Calcutta High Court (Appellete Side)
Chandi Charan Porel vs State Of West on 7 November, 2019
Author: Shampa Sarkar
Bench: Shampa Sarkar
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Sn 7.11.19 W.P. 612(W) of 2019
73
CHANDI CHARAN POREL VS. STATE OF WEST
BENGAL & ORS.
Mr. Soumya Mazumder
Mr. Krishnendu Bera
..for the petitioner
Mr. T.M. Siddique
Mr. S.T. Mina
..for the State
An order dated January 30,2018 passed by the
District Land & Land Reforms Officer, Bankura is under
challenge in this writ petition. By the order impugned, the
respondents denied to settle the lease deed in favour of the
petitioner on the ground that Rule 61 of West Bengal Minor Minerals Concession Rules, 2016 could not be invoked as the same would be against the spirit of the West Bengal Minor Minerals Concession Rules, 2016 (hereinafter referred to as the 2016 Rules,). The relevant portion of the order is quoted below:
"The contention of the Ld. Advocate of the petitioner to invoke the provision of Rule 61 of the West Bengal Minor Minerals Concession Rule, 2016 cannot be considered as it is against the spirit of the West Bengal Minor Minerals Concession Rule, 2016. Besides this, the process of e‐Auction has already been started in different phases of this district strictly 2 following the West Bengal Minor Minerals Concession Rules, 2016 & the West Bengal Minor Minerals (Auction) Rules, 2016 for maintaining transparency, fairness and accountability in allocation of sand blocks. Presently more than 100(one hundred) sand blocks are running in this district after execution of final lease deed with the lessees offering highest bid e‐ Auction process. No sand block in the district has been allowed to run without e‐Auction process.
The undersigned is unable to proceed to settle the lease deed of the petitioner on the ground of the above noted observations.
Hence, the application for settlement final lease deed of the petitioner is considered and rejected.
Therefore, the order dated 11/05/2016 of the Hon'ble High Court, Calcutta in connection with W.P.24271(W) of 2014 in the matter of Chandi Charan Porel -Vs. The State of West Bengal & Ors. has duly been complied with.
Inform all concerned accordingly.
District Land & Land Reforms Officer Bankura."
By an order dated October 6, 1994, an order for grant of mining lease was issued in favour of the father of the petitioner(since deceased) by a memo no. 1378 CI/Gr.D issued by the Commerce & Industries Department pursuant to an application made by the petitioner's father for grant of long term mining lease. In terms of the grant, the petitioner's father was entitled to a mining lease for five years in respect of an area of 20 acres of land upon fulfilment of certain terms 3 and conditions.
On September 20, 1995, the petitioner submitted a draft mining lease deed along with all requisite documents. Thereafter, the petitioner's father was directed to submit a copy of the lease deed in accordance with the approved draft mining lease along with 10 plans (Blue print) of Rs.1,000/‐ to be deposited as Security Deposit.
The petitioner's father deposited 9 copies of the final lease deed and Rs.1,000/‐ for Security Deposit.
On August 29, 1997, the petitioner's father was informed that the plan was defective and the father of the petitioner was directed to contact the concerned District Land & Land Reforms Officer. Although, the petitioner's father was asked to meet the District Land & Land Reforms Officer in order to correct the map, the authority did not extend any co‐operation as alleged.
By a letter dated October 4, 1999, the authorities informed the petitioner that all steps would be taken only after rectification of the map.
Aggrieved by and inaction on the part of the 4 authorities in assisting the petitioner for rectifying the map and proceeding with the matter of settlement of the lease, the petitioner's father filed a writ petition bearing W.P.24271(W) of 2014 and prayed for execution of the mining lease in respect of plot nos. 2272(P), 2269(P), 2603 of Mouza Kunjapur, J.L. No.112.
By an order dated December 18, 2014, a learned single Judge of this Court passed an interim order directing the settlement of lease deed submitted by the petitioner.
