Salil Kumat Datta, J.
1. These Rules are for the issue of a Writ of Mandamus commanding the respondents, the Collector of Burdwan and others not to compel the petitioner to take licence for making bricks in the land or to create any disturbance in the running of his brick field thereon and also not to realise the licence fee or cess from him. There is further prayer for quashing the orders contained In Annexures 'B', 'C' and 'D' to the petition.
2. The facts in brief are as follows. The petitioner claims to be the owner of a brick field in mouza Kandorsona, P.S. Burdwan situated in plots Nos. 567, 568, 573, 574 and 1119. The petitioner claimed to be a lessee from his lessor who is a raiyat under the State. The petitioner had been carrying on the business of brick manufacturing in the aforesaid lands since 1973. The Junior Land Reforms Officer, Burdwan in March 1973 treated the business as being carried on without permission of the Collector on the basis of the provisions under Sections 4(2-A) and 4(2-B) of the West Bengal Land Reforms Act, 1955. The petitioner was compelled to take a licence thereunder, Annexure 'B' is a letter dated September 12, 1973 proposing the grant (of) a short-term lease up to November 30, 1973 for extraction and removal of brick-earth from the aforesaid plots subject to the deposit of the amounts mentioned therein, as also statedherein (i) Rs. 290/- towards the fee for extraction of brick-earth for manufacturing 2,00,000 bricks (r) Rs. 2/- per 100 cft. (ii) Rs. 200/- towards preliminary expenses and (iii) Rs. 145/- towards security deposit. Excepting the last amount no amount was refundable in any case and if during the lease period the petitioner would extract more than 2,00,000 bricks of brick-earth he would be required to deposit a further fee of Rs. 2/- per 100 cft. of brick-earth before further extraction and removal. There are further conditions for maintaining accounts of raising and despatch of brick-earth as per direction to be intimated later and the petitioner was also required to execute a lease deed after making the necessary deposit.
3. Annexure 'C' is another letter dated October 22, 1973 to the petitioner issuing certain directions in regard to maintenance of books of accounts i.e. machine numbered receipts to the purchasers of bricks showing quantity of bricks for every truck or cart including the bricks removed for the lessee's own purpose. It also provided for maintenance of a register showing the daily removal of bricks with reference to the receipts issued and quantity by each receipt --truck number and cart driver's name etc. The letter further provided that the lessee is to obtain further grant through the Junior Land Reforms Officer, Burdwan, from the Additional District Magistrate (L. R.) Burdwan for further extraction of the minerals from the said area. An-nexure 'D' is a memo dated May 23, 1974 by the Cess Deputy Collector, Burdwan, calling upon the petitioner to submit return of Profit and Loss Account.
4. The petitioner prayed for issuance of reliefs on two grounds: (1) It was stated that Sections 4(2-A) and 4(2-B) have been declared to be ultra vires by this Court in Shyam Sundar v. Addl. District Magistrate, Bankura, : AIR1975Cal58 . Accordingly no steps could be taken against the petitioner under the provisions of the said Act. (2) Even under the Mines and Minerals (Regulations and Development) Act, 1957, Section 3(e) and the West Bengal Minor Minerals Rules (1959) Rule 17 (i) no royalty was payable for digging up ordinary earth for brick making as brick earth was not a minor mineral as held in the case of State of West Bengal v. Jagadamba Prasad Singh, : AIR1969Cal281 . The State Government accordingly had no power to make rules under the said Act in respect of brick earth and had no right to insist. upon the respondents for taking out permits for the use of ordinary earth for the manufacture of bricks and pay royalty therefor and the demands made in that behalf were all contrary to law and must be quashed.
5. As to the first contention it is to be noted that the demands impugned are not under provisions of Section 4(2-A) of the West Bengal Land Reforms Act, 1955 but under the West Bengal Minor Mineral Rules. As such no occasion arises in the case for enforcement of a demand or penalty under the aforesaid provisions of the Land Reforms Act declared ultra vires in Shyam Sundar's case,
6. We shall now examine the second contention. The Mines & Minerals (Regulation and Development) Act, 1957 (67 of 1957) provides for regulation of mines and development of minerals under the control of the Union. Section 3, Sub-section (e) is as follows:--
'3. ... ... ...
