid Ali Al Quadari v. Commr. of Wakfs and Ors. reported in AIR 1954 Calcutta 436, a learned Single Judge of this Court held :- "In some statutes, power is given to frame rules and when so framed, they are made part of the statute. That is quite a different matter. 17. In (1) Huzart Syed Shah Mustarshid Ali Al Quadari v. Commr. of Wakfs and Ors. reported in AIR 1954 Calcutta 436, a learned Single Judge of this Court held :- "In some statutes, power is given to frame rules and when so framed, they are made part of the statute. That is quite a different matter. In such a case, it might be permissible to supplement the provisions of the statute itself, within limits. But where rules are to be framed for "carrying out the purposes of the Act", such rules cannot travel beyond the four corners of the Act itself. In any event, such rules framed in respect of Section 40, could not grant power to the Board, not conferred by Section 40 itself. In the case of statutory rule, the Court can always go into the question as to whether they are inconsistent with the statute under which they are made, Hals. Vol. 31 pp. 468 & 575––(2) Mackey v. Monks (Preston) Ltd., (1918) AC 59(B); (3) Ganendra Kumar v. Narayan Chandra, AIR 1953 Cal 562 notice under an Act, imposing time limit not found in the Limitation Act". 18. It appears that the said decision has been reversed on other points in (4) Commissioner of wakf v. Hazarat Syed Shah Muslar Shid Ali Al-qua reported in 59 CWN 436. 19. In (5) Radha Krishan v Compensation Officer, Meja, Allahabad & Ors. reported in AIR 1954 Allahabad 202, Raghubar Dayal, J. (as His Lordship then was) stated the law thus :–– "Rules cannot take away what is given by the Act. Rules are for the purpose of carrying out the provisions of the Act." 20. In (6) Satyanarayan Saw Mill v. Satyanarayan Bagla reported in 1992(1) Calcutta Law Times 441, a Learned Single Judge of this Court held that where a tenant was residing in kutcha structure, conversion thereof into pucca structure would not alter the nature of tenancy and convert the same into one under Transfer of Property Act from that under Calcutta Thika Tenancy Act. 21. 21. In the (7) Commissioner of Income-Tax, Madras v. S. Chenniappa Mudaliar reported in AIR 1969 SC 1068 , the Supreme Court observed :–– "Assuming that for the aforesaid reasons the Appellate Tribunal is competent to set aside an order dismissing an appeal for default in exercise of its inherent power there are serious difficulties in upholding the validity of Rule 24. It clear comes into conflict with sub-section (4) of Section 33 and in the event of repugnancy between the substantive provisions of the Act and a rule it is the rule which must give way to the provisions of the Act." 22. In (8) Commissioner of Income-Tax, Jullundur v. Ajanta Electricals, Punjab reported in 1995(4) SCC 182 the Supreme Court held that the rules would have the same force as the Section of the Act unless they affect or control the Section or derogate from it. 23. In (9) Bihar Motor Transport Federation & Ors. v. State of Bihar & Ors. reported in AIR 1995 Patna 188 a Division Bench of the Patna High Court of which I was a member, it was held that unless a power is granted under the Act, no Rule can be framed to impose fine for the purpose of "to carry out effect of the provision of the Act." 24. In (10) Vishwanath Prasad & Ors. v. Election Officer, Agricultural Produce Market Committee, Madhubani reported in 1993 (2) BLJR 1320 a Division Bench of the Patna High Court has clearly held that in a case where there exists inconsistency between Act and the Rule, the Act shall prevail. 25. It is further well known that even in a case where Rule is to be constructed "as if enacted", would also be subject to the provisions of the Act. 26. In the light of the aforementioned decisions the provision of Section 6 vis-a-vis Rule 3(K) have to be considered. 27. In terms of sub-section (1) of Section 6 a Thika Tenant is to occupy such a land on such terms and conditions as may be prescribed directly under the State as if the State had been the landlord in respect of the land. 28. 27. In terms of sub-section (1) of Section 6 a Thika Tenant is to occupy such a land on such terms and conditions as may be prescribed directly under the State as if the State had been the landlord in respect of the land. 28. Rule 3 of the Rules specifies various conditions, one of the conditions being stated in Sub-Rule (k) thereof which prohibits user of the land for any purpose other than that for which it occupied on the date of commencement of the Act. 29. However, only by reason thereof, the right of a Thika Tenant conferred upon him in terms of sub-sections (3) and (4) of Section 6 cannot be taken away. Sub-section (4) of Section 6 states that thika tenant shall be entitled to construct pucca structures in accordance with building plan sanctioned under the Calcutta Municipal Corporation Act and the Rules made thereunder or the Howrah Municipal Corporation Act and the Rules made thereunder. Such a right of construct pucca structure without any qualification whatsoever cannot be read as a restrictive right and subject to the provision contained in Rule 3(k). 30. Sub-sections (1) and (4) in my opinion, therefore, must be read harmoniously and so read to make structures in terms of sub-section (4) shall override the provision of Rule 3(k) inasmuch as in terms of Clause (a) thereof such structures can be raised for residential and business purposes for themselves and the Bharatias under them. The word 'And' in between the words 'residential' and 'business' purposes as laid down in Clauses (a) and (b) of Section 6(4) of the Act has to be read conjunctively and not disjunctively. 31. Moreover in this case the Thika Controller granted permission earlier. It, therefore, does not lie in his mouth to say that such permission was granted by mistake without assigning any reason. 32. The petitioner filed an application before the Thika Controller for rectification of a mistake. If he wanted to correct mistake committed by him, he ought to have initiated a proceeding therefor assuming that he had such a power and dispose of the same in accordance with law. In the instant case, he failed and/or neglected to do so. 33. Before parting with this case it may, however, be stated that Mr. Dutta submitted that this writ application should await the decision of the Supreme Court. In the instant case, he failed and/or neglected to do so. 33. Before parting with this case it may, however, be stated that Mr. Dutta submitted that this writ application should await the decision of the Supreme Court. In my opinion, it is not necessary to do so inasmuch as all acts are presumed to be constitutional unless it is declared as such. In the event, however, sub-sections (3) and (4) of the said Act as amended in the year 1993 are declared unconstitutional, the petitioner shall suffer the consequences therefor. 34. It is, therefore, directed that if the building plan is sanctioned by the competent authorities, the petitioner may raise constructions at his own risk and costs which would be subject to the ultimate decision of the Supreme Court and wherefor he shall not claim any equity whatsoever. 35. For the reasons aforementioned this writ application is allowed. 36. Let a writ of mandamus issue directing the Thika Controller to dispose of the petitioner's application in accordance with law at an early date and preferably within a period of 8 weeks from the date of communication of this order subject to the observations made hereinabove. In the facts and circumstances of the case, there will be no order as to costs.