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2000 DIGILAW 34 (CAL)

Kamal Kr. Singh v. State of West Bengal

2000-01-18

PRABIR KUMAR SAMANTA

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JUDGMENT Heard the learned Advocates for the respective parties. 2. Admittedly, the writ petitioner made an application dated 11.6.97 to the authority concerned for grant of a mining lease in his favour in respect of the lands in question under the Mineral Concession Rules, 1960. The writ petitioner alleged that the said application has not yet been considered' by the concerned respondent authorities and accordingly, prayed for a necessary direction upon the respondent authorities to consider and dispose of the same in accordance with the provisions of law, in this writ petition. Mr. A. N. Banerjee, learned Advocate appearing on behalf of the State-respondents submitted that if the said application has not yet been considered by the concerned respondent authorities, then the same cannot be considered at this stage in view of Rule 24 of the aforesaid Mineral Concession Rules, 1960. The relevant provisions of the said Rule 24 in this regard are as under :- "(1) An application for the grant of a mining lease shall be disposed of within twelve months from the date of its receipt. (2) An application for the renewal of a mining lease shall be disposed of within six months from the date of its receipt. (3) If any application is not disposed of within the period specified in sub-rule (1), it shall be deemed to have been refused." 3. The aforesaid provision is pari materia with Rule 7 of the West Bengal Minor Minerals Rules, 1973 which came under consideration by this Court as to whether the same is ultra vires the Constitution. This Court in the decision reported in (1) 1991 (1) CHN 202 , in the case of Sahadev Sarkar v. State of West Bengal & Ors., held that Rule 7 of the said Rules of 1973 cannot be treated to have authorised the authorities concerned to dismiss an application for grant of a mining lease only because of expiry of the period of one year from the date of making an application. A bona fide person fulfilling all the conditions of the statute if makes an application cannot be deprived of the consideration of his application only because of the expiry of the period of one year due to inaction on the part of the authorities who are under obligation to consider the same according to law. Reasonableness is the real test for validation of an enactment. Reasonableness is the real test for validation of an enactment. A deeming provision is a mere legal fiction and the same cannot be extended beyond its limits: Applying these tests this Court held that Rule 7 of the West Bengal Minor Minerals Rules, 1973 cannot be sustained as it was founded on inherent drawbacks of the respondent authorities who are under obligation to consider the same under the statute but failed to do so. The same was, therefore, found to be ultra vires the Constitution and was struck down. . 4. I need not repeat the reasons upon which the aforesaid provisions should be struck down but I may add to the reasonings of the said decision that dismissal in limine of the application only upon expiry of a particular period will not only rob the public of the transperancy of the actions of the public functionaries in a quasi judicial function but also instead of minimising arbitrariness in such function it will encourage arbitrariness. Any legislation which will leave scope for arbitrary action must be looked with suspicion. Only reference to the classical decision of the Supreme Court in the case of (2) A. K. Kraipak & Ors. v. Union of India, AIR 1970 SC 150 , followed in innumerable cases will be sufficient for the present purpose. It laid down the need of fair play both in quasi judicial and administrative matters. Such fair play will be ensured, only if the authorities under obligation to dispose of the application are compelled to dispose of the same on its merits but certainly not if they are not made to dispose of the same on merits and are permitted to allow such applications stand rejected only upon expiry of a particular period. 5. That apart, Rule 24 impliedly casts an obligation upon the authorities to dispose of an application for the grant of a mining lease within twelve months from the date of its receipt and at the same time prescribes that if any such application is not disposed of within the said period, it shall be deemed to have been refused. This deemed refusal as per the rule is purely because of the lapse of time without anything else. Thus, the authority concerned will have discretion to apply its mind and dispose of any particular application and not to do so in respect of any other. This deemed refusal as per the rule is purely because of the lapse of time without anything else. Thus, the authority concerned will have discretion to apply its mind and dispose of any particular application and not to do so in respect of any other. It will, therefore, have power to choose between alternative course of action without disclosing any reason therefore for its application from case to case. This power will in turn in cases will be exercised arbitrarily to fetter its own discretion by self created rules so as to preclude itself from applying its mind to the merits of an individual case before it. 6. Therefore, and in view of the said decision of this Court, Rule 24 of the aforesaid Mineral Concession Rules, 1960 so far as it relates to the deemed dismissal of an application for grant of a mining lease only upon expiry of twelve months from the date of its receipt, shall also be declared as ultra vires the Constitution on the same reasoning. J, therefore, strike down the aforesaid provisions. 7. This writ petition is accordingly disposed of by directing the authority concerned to dispose of the application of the writ petitioner for grant of a mining lease under the provisions of the aforesaid Mineral Concession Rules, 1960, if the same has not yet been disposed of in accordance with the provisions of law or on its merits, as expeditiously as possible preferably within a period of six months from the date of communication of this order. If urgent xerox certified copies of this order is applied for by the parties, the same should be given as expeditiously as possible.