Calcutta High Court (Appellete Side)
Radharaman Constructions And ... vs The State Of West Bengal & Ors on 4 December, 2023
Author: Suvra Ghosh
Bench: Suvra Ghosh
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APELLATE SIDE
The Hon'ble JUSTICE SUVRA GHOSH
W.P.A. 9583 of 2023
Radharaman Constructions and Marketing Private Limited & Anr.
Vs.
The State of West Bengal & Ors.
For the Petitioners: Mr. Asoke Kr. Banerjee, Adv.,
Mr. Arijit Dey, Adv.
For the State: Mr. Santanu Kr. Mitra, Adv.
Mr. Amartya Pal, Adv.
For the WBMDTCL: Mr. Sanjay Saha, Adv,
Mr. Subhasish Bhattacharya
Hearing Concluded on: 16.11.2023
Date: 04.12.2023
SUVRA GHOSH, J. :-
1. The order passed by the Assistant Secretary, Department of Industry,
Commerce and Enterprises on 10th April, 2023 is assailed in the writ
petition.
2. The first petitioner is a private limited company engaged in the business of
sand mining and the second petitioner is the sole director of the company.
Being the highest bidder in the e-auction for grant of mining lease of sand
mineral in mouza- Mamudpur, J.L. No. 61, Police Station- Patrasayar (Sillya
Ghat), District- Bankura, a letter of intent was issued in favour of the
2
petitioner on 9th March, 2017 and upon compliance with requisite
formalities, mining lease was executed in favour of the petitioner on 17th
November, 2017. The petitioner was unable to carry on mining operation in
view of a notification issued by the District Magistrate and Collector, Purba
Bardhaman on 25th March, 2021 restricting movement of all kinds of heavy
loaded goods vehicles through Galsi to Gohogram road via Adrahati which is
the only route of the petitioner for communication to the leasehold area. The
restriction was withdrawn by a notification issued on 22nd February, 2022.
Since the petitioner was unable to carry on mining activities from 25th
March, 2021 to 22nd February, 2022 due to restrictions imposed by the
authority, he incurred huge financial loss.
3. Learned counsel for the petitioner has referred to clause 5 of part-IX of the
deed of lease executed in favour of the petitioner which demonstrates that
"failure on the part of the Lessee/Lessees to fulfill any of the terms and
conditions of this lease shall not give the State Government any claim
against the Lessee/Lessees or be deemed a breach of this lease, in so far as
such failure is considered by the said Government to arise from force
majeure, and if through force majeure the fulfillment by the Lessee/Lessees
of any of the terms and conditions of this lease be delayed, the period of
such delay shall be added to the period fixed by this lease. In this clause the
expression Force Majeure means act of God, war, insurrection, riot, civil
commotion, strike, earthquake, tide, storm, tidal wave, flood, lightning,
explosion, fire, and other happenings, which the Lessee/Lessees could not
reasonably prevent or control". Learned counsel submits that the petitioner
3
was unable to carry on mining operation for the period of restriction due to
no fault on his part since he was unable to transport the mining reserve
through the only route in view of the restriction. The petitioner along with
others apprised the authority of their plight by a letter issued on 7th
December, 2021.
4. The District Magistrate, Bankura, by a letter issued on 18th November, 2022
to the Assistant Secretary, Government of West Bengal, Department of
Industry, Commerce and Enterprises, Mines Branch and the Chairman,
West Bengal Mineral Development and Trading Corporation Limited, stated
that sand mining activities of the petitioner were genuinely affected from
25th March, 2021 to 22nd February, 2022 due to the restriction notification
and this inability to carry on mining operation was beyond the control of the
lessee/petitioner. The authority was requested to consider the matter
sympathetically. The State in fact admitted the petitioner's claim and
requested a favourable consideration by the concerned authority.
5. Learned counsel has taken this Court to annexure R-3 to the report in the
form of affidavit submitted by the 4th respondent which is a note sheet of the
motor vehicles inspector (non-technical) dated 16th June, 2023 which says
that there is no connecting route through which the sand loaded vehicles
can ply to SH-8 (the connecting road between Sonamukhi & Bankura More,
Burdwan) within Bankura district.
6. Learned counsel points out that pursuant to an order passed on 19th
September, 2022 in W.P.A. 21186 of 2022 directing the concerned authority
to dispose of the representation submitted by the petitioners within six
weeks from the date of communication of the order in terms of clause 5 of
part-IX of the deed of lease as well as notifications issued on 25th March,
2021 and 22nd February, 2022 the District Magistrate, Bankura, by an order
passed on 9th November, 2022, rejected the representation of the petitioner
and directed issuance of a letter to the Department of Industry, Commerce
and Enterprise, Government of West Bengal/West Bengal Mineral
Development and Trading Corporation Limited requesting consideration of
the matter sympathetically as inability to carry out the mining operation
was beyond the control of the lessee. The matter was placed before the
Assistant Secretary to the Government of West Bengal who was directed to
consider and dispose of the same within two weeks from the date of
communication of the order passed by this Court on 4th January, 2023 in
W.P.A. 27172 of 2022.
