Dipankar Datta, J. - (1.) BY an indenture dated July 9, 1998, the first petitioner was granted mining lease in respect of the tract of lands mentioned in Part - I thereof, to remain operative for a period of 5 (five) years i.e. till July 8, 2003. The second petitioner, who happens to be the brother of the first petitioner, was appointed by him as his constituted attorney to look after the work of mining lease. In pursuance of the mining lease, possession of the land mentioned in Part - I was made over to the first petitioner on December, 1998 and since then the petitioners started exploiting the area by extracting stone upon due payment of royalty to the Government as per the rate fixed by it.
(2.) BEFORE expiry of the validity of the said lease, the first petitioner had filed an application for renewal on April 3, 2003. On April 8, 2003, the first petitioner wrote to the District Land and Land Reforms Officer, Bankura (hereafter the D.L.L.R.O.) and informed him of inadvertent excess payment of royalty and prayed for adjustment. In response to the application dated April 3, 2003 of the first petitioner, he was informed by the Assistant Secretary to the Government of West Bengal, Commerce and Industries Department by his letter dated July 31, 2003 that such application would be considered upon the petitioner complying with the terms and conditions mentioned therein. Upon receipt thereof, the first petitioner duly presented the original mining lease for endorsement of renewal. However, to his dismay, the first petitioner received a letter dated August 13, 2003, issued by the Sub -Divisional Land and Land Reforms Officer, Khatra (hereafter the S.D.L.L.R.O.), whereby the first petitioner was directed to make payment of Rs. 1,58,146/ - being the outstanding royalty and cess with interest for extraction of 1,75,500 cft. of stone for the period between April 1, 2003 and July 8, 2003 together with other charges. The first petitioner immediately objected to the same by a letter dated August 25, 2003 addressed to the S.D.L.L.R.O. and while informing him of payment of excess royalty for extraction of stone, requested him to disclose the basis of his computation of such figure of Rs. 1,58,146/ -. Although the first petitioner claimed to have extracted 15,04,400 cft. of stone upto December 31, 2002, royalty was stated to have been deposited for extraction of 15,29,550 cft. of stone, inadvertently. Accordingly, the first petitioner prayed for verification of records and for adjustment of payment of excess royalty for 25,150 cft. of stone with the royalty payable for the period January 1, 2003 to March 31, 2003. The prayers dated April 8, 2003 and August 25, 2003 were not considered by the D.L.L.R.O. and the S.D.L.L.R.O. In fact, they did not reply to the first petitioner as to whether any adjustment could be made or not; instead, a written complaint was lodged by the S.D.L.L.R.O. with the Officer -in -Charge, Indpur Police Station resulting in registration of Indpur P.S. FIR No. 32/2003, dated November 6, 2003, under sections 379, Indian Penal Code and 21 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereafter the 1957 Act) read with Rules 18, 30 and 33 of the West Bengal Minor Minerals Rules, 1973, as amended (hereafter the 1973 Rules). Upon registration of such FIR, the first petitioner was arrested on November 7, 2003 and produced before the Sub -Divisional Judicial Magistrate, Khatra. The said magistrate passed an order on November 8, 2003, directing release of the first petitioner on bail.
