Calcutta High Court (Appellete Side)
Uttam Roy vs The State Of West Bengal & Ors on 20 March, 2013
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:-
The Hon'ble Mr. Justice Jayanta Kumar Biswas.
W.P.No.19497 (W) of 2012
Uttam Roy
v.
The State of West Bengal & Ors.
Mr. Mahendra Prasad Gupta
Mr. Mir Anowar
Mr. S. Das ... for the petitioner.
Mr. A.K.Banerjee
Mr. Susovan Sengupta ... for the State.
Heard on:- March 20,2013.
Judgment on:- March 20,2013.
The Court:- The petitioner in this WP under art.226 of the Constitution of
India dated August 29,2012 is seeking the following principal relief:-
" a) A Writ or Writs in the nature of Mandamus commanding the Respondent No.3
and their agents and assignees to allow the petitioner for mining operations in Plot No. Plot No.906(p) of Mouza- Chalbalpur, J.L No.05, P.S- jamalpur, under Block Land and Land Rerform Officer, Burdwan, PO- Rajbati, District- Burdwan, measuring about 6.00 acres of land in the District of Burdwan for the period of lease of 5 year on and from the date of handing over the possession i.e on 17.03.2011 till 16.03.2016."
The petitioner applied for a mining lease according to the provisions of r.5 of the West Bengal Minor Minerals Rules, 2002. The application was allowed. Consequently a mining lease dated January 10,2007 was executed between the parties granting the lease for five years from the date of execution thereof. It was registered on February 19, 2007.
The petitioner's case is this. Though the lease was executed on January 10,2007 possession of the land was given only on March 17,2011. Since he could not enjoy the leasehold for five years he applied for extension on February 15,2012. No step was taken to consider the request for extension.
Advocate for the petitioner has argued as follows. The respondents not giving possession of the leased out area until March 17, 2011 were under an obligation to consider the application for extension. Valuable right created under the lease to enjoy the leasehold for five years cannot be defeated alleging that the application for extension was not entertainable. A single Judge decision of this Court fully covers the issue.
Advocate has relied on the decisions in State of U.P. & Ors. v. Lalji Tandon, (2004) 1 SCC 1 and FCI v. Babulal Agarwal ( 2004) 2 SCC 712 and an unreported single Judge decision of this Court dated October 10, 2012 in a WP No.19984(W) of 2012 ( Uttam Roy v. State of West Bengal & Ors.). He has also relied on the provisions of ss.105 and 107 of the Transfer of Property Act, 1882.
Mr. Government Pleader appearing for the respondents has argued as follows. The application for extension not filed within the statutory period was not entertainable. Hence its non-consideration has not entitled the petitioner to any relief from the Writ Court. The single Judge decision was given without considering the provisions of the rules. The provisions and principles of the Transfer of Property Act, 1882 are irrelevant.
The question is whether the petitioner's application for extension of the term of the lease was at all entertainable. The period of the lease was to be determined according to the provisions of r.11 of the West Bengal Minor Minerals Rules, 2002. While a request for renewal of the lease could be made under r.12, a request for an extension of the term of the lease could, however, be made only according to the provisions of r.16 of the rules.
Rule 11 of the West Bengal Minor Minerals Rules,2002 is quoted below:-
" 11. Period of lease.-(1) The period for which a mining lease may be granted shall not be more than five years, but if the State Government considers that a longer period of lease is necessary for proper development and mechanization of the mine and working on a larger scale, a longer period of lease, not exceeding thirty years, may be granted:
Provided that this restriction shall not apply in the case of the West Bengal Mineral Development and Trading Corporation Limited and Undertaking or Department which may apply for and take lease for any period not exceeding thirty years.
(2) The date of commencement of the period for which a mining lease is granted shall be the date on which a duly executed lease deed is registered as per the conditions laid down by these rules."
In r.12 of the Rules it has been provided that a request for renewal is to be made at least six months before the date on which the lease is due to expire, but not before nine months from such date of expiry. In this case the petitioner did not apply for renewal of the lease that according to the terms and conditions mentioned in the lease was to expire on February 19,2012.
Sub-rule(1) of r.16 of rules provides that if the mining operation is not commenced within a period of one year from the date of execution of the lease, or is discontinued for a continuous period of one year after the commencement of the operation, the State Government shall, by an order, declare the mining lease as lapsed and communicate the order to the lessee.
In this case the mining operation, according to the petitioner, could not be commenced within a period of one year from the date of execution of the lease. Sub-rule (2) of r.16 is quoted below:-
"(2) Where a lessee is unable to commence the mining operation within a period of one year from the date of execution of the mining lease or discontinues mining operations for a period exceeding one year for reasons beyond his control, he may submit an application to the State Government through the Chief Mining Officer or the Mining Officer in-charge of the concerned area explaining the reasons for the same within a period of one month after such expiry of the said one year."
Sub-rules(3) and (4) of r.16 are quoted below:-
"(3) Every such application under sub-rule(2) shall be accompanied by a fee of five hundred rupees deposited in the manner provided in sub-rule(3) of rule 5.
(4) The State Government may, on receipt of an application made under sub-rule(2) and on being satisfied about reasons for the non-commencement of mining operations or discontinuance, pass an order extending or refusing to extend the period of lease, as the case may be, within six months after giving the applicant an opportunity of being heard."
