Calcutta High Court (Appellete Side)
Basudeb Paul vs The State Of West Bengal & Ors on 21 December, 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 1593 of 2018
IN
CAN 1540 of 2018
(MAT 2026 of 2017)
Basudeb Paul
vs.
The State of West Bengal & Ors.
For the Appellant/Applicant : Mr. Sushanta Kumar Rakshit,
Mr. Sayantan Rakshit........Advocates
For the State : Mr. Tapan Kumar Mukherjee,
Mr. Tulsidas Ray........Advocates
Heard on : 26.08.2018, 04.09.2018, 04.10.2018 &
11.12.2018
Judgment on : 21.12.2018
ARINDAM MUKHERJEE, J. :
1) The appeal is at the instance of the writ petitioner wherein he has challenged the order dated 24th October, 2017, by which the writ petition was dismissed.
2) The brief facts leading to filing of the writ petition are as follows:- 2
i) The appellant/writ petitioner was granted a long term mining lease for five years on 9th November, 2009 with regard to a plot bearing No. 257 (P) Mouja-Benda, J.L. No. 51, P.S.-Bishnupur, District- Bankura, which measured about 10 acres. The lease deed was registered on 25th November, 2009.
ii) The said mining lease expired on 8th November, 2014.
iii) Prior the lease expiring by efflux of time, the appellant/writ petitioner on 21st March, 2014, made an application for renewal of the lease.
iv) As the renewal application was not being considered even after expiry of a reasonable period of time, the appellant/writ petitioner filed a Writ Petition being W.P. No. 29216 (W) of 2014.
v) The said writ petition was disposed of by an order dated 19th November, 2014. The relevant portion whereof are set out here under for the sake of convenience:-
"The petitioner's grievance in this writ petition is against non-consideration of the renewal application, which was made within the period of limitation. Learned counsel for the petitioner submits that the application for renewal be considered and disposed of by the appropriate authority.
Mr. Ghosh, learned counsel appearing for the State submits that the matter may be disposed of by the appropriate authorities.
Having considered the submissions made by the parties, the concerned authorities directed to consider 3 and dispose of the renewal application made by the petitioner upon giving an opportunity of hearing by 6 weeks from the date of communication of this order.
The writ petition is, thus, disposed."
vi) Pursuant thereto by a memo dated 18th February, 2016, the Additional District Magistrate and District Land & Land Reforms Officer, Bankura duly communicated to the appellant/writ petitioner the approval of the draft renewal mining lease deed by the Government. The contents of the said memo are set out hereunder:-
"With reference to his application for Renewal of mining lease on the scheduled area mentioned above as well as in compliance with the order dated 19.11.2014 of the Hon'ble High Court, Calcutta in W.P. No. 29216 (W) of 2014 in Basudeb Paul -Vs.- The State of West Bengal & Ors. and to return herewith draft Renewal Mining Lease Deed duly approved by this Government along with the Xerox copy of duly vetted composite sketch map.
1. He is requested to submit four final copies of the Renewal lease deed in durable paper (three on stamped paper and the rest on unstamped paper) strictly in accordance with the approved draft Renewal mining lease deed and ten plans (three on tracing cloth and rest on blue print paper together with necessary heading and legends on each copy as laid down in the specimen given below) strictly in accordance with the area mentioned in the said approved draft lease deed after due execution to this Department for taking necessary action. The final copies of the stamped Renewal lease deed should be 4 typed out by single process, so that all correction and page number exactly tally the stamped deeds line by line and page by page."
The appellant/ writ petitioner was also directed to deposit a sum of Rs. 2,500/- as security deposit.
vii) The appellant/writ petitioner duly submitted the final deed along with stamped paper and the approved draft deed on 28th March, 2016. The security deposit was also paid.
viii) On 21st October, 2016 a hearing was held by the District Magistrate, Bankura when the appellant/writ petitioner was present.
ix) By an order dated 21st October, 2016 the District Magistrate, Bankura, rejected the renewal application of the appellant/writ petitioner. The order is set out in its entirety for the sake of convenience:-
"I have heard the writ petitioner and gone through the case record and relevant rules of minor minerals as well as the orders of the Hon'ble National Green Tribunal and Hon'ble High Court, Clacutta.
I have gone through the West Bengal Minor Mineral Concession Rules 2016 as well as West Bengal Minor Mineral (Auction) Rules, 2016, whereby it appears from Rule 62 of the West Bengal Minor Mineral Concession Rules, 2016 that the West Bengal Minor Mineral Rules, 2002 has been repealed. In addition to 5 that as per Rule 61 of the West Bengal Minor Mineral Concession Rules, 2016 " all applications for mining lease of minor minerals including the reclassified minor minerals vide S.O. No. 420(E) dated 12.02.2015 received prior to the given effect to this rules irrespective of its duration of pendency of shall become ineligible."
I have also gone through the order dated 27.02.2012 of Hon'ble Supreme Court of India in Special Leave Petition (C) No. 19628-19629 of 2009 in the matter of Deepak Kumar etc.- Vs- State of Haryana and Others etc. and order dated 09.08.2016 of Hon'ble National Green Tribunal, Eastern Zone, Kolkata in R.A. No. 109/2016/EZ in O.A. No. 59/2015/EZ in the matter of the State of West Bengal through the Secretary, Deptt of Commerce & Industries -Vs.- Biplab Kumar Chowdhury where it has been directed that " The entire exercise to bring the existing sand mines under the new rules shall be completed within a period of three months". The State Government has now brought into new subordinate legislation which was published as the West Bengal Minor Mineral Concession Rules,2016 as well as West Bengal Minor Mineral (Auction) Rules, 2016.
