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2018 DIGILAW 875 (CAL)

Subrata Bhattacharya v. State Of West Bengal

2018-12-03

RAVI KRISHAN KAPUR

body2018
JUDGMENT : Ravi Krishan Kapur, J. 1. The instant writ petition has been filed challenging an order dated 5 December, 2014 inter alia, rejecting an application dated 19 December, 2006 under Rule 5 of the West Bengal Minor Mineral Rules, 2002 to grant a mining lease for a quarry permit in the Paschim Medinipur area. 2. By the impugned order the respondent authorities had rejected the application of the petitioner primarily on the ground that no environmental clearance had been obtained by the petitioner which is mandatory for obtaining a mining lease for sand. 3. It was contended on behalf of the petitioner that the rights of the parties stood crystallized as on the date of the application and the right of a party had to be considered as per the law prevalent on the date of the application i.e. as on 19 December, 2006. 4. In the decision of the Hon'ble Apex Court in Deepak Kumar etc. Vs. State of Haryana and Others etc. being SLP (C) No.19628-19629 of 2009 the Hon'ble Apex Court had held that an environmental clearance certificate is mandatory keeping in mind the long-term sustainable use of natural resources and giving effect to inculcating the spirit of Article 48A, Article 51A(g) read with Article 21 of the Constitution. Subsequently, Rule 61 of the West Bengal Minor Concession Rules, 2016 makes an environmental clearance certificate to be a mandatory pre-condition before applying for such mining lease. 5. The petitioner assails the order dated 5 December, 2014 on the ground that on the date of making of the application there was no requirement in law for environmental clearance. In support of his contention the petitioner has relied on decisions reported in (1978) 1 SCC 405 , (2002) 4 SCC 675 and (1983) 3 SCC 33 . 6. In Lachmeshwar Prasad Shukul and Others vs. Keshwar Lal Chaudhuri and Others, 1940 FCR 84 Gwyer, C.J., relied on the rule adopted by the Supreme Court of the United States in Patterson vs. State of Alabama that "We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered". (emphasis supplied) 7. As has been held in Rameshwar and Others vs. Jot Ram and Others, (1976) 1 SCC 194 that "where rights have vested in a party they cannot be nullified or negated by subsequent events save where there is a change in the law". (emphasis supplied) 8. In Pasupuleti Venkateswarlu vs. The Motor & General Traders, (1975) 1 SCC 770 at para 4 V.R. Krishna Iyer, J., held that "it is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding". One of the recognised exceptions to this rule is absent any change in the law. 9. The primary grievance of the petitioner is that his application for mining lease which was filed in 2006 ought to have been considered in the light of the prevalent 2002 Rules which did not make it mandatory to obtain an environmental clearance certificate. In support his argument the petitioner has relied on the decisions reported in (2002) 4 SCC 675 at para 6 and (1983) 3 SCC 33 at para 5 for the proposition that ordinarily the rights of the parties to a litigation stand crystallised on the date of commencement of the lis and no retrospective effect should be given to any statutory provision so as to impair or take away an existing right unless the statute either directly or indirectly takes away such an existing right. I respectfully adopt the propositions of law laid down in the decisions relied on by the petitioner but the same are clearly distinguishable on the facts. Mere filing of an application does not give a vested right in favour of the petitioner to have the same adjudicated regardless of a change in the law because it is not only the power but the duty of the Court to take into account the changed circumstances. 10. After having considered the issues raised in the petition, I am of the view that there is no substance in the submission made on behalf of the petitioner. 11. 10. After having considered the issues raised in the petition, I am of the view that there is no substance in the submission made on behalf of the petitioner. 11. The impugned order dated 5 December, 2014 correctly and justifiably takes into account the change in law and the necessary mandatory requirement to obtain an Environmental Clearance Certificate before grant of a permit to extract minor minerals. It is an admitted position that with the application for mining lease dated 19 December, 2006 filed by the petitioner there was no environmental clearance submitted by the petitioner. The impugned order records that as per the guidelines of the Hon'ble Supreme Court of India since no mandatory environmental clearance had been furnished no long-term mining lease could be granted to the petitioner. 12. I find no reason to interfere with the impugned order dated 5 December, 2014. Accordingly, WP No.215 (W) of 2018 stands dismissed. 13. There will be no order as to costs.