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Present: The Hon'Ble Justice Biswanath Somadder and The Hon'Ble Justice Moushumi Bhattacharya
Present: The Hon'Ble Justice Biswanath Somadder and The Hon'Ble Justice Moushumi Bhattacharya
Present:
The Hon’ble JUSTICE BISWANATH SOMADDER
and
The Hon’ble JUSTICE MOUSHUMI BHATTACHARYA
Versus
Heard on : 16.11.2017
Delivered on : 21.12.2017
Moushumi Bhattacharya, J. :
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The appellants have challenged a judgment and order dated 16th May,
2017 whereby the writ petition filed by the appellants being W.P. 24350(W) of
In the writ petition, the appellants had challenged two letters dated 18th
June, 2015 and 1st December, 2015 issued by the Commerce and Industries
provisions of the Companies Act, 1956 and is engaged in the business of,
On 24th March, 2005, the appellant No.1 made two applications before the
mining Officer-in-Charge, Purulia Zone (the respondent No.8) for mining leases in
Purulia, West Bengal, for mining of Apatite (Rock-phosphate) mineral under the
Mines and Minerals (Development and Regulation) Act, 1957 (the Act). The
receipt of these applications was duly acknowledged by the Inspecting Officer and
Department, Mines Branch (respondent No.5) requested the District Land and
the respondent No.7 to the respondent No.8 by way of a land availability report.
On 21st December, 2006, the respondent No.5 called the petitioner No.1 and West
for a hearing in connection with their respective applications for mining lease. By
a letter dated 9th January, 2007, the petitioner No.1 inter-alia mentioned that the
petitioners were eligible for grant of mining lease since there was no subsisting
mining lease granted against the plot applied for by the petitioners in terms of
the Act and further, that the petitioners had a preferential right for grant of
mining lease in terms of Section 11 of the Act. By a letter dated 18th February,
2008, the respondent No.5 informed the petitioners that in a meeting held on 4th
December, 2007, it had been decided that the lease may be granted to the
agreement is effected between the petitioner No. 1 and respondent No. 9, though
the mining activities would be carried out by the petitioner No.1 and retention
charges would be given to the respondent No. 9. It was also suggested that after
effecting the said agreement, long term mining lease would be granted in favour
of the petitioner No. 1. By letters dated 28th May, 2008 and 27th June, 2008, the
respondent No. 5 sought information from the respondent No. 9 whether any
agreement had been reached with the petitioner No. 1 and the respondent No. 9
for settling the issue of grant of long term mining lease as was discussed in the
meeting held on 4th December, 2007. A meeting was held on 5th November, 2008
arrangements for grant of mining leases in the presence of the respondent Nos. 4
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and 6 (the Deputy Secretary, GoWB, C & I Department, Mines Branch and the
was decided that an agreement would be signed between the petitioner No. 1 and
the respondent No. 9 within fifteen days from the date of issue of the order of
On 30th April, 2011, in a meeting held between the petitioner No. 1, the
GoWB, it was communicated that the State Government had approved that
mining lease would be granted in favour of the respondent No.9 so that the
respondent No.9 might enter into an agreement with the petitioner No.1 for
mining and sale of Apatite. On 7th February, 2012, the Joint Secretary, GoWB, C
& I sought clarifications from the respondent No. 9 regarding the status of the
agreement with the petitioner No. 1 for mining and sale of Apatite as was decided
in the meeting held on 30th April, 2011. The intent expressed on 30th April, 2011
was formally confirmed by a subsequent letter dated 18th March, 2013 sent by
the Joint Secretary, GoWB, stating, inter-alia, that mining lease would be granted
to respondent No. 9 so that it may enter into an agreement into the petitioner No.
1 for mining and selling Apatite. On 6th May, 2013, the petitioner No. 1 and the
accordance with the intent and approval of GoWB as decided in the meeting of
30th April, 2011. It was agreed between the parties that in order to expedite the
matter of grant of mining lease, the petitioner No. 1 would surrender its
preferential right under section 11 of the Act provided the mining lease would be
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granted to the respondent No.9, who would assign the said lease to a Joint
Venture Company to be formed by the petitioner No. 1 and the respondent No. 9
The petitioner No. 1 thereafter and in pursuance of the terms of the MOU,
withdrew its mining applications in respect of both the Mouzas on 6th May, 2013.
By letters dated 29th October, 2013 and 6th November, 2013, the respondent No.
lease can be granted as per the intent of GoWB as communicated in the meeting
Limited (respondent No. 10) with regard to the issue of the land availability report
The MOU was amended on 21st October, 2014 by the petitioner No. 1 and
the respondent No. 9 in compliance with the intent of GoWB for issue of mining
lease to respondent No. 9. Review meetings were held on 10th November, 2014
and 5th January, 2015 with regard to, inter-alia, the Memorandum and Articles
expressed their inability to prepare the Mine Plan as no grant order had been
In the meantime, the 1957 Act was amended with effect from 12th January,
2015 by the Mines and Minerals (Development and Regulation) Amendment Act,
2015.
