Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs M/S. Chiranjilal (Mineral) Industries ... on 4 October, 2018
Author: Arindam Mukherjee
Bench: Biswanath Somadder, Arindam Mukherjee
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present :
THE HON'BLE JUSTICE BISWANATH SOMADDER
AND
THE HON'BLE JUSTICE ARINDAM MUKHERJEE
FMA 1458 of 2017
(MAT 1133 of 2017)
WITH
CAN 6596 OF 2017
THE STATE OF WEST BENGAL & ORS.
VS.
M/S. CHIRANJILAL (MINERAL) INDUSTRIES OF BAGANDIH & ANR.
For the Applicants/Appellants : Mr. Amitesh Banerjee, Sr. Standing
Counsel,
Mr. Tarak Karan.........Advocate
For the Respondent no.2 / writ : Mr. Dinesh Agarwal (in person)
petitioner no.2
Heard on : 17.08.2017, 22.08.2017, 22.11.2017,
28.11.2017, 16.01.2018, 06.02.2018,
24.04.2018, 10.05.2018, 15.05.2018,
12.06.2018, 05.07.2018, 10.07.2018
& 07.08.2018
Judgment on : 04.10.2018
ARINDAM MUKHERJEE, J. :
1) The matter seems to have a chequered history with several rounds of litigation. As apparent from the records, on or about 6th March, 1978, the writ petitioners being the respondent nos. 1 and 2 in the instant appeal filed an application before the Mining Officer in-charge, Purulia Zone, West Bengal for granting a mining lease in their favour more particularly, for the purpose of extracting Dolomite. Dolomite was at the time when the application was made, was a non-scheduled major mineral. By a notification dated 10th February, 2015, the same became a minor mineral. Since then it came within the legislative and administrative jurisdiction of State Legislature. The land in respect of which such application has been made are covered under plot nos. 1759 and 1805 of Mouja- Kharidura, J.L. No. 170 , Plot No. 1 of Mouja- Kumari, J.L. No. 240 and Plot No. 1041 of Mouja- Boch, J.L. No. 177 measuring about an area of 88.85 acres (hereinafter referred to as the said plots of land).
2) The District Land and Land Reforms Officer, Purulia vide Memo No. 17/5300/M/99 dated 27th November, 1999 addressed to the Mining Officer in- charge under Purulia Zone recommended the grant in respect of the other plots of land except Plot No. 1042 having an area of about 0.74 acres in Mouja -Boch, J.L. No. 177 which according to the records was an agricultural land. The Mining Officer in-charge, Purulia Zone however rejected the recommendation and held against the grant. In view of such contradictory reports from the concerned officers on the subject, the Joint Secretary, Government of West Bengal, Commerce and Industries Department, while processing the application offered a personal hearing to the writ petitioners and directed the District Land and Land Reforms Officer and the Mining Officer in-charge, Purulia Zone to also bring relevant papers vide a memo bearing no. (5)-CI/EP2L-04/99 dated 31st August, 2000. The hearing took place on 19th September, 2000. It appears that before the application of the writ petitioners was disposed of by the said Joint Secretary, the Assistant Secretary, Government of West Bengal, Commerce and Industries Department issued a memo dated 13th October, 2000 bearing no. 532-CI/E/2L-4/99 addressed to the West Bengal Mineral Development and Trading Corporation Ltd. (hereinafter referred to as the 'WBMDTC') with a copy marked to Chiranjilal (Minerals) Industries being the writ petitioner no. 1 referring to a mining lease application of WBMDTC dated 7th August, 1985 and directing the said WBMDTC to produce consent letters from rayat in respect of the rayati land and conversion certificate in respect of agricultural land.
3) Subsequently, the writ petitioners filed a writ petition being W.P. 7808 (W) of 2001 as their application remained pending. The said writ petition was disposed of by an order dated 13th June, 2001 directing the authority concerned to decide and dispose of the long term mining lease application of the writ petitioners , if not, already disposed of along with all other application in respect of the self-same land or part thereof, if any, pending on date of consideration.
