Calcutta High Court (Appellete Side)
Sanjay Mondal vs State Of West Bengal And Others on 18 July, 2018
Author: Harish Tandon
Bench: Harish Tandon
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate side
Present :
The Hon'ble Justice Harish Tandon.
W.P. 5651(W) of 2018
Sanjay Mondal
Vs.
State of West Bengal and others
Mr. Ashok Kumar Chakraborty, Senior Adv.
Mr. Pinaki Ranjan Chakraborty, Adv.
Mr. Nepesh Majhi , Adv.
.................For the Petitioner
Mr. Sirsanya Bandopadhyay, Ld. Jr. Standing Counsel,
Mr. Parikshit Goswami, Adv.
-------- For the State
Mr. Sharanya Chatterjee, Adv.
.... For the Respondent No. 8
Judgment on : 18.07.2018
Harish Tandon, J.
The petitioner, being the existing mining lease holder applied for assignment / transfer of the lease in favour of the private respondent, has challenged the order dated 6th April, 2016 issued by Deputy Secretary, Commerce and Industries Department, Government of West Bengal rejecting the permission to transfer applying the provisions of Mines and Minerals (Development and Regulation) Amendment Act, 2015.
Admittedly, the Government of West Bengal granted mining lease to the petitioner for extraction of Quartz and Felspar in respect of a land situated at Plot No. 1378 (Part), J.L. No. 61, Mouza - Jiyathol, Police Station Santuri, District - Purulia, measuring 8.23 acres for a period of twenty years with effect from 14th December, 1998. It is undisputed that both the minerals were declared as major minerals at such point of time. The petitioner commenced the mining activities of the then major minerals upon the demised plot of land and paid royalty and other government dues regularly. The petitioner, thereafter, intended to assign / transfer the said mining lease in favour of the private respondent and an application in this regard was made on 13th September, 2010. No response was made to the said application and a reminder was given on 26.04.2011. By a letter dated 29.08.2011, the respondent authorities i.e. Assistant Secretary, Department of Commerce and Industries, Government of West Bengal asked for submission of clearance certificate of mining dues, which according to him, was one of the requisite conditions to process the said application. The petitioner submitted the 'no dues certificate' on 28.06.2012. Prior to the aforesaid decision of the said authority, a suspension order was issued restraining the petitioner from undertaking any mining operations which was subsequently revoked on 21.08.2013 by the Controller of Mines, Government of India upon examination of the monthly returns and compliance of Rule 45(2) and 45(5)(a) of Minor Conservation and Development Rules, 1988. Even after the revocation of the suspension order, no further action was taken by the respondent authorities and the petitioner thereafter made successive applications renewing the prayer for grant of permission to transfer the mining lease in favour of the private respondent. The petitioner was again asked to submit 'no dues certificate' which was again submitted on 28.04.2014. Still the application was kept idle as no communication was made to the petitioner. The petitioner applied under Right to Information Act, 2005 and received an information that the matter is still pending before the Department of Commerce and Industries, Government of West Bengal. Subsequently, the impugned order was served upon the petitioner rejecting the prayer for permission to transfer the mining lease as after the enactment of Mines and Minerals (Development and Regulation), Amendment Act, 2015 concessions in respect of all major minerals are to be granted through auction.
Primarily the challenge to the said impugned order was restricted in the writ petition on the ground that if an application is made prior to coming in force of the said Amendment Act, 2015, it should be considered on the provisions of the statute prevalent at the time of making the application. In other words, it is stated in the writ petition that the authorities cannot take shelter under the provisions of the Amendment Act, 2015 to the pending applications as that Act shall apply prospectively.
A further point is taken that the State Government being a delegated authority under the Mines and Minerals (Development and Regulation) Act, 1957 has no legislative competence to reject the petitioner's application as the said power is conferred upon the Central Government. However, a little drift was taken from the aforesaid core issues and more so on subsequent events when the Central Government by notification published in the Gazette of India notified the aforesaid major minerals i.e. Quartz and Felspar as minor minerals. Taking aid from such notification where the aforesaid minerals are included in the category of minor minerals, Mr. Chakraborty, the learned Senior Advocate, appearing for the petitioner submits that none of the provisions of the amended Act, 2015 would apply as those are applicable for major minerals.
To put it differently, Mr. Chakraborty, learned Senior Counsel impinged the impugned order on the premise that the entire decision was taken as if the aforesaid minerals are major minerals thereby overlooking the subsequent notification of the Central Government duly published in the Official Gazette of February 10th, 2015 that those are no longer in the category of major minerals. Mr. Chakraborty further submits that Section 14 of the Act clearly excludes the provisions of Sections 5 to 13 (inclusive) to query lease, mining lease or mineral concession in respect of minor minerals and, therefore, Section 11 as amended cannot apply.
In response to the aforesaid submission of the petitioner Mr. Sirsanya Bandopadhyay, learned Advocate appearing for the State respondent submits that a clarification was sought from the Government of India, Ministry of Mines over the fact of the pending applications prior to commencement of the Amendment Act, 2015 and vide clarification letter dated 2nd January, 2018 the Central Government opined that all transfer of leases granted otherwise than through auctions were banned and as a consequence, such applications that were pending as on the date of coming in force of the said Amendment Act, became null and void.
