CHIMANLAL Vs. ADDL DISTRICT MAGISTRATE L R

JUDGEMENT

(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 1. 969 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. 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.

(3.) 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. 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. 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".