The legislative competence of the State in relation to land and the validity of prosecution under Section 4D of the West Bengal Land Reforms Act were the central legal points established in the judgment.

Asha Arora, J.

1. By the instant application under section 482 of the Code of Criminal Procedure petitioner sought for quashing the charge sheet no. 110 of 2013 dated 31/5/2013 under section 4D of the West Bengal Land Reforms Act 1955 arising out of Balagarh P.S. Case no. 83 of 2013 dated 4/4/2013 being G. R. Case no. 493 of 2013 pending before the learned Judicial Magistrate 5th Court Hooghly.

2. It is the contention of the petitioner that he has been carrying on the business of brick manufacturing at Mouza Guptiparachar under the name and style "M/S Poddar Brickfield" having a valid licence and he has been depositing the price of extraction of brick earth in the office of the Block Land and Land Reforms officer Balagarh. On the basis of a written complaint of the B.L. & LRO Balagarh, alleging that the petitioner had established a brick field named M/S Poddar Brickfield at Guptiparachar unauthorizedly in violation of Section 4C of the West Bengal Land Reforms Act, the O/C of Balagarh P.S. initiated the above mentioned case against him which culminated in the submission of the charge-sheet under Section 4D of the Act.

3. Placing reliance upon the decision of this Court in Bengal Brickfields Owners Association and Others versus State of West Bengal and others reported in, (2006) 3 CalHN 28, learned counsel for the petitioner argued that the complaint lodged by the B.L & LRO, the FIR registered thereon and the charge-sheet under Section 4D of the West Bengal Land Reforms Act violates Articles 245 and 246 of the Constitution read with Section 2 of the Mines and Minerals (Development and Regulation) Act, 1957.

4. It is canvassed that in view of Entry 54 List I of the Seventh Schedule of the Constitution, the Central Legislative Authority is the only authority in respect of mines and minerals and the State has no legislative competence over the same. It is contended that prosecution of the petitioner under Section 4D of the Act is not maintainable as the State Legislature has no independent law making power and as such Section 4C of the West Bengal Land Reforms Act could not operate as a valid provision in view of Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957. In this context reference has been made to the case of Chhotelal Choudhury and Others versus State of West Bengal reported in, (2008) 3 CalHN 1060.

5. Learned counsel for the State countered that the question of repugnancy between the Mines and Minerals (Development and Regulation) Act, 1957 and the West Bengal Land Reforms Act, 1955 does not arise since the object of the two Acts is different. It is further argued that the subject matter of the two Acts is also not the same. As "land" falls within the State List, there cannot be any repugnancy with the Mines and Minerals (Development and Regulation) Act since mines and minerals are the subject matter of Union List.

6. In Bengal Brickfields Case (supra) this Court set aside a notification dated 30/10/86 issued by the Government of West Bengal relating to West Bengal Minor Minerals Rules 1973 whereby the State authority was given power to issue quarry permit. It was held in the said case that the notification was issued in violation of the Mines and Minerals (Regulation and Development) Act 1957 and in violation of the prohibitions made in Entry 54 List I of the Seventh Schedule to the Constitution and as mines and minerals are the subject matter of Union List, the Central Government is the only authority to issue quarry permit for excavating mines and minerals. The aforesaid case is clearly distinguishable since the question of repugnancy which is in issue in the case at hand was not in issue in the case relied upon nor was it dealt with. In Chhotelal's Case (supra) it was held by this Court that mines and minerals being the subject of Union list, prosecution in terms of section 4D of West Bengal Land Reforms Act 1955 is not tenable. In the case at hand the allegation against the petitioner i