- (1.) HAVING heard the learned Counsel for the parties, we are of the opinion that this appeal shoud itself be disposed of as it involves a pure question of law.
(2.) THIS appeal is directed against a judgment and order dated 23-12-98, whereby and whereunder the writ application filed by the respondent-writ petitioners was allowed. The writ-petitioners respondents are the contractors. They are not holder of any mining lease nor had they been granted any quarry permit. According to the writ petitioners-respondents, they purchased minor minerals for their use in execution of their contract. The respondents had directed them to produce royalty clearance certificate as condition precedent for passing their bills. Such a condition imposed in the impugned Memo dated 28-8-97 was questioned in this writ application. By reason of the impugned judgment the learned trial Judge has held that the said condition is illegal. Mr. Sen, the learned Counsel appearing on behalf of the appellant, inter alia, submitted that in terms of item No. 9 of IIIrd Schedule appended to the West Bengal Minor Minerals Rules 1973, the District authority had been granted power to impose such conditions. The learned counsel has placed strong reliance upon a decision of the Apex Court in State of Karnataka v. Subhas Rukmayya Guttedar reported in AIR 1993 SC 860. Mr. Chakraborty, learned Counsel appearing on behalf of the respondent on the other hand submitted that the aforementioned provision has been declared ultra vires by this Court in Midnapore District Contractor's Association v. State of West Bengal reported in (1998) 1 Cal HN 32 as also in an unreported decision of this Court in Purulia District Contractors' Association v. State of West Bengal disposed of on 23-12-98. In view of the aforementioned rival contention of the parties, the question which arises for consideration in this appeal is as to whether the State as Principal can impose a condition that unless royalty clearance certificate is filed by the contractors, who are not holders of any mining lease or quarry permit and restriction can be imposed in respect of payment of their bills. Parliament in terms of Entry 54 List I of the 7th Schedule of the Constitution of India enacted Mines and Minerals (Regulation and Development) Act. Section 9 of the said Act reads thus :-"9. Royalties in respect of mining leases :- (1) The holder of a mining lease granted before the commencement of this Act shall, notwithstanding anything contained in instrument of lease or in any law in force at such commencement, pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub-lessee from the leased area after such commencement, at the rate for the time being specified in the Second Schedule in respect of that mineral.(2) The holder of a mining lease granted on or after the commencement of this Act shall pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub-lease from the leased area at the rate for the time being specified in the Second Schedule in respect of that mineral.(2A) The holder of a mining lease, whether granted before or after commencement of the Mines and Minerals (Regulation and Development) Amendment Act, 1972, 56 of 1972 shall not be liable to pay any royalty in respect of any coal consumed by a workman engaged in a colliery provided that such consumption by the workman does not exceed one-third of a tonne per month.(3) The Central Government may, by notification in the Official Gazette, amend the Second Schedule so as to enhance or reduce the rate of which royalty shall be payable in respect of any material with effect from such date as may be specified in the notification :Provided that the Central Government shall not enhance the rate of royalty in respect of any mineral more than once during any period of four years.
(3.) THE West Bengal Minor Minerals Rules, 1973 was made by the State of West Bengal in exercise of its power conferred upon it under Section 15 of the said Act. Rule 24 of the said Rules provides for procedure for grant of quarry permit which reads thus :-"Rule 24. Grant of Quarry Permits.- (1) THE District Authority or any officer authorised in this behalf by the State Government may grant, as per procedure laid down in Schedule III, quarry permits in Form F to any person to extract or remove from any specified land within the limits of his jurisdiction any mineral on pre-payment of royalty at the rate specified in the Schedule I.(2) Such quarry permit may be granted for a specified area not exceeding five acres and for a period not exceeding three months and for a quantity as may be specified by the District Authority or any officer authorised in this behalf by the State Government. The procedure, for grant of mining lease had been laid down in 3rd Schedule. Item No. 9 of the Schedule reads thus ;- "9. District Authority may, so far as they do not materially conflict with these instructions and subject to future directions of the Government, adopt any procedure and delegate so much of his power to such officer as he thinks fit for the purpose of better administration, revenue collection and less loss due to unauthorised workings." ;