After almost two years, the petitioner No. 1 received a request from the
State of West Bengal through the Principal Secretary, C & I (respondent No.1) to
check the eligibility of the applications submitted by the respondent No. 9 in view
of the provisions under the Amendment Act, 2015. The petitioner replied that
under section 10A(2)(c) of the Amendment Act, 2015, the applications for grant of
mining lease are eligible as a letter of intent has already been issued by the
respondent No. 1 as per the approval contained in the minutes of meeting held
on 30th April, 2011 and therefore, the provisions of the earlier Act of 1957 are
challenged in the writ petition), the petitioners were informed that the mining
lease application of the respondent No. 9 is ineligible under section 10A(1) of the
Amendment Act, 2015 and further that since the petitioner no. 1 had withdrawn
its applications on 6th May, 2013, the applications of the petitioner no. 1 and the
reiterating that the application of the respondent No. 9 is eligible under Section
10A(2)(c) of the Amendment Act as the letter of intent had already been issued on
30th April, 2011 by the respondent No. 1 which was further communicated vide a
was prior to 12th January, 2015, when the Amendment Act of 2015 came into
force.
The petitioner No. 1 sent a letter on 16th October, 2015 reiterating its
position with regard to the Amendment Act and that the mining lease should be
and in terms of the letter issued by the respondent No. 4 on 18th March, 2013
wherein it was clearly stated that it has been decided in the meeting held on 30th
April, 2011 that the mining lease would be granted in favour of the respondent
No. 9 so that it may enter into an agreement with the petitioner No. 1 for mining
and selling of Apatite and that further, the application made by the respondent
challenged in the writ petition), the respondent No. 4 stated, inter-alia, that there
was no ground for grant of mining lease to the petitioner No. 1 or the respondent
communication it was reiterated that the petitioner No. 1 had withdrawn its
applications on 6th May, 2013 for mining of Apatite and that the department had
accordingly issued an order dated 19th August, 2013 refusing grant of mining
lease to the petitioner No. 1. It was further stated that since Apatite (Rock-
of the Amendment Act of 2015 would apply and further that the Joint Venture
process and further that the Government Company shall hold more than 74% of
The petitioner No. 1 replied to the above communication by its letter dated
22 December, 2015 stating yet again that the applications of respondent No. 9
are covered under Section 10A(2)(c) of the Amendment Act since the letter of
intent had been issued by the respondent No. 1 on the basis of the meeting of
30th April, 2011 as communicated by the Memo dated 18th March, 2013, both of
First let us deal with the factual context of the dispute. It is evident the
respondent no.9 applied for mining lease on 11th May 2015 pursuant to the
intention expressed by GoWB in the meeting held on 30th April 2011. At this
meeting it was decided that mining lease would be granted to the respondent
no.9, conditional upon it entering into an agreement with the petitioner no.1 for
mining and sale of Rock-phosphate. This intent was confirmed in writing by the
Joint Secretary on 18th March 2013.It is also clear that the petitioner no.1
granting the lease to respondent no.9 upon an agreement being entered into
between the petitioner no.1 and the respondent no.9 including formation of a
Joint Venture Company for implementation of the project. This apart, there are
and intention on the part of GoWB to grant the rights in question in favour of the
course of action would be evident from the communication dated 18th March,
2013 which, apart from communicating the decision taken by the respondents in
the meeting held on 30th April, 2011, that mining lease would be granted in
favour of the respondent No. 9, proceeds further to state that the application of
the respondent No. 9 is “being processed”. The parties acted on this intent, as
expressed by GoWB in the aforesaid letter (taken together with other several
6th May, 2013. In the MOU it was agreed inter-alia that the petitioner would
surrender its preferential right under the Act of 1957, provided the mining lease
is granted to the respondent No.9 who will then assign the same to a J.V.
Company formed jointly between the petitioner No. 1 and the respondent No. 9.
The petitioner No. 1 acted in terms of the MOU on the very same day and
withdrew their applications for grant of mining lease for Apatite in the two
Mouzas. There is no doubt therefore, that the petitioners acted in terms of the
intent expressed by GoWB which resulted in the MOU and culminated in the
petitioners withdrawing their applications in order that long terms mining lease
In this entire chain of events it appears that even after withdrawal of the
think of its earlier position, namely that the mining lease would be granted to the
respondent No. 9 provided the petitioner No. 1 and the respondent No.9 took
steps in terms of the communication dated 18th March, 2013. It was only in 2015
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or thereabouts that GoWB raised a question for the first time that the eligibility of
Amendment Act of 2015, which came into effect on 12th January, 2015.
