M/S. Taramaa Minerals vs The State Of West Bengal & Ors
2023 Latest Caselaw 4481 Cal

Form J(2)            IN THE HIGH COURT AT CALCUTTA
                       Constitutional Writ Jurisdiction
                                 Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri

                               WPA 7343 of 2012

                           M/s. Taramaa Minerals
                                     Vs.
                         The State of West Bengal & Ors.

For the petitioner                :       Mr. Gobinda Kar

Judgement on                          :   25.07.2023.

Bibek Chaudhuri, J.

The instant writ petition was taken for argument on behalf of

the petitioner on 24th July, 2023. The learned Advocate for the

petitioner filed affidavit-in-reply which was taken on record.

However, on careful scrutiny of the record as well as examining the

orders passed by the Hon'ble Judges at different points of time who

took up the matter for hearing, it is ascertained that affidavit-in-

opposition has not been filed by the respondents. Mr. Kar, learned

Advocate has filed a copy of the affidavit-in-opposition, which was

served upon him.

Let the affidavit-in-opposition be kept with the record.

Though the respondents are not represented by the learned

Counsel, for ends of justice, the affidavit-in-opposition and the

affidavit-in-reply shall be considered at the time of delivery of

judgment.

The instant writ petition has a chequered history.

Indisputably the petitioner was granted quarry permit to extract

minor minerals viz. quartzite from plot No.9/183 of Mouza Bhur

Kundathol, J.L.No.72 within Police Station Saltora in the district of

Bankura measuring an area of 3.65 acres of land. At the time of

quarry, the petitioner found major minerals, like mica, feldspher and

quartz at the site. Therefore, the petitioner made an application to

the Secretary to the Government of West Bengal, Department of

Commerce and Industries requesting him to advice the Mining Officer

In-Charge, Purulia Zone to issue prospecting license in favour of the

petitioner. However, the said prayer was not considered by the State

Authorities which compelled the petitioner to file a writ petition for

appropriate relief being WP No.10476(W) of 2009. By a judgment

and order dated 24th August, 2009, a Co-ordinate Bench dismissed

the writ petition on the ground that the application for prospecting

license filed by the petitioner was defective inasmuch as he prayed for

permit/license on plot Nos.9/183, 184 and 185 of Mouza Bhur

Kundathol. However, plot Nos.184 and 185 are raiyati lands. Though

the writ petition was dismissed, the petitioner was granted liberty to

file fresh application before the appropriate authority, which was

directed to be dealt with on its own merit and in accordance with law.

The petitioner preferred an appeal before the Division Bench of this

Court being MAT 1264 of 2009. In the said appeal it was contended

on behalf of the appellant/petitioner that he is interested to have the

licence in respect of plot No.9/183 only because the said plot is

recorded in the Khatian of the State Government and objection raised

by the Land and Land Reforms Department is not correct.

The Division Bench of this Court disposed of the aforesaid

appeal with the following directions:-

"Upon considering the rival contentions, we are of the view that

the State Authority should sympathetically consider the plight of the

appellant. The State had already accepted royalty for quartzite,

hence the appellant cannot be made to lose on that count, if he is not

permitted to sell the minerals after extraction. At the same time

appropriate royalty must be recovered from the appellant for

feldsphar and mica contents. If Commerce and Industry Department

is the appropriate Authority, they must look into the matter."

Thus, the applicant was directed to make a fresh application in

respect of plot No.9/183 only before the Land and Land Reforms

Department which in turn after due process would forward to the

Commerce and Industry Department and obtain their necessary approval so

the entire process might be done as expeditiously as possible, preferably

within a period of four weeks from the date of filing of such fresh

application. In the above manner, the order of the learned Single

Judge in WP No.10476(W) of 2009 was modified in appeal.

Accordingly, the petitioner filed a fresh application on 12 th June,

2008 which was acknowledged by the Mining Officer-in-Charge of

Purulia Zone. Subsequently, however, by an order dated 28 th May,

2010, the Assistant Secretary to the Government of West Bengal

rejected the application filed by the petitioner holding as hereunder:-

"Now, therefore, after careful consideration of all the facts and

circumstances relevant to the case and in compliance with the orders

of the Hon'ble High Court, Calcutta with regard to disposal of the

application of Tara Maa Minerals, the Governor is pleased to refuse to

grant Prospecting License (PL) in favour of M/s. TARAMAA MINERALS

in Plot No.9/183 in Mouza- Bhurkundathol, J.L. No.72, under P.S.

Saltora, District-Bankura with the provision that, if those 8 (eight)

prior applications was rejected as per extant rules and provisions of

M.C. Rules, 1960, M/s. Tara Maa Minerals' application will be given a

fresh look subject to the necessary criteria in this behalf and

provisions under the MM (D&R) Act, 1957 and the Rules made

thereunder."

