Chimanlal v. Addl District Magistrate L R — 1978 DIGILAW 573 (CAL)

JUDGMENT 1. THE short facts concerning the instant Rule are as follows: -The petitioner had been carrying on the business of brick making in the name and style of Chimanlal and company and such manufacture of bricks was being carded on by the petitioner by using ordinary earth from the lands referred to in annexure 'a' to the writ petition. The petitioner contended that the said plots of land were highly fallow lands and were unfit for agricultural works. The petitioner applied for a permit in the prescribed form sometime in the year 1969 before the Additional District magistrate (E. A.), 24-Parganas, through the J. L. R. O. Baruipur L. R. Circle, for digging and using earth from the said land for the purpose of manufacture of bricks, and on July 31, 1973, special permission was granted for one year and subsequently, the said permit was renewed upto 31st of March 1974 for digging and using earth for manufacturing bricks from the said lands of the petitioners. On May 21, 1971, the Additional district Magistrate (E. A.), 24-Parganas served a notice upon the petitioners directing them to take out a Mining Lease under the West ' Bengal Minor minerals Rules 1959 for a term not exceeding one year at a time. The petitioners, however, objected to such notice being issued to the petitioners and on June 22, 1973 the J.L.R.O., Baruipur l. R. Circle, intimated the petitioners that at the time of inspection by the S.L.R.O. Sadar the petitioners were absent and as such, the petitioners were requested to produce the stock Registers and challans etc. in support of the production of bricks since 1967 failing which exparte decision would be taken in assessing the royalty against the manufactured bricks and action would also be taken for cancellation of the digging permit. It appears that the respondent no. 2 also made a petition of complaint before the Sub-Divisional Magistrate at alipore and prayed for restraining the petitioners from digging earth under section 144 Cr. P. C. On October 18, 1973, the learned Sub-Divisional Magistrate alipore, drew up a proceeding under section 144 Cr. It appears that the respondent no. 2 also made a petition of complaint before the Sub-Divisional Magistrate at alipore and prayed for restraining the petitioners from digging earth under section 144 Cr. P. C. On October 18, 1973, the learned Sub-Divisional Magistrate alipore, drew up a proceeding under section 144 Cr. P. C. and after considering the cause shown by the petitioners the learned Magistrate dropped the said proceeding sometime in January 1974 the respondent No. 1, namely, the Additional District Magistrate (L. R.), there after served the memo dated 2nd of march, 1974 and 26th of April 1974 directing the petitioners to take out a Mining lease within a fortnight failing which legal action would be taken against the petitioners. It was also stated in the impugned memo that the petitioners should show cause by May 6, 1974 as to why action for contravention of the terms and conditions of section 4 sub-sections (2a) and (2b) of the West Bengal Land Reforms act should not be taken. 2. BEING aggrieved by the said impugned notices and or memos dated may 21, 1971, March 2, 1974 and April 26, 1974 issued by the Additional District magistrate (L.R.), 24-Parganas, the petitioners moved the Constitutional writ Jurisdiction of this Court and the instant Rule was issued. Mr. Sengupta the learned Counsel appearing for the petitioners contended that "ordinary earth" utilized by the petitioners for manufacture of bricks was not minor mineral and as such there was no occasion on the part of the Central government and/or the State Government to regulate such manufacture of bricks by (the petitioners under the Mines and minerals (Regulation and Development) Act 1957 or any Rules framed under the said Act. Mr. Sengupta also contended that the said "ordinary earth" is not a minor mineral within the meaning of the Mines and Minerals (Regulation and Development) Act, 1957 and as such the Central Government and for the State Government had no authority do ask the petitioners to take lease in respect of such "ordinary earth" utilised by the petitioners for manufacture of bricks and consequently the State government was not also entitled to ask for any royalty for such manufacture of bricks. Mr. Mr. Sengupta contended that it has since been decided by this Court in the case of Shyam Sundar Rathi vs. Additional District Magistrate, Bankura, reported in Calcutta High Court Notes, page 139 (A. I. R. 1975 Cal 58) that: section 4 (2a) and 4 (2b) of the West bengal Land Reforms Act are ultra vires for want of legislative competence in view of the fact that the State Government had encroached the field carved out by Section 2 of the Mines and Minerals (Regulation and Development) Act, 1957 and as such, the State Government had no legislative competence to enact: the said provisions of sections 4 (2a)and 4 (2b) of the Land Reforms Act. Mr. Sengupta thereafter referred to a number of decisions of this Court concerning the claim of the State Government for royalty for manufacture of bricks and contended that in none of the said decisions of this Court "ordinary earth" was taken into consideration and it was also not