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IN THE HIGH COURT AT CALCUTTA
CHITTATOSH MOOKHERJEE, J.
Bipin Behari Mukherjee & Ors. - Petitioners
Versus
State of West Bengal & Ors. – Respondents
Civil Rule no. 1269(W) of 1972
Decided on: February 15, 1977
MINES AND MINERALS - BRICK EARTH - MINOR MINERAL - SILT DEPOSITED BY RIVER - MINING OPERATION - WEST BENGAL MINOR MINERAL RULES, 1959 - WEST BENGAL MINOR MINERAL RULES, 1973 - MINES AND MINERALS (REGULATION AND DEVELOPMENT) ACT, 1957 - WEST BENGAL LAND REFORMS ACT, 1955 - WEST BENGAL LAND REFORMS RULES, 1965 - Silt used for brick making is brick earth and therefore a minor mineral within the meaning of Section 3(e) of the Mines and Minerals (Regulation & Development) Act, 1957. The State Government under Section 15(1) of the Act had jurisdiction, competence and authority to insist on the compliance with the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 and the West Bengal Minor Mineral Rules framed thereunder for mining minor minerals.
Fact of the Case:
Petitioners, alleged owners of a brick field situated at Village Krishnanagar, P.S. Maheshtala, Dist. 24-Parganas, challenged the Additional District Magistrate's order directing them to apply for mining lease under the West Bengal Minor Mineral Rules, 1959, as per provisions of sub-rule 4(A) of Rule 3(B) of the West Bengal Land Reforms Rules, 1965. The petitioners claimed that they did not excavate or dig or use any earth or clay for the manufacture of bricks, but solely used silt deposited on their lands by the adjoining river Hooghly.
Finding of the Court:
1. The Additional District Magistrate (Estate Acquisition), 24-Parganas acted without lawful authority by applying the provisions of Rule 3B sub-rule 4(a) of the West Bengal Land Reforms Rules, 1965 in respect of the non-agricultural holdings of the petitioners. 2. The silt deposited on the petitioners' lands by the river Hooghly is a minor mineral within the meaning of Section 3(e) of the Mines and Minerals (Regulation and Development) Act, 1957. 3. The State Government under Section 15(1) of the Act had jurisdiction, competence and authority to insist on the compliance with the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 and the West Bengal Minor Mineral Rules framed thereunder for mining minor minerals.
Issues: 1. Whether the Additional District Magistrate had the authority to direct the petitioners to apply for mining lease under the West Bengal Minor Mineral Rules, 1959, as per provisions of sub-rule 4(A) of Rule 3(B) of the West Bengal Land Reforms Rules, 1965? 2. Whether the silt deposited on the petitioners' lands by the river Hooghly is a minor mineral within the meaning of Section 3(e) of the Mines and Minerals (Regulation and Development) Act, 1957?
Ratio Decidendi: 1. The West Bengal Land Reforms Act and the West Bengal Land Reforms Rules do not govern the rights of non-agricultural tenants in respect of their holdings. 2. The Mines and Minerals (Regulation and Development) Act, 1957 and the West Bengal Minor Mineral Rules, 1959 regulate the grant of quarry leases, mining leases and other mineral concessions in respect of minor minerals. 3. The Central Government, in exercise of its powers under Section 3(e) of the Mines and Minerals (Regulation and Development) Act, 1957, declared brick-earth to be a minor mineral. 4. The silt used for brick making is brick earth and therefore a minor mineral within the meaning of Section 3(e) of the Mines and Minerals (Regulation and Development) Act, 1957.
Final Decision: The Rule was disposed of in the following terms: 1. The petitioners are not raiyats and therefore, the respondents are commanded to forbear from giving effect to the provisions of the West Bengal Land Reforms Act and the West Bengal Land Reforms Rules in respect of the lands in question. 2. Liberty is, however, given to the respondents to proceed in accordance with the provisions of the Mines and Minerals (Regulation and Development) Act and the Rules framed thereunder regarding silt used by the petitioners for brick making. 3. There will be no order as to costs.
1. The petitioners 1 and 2 and their deceased elder brother, Chintaharan Mukherjee, are alleged to be the owners of a brick-field situated at Village Krishnanagar, P.S. Maheshtala, Dist. 24-Parganas. In the record of rights the lands comprised in the said brick field were classified as ‘Itkhola' and the status of the tenants has been recorded as 'Dakhalkars'. According to the petitioners the said brick field is situated by the side of the river Hooghly and bricks are manufactured solely with the silt deposited on their lands by the water of the said adjoining river. The petitioners claim that they do not excavate or dig or use any earth or clay for the manufacture of bricks.
2. The Additional District Magistrate, Alipore, the respondent No.2 issued notices upon the petitioners dated 6th April, 1971 to show cause why actions should not be taken against them under sub-section (2B) of Section 4 of the West Bengal Land Reforms Act, 1955 for manufacturing bricks for the purpose of business without the previous permission in writing under sub-section (2A) of Section 4 of the West Bengal Land Reforms Act, 1955 (vide Annexure 'A' series to the writ petition). The petitioners had showed cause to the Additional District Magistrate (Estate Acquisition) against the same. They inter-alia stated that the lands in question were not agricultural lands and, therefore, the provisions of the West Bengal Land Reforms Act were not attracted to the facts of the case. The petitioners further stated that they had been recorded as "Dakhalkars' and the recorded purpose of the tenancy was ‘Itkhola' both in the C.S. and R.S. records. They also stated that they carried on business of brick making with the silt deposited by the river Hooghly and they did not quarry sand or dig or use earth or clay of their holding. They denied that they had committed any breach of sub-section (2A) of Section 4 of the West Bengal Land Reforms Act. The petitioners took several other points in their said show-cause petition.
3. The Additional District Magistrate (Estate Acquisition), 24 Parganas by his order dated 9th September, 1971 accepted the submission of the petitioners that the status of the tenants of the disputed lands had been recorded as 'Dakhalkars' and that the lands had been classified as 'Itkhola'. Hence he ordered that petitioners were not guilty under Section 4(2A) of the West Bengal Land Reforms Act, but he further ordered "as per provision of Sub-Rule 4(A) of Rule 3(B) of the West Bengal Land Reforms Rules, 1965, the opposite party shall apply for mining lease under the West Bengal Minor Mineral Rules, 1959 within a period of 1½ months from the date of this order" (vide Annexure 'C' to the writ petition.).
4. The petitioners obtained this Rule against the aforesaid directions of the Additional District Magistrate that they should apply for mining lease under the West Bengal Minor Mineral Rules 1959 as per provisions of sub-rule 4(A) of Rule 3(B) of the West Bengal Land Reforms Rules. Mr. Pramatha Nath Mitra, learned Advocate for the petitioners, has submitted that after the Additional District Magistrate had found that the recorded tenants of the lands comprised in the brick field in question were non-agricultural tenants, he had no further jurisdiction to direct that the petitioners should apply for mining licence in terms of Rule 3(B) sub-rule 4(A) of the West Bengal Land Reforms Rules, 1965 because the West Bengal Land Reforms Rules were not applicable to non-agricultural tenants.
5. Section 4 of the West Bengal Land Reforms Act deals with the rights of a raiyat in respect of land. Under Section 2(10) of the West Bengal Land Reforms Act a raiyat means a person who holds land for purposes of agriculture. Rule 3(A) of the West Bengal Land Reforms Rules, 1965 also provides the terms and conditions for quarring sand etc. under sub-section 2A of Section 4 of the West Bengal Land Reforms Act by a raiyat. Therefore, these provisions do not govern rights of
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