Calcutta High Court (Appellete Side)
Alpana Halder vs The State Of West Bengal & Ors on 8 May, 2023
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jay Sengupta
W.P. No. 9932(W) of 2012
Alpana Halder
Versus
The State of West Bengal & Ors.
For the petitioner : Mr. Mir Anowar
.....Advocate
For the State : Mr. Soumitra Bandopadhyay
Mr. Prasanta Behari Mahata
.....Advocates
Heard lastly on : 09.02.2023
Judgment on : 08.05.2023
Jay Sengupta, J.:
1. This is an application under Article 226 of the Constitution of India,
inter alia, praying for declaration that the amendment of 2011 of the West
Bengal Minor Mineral Rules, 2002 was ultra vires and for setting aside of
the impugned order vide Memo No. 7/289/570/MM/12 dated 14.03.2012
passed by the Additional District Magistrate and District Land and Land
Reforms Officer, Burdwan.
2
2. Learned counsel appearing on behalf of the petitioner submitted as
follows. A Long Term Mining Lease deed of five years was executed and
registered by and between the government of West Bengal and the petitioner
on 24.11.2006 in respect of Plot No. 543 (P) of Mouza - Mirchoba, J.L. No.
33, under Burdwan Police Station, now District - Purba Bardhaman,
measuring about 5.00 acres of land in the river bed of Damodar. Therefore,
the lease term was till 23.11.2011. As per the said lease deed Part - VIII,
para 3, there was a renewal clause of the lease. As per Rule 12(1) of West
Bengal Minor Mineral Rules, 2002, the renewal application should be made
at least six months before the date on which the lease was due to expire, but
not before nine months from such date of expiry. The petitioner's lease
period started from 24.11.2006 and accordingly, the lease period of five year
would expire on or about 23.11.2011. As such, application for renewal of
lease was made by the petitioner on 05.08.2011 along with challan of Rs.
500/- as application fees and other requisite documents. The said renewal
application was rejected by the order dated 14.03.2012. The said order was
passed purportedly owing to the amended provisions of the West Bengal
Minor Mineral Rules, 2002 vide Govt. Notification No.
809/CI/0/M.M/84/11 dated 01.12.2011. Subsequently, on 4th July, 2014 a
solemn order was passed by this Hon'ble Court in W.P. No. 16526(W) of
2013 (In Re: Swapan Sarkar vs. The State of West Bengal & Ors.) along with
other writ petitions, whereby the said amended Rules were struck down.
Therefore, prayer (a) of the writ petition ought to be allowed in view of the
said solemn order dated 4th July, 2014 passed by this Hon'ble Court and the
3
prayer (b) of the writ petition also be allowed by setting aside the order
impugned being Memo. No. 7/289/570/M.M./12 dated 14.03.2012. So far
as the prayer (c) of the writ petition was concerned, the petitioner prayed
that the authority might be directed to consider the said renewal application
afresh. After stricking down the said amended Rules, the concerned
authority had passed a number of orders of renewal of many other
applicants. Thereafter, vide a Notification No. 428-CI/O/MM/84/11 (Part-II),
dated 29th July, 2016 the West Bengal Minor Mineral Concessions Rules,
2016 came into force and Rule 62(1) West Bengal Minor Mineral Rules, 2002
was repealed. The Rule 62(2) of the West Bengal Minor Mineral Concessions
Rules, 2016 provided that "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." Since the writ petition
was under consideration and meanwhile the said West Bengal Minor
Mineral Rules, 2002 was repealed, the prayer for renewal of lease had not
attained finality. The provision contained under Rule 5(1) (a) of the West
Bengal Minor Mineral Concession Rules, 2016 ought to be taken into
consideration while considering the prayer of the petitioner was renewal of
lease i.e. for another term of five years. So, in the instant case, the lease
period ought to be for the period of 10 years. Besides, Rule 5 of the West
Bengal Sand (Mining, Transportation, Storage and Sale) Rules, 2021
provided the "period of Sand Mining Lease as minimum five years and
maximum twenty years." So, the petitioner might be allowed further period
4
of five years upon fulfilling all the formalities i.e., as per the present Rules.
In the lease deed (the first term lease deed) there was clause in Part IX,
General Provisions 12 for modification of terms and conditions of lease. The
respondent thereafter introduced The West Bengal Sand Mining Policy,
2021. But, a policy could not take the place of a law. So, it would not be
applicable in case of the petitioner.
3. Learned counsel representing the State submitted as follows. Smt.
Alpana Halder was an erstwhile lessee on plot no. 543(P) of Mouza -
Mirchoba, J.L. No. 33, Police Station and District- Burdwan (now Purba
Bardhaman) with an area 5.00 acres. Her long term mining lease was
registered on 08.12.2006 and she got possession over the lease area on
17.01.2007. She made an application on 05.08.2011 for renewal of mining
lease as the date of expiry of her mining lease was 07.12.2011. She filed
renewal application 04(four) months (approx.) before the date of expiry of her
mining lease. For the disposal of the matter, the petitioner was requested to
appear for the hearing at the office of the A.D.M. and D.L. & L.R.O.,
Burdwan. The petitioner was present on aforesaid two dates at the hearing
and was heard. Her application for renewal of the long term mining lease
was rejected by the D.M., Burdwan as per the amended provisions of West
Bengal Minor Mineral Rules, 2002 which came into effect from 05.12.2011.
