1. The petitioner claims that by a registered Kobala, dated August 27, 1967, he purchased 9.26 acres of land appertaining to Plot No. 61 R.S Khatian No. 74 Mouza Santore, District Bankura. The said plot was recorded as an agricultural land in the R.S Records. The petitioner carries on business of manufacturing bricks. On December 26, 1966, he applied to the Additional District Magistrate, Bankura for granting him a Mining Lease under the West Bengal Minor Minerals Rules, 1959 for extracting earth for brick making from the aforesaid plot of land.
2. According to the petitioner, the authorities did not dispose of his said application for licence either by granting or refusing the same. On May 6, 1970, the Additional District Magistrate, Bankura by his Memo, No. 2309.E.A. served a notice upon the petitioner stating that it had come to his notice that the petitioner had manufactured bricks unauthorisedly by digging and using brick-earth of the plot No. 61 of Mouza Santore without obtaining any mining lease. The Additional District Magistrate directed the petitioner to show cause by June 2, 1970 why he shall not be prosecuted under Rule 25 of the West Bengal Minor Mineral Rules, 1959 and/or why damage compensation shall not be realised from him for unauthorised digging of brick-earth and manufacture of bricks (Annexure ‘B’ to the petition). The petitioner prayed before the Additional District Magistrate for granting him two months' time in the matter. On July 11, 1970, the Additional District Magistrate, Bankura issued another Memo, being No. 3399.E.A. in continuation of the aforesaid show cause notice, dated the 6th May, 1970 directing the petitioner to deposit Rs. 2,712.50 (Rupees two thousand seven hundred twelve and fifty paise) only as damage compensation in the Bankura Treasury (Annexure ‘C’ to the petition). The Additional District Magistrate by subsequent Memo dated August 14, 1970 directed the petitioner that if he failed to deposit the amount of damage compensation by August 25, 1970, certificate case would be filed against him for realisation of the amount. On August 7, 1970, the Additional District Magistrate Bankura issued Memo, No. 4227.E.A. purporting to be a notice to show cause under sub-section (2-A) of Section 4 of the West Bengal Land Reforms Act. 1955 to the petitions. The Additional District Magistrate in the said notice stated that it appeared that the petitioner had dug and used brick-earth of his holding in question for manufacture of bricks without the previous permission in writing of the State Government or the Additional District Magistrate authorised under sub-section (2-A) of the said section. He called upon the petitioner to show cause on or before August 25, 1970 why action shall not be taken against him under sub-section (2-B) of Section 4 of the West Bengal Land Reforms Act, 1955 viz. imposing a fine of Rs. 200 (Rupees two hundred) only shall not be imposed on him for each day during which the breach continued (vide Annexure ‘E’ to the petition). The petitioner in this Rule has challenged the vires of sub-sections (2-A) and (2-B) of Section 4 of the West Bengal Land Reforms Act, 1955. The petitioner's contention is that after the declaration of the Central Government under Entry No. 54, List I, Schedule 7 of the Constitution, the legislative competence of the State Government in respect of the mines and minerals, in particular regarding brick-earth was taken away. The provisions of sub-sections (2-A) and (2-B) of the West Bengal Land Reforms Act, according to the petitioner, are repugnant to Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957 and of the West Bengal Minor Minerals Rules, 1959 made by the State Government in exercise of its power conferred by sub-section (1) of Section 15 of the Act. The petitioner has also challenged the authority of the respondents to issue notices and memos (vide Annexures ‘B’ ‘C’ and ‘F’ to the petition).
