Jagannath Hansda vs The State Of West Bengal & Ors
2021 Latest Caselaw 6552 Cal

                        IN THE HIGH COURT AT CALCUTTA
                       CONSTITUTIONAL WRIT JURISDICTION
                                 APELLATE SIDE

     The Hon'ble JUSTICE SUVRA GHOSH

                                W.P.A. 6296 of 2020
                                        With
                                    CAN 1/2020

                                 Jagannath Hansda
                                         Vs.
                           The State of West Bengal & Ors.


     For the Petitioner:                 Mr. Milan Bhattacharya
                                         Mrs. Sulagna Bhattacharya


     For the State:                      Mr. Sirsanya Bandyopadhyay
                                         Mr. Arka Kumar Nag


     Hearing concluded on: 10.12.2021

     Date: 22.12.2021



SUVRA GHOSH, J. :-

1.     Under challenge in the present writ petition is an order passed by the

       Additional District Magistrate and District Land and Land Reforms

       Officer, Birbhum, passed on 12th February 2021, rejecting the petitioner's

       application for grant of short term mining licence (hereinafter referred to

       as STML). The contention of the petitioner, in a nutshell, is that the

       petitioner who belongs to the Schedule Tribe, was granted long term

       mining lease (here inafter referred to as LTML) in respect of plot no. 554,

       Mouza Dhanyagram II in 2011 which expired in 2014. Thereafter, sand

       quarry permit was granted to the petitioner for a period of 40 days from
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     10th February 2014 to 21st March 2014 and royalty was accordingly paid.

     Further permit was granted in favour of the petitioner from 17.06.2014 to

     16.07.2014. It was reported by the Revenue Inspector that there was

     plenty of sand in plot no. 554 and good road connectivity to the proposed

     site.


2.   The West Bengal Minor Minerals Concession Rules 2016 came into force

     from 29th July 2016 and the petitioner applied before the authority for

     short term mining licence on 10th May 2018 subject to payment of the

     usual royalty of Rs. 3000/- and the said amount was deposited by the

     petitioner by challan. In rejecting the application of the petitioner, the

     petitioner was advised to take part in the e-auction with regard to long

     term mining lease in terms of the Rules of 2016. The authority, that is,

     the ADM and DL & LRO, vide Memo dated 24th May 2018, placed reliance

     on a judgment dated 27th February 2012 of the Hon'ble Supreme Court in

     the matter of Deepak Kumar etc. versus the State of Haryana and others

     and opined that lease of minor minerals, which includes extraction of

     sand, as well as renewal of such lease qua area of 5 hectares and below

     could be granted only after getting environmental clearance from the

     Ministry of Environment and Forests. Such lease was recommended to be

     granted for a period of minimum 5 years. The petitioner submits that his

     plot was not included in the e-auction floated by the authority and all the

     leases pursuant to e-auction were granted in exclusion of plot no. 554.


3.   The petitioner filed a writ petition being WP no. 18410 (W) of 2018 against

     the action of the State respondents, particularly rejection of his claim for

STML and by an order dated 19th December 2018 a Co-ordinate Bench of

this Court disposed of the writ petition with the following direction: -

"Accordingly, the respondent No. 4/the ADM and DL & LRO is directed to

revisit the recommendation of the RI/the respondent No. 7 dated 27th

January, 2014 on an in situ basis and take a just decision which would

be then communicated to the petitioner.

Needless to iterate the petitioner and any other person and persons, who

are required to be heard, shall be so heard and both officers on the

ground as well as records on the ground situation shall be considered by

the Respondent No. 4/the ADM and DL & LRO.

Needless to further iterate that in the event a positive decision is taken in

favour of the petitioner, the petitioner shall comply with the formalities

requiring compliance.

Needless to also reiterate that the respondent No. 4/the ADM and DL &

LRO shall be entitled to take a decision purely on merits.

In view of the foregoing discussion and directions, the order impugned

dated 24th May, 2018 stands permanently stayed."

4. No appeal was preferred by the authorities against the said order. In

terms of the said order of the Co-ordinate Bench, the petitioner's prayer

for grant of STML was reconsidered and the petitioner's prayer was

rejected by the order impugned in view of rule 43 (1) of the West Bengal

Minor Minerals Concession Rules, 2016.

5. The petitioner has taken the Court to Rule 43(1) of the 2016 Rules which

says that short term mining licence can be issued on pre-payment of

royalty "under exceptional circumstances arising due to (a) judicial

intervention, (b) non-availability of continuous stretch of the minimum

area specified in these rules due to hydro-geological condition of the

rivers, (c) unsuitability of any stretch for sustaining the period specified in

these rules owing to possible change of river flow pattern, and (d) any

other reason to be stated in writing." According to the petitioner, he is

entitled to grant of STML for a period not exceeding 90 days in terms of

Rule 48. The impugned order violates the direction of this Court in the

earlier writ petition and therefore judicial intervention was not heeded to

by the authority in passing the impugned order. Though the petitioner

was advised to participate in the e-auction for LTML, he does not have the

financial capacity to participate in the competitive bidding.