held in any of the said decisions that "ordinary earth" was minor mineral within the meaning of the mines and Minerals (Regulation and development) Act 1957 (hereinafter referred to as the Central Act of 1957). One of such decisions of this Court as referred to by Mr. Sengupta is the decision made in the case of State of West bengal vs. Jagadambika Prasad Singh, reported in A. I. R. (1969) Calcutta 281. In the said decision Rule 17 (1) (i) and schedule 1 of the West Bengal minor Minerals Rules were taken into consideration and it was held that the said rules and the Schedule in so far as the same related to "ordinary earth" for making bricks was ultra vires section 15 (1) of the Central Act of 1957 and: rule 17 (1) (i ). In the said decision, however, it was not decided what is 21 meant by "ordinary earth". But it was held that "ordinary earth" is not ordinary clay. Mr. Sengupta then referred to the decision made in the case of Ajit kumar Gurey vs. State of West Bengal, reported in 80 C. W. N. page 981. In the said decision, however, it was not decided what is 21 meant by "ordinary earth". But it was held that "ordinary earth" is not ordinary clay. Mr. Sengupta then referred to the decision made in the case of Ajit kumar Gurey vs. State of West Bengal, reported in 80 C. W. N. page 981. It was held in the said decision that unless earth was removed from the sub-soil by any process, it cannot be called a "mining operation" and the removal of silt obtained from river water by accumulating that water on the surface of the land by artificial device could not be held to be ordinary clay under section 3 (e) of the Central Act of 1957. Mr. Sengupta also drew the attention of the Court to another decision of this court made in the case of Hardhan Mondal vs. State of West Bengal reported in 78 c. W. N. page 236. Mr. Justice D. Pal held in the said case that brick earth is a mineral and the Central Government was competent to declare the same to be a minor mineral under section 3 (e) of the Central Act of 1957. It was further held that as the Central Government has by a notification declared 'brick earth' to be a minor mineral, the State Government was competent to make Rules for the regulation of leases in respect of 'brick earth' and it was not necessary to decide whether 'brick earth' was 'ordinary clay within the meaning of section 3 (e) of the Central Act of 1957. It was further held in the said decision that all silts may not be ordinary clay but silts suitable for brick making and is used for such purposes, comes within the expression 'brick earth'. Mr. Sen gupta lastly drew the attention of the court to the decision of this Court made in the case of Bipin Behari Mukherjee vs. State of West Bengal, reported in 1977 (1) C. L. J. page 323. Mr. Justice chittatosh Mukerjee held in the said case that "brick earth" is a minor mineral and as such the State Government chimanlal v. Add. Dist. Magistrate was quite competent to frame rules for regulating the leases relating to "brick earth". 3. REFERRING to all the said decisions, Mr. Mr. Justice chittatosh Mukerjee held in the said case that "brick earth" is a minor mineral and as such the State Government chimanlal v. Add. Dist. Magistrate was quite competent to frame rules for regulating the leases relating to "brick earth". 3. REFERRING to all the said decisions, Mr. Sengupta contended that it has now been held by this Court that "brick earth" is a minor mineral and as such within the delegated authority under the central Act of 1957, the State Government can frame rules relating to the regulation of such "brick earth" but in none of the decisions it has been held that the "ordinary earth" is "brick earth". In the instant case, Mr. Sengupta contended that the petitioners had been utilising "ordinary earth" for the purpose of manufacturing bricks and until and unless "ordinary earth" is held to be a mineral over which the Central Government had authority to legislate within the scope and ambit of Entry No. 54 of List I of the 7th Schedule, the Central Government cannot have any authority to legislate relating to regulation of "ordinary earth" and if the Central Government has no authority to legislate on ordinary earth' treating the same as minor mineral, the State Government under the delegated authority under the Central act of 1057 cannot also legislate in respect of such "ordinary earth". Accordingly, the demand made by the State government under the West Bengal minor Mineral Rules 1973 for royalty from the petitioners for utilising "ordinary earth" for manufacture of bricks is illegal and without authority. Mr. Sengupta contended that it will appear from Entry no. 54 of List I under the 7th Schedule of the Constitution that exclusively the central Government can legislate for regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by parliament by law to be expedient in the public interest. Save as aforesaid, by virtue of Entry No. 23 of List II of the said 7th Schedule, the State Government has the authority to legislate relating to the regulation of mines and minerals development. Mr. Sengupta contended that minor Minerals were defined in Section 2 of the said Central Act of 1957 but 'brick earth' was not mentioned as minor mineral under the provisions of section 3 (e) of the