4) By an order dated 26th March, 2003 the Joint Secretary, Government of West Bengal, Commerce and Industries Department rejected the application of Chiranjilal (Minerals) Industries (in short 'CMI') adhering to a report of the Mining Officer in-charge, Purulia Zone wherein it was stated that the mining lease of CMI fully over lapped with the area applied for mining lease by WBMDTC in two applications made by the said WBMDTC. In the meantime CMI had filed another writ petition being WP 7505(W) of 2003. It, therefore, appears that the rejection of the application made by CMI was only on the ground of over lapping of land with another applicant being a State owned company.
5) The order of rejection was reviewed by the Joint Secretary, Government of West Bengal, Commerce and Industries Department on 13th October, 2006 which shows that in the hearing held on 19th June, 2006 in the presence of the representatives of WBMDTC and CMI it was decided that CMI will be granted the mining lease for the whole of their applied area of 76 acres (being reduced from 88.65 acres as some plots were agricultural land) and the rest of the area will be granted in favour of WBMDTC. Subsequently, by a memo dated 26th October, 2006 bearing no. 190-CI/0/2L-04/99 the Assistant Secretary, Government of West Bengal, Commerce and Industries Department asked CMI for up to date income tax clearance certificate, up to date VAT clearance certificate, "consent to establish certificate" issued by the West Bengal Pollution Control Board, approved mining plan by CMO and clearance certificate from Environment and forest, Government of India. All the required documents were submitted by CMI by its letter dated 22nd January, 2010 received by the authority on 1st February, 2010.
6) On receipt of such particulars by a memo dated 17th March, 2010 the Assistant Secretary, Government of West Bengal, Commerce and Industries Department directed CMI to submit a revised plan excluding 0.74 acres of land in Plot No. 1042 Mouja-Boch, J.L. No. 177 which is classified as 'agricultural land' and, as such, no mining lease would be granted against the same.
7) CMI by a memo dated 12th April, 2010 submitted seven copies of revised mining map excluding the said Plot No. 1042 which was duly received by the District Land and Land Reforms Officer on 12th April, 2010.
8) By an order dated 3rd December, 2010 the Joint Secretary, Government of West Bengal, Commerce and Industries Department (Mines Branch) on the ground of alleged suppression, revoked all orders/decisions taken subsequently to the issue and the order dated 26th March, 2003 read with the order dated 13th March, 2003 with regard to the application of mining lease made by CMI. It, however, appears from the order dated 13th October, 2006 that filing of the writ petition no.7505(W) of 2003 is recorded that is to say that the State was aware about the filing of the said writ petition and ought to have been aware of the status of the same. There could, thus, be no suppression as to the pendency of the writ petition as alleged. Moreover, the act of revisiting a previous decision taken about four years back without there being any change in circumstances or an application for reviewing the judgment only on the ground of alleged suppression appears to be unsustainable on the face of the record. That apart, after the decision in the year 2006, the writ petitioners were asked to supply several documents for the grant which the writ petitioners did thereby altering their position. The order dated 13th October, 2006 was accepted by the parties and acted upon. In such a situation the order dated 3rd December, 2010 also appears to be arbitrary and in colourable exercise of power.
9) It appears that the writ petition being W.P. No. 7505 (W) of 2003 was disposed of by an order dated 25th March, 2014 read with the order dated 2nd April, 2014 by which the respondent no. 2 was directed to take a decision as to whether a lease or license would be granted in favour of the petitioners.