7. In compliance with the said order, the Assistant Secretary, Department of
Industry Commerce and Enterprises granted an opportunity of hearing to
the petitioner and by the order impugned dated 10th April, 2023 turned
down the representation submitted by the petitioner on the following
grounds:- There was no restriction on excavation of sand from the sand
mines from 25th March, 2021 to 22nd February, 2022 and the
petitioner/lessee got almost nine months even after withdrawal of the
prohibitory order. No prayer was made before the District Magistrate,
Bankura for permitting transport of sand through a different route. The
petitioner challenges the said order in the writ petition.
8. Vehemently opposing the Google map placed by the respondents indicating
an alternative route for transportation of the mineral, learned counsel
submits that the said map has no evidentiary value as the authority himself
has admitted that mining operation of the petitioner was hampered due to
restriction imposed by the District Magistrate, Bankura and also, no
alternative route was indicated in the said notification. Such inability of the
petitioners comprises force majeure and the petitioners are entitled to
extension of the period of lease under the relevant clause of the deed.
Learned counsel has placed reliance on the authorities in Comptroller and
Auditor-General of India, Gian Prakash, New Delhi and Another v/s. K.S.
Jagannathan and Another reported in (1986) 2 Supreme Court Cases 679
and Mohinder Singh Gill and Another v/s. The Chief Election Commissioner,
New Delhi and Others reported in (1978) 1 Supreme Court Cases 405 in
support of his contention.
9. Placing reliance on the Google map annexed to the report in the form of
affidavit submitted by the second respondent, learned counsel appearing for
the 7th respondent submits that there was an alternative route through
Khandaghosh, which was not availed of by the petitioner. Learned counsel
has referred to section 3(d) of the Mines and Minerals (Development and
Regulations) Act, 1957 which defines "mining operations" as any operation
undertaken for the purpose of winning any mineral. Learned counsel, in his
usual fairness, has admitted that the West Bengal Sand Mining Policy, 2021
is not applicable to the present case. According to learned counsel, the
petitioner failed to approach the authority for permission to stack the
minerals excavated by him when the movement restriction was imposed, in
terms of part-II (6) of Form D of the West Bengal Minor Minerals Concession
Rules, 2016. The authority has passed a reasoned order upon consideration
of the submission made on behalf of the petitioner.
10. Learned counsel for the State respondents has adopted the submission
made on behalf of the 7th respondent.
11. Lease was granted in favour of the petitioner vide deed of lease dated 17th
November, 2017 for a period of five years. The notification issued on 25th
March, 2021 imposed restriction on movement of all kinds of heavy loaded
goods vehicles through Galsi to Gohogram road via Adrahati. The restriction
was withdrawn by a notification issued on 22nd February, 2022. It is not in
dispute that the petitioner was unable to carry on mining operation during
the said period, i.e., from 25th March, 2021 to 22nd February, 2022. Such
fact has been admitted/ acknowledged by the District Magistrate, Bankura
in his letter issued on 18th November, 2022 in considering the
representation submitted by the petitioner. The District Magistrate held that
sand mining activities of the petitioner were genuinely affected from 25th
March, 2021 to 22nd February, 2022 due to notification issued by the
District Magistrate, Purba Bardhaman and inability to carry on mining
operation was beyond the control of the petitioner/lessee. The matter was
referred to the Department of Industry, Commerce and Enterprise, Mines
Branch and the Chairman, West Bengal Mineral Development and Trading
Corporation Limited for consideration and necessary instructions. A note
sheet of the motor vehicles inspector (non-technical) dated 16th June, 2023
also demonstrates that there is no connecting route through which the sand
loaded vehicles can ply to SH-8 (the connecting route between Sonamukhi
and Bankura More, Burdwan) within Bankura district. In other words, the
note sheet confirms the fact that the road which was closed down in terms
of the notification dated 25th March, 2021 was/is the only route available to
the petitioner for transportation of the mining reserve.
12. The google map relied upon by the respondents does not clearly indicate any
alternative route to the leasehold plot and in view of the admission made by
the authority as recorded earlier, the map cannot be of any assistance to the
respondents in this matter.
13. At this juncture, it is pertinent to refer to clause 5 of part-IX of the deed of
lease which enumerates that if through force majeure, the fulfilment by the
lessee of any of the terms and conditions of the lease be delayed, the period
of such delay shall be added to the period fixed by the lease. The expression
"force majeure" includes situation which the lessee cannot reasonably
prevent or control.