3. There is no substance in the contention of the learned Advocate for the respondents that the petitioner is not entitled to maintain this writ petition. It is true that the petitioner submitted that he applied to the Additional District Magistrate, Bankura for granting him a mining lease in extracting brick-earth. But, the said application was made under the provisions of the West Bengal Minor Minerals Rules, 1959 and not in terms of Rules 3-A and 3-B of the West Bengal Land Reforms Rules. The petitioner did not dispute in this Rule that for extracting brick-earth a licence under the West Bengal Minor Minerals Rules, 1959 would be necessary. The petitioner is not estopped by reason of filing objection against the notices issued by the Additional District Magistrate, Bankura to show cause why he shall not be prosecuted under Section 4 (2-B) of the West Bengal Land Reforms Act, 1955 and why steps shall not be taken against him for realization of damage/compensation. Section 4(2-B) does not lay down that such show cause I notices shall be issued. Secondly, the petitioner in his communication to the respondents did not admit that he was required to obtain a permission in terms of Section 4 (2-A) (b) of the West Bengal Land Reforms Act or that he was liable to pay damage/compensation. Therefore, the petitioner is not estopped from challenging the vires of Section 4 (2-A) and Section 4 (2-B) of the Act.
4. The petitioner admittedly is a raiyat in respect of the aforesaid two plots and therefore he is entitled to hold the said two plots of lands for the purpose of agriculture (vide Section 2(10) of the West Bengal Land Reforms Act). Section 4 of the West Bengal Land Reforms Act, 1955 mentions the extent of the rights of raiyats in respect of their land's. Sub-section (1) of Section 4 makes the raiyats owners of their holdings subject to other provisions of the Act and also makes the rights of the raiyats heritable and transferable. Under the Bengal Tenancy Act, 1885, the raiyats held their lands for the purposes of cultivating, but they were not the owners of their lands.
5. Prima facie the owner of a surface of the land would be entitled ex jure to everything beneath the land and in the absence of any reservation in the grant minerals necessarily pass with the rights to the surface (vide Halsbury's Laws of England, 3rd Edition, Vol. 26, p. 325 and the observation of Ramaswami, J. in Raja Anand Brahma Shah v. The State of Uttar Pradesh, AIR 1967 SC 1081 at p. 1088).
6. But, sub-section (2) of Section 4 of the West Bengal Land Reforms Act, 1955 makes an express reservation regarding the sub-soil rights by providing that nothing in Sub-section (1) of Section 4 shall entitle raiyats to sub-soil rights. Thus, ownership of raiyats in respect of their holdings do not extend to the minerals underneath the surface of the holdings. The sub-sections (1) and (2) along with sub-sections (4) and (5) of Section 4 of the Land Reforms Act were brought into effect from the 7th June, 1965 by the State Government's Notification No. 8144 L. Ref., dated the 4th June, 1965. The West Bengal Land Reforms (Amendment) Act, 1965 (West Bengal Act XVIII of 1965) inserted sub-sections (2-A), (2-B) and (2-C) in Section 4. Thereafter, subsection (2-A) was further amended by the West Bengal Land Reforms (Amendment) Act, 1966 (Act XI of 1966). At the present, sub-sections (2-A) and (2-B) are as follows:
“(2-A). No raiyat shall—
(a) quarry sand, or permit any person to quarry sand, from his holding, or
(b) dig or use, or permit any person to dig or use, earth or clay of his holding for the manufacture of bricks or tiles, for any purpose, other than his own use, except with the previous permission in writing of the State Government and in accordance with such terms and conditions and on payment of such fees as may be prescribed.
(2-B) If any raiyat commits a breach of the provisions of sub-section (2-A), the prescribed authority may, after giving in the prescribed manner an opportunity to the raiyat to show cause against the action proposed to be taken, impose upon him a fine not exceeding (two thousand) rupees and, where the breach is a continuing one a further fine not exceeding (two hundred) rupees for each day during which the breach continues. Such fine, if not duly paid shall be recoverable as a public demand.”
7. The West Bengal Land Reforms Act was enacted to reform the law relating to land tenure consequent on the vesting of all estates and of certain rights therein in the State. The legislative competence of the West Bengal Legislature for enacting the said law was derived from Entry 18, List II of 7th Schedule of the Constitution.
8. The State Legislature's legislative competence to enact laws in respect of mines and mineral, development under Entry 23, List II is subject to the provisions of List I with respect to regulation and development under the control of the Union. Under Entry 54 of List I, the Parliament by making a declaration that it would be expedient in public interest to enact laws for ‘regulation of mines and mineral development’ can take under its control ‘regulation of mines and development of minerals’ to the extent provided.