Then the petitioner informed vide memo no. 07/289/570/MM/12 dated
14.03.2012 by the A.D.M. and D.L. & L.R.O., Burdwan and the application
for renewal of mining lease was rejected. Being dissatisfied with the said
order the petitioner filed the instant writ petition being W.P. NO. 9932(W) of
2012. She was asked to file application accordingly and take part in Tender-
cum-Auction process when the same would be notified in future. But, later
on such amendment was declared ultra vires vide order dated 4th July, 2014
of this Court. The writ petitioner had the opportunity to press this matter
previously before the Hon'ble Court, but she failed to do so for reasons best
known to the writ petitioner. If the said matter had been adjudicated under
the provisions of the WBMM Rules, 2002, then for renewal of mining lease,
as per provisions of Rule 12 sub Rule 1, "(1) An application for renewal of a
mining lease shall be made to the State Government or to an officer duly
authorized by the State Government in this behalf in Form D at least six
months before the date on which the lease is due to expire, but not before
nine months from such date of expiry through the Chief Mining Officer or
the Mining Officer in charge of the concerned area or such other officer or
officers as may be authorized by the State Government in this behalf." But,
in the instant case the date of expiry of the mining lease was 07.12.2011
and she filed renewal application on 05.08.2011 i.e., 04 (four) months
(approx.) before the date of expiry of her mining lease. Thus, the provision of
Rule 12 of the WBMM, Rules, 2002 was not complied with. Moreover, the
said provision was also mentioned in Part VIII under page 24 Paragraph 4 of
the Mining lease deed of the writ petitioner. So, the petitioner was not
entitled for extension or renewal. Furthermore, the Joint Secretary
Department of Industry, Commerce & Enterprises (Mines Branch) issued a
Notification No. 215-CI/O/MIN/GEN-MIS/07/2017 dated 26th March, 2018
about renewal of existing mining lease executed under West Bengal Minor
Mineral Rules, 2002, wherefrom it revealed that there was no provision of
mining leases now. The leases would lapse once that lease period was over.
The subsisting leases might be intimated accordingly. The applicants for
renewal should be informed that they would have to apply online for a new
mining lease through competitive bidding and such bids were invited from
the district authority. Reliance was placed on the notification under
reference. Moreover, the West Bengal Sand Mining Policy, 2021 came into
effect, w.e.f. July 30, 2021, wherein Rule 6 (iii) provided, "in existing leases,
the lease shall not renewed and shall automatically be resumed and vested
with the State Government, upon expiry of such leases. The State
Government shall lease the sand mines to WBMDTCL or any agency
recommended by it."
4. I heard of the learned counsels for the parties and perused the writ
petition, the affidavits and the written notes of submissions filed by the
parties.
5. When it comes to the question of rights and liabilities in respect of a
mining lease entered into under certain provisions of law, then the same
ought to be continued to be governed by such provisions, unless a
constitutionally valid prospective amendment alters the same. But, the
amendment of 2011 to the Rules of 2022 was purportedly declared ultra
vires by this Court.
6. Nevertheless, it may be pertinent to mention that according to a
notification dated 26th March 2018 about renewal of existing mining leases
executed under the West Bengal Minor Mineral Rules 2002. It appears that
now there are no provision for mining leases. The leases would lapse once
the lease period is over. Thereafter, the applicants for renewal would have to
apply online for a new mining lease through competitive bidding. Moreover,
the West Bengal Sand Mining Policy, 2021 came to effect on 30th July, 2021.
Rule 6(iii) therein provided that the existing leases shall not be renewed and
shall automatically be vested with the State, upon expiry of such leases. The
State Government shall lease out the sand mines to WBMDTCL or any
agency recommended by it.
7. Be that as it may, if the question of extension of mining lease is
adjudicated under the provisions of West Bengal Minor Mineral Rules, 2002,
then, it would be governed by the provisions of Rule 12(1). This provision
had not been struck down. The said Rule provided that an application for
renewal of mining lease shall be made at least six months before the date
when it is due to expire, but not before 9 months. This provision is also
reflected in the lease deed. But, in the instant case although the date of
expiry of the mining lease was 07.12.2011, the petitioner filed the renewal
application on 05.08.2011 i.e., about four months before expiry of the
mining lease. Thus, as contended by the respondents, the provision of Rule
12 was also not complied with. Therefore, on this score the petitioner may
not be entitled to renewal of such lease.
8. However, this is not the ground on which the impugned order of
rejection was passed. The impugned order has to be adjudged on the
reasons cited therein and these cannot be supplemented by fresh reasons
provided by the State at this stage. Moreover, in exercise of its powers under
Article 226 of the Constitution, this Court ordinarily would not substitute its
own reason or supplement the reasons given in the impugned order.
9. The impugned order cannot stand as it was based on the amended
provision of 2011 of the Rules of 2002 that was purportedly declared ultra
vires by this Court, as discussed earlier.
10. Therefore, the impugned order is set aside and the matter is
remanded back to the Additional District Magistrate and DL & LRO for fresh
consideration after hearing the parties, within six weeks from the date of
communication of this order.
11. The parties shall, however, be entitled to raise all the points therein
including the grounds taken up herein.
12. Urgent photostat certified copies of this judgment may be delivered to
the learned Advocates for the parties, if applied for, upon compliance of all
formalities.
(Jay Sengupta, J.)
S.M