On the basis of these Rules, the process of e-
Auction has already been started in different phase in this district. That in this particular case the Hon'ble High Court vide order dated 19.11.2014 directed to reconsider and dispose of the renewal application. In compliance of such order by Hon'ble court renewal grant order was issued and all the steps were initiated for mandatory compliance. Meanwhile Hon'ble National Green Tribunal directed that "The entire exercise to bring the existing 6 sand mines under the new rules shall be completed within a period of three months". Thus the undersigned being creature of state and being bound to abide by the direction of the Hon'ble court and since the applicant has not submitted any order in contrary to the above direction of Hon'ble National Green Tribunal.
Since the order of Hon'ble Supreme Court of India applies to all the states including the state of West Bengal, hence guidelines as laid down in the order of Hon'ble Supreme Court, India needs to be complied with.
Hence, in the light of above-noted observation and verdict of Hon'ble Supreme Court of India, as well as keeping in mind the relevant provisions of the West Bengal Minor Mineral Concession Rules, 2016 and West Bengal Minor Mineral (Auction) Rules, 2016, the writ petitioner's application for long term mining lease for sand in the below-noted land schedule is considered and rejected with liberty to the petitioner to participate in e- Auction process as per the West Bengal Minor Mineral (Auction) Rules,2016.
Hence, order dated 19.11.2014 of the Hon'ble High Court, Calcutta in connection with W.P. No. 29216(W) of 2014 in the matter of Basudeb Paul-Vs.- State of West Bengal has duly been complied with. Let the writ petitioner be informed accordingly."
3) The said order dated 21st October, 2016 was communicated by the Additional District Magistrate and Land & Land Reforms Officer, Bankura by a memo dated 2nd December, 2016.
7
4) Challenging the said order of rejection forming part of the memo dated 2nd December, 2016, the writ petition was filed. The learned Single Judge rejected the writ petition on the sole ground that that application submitted by the appellant/writ petitioner under the provisions of West Bengal Minor Minerals Rules,2002 has become ineligible as no grant or letter of intent was issued in favour of the appellant/writ petitioner by way of execution of lease deed before coming into force of the new rules with effect from 29th July,2016. The learned Single Judge also relied on Rule 61 of the West Bengal Minor Minerals Concession Rules, 2016 to hold that applications for mining lease of minor minerals including reclassified minor minerals received prior to 29th July, 2016 shall become ineligible unless where any grant order or letter of intent or any other Government order was made which altered the position of applicant in connection with the mining lease to uphold the order of the District Magistrate dated 21st October, 2016.
5) After considering the memo dated 18th February, 2016 issued by the Additional District Magistrate, and District Land & Land Reforms Officer, Bankura we are convinced that the same has to be construed as a Government order of grant. The petitioner had applied for renewal of his mining lease which was considered in compliance with the order dated 19th November, 2014 passed in W.P. No. 29216 (W) of 2014 referred to hereinabove. It is also clear from the said memo that the draft renewal mining lease was duly approved by the Government along with the Xerox copies of the duly rated composite sketch map. The only step left for renewal of the mining lease was execution of the formal 8 document in the line with the approved draft and payment of security deposit. The appellant/writ petitioner had submitted the final copies of the renewal lease deed prior to 29th July, 2016 when the 2016 rules came into force and have also paid the security deposit.
6) After approval of the draft renewal lease deed, there was no occasion for District Magistrate to reconsider the renewal application on 21st October, 2016 in terms of the order dated 19th November, 2014 when the draft renewal deed had already been approved on or before 18th February, 2016 in terms of the order dated 19th November,2014. We also find that Rule 61 of the West Bengal Minor Minerals Concession Rules, 2016 has no manner of application as the renewal application could not have remained pending on that date since the draft renewal deed was already approved prior to 29th July, 2016. The question of the renewal application of the appellant/writ petitioner becoming ineligible, therefore, cannot and does not, could not and did not arise under the said rule. The order of the District Magistrate dated 21st October, 2016 is, therefore, wholly without jurisdiction. The learned Single Judge also erred in holding that no grant order or letter of intent was issued in favour of the appellant/writ petitioner, ignoring the contents of the memo dated 18th February, 2016.
7) We, therefore, set aside the order dated 21st October, 2016 as communicated by the memo dated 2nd December, 2016 as also the order impugned dated 24th October, 2017. We allow the writ petition and direct the District Magistrate, Bankura, or the Additional District Magistrate and District Land & Land Reforms Officer Bankura and/or any competent authority in this 9 regard to execute the lease deed for renewal of the mining lease of the writ petitioner as per the approved draft renewal deed indicated in the memo dated 18th February, 2016. The lease deed should be executed and registered latest by 31st January, 2019.
The appeal along with the applications filed therein are disposed of accordingly.
There shall. however, be no order as to costs.
Urgent Photostat certified copy, if applied for, be supplied to the parties on priority basis.
(ARINDAM MUKHERJEE.J) (BISWANATH SOMADDER .J)