Kalyanmoy Ganguly, J.@mdashThis application under Article 226 of the Constitution of India challenging three orders, one dated 22nd June,
1978 passed by the Deputy Secretary to the Government of West Bengal, respondent No. 3, which is annexure ''C to the writ petition, the second
is the order passed on 25th July, 1978 by the same respondent which is annexure ''D'' to the writ petition and the third is the order passed by the
same respondent on 20/25th June, 1980 which is annexure ''F'' to the writ petition. The admitted position seems to be as follows The petitioner
owns an open plot being premises No. 32, Kalimuddin Sarkar Lane, Beliaghata, Calcutta-10 measuring about 523 Sq. Meters. The petitioner also
owns premises No. 50B, Haldarpara Road, Calcutta - 26 whereupon stands more than 126 years old ancestral residential house. The total land at
the latter measures approximately 385 Sq. Meters out which the built up area is 276 Sq. Meters and the land appurtenant, which is required under
the municipal laws not to be built uponis 109 Sq. Meters
2. It may recalled here that so far as the premises at 50B, Hardarpara Road, Kalighat, CaJcutta-26 is concerned there is no vacant land and the
only vacant land measuring about 523 Sq. Metres is situate at 32, Kalimuddin Sarkar Lane, Calcutta-10.
3. The plot at Kalimuddin Sarkar Lane is a vacant land measuring about 523 Sq. Meters in excess of the ceiling permissible under the provisions of
Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the said Act).
4. It appears that when the petitioner filed a return u/s 6(1), he has omitted to mention the premises situate at 50B, Haldarpara Road, Kalighat,
Calcutta-26 but mentioned only the vacant land situate at 32, Kalimuddin Sarkar Lane.
5. The petitioner prayed for retention of 23 Sq. Meters of land situate at 32, Kalimuddin Sarkar Lane which was in excess of the permissible
ceiling of retainable vacant land.
6. There was due enquiry into the matter of prayer for exemption and after such enquiry the petitioner was allowed to retain the said excess land of
23 Sq. Meters by order No. 7471-U.L./II-544/76 dated 5th October, 1977 of respondent No. 3 which was communicated to the petitioner. A
copy of the said order has been annexed to the writ petition marked with the letter ''A'' The reason for such exemption, as given in the said order,
runs as follows:
The area of 23 Sq. Meters of vacant land is too small to serve any useful public purpose and its acquisition will cause undue hardship to the
applicant.
7. Thereafter the petitioner applied for necessary permission u/s 26 of the said Act to effect transfer of the land in premises No. 32, Kalimuddin
Sarkar Lane, Calcutta-10 wherein for the first time the petitioner voluntarily mentioned about his dwelling house situate at premises No. 50B,
Haldarpara Road, Kalighat, Calcutta-26.
8. On receipt of the said application the petitioner was asked to show cause as to why for non-disclosure of the existence of premises No. 50B,
Haldarpara Road, in his statement u/s 6(i) of the said Act, the aforesaid order of exemption should not be withdrawn, A copy of the said memo
dated 31st March, 1978 has been annexed to the writ petition marked with the letter ''B''.
9. Before proceeding further into the matter it is necessary to state that both the expression ""Land Appurtenant"" and the expression ""Vacant Land
have been defined in section 2 of the said Act. Section 2(g) of the said Act defines land appurtenant whereas section 2(g) defines vacant land. The
definition of vacant land, inter alia, states in sub-clause (ii) of Clause(q) of section 2 that the expression ""Vacant Land"" does not include, 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 apparent to such building. Sub-clause (i) of Clause (g) of section 2 of the
said Act, inter alia, defines land ''Appurtenant'' to mean ""In an area where there are building regulations, the minimum extent of land required under
such regulations to be kept as open spaces for the enjoyment of such building which in no case shall exceed 500 Sq. Meters
10. The admitted position seems to be that the petitioner had no other vacant land than the land at premises No. 32, Kalimuddin Sarkar Lane and
that it was excess of the permissible ceiling only by 23 Sq. Meters.
11. It is true while filing a return u/s 6(i), a person is required to include in such return, lands, or properties which do not come under the purview of
the definition of vacant land.