said Central Act of 1957. Mr. Sengupta contended that minor Minerals were defined in Section 2 of the said Central Act of 1957 but 'brick earth' was not mentioned as minor mineral under the provisions of section 3 (e) of the said Central Act of 1957. It may be stated, in this connection that under the authority of section 3 (e) of the Central Act of 1957 the Central Government subsequently issued notification in the official gazette and declared "brick earth" as a minor mineral but Mr. Sengupta contended that unless and until it is declared by section 2 of the said central Act of 1957 that "brick earth" is a mineral in respect of which it is exedient in the public interest that the union should take over the control for regulation and the development of such "brick earth", the Central Government has no authority to include the "brick earth" under the said Central Act of 1957 and the notification issued by the Central Government under section 3 (e) by which "brick earth" was declared to be a minor mineral was of no consequence in the absence of such declaration under section 2 of the Central Act of 1957. Accordingly Mr. Sengupta contended that even assuming that the earth utilised by the petitioner for manufacture of bricks was "brick earth", in the absence of the said declaration, brick earth could not be treated as minor mineral under Central Act of 1957 and as such by the authority derived from the Central Government, the State Government also could not ask for royalty or mining lese for such "brick earth". 4. MR. Sarkar the learned Course appearing for the State respondents firstly contended that admittedly the petitioners had been manufacturing bricks with the earth in question for a number of years and it is thus quite apparent and evident that the said earth was and is suitable for the purpose of manufacture of bricks. Mr. Sarkar also contended that the petitioners had also been taking out licence for such manufacture of bricks for a number of years and as such, the petitioners are not entitled to allege that the earth utilised by the petitioners for the manufacture of bricks was not "brick earth" and/or such earth could not be held to be a minor mineral within the meaning of the Central Act of 1957. Mr. Mr. Sarkar in this connection referred to the decision of the Punjab and Haryana High Court made in the case of Amar Singh, Modi lai vs. State of Haryana reported in air 1972 Punjab and Haryana page 356. In the said Full Bench decision of the Punjab and Haryana High Court, it was held by the majority decision that in determining the meaning of the word 'mineral' in the Central Government Notification No. G. S. R. 436 and in considering whether 'brick earth' comes within the connotation of that word, evidence of experts was inadmissible and the same was also held irrelevant. It was further held that the word mineral is devoid of definition and is capable of a vast variety of meanings. The Parliament has used it in its widest con not action and no construction of its narrow meaning was intended. It was also held in the said decision that the question whether a particular substance was or was not mineral within the meaning of the Instrument in which it was mentioned is absolutely a question of fact to be decided according to the circumstances of the particular case. After tracing the legislative history relating to the said Entry No. 54 of List I of 7th Schedule and the Central Act of 1957 and the rules relating to mines and minerals framed there under, it was held by the majority decision of the Punjab and haryana High Court, that "brick earth" was mineral and under Entry No. 54 of list I, the Central Government had the legislative competence to enact in respect of the 'brick earth'. Mr. Sarkar also referred to a decision of the Patna High court made in the case of Laddu Mal vs. Slate of Bihar, reported in AIR 1965 patna 491. It may be mentioned, 'n this connection, that the said decision of the patna High Court was also relied on in the aforesaid decision of the Punjab and haryana High Court. It was held in the said decision of the Patna High Court that "brick earth" was not included in the original definition of minor minerals in Central Act of 1957 but subsequently by notification issued under the provision of section 3 (e) of the Central Act of 1957 "brick earth" was declared to be a minor mineral. It was held in the said decision of the Patna High Court that "brick earth" was not included in the original definition of minor minerals in Central Act of 1957 but subsequently by notification issued under the provision of section 3 (e) of the Central Act of 1957 "brick earth" was declared to be a minor mineral. It was held that the central Government has the legislative competence to include "brick-earth" as minor mineral and the "brick earth" was also included in the category of minor mineral by the aforesaid notification and as such no exception can be taken if by the Central Act of 1957 or any rules framed there under, regulation and development of such minor mineral, namely, the "brick earth" was made. It was also held in the said decision that the two relevant items in the two Lists in the seventh Schedule of the Constitution, namely, Entry No. 54 of List I and Entry no. 25 of List II do not appear to have kept