Asit Kumar Modak and ors. Vs. State of West Bengal and anr. - Court Judgment

Excerpt:
- mining direction to state government to consider all applications afresh in light of interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules main issue : whether the state government's recommendation dated 06.12.2004 and the proceedings of the chief minister are contrary to the provisions of section 11 of the act and rules 59 and 60 of mc rules and not valid in law. a perusal of the proceedings of the chief minister shows that no clear reasons were given to show as to why jindal and kalyani were preferred over other applicants.[para 18]--the proceedings of the chief minister, at no level, consider the various guiding criteria mentioned in section 11(3)[para 19] b) whether the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- applications made prior to the notification cannot be entertained because they are premature.[para 21] if such premature applications are allowed to be entertained, it would result in the state government giving out mining leases to favoured persons without notice to the general public.[para 53] c) whether the order of the high court of karnataka in ziaulla sharieff's case permit the consideration of the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. the order of the high court of karnataka in ziaulla sharieff's case does not permit the consideration of jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) whether rule 35 of the mc rules justify the recommendation of the state government in favour of the respondents-jindal and kalyani -- as discussed above, rule 35 only permits the state government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) whether the criterion of "captive consumption" referred to in tata iron and steel co. ltd. vs. union of india, (1996) 9 scc 709, have any application in this case despite not being one of the factors referred to in section 11 (3) of the mmdr act or rule 35 of the mc rules -- we have already held that section 11(3) specifies the matter relevant for purposes of second proviso to section 11(2). we also referred to the committee's report. in accordance with the recommendation in the said report, section 11(3)(d) was added as part of the substitution of section 11 in the year 1999. sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". even the residuary clauses in section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. this is fortified by decision of this court in bsnl ltd. & anr. vs. bpl mobile cellular ltd. & ors., (2008) 13 scc 597, para 45.[para 35] f) whether factors such as the past commitments by the state government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the mmdr act and the mc rules constituting a complete code -- it is not open to the state government to justify grant based on criteria that are de hors to the mmdr act and the mc rules. the exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. it is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] in view of the specific parliamentary declaration as discussed and explained by this court in various decisions, there is no question of the state having any power to frame a policy de hors the mmdr act and the rules.[para 25] central and the state government act as mere delegates of parliament while exercising powers under the mmdr act and the mc rules.[para 27] g) whether the recommendation in favour of respondents-jindal and kalyani saved by the operation of the law of equity. the law of equity cannot save the recommendation in favour of jindal and kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. this principle was clearly stated by this court in the cases of kedar lal vs. hari lal sea, (1952) scr 179 at 186 and raja ram vs. aba maruti mali (1962) supp. 1 scr 739 at 745. it is clear that where the field is covered expressly by section 11 of the mmdr act, equitable considerations cannot be taken into account to assess jindal and kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) whether the learned single judge as well as the division bench are justified in arriving at such conclusion. though the learned single judge in his order dated 07.08.2008 quashed the communication/recommendation of the state government dated 06.12.2004 proposing to grant mining lease to jindal and kalyani, however, the learned single judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire notification no. ci.16:mmm.2003 dated 15.03.2003. in our view, while approving earlier part of his order and quashing the communication/recommendation of the state government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the act and the rules. the said observations/directions are deleted.[para 55] the division bench has erred in concluding that the jindal's application made prior to the notification can be entertained along with the applications made pursuant to the said notification because it is not section 11(4) which covers the said notification under rule 59(1) but the first proviso to section 11(2). as a matter of fact, the division bench did not even mention section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single judge hinged on how section 11(4) would be rendered otiose and redundant if the first proviso to section 11(2) was taken as governing the consideration of applications under a notification pursuant to rule 59(1) [para 52] i) whether it is advisable to remit it to the central government. [para 6] the central government considers only the materials forwarded by the state government along with its recommendation. as rightly pointed out, if the recommendation of the state government cannot be upheld in law, all consequential orders including the subsequent approval by the central government are also liable to be quashed. we reject the request for remitting the matter to the central government for its decision. --[para 56] held : in the light of the above discussion, the impugned order of the division bench of the high court dated 05.06.2009 in writ appeal no. 5084 of 2008 and allied matters as well as the decision of the state government dated 26/27.02.2002 and the subsequent decision of the central government dated 29.07.2003 are quashed. we direct the state government to consider all applications afresh in light of our interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules and make a recommendation to the central government within a period of four months from the date of receipt of the copy of this judgment. it is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the state government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. the state government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. all the appeals are allowed to the extent mentioned above. no costs.