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High Court Of Calcutta
D. K. SEN
CHANDESWAR PROSAD SINGH - Appellant
Versus
SUB DIVISIONAL L.R.OFFICER - Respondent
Civil Order 16152 Of 1980
Decided On : 12/21/1984
MINES AND MINERALS - Regulation and Development Act, 1957 - scope and ambit - 'minor minerals' - whether includes clay, brick earth or silt deposits from rivers - whether such items can be validly classified as minor minerals - whether the Act and Rules framed thereunder are ultra vires the Constitution - whether the State Government has any right, title or property in earth, clay or other minor minerals contained in the sub-soil of the land - whether excessive delegation of powers to the State Government - whether the State Government can recover the price of the minerals raised and disposed of unlawfully - whether the State Government can demand royalty where the mining operation resulting in extraction and disposal of minor mineral is wholly unauthorised - whether the State Government can impose or levy additional royalty by making it a condition of quarry permits - whether such a provision violates Art. 14 of the Constitution - whether the authorities can lawfully demand and recover additional royalty on the ground of excess recovery of minor minerals where a quarry permit has been issued - whether the authorities concerned can recover unascertained damages claimed by them through the machinery of the Public Demands Recovery Act - whether the State Government can proceed by way of a Civil Suit and recover damages from person unlawfully extracting or consuming minor minerals - whether the prohibition under Sec. 4 (1) of the said Act is confined to mining operations and not to the user of the mineral extracted - whether the Rules to the extent it prohibits the user of the minerals raised are ultra vires the said Act as being in excess of the rule-making power conferred to the State Government - whether any penal action proposed or initiated has to be confined to unlawful mining operation - whether the authorities who have issued the impugned notices are competent to do so - whether the imposition of royalty at a fixed prescribed rate is valid - whether the rate of royalty for minor minerals had been computed in a proper manner.
Fact of the Case:
Petitioners challenged the notices, demands raised therein and the actions proposed to be taken thereunder on the ground that by extracting earth and soil for making bricks they do not remove any mineral from soil and that such extraction is not a mining operation. It was contended further that under S. 21 (5) of the said Act or under the said Rules no principle or procedure has been laid down nor any provision has been made for determination of the price of the earth so extracted. It was alleged that the authorities have exercised unguided, uncontrolled and arbitrary power and have determined the volume as also the price of earth extracted by rule of thumb, without giving any opportunity to the petitioners of being heard or to make representations. The authorities, it was alleged, have not disclosed any material or basis on which the volume and the price of the earth have been determined.
Finding of the Court:
The Court held that brick earth is a mineral and also a minor mineral within the meaning of the said Act. The Court further held that the State Government has no right, title or property in earth, clay or other minor minerals contained in the sub-soil of the land. The Court also held that excessive delegation of powers to the State Government is not valid. The Court further held that the State Government can recover the price of the minerals raised and disposed of unlawfully. The Court also held that the State Government cannot demand royalty where the mining operation resulting in extraction and disposal of minor mineral is wholly unauthorised. The Court further held that the State Government cannot impose or levy additional royalty by making it a condition of quarry permits. The Court also held that such a provision violates Art. 14 of the Constitution. The Court further held that the authorities can lawfully demand and recover additional royalty on the ground of excess recovery of minor minerals where a quarry permit has been issued. The Court also held that the authorities concerned can recover unascertained damages claimed by them through the machinery of the Public Demands Recovery Act. The Court further held that the State Government can proceed by way of a Civil Suit and recover damages from person unlawfully extracting or consuming minor minerals. The Court also held that the prohibition under Sec. 4 (1) of the said Act is confined to mining operations and not to the user of the mineral extracted. The Court further held that the Rules to the extent it prohibits the user of the minerals raised are ultra vires the said Act as being in excess of the rule-making power conferred to the State Government. The Court also held that any penal action proposed or initiated has to be confined to unlawful mining operation. The Court further held that the authorities who have issued the impugned notices are competent to do so. The Court also held that the imposition of royalty at a fixed prescribed rate is valid. The Court further held that the rate of royalty for minor minerals had been computed in a proper manner.