any mineral out of the legislative competency of the Legislatures. It was further held that when the Constitution was made in 1950, "brick-earth" was also considered to be a mineral. In the mineral Concession Rules, 1949, the definition of minor minerals included "brick earth" and it must be held than constitution makers were aware of the legal concept of mineral when they mentioned mineral in the Lists in the seventh Schedule. It was further held that no inference can be raised that our constitution makers and legislators also understood that "brick earth" was not. Mineral and, as such, the "brick earth" was kept outside the spell of Entry 54 of List 1. Mr. Barker in this connection also referred to a decision of the Supreme court made in the case of Baijndth kadia vs. The Stale of Bihar reported in A. I. R. 1970 S. C. page 1436. It was held by the Supreme Court that the entire legislative field in relation to minor minerals has been withdrawn from the State Legislature by the enactment of the Mines and Minerals (Regulation and Development) Act, 1957. It was held by the Supreme Court that the entire legislative field in relation to minor minerals has been withdrawn from the State Legislature by the enactment of the Mines and Minerals (Regulation and Development) Act, 1957. In the said decision, section 2 of the Central act, 1957 was taken into consideration by the Supreme Court and the Supreme court also considered the definition of mines and Minerals under the said Central Act of 1957 and noted that besides the minerals referred to in section 3, other minerals which the Central Government may by notification in the official gazette declare as a minor mineral, will also be a minor mineral. Mr. Sarkar accordingly contended that in view of such decision of the Supreme Court, it is no longer open for the petitioners to contend that "brick earth" which was declared as minor mineral by notification issued by the Central Government was not minor mineral and such notification was issued without jurisdiction. Mr. Sarkar further contended that the Supreme Court also considered the legislative fields of the Central Legislature and the State Legislature under the aforesaid Entry No. 54 of the Union list and Entry No. 23 of the State List. It was held by the Supreme Court in the said decision that Entry 54 of the union List speaks both of Regulation of mines and minerals development and entry 23 of State List is subject to Entry 54 of Union List. It is open to Parliament to declare that it is expedient in the public interest that the control should vest in Central Government. To what extent such a declaration can go is for Parliament to determine and this must be commensurate with public interest. Once this declaration is made and the extent laid down, the subject of legislation to the extent laid down becomes an exclusive subject for legislation by Parliament. Any legislation by the State after such declaration and trenching upon the field disclosed in the declaration must necessarily be unconstitutional because that field is abstracted from the legislative competence of the State Legislature. Mr. Sarkar also contended that in Bepin behari Mondal's case since referred to hereinbefore, Chittatosh Mukerjee, J. agreeing with D. Pal. Any legislation by the State after such declaration and trenching upon the field disclosed in the declaration must necessarily be unconstitutional because that field is abstracted from the legislative competence of the State Legislature. Mr. Sarkar also contended that in Bepin behari Mondal's case since referred to hereinbefore, Chittatosh Mukerjee, J. agreeing with D. Pal. J. also held that "brick earth" is minor mineral within the meaning of Central Act of 1957 and, as such, the State Government was quite competent to frame rules relating to "brick earth" under the authority derived from the said Central Act of 1957. Mr. Sarkar also referred to the decision of the Supreme Court made in the case of Bhagwan Das vs. State of U. P. reported in A. I. R. 1976 S. C. page 1393. It was held in the said decision that in view of definition of mining operation ;and minor minerals under sections 3 (d)and 3 (e) of the Central Act of 1957 and rules 2 (5) (7) of the Rules framed by the Government of U. P. under the Central Act of 1957, minerals need not be subterranean. Relying on the aforesaid decisions Mr. Sarkar conteded that it is thus quite apparent that the Supreme court, Punjab and Haryana High Court, patna High Court and this Court ([per chittatosh Mukerjee, J and D. Pal, J) have held persistently that "brick earth" is a minor mineral and there is no want of legislative competence for the central Government to declare "back earth" as minor mineral. In reply to such contention of Mr. Sarkar, Mr. Sengurpta however contended that under section 2 (ii) of the Mines Act, 1952 mineral was defined and it was stated that mineral is something which should be taken out from the earth. But bare earth as such was not defined as mineral under the said Mines Act, 1952. Mr. Sengupta further contended that so far as silt is concerned, silt is deposited on mother earth and, as such, silt is taken out. Mr. Sengupta also referred to section 3 (1) (b)of the Mines Act and stated that the expressions "earth" and "fullers earth" were used