The petitioner made a representation before the concerned authorities on March 12, 2015. The Assistant Secretary, Commerce & Industries Department requested the petitioner to approach the concerned District Magistrate for further action. The authorities failed to take any steps despite the order of the Court and the petitioner filed a contempt application being C.P.A.N. 1808/15.
When the writ petition came up for final hearing a report in the form of an affidavit was submitted by the Additional District Magistrate and District Land & Land Reforms Officer, Bankura. It was stated in the said report as 5 appears from page 44 of the writ petition that in compliance of the order dated December 18, 2014, of the learned Single Judge, the said authority had requested the Deputy Secretary, Commerce & Industries Department (Mining Section), Government of West Bengal by a memo dated October 27, 2014 to make necessary arrangements so that the original file of the father of the petitioner could be made available for settlement of the lease deed in terms of the provisions of West Bengal Mining & Minerals Rules, 2002. Thereafter office of the Additional District Magistrate and District Land & Land Reforms Officer, Bankura was directed to furnish copies of the long term mining lease application with all necessary papers, documents and correspondence by an office memo dated January 14, 2015. It has been admitted that the petitioner's father deposited the required documents on March 16, 2015. It was also admitted that the Block Land & Land Reforms Officer (INDUS) was requested to enquire and furnish the land availability report in respect of the plots in question. It was further stated in the said report that in terms of the order of the Hon'ble High Court 6 the matter had already been taken up and progress was made and the petitioner's father was also informed of the progress by memoranda dated November 15, 2015 and November 9, 2015. It was further stated that the draft deed would be verified and if any defects were found in the same, the father of the petitioner would be informed.
It is the contention of the petitioner that this report was annexed in the form of an affidavit before a learned single Judge of this Court when the writ petition No. W.P.24271(W) of 2014 came up for final hearing.
By an order dated May 11, 2016, the learned single Judge of this Court ordered that in view of the stand taken by the State respondents as disclosed in the affidavit, the writ petition could be disposed of with a direction upon the concerned State respondents to take appropriate steps in the matter on the basis of the draft deed submitted by the petitioner as expeditiously as possible.
By a letter dated May 24, 2016 issued by the Additional District Magistrate and District Land & Land Reforms Officer, Bankura, the father of the petitioner was 7 informed that the draft mining lease deed with annual minimum target for extraction of sand duly approved by the Government along with the xerox copy of duly vetted composite sketch map was being returned with certain revisions.
The father of the petitioner was asked to submit four final copies of the lease deed strictly in accordance with approved draft mining lease deed and 10 plans strictly as mentioned in the approved draft lease deed after due execution of the department for necessary action.
It was further stated that the final copies of the stamped lease deed should be typed out so that all these corrections made by the authorities on the draft deed tallied with the same, line by line and page by page. An additional amount of Rs.2500/‐ was asked to be deposited as security deposit. The petitioner was asked to send back the draft mining lease deed to the department.
The final copies of the stamped lease deed was submitted in terms of the above direction on June 7, 2016. The receipt obtained by the petitioner upon submissions of 8 the same from the department concerned has been annexed as Annexure R‐I. Thereafter, by a memo dated August 4, 2016 the Additional District Magistrate and District Land & Land Reforms Officer, Bankura asked the petitioner to produce Environment Clearance Certificate in terms of the order of the Hon'ble Apex Court as also National Green Tribunal, Eastern Zone. As the said authorities sat tight over the matter, the petitioner filed a writ petition bearing No. A.S.T 407 of 2007.
The said writ petition was dismissed with exemplary cost assessed at Rs.50,000/‐ on two grounds, namely, a power of attorney has been annexed which was irregular and the Environment Clearance Certificate obtained by the petitioner contained a incorrect plot number.
Aggrieved by the said judgement and order, the petitioner preferred an appeal before the Hon'ble Division Bench. The said appeal was disposed of granting liberty to the petitioner to challenge the impugned order to this writ petition as the said order dated January 31, 2008 was issued 9 by the authorities after dismissal of A.S.T 407 of 2017 and during the pendency of the appeal, namely, M.A.T. 129 of 2018. The Hon'ble Division bench made the cost imposed upon the father of the petitioner easy.
