Abhoy Ghosh vs State Of West Bengal. & Ors.

The writ petition is moved on service. Aff-idavit of service is kept on record. The respondent State and its officers are represented. Long before the

new Rules of 2016 relating to minor minerals, framed by the West Bengal Government came into effect, the writ petitioner was admittedly granting a

mining lease under a duly executed and binding lease deed of August 21, 2013. This was for a period of five years. This was a lease which was

capable of being renewed by reason of express covenant in the writ petition. In the writ petition, at page 55 clause 5 of Part IX, the lessor State

Government made the following provision:

“Failure on the part of the Lessee to fulfill any of the terms and conditions of his lease shall not give the State Government any claim against the

Lessee or be deemed a breach of this lease, in so far as such failure is considered by the said Government to arise from force majeure, and if through

force majeure the fulfilment by the Lessee of any of the terms and conditions of this lease be delayed, the period of such delay shall be added to the

period fixed by this lease. In this clause the expression ‘force majeure’ means act of God, war insurrection, riot, civil commotion, strike,

earthquake, tide, storm, tidal wave, flood, lightning explosion, fire and other happenings, which the Lessee could not reasonable prevent or control.â€​

It appears from the documents annexed to the writ petition, particularly the possession certificate appearing at page 68 of the writ petition, that the

leasehold was not handed over to the writ petitioner until August 11, 2015, which is to say, almost 2 years after the lease deed was executed. The

record does not show that this was due to any fault of the writ petitioner. Neither does the record show that the writ petitioner could reasonably

prevent this or control the State of West Bengal in the matter of this delay. However, by reason of this fault on the part of the State of West Bengal,

the writ petitioner could not utilize two out of the five years for which the lease was granted. Therefore, the writ petitioner was entitled at least to

addition of this time to the period of his lease. It ought to have been automatically added to the period of the lease by way of Clause 5 of Part IX of

the lease deed quoted above.

The writ petitioner however, applied for renewal of the said lease instead of seeking to enforce the said force majeure clause. This was in Form D, in

due form as appears from page 71 of the writ petition. It was accompanied by a representation dated August 4, 2017, before the expiry of the original

lease, explaining the reasons why the writ petitioner could not utilize the said full period of the lease, including in the second paragraph, the facts about

the delay of the respondent State in handing over possession of the said leasehold.

This application was however treated as an application for extension of the lease, though in law it is clear that a renewal is not the same as an

extension. The former requires a formal deed to be executed while the latter does not require it. Why the respondent no. 3, to whom the authority to

was delegated by the respondent no. 2, treated this application for renewal as an application for extension, I do not understand. Nor does the record

show the reason. Neither could the Learned Advocate for the State Respondents, explain it. After treating it as an application for extension, the

respondent no. 3 rejected the application on the ground that in order to constitute force majeure, the lessee must show that the force majeure condition

continued for more than one year for which the lessee could not run the lease. This is the order dated August 18, 2017 at page 75 of the writ petition.

However, from the admitted position on record, possession itself was not handed over by the State authorities to the writ petitioner before more than

one year and almost two years had passed from the date of execution of the deed of lease. So, on the face of the records the respondent no. 3

rejected the application of the writ petitioner by the order dated August 18, 2017, on the basis of findings of fact which are contrary to the materials on

record. That is why it was considered that the prayer for extension could not be considered according to the provisions of Rule 21 of the West Bengal

Minor Mineral Concession Rule, 2016.

On the face of it, the findings are thus perverse within the meaning of law. The order based on them, therefore, cannot be sustained. The writ

petitioner made a detailed representation against the order, which is at page 76 of the writ petition. It also discloses that the writ petitioner paid all fees

and complied with all formalities. The respondents have not disputed this. During the pendency of this writ petition, which was affirmed on February 1,

2018, the respondent no. 3 replied to the representation of the writ petitioner at page 76 by a laconic order dated February 12, 2018 inter alia informing

the writ petitioner that the writ petitioner’s “application cannot be entertained at this stage as the district authority has decided not to allow any

extension as it will cause huge loss of Govt. Revenueâ€​. I gave leave to the writ petitioner to use a supplementary affidavit to bring this on record.