6. The petitioner has prayed for setting aside the impugned order dated 12th

February 2020 and allowing the petitioner to quarry sand in the plot in

question for a period of 90 days by virtue of STML to be granted by the

Authority in his favour.

7. Learned counsel for the petitioner has placed reliance on authorities in

The Divisional Personnel Officer, Southern Railway and Another reported

in (1976) 3 Supreme Court Cases 190 and The Barium Chemicals Ltd

and Another versus SH. A.J. Rana and Others reported in (1972) 1

Supreme Court Cases 240 and has submitted that the prayer of the

petitioner ought to have been duly considered by the authority before

dismissing the same.

8. Learned counsel has also placed reliance on the authority in Whirlpool

Corporation versus Registrar of Trade Marks, Mumbai and Others

reported in (1998) 8 Supreme Court Cases 1 for the proposition that the

High Court, under article 226 of the Constitution, can deal with matters

even where alternative efficacious remedy is available when the writ

petition has been filed for enforcement of any fundamental right, where

there has been a violation of the principle of natural justice or where the

order or proceedings are wholly without jurisdiction or the vires of an Act

is challenged.

9. In opposing the prayer of the petitioner, the respondents submit that the

events which occurred after disposal of the earlier writ petition and after

the 2016 Rules came into force are only relevant for the purpose of the

present writ petition. Referring to the order of the Co-ordinate Bench,

Learned Counsel for the respondents submits that the authority was

directed to take a decision purely on merits and the Court chose not to

intervene with regard to merits. Rule 43 of the 2016 Rules clearly lays

down the conditions for grant of STML. In the petition filed by the

petitioner before the ADM and DL & LRO, the conditions laid down in

Rule 43 were neither mentioned, nor substantiated. The authority has

rightly rejected the petition of the petitioner by a reasoned order and after

taking into consideration the provisions laid down under Rule 43 (1) of

the 2016 Rules. It is submitted on behalf of the respondents that mere

deposit of money does not automatically entitle the petitioner to STML in

his favour dehors the Rules. Due consideration was given to the

petitioner's case in the order impugned and the petition being devoid of

any merit, is liable to be dismissed.

10. I have heard learned counsels for the parties.

11. The facts which are not in dispute are as follows:-

The petitioner was granted long term mining lease

in respect of Plot No. 554, Mouza - Dhanyagram II

in 2011 which expired in 2014. Thereafter sand

quarry permit were granted to the petitioner on 10th

February, 2014 which continued till 21st March,

2014. Further permit was granted to the petitioner

from 17th June, 2014 to 16th July, 2014.

12. The petitioner has referred to a no objection certificate granted by the

executive engineer, Mayurakshi Headquarters Divisional, Seuri, Birbhum

(annexure P to the writ petition) in his favour on 8th July, 2011. The said

no objection certificate demonstrates that it was granted for long term

mining lease (LTML) pursuant to which the LTML was granted to the

petitioner in 2011. Similarly, the sand quarry permit was granted in his

favour on 10th February, 2014 pursuant to the memo issued by the

Revenue Inspector on 22nd January, 2014 (annexure P-7 to the writ

petition). Therefore these documents dated 8th July, 2011 and 22nd

January, 2014 cannot come to the aid of the petitioner with regard to his

application for STML filed before the authority on 10th May, 2018.

13. The West Bengal Minor Minerals Concession Rules, 2016 came into force

on and from 29th July, 2016. The Rules speak of initiation of e-auction for

grant of LTML. The petitioner's prayer is for grant of STML of riverbed

occurrences which is dealt with in Rule 43(1). Rule 43(1) is set out:-

"43. Grant of Short-Term Mining Licence of

riverbed occurrences.- (1) The District Authority

or any authorised officer in case of riverbed

occurrences, may grant short term mining licence

as per guidelines to be issued by Commerce and

Industries Department from time to time to extract

or remove from any specified land within the limits

of his jurisdiction on pre-payment royalty at the

rate as specified from time to time under

exceptional circumstances arising due to (a)

judicial intervention, (b) non availability of

continuous stretch of the minimum area specified

in these rules due to hydro-geological condition of

the rivers, (c) unsuitability of any stretch for

sustaining the period specified in these rules owing

to possible change of river flow pattern, and (d)

any other reason to be stated in writing."

14. The petitioner's prayer was rejected by the authority on 24th May, 2018

following which the petitioner filed a writ petition before this court. By an

order dated 19th December, 2018 in W.P. No. 18410 (W) of 2018, a co-

ordinate bench of this court directed the fourth respondent to revisit the

recommendation of the Revenue Inspector dated 27th January, 2014 and

take a decision on the prayer of the petitioner purely on merits after giving

an opportunity of hearing to the petitioner and any other necessary

person. In compliance with the said direction the petitioner's prayer was

reconsidered by the fourth respondent who rejected the prayer of the

petitioner by the impugned order dated 12th February, 2020.