10) The issues involved in W.P. 7505 (W) of 2003 was decided by an order dated 9th July, 2014 passed by the Joint Secretary, Government of West Bengal, Commerce and Industries Department holding that the land in respect of which CMI has applied for extraction of Dolomite is not available for mining as the said area is covered by the application of the WBMTDC which was also prior in time to that of CMI. This order of 9th July, 2014 was challenged by the writ petitioners in W.P. 21358 (W) of 2014 which was disposed of by an order dated 10th September, 2014 setting aside the order dated 9th July, 2014 and directing grant of long term lease in respect of 76 acres of land and for the balance land the said respondents were at liberty to give it to the WBMDTC.
11) A contempt petition was also filed by the writ petitioners in W.P. 21358 (W) of 2014 which was numbers as W.P.C.R.C 188(W) of 2005. The contempt petition was disposed of by an order dated 22nd July, 2015 which records as follows:-
"However, it appears that the authorities have granted mining lease in favour of the petitioners subject to some conditions. The petitioners are required to fulfil those conditions to get the deed of lease executed in their favour. In case the petitioners are not satisfied with the order passed on 16th July, 2015 then they would be at liberty to question the same.
Accordingly, the contempt application is disposed of and the Rule issued on 1st June, 2015 stands discharged."
12) Subsequently, the writ petitioners filed another contempt application being W.P. C.R.C. 188 (W) of 2015 in connection with W.P. 21358 (W) of 2014. This application was disposed of by one of us (Biswanath Somadder J.) by an order dated 22nd July, 2016, a portion whereof reads as follows:-
"The petitioners are required to fulfil the conditions as stipulated in the order dated 16th July, 2015, and furnishing of a conversion certificate from the appropriate authority under Section 4C of the West Bengal Land Reforms Act, 1955, is one of the conditions as stipulated in the order dated 16th July, 2015. If the applicants/petitioners are of the view that conversion certificate is not required as sought to be submitted by the learned advocate appearing on their behalf in that event, the petitioners are always at liberty to question the order dated 16th July, 2015, in terms of the observation made by this Court in the order dated 22nd July, 2015, passed in the W.P.C.R.C 188(W) of 2015."
13) As the order dated 22nd July, 2016 was passed by one of us, we were disinclined to take up the hearing of the instant matter, but the parties, on consent, prayed that the matter may be taken up by this Bench. This Bench, therefore, proceeded to hear out the appeal on the basis of the consent given by parties.
14) Pursuant to the orders dated 10th September, 2014 and 22nd July 2015, the Deputy Secretary, Government of West Bengal, Commerce and Industries Department (Mines Branch) vide a memo dated 16th July, 2015 called upon the writ petitioners to produce the documents for the execution of the mining lease in their favour. Two of the conditions mentioned in the said two memos are as follows:-
i) You shall have obtained the permission under
Section 14Y of WBLR Act, 1955 for holding the
required land.
ii) You have to furnish the Conversion Certificate for plots of land from the Appropriate Authorities [Section 4C of WBLR Act, 1955].
15) The writ petitioners by their letter dated 7th January, 2016 replied to the said memos. In answer to Clause (o) and (p) the following reply was given:-
i) Permission under Section 14Y of WBLR Act -
N.A. (Owners of the land have provided NOC consent not they have sold their land in my favour.)
ii) Conversion Certificate is not required for 75.26 acres of land which is recommended by the DL&LRO, only on plot No. 1042 area .75 acres was required which is not recommended by the DL&LRO and we are agree to accept the lease area 75.26 acres.
The respondent / writ petitioner also tried to substantiate their aforesaid reply by reasons.
16) The Additional Magistrate and the District Land and Land Reforms Officer after considering the reply of the writ petitioners by a memo dated 7th April, 2016 informed the following to the writ petitioners:-
"With reference to the above it has been brought to the notice that land availability report of an area of 75.26 acres within P.S. Manbazar have been provided in favour of your company vide this office memo no. VI/17/6525/M/15 dated 30.12.2015. On scrutiny of such file records it is found that 54.39 acres of land are raiyati land and belonging to different raiyats and rest 20.87 acres of land lying vested to the state and recorded to collector's khatian.
