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2014 Supreme(Cal) 357
IN THE HIGH COURT AT CALCUTTA
JYOTIRMAY BHATTACHARYA & ISHAN CHANDRA DAS, JJ.
Swapan Sarkar
Vs.
State of West Bengal & Ors.
W.P 16526(W) of 2013 with W.P 19472(W) of 2013 with W.P 19474 (W) of 2013 with W.P 19478 (W) of 2013 with W.P 19480 (W) of 2013 with W.P 19481 (W) of 2013 with W.P 19483 (W) of 2013 with W.P 19485 (W) of 2013 with W.P 19486 (W) of 2013 with W.P. 19638 (W) of 2013
Decided on: 4th July, 2014
Advocate Appeared:
For the petitioner:Mr. Ashoke Chakraborty, Mr. Pallav Chatterjee, Mr. Pranab Kumar Dutta, representing Advocate General
For the State in W.P 16526(W): Mr. Sadananda Ganguly, of 2013 and in W.P.19474 (W): Mr. Supratim Dhar, Mr. D. Banerjee
For the State in W.P. 19472(W) : Mr. Arindam Sinha, Of 2013 : Mr. S.N. Bhattacharya, Mr. Somnath Banerjee for the State in W.P. 19474 (W) : Mr. Amitesh Banerjee, of 2013 in W.P. 19478 (W) : Mr. Supratim Dhar, of 2013 in W.P. 19638 (W) : Mr. Tulsi Das Ray, of 2013 for the State in W.P.19480(W) : Mr. Sadhan Kr. Haldar, of 2013 : Mr. K.M. Hossain, for the State in W.P. 19481 (W) : Mr. Sakya Sen, of 2013 : Miss Priyanka S. Tibrewal
For the State in W.P. 19483(W) : Mr. Pradip Dutta, of 2013 : Miss Priyanka S. Tibrewal for he State in W.P 19485(W) : Mr. P. P Banerjee, of 2013 : Mr. Supratim Dhar, Mr. Arindam Sinha, for the State in W.P 19486(W) : Miss Sipra Majumdar, of 2013 : Ms. Srilekha Bhattacharya, Mr. Arindam Sinha.
The right to apply for renewal flows from the contract itself and the petitioners’ right to get their leases renewed as per the provision contained in Rule 12 of the Rules of 2002 is recognized in the contract itself. As such the citations relied upon by Mr. Dutta, have no application in the present case.
Headnote:
The West Bengal Minor Minerals Rules, 2002 (Rules of 2002) were amended in 2011, introducing Rules 16A and 16B. These amendments brought about a thorough change in the procedure for grant of mining lease in respect of river-bed materials (excluding in-situ hard rock), kankar, morrum, and brick-earth on land vested in the Government. The petitions challenged the vires of the impugned notification dated 1st December, 2011 introducing Rule 16A/16B and Schedule VIII to the Rules of 2002 as ultra vires of Section 2,8,9,10,15 of the Mines and Minerals (Development and Regulation) Act, 1957 as well as Entry 54, List-I, Seventh Schedule and Articles 13, 14, 19(i)(g), 21, 245 and 246 of the Constitution of India. The legality and/or propriety of the impugned order of rejection of the petitioners’ applications for renewal was also under challenge.
Fact of the Case:
Mining leases were granted by the State Government in favour of the writ petitioners by permitting them to extract sand from different plots of land as mentioned in their respective lease deeds on payment of royalty and dead rent, as per the rate prescribed in the Schedule-I framed under Rule 20 of the Rules of 2002. Those leases were granted for a fixed period with a renewal clause, giving option to the lessees to apply for renewal within a specified time before expiry of the leases. The petitioners applied for renewal of their leases in terms of the renewal clause contained in their respective lease deeds. Their applications for renewal were rejected by the concerned authority, by referring to the amended provision of the Rules of 2002 which was introduced in the year 2011, either during the continuance of the leases of the petitioners or pending consideration of the petitioners’ application for renewal.
Finding of the Court:
The Court held that the Rules 16A and 16B which were introduced in the Rules of 2002, are ultra vires of Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 as well as Entry No.54, List-I, Seventh Schedule and Article 13, 14, 19(i)(g), 21, 245 and 246 of the Constitution of India.
Issues: 1. Whether the impugned notification dated 1st December, 2011 introducing Rule 16A/16B and Schedule VIII to the West Bengal Minor Minerals Rules, 2002 (Rules of 2002) is ultra vires of Section 2,8,9,10,15 of the Mines and Minerals (Development and Regulation) Act, 1957 as well as Entry 54, List-I, Seventh Schedule and Articles 13, 14, 19(i)(g), 21, 245 and 246 of the Constitution of India? 2. Whether the impugned order of rejection of the petitioners’ applications for renewal is legal and valid?