(3.) IN this writ petition dated December 1, 2003, the petitioners have questioned registration of the said FIR for realization of alleged unpaid royalty and have accordingly prayed for the following relief: "(a) A writ of and/or in the nature of Mandamus should not be issued commanding the respondents, their men, agents, servants and subordinates to rescind, cancel and/or withdraw the purported complaint dated 06.11.2003 filed by the SDLRO, Khatra against the Petitioners for non -payment of royalties for the financial year 2003 -2004; (b) A writ of and/or in the nature of Mandamus should not be issued commanding the respondents, their men, agents, servants and subordinates to show cause as to why the purported criminal case being GR No. 265/2003 arising out of Indpur P.S. Case No. 32/2003 dated 06.11.2003 u/s. 379 of the Indian Penal Code with Section 21 of the Mines and Minerals (Regulation and Development) Act 1957 read with Rules 18, 30 and 33 of the West Bengal Minor and Minerals Rules, 1973 should not be quashed; (c) A writ of and/or in the nature of Mandamus should not be issued commanding the respondents, their men, agents, servants and subordinates to show cause as to why the criminal case being Indpur P.S. Case No. 32/2003 dated 06.11.2003 (GR Case No. 265/2003) initiated against the petitioners u/s. 379 of the Indian Penal Code and Section 21 of MMRD Act on the basis of the complaint lodged by the SDLRO, Khatra on 06.11.2003 for non -payment of royalties for the financial year 2003 -2004 in spite of validity of the lease granted by the Govt. of West Bengal for extraction of stone in favour of the Petitioner No. 1 should not be set aside and/or quashed and declared invalid and/or inoperative; (d) A writ of and/or in the nature of Certiorari be issued commanding the respondents, their men, agents, servants and subordinates to transmit the entire records of this case being Indpur P.S. Case No. 32/2003 dated 06.11.2003 including the purported complaint filed by SDLRO, Khatra on 06.11.2003 and other relevant records of this case after certifying those to this Hon'ble Court, so that consenciable justice may be administered by quashing the criminal case being GR Case No. 265 of 2003 arising out of Indpur P.S. Case No. 32/2003 dated 06.11.2003 as well as quashing of a purported complaint lodged by SDLRO on 06.11.2003 before Indpur Police Station and the initiation of proceedings by the Indpur Police Station in P.S. Case No. 32/2003 dated 06.11.2003; ***" Since the FIR registered on the written complaint of the S.D.L.L.R.O. is under challenge, it would be convenient to set out the same in its entirety. "To The Officer -in -Charge,Indpur Police Station. Sub: FIR against: -1. Sri Aditya Kumar Ghosh, s/o ....2. Sri Dilip Kumar Ghosh, s/o .... all of .... On account of defaulting of payment of Government Revenue (Royalty and Cesses on Minor Minerals) for a Mining Lease for 'STONE' Ref: This office's Memo No. .... dt. 13.8.03 In view of the discussion held in the meeting in the Collectorate Conference Hall Bankura on 29.11.03, the District Magistrate, Bankura and the Additional District Magistrate and District Land and Land Reforms Officer, Bankura kindly expressed their views on the need of upliftment of Royalty and Cess on Minor Minerals for the year 2003 -2004 and to take all out effort against the Royalty evaders within the ambit of the West Bengal Minor Minerals Rules 1973 and Mines and Minerals (Regulation and Development) Act 1957 read with the provision of Indian Penal Code vice versa. Therefore, it is considered expedient (sic) to lodge First Information Report against the following leasee (sic) who have failed to deposit Government Revenue to the tune of more than a lack of rupees despite repeated reminders and the commitment of payment by the lessee for severals (sic) times. This has badly affected Government exchequer. The details are summarized (sic) hereunder: Therefore, aforesaid lease holder and his associate have committed an offence punishable u/s 21 (Sub Sec. 1 to 5) of the Mines and Minerals (Regulation and Development) Act 1957 read with Rules 18, 30 and 33 (Amended Rule) of the West Bengal Minor Mineral Rules, 1973 on account of violation of the provision laid down in the indenture of Mining lease with special attention Part IX of the indenture of lease for non payment of Royalty dead rent etc. for a longer period without any attention to the reminders, issued by the Sub Divisional Land and Land Reforms Officer, Khatra, having delegated powers as per clause - 9 of schedule III of West Bengal Minor Mineral Rules 1973 and as such Sri Aditya Kumar Ghosh and Sri Dilip Kumar Ghosh have unauthorisedly used the challans and used the usufructs (sic) of the sale proceeds of stone/ballast within Indpur Police Station evading Government Revenues to the tune of Rs. 1,42,786/ - (one lac forty two thousand Seven hundred eighty six rupees only) and defaulting in payment of the same may also be treated as commitment of an offence punishable u/s 379 IPC. There is possibility of continuing contravention in the Financial year 2003 -2004 by the lessee, recoursed (sic) to the result of loss of good quantum of Government Revenues in future. This FIR is lodged without prejudice to any other mode of recovery authorised by provision of the lease or by any law, all amounts failing (sic) due against the lessee may be recovered as Public demand under the Bengal Public Demand Recovery Act or any statutory modification there of for the time being in force from the office of the undersigned according to exigency of the matter. Sd/ - Illegible.Sub Divisional Land and Land Reforms Officer, Khatra District Bankura. Enclo: 47 (Forty seven sheets).";