14. In the case in hand, it is not in dispute that the situation which arose due to
the notification dated 25th March, 2021 was beyond prevention or control of
the petitioner, as also admitted by the District Magistrate, Bankura. This
issue was not dealt with at all by the Assistant Secretary in the order
impugned. In view of the fact that the petitioner was unable to carry on
mining operation from 25th March, 2021 to 22nd February, 2022 due to
reasons beyond his control and for no fault on his part, he is entitled to the
benefit accorded under clause 5 of part IX of the deed of lease. The situation
of the petitioner is covered under the definition of "force majeure' and the
petitioner is entitled to the additional period lost due to imposition of the
restriction.
15. Learned counsel for the respondents has taken this Court to clause 3 (d) of
the Act of 1957 which defines mining operation as any operation undertaken
for the purpose of winning any mineral. At the same time, clause 1 of part -
II of the lease deed is required to be looked into. The clause reads as follows:
- "Liberty and power at all times during the term hereby demised to enter
upon the said lands and to search for mine, bore, dig, drill for win, work
dress, process, convert, carry away and dispose of the said mineral."
Therefore the petitioner/lessee is entitled to carry away and dispose of the
mineral besides winning the same. Such liberty was curtailed in view of the
notification issued by the authority.
16. Learned counsel for the 7th respondent has submitted that the petitioner did
not seek permission for stacking of minerals during the period of restriction
in terms of part II (6) of form D of the 2016 Rules. It appears that letters
were sent to the authority requesting withdrawal of the restriction in order
to enable the petitioner to continue mining operation. Unfortunately the said
letters were not heeded to. So the contention of the petitioner cannot be
brushed aside merely on the ground that the petitioner failed to use the
liberty granted to him in terms of clause 6 of part II of form-D of the 2016
Rules.
17. The order impugned turns down the request of the petitioner on the
following grounds:-
i. There was no restriction on excavation of sand from the sand mines
from 25th March, 2021 to 22nd February, 2022;
ii. The petitioner got almost nine months even after withdrawal of the
prohibitory order on movement of heavy loaded vehicles; and
iii. He did not make any prayer to the District Magistrate, Bankura to
allow him to transport the sand through a different route for the
period under restriction.
15. It is a fact that there was no restriction on excavation of sand during the
period in question. But this Court fails to understand how the petitioner
could have continued with mining operation during the said period when he
was unable to transport the material. The said fact has in fact been
admitted by the authority which recorded that sand mining activities of the
petitioner were genuinely affected due to the restriction notification since the
only connecting route for transportation of the mineral reserve was closed
down due to the notification.
16. Admittedly residual period of the lease remained after withdrawal of the
restriction. But that does not disentitle the petitioner from extension of the
period of lease lost due to imposition of the restriction, in terms of clause 5
of part IX of the deed itself. Also, since several requests were made before
the authority for allowing the petitioner to transport the sand, it cannot be
said that the petitioner sat silent over the issue and chose to agitate the
same at a belated stage. The grounds assigned by the Assistant Secretary in
rejecting the prayer of the petitioner for extension of the mining lease are not
based on proper reasoning and are contrary to the terms of the lease deed.
17. The 4th respondent has in fact admitted the contention of the petitioner in
his report in the form of affidavit submitted on 19th June, 2023 and has only
expressed inability of the authority to extend or renew the lease in view of
The West Bengal Sand Mining Policy, 2021.
18. Even at the cost of reiteration, it is necessary to record that the provision of
the 2021 policy is admittedly not applicable to the present case, and as
such, there is no restraint on the authority in extending the lease period in
view of the said policy.
19. It has been held by the Hon'ble Supreme Court in the authority in
Comptroller and Auditor General of India (supra) that "the High Courts in
India exercising their jurisdiction under Article 226 have the power to issue
a writ in the nature of mandamus or to pass orders and give necessary
directions where the government or a public authority has failed to exercise
or has wrongly exercised the discretion conferred upon it by a statute or a
rule or a policy decision of the Government or has exercised such discretion
malafide or on irrelevant considerations or by ignoring the relevant
considerations and materials or in such a manner as to frustrate the object
of conferring such discretion or the policy for implementing which such
discretion has been conferred".
20. In the present case, since the concerned authority has exercised discretion
on irrelevant considerations by ignoring the relevant considerations and
materials, the order impugned dated 10th April, 2023 is required to be set
aside. It is held that the petitioner is entitled to extension of the lease for the
lost period from 25th March, 2021 to 22nd February, 2022 during which he
was unable to continue with mining operation.
21. In the light of the observation made hereinabove, the writ petition succeeds.
22. Accordingly, W.P.A. 9583 of 2023 is allowed.
23. The Assistant Secretary, Department of Industry, Commerce and Enterprises,
being the second respondent herein, is directed to allow the representation
submitted by the petitioner dated 18th August, 2022 and grant extension of
the lease for the period during which the petitioner was unable to continue
mining operation (25th March, 2021 to 22nd February, 2022). The entire
exercise should be completed within six weeks from the date of
communication of this judgment.
24. There shall however be no order as to costs.
25. Since no affidavit is invited, the allegations contained in the writ petition are
deemed not to be admitted.
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)