Rule 16 has an explanation and the explanation is also relevant for deciding the issue involved in this WP. The explanation is as follows:-
" Explanation: Where the non-commencement of mining operations within a period of one year from the date of execution of mining lease is on account of:
(a) delay in acquisition of surface rights;
(b) delay in getting the possession of the leased area; or
(c) delay in supply or installation of machinery;
(d) orders passed by any statutory or competent authority; or
(e) operation becoming highly uneconomical; or
(f) strike or lock-out.
And the lessee is able to furnish documentary evidence supported by an affidavit duly sworn in, the State Government may consider any or all of these as sufficient reasons for the non-commencement of mining operations within the said period of one year."
The single Judge decision of this Court dated October 10,2012 heavily relied on in support of the petitioner's case is quoted below:-
"Though a mining lease was granted by the Governor of the State of West Bengal in favour of the petitioner in respect of the demised plot of land at mouza Chanchai, district Burdwan for a period of five years commencing from the date of execution of the lease deed dated 8th January, 2007 but possession of the demised plot of land was in fact handed over to the petitioner by the concerned Block Land and Land Reforms Officer, Memari-I on 28th March,2011.
Since the possession of the demised plot of land could not be made over to the petitioner on the date of execution of the said lease deed, the petitioner could not enjoy the benefits of the said lease from the date of execution of the said lease deed. As a result, the petitioner applied for extension of the lease period.
Since a lease of an immovable property is a transfer of right to enjoy such property, the lease, in my view, should be deemed to have been commenced from the date when the possession of the demised land was handed over to the petitioner.
As such, this Court holds that the said lease became effective from 28th March, 2011 when possession of the demised land was handed over to the petitioner. The lease will thus remain operative till 27th March, 2016.
The State-respondents are thus restrained from disturbing the petitioner's mining operation in the demised plot of land till 27th March,2016 subject to compliance of the necessary formalities by the petitioner in this regard.
The writ petition is, thus, disposed of.
Let the affidavit-of-service filed in Court today, be kept with the record. Urgent photostat certified copy of this order, if applied for, be furnished to the applicant as early as possible."
It is evident from the single Judge decision of this Court dated October 10,2012 that it was given without considering any provision of the West Bengal Minor Minerals Rules, 2002 under which the lease in question had been executed. Hence it is to be ascertained what is the binding force of the decision.
In view of the specific provisions of the rules, the provisions and principles of the Transfer of Property Act, 1882 cannot be applied for deciding the question when a lease executed under the rules commences. It is specifically mentioned in sub-r.(2) of r.11 of the rules that the date of commencement of the period for which a mining lease is granted under the rules shall be the date on which a duly executed lease deed is registered according to the conditions laid down by the rules.
The provisions of sub-r.(2) of r.16 of the rules, however, provide for an extension of the period of a lease. This, however, has got nothing to do with the date of commencement of the period of the lease. It is related to the non- commencement of mining operations or discontinuance of mining operations.
In such a case as this where the allegation is that for non-delivery of possession the mining operations could not be commenced, the remedy of the lessee is to submit an application under sub-r.(2) of r.16 of the rules within a period of one month from the date one year from the date of execution of the lease expires.
The provisions of sub-r.(2) of r.16 lead to a conclusion that the petitioner alleging non-delivery of possession of the leased out land and consequent non- commencement of the mining operation within one year from the date of execution of the lease was entitled to apply for extension of the term of the lease, and that he could exercise this right till one month after expiration of the period of one year from January 10,2007.
The one year period expired on January 10,2008 and he was entitled to apply for extension within February 10, 2008. He did not apply for extension of the period of the lease until February 15,2012. He applied for extension only on February 15,2012. At this date his application for extension was clearly not entertainable.
Almost in similar circumstances, the single Judge decision was given holding that the date of commencement of the lease would be the date of giving possession of the demised land. With due respect to the Judge, I am unable to accept the proposition. It is clearly contrary to the specific provisions of sub-r.(2) of r.11 of the rules. The single Judge gave the decision per incuriam. Hence I am unable to accept that it is a binding precedent.
As to the two Supreme Court decisions cited in support of the petitioner's case, I am unable to see how any principle stated therein can be applied for deciding the issue involved in this WP. Here the issue is whether at the date the petitioner applied for extension of the term of the lease, he was entitled to make an application. I have already said that in view of the specific period mentioned in sub-r.(2) of r.16 of the rules his application was just not entertainable.
Advocate for the petitioner has strenuously argued that this Court exercising the power of judicial review should not decide the question whether the application for extension was entertainable, but should leave it for decision of the authority who has not yet given any decision. If this argument is to be accepted, then I have to pass an order mechanically directing the authority to give a decision.
In my opinion, an allegation of non-consideration of an application by a statutory authority is not to be taken by the Writ Court under art.226 at face value and an order directing consideration of the application is not to be passed for the asking. It is the duty of the Court to ascertain whether the application created the authority's legal obligation to consider it and give a decision. His inaction, though not acceptable, is not a ground to ask him to decide an application, evidently, not entertainable.
For these reasons, I dismiss the WP. No costs. Certified xerox.
Sh(c);ab(f) (Jayanta Kumar Biswas, J)