in the said section. Accordingly Mr. Mr. Sengupta further contended that so far as silt is concerned, silt is deposited on mother earth and, as such, silt is taken out. Mr. Sengupta also referred to section 3 (1) (b)of the Mines Act and stated that the expressions "earth" and "fullers earth" were used in the said section. Accordingly Mr. Sengupta contended that tie legislature was quite aware of the distinction between "earth" and "fullers earth" and it cannot be contended that this Legislature intended to include "ordinary earth" as mineral so far as the Entray 54 of List 1 is concerned. Referring to the Full Bench decision of the Punjab and Haryana High Court, Mr. Sengupta contended that the contortion which was raised in the instant casts was not considered by the Punjab and haryana High Court and entirely on a different consideration, the Punjab and haryana High Court held that "brick earth" was a minor mineral. Accordingly, the said decision will be of no assistance in the matter of adjudication of the dispute raised in the instant case. It may however be noted in this connection that in the said Full Bench decision of the punjab and Haryana High Court, it was held that it was too late in the day to abandon the wider and comprehensive; connotation. It was held that the word. 'mineral' is not a term of art of either chemistry, Geology or Mineralogy. It is a common English word in a wider amplitude and there was no warrant for reducing its larger import to the limited confines of a chemical formula. It was further held in the said decision that no authority could be cited wherein the word 'mineral' could be circumscribed by a precise scientific definition and, in fact, the unanimous view of authoritative pronouncement on the point would show the large and the unconfined sense in which the word 'mineral' as always been accepted and used. Referring to the decision of the Patna High Court in the said case of Laddu Mai, Mr. Sengupta contended that the question as to requirement of a declaration under section 2 of the Central Act, 1957 was not taken into consideration by the Patna High Court and, accordingly, the said decision is also not an authority for the contention raised by the petitioner in the instant case. Sengupta contended that the question as to requirement of a declaration under section 2 of the Central Act, 1957 was not taken into consideration by the Patna High Court and, accordingly, the said decision is also not an authority for the contention raised by the petitioner in the instant case. After considering the respective submissions of the learned counsels for both the parties, it appears to me that Entry 54 of list I is very wide in its amplitude and it is a settled law that for interpretation of any entry of the Seventh schedule of the Constitution, the Court must try to give meaning of an entry in its widest possible amplitude. In my view, the term 'mineral' includes "brick earth" and there was no want of legislative competence for the Central government to include "brick earth" as mineral and/or minor mineral under the central Act of 1957. I respectfully agree with the aforesaid views expressed by the Punjab and Haryana High Court, the Patna High Court and also the aforesaid views expressed by Mr. Justice D. Pal and Mr. Justice Chiltatosh Mukerjee that "brick earth" is a minor mineral within the meaning of the Central Act of 1957. It has lo be noted in this connection that the Supreme Court specifically held in the said case of Baijnath Kedia that the entire legislative field in relation to minor minerals has been withdrawn from the State Legislature by the enactment of the Mines and Minerals (Regulation and Development) Act, 1957. In view of the said decision of the supreme Court and also in view of the fact that the Supreme Court has not held that subsequent notification cannot include any other mineral as minor mineral, it cannot be contended by the petitioner that "brick earth" is not a minor mineral and, as such, the Central Government had no legislative competence to deal with the "brick earth" for the purpose of regulation and development of such minor mineral. Accordingly, it cannot also be contended that the State government under the delegated authority was also not competent to enact the west Bengal Minor Mineral Rules, 1973. I am also not inclined to accept the contention of Mr. Sengupta that the ordinary earth utilised by the petitioner in the instant case is not "brick earth". Accordingly, it cannot also be contended that the State government under the delegated authority was also not competent to enact the west Bengal Minor Mineral Rules, 1973. I am also not inclined to accept the contention of Mr. Sengupta that the ordinary earth utilised by the petitioner in the instant case is not "brick earth". It has to be noted that for a number of years, admittedly, the petitioner is utilising the earth from the lands in question for the purpose of manufacture of bricks and if the said earth is suitable for the manufacture of brick as will be evident from the aforesaid circumstance, it is no longer open to the petitioner to canted that such earth is not "brick earth". Accordingly, the petitioner is not entitled to any relief in this Rule and the Rule is discharged but I make no order as to costs.