Issues: Whether the Act and Rules framed thereunder are ultra vires the Constitution? Whether the State Government has any right, title or property in earth, clay or other minor minerals contained in the sub-soil of the land? Whether excessive delegation of powers to the State Government is valid? Whether the State Government can recover the price of the minerals raised and disposed of unlawfully? Whether the State Government can demand royalty where the mining operation resulting in extraction and disposal of minor mineral is wholly unauthorised? Whether the State Government can impose or levy additional royalty by making it a condition of quarry permits? Whether such a provision violates Art. 14 of the Constitution? Whether the authorities can lawfully demand and recover additional royalty on the ground of excess recovery of minor minerals where a quarry permit has been issued? Whether the authorities concerned can recover unascertained damages claimed by them through the machinery of the Public Demands Recovery Act? Whether the State Government can proceed by way of a Civil Suit and recover damages from person unlawfully extracting or consuming minor minerals? Whether the prohibition under Sec. 4 (1) of the said Act is confined to mining operations and not to the user of the mineral extracted? Whether the Rules to the extent it prohibits the user of the minerals raised are ultra vires the said Act as being in excess of the rule-making power conferred to the State Government? Whether any penal action proposed or initiated has to be confined to unlawful mining operation? Whether the authorities who have issued the impugned notices are competent to do so? Whether the imposition of royalty at a fixed prescribed rate is valid? Whether the rate of royalty for minor minerals had been computed in a proper manner?
Ratio Decidendi: The Court held that the impugned notices issued and proceedings sought to be initiated thereby are without jurisdiction.
Final Decision: The Court set aside the impugned notices and issued appropriate writs.
( 1 ) AT the instance of the parties this application has been heard along with a number of other applications as the facts involved are similar and the questions of law arising are the same.
( 2 ) THE petitioners in these applications are either owners or lessees of or licencees in various plots of land in the State of West Bengal, a number of which have been described as agricultural land in the records of right.
( 3 ) EARTH extracted from the said plots has been used or utilised or is alleged to have been used or utilised for manufacture of bricks either by the petitioners themselves or by persons to whom the petitioners have made available such earth.
( 4 ) THE authorities contend that such extraction, use and consumption of earth were illegal, wrongful and in contravention of the provisions of Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to as the said Act) and the West Bengal Mines and Minerals Rules, 1973 (hereinafter referred to as the said Rules ).
( 5 ) NOTICES have been issued by several authorities namely the Additional District Magistrate (L. R.), or the Sub-Divisional Land Reforms Officer or the Junior Land Reforms Officer against each of the petitioners directing them, inter alia, to pay the price of the earth so extracted, or royalty for the same, or damages therefor as assessed, or to pay additional royalty for manufacture of bricks beyond the quantity permitted, and in some cases consequential charges including interest at the rate of 6% per annum. In some of the notices the petitioners concerned have been directed to show cause why penal action should not be taken against them for such wrongful extraction of earth and use thereof for manufacture of bricks.
( 6 ) THE aforesaid notices have been issued in several different forms as set out hereafter. a) Notice under Sec. 21 (5) of the Mines and Mineral (Regulation and Development) Act, 1957 : to. . . . . . . . . . . . "whereas it appears that you have raised and disposed of brick-earth from Mouza. . . . . . . . . . . . . . J. L. No. . . . . . . . . . Plot No. . . . . . . . . P. S. . . . . . . . . . . District. . . . . . . . . . . . . . . during the period from. . . . . . . . . . . . . to. . . . . . . . . . . . . . for commercial purpose without any lawful authority; And whereas you are on that account liable to pay price of earth as per provisions of S. 21 (5) of the Mines and Minerals (Regulation and Development) Act, 1957, accordingly the amount of price of earth as per provisions of S. 21 (5) of the Mines and Minerals (Regulation and Development) Act, 1957; has been assessed year-wise as detailed below :- a) Serial No. . . . . . . . b) Year. . . . . . . . . . c) Quantity of bricks earth extracted in cft. . . . . . d) Rate e) Amount assessed to be payable. . . . . . . . . I, Sub- Divisional Land Reforms Officer, duly empowered to exercise power under Sec. 21 (5) of the said Act, do hereby direct you to pay the said amounts of price of earth to the State Bank of India. . . . . . . . . . . . branch by. . . . . . . . . . . . through T. R. Challan duly passed by the undersigned and submit a copy of the receipted challan to this office by. . . . . . . . . . . . . . . . . . . . . . failing which action will be taken against you according to law. Sd/- Sub- Divisional Land Reforms officer""to. . . . . . . . . . . . . . . . . WHEREAS it appears that you have extracted/ manufactured about. . . . . . . . . . . . cft of earth/bricks/tiles from the land of plot No. . . . . . . . . . . appurtaining Khatian No. . . . . . . . . . . . . . of Mouza. . . . . . . . . . J. L. No. . . . . . . . . . . . . . . under P. S. . . . . . . . . . . . . . District. . . . . . . . . for manufacturing of bricks/tiles without obtaining the quarry permit as required under R. 24 of the West Bengal Mines and Minerals Rules, 1973 and whereas you have deprived the State of West Bengal, the royalty of. . . . . . . . . payable under R. 18 of the M
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