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2013 DIGILAW 748 (CAL)

Tuhin Mukherjee v. State of West Bengal

2013-09-27

DIPANKAR DATTA

body2013
JUDGMENT : Dipankar Datta, J. 1. The petitioner had applied for a long-term mining lease on 12th March, 2007 of a major mineral viz. Pyrbphillite. It is not in dispute that such application was not disposed of by the competent authority resulting in filing of W.P. No. 4753 (W) of 2008. During the pendency of such writ petition, the petitioner had applied for quarry permit on 18th March, 2008. Such application was not considered and an interim application (CAN 2992 of 2008) was filed in connection with W.P. No. 4753 (W) of 2008. The said application was disposed of by a learned Judge of this Court on 2nd September, 2008 with a direction upon the District Land and Land Reforms Officer, Bankura to consider and dispose of the application for grant of quarry permit filed by the petitioner on 18th March, 2008 within a period of three weeks from date of communication of the order to him. 2. It is not in dispute that the application for quarry permit was allowed and from time to time the concerned authority has issued quarry permit in favour of the petitioner. 3. However, an application for quarry permit dated 19th February, 2013 was filed by the petitioner. Although the authority competent to grant quarry permit is obliged to dispose of an application for quarry permit within fifteen days of its receipt, no step was taken in this behalf and more than fifteen days lapsed. The petitioner approached the Court once again by filing W.P. No. 5911 (W) of 2013 for its consideration. By an order dated 25th March, 2013, tire writ petition was disposed of granting liberty to the petitioner to apply for quarry permit afresh. The ground for not entertaining the writ petition was that with the expiry of fifteen days from the date of filing of the application for quarry permit, it stood refused by operation of law [clause 8 of Schedule IV appended to the West Bengal Minor Mineral Rules, 2002 (hereafter the Rules)]. 4. Availing the liberty granted by the Court, the petitioner once again made an application for quarry permit on 6th May, 2013, Immediately thereafter another round of litigation commenced at the instance of the petitioner before the writ Court giving rise to AST 97 of 2013. 4. Availing the liberty granted by the Court, the petitioner once again made an application for quarry permit on 6th May, 2013, Immediately thereafter another round of litigation commenced at the instance of the petitioner before the writ Court giving rise to AST 97 of 2013. The order of the Court dated 10th May, 2013 disposing of the writ petition is quoted below for facility of reference: "The District Land and Land Reforms Officer, Bankura, it is evident, has been abusing his statutory powers. The petitioner's previous application or quarry permit was not decided within the statutory period. He moved this Court, He did not get relief. He has submitted a fresh application for quarry permit. It is evident that this time also the District Land and Land Reforms Officer has been following the practice of inaction. His inaction will activate legal fiction after expiration of fifteen days from the date of receipt of the application. Such deliberate inaction cannot be countenanced. Mr. Sanyal appearing for the State has submitted that the officer shall give the decision immediately. For these reasons, I dispose of the WP directing the District Land and Land Reforms Officer to decide the petitioner's application for quarry permit within a fortnight from May 6, 2013 when the application was filed. No costs." 5. Acting in purported compliance with the order dated 30th May, 2013,. the District Land and Land Reforms Officer, Bankura took up the application for quarry permit of the petitioner for consideration and rejected it by the order dated 21st May, 2013. The said order reads as follows:- "Today is the schedule day for hearing. Seen Hazira filed by the petitioner, Tuhim Mukherjee. 'Let the 'Hazira' be kept with the case records. The case is taken up for hearing today. O.C. Tvl. M. attached to the D.L. & L.R.O's Office, Bankura is also present. Heard them. The fact of the case is that the petitioner filed an application before the M-O-C Purulia on 12.03.2007 for Long Term Mining Lease of 'Pyrophillite' over plot No. 1179 of Mouza Dhatla, J.L. No. 44 with an area of 2.52 acres under Chhatna P.S., The said Mining Lease application has been still awaiting disposal before the C & I Deptt. As it is major mineral in nature. As it is major mineral in nature. During pendency of the main application the petitioner filed an application for quarry permit of Ordinary Clay on 06.05.13 over the self same scheduled plot in question in Form-G in terms of Rule 28(1) of W.B.M.M. Rule 2002, It is here also mentioned that the applicant has prayed preference for getting Short Term Quarry Permit in terms of Rule 28(7) of the said Rule. It also transpires that the applicant has prayed for mining lease of the major mineral namely 'Pyrophilite; whereas he applied (or quarry permit on Ordinary Clay which is contrary to law. Moreover, as the application for Short Term Quarry Permit of Ordinary Clay has been submitted by the present petitioner on the self same spot upon which his earlier application for Long Term Mining Lease of 'Pyrophilite' is pending for disposal before the Commerce & Industries Department, Govt. of West Bengal, his present prayer for Short Term Quarry Permit of Ordinary Clay cannot be entertained in view of the provisions of Rule 28(5) of the West Bengal Minor Mineral Rules, 2002 unless and until his previous prayer for Long Term Mining Lease of 'Pyrophilite' on that very spot is disposed of by the Appropriate Authority concerned. So, the application dated 06.05.13 of Tuhim Mukherjee for quarry permit of Ordinary Clay over plot No. 1179 of Mouza Dhataia, J., No. 44 with an area of 2.52 acres is considered and rejected. Let the copy of order be handed over the petitioner." 