Mr. Soumya Majumder, learned Advocate for the petitioner submits that the facts were not in dispute. The draft lease deed had been considered and corrected by the authorities and all formalities needed for execution of the final lease deed had been complied with by the petitioner. The final copies of the lease deed duly stamped and as per instruction of the authority was submitted along with enhanced security deposit. Subsequently, after coming into effect of 2016 Rules, the father of the petitioner was asked to produce the Environment Clearance Certificate on August 4, 2016. Unfortunately due to clerical mistake, one of the plot numbers was wrongly mentioned. Subsequently the same was duly corrected and the corrected Environment Clearance Certificate was deposited again on February 20, 2018.
According to Mr. Majumder, once the draft lease 10 was corrected and approved and the final lease deed duly stamped as directed by the authorities was submitted on the basis of the instruction of the authorities concerned, nothing further remained to be done in the matter except the ministerial at of registering the said lease deed.
It is further stated by Mr.Mazumder that the respondents filed their affidavit/report before this Court, on the basis whereof, the respondents were asked to take steps on the draft lease deed. As the respondents had already approved the draft lease deed and had accepted copies of the final lease deed duly stamped along with security deposit the case of the petitioner should be considered in terms of West Bengal Mining & Minerals Rules, 2002. The authorities had already taken a decision to conclude the contract with the father of the petitioner. He further relied upon a judgment of this Court passed in F.M.A. 1593 of 2018 dated December 21, 2018. The Hon'ble Division Bench held that once approval of the lease deed was given before coming into effect of 2016 Rules, 2016 Rules and Rule 61 thereof would not have any application. The Hon'ble Bench under 11 similar facts and circumstances had rendered this judgement and the District Magistrate, Bankura was directed to renew the mining lease of the petitioner in the said matter as per approved draft renewal deed.
Mr. Siddique, learned Advocate for the State respondents opposes the application on two fold grounds. First, that the petitioner did not have a vested right or fundamental right to be granted long terms mining lease contrary to the 2016 Rules which was prevalent at the time of consideration of his application. Next, Mr. Siddique submitted that all long term mining lease were granted after the enforcement of 2016 Rules, by way of E‐auction and the father of the petitioner could not be granted the lease contrary to the said procedure. As such, the grant had become invalid and in‐operative. Mr. Siddique contends that it was a matter of public policy to allot leases on the basis of E‐auction. State largess should be granted only in a transparent and non‐arbitrary manner. He relies on the decision of (2016)4SCC 663 in the matter of Sulekhan Singh & Company & Ors. Vs. State of U.P. & Ors.
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Heard learned Advocates for the parties.
It is not in dispute that the draft lease deed submitted by the father of the petitioner was revised, the annual minimum target for extraction of sand was also raised and approved by the Government. The father of the petitioner was asked to submit four final copies of the draft lease deed incorporating the revisions along with enhanced security deposit, which was done and accepted by the authorities. The said approval came in May 24, 2016, that is, prior to coming into the effect from July 29, 2016. The authorities also asked the petitioner to submit Environment Clearance Certificate on the basis of the order of the Hon'ble Apex Court and the National Green Tribunal. It appears that even at that point after enforcement of 2016 Rules, the case of the petitioner was considered under 2002 Rules.
The delay in execution as appears occurred due to defect in the Environment Clearance Certificate which has now been corrected.
Rule 61 of the 2016 Rule is quoted below :
"61. Declaration of ineligibility of the pending minor mineral applications for mining lease 13 including the applications of reclassified major minerals - All applications for mining lease of minor minerals including the reclassified minor minerals vide SO No. 423(E) dated 12th January, 2015 receiving prior to the giving effect to this rules irrespective of its duration of pendency shall become ineligible.
Provided that if the applicant has been issued a Grant Order or Letter of Intent(LOI) or any other Government Order requiring the alteration of applicant's position then his mining lease application may be considered after due compliance of the all the necessary conditions."