(e) 'minor minerals' means 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;'
Section 15(1) is as follows :
'The State Government may, by notification in the Official Gazette, make rules for regulating the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith.'
7. The Central Government, in exercise of the powers conferred by Clause (e) of Section 3 of the Mines and Minerals (Regulation and Development) Act, 1957 by notification G. S. R. 436 dated June 1, 1958 declared the following minerals to be minor minerals namely:
'boulder, shingle, chalcedony pebbles used for ball mill purposes only, lime-shell, kankar, lime stone used for lime-burning, murrum, brick-earth, fuller's earth, bentonite, road metal, rehmatti, state and shale when used for building material.'
8. In exercise of powers under Section 15(1) the West Bengal Government by Notification No. 1844 M. P. dated 13th May, 1959 in the Commerce and Industries Department -- Mines and Power framed Rules known as the West Bengal Minor Mineral Rules, 1959. The said Rules provide for application for making mining lease of minor minerals as defined in Clause (e) of Section 3 of the Act as also declared thereunder to be so and other terms and conditions of lease and matters incidental thereto. Rule 17 (1) provides for conditions of the lease and Sub-clause (i) provides for payment of royalty on all minerals despatched from the leased area at such rate as may be fixed by the State Government as provided in Schedule I. The royalty as provided in Schedule I for ordinary earth for brick making was Rs. 1.50 p. and maximum Rs. 2.50 p. per 2.82 cubic metres (100 cft.). In Jagadamba's case : AIR1969Cal281 this Court proceeded on the basis of definition of minor minerals as mentioned in Section 3, Clause (e) and observed (at p. 283):
'... ... ... the rate specified (in Schedule I) is royalty for mining of 'ordinary earth for brick making'. But 'ordinary earth' is not 'ordinary clay' and therefore cannot be called a minor mineral. The word 'clay' is not identical with 'earth'. Some kind of earth may be clay. For example earth mixed with water, or silt may be called clay. But while the definition of minor minerals includes a particular kind of clay namely 'ordinary clay', under Schedule I the royalty is payable on 'ordinary earth'. Thus, even if the word 'earth' is wide enough to include 'clay' it cannot be said that 'ordinary earth' is identical with ordinary clay ......... If 'clay' is a special kind of 'earth', then it would be excluded from the expression 'ordinary earth'. Nobody ever speaks of 'ordinary earth' as a mineral. In other words the expression 'clay' may be included within the expression 'earth' but 'ordinary earth' cannot be equated with 'ordinary clay'. In the result it was held that 'State Govt. had no right to make rules under the said Act in respect of 'ordinary earth' and had no right to insist upon the respondents taking permits for use of 'ordinary earth' for manufacture of bricks ... ... ...'
9. The above notification of the Central Government declaring 'brick earth' as a minor mineral was not produced before the Court at the time of hearing.
10. As we have seen under Section 3(1)(e) the Central Government may by Notification in Official Gazette declare any other mineral to be a minor mineral. It will be seen that later on items like boulder, shingle etc. Kankar, limestone used (in) kilns for manufacture of lime were included within the definition of minor mineral by Notification GSR 436 dated June 1, 1958 and GSR. 1199 of 1960 dated September 12, 1961'. Marble was declared a minor mineral by G. S. R. 1041 dated May 12, 1969; stones used for making of household utensils were so declared by GSR 642 of June 11, 1960; quartzite and sandstone used for some purposes were also so declared by GSR 341 of March 6, 1965. The question whether 'brick earth' is a minor mineral in the context of the above declaration came up for consideration in the case of Banarasi Das Chadha & Bros. v. Lt. Governor, Delhi Administration, : 1SCR271 ; it was held as follows (at p. 1589) :--
'In the context of the Mines & Minerals (Regulation & Development) Act, we have no doubt that the word 'mineral' is of sufficient amplitude to include 'brick earth'. As already observed by us if the expression 'minor mineral' as defined in the Act includes ordinary clay and ordinary sand, there is no earthly reason why 'brick earth' should not be held to be 'any other mineral' which may be declared as a 'minor mineral.' We do not think it necessary to pursue the matter further except to say that this was the view taken in Laddu v. State of Bihar, : AIR1965Pat491 ; Amar Singh Modilal v. State of Haryana, (FB) and Sharma & Co. v. State of U. P., : AIR1975All386 . We do not agree with the view of the Calcutta High Court in the State of West Bengal v. Jagadamba Prosad, : AIR1969Cal281 because nobody speaks of 'ordinary earth' as a mineral, it is not a minor mineral as defined in the Mines & Minerals (Regulation & Development) Act'
In view of the above decision it is obvious that the proposition that brick earth is not a minor mineral is no longer good law and such mineral is to be treated as a minor mineral under the provisions of the Act. The Supreme Court referred to an earlier decision in Bhagwan Dass v. State of Uttar Pradesh, : 3SCR869 where it was held that it is wrong to assume that mines and minerals must always be sub-soil and there can be no mineral on the surface of the earth. In any case the definition of mining operations and minor minerals in the Act shows that minerals need not (be) subterranean and that mining operations cover every operation undertaken for the purpose of 'winning' any minor mineral.