9. Section 2 of the Mines and Minerals (Regulation and Development) Act, 1957 (Act 67 of 1957) contains a declaration to the said effect. Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957 (Act 67 of 1957) which came into force on and from the 28th December, 1957 empowered the State Governments to make rules for regulating grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith. Under Section 3 (e) of the Mines and Minerals (Regulation and Development) Act, 1957 ‘minor minerals’ mean building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral.
10. On the 1st June, 1958, the Government of India issued a Notification No. M-II-159 (18)/54-A/II in exercise of its power conferred by clause (e) of Section 3 declaring certain minerals to be minor minerals. The Division Bench of this Court in State of W.B v. Jagadamba Prasad Singh, AIR 1969 Cal 281 inter alia held that ‘ordinary earth’ for brick making was not ‘ordinary clay’, and therefore, the same could not be called a minor mineral. The said Division Bench Judgment is binding upon me. Therefore, I am unable to accept the submission made on behalf of the State that the ‘ordinary earth’ for brick making was declared to be a minor mineral by the aforesaid notification of the Government of India, dated the 1st June, 1958 under Section 3 (e) of the Act 67 of 1957. Further, the Central Government by its subsequent notification No. 1(2)/69-MII, dated the 22nd March, 1969 amended its earlier notification, dated the 1st June, 1958 by substituting the words ‘morrum brick-earth’.
11. The Governor of West Bengal in exercise of his power conferred under sub-section (1) of Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957 (Act 67 of 1957) has made the rules, called the West Bengal Minor Minerals Rules, 1959. I shall hereinafter refer to some of the provisions contained in the said Rules.
12. The principal point in this Rule is whether the West Bengal State Legislature by inserting sub-sections (2-A) and (2-B) in Section 4 of the West Bengal Land Reforms Act encroached into the legislative field carved out by a declaration of the Central Government under Section 2 of the Act 67 of 1957, read with Entry 54, List I of the 7th Schedule of the Constitution.
13. The Supreme Court in Baij nath Kedia v. The State of Bihar, (1969) 3 SCC 838 : AIR 1970 SC 1436 at p. 1446, para 24 while dealing with the scope of the said declaration observed:
“On the basis of those rulings we have held that the entire legislative field in relation to minor minerals had been withdrawn from the State Legislature.”
14. Hidayatullah, C.J (as he then was) in his judgment in (1969) 3 SCC 838 : AIR 1970 SC 1436 (supra) referred to two earlier Supreme Court decisions in Hingir-Rampur Coal Co. Ltd. v. State of Orissa, 1961-2 SCR 537 : (AIR 1961 SC 459 and State of Orissa v. M. A Tulloch and Co., (1964) 4 SCR 461 : (AIR 1964 SC 1284), Hidayatullah, C.J at page 1444 of the Report (paragraph 16) laid down:
“Where a superior legislature evinced an intention to cover the whole field, the enactment of the other legislature whether passed before or after must be held to be overborne. It was laid down that inconsistency could be proved not by a detailed comparison of the provisions of the conflicting Acts but by the mere existence of two pieces of legislation.”
15. Mr. P.K Sen Gupta, learned Advocate appearing on behalf of the State contended that the West Bengal Land Reforms Act, and the two amending Acts, namely, the West Bengal Land Reforms (Amendment) Act, 1955 and the West Bengal Land Reforms (Amendment) Act, 1966, were legislation relating to the rights in or over lands within the meaning of Entry 18, List II of 7th Schedule of the Constitution of India Mr. Sen Gupta, in this connection relied upon the observations of the Judicial Committee in Megh Raj v. Allah Rakhia, AIR 1947 PC 72. Lord Wright delivering the opinion of the Judicial Committee regarding the vires of the Punjab Restitution of Mortgaged Lands Act (Act IV of 1938) observed that the expression ‘land’ in Item No. 21 of List II of the Schedule VII of the Government of India Act, 1935 must receive the widest construction, unless for some reason it was cut down either by the terms of Item 21 itself or by other parts of the Constitution which has to be read as a whole. Rights in or over land would include general rights like full ownership or leasehold or all such rights and easements or other collateral rights, whatever form they might take. ‘Then follow words which are not words of limitation of explanation or illustration, giving instances which may furnish a clue for particular matter.’