Mr. Bandopadhyay thus submits that in view of an express bar under Section 11 that all license cum mining lease can only be granted through auction, the application has been rightly rejected taking aid of the Amendment Act, 2015. He, therefore, submits that the impugned order cannot be interfered with and the writ petition is liable to be dismissed.
It would appear from the lease deed executed on 14th December, 1998 that the petitioner applied to the State Government for mining lease to extract Quartz and Felspar under the Mineral Concession Rules, 1960. There is no reflection in the recital of the lease deed that permits or license or lease was granted through auction. Only consideration evident from the recital is the quantum of the rents and the royalties agreed by the petitioner as lessee therein. Clause 12 of the lessee's covenant indicates that the lessee shall be bound by such Rules as may be issued from time to time by the Government of India under Section 18 of the said Act. Clause 17(1) recognizes the right of the lessee to assign, sub let or mortgage or in any other manner transfer the mining lease subject however, with the previous consent in writing of the State Government. There is no absolute restriction imposed in the lease deed against the assignment / transfer of the lease but brindled with the restrictions that previous consent of the State Government should be obtained. It is further manifest that the petitioner shall be bound by the Rules as may be issued from time to time by the Government of India under the said Act. The West Bengal Minor Minerals Rules, 2002 was in operation at the time of making the said application. Rule 18 of the Rules of 2002 permits such transfer provided the conditions incorporated therein are fulfilled. Admittedly, the State Government processed the said application and from time to time made requisitions of various documents to be submitted by the petitioner. Although both the learned Advocates appearing for the parties did not produce the Mines and Minerals (Development and Regulation), Act, 2015 but founded their argument upon the Ordnance, 2015 amending the principle Act and relied upon the various clauses thereof. It is seen from the principle Act that the various provisions thereof has been amended and / or incorporated in the tune or line of the said ordnance which ultimately takes character of the Act duly passed by the Parliament.
It is somewhat settled that the Constitution indeed makes no distinction in principle between the law made by the legislature and an ordnance issued by the President. Both are equally the products of exercise of legislative power and are equally subject to limitations which the Constitution has placed upon that power. The nature of the power exercised to promulgate an ordnance has to be gathered from Article 123 and not merely from heading of the chapter. An ordnance is legislative in character and have same force and effect as duly enacted legislation provided the ordnance is validly created in compliance with all the Regulations of Article 123 / Article 213 of the Constitution. The reference can be safely made to a Constitution Bench decision of the Supreme Court in case of Krishna Kumar Singh -Vs- State of Bihar reported in (2017) 3 SCC 1 wherein it is held _ "45. Interpreting these provisions, a Constitution Bench of this Court in R.K. Garg v.Union of India [R.K. Garg v. Union of India, (1981) 4 SCC 675 : 1982 SCC (Tax) 30] rejected the submission that while promulgating an Ordinance under Article 123 the President had no power to amend or alter tax laws. Dealing with the submission that the Legislative power must exclusively belong to elected representatives and vesting such a power in the executive is undemocratic as it may enable the executive to abuse its power by securing the passage of an ordinary Bill without risking a debate in the legislature, the Constitution Bench emphasised the constitutional limitations on the exercise of the Ordinance-making powers. Adverting to the speech made by Dr Ambedkar in the Constituent Assembly, the Court noted "that the Legislative power conferred on the President under this Article is not a parallel power of legislation" [Id at p. 687, para 4] . Among the provisions that the Court emphasised are limitations on when the power can be exercised and the duration of an Ordinance. The Constitution Bench carefully emphasised the element of Legislative control in the following observations: (R.K. Garg case [R.K. Garg v. Union of India, (1981) 4 SCC 675 : 1982 SCC (Tax) 30] , SCC p. 688, para 4) "4. ...The conferment of such power may appear to be undemocratic but it is not so, because the executive is clearly answerable to the legislature and if the President, on the aid and advice of the executive, promulgates an Ordinance in misuse or abuse of this power, the legislature can not only pass a resolution disapproving the Ordinance but can also pass a vote of no confidence in the executive. There is in the theory of constitutional law complete control of the legislature over the executive, because if the executive misbehaves or forfeits the confidence of the legislature, it can be thrown out by the legislature."
46. In view of the Constitution Bench, "there is no qualitative difference between an Ordinance issued by the President and an Act passed by Parliament" (R.K. Garg case[R.K. Garg v. Union of India, (1981) 4 SCC 675 : 1982 SCC (Tax) 30] , SCC p. 689, para 5). The same approach was adopted by another Constitution Bench of this Court inA.K. Roy v. Union of India [A.K. Roy v. Union of India, (1982) 1 SCC 271 : 1982 SCC (Cri) 152] where this Court spoke about "the exact equation, for all practical purposes, between a law made by Parliament and an Ordinance issued by the President" [Id at p. 290, para 14] . The submission before the Court in a challenge to the validity of the National Security Ordinance was that an Ordinance is an exercise of executive and not Legislative power. While rejecting that submission, the Constitution Bench held that: (A.K. Roy case [A.K. Roy v. Union of India, (1982) 1 SCC 271 : 1982 SCC (Cri) 152] , SCC p. 291, para 14) "14. ... the Constitution makes no distinction in principle between a law made by the legislature and an Ordinance issued by the President. Both, equally, are products of the exercise of Legislative power and, therefore, both are equally subject to the limitations which the Constitution has placed upon that power."