[para 57,58]dipankar datta, j.1. it is revealed from the petition that the first petitioner is the lessee in respect of a plot of land measuring little more than 5 cottahs, bearing no. b10/132 at kalyani township (hereafter the said plot). the government of west bengal is the lessor.2. the first petitioner by a writing on plain paper dated 4.12.2007, addressed to the estate manager, respondent no. 2, sought for permission to transfer the leasehold interest of the said plot along with construction made thereon in favour of the second and the third petitioners. it was indicated therein that the first petitioner was facing family trouble as well as financial hardship which led him to decide in favour of such transfer. for the purpose of transfer processing fees, the first petitioner had deposited rs. 500/- with the treasury on 11.12.2007.3. the petition further reveals that the petitioners had submitted a joint application dated 20.12.2007 seeking permission of the respondent no. 2 for transfer of the leasehold interest in the said land in favour of the second and third petitioners.4. the respondent no. 2 by his memo dated 12.5.2008 conveyed to the petitioners that their prayer for permission to transfer leasehold interest of the said plot was under consideration of the government and that they were required to deposit of rs. 8,98,125/- only as transfer permission fees in terms of notification dated 18.12.2007.5. it is noted that by the notification dated 18.12.2007, the principal secretary to the government of west bengal, urban development department had notified the revised rates of fees for transfer of leasehold right of different categories of land at kalyani township. in so far as residential plots is concerned, the notification provided as follows:sl. no.type of plotrate per cottaha)commercialrs. 2,00,000b)industrialrs. 1,50,000c)residential:i) less than 3cottahsii) between 3 & 4 cottahsiii) above 5 cottahs1/2 of the land value1/2 ofthe land value same as land value 6. the second and the third petitioners by their representation dated 19.5.2008 informed the respondent no. 2 that the application for permission seeking transfer had been filed before issuance of notification dated 18.12.2007 and thus they solicited reconsideration of the issue in respect of deposit of transfer permission fees as per old rate. however, the respondent no. 2 by his letter dated 18.6.2008 again conveyed to the first petitioner that the urban development department had ordered to realise transfer permission fees as per revised rate and, therefore, he was called upon to deposit transfer permission fees as per office order dated 12.5.2008 referred to above.7. questioning the decision of the respondents to demand transfer permission fees at the revised rates, this petition dated 26.6.2008 was presented before this court by the petitioners praying for, inter alia, the following relief:a) a writ in the nature of mandamus directing the respondent no. 2 to accord permission of the application for transfer as submitted by the petitioner no. 1 in favour of the petitioner no. 2 & 3 in respect of the plot no. b-10/132, kalyani, nadia without demanding transfer permission fees in terms of the government notification no. 4247/ud/o/m/k&p;/k/l-2/05 dated 18.12.07 in any manner whatsoever;b) a further writ in the nature of mandamus direction the respondent no. 1 & 2 to grant transfer permission in terms of govt. notification no. 2401- ud/o/m/k&p;/k/l-1/2005 dated the 12.07.2005. and further writ in the nature of mandamus directing the respondentno.3 to allow the petitioner no. 1 to execute and register a deed of transfer in favour of the petitioner no. 2 & 3 forthwith without demanding any formal permission from the respondent no. 2;c) a writ in the nature of prohibition prohibiting the respondent authority from taking any adverse step or steps, order or orders against the claim of the petitioner.8. the court directed exchange of affidavits while admitting the petition. it has since been finally heard on affidavits.9. from the counter affidavit of the respondents it appears that by notification dated 30.1.2009, published in the kolkata gazette dated 12.2.2009, a partial modification of the notification dated 18.12.2007 was sought to be made. insofar as residential plots measuring 5 cottahs and above are concerned, it was notified that rate of transfer fees would be 40% of the land value.10. soon thereafter, the respondent no. 2 informed the first petitioner by his memo dated 1.9.2009 the decision of the department that he would have to pay reduced transfer permission fees, i.e. rs. 3,59,250/- instead of rs. 8,98,125/-. a request was made to withdraw this petition if the first petitioner was willing to pay the revised transfer fees.11. mr. chattopadhyay, learned advocate for the petitioners contended that the demand for payment of rs. 3,59,250/- towards transfer permission fees is also without jurisdiction. according to him the initial application seeking permission to transfer leasehold interest of the said plot having been made on 4.12.2007, neither notification dated 18.12.2007 nor notification dated 30.1.2009 referred to above would be applicable since both ordain that the revised rates would take immediate effect meaning thereby that the terms thereof would operate prospectively and not retrospectively. he referred to notification dated 12.7.2005 on the subject of withdrawal of restrictions on transfer of plots of land in kalyani township and making provision for realization of transfer fee in respect of granting permission for transfer. according to him, this being the relevant notification existing on the date the first petitioner made the application dated 4.12.2007 the respondents ought to have followed the same for determining transfer permission fees. insofar as residential plots measuring more than 5 cottahs are concerned, the notification prescribes the rate of permission fee as 'half the existing rate of salami', and the first petitioner having paid rs. 3951.75p towards premium or salami prior to allotment of the said plot on lease, 50% of the said sum should constitute the permission fees for transfer. since the revised fees for permission to transfer leasehold right were determined and notified for information of the general public after 4.12.2007, the respondents in terms of the registered lease deed are entitled to claim nothing more than what has been mentioned in the notification dated 12.7.2005. he, accordingly, prayed for appropriate order on the respondents to correctly determine the permission fees for transfer to enable the petitioners take follow up steps in accordance with law.12. mr. chowdhury, learned advocate for the respondents, while opposing the petition contended that the prayer for permission