16. Mr. P.K Sen Gupta submitted that by pith and substance the West Bengal Land Reforms Act was a legislation relating to land, and not regarding Regulation of Mines and Development of Minerals. The State Legislators while conferring ownership of the holding upon a raiyat was competent to lay down the incidence of such ownership and also restrict the right of the raiyats regarding sub-soil. Section 4(2) provides that the ownership of the raiyat will not entitle him to the sub-soil rights Clause (a) of sub-section (2-A) is really illustrative. Sub-section (2-A) (b) gives qualified and limited rights to the raiyats to use earth or clay of their holdings for manufacturing bricks or tiles. The terms and conditions prescribed under Sub-section (2-A) (b) and the provisions for payment of prescribed fees do not relate to the terms and conditions of granting leases of minor minerals. But, they embody the provisions which must be fulfilled by a raiyat for using earth or clay of his holding for manufacturing bricks for his own purpose.
17. Mr. Sen Gupta submitted that the West Bengal Land Reforms Act both in form and in substance was a law relating to land. Therefore, mere incidental encroachment on topics not within the legislative competence of the State Legislature would not affect the vires of the Act. Reliance was placed on the observations of the Federal Court in United Provinces v. Atiqua Begum, AIR 1941 FC 16 : the Supreme Court decisions in State of Bombay v. F.N Balsara, AIR 1951 SC 318 : in The State Of Madras v. Gannon Dunkerley & Co., (Madras) Ltd, AIR 1958 SC 560 at page 574 and in A.S Krishna v. State of Madras, AIR 1957 SC 297.
18. It is necessary to ascertain the scope and effect of the Section 4 (2-A) (b) and whether it directly provides for matters covered by the declaration of the Central Government under Section 2 of the Mines and Minerals (Regulation and Development) Act, 1957. Under Section 4(2) raiyats have been denied right to subsoil of their holdings. Therefore, clauses (a) and (b) of sub-section (2-A) of Section 4 in so far as they provide that raiyats shall not be entitled to quarry sand or to dig or use earth or clay of their holdings for manufacture of bricks for purposes other than his own, it may be contended that the same are legitimate matters to be provided in Section 4 of the West Bengal Land Reforms Act which lays down the extent of rights of raiyats in respect of lands comprised in their holdings. But, Section 4 (2-A) (b) further provides that a raiyat will be entitled to dig or use or permit any person to dig or use earth or clay of their holdings for manufacture of bricks and tiles in their own purposes. But before digging brick earth they must obtain permission in writing from the State Government and (ii) dig and use earth or clay in accordance with the prescribed terms and conditions and on payment of prescribed fees.
19. In other words, the latter part of clause (b) of sub-section (2-A) of Section 4 purports to authorise the State Government to prescribe by rules the terms and conditions of digging and using of earth and clay in the holding of raiyats for manufacture of bricks and tiles. The State Government has been also authorised to prescribe fees for granting of permission for such user and digging of earth or clay for brick making. ‘Brick earth’ is a ‘minor mineral’ as defined by Section 3 (e) of the Mines and Minerals (Regulation and Development) Act, 1957, read with the notification of the Central Government. Under clause (d) of Section 3 ‘mining operations’ means:
“any operations undertaken for the purpose of winning any mineral.” The digging or using of earth or clay of the holding of raiyat for manufacture of bricks clearly would come within the aforesaid wide definition of the ‘mining operations’.
20. In this context, reference may be made to the provisions of Rules 3-A and 3-B of the West Bengal Land Reforms Rules, 1965. Same provide for submission of verified application by a raiyat intending to quarry sand or to dig or use either himself or through another addressed to the Additional District Magistrate through the Land Reforms Officer. The Rules also provide for enquiry by the Junior Land Reforms Officer in the manner laid down in Rule 3-B. The Sub-Divisional Land Reforms Officer while forwarding the report to the Junior Land Reforms Officer is also required to express his own views. Rule 3-B enumerates the cases where permit for quarrying sand or for digging or using brick earth shall not be granted. Under sub-rule (4-a) of Rule 3-B a raiyat quarrying sand or digging or using any earth or clay must obtain a lease under the Mines and Minerals (Regulation and Development) Act. 1957. Clause (f) of sub-rule (4) provides for cancellation of permission under Section 4(2-A) (b) for breach of the conditions set out to Rule 3-B of the West Bengal Land Reforms Rules, 1955.