Ratio Decidendi: 1. The Court held that the impugned amendment is operating prospectively, it cannot take away the right of the petitioners accrued under Rule 12 of the Rules of 2002 which the parties agreed to follow in case of renewal of their leases. 2. In the instant case despite such amendment was made in the Rules of 2002 in 2011, the petitioners’ right to get his lease renewed which is a right vested in him under the contract cannot be nullified by the impugned amendment. 3. The impugned decision which was taken by the concerned authority in refusing to grant the renewal of lease in favour of the petitioners, is illegal and the same is set aside. The concerned authority is thus directed to consider the petitioners’ application for renewal in the light of the provision contained in Rule 12 of the Rules of 2002 and take its ultimate decision in this regard without applying the provisions of the amended rules which have already been declared as ultra vires and until such decision is taken, the petitioners’ lease is deemed to be extended.
Final Decision: All the petitions were disposed of. The impugned order of rejection of the petitioners’ applications for renewal was set aside. The concerned authority was directed to consider the petitioners’ application for renewal in the light of the provision contained in Rule 12 of the Rules of 2002 and take its ultimate decision in this regard without applying the provisions of the amended rules. Until such decision is taken, the petitioners’ lease is deemed to be extended.
Jyotirmay Bhattacharya, J.
Since common question of law is involved in all these writ petitions, all these writ petitions are heard analogously.
Let me indicate the basic facts involved in all these writ petitions which are necessary for proper appreciation of the dispute between the parties leading to filing of these writ petitions. Admittedly, mining leases were granted by the State Government in favour of the writ petitioners by permitting them to extract sand from different plots of land as mentioned in their respective lease deeds on payment of royalty and dead rent, as per the rate prescribed in the Schedule-I framed under Rule 20 of the West Bengal Minor Minerals Rules, 2002 (hereinafter referred to as Rules of 2002). Those leases were granted for a fixed period with a renewal clause, giving option to the lessees to apply for renewal within a specified time before expiry of the leases. The petitioners applied for renewal of their leases in terms of the renewal clause contained in their respective lease deeds. Their applications for renewal were rejected by the concerned authority, by referring to the amended provision of the West Bengal Minor Minerals Rules, 2002 which was introduced in the year 2011, either during the continuance of the leases of the petitioners or pending consideration of the petitioners’ application for renewal.
The amendments which were made in the Rules of 2002 in 2011 become effective from 5th December, 2011. The said amendment introduced a total change in the procedure for grant of mining lease in respect of river-bed materials.
Under the West Bengal Minor Minerals Rules, 2002, prior to its amendment as it stood, mining lease could have been granted by the State Government in favour of the lessee on the basis of the application of an individual applicant. The procedure for grant of such mining lease and/or refusal thereof was prescribed under Rule 5-8 of the said Rules. Who will get priority amongst the applicants in case more than one applicant applies for such lease in respect of a common plot of land was mentioned in Rule 9 thereof. How much area can be given on lease for mining operation to the individual applicant was mentioned in Rule 10 thereof. Period for which such mining lease could have been granted was mentioned in Rule 11 of the said Rule. Renewal of mining lease was prescribed under Rule 12. How much deposit is to be made by the applicants towards preliminary expenses and security deposit, was dealt with in Rule 13 and 14 respectively. The period within which lease is to be executed was mentioned in Rule 15 of the said Rule. Lapsing of lease was mentioned in Rule 16 thereof. Those were the relevant provisions of the Rules of 2002, which governed the field of grant of mining lease and/or renewal thereof when the mining leases were granted by the Government in favour of the petitioners. The amendment which was introduced in 2011 brought about a thorough change in the procedure for grant of mining lease in respect of the river-bed materials (excluding in-situ hard rock), kankar, morrum and brick-earth on land vested in Government. By the said amendment, Rules 16A and 16B were introduced.
For understanding the changes which were introduced by amendment in 2011, I feel that the provisions of both the unamended Rule and the amended Rule should be mentioned herein. Accordingly, Rules of 2002 as it stood prior to its amendment and the Rules of 2002 as it now stands after its amendment, are set out here under.
Rules as it stood prior to its amendment
5. Application for mining lease.-
(1) A mining lease shall be granted by the State Government or by an Officer authorized by the State Government in this behalf.
(2) An application for mining lease shall be made in 6(six) copies in Form A accompanied by a challan showing non-refundable deposit of Rs.500 (Rupees five hundred) only as an application fee to the State Government or to the Officer authorized in this behalf through the Chief Mining Off
