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HIGH COURT OF CALCUTTA
CHITTATOSH MUKHERJEE
SHYAM SUNDAR RATHI - Appellant
Versus
ADDL. DISTRICT MAGISTRATE, BANKURA - Respondent
C. R. 4698 (W) Of 1970
Decided On : FEBRUARY 13, 1974
WEST BENGAL LAND REFORMS ACT - SECTION 4 (2-A) (B) - ULTRA VIRES - MINES AND MINERALS (REGULATION AND DEVELOPMENT) ACT, 1957 - SECTION 2 - DECLARATION - LEGISLATIVE COMPETENCE - STATE LEGISLATURE - SUB-SOIL RIGHTS - RAIYATS - MINING OPERATIONS - TERMS AND CONDITIONS - FEES - CONFLICT OF LAWS - SEVERABILITY - SECTION 4 (2-B) - FINE - CRIMINAL PROCEDURE CODE, SECTION 5 - WEST BENGAL MINOR MINERALS RULES, 1959 - RULE 25 - PROSECUTION - SHOW CAUSE NOTICE - DAMAGE/COMPENSATION - WRIT OF CERTIORARI - WRIT OF MANDAMUS.
Fact of the Case:
Petitioner, a raiyat, challenged the vires of Sections 4(2-A) and 4(2-B) of the West Bengal Land Reforms Act, 1955, arguing that the State Legislature lacked legislative competence to enact these provisions after the declaration by the Central Government under Entry 54, List I, Schedule 7 of the Constitution, which took away the State's legislative competence regarding mines and minerals.
Finding of the Court:
The Court held that the insertion of Sections 4(2-A) and 4(2-B) in the West Bengal Land Reforms Act encroached upon the legislative field carved out by the declaration of the Central Government under Section 2 of the Mines and Minerals (Regulation and Development) Act, 1957, read with Entry 54, List I of the 7th Schedule of the Constitution. The Court found that the State Legislature, by empowering the rule-making body to prescribe terms and conditions for granting permission to excavate or use earth or clay in brick making, clearly exceeded its legislative competence.
Issues: 1. Whether the West Bengal State Legislature encroached upon the legislative field carved out by the declaration of the Central Government under Section 2 of the Mines and Minerals (Regulation and Development) Act, 1957, by inserting Sub-sections (2-A) and (2-B) in Section 4 of the West Bengal Land Reforms Act. 2. Whether the provisions of Section 4(2-A)(b) of the West Bengal Land Reforms Act, which regulate the digging or using of earth or clay from the holdings of raiyats for brick making, are ultra vires.
Ratio Decidendi: 1. The Court held that the declaration of the Central Government under Section 2 of the Mines and Minerals (Regulation and Development) Act, 1957, withdrew the entire legislative field in relation to minor minerals from the State Legislature. 2. The Court found that Section 4(2-A)(b) of the West Bengal Land Reforms Act, which purports to authorize the State Government to prescribe terms and conditions for digging and using earth and clay in the holdings of raiyats for brick making, directly and substantially relates to grant of permission for undertaking mining operations by a raiyat. 3. The Court held that the provisions of Section 4(2-A)(b) are ultra vires as they encroach upon the legislative field occupied by the Parliament after the declaration of the Central Government under Section 2 of the Mines and Minerals (Regulation and Development) Act, 1957.
Final Decision: The Court issued a writ of certiorari quashing the show cause notice issued by the Additional District Magistrate, Bankura, under Section 4(2-A)(b) of the West Bengal Land Reforms Act, and a writ of mandamus commanding the respondents to forbear from giving effect to the provisions of Section 4(2-A)(b) of the Act against the petitioner. However, the order was without prejudice to the rights and contentions of the parties under the West Bengal Minor Minerals Rules, 1959.
( 1 ) THE petitioner claims that by a registered Kobala. dated August 27, 1967, he purchased 9. 28 acres of land appertaining to Plot No. 61 R. S. Khatian No. 74 Mouza Santore, District Bankura. The said plot was recorded as an agricultural land in the R. S. Records. The petitioner carries on business of manufacturing bricks. On December 26, 1966, he applied to the Additional District Magistrate, Bankura for granting him a Mining Lease under the West Bengal Minor Minerals Rules. 1959 for extracting earth for brick making from the aforesaid plot of land.
( 2 ) ACCORDING to the petitioner, the authorities did not dispose of his said ap-plication for licence either by granting or refusing the same. On May 6, 1970. the Additional District Magistrate, Bankura by his Memo. No. 2309/e. A. served a notice upon the petitioner stating that it had come to his notice that the petitioner had manufactured bricks unautho-risedly by digging and using brick-earth of the plot No. 61 of Mouza Santore without obtaining any mining lease. The Additional District Magistrate directed the petitioner to show cause by June 2, 1970 why he shall not be prosecuted under Rule 25 of the West Bengal Minor Mineral Rules, 1959 and/or why damage compensation shall not be realised from him for unauthorised digging of brick-earth and manufacture of bricks (Annexure 'b' to the petition ). The petitioner prayed before the Additional District Magistrate for granting him two months' time in the matter. On July 11, 1970, the Additional District Magistrate. Bankura issued another Memo, being No. 3399/e. A. in continuation of the aforesaid show cause notice, dated the 6th May, 1970 directing the petitioner to deposit Rs. 2,712. 50 (Rupees two thousand seven hundred twelve and fifty paise) only as damage compensation in the Bankura Treasury (Annexure 'c' to the petition ). The Additional District Magistrate by subsequent Memo dated August 14, 1970 directed the petitioner that if he failed to deposit the amount of damage compensation by August 25, 1970, certificate case would be filed against him for realisation of the amount. On August 7, 1970. the Additional District Magistrate Bankura issued Memo. No. 4227/e. A. purporting to be a notice to show cause under Sub-section (2-A) of Section 4 of the West Bengal Land Reforms Act. 1955 to the petitioner. The Additional District Magistrate in the said notice stated that it appeared that the petitioner had dug and used brick-earth of his holding in question for manufacture of bricks without the previous permission in writing of the State Government or the Additional District Magistrate authorised under Sub-section (2-A) of the said section. He called upon the petitioner to show cause on or before August 25, 1970 why action shall not be taken against him under Sub-section (2-B) of Section 4 of the West Bengal Land Reforms Act, 1955 viz. imposing a fine of Rs. 200 (Rupees two hundred) only shall not be imposed on him for each day during which the breach continued (vide Annexure 'e' to the petition ).
( 3 ) THE petitioner in this Rule has challenged the vires of Sub-sections (2-A) and (2-B) of Section 4 of the West Bengal Land Reforms Act, 1955. The petitioner's contention is that after the declaration of the Central Government under Entry No. 54, Lost I, Schedule 7 of the Constitution, the legislative competence of the State Government in respect of the mines and minerals, in particular regarding brick-earth was taken away. The provisions of Sub-sections (2-A) and (2-B) of the West Bengal Land Reforms Act, ac-cording to the petitioner, are repugnant to Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957 and of the West Bengal Minor Minerals Rules, 1959 made by the State Government in exercise of its power conferred by Sub-section (1) of Section 15 of the Act. The petitioner has also challenged the authority of the respondents to issue notices and memos (vide Annexures 'b', 'c' an
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