47. Both the decisions of the Constitution Bench in R.K. Garg [R.K. Garg v. Union of India, (1981) 4 SCC 675 : 1982 SCC (Tax) 30] and in A.K. Roy [A.K. Roy v. Union of India, (1982) 1 SCC 271 : 1982 SCC (Cri) 152] repelled the submission that the Ordinance-making power is not Legislative in nature and character. Undoubtedly, the power to promulgate an Ordinance is a Legislative power which has been conferred upon the President or, as the case may be, the Governors. It is, however, necessary to emphasise that when the decision in R.K. Garg [R.K. Garg v. Union of India, (1981) 4 SCC 675 : 1982 SCC (Tax) 30] speaks of there being "no qualitative difference" between an Ordinance issued by the President and an Act of Parliament and the decision in A.K. Roy [A.K. Roy v. Union of India, (1982) 1 SCC 271 : 1982 SCC (Cri) 152] speaks of the "exact equation for all practical purposes" between the two, these observations are in the context of the principle that an Ordinance promulgated under Article 123 or Article 213 of the Constitution is subject to the same constitutional inhibitions which govern an enactment of the legislature. Both the decisions of the Constitution Benches have, however, placed significant emphasis on the safeguards introduced by the Constitution to ensure against an abuse of power by the executive in exercising a Legislative power while framing an Ordinance. The decision in R.K. Garg[R.K. Garg v. Union of India, (1981) 4 SCC 675 : 1982 SCC (Tax) 30] emphasised the element of Legislative control over an Ordinance made by the executive. The Constitution Bench in A.K. Roy [A.K. Roy v. Union of India, (1982) 1 SCC 271 : 1982 SCC (Cri) 152] , while noting that the Constituent Assembly conferred an Ordinance-making power on the heads of the executive in the Union and the States as a "necessary evil" [(1982) 1 SCC 271 at p. 292, para 16] , held thus: (A.K. Roy case[A.K. Roy v. Union of India, (1982) 1 SCC 271 : 1982 SCC (Cri) 152] , SCC pp. 292-93, para
16) "16. ... That power was to be used to meet extraordinary situations and not perverted to serve political ends. The Constituent Assembly held forth, as it were, an assurance to the people that an extraordinary power shall not be used in order to perpetuate a fraud on the Constitution which is conceived with so much faith and vision. That assurance must in all events be made good and the balance struck by the Founding Fathers between the powers of the Government and the liberties of the people not disturbed or destroyed."
It is nobody's case that the said ordnance was later on converted into an Act with modification and / or change and, therefore, this Court can safely proceed to construe the various clauses of the ordnance treating the same to be a part of the substantive Act. Section 10A(1) of the principle Act refers all applications received prior to the date of commencement of the said Amendment Act to be ineligible. Section 11 which was in fact pressed in action by the State respondent was further amended by virtue of the said Amendment Act, 2015 and the grant of perspective license cum mining lease other than the notified minerals can only be made through auction. Presumably, the impugned order is passed by applying the provisions contained under Section 11 of the said Act as the leave was granted to the petitioner by the State without any auction. Section 14 of the Act exempts the applicability of the said Section in case of query leases, mining leases or other mineral concessions pertaining to minor minerals. It can be inferred that the provisions contained in Section 5 to Section 13 (inclusive) are applicable in case of a major minerals or a notified minerals other than the minor minerals. Though the Quartz and Felspar were the major minerals but the Central Government subsequently excluded them from the category of the major minerals to minor minerals by notification dated 10.02.2015. The position that stood on the date of passing the impugned order was that the aforesaid minerals were minor minerals and in view of Section 14 of the principle Act the shelter under Section 11 was wrong and illegal. Though the Central Government in its clarifactory letter dated 02.01.2018 expressed that all transfer of leases granted otherwise than through auction were banned and the pending application became null and void in view of the commencement of Amendment Act, 2015 yet such opinion is restricted to the pending applications or all applications referred in Section 11 and, therefore, the application for transfer relating to the minor minerals were saved under Section 14 of the said principle Act.
This Court, therefore, cannot sustain the impugned order in view of the observations made hereinabove and the same is hereby quashed and set aside.
The Deputy Secretary, Department of Commerce and Industries, Government of West Bengal is directed to reconsider the said application in the light of the observations made hereinabove afresh and it goes without saying that the decision thereupon shall be taken within four weeks from the date of the communication of this order.
The writ petition is thus disposed of.
However, there shall be no order as to costs.
(Harish Tandon, J.)