Section 14Y of WBLR Act 1955 is applicable to him under Section 14M on account of transfer, inheritance or otherwise the area of land which is in excess of the ceiling area shall vest to the State."
In this case, by virtue of the consent letter of different raiyats to create mining operation, no Section 14Y clearance certificate is applicable as no title over the land has declared in favour of the mining lease holder.
17) Thereafter, the writ petitioners made several demands for justice before the concerned authority to ventilate their grievances and the same on being unattended the writ petitioners ultimately filed a writ petition being W.P. No. 20309 (W) of 2016. This writ petition was disposed of by an order dated 12th April, 2017 being the impugned order in the instant appeal filled by the State of West Bengal being the respondents in the said writ petition. The operative part of the order impugned are as follows:-
"In view of my above findings, the respondent no. 2 is directed to execute lease deed in accordance with grant of mining lease dated July 16, 2015 (Annexure P/22 to the writ application) for extracting Dolomite from the land in question in favour of the petitioner no. 1 represented by petitioner no. 2 within a period of eight weeks from the date of communication of the order. The respondent no. 2 can execute the lease deed by himself or can engage any competent officer in this regard who is legally authorised to represent the State for executing the lease deed.
With the above direction, the writ petition and connected application are disposed of.
On prayer of Mr. Banerjee, learned Senior Standing Counsel for the State of West Bengal, the operation of the order is stayed for a period of two weeks."
18) After going through the facts as discussed hereinabove which are backed by materials on record we find that the main objection of the appellant/State are as follows:-
a. The writ petitioners have prayed for extraction of Dolomite in respect of about 76 acres of land. The area of land is beyond the ceiling limit of any raiyat under Section 14 M of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the said Act) and, as such, the petitioners are required to obtain permission from the State Government as laid down in Section 14Y of the said Act.
b. Even though the land in respect of which the writ petitioners have applied for mining lease is recorded as 'Dungri' but the same is not 'Khadan'. Unless conversion is obtained from the concerned authority under the provisions of Section 4C of the said Act by recording the land as 'Khadan', no mining activity can be permitted in respect of the said land. As a consequence thereof no mining lease can be granted.
19) The advocate for the appellant further submitted on instruction that so far as the 20.87 acres of land appurtenant to plot 1041 is concerned, the same is vested in the State to which the appellant has no objection to grant mining lease. So far as the balance portion of about 56 acres, the Government is agreeable to grant lease only in respect of ceiling limit. This is, however, subject to conversion being obtained by the respondents/writ petitioners. In the alternative in respect of the remaining land the writ petitioners/respondents can apply for phase wise utilisation so that the entire land to be utilised at a time be less than the ceiling limit. If the respondents/writ petitioners are willing to carry on mining operations in such manner then they should provide a revised plan for extracting Dolomite and the State authorities will consider the same on immediate basis.
20) The respondents/writ petitioners appearing in person submits that from the information supplied by the Deputy District Land and Land Reforms Officer/Purulia under memo no. V/RTI/775/15 dated 6th March, 2017 it will appear that land classified as 'Dungri' is used only for the purpose of mining lease and, as such, there is no need for conversion of the said land under the provisions of Section 4C of the said Act. He also relies upon the order dated 9th July, 2001 passed in W.P. 17778 (W) of 2000 which is annexed to the writ petition wherein it has been held that a land in respect of which mining lease had been granted since 1942 was not renewed as the said plot of land was not classified as 'Ban-jangal'. The Court held that since no reasons have been shown as to why the land in question was required to be classified as 'Ban-jangal' and that mining operation was allowed to be done for a long period even though the land was not classified as 'Ban-jangal' this Court set aside the order refusing renewal on the ground that the land was not classified as 'Ban-jangal'.
21) The respondents/writ petitioners submits that there are several other lands in district Purulia and as also in other districts which are classified as 'Dungri' and mining operations in respect thereof is allowed to continue.