I know of no law which allows a respondent authority exercising jurisdiction to refuse to entertain the application of a supplicant claiming a legal right.

He may certainly reject the representation on cogent grounds, but he must entertain and dispose of it, even if only to say that he has no jurisdiction,

again, on cogent grounds. The said order is therefore a clear failure to exercise jurisdiction as also an act wholly without jurisdiction on the face of the

records. It shows scant regard of the rights of the petitioner to have a reasoned order, which is protected as a part of natural justice, under Article 14

of the Constitution of India which is a right guaranteed under Part III of the Constitution of India. This order too, cannot stand.

Of course, it was contended that the original writ petition, as framed, did not contain any challenge to the order dated February 12, 2018. Yet, since

the order was not passed till the writ petition was filed, I cannot penalize the writ petitioner for failing to do that which was impossible. The matter has

been sufficiently explained by the supplementary affidavit. I think that the jurisdiction under Article 226 of the Constitution of India is plenary and as a

Superior Court of Record, I have sufficient inherent powers, to cure injustice in accordance with law, when it is brought on record before me. It has

been so done in this case by the supplementary affidavit and the facts mentioned therein have not been, as they -could not have been, disputed.

I am fortified in my views by a decision of a coordinate Bench of this Court. In WP No.19401 (W) of 2017 [Sayed Mominuddinâ€" vâ€"The State of

West Bengal and Others], this Court has passed an order in substantially similar circumstances and on similar facts and questions of law relating to

force majeure in such sand quarrying leases. His Lordship was pleased to hold, among other things, as follows:

“I have carefully considered the provisions of Rule 21 of the West Bengal Minor Mineral Concessions Rules, 2016 and have also heard the writ

petitioner and the State authorities. The said ‘Force Majeure’ clause set out hereinabove has survived beyond the date of coming into force of

the 2016 Rules. The 2016 Rules came into force on July 29, 2016. The lease in question alongwith the aforesaid Force Majeure clause has survived

until May, 2017. Such clause does not contemplate loss of user of the leasehold land to be continuous for a period of one year. A similar clause is

available in the draft lease set out in the Rules of 2016.

Hence, in my view, the writ petitioner is entitled to make such prayer for the lost time, to be added on to the original lease since renewed on May 17,

2012. The order no.3, dated July 3, 2017, passed by the District Magistrate, Purba Burdwan is set aside. The said District Magistarte, Purba Burdwan

is directed to revisit the application for extension or addition of period to the renewed lease, once again. Such revisit or consideration of the District

Magistrate shall be done within a period of six (6) weeks from the date of communication of this order.â€​

The writ petitioner here, is on a better footing, since he can show continuous operation of the force majeure conditions for almost two years. Being

coordinate, I cannot differ from the said judgment of the coordinate bench and am bound by it. Accordingly, for all those reasons, first, the impugned

orders dated August 18, 2017 and February 12, 2018 passed by the respondent no. 3 which are impugned herein, are set aside, and quashed. In terms

of the directions given by the coordinate bench as aforesaid, the respondent no. 3 and/or the respondent no. 2 as the case may be, shall consider and

dispose of the application of the writ petitioner as at page 76 of the writ petition afresh, treating it as an application for addition of the period during

which the force majeure condition continued, to the lease which was to expire on August 20, 2018, in the light of this judgement and the judgement of

the coordinate bench referred to above, whose copy was produced before this court and which is retained with the records.

The said respondent will not consider any of the grounds contained in the orders which are set aside. He shall give the writ petitioner adequate

opportunity of being heard, and thereafter pass a reasoned order, in accordance with law. The entire process must be completed as expeditiously as

possible, but in no case later than four weeks from the date of communication of this order, in view of the fact that the lease is due to expire on

August 20, 2018. The decision of the said respondent will be communicated to the writ petitioner no later than 7 days from the date it is taken. The

periods mentioned above are peremptory and mandatory.

Since I have not called for any affidavits in the matter, and have proceeded on the basis of admitted facts, the allegations contained in the writ petition,

apart from the said facts recorded by me to be admitted, are not admitted by the respondents. The writ petition is thus allowed as aforesaid. There will

be no order as to costs.