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IN THE HIGH COURT OF CALCUTTA
Dipankar Datta, J.
Tuhin Mukherjee – Petitioner
Versus
State of West Bengal – Respondent
W.P. No. 18412 of 2013
Decided On : 27-09-2013
For the Petitioner:Mr. Prabhat Kumar Chattopadhyay, Advocate.
For the State :Mr. Sushovan Sengupta, Advocate.
An application for quarry permit cannot be rejected solely on the ground that an application for mining lease is pending.
Headnote:
QUARRY PERMIT - APPLICATION - REJECTION - WEST BENGAL MINOR MINERAL RULES, 2002 - RULES 4A, 28(3) AND 28(5) - An application for quarry permit cannot be rejected solely on the ground that an application for mining lease is pending. Rule 4A of the West Bengal Minor Mineral Rules, 2002, which requires inviting applications by public notice, cannot be invoked to defeat the claim of the petitioner if it has not been laid before the State Legislature as required under Rule 28(3) of the Mines and Minerals (Development and Regulation) Act, 1957.
Fact of the Case:
The petitioner had applied for a long-term mining lease on 12th March, 2007 of a major mineral viz. Pyrbphillite. During the pendency of such writ petition, the petitioner had applied for quarry permit on 18th March, 2008. The said application was disposed of by a learned Judge of this Court on 2nd September, 2008 with a direction upon the District Land and Land Reforms Officer, Bankura to consider and dispose of the application for grant of quarry permit filed by the petitioner on 18th March, 2008 within a period of three weeks from date of communication of the order to him. The application for quarry permit was allowed and from time to time the concerned authority has issued quarry permit in favour of the petitioner. However, an application for quarry permit dated 19th February, 2013 was filed by the petitioner. The authority competent to grant quarry permit is obliged to dispose of an application for quarry permit within fifteen days of its receipt, no step was taken in this behalf and more than fifteen days lapsed. The petitioner approached the Court once again by filing W.P. No. 5911 (W) of 2013 for its consideration. By an order dated 25th March, 2013, tire writ petition was disposed of granting liberty to the petitioner to apply for quarry permit afresh. Availing the liberty granted by the Court, the petitioner once again made an application for quarry permit on 6th May, 2013. The District Land and Land Reforms Officer, Bankura took up the application for quarry permit of the petitioner for consideration and rejected it by the order dated 21st May, 2013.
Finding of the Court:
The order dated 21st May, 2013 is set aside. The District Land and Land Reforms Officer Bankura is directed to reconsider the application for quarry permit filed by the petitioner on 6th May, 2013 strictly in accordance with law and upon granting an opportunity of hearing as early as possible, but not later than a fortnight from date of receipt of a copy of this order.
Issues: Whether the application for quarry permit can be rejected solely on the ground that an application for mining lease is pending?
Ratio Decidendi: The ratio of the Supreme Court decision in Afjal Imam (supra) is not applicable in the present case because the argument of Mr. Sengupta is hit by res judicata and/or analogous principles. Secondly, it has not been proved to the satisfaction of the Court that Rule 4A, which was inserted in the Rules by notification dated 9th January, 2006 with effect from 19" January, 2006, has been laid before the State Legislature in terms of the provisions contained in Rule 28(3) of the Mines and Minerals (Development and Regulation) Act, 1957.
Final Decision: The writ petition is allowed. The order impugned is set aside.
Dipankar Datta, J.
1. The petitioner had applied for a long-term mining lease on 12th March, 2007 of a major mineral viz. Pyrbphillite. It is not in dispute that such application was not disposed of by the competent authority resulting in filing of W.P. No. 4753 (W) of 2008. During the pendency of such writ petition, the petitioner had applied for quarry permit on 18th March, 2008. Such application was not considered and an interim application (CAN 2992 of 2008) was filed in connection with W.P. No. 4753 (W) of 2008. The said application was disposed of by a learned Judge of this Court on 2nd September, 2008 with a direction upon the District Land and Land Reforms Officer, Bankura to consider and dispose of the application for grant of quarry permit filed by the petitioner on 18th March, 2008 within a period of three weeks from date of communication of the order to him.
2. It is not in dispute that the application for quarry permit was allowed and from time to time the concerned authority has issued quarry permit in favour of the petitioner.
3. However, an application for quarry permit dated 19th February, 2013 was filed by the petitioner. Although the authority competent to grant quarry permit is obliged to dispose of an application for quarry permit within fifteen days of its receipt, no step was taken in this behalf and more than fifteen days lapsed. The petitioner approached the Court once again by filing W.P. No. 5911 (W) of 2013 for its consideration. By an order dated 25th March, 2013, tire writ petition was disposed of granting liberty to the petitioner to apply for quarry permit afresh. The ground for not entertaining the writ petition was that with the expiry of fifteen days from the date of filing of the application for quarry permit, it stood refused by operation of law [clause 8 of Schedule IV appended to the West Bengal Minor Mineral Rules, 2002 (hereafter the Rules)].
4. Availing the liberty granted by the Court, the petitioner once again made an application for quarry permit on 6th May, 2013, Immediately thereafter another round of litigation commenced at the instance of the petitioner before the writ Court giving rise to AST 97 of 2013. The order of the Court dated 10th May, 2013 disposing of the writ petition is quoted below for facility of reference:
"The District Land and Land Reforms Officer, Bankura, it is evident, has been abusing his statutory powers. The petitioner's previous application or quarry permit was not decided within the statutory period. He moved this Court, He did not get relief. He has submitted a fresh application for quarry permit.
It is evident that this time also the District Land and Land Reforms Officer has been following the practice of inaction. His inaction will activate legal fiction after expiration of fifteen days from the date of receipt of the application. Such deliberate inaction cannot be countenanced. Mr. Sanyal appearing for the State has submitted that the officer shall give the decision immediately.
For these reasons, I dispose of the WP directing the District Land and Land Reforms Officer to decide the petitioner's application for quarry permit within a fortnight from May 6, 2013 when the application was filed. No costs."
5. Acting in purported compliance with the order dated 30th May, 2013,. the District Land and Land Reforms Officer, Bankura took up the application for quarry permit of the petitioner for consideration and rejected it by the order dated 21st May, 2013. The said order reads as follows:-
"Today is the schedule day for hearing. Seen Hazira filed by the petitioner, Tuhim Mukherjee. 'Let the 'Hazira' be kept with the case records. The case is taken up for hearing today. O.C. Tvl. M. attached to the D.L. & L.R.O's Office, Bankura is also present. Heard them. The fact of the case is that the petitioner filed an application before the M-O-C Purulia on 12.03.2007 for Long Term Mining Lease of 'Pyrophillite' over plot No. 1179 of Mouza Dhatla, J.L. No. 44 with