The petitioner has given some names in respect of which land classified as 'Dungri' has been allowed for carrying out mining activities. This fact will also appear from a memo dated 10th January, 2018 issued by the Additional District Magistrate and District Land and Land Reform Officer, Purulia annexed a supplementary affidavit affirmed on 15th January, 2018 filed by the appellant.
22) The Senior Advocate appearing on behalf of the State contradicting the submissions made by the writ petitioners submit that previously there were some land classified as 'Dungri' which were allowed for mining purpose but now the Government has taken a stand that unless there is a conversion and the land is classified under 'Khadan' no mining activity will be carried on.
23) The respondents/writ petitioners further submit that they have obtained consent letters from the rayats concerned for applying for mining lease to extract Dolomite from the said lands. It is submitted that, individual rayats who have given consent for mining activity do not have land beyond the ceiling limit and, as such, the provisions of 14M or 14Y of the said Act is not attracted in respect of such land. The respondents/writ petitioners are not the owner of the land in question as the same will remain recorded in the name of the individual rayats even though they have given consent and, as such, the writ petitioners cannot be also said to be the owners holding land beyond the ceiling limit thereby attracting the provisions of 14M and 14Y of the said Act.
24) To this submission of the respondents/writ petitioners the senior advocate representing the State contends that the individual rayats cannot grant permission to quarry and it is for the State on whom the mineral rights vest to grant the same. It is the respondents/writ petitioners who has come forward to obtain a mining lease for 76 acres or at least for 55 acres (by setting apart the vested land of 20.86 acres). It is the respondents/writ petitioners who are before the State and, as such, 55 acres of land to be utilised by the writ petitioners, being beyond the ceiling limit, the respondents/writ petitioners are required to obtain clearance under the provisions of Section 14Y of the said Act.
25) Considering the rival contentions, we are of the view that, the respondents/ writ petitioners cannot be discriminated by asking to obtain conversion certificate under Section 4C of the said Act when the State has allowed mining activities in respect of Dungri land without asking for conversion and that too in respect of WBMDTC a State government owned company as also for private individuals. Moreover, the respondents/writ petitioners can be at best a lessee/tenants of the rayats with regard to the land in respect of which "no objection" has been obtained from the individual rayats. The conversions, therefore, has to be applied for by the individual rayats and not the respondents/writ petitioners. By imposing such condition, the State has only delayed the execution of the lease on untenable grounds. The State policy which the senior counsel says has been imposed to allow no mining activity on land apart from Khadan is a recent policy. Neither such recent policy nor can the provisions of the West Bengal Minor Minerals Concession Rules, 2016 can apply to the application of the writ petitioners made in March, 1998 and more so as the order of the Joint Secretary to grant lease is dated 13th October, 2006 and that of this Court directing grant of long term lease is dated 10th September, 2014 are prior to such policy and prior to the said Rules came into operation. It further appears that necessary mining plan taking into account the environmental aspect has been submitted by the writ petitioners and the appellant/State has raised no grievance in respect thereof.
26) The respondents/writ petitioners have applied for the grant in March, 1998. A period of 20 years have passed in between when the State authorities on one pretext or the other have refused the ultimate grant by executing lease deed / deeds in spite of there being a specific order dated 13th October, 2006 wherein the State authorities acted in accordance with law as prevailing in 2006. This objection of having the land converted under the provisions of Section 4C of the said Act would have been otiose as "Dungri" land were allowed for mining purpose. It further appears from the records that the State authorities in order to stall the grant in favour of the respondents/writ petitioners have come up with pleas in instalments which has consumed several years for the respondents/writ petitioners to comply with. The last of its kind is the insistence for conversion under the provisions of 4C of the said Act. We, therefore, hold that there is no substance in the argument of the State that the mining lease cannot be executed unless the petitioners obtains 4C conversion. Section 4 of the Land Reforms Act, 1955 permits a rayat to allow another person to use his land for mining purpose under an arrangement when other legal formalities are complied with and they do not give their respective holding in entirety under such arrangement. The individual rayats continue to remain as holder under the said Act. The rayats are also not giving consent to quarry as the permission is accorded by the Government with the grant of the mining lease. There is, as such, no embargo under the provisions of Section 4(2A) of the said Act in the instant case for according permission to query, though dolomite is not included in the said section. The respondents/writ petitioners at the behest of the State appears to be running from pillar to post to comply with the formalities to obtain a mining lease in their favour when the State cannot discriminate in case of distribution of largesse.