21. In my view, these provisions directly and substantially relate to grant of permission for undertaking mining operations by a raiyat for quarrying sand or for digging or using earth or clay for brick making. The West Bengal Minor Minerals Rules, 1959 made under Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957 also contain the different conditions for mining leases in respect of minor minerals including sand and brick earth (vide Rule 17 of the Minor Minerals Rules, 1959). Model form for mining lease of minor minerals has been printed in Appendix ‘B’ of the West Bengal Minor Minerals Rules, 1959.
22. Rule 26 of the West Bengal Minor Minerals Rules, 1959 exempts the following persons from taking out licences under the said Rules - a person extracting minor minerals from his own land for use (i) in any cottage industry owned by the licensee; (ii) use of minor minerals for personal use subject to the conditions imposed by the State Government.
23. The State Government by Notification No. 4199-MP, dated the 25th September, 1960 has made rules for extraction of minor minerals for cottage industry owned by the licensee, or for personal use or any other purpose. It may be noted that provisions of Rule 26 are not exactly identical with those of Section 4 (2-A) (b). The State Act and the Central Act provide two parallel sets of provisions regarding mining of brick earth.
24. But both sets of provisions, namely, Section 4 (2-A) (b) of the West Bengal Land Reforms Act read with Rules 3-A and 3-B of the West Bengal Minor Minerals Rules, 1959 purport to cover the same field. If both sets of provisions be made simultaneously applicable one cannot rule out the possibility of conflict and contradiction. It is possible to visualise a situation where the permission granted under Section 4 (2-A) (b) might have been cancelled by the Additional District Magistrate while the licence obtained under the West Bengal Minor Minerals Rules to excavate or use earth or clay of his holding for brick making by merely fulfilling the prescribed terms and conditions and by paying fees under the said law. Thus obedience of one set of provisions contained in West Bengal Land Reforms Act may result in disobedience of the other set of Rules. Thus, direct conflict might arise between the provisions of the State Act and those of the Central Act.
25. The prescribed terms and conditions for granting a permission under Section 4 (2-A) (b) in pith and substance are regulatory measures regarding digging or using earth or clay from holdings of raiyats. I have already observed such excavation or user of earth or clay comes within the meaning of the expression as ‘mining operations’. After the declaration of the Central Government by Section 2 of the Mines and Minerals (Regulation and Development) Act, 1957 the State Legislature lost its power to provide for such regulation of mining operations by raiyats. Although the West Bengal Land Reforms Act including Section 4(1) purports to contain measures relating to land, but the insertion of Section 4 (2-A) (b) was not appropriate because in substance the said clause (b) purports to provide for terms and conditions and payment of fees before a raiyat can undertake mining operations for excavating or using earth or clay for brick making. This would not be a case of incidental entrenchment. As already stated the Section 4 (2-A) (b) purported to prescribe the terms and conditions of the Mining operations by a raiyat for winning earth or brick earth in brick making.
26. The Section 4 (2-A) (b) so far as it prohibits a raiyat from excavating or using either himself or through others earth or clay for brick making it may be said to be ancillary to the provisions of sub-sections (1) and (2) of Section 4 which defines the extent of the rights of a raiyat qua owner of his holding. But the State Legislature by empowering the rule making body to prescribe the terms and conditions for grant of permission to excavate for use of earth or clay in brick making clearly exceeded its legislative competence. After the declaration of the Central Government under Section 2 of the Mines and Minerals (Regulation and Development) Act, 1957 the entire field relating to mines and minerals came to be occupied by the Parliament. The State Government only as a delegated authority has been empowered to prescribe rules relating to minor minerals. But the State Legislature is no longer capable of enacting a law of its own relating to minor minerals.