From the facts on record, we have no hesitation in holding that the intent
of GoWB to grant the mining lease to the respondent No. 9 on the fulfilment of
petitioners relied upon the same and acted on the conditions of the intent
expressed by GoWB. It is also clear that GoWB did nothing to dissuade the
petitioners that the intent expressed in March, 2013 was subject to change in
future. This would be evident from the subsequent communications between the
No. 9 in respect of the two Mouzas as well as the review meetings being held as
respondent No. 9.
take a certain direction and continuing to make them believe that the decision
contained in the meeting of 30th April, 2011 and the subsequent communication
dated 18th March, 2013 remained unaltered, the GoWB could not have suddenly
and irrevocably altered its stand after two years. This is even more unacceptable
since the impugned communications dated 18th June, 2015 and 1st December,
2015 mention the fact of the petitioner No. 1 withdrawing its applications as a
ground for not processing the applications of the petitioner No. 1 and respondent
No. 9 any further. In our view, the respondents cannot be permitted to take
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benefit promised to them; prevail upon the petitioners to take that course of
action; and then resiling from its earlier stand on the pretext of the petitioners
letter dated 1st December, 2015 is even more arbitrary. Here, GoWB takes
recourse to Section 17A(2)(B) of the Amended Act and states that for a major
through a competitive process where the Government Company shall hold 74% of
the paid up share capital. The question in our minds is therefore; what happens
On the issue whether the contentions raised in the letter dated 1st
December, 2015 can be sustained, it would be useful to set out the relevant
approval as required under sub-section (1) of Section 5 for grant of mining lease, or
if a letter of intent (by whatever name called) has been issued by the State
Government to grant a mining lease, before the commencement of the Mines and
Minerals (Development and Regulation) Amendment Act, 2015, the mining lease
the letter of intent within a period of two years from the date of commencement of
From the facts as stated above, respondent No.9 had applied for a mining
lease on 11th May, 2011, which would appear from the letter of GoWB dated 18th
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March, 2013 itself. Further, the decision of GoWB to grant the mining lease of
in the meeting held on 30th April, 2011 and subsequently confirmed almost up to
two years by a letter dated 18th March, 2013 shows the intention of GoWB in
unequivocal terms. Under the Amendment Act, as would appear from the
provision set out above, any application which was pending before 12th January,
2015 for which a decision to grant mining lease was taken before the
subject to the fulfilment of the conditions of the earlier approval or the letter of
intent within a period of two years from the date of the commencement of the Act.
In this case, the decision to grant mining lease to the respondent No. 9 with
reference to its application dated 11th May, 2011 was taken in a meeting of 30th
dated 18th March, 2013. Therefore, the approval and the intent of GoWB was in
place before the Amendment Act came into force. Consequently, Section
10A(2)(c) of the Amendment Act would apply and the consequences contemplated
For the above reasons, we do not see any basis for GoWB for issuing the
impugned communications dated 18th June, 2015 and 1st December, 2015 and
It appears from the impugned order that the learned First Court proceeded
between the parties for grant of mining lease cannot be construed as a letter of
intent and further that the position of the petitioner No. 1 has not been altered
by any Government order. Contrary to the aforesaid conclusions, in our view, the
facts clearly demonstrate that the petitioners had indeed been left in the lurch
four years after the Government had unequivocally expressed its intent of
granting mining lease to the respondent No.9 with a consequential benefit to the
petitioner No. 1.
From the impugned order it is not clear how Rule 61 of the West Bengal
Minor Minerals Concession Rules, 2016 is applicable to the facts of the instant
appeal. In any event, we accept the submission made on behalf of the appellants
before the First Court that the decision to grant mining lease cannot be affected
by the said Rule as the letter of intent – whatever be its nomenclature – had
already been communicated by GoWB in April, 2011 and March, 2013, long
before the Amendment Act came into force on 12th January, 2015. We fail to see
how Rule 61 of the Concession Rules, 2016 would apply when even according to
GoWB in the letter dated 1st December, 2015, Apatite (Rock-phosphate) has been
The petitioners have relied upon (2017) 2 Supreme Court Cases 125,
(Bhushan Power and Steel Limited Vs. S.L.Seal, Additional Secretary (Steel and
Mines), State of Odisha and Others), where it was held inter-alia that
notwithstanding the amended Section 11 which mandates that mining leases are
certain categories of applications which were filed before coming into operation of
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letter of intent for grant of mining lease has already been communicated to an
applicant before coming into force of the Amendment Act, 2015. According to the
Supreme Court, the reason for making such an exception is that certain rights
had accrued to these applicants with respect to procedures and formalities and
only the formal lease did remained to be executed. In our opinion, the contents of
the communication dated 18th March, 2013 can be treated to be a clear intent or
respondent No. 9. This decision has also been relied on for the proposition that a
“letter of intent” would depend more on the substance than the nomenclature as
parties who intend to make a contract or join together in a proposed action. The
petitioners’ applications in this case would fall under the exception carved out in
the impugned communications of 18th June, 2015 and 1st December, 2015 could
nor have been issued by the concerned respondents and were liable to be
For the above reasons, we disagree with the findings of the learned Single
Judge in holding that the appellants were not entitled to the relief prayed for in
the writ petition. According to us, the factors taken into account by the learned
Single Judge were secondary and in any event, not relevant in the backdrop of
the arbitrary and unreasonable actions of GoWB in revising their stand after a
considerable period of time, to the detriment of the petitioners. We are also of the
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view that the coming into effect of the Amendment Act of 2015 would not alter
the rights of the petitioners since an express intention had been communicated
by GoWB prior to the said Act and hence section 10A(2)(c) of the Amendment Act
The impugned order dated 16th May, 2017 passed by the First Court in
I agree,