ALPANA HALDER Vs. STATE OF WEST BENGAL

JUDGEMENT

(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 dtd. 14/3/2012 passed by the Additional District Magistrate and District Land and Land Reforms Officer, Burdwan.

(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 5/8/2011 along with challan of Rs.500.00 as application fees and other requisite documents. The said renewal application was rejected by the order dtd. 14/3/2012. 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 dtd. 1/12/2011. Subsequently, on 4/7/2014 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 and 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 dtd. 4/7/2014 passed by this Hon'ble Court and the prayer (b) of the writ petition also be allowed by setting aside the order impugned being Memo. No. 7/289/570/M.M./12 dtd. 14/3/2012. 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), dtd. 29/7/2016 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 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 8/12/2006 and she got possession over the lease area on 17/1/2007. She made an application on 5/8/2011 for renewal of mining lease as the date of expiry of her mining lease was 7/12/2011. 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. and 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 5/12/2011. Then the petitioner informed vide memo no. 07/289/570/MM/12 dtd. 14/3/2012 by the A.D.M. and D.L. and 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 dtd. 4/7/2014 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 7/12/2011 and she filed renewal application on 5/8/2011 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 and Enterprises (Mines Branch) issued a Notification No. 215-CI/O/MIN/GEN-MIS/07/2017 dtd. 26/3/2018 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."