to effect transfer dated 4.12.2007 is non-est in the eye of law. the prayer was made on a plain paper and, therefore, did not merit consideration. the first petitioner was required to apply for permission in the prescribed format which he did on 20.12.2007 and, therefore, notification dated 18.12.2007 would govern such application. accordingly, he prayed for disposal of the petition with a direction upon the first petitioner to deposit rs. 3,59,250/- as transfer permission fees if at all he is interested in proceeding further with the application dated 20.12.2007.13. having heard learned advocates for the parties, the first question that arises for determination is whether the application dated 4.12.2007 made by the first petitioner is non-est, as contended by mr. chowdhury or not. depending on the answer to this question, it would fall for consideration of the court as to whether the petitioners would be required to deposit transfer permission fees in terms of notification dated 12.7.2005 or in terms of notification dated 18.12.2007, since modified by notification dated 30.1.2009.14. mr. chowdhury has expressed his inability, while replying to a query of court, to place any statutory provision or contractual term in the registered lease deed which requires a lessee to apply for permission to effect transfer of leasehold interest by making application in the prescribed format. by the notification dated 12.7.2005, restrictions which were hitherto before existing in respect of granting permission for transfer of plots of land in kalyani township leased out by the government were withdrawn. there is no provision therein obliging the lessee to make application in prescribed format. all that is required in connection with making an application is contained in clause 3 thereof which reads as follows:prior to effecting such transfer, the transferor shall make an application to the authority disclosing the name of the proposed transferee and also undertake to pay the prescribed permission fees on grant of permission and the proposed transferee shall in like manner in paragraph 2 above and also stating that he/she will abide by the other terms and conditions of the lease mentioned in the deed of lease.15. it is settled principle of law that if the government intends its subjects to abide by a particular law/rule/stipulation, the same must be notified for information. in the event the prescribed format referred to by mr. chowdhury had indeed been part of a statute, the same would have assumed the status of a statutory form. that is not the case here. the notification dated 12.7.2005 also did not specify any prescribed format for making an application seeking permission to effect transfer of leasehold interest of a plot of land. therefore, if a lessee intends to transfer leasehold interest of any plot of land in kalyani township he is not, in terms of the notification dated 12.7.2005, required to apply in any specific format or prescribed format as contended by him. if an application or prayer is made, even on plain paper but contains the particulars as stipulated by clause 3 supra, the application cannot be refused on the specious ground that it is not in the specific format or the prescribed format. this court, therefore, overrules the objection of mr. chowdhury that the application is non-est.16. it now merits consideration as to whether the application dated 4.12.2007 made by the first petitioner fulfills the requirements of clause 3 supra or not. in terms thereof, it is a condition that the transferor (here the first petitioner) is required not only to disclose the name of the proposed transferee (here the second and the third petitioners) but he is also required to give an undertaking to pay the prescribed permission fees on grant of permission. it appears from the application dated 4.12.2007 that although the first petitioner disclosed the names of the second and the third petitioners as the proposed transferees, he did not undertake to pay the prescribed permission fees on grant of permission. instead, it appears, he had submitted four copies of challan in t.r. form no. 7 for necessary endorsement to deposit rs. 500/- towards transfer processing fees. also, there was no undertaking given by the proposed transferees in respect of condition mentioned in paragraph 2 to the effect that they would construct house on the plot of land to be transferred in their favour within 3 years from date of transfer, if not already constructed by the transferor.17. on the contrary, it would appear from the application dated 20.12.2007 that it is a printed format, the dotted portion whereof is required to be filled up with relevant particulars. the dotted portions were duly filled up by the first petitioner as transferor and the second and the third petitioners as the proposed transferees. the first petitioner undertook to pay transfer permission fees on grant of permission and the proposed transferees also undertook to complete construction of residential house on the said plot within three years from the date of mutation thereof in their favour. if the statement in the petition that the first petitioner intended to transfer leasehold interest of the said plot alongwith construction thereon is correct, the second and the third petitioners were not required to give any undertaking in terms of clause 2. however, nothing turns on it since it is clear that the application dated 4.12.2007 made by the first petitioner was incomplete and not liable to be acted upon.18. additionally, it appears from paragraph 7 of the petition that the petitioners had visited the office of the respondent no. 2 and it is the admitted position on facts that they had submitted the prescribed transfer application form on 20.12.2007. the petitioners on their own showing, therefore, were aware of the format for filing an application for transfer. indeed, having submitted application complete in all respects only on 20.12.2007, the same was required to be considered in terms of the notification dated 18.12.2007 and not by the one dated 12.7.2005.19. in view thereof, this court holds that the respondents did not commit wrong in initially demanding rs. 8,98, 125/- towards transfer permission fees and thereafter reducing the demand to rs. 3,59,250/-, presumably in view of the notification dated 30.1.2009.20. the petition stands dismissed. however dismissal of this petition shall not preclude the petitioners to deposit rs. 3,59,250/- towards transfer permission fees and on such deposit being made, the respondents shall proceed to grant permission in accordance with law if other formalities are complied with by the petitioners.21. there shall be no order as to costs.22. urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.