11. West Bengal Minor Mineral Rules 1959 were repealed by West Bengal Minor Mineral Rules, 1973 which was published in the Calcutta Gazette Extraordinary on January 30, 1974 and came into force from the date of the publication in the Gazette. Under Rule 5 an application for a mining lease shall be accompanied by a challan of Rs. 200/- and a deposit for preliminary expenses for Rs, 300/- is also to be made under Rule 13. A deposit of Rs. 1,000/- is to be made as a security deposit under Rule 14. Under Rule 18 the holder of a mining lease after the commencement of the rules shall pay royalty in respect of mineral or minerals removed or consumed by him or by his agent or manager employee or contractor at the rate prescribed in Schedule I. In the Schedule the royalty is as follows:--
Royalty -- All minerals Rs. 1.75 p. per cubic metre (Rs. 49,35/- (?) per 100 cft). Itthus appears that the position in respect of mining leases of minor minerals is governed by the aforesaid Rules which repealed the Rules of 1959. In the context of such rules it is to be considered whether the demands are tenable or not. The Annexures B, C and D have been issued after coming into force of the West Bengal Minor Mineral Rules, 1973 and a perusal of the impugned documents or the averments contained in the petition does not indicate the manner in which any of the provisions of the West Bengal Mineral Rules have been violated. The petitioner is liable to take a mining lease under the West Bengal Mineral Rules since he intends to have mining operations in respect of the brick earth. Such lease has no relation with the West Bengal Land Reforms Act and Rules and they have not been issued under the West Bengal Act,
12. Mr. Roy contended that all the notices were issued by an authority under the Land Reforms Act and as such they have not been issued by a competent authority. Rule 3 (1) (b) of the Rules defines 'District Authority' and other officers in the rules as follows:--
'3(1) ... - -. .-
(b) 'District Authority' means the Additional District Magistrate or the Additional Deputy Commissioner in charge of Estates Acquisition or Land Reforms matter in District and includes the District Magistrate or the Deputy Commissioner where no such Additional District Magistrate or Additional Deputy Commissioner exists.
(d) 'Junior Land Reforms Officer' means a Junior Land Reforms Officer appointed as such by the State Government for any particular area.
(e) 'Sub-divisional Land Reforms Officer' means a Sub-divisional Land Reforms Officer appointed as such by the State Government for any particular area.'
It will thus appear that even though the impugned notices were issued by authorities of the Land Reforms Departmentthey are included within the definition ofthe District Authority and other officers,as specified above.
13. For all these reasons I am of opinion that there is no scope for any Interference as no violation of any provisions of the Act and Rules has been established.
14. My attention was drawn to a decision of Chandan Kumar Banerji J, in C.R. No. 182 (W) of 1975. Smt. Kamala Mukharji v. Additional District Magistrate L. R. Burdwan, D/- 23-8-1977 (Cal) In which the Rule was made absolute on the authority of Jagadamba's case : AIR1969Cal281 cited above since overruled as also on the decision in Shyam Sundar'a case : AIR1975Cal58 relating to West Bengal Land Reforms Act which I have already indicated has no application to tile circumstances of this case.
15. The Rules accordingly fail and are discharged. There will be no order as for costs.