27) So far as the argument on behalf of the State that provisions of Section 14Y is applicable in the case of the petitioners while they seek to obtain a mining lease is concerned cannot also be accepted for the simple reason that writ petitioners/ respondents are not the owners of the land but intends to carry on business by extracting Dolomite from the plots of land belonging to individual rayats after obtaining consent and are themselves not the owner. The purpose of the ceiling limit under the said Act is to see that the land is not concentrated in the hands of a few. The legislative intent is not to prevent commercial activities in a plot of land after obtaining fragmented portions thereof from individual rayats under any arrangement inter se. It is also imprudent to suggest that a person intending to set up mining activity in a big plot of land will have to acquire the land by transfer and then start such mining activity upon obtaining clearance under the provisions of 14Y of the said Act. If such contention is imposed there can be practically no mining activity. A rayat is free to deal with his land. He/she may not want to sell the same yet allow a person to utilise some portion of their holding under an arrangement with that person. The law as of now does not prevent such arrangements. The authorities cannot venture into the terms of arrangement between the rayats and their lessee/tenant while granting a mining lease. It is also not the case that the rayats whose consent has been obtained are not the holder of their respective lands. The authorities, therefore, also cannot put an embargo in such a dealing in a roundabout manner to prevent commercial activities on a big plot of land by putting fetters which the prevailing law does not suggest.
28) So far as the phase wise mining activity as suggested by the senior advocate representing the State is concerned, we are in agreement with the practical difficulties that may arise as suggested by the respondents/writ petitioners apart from the fact that such suggestion does not require consideration for the aforesaid findings. In order to prepare a mining plan afresh by taking into account phase wise mining activity to keep the area under actual mining operation below the ceiling limit, will consume further time and will delay the matter which is already hanging for the last 20 years with several rounds of litigation in between apart from being commercially inviable. That apart, as we have held that conversion under the provisions of Section 4C and clearance under Section 14 Y of the said Act are not required, we do not feel it necessary to consider the alternative proposal given from the side of the State.
29) During the pendency of the appeal we had allowed the respondents/writ petitioners to approach the Principal Secretary Department of Industries and Commerce, Enterprises to ventilate their grievances. After hearing the respondents/writ petitioners the said Principal Secretary passed an order dated 3rd April, 2018 which is nothing but reverberation of the stand already taken by the State authorities. In view of our findings as aforesaid the said order dated 3rd April, 2018 automatically stands set aside.
30) In the facts and circumstances as aforesaid, we are of the view, that the order impugned requires no interference and the appellant no. 2 and/ or the concerned officer so authorised should execute the mining lease in favour of the respondents/writ petitioners as directed either by himself or through any competent officer as may be authorised to represent the State. The lease deed has to be executed preferably within a period of three months from this date but not later than 31st January, 2019.
The appeal is hereby dismissed and all connecting applications stand accordingly disposed of.
The interim order, if any, automatically stands vacated. There shall, however, be no order as to costs.
Urgent Photostat certified copy of this judgment and order, if applied for, be supplied to the parties on a priority basis.
(ARINDAM MUKHERJEE, J.) (BISWANATH SOMADDER, J.) Later :
After the judgment has been pronounced in open Court, the learned Senior Standing Counsel representing the State of West Bengal prays for stay of operation of the order, which is considered but refused.
(ARINDAM MUKHERJEE, J.) (BISWANATH SOMADDER, J.)