15. The moot question for consideration is the prayer of the petitioner and

rejection of the same vis-a-vis the 2016 Rules. Rule 43(1) clearly

demonstrates that STML can be granted under exceptional circumstances

arising due to (a) judicial intervention, (b) non availability of continuous

stretch of the minimum area specified in these rules due to hydro-

geological condition of the rivers; (c) unsuitability of any stretch for

sustaining the period specified in these rules owing to possible change of

river flow pattern, and (d) any other reason to be stated in writing. The

petitioner's prayer for grant of STML was made on 10th May, 2018, i.e.,

after the 2016 Rules came into force. In other words, the petitioner's

prayer was governed by the said Rules. The petitioner deposited an

amount of Rs. 3,000/- as royalty for issuance of STML but his prayer for

grant of such licence does not demonstrate any exceptional circumstance

for grant of such licence as required under section 43(1) of the Rules. In

the earlier writ petition, the co-ordinate bench directed the fourth

respondent to reconsider the petitioner's prayer on merits after giving an

opportunity of hearing to the petitioner and other necessary persons. In

compliance with the said order the fourth respondent reconsidered the

petitioner's prayer and the petitioner was heard at length. It was held by

the authority that as the petitioner's prayer was submitted only in 2018

and no representation of the petitioner was found to be pending when the

2016 Rules came into force, the provision of Rule 62(2) is not attracted.

For the purpose of better understanding, Rules 62(2) is set out:

"62. Repeal - (2) Notwithstanding such

repeal, anything done, any action taken, or any

prosecution started under the said rules, shall

be deemed to have been validly done or taken

or started, as the case may be, under the

corresponding provisions of these rules."

16. The authority dealt with the statement of facts submitted by the petitioner

at the time of hearing and granted liberty to the petitioner to submit an

application for STML in form- E under Rule 44 of the said Rules in

following the norms as provided under Rule 43. Therefore by the

impugned order the petitioner was granted another opportunity by the

authority to submit an application for STML adhering to the relevant

rules.

17. The order impugned suggests that the statement of facts submitted by the

petitioner was considered on merits in rejecting the prayer. Therefore the

authorities in the Divisional Personnel Officer, Southern Railway and

another and the Barium Chemicals Ltd. and another (supra) are of no

assistance to the petitioner herein.

18. The petitioner was invited to participate in the e-auction for LTML but

submits that he does not have the financial capacity for the same and is

only interested in STML. But I am afraid mere inability to participate in e-

auction or deposit of royalty for STML does not ipso facto entitle the

petitioner to grant of STML dehors the rules.

19. Last but not the least, Rule 51 provides for an appeal against an order

made by the District Authority or any officer duly authorised by the

District Authority in exercise of the powers conferred upon him by these

rules. No such appeal has been preferred by the petitioner against the

order impugned. Placing reliance upon the judgement of the Hon'ble

Supreme Court in Whirlpool Corporation versus Registrar of Trade Marks,

Mumbai and others reported in (1998) 8 Supreme Court Cases 1, learned

counsel for the petitioner has submitted that this court has discretion to

entertain a writ petition under article 226 of the Constitution of India

despite an effective and efficacious alternative remedy being available in

case of three contingencies where the writ petition has been filed for the

enforcement of any fundamental right or where there has been a violation

of principle of natural justice or where the order or proceedings are wholly

without jurisdiction or the vires of an Act is challenged.

20. The ratio the said judgment can be distinguished from the fact situation

of the present case. None of the four conditions demonstrated in the

judgment are attracted herein and as such, it can very well be held that

the petitioner has failed to avail of the alternative efficacious remedy that

was available under Rule 51.

21. It is trite law that in its extraordinary jurisdiction under article 226 of the

Constitution of India, the court can only deal with any lapse in the

decision making process and not with the decision itself. In the case in

hand, the order impugned suggests due consideration of the facts placed

by the petitioner as well as the law on the point and the order does not

call for intervention by this court.

22. Upon consideration of the submissions made on behalf of the parties and

material on record, this court is of the view that the order impugned need

not be interfered with and as such, the writ petition is liable to be

dismissed.

23. However, the petitioner is at liberty to make an application for STML in

form-E under Rule 44 of the Rules in following the norms as provided in

Rule 43 as observed in the order impugned dated 12th February, 2020. In

the event such application is filed by the petitioner, the fourth respondent

shall consider the same after giving reasonable opportunity of hearing to

the petitioner and dispose of the same within 8 weeks from the date of

submission of such application, in accordance with law.

24. Accordingly, W.P.A. 6296 of 2020 is dismissed. Connected application being C.A.N. 1 of 2020 is disposed of.

25. There shall be no order as to costs.

26. Urgent certified website copies of this judgment, if applied for, be supplied

to the parties expeditiously on compliance with the usual formalities.

(Suvra Ghosh, J)