6. This order dated 21st May, 2013 is the subject matter of challenge in this writ petition. 7. Mr. Chattopadhyay, learned advocate appearing for the petitioner contends that the reasons for which the concerned officer rejected the application of the petitioner are not at all valid, proper and legal and such order cannot be sustained on judicial review, Referring to the rules under chapter IV of the Rules (which does not contain any provision that would bar consideration of an application for quarry permit on the ground that an application for mining lease is pending), he further contends that pendency of an application for long term mining lease can not be a ground for not considering the application for quarry permit. 8. He has accordingly prayed for quashing of such order and for a direction on the said officer to consider the application for quarry permit afresh. 9. Mr. 8. He has accordingly prayed for quashing of such order and for a direction on the said officer to consider the application for quarry permit afresh. 9. Mr. Sengupta learned advocate appearing for the respondents contended that although the order impugned cannot be sustained on the grounds mentioned therein but the petitioner's application cannot be considered in view of the provisions contained in Rule 4A of the Rules which provides that a quarry permit may be granted only after inviting applications by public notice. 10. In support of his submission that the Court may sustain the order of the said officer by referring to provisions contained in Rule 4A of the Rules, he has referred to the decision of the Supreme Court reported in (2011) 5 SCC 729 (Afjal Imam v. State of Bihar). It is also his submission that the petitioner has no vested right in respect of a procedure required, to be followed for consideration of an application for quarry permit and, therefore, cannot claim that his application should be considered ignoring Rule 4A. 11. There cannot be any dispute with regard to the proposition of law laid down by the Constitution Bench of the Supreme Court in its decision reported in AIR 1959 SC 422 (N.T. Veluswamy Thevar v. Raja Nainar) referred to in paragraph 52 of the decision in Afjal Imam (supra). However, the ratio of the said decision would not be applicable in the present case for two reasons. First, if at all the application for quarry permit could not have been considered in view of Rule 4A of the Rules, the said point ought to have been raised before the Court when A.S.T. 97 of 2013 was disposed of on 10th May, 2013, The argument of Mr. Sengupta is hit by res judicata and/or analogous principles. Secondly, it has not been proved to the satisfaction of the Court that Rule 4A, which was inserted in the Rules by notification dated 9th January, 2006 with effect from 19"' January, 2006, has been laid before the State Legislature in terms of the provisions contained in Rule 28(3) of the Mines and Minerals (Development and Regulation) Act, 1957. In its decisions reported in AIR 1959 SC 512 (D.S. Garewal v. The State of Punjab) and (1983) 4 SCC 166 (Delhi Cloth & General Mills Co. In its decisions reported in AIR 1959 SC 512 (D.S. Garewal v. The State of Punjab) and (1983) 4 SCC 166 (Delhi Cloth & General Mills Co. Ltd. v. Union of India) such a requirement of placing of delegated legislation before the legislature has been held to serve a salutary purpose, i.e. the legislature has to maintain strict vigilance and control over its delegate. It is, therefore, doubtful as to whether Rule 4A can be referred to, to defeat the claim, of the petitioner. 12. Since no attempt has been made by Mr. Sengupta to sustain the impugned order based on the reasons mentioned therein, I am of the further view that fresh grounds cannot be advanced in course of oral submission to sustain it, That would amount to reasons assigned by Mr. Sengupta and not those of the concerned officer. It is settled law that the validity of an order which is challenged in a writ petition, has to be tested on the basis of the reasons given therein and cannot be supplemented by fresh reasons in the affidavit-in-opposition or by advancing oral submissions. Reference in this connection may be made to the decision of the Supreme Court reported in AIR 1978 SC 851 (Mohinder Singh Gill v. Chief Election Commissioner). 13. For the reasons aforesaid, I have no option but to allow the writ petition. The order impugned is set aside. The District Land and Land Reforms Officer Bankura is directed to reconsider the application for quarry permit filed by the petitioner on 6th May, 2013 strictly in accordance with law and upon granting an opportunity of hearing as early as possible, but not later than a fortnight from date of receipt of a copy of this order. 14. If it is found that the District Land and Land Reforms Officer rejects the application of the petitioner, the order must have the support of reasons and the same be communicated to the petitioner. 15. It is made clear if the application of the petitioner deserves acceptance follow up steps, in accordance with law, shall be taken without any delay. 16. There shall be no order as to costs. Urgent photostat certified copy of this order, if applied for be furnished expeditiously. Appeal allowed.