27. Therefore, the observations of the Supreme Court in (1969) 3 SCC 838 : AIR 1970 SC 1436 (supra) regarding absence of legislative competence on the part of the Bihar Legislature to amend the Bihar Land Reforms Act by adding Second proviso to sub-section (2) of Section 10 of the Bihar Land Reforms Act are equally applicable to the instant case. Different parts of Section 4 (2-A) (b) are not severable. Therefore, although the State Legislature might have been competent to provide that a raiyat who has no right in the sub-soil of his holding shall not be entitled to excavate or dig earth, it could not have provided for terms and conditions for granting of permission for excavation and user of brick earth by raiyats. Therefore, Section 4 (2-A) (b) must be struck down as ultra vires.
28. Sub-section (2-B) provides for imposition of fine upon a raiyat who commits breach of provisions of clauses (a) and (b) of sub-section (2-A). In the instant case, the question whether Section 4 (2-B) is intra vires or not does not arise for decision. Therefore, I am not in a position to strike down Section 4 (2-B). But I make it clear that as the State Government was not competent to prescribe the terms and conditions for digging or using earth or clay from the holding of a raiyat for manufacture of bricks or tiles, proceeding for imposition of fine for breach of such terms and conditions or demand for payment of fees would be illegal.
29. Mr. Roy, learned Advocate appearing on behalf of the petitioner has also argued before me that Section 4 (2-B) makes breach of provisions of Section 2-A an offence within the meaning of Section 5 of the Cr PC. According to Mr. Roy, therefore, any proceeding for imposition of fine under subsection (2-B) must be according to the procedure of the trial laid down in the Code of Criminal Procedure. It is not necessary for me to pursue the point as I have held that Section 4 (2-A) (b) is ultra vires and that the respondents are not entitled to impose fine upon the petitioner for breach of Section 4 (2-A) (b).
30. Rule 25 of the West Bengal Minor Minerals Rules, 1959 lays down:
“Any person extracting any minor minerals without a proper lease or license granted under these rules or in contravention of the provisions of Rule 26 shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both, and in the case of a second or subsequent offence, with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both.”
31. In the instant case, the petitioner applied for grant of a licence of a lease under the West Bengal Minor Minerals Rules. 1959. But, in fact, no licence was granted in his favour. The petitioner is not holder of a lease under the Minor Minerals Rules, 1959 and although I am making the Rule absolute in part, I do not thereby find that he has any right to dig or use earth or clay for brick making without obtaining licence under the West Bengal Minor Minerals Rules, 1959. But I also make it clear that in case the petitioner is ultimately prosecuted under Rule 25 of the West Bengal Minor Minerals Rules, 1959, he would be entitled to take such defences as may be open to him. There is no provision in the West Bengal Minor Minerals Rules for issue of a show cause notice before launching a prosecution under Rule 25.
32. The Additional District Magistrate, Bankura erroneously referred to Section 4(1) of the Mines and Minerals (Regulation and Development) Act, 1957 in his notice dated the 6th May, 1970 (vide. Annexure ‘B’ to the writ petition) as Section 4(1) has no application to minor minerals.
33. It is not clear on what basis sum of Rs. 2,712.50 was computed as damage/compensation (vide Annexures ‘C’ and ‘D’ to the writ petition). I have held Section 4 (2-A) (b) of the West Bengal Land Reforms Act as ultra vires. Therefore, the notice issued under Section 4 (2-A) (b) by the Additional District Magistrate, Bankura (vide Annexure ‘E’ to the petition) should be struck down.
34. I accordingly make this Rule absolute in part. Let a writ of certiorari issue quashing the show cause notice, dated the 7th August, 1970 issued by the Additional District Magistrate, Bankura (vide Annexure ‘E’ to the writ petition). Let a writ of mandamus also issue commanding the respondents to forbear from giving effect to the provisions of Section 4 (2-A) (b) of the West Bengal Land Reforms Act against the petitioner. The order passed in this Rule would be, how ever, without prejudice to the rights and contention of the parties under the West Bengal Minor Minerals Rules, 1959.
35. There will be, however, no order as to costs.
36. Operation of this order be stayed for 5 weeks.
37. Order accordingly.
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