PROTIK PRAKASH BANERJEE,J. - (1.) W.P. 7649 (W) of 2017 - The matter requires further consideration on affidavits. After hearing submissions of Mr. Bhattacharya, learned Senior Counsel appearing for the petitioner ably assisted by his juniors and the Additional Advocate General appearing on behalf of the State being assisted by Mr. T. M. Siddique and Mr. A. Majumder instructed by the learned Government Advocate who is holding the brief for the learned Advocate General it appears that the challenge which has been levelled by the writ petitioner against the impugned order appearing at annexure 'P-11' is five fold:- a) When an authority is directed to undertake a certain exercise by order of a Court, finally disposing of the matter whether the authority acts as a special referee or the creature of the Statute? b) If it performs such exercise in aid of a provision of a statutory rule, which was in existence when the original cause of action arose - in this case applying for renewal - but which subsequently ceases to exist according to the authority commanded to undertake the exercise, then how can the exercise be completed and power to give it a logical conclusion be held not to exist? c) When Rule 62(2) of the West Bengal Minor Minerals Concession Rules, 2016 clearly indicates that proceedings taken under the Rules of 2002, if commanded, shall continue under the corresponding provisions of the new rules of 2016 notwithstanding the repeal of the rules of 2002, whether the Rule 61(1) can be so construed as to take away the power of the authority concerned to carry the enquiry started under the old Rules and continued and continued under Rule 62(2) of the said Rules, under Rule 62(2) of the said Rules to a logical conclusion, especially when the authority concerned did hold that the said proceedings had abated and were covered by the corresponding provisions of the Rules of 2016. d) Where the authority itself inextricably connected the question of renewal to an alleged shortfall, which has been cleared by the Petitioners, in respect of a period April 2014 to April 2015, whether the authority has in effect admitted that had there been no shortfall, the renewal would have been granted long before the Rules changed and so the Government is now trying to take advantage of its own fault while purporting to act as a welfare State which is in violation of Article 14 of the Constitution of India. e) Whether in view of the clearance certificate which has been annexed at page 69 of the writ petition, which is dated October 5, 2015, certifying that all dues have been cleared till that date, it is at all possible for the State respondent to allege that there was any shortfall for the period from April 15, 2014 to April 14, 2015 and if it is possible then whether the respondents have acted absolutely without application of mind to the matters of record by holding that there was a shortfall and thereby protracting and delaying the consideration of the writ petitioner's prayer for renewal of the lease made on November 24, 2015 beyond the period when the Rules of 2002 without the amendments of Rule 16(a) and 16(b) were in force, to a time when they ceased to be in force? f) Whether the order passed by the authority which does appear to have considered the clearance certificate at page 69 of the writ petition is perverse for recording something contrary to the materials on record and also unreasonable for non-consideration of all the relevant materials on record in existence, which vitiates the decision making process behind the order impugned?
(2.) On behalf of the State respondents the learned Additional Advocate General and the learned Senior Standing Counsel with the respective learned juniors seek to use short affidavits to controvert some of the factual points in controversy.
(3.) Accordingly, let affidavit-in-opposition be filed within three weeks from date. Reply; if any, be filed one week thereafter.;