- (1.) THIS Rule is directed against a demand dated 23rd of June, 1973 made by the Additional district Magistrate (L. R.), Burdwan by which the petitioner was directed to deposit the royalty amounting to Rs. 83,452/- as the petitioner had extracted sand and Sandy Soil measuring 41,72,63 c. ft. for the works of approach at Sadarghat Burdwan. The petitioner was further directed to show cause as to why appropriate action would not be taken against them for such unauthorised extraction without obtaining prior permission from the authority in writ ting.
(2.) THE petitioner is a registered partnership firm. By a contract dated 23rd November, 1972 the petitioner Was appointed as a contractor by the Superintending Engineer (Roads and Construction) Circle No. 2, Calcutta for construction of the approach road, Damodar Bridge at Sadarghat, Burdwan. In the said contract the contractor was required to procure earth on its own and to carry it to the site without any obligation of the State Government to that effect. In the search of earth in the neighborhood, the firm found that in Bangpur and in the adjacent mouzas by the side of Damodar, there was heavy deposit of Damodar silt on agricultural lands preventing the cultivator from cultivating the lands. Such cultivators were trying to remove the silt which was about 5 ft. high on their lands. These cultivators, having come to know that the petitioner was looking for earth for the purpose of construction of the said approach roads, approached the petitioner to purchase silt from them and to remove the silt from their lands. Thereafter the petitioner purchased the silt at its own cost, removed the same from the lands of the said cultivators and used the same for the construction of the said approach roads to the Sadarghat Bridge. Subsequently, the petitioner was informed by the respondent No. 2 that they would have to pay royalty for collection of sand from the lands of cultivators. Thereupon the petitioner by its letter dated 8th December, 1972 applied to the respondent No. 2 for permission to collect sandy soil from the lands of the cultivators and in that letter it was stated that usual royalty would be paid by the petitioner. Since then the petitioner was advised that sandy soil was not a minor mineral and as such no royalty was payable under the law on sandy soil. The petitioner being aggrieved by the aforesaid illegal demand made by the Additional District Magistrate (L. R.), Burdwan moved this court in an application under Article 226 of the Constitution and obtained the present Rule.
(3.) MR. Choudhury, appearing on behalf of the petitioner contended that the silt and sandy Soil are not minor minerals under the Mines and Minerals (Regulation and Development) Act, 1957, and as such the West Bengal minor Minerals Rules have no application to it. It was submitted as the petitioner had procured silt and earth from the land owners and removed the same from their lands at their own cost after making payment for such silt earth to the cultivators, there was no extraction on the part of the petitioner and in any event the said silt and earth were to be removed by the land owners for the purpose of making their lands suitable for agriculture and as such there was no extraction of mines and minerals. Lastly, Mr. Choudhury contended that there being no relationship of lessor and lessee between the respondent and the petitioner, the respondents under no circumstances could claim royalty against the petitioner under the said Act or rules made there under.;