The Rule 61 states that applications for mining lease received prior to the coming into effect of the 2016 Rules would become ineligible for consideration irrespective of their duration of pendency of the said application. However, the proviso states that if a grant order or any other Government order requiring alteration of the applicant's position had been issued then the application would be considered after due compliance of necessary conditions.
Rule 62 saves anything done or any action taken under the West Bengal Mining & Mineral Rules, 2002 and the same would be deemed to have been validly done or taken under the said provisions of 2016 Rules. A conjoint reading of the above two rules clearly indicate that once the 14 grant order was approved by the Government upon correction of the lease deed and the petitioner's father had deposited the final deed duly stamped as per the instruction of the authorities, the benefit of the proviso to Rule 61 should be extended to the petitioner as such grant was saved under Rule 62 and should be deemed to be validly done under the provision of 2016 Rule. Thus the contention of the respondents that such grant was inoperative as the same was not done by e‐auction is not acceptable.
It is not in dispute that after demise of the petitioner's father in terms of the draft lease the petitioner can claim execution of the lease.
The judgement relied upon by Mr. Mazumder applies in this case, inasmuch as, their Lordships observed that if the only step required for renewal of the mining lease deed was execution thereof, then Rule 61 of 2016 would not be a bar and the renewal could not have been kept pending and finally rejected on the basis of coming into force of 2016 Rules. It has been held that when final copies of the renewal lease deed along with security deposit was submitted prior 15 to July 29, 2016, that is, the date of coming into effect the 2016 Rules, the said rules would not have any manner of application.
The judgement cited by Mr. Siddique does not have any manner of application in this case, inasmuch as, in that case the application for grant of lease had not been disposed of prior to the date of declaration of the subsequent rules. Their Lordships held that there was no fundamental right to get a lease and the doctrine of promissory estoppel and legitimate expectation could not be invoked in such cases where the authorities had taken a policy decision in public interest.
In the case before the Hon'ble Apex Court, the appellant had challenged an order passed by the Department on the ground that the appellant had acquired the right to grant of lease and the Government Order dated May 31, 2012 would not stand in the way of granting mining lease to the appellant as the application was made on a prior date. The Hon'ble Apex Court held that as the application for grant of lease deed of the said appellant had not been disposed of 16 prior to the date of declaration of the order dated May 31, 2012, the appellant would not have a vested right to have the application considered as an exception to the said government order dated May 31, 2012.
The facts in this case is distinguishable, inasmuch as, not only the application for the mining lease had been considered by the Government but the order of grant of mining lease of sand was issued for a period of five years subject to the compliance of conditions and execution of the deed.
By a letter dated October 6, 1994, the order was issued and the petitioner was asked to submit draft lease deed with the terms and conditions as mentioned in the paragraph 4 of the letter dated October 6, 1994. Thereafter, several correspondences took place. Orders were passed and in compliance of the order of the Court by a memo dated May 24, 2016 the draft mining lease deed submitted by the petitioner's father was corrected and approved and the father of the petitioner was asked to submit final copies of the lease deed duly stamped and typed out as per the said 17 memoranda and additional security deposit.
The petitioner's father was thereafter asked by a letter dated August 4, 2016 to grant Environment Clearance Certificate. Initially, there was a mistake in the certificate. Thereafter, the same had been rectified.
Under such circumstances, the decision cited by Mr. Siddique hereinabove will not be of any assistance. On the contrary, the decision of the Hon'ble Division Bench in the matter of Basudev Paul(Supra)(F.M.A. 1593 of 2018) squarely applies.
The order impugned to the writ petition dated January 30, 2018 is quashed and set aside.
The writ petition is allowed and the concerned authority/competent authority is directed to execute the lease deed in favour of the petitioner in terms of the final lease deed duly stamped and submitted in the office of the concerned authority.
The above exercise should be completed within December 31, 2019.
There will be, however, no order as to costs. 18 Urgent photostat certified copy of this order be given to the parties on priority basis, if the same is applied for.
(Shampa Sarkar,J.) 19 20