Though the respondents were not represented in the instant

writ petition, an affidavit-in-opposition on behalf of respondent Nos.1

to 9 is on record.

It is the specific case of the respondents that the writ petitioner

amalgamated quartzite and quartz as the same mineral. However

quartzite is a minor mineral under Schedule VI of the Mineral Rules

which is used for the purpose of construction of building and metallic

portion of the road, while quartz is a major mineral as listed in

Schedule II of the Mines and Minerals (Development & Regulation)

Act, 1957. The provision of Section 5(2)(a) of the Mines and Minerals

(Development & Regulation) Act, 1957 provides that no mining lease

would be granted by the State, unless it is satisfied that there is

evidence to show that the area applied for has been prospected

earlier or the existence of minerals contained therein has been

established otherwise than by means of such area. The minimum

period of lease was at least 20 years in terms of provision of Section

8 of the Mines & Minerals (Development & Regulation ) Act, 1957.

The petitioner was granted quarry permit in respect of Plot No.9/183

to extract quartzite. However, during extraction the petitioner found

major minerals like mica, quartz, feldspher etc. in the said plot. The

petitioner was not granted quarry permit for such minerals and

question of issuance of prospecting license does not arise at all.

The petitioner has used an affidavit-in-reply refuting the

contention of the respondents. It is reiterated by the petitioner that

at the time of extraction of quartzite, the petitioner found the

existence of major minerals like quartz, mica, feldspher etc. in the

said plot permit of which was given in the year 2005. Immediately he

informed the authority concerned that the said major minerals were

found at the site. Subsequently, in continuation of that application

writ petition was filed, appeal was preferred and even contempt

application was also filed against the respondents. Therefore, his

application which was filed as per the decision of the Court of appeal

in MAT No.1264 of 2009 should be considered as a continuation of his

information given in 2008. Accordingly, the reasons subscribed by

the Assistant Secretary to the Land and Land Reforms Department is

not sustainable and should be rejected.

On due consideration of submission of the learned Advocate for

the petitioner as well as the materials on record, this Court likes to

record at the outset that Rule 4 of the West Bengal Minor and

Minerals Rules, 2002 prohibits mining operation without permit or

mining lease. Rule 4A provides the procedure for grant of lease or

quarry permit. It is needless to say that the petitioner was granted

quarry permit following the provisions of extant rules in respect of the

plot No.9/183 of Mouza Bhurkundathol. Only during extraction of

quartzite, he found major minerals in the said plot. As a law-abiding

citizen, he informed the matter to the concerned authority with a

request to permit him to extract major minerals. The authority did

not consider his prayer. Non-consideration of the application of the

petitioner compelled him to file the writ petition. The said writ

petition was dismissed on the ground that along with plot No.9/183,

the petitioner joined raiyati plot Nos.184 and 185. The petitioner

preferred an appeal. The Division Bench of this Court while disposing

of the appeal directed the authority to consider the application of the

petitioner sympathetically for prospecting license. The Mines and

Minerals (Development & Regulation) Act, 1957 deals with

prospecting license in respect of mining operation. Section 4 provides

the detailed procedure. As per the order of the Hon'ble High Court in

appeal, the petitioner preferred application in proper proforma on

submission of necessary fees etc.

The authority considered the application prospectively from the

date of filing of the said application without considering the fact that

the application in question is the resultant effect of the judgment of

the Division Bench of this Court in Mandamus Appeal wherein non-

consideration of the petitioner's application dated 12.06.2008 was in

issue.

In view of such circumstances, this Court is of the considered

opinion that the competent authority rejected the petitioner's

application for prospecting licence without considering the direction of

the Division Bench to treat then said application sympathetically.

For the reasons stated above, the impugned order dated 28 th

May, 2010 passed by the Assistant Secretary to the Government of

West Bengal, Commerce and Industries Department, Mines Branch is

set aside and quashed.

The respondent authorities are directed to reconsider the

petitioner's application sympathetically in the light of the observation

made hereinabove to the effect that the application for prospecting

licence shall be dealt with as an application on the basis of which

quarry permit was granted in favour of the petitioner in respect of the

plot No.9/183 of Mouza Bhurkundathol taking into consideration the

provision of Section 11 of the Mines and Minerals (Development &

Regulation) Act, 1957.

Entire exercise shall be concluded within a period of eight weeks

from the date of communication of this order.

With the above order, the instant writ petition is disposed of.

There shall be, however, no order as to costs.

(Bibek Chaudhuri, J.)

Mithun De.

A.R. (Ct).

Sl No.11.