12. Sub-section (9) of Section 4 of the Act provides that where a person holds vacant land and 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 Si person. Sub-section (11) of Section 4, however, adds that nothing in Subsection (5), (6), (7), (9)
and (10) shall be construed as empowering the competent authority to declare any land referred to in Sub-Clause (M) or. Sub-Clause (iii) of
Clause (q) of Section 2 as excess vacant land under this chapter.
13. That by an order of the respondent No. 3 dated 28th June, 1978, a copy of which has been annexed to the writ petition marked with the letter
C, the petitioner was intimated that the order granting him exemption was cancelled.
14. The application for reconsideration of such order of cancellation was also rejected by order dated 25th July, 1978, a copy of which has been
annexed to the writ petition marked with the letter ''D''. The petitioner filed an application for review which was also rejected by order dated
20th/25th June, 1980. a copy of which was also been annexed to the writ petition marked with the letter ''F''.
15. Section 20(i) of the said Act empowers the appropriate authority to grant exemption in respect of excess vacant land. The section provides
that before any such exemption can be granted enquiry will have to be made into the matter and the reasons for such exemption must be recorded,
which in fact has been done in the instant case as would appear from Annexure ''A''..
16. Sub-section (2) of Section 20 of the said Act provides that if exemption was granted subject to some conditions and if such conditions are not
complied with then such exemption may be cancelled or withdrawn. In the instant case grant of exemption was unconditional and as such the
question of violation or non-compliance of any such condition does not arise. I have not been able to find any other decision in the said Act which
empowers the authorities to cancel any order of exemption. The authorities, of course are entitled to proceed u/s 18 and or section 45 of the said
Act for concealment the particulars of vacant land and/or for correction for clerical or arithmetical errors. It may be mentioned here that in the
instant case there was neither any concealment of any ""Vacant Land"" nor any clerical and/or arithmetical errors but there was an omission to
mention the residential house with its land appurtenant.
17. Further the order withdrawing such exemption, which is annexure ''C to the writ petition, records the reasons for such withdrawal as
nondisclosure of the existence of the other property at 50B, Haldarpara Road, Kalighat. In my opinion that is not a reason for such withdrawal of
exemption either with the meaning of Sub-section (2) of Section 20 or section 45 of the said Act.
18. Even if the petitioner has contravened any of the provisions of the said Act either in the matter of filing of the return under Subsection (1) of
Section 6 or in the other respect the appropriate authority can proceed against the petitioner under some other provisions of law if any such
provisions available to the authority.
19. Further the reasons given for the withdrawal of such exemption as would appear from annexure ''C to the petition is not reconcilable with the
reason for grant of such exemption as would appear form annexure ''A. The reason for the grant of such exemption remains the same namely, that
The area of 23 Sq. Meters of vacant land is too small to serve any useful purpose
Even for nor disclosure of the existence of the property situate at 50B, Haldarpara Road, the area of 23 Sq. Meters will still remain too small to
serve any useful purpose.
20. Mr. Pranab Chatterjee appearing for the respondent with Mrs. Geeta Gupta sought to argue that if the existence of the property at 50B,
Haldarpara Road, Kalighat was known to the authorities, the authorities would not have granted the exemption in respect of the 23 Sq. Meters of
land in excess of the permissible limits regarding the land at 32, Kalimuddin Sarkar Lane because of the provisions of Sub-section (9) of Section 4
of the said Act. To be very frank, the argument of M. Chatterjee was not intelligible to me because sub-section(l1) of section 4 clearly states that
the competent authority cannot take into consideration any property not included in sub-section(9) of section 4, in computing the quantum of
excess vacant land under chapter 3 of the said Act.
21. I am further of the opinion that even if the exemption granted is allowed to be withdrawn nobody''s purpose will be served as the said excess
land cannot be utilised by the competent authority for any purpose whatsoever conceivable.
22. In the circumstances stated above, the provisions of section 22 of the Bengal General Clauses Act 1899 is also of no help to the respondent.
For reasons stated hereinbefore, this application succeeds. The rule is made absolute. Let a writ in the nature of mandamus issue commanding the
respondents to cancel the orders impugned in the writ petition namely, annexure ''C, ''D'' and ''F''.
There will be no order as to costs.