Case No: Civil Petition for Leave to Appeal Nos. 1082-84 of 2007
Judge: Mustafa Kamal ,
Court: Appellate Division ,,
Advocate: Mr. Hasan Faez Siddique,,
Citation: V ADC (2008) 864
Case Year: 2008
Appellant: Babul Ahmed and others
Respondent: Government of Bangladesh and others
Subject: Administrative Law,
Delivery Date: 2008-2-20
Md. Ruhul Amin CJ
Md. Tafazzul Islam J
Md. Abdul Matin J
......... Petitioner (In Civil Petition No. 1082 of 2007)
.................Petitioner (In Civil Petition No. 1083 of 2007)
.............. Petitioner (In Civil Petition No. 1084 of 2007)
Government of Bangladesh and others
..............Respondents (In all the cases)
February 20, 2008.
Dr. Abul Kashem Md. Ali, Advocate, instructed by Md. Nawab Ali, Advocate-on-Record-For the Petitioners. (In all cases)
Hasan Faiz Siddique, Additional Attorney General, Zahirul Islam, Advocate-on-Record-For the Respondents (In all cases)
Civil Petition for Leave to Appeal Nos. 1082-84 of 2007
(From the judgment and order dated 3.6.2007 passed by the High Court Division in Writ Petition Nos. 5945, 5948 and 5946 of 2005)
Md. Tafazzul Islam J.
The above civil petition for leave to appeal are directed against the judgment and order dated 3.6.2007 of the High Court Division passed in Writ Petition Nos. 5945, 5946 and 5947 of 2005 (heard analogously with Writ Petition Nos. 5674, 2170, 2171, 2033, 3182,1235, 3400 and 6645 of 2005) discharging the Rules. Since the High Court Division heard the above writ petitions analogously and disposed of those by a common judgment, all civil petitions were heard analogously and are disposed of by this single judgment.
2. In all the above writ petitions the petitioners challenged the Memo dated 10.8.2005 issued by the Director, Bureau of Mines and Minerals Development, the respondent No. 2, refusing to renew the lease of the pathor mahals granted in their favour for further period as per provisions of the Mines and Minerals Rules 1968 as amended upto 1995 and also in terms of the lease agreements executed in their favour on the averments that they, with a view to take lease of the respective pathor mahals, filed applications to the respondent No. 2 as per provisions of Mines and Minerals Rules, 1968 as amended upto 1995 and after considering their applications the respondent No.2 granted leases in their favour with effect from the dates of their applications, and thereafter the petitioners executed bilateral lease agreements with them which, as per clause 4 of the lease agreements as well as the provisions of the said Rule 1968 as amended, were renewable upto 6 years and after completion of all necessary formalities the respondent No. 2 issued works orders in their favour and they, after making huge investments, started extracting and lifting stones from their respective pathor mohals with satisfaction of all concerned and that towards the end of the 2nd year of their leases they while extracting stones peace-fully on investing further fund of improving the extraction facilities of stones, they filed applications for renewal of their leases for further period with challans showing payment of annual fees etc for the respective years, but inspite of receipts of the said applications, the respondent No.2 did not take any step to renew the leases and then they suddenly received the memo dated 10.8.2005 providing that in terms of the provisions of the Gazette Notifications dated 11.5.2004, and 19.6.2004, Annexures D and D-1, the respondent No. 2 has no longer any jurisdiction to renew the quarry leases of the pathor mahals without recommendations of the District Committee and that prior to issuance of the above memo no intimation were ever given to the petitioners.
3. The respondents, though did not file any affidavit-in-opposition, contested the Rules on making oral submissions for the effect that the leases granted to the petitioners were initially for a period of one year and in some cases those were extended from time to time for one year at a time but the period of all the leases have already expired in the year 2005 and so after expiry of their leases they have no locus standi to file the writ petitions and further no lease was at all granted to the petitioner of Writ Petition No. 5674 of 2005 and that by Notification dated 13.5.2004 by inserting new Rule 55B in the Mines and Minerals Rules, 1968, new administrative systems have been established providing proper checks and balance in leasing out the quarries and that in clause 1 of the agreement for lease it was clearly stipulated that the provisions of the Mines and Mineral Act, 1992 and those of the Mines and Minerals Rules, 1968 shall be applicable and prevail inspite of any contrary provision contained in the agreement for lease and clause 4 of the agreement for lease specifically provided that subject to the satisfactory performance and payment of fees, royalties and other outstanding dues of the leasee the leasing authority shall grant renewal of the lease and it is thus evident that the leasing authority, even after satisfactory performance of the lease, has the option not to grant renewal of the lease and thus the petitioners, who are the lessees can not claim renewal as a matter of right and moreover as per clause 1 of the Angikarnama admittedly signed by the petitioners as well as in terms of clause 1 of the lease granting order, the petitioners are bound to abide by any amendment of the provisions of Act 1992 as well as Rules 1968 and further according to the Notification dated 13.05.2005 there is no scope of renewal of lease without the recommendation of the District Committee and in the present cases those are wanting and that the government can change rules for achieving administrative efficiency and/or for public interest and the government, having suffered loss of huge revenue due to the mismanagement of the quarries in different parts of the country, made the changes and most of the lessees, whose leases have expired, have come before the High Court Division and obtained Rule Nisi as well as orders of status-quo till disposal of the Rules and thereby caused a deadlock situation in the leasing out of quarries and also caused delay in the development plans of the government and various development projects are facing acute crisis because of shortage of stones/ sand; further renewal of lease of balu mohal and pathor mohal can not be claimed as of right and as such the writ petitions are nothing but a device to prolong the time to enjoy the usufructs of the pathor mahals for indefinite period in disguise of the pendency of the writ petitions.
4. The High Court Division, after hearing the writ petitions analogously, relying on above submissions, discharged the Rules.
5. The learned counsel for the petitioners submitted that the petitioners filed applications to the respondent No.2 for renewal of their leases and there being no requirement of recommendations by the District Committee, in terms of clause 4 of the lease agreement the leases should have been extended on the basis of the applications for renewal and in the event of shifting of the administrative power of the respondent No.2 to a different authority, which is absolutely an internal administrative reorganization of the Government, the said applications for renewal of leases should have been forwarded to that different authority for disposal as per clause 4 of the lease agreements and further the substantive right of the petitioners to get renewal of their leases as of right can not be taken away by a subsequent amendment of the Rules without amendments of the terms of the lease agreements and so the leasing authority should have renewed the existing lease granted under the provisions of the previous Rules and the commitment of the petitioners to abide by the amended Rues can not be considered as a legal bar in getting renewal of the leases of the petitioners on the basis of clause 4 of the agreements for lease as because by way of subsequent amendment only some incidental and consequential matters can be regulated and a substantive right can not be taken away.
6. As it appears the High Court Division discharged the Rules holding that clause 5 of the Notification dated 26.06.04 clearly provided that on the expiry of the leases the provisions of the new amendment will be applicable to the lessees thus meaning that Rule 55B, as amended by Notification dated 13.05.2004, will be effective in the cases of the petitioners after expiry of their leases and as the period of their leases having already expired in the year 2005, the above amended section 55B will be applicable to the leases of the petitioners and in respect of the writ petitions in which Rules were issued after the publication the Gazette Notifications dated 13.05.04 and 26.06.04 and where memo dated 30.5.2005 were challenged, the High Court Division discharged the Rule holding that the memo dated 30.05.05 is a direction from the Ministry of Land to all the Deputy Commissioner bringing into their notices the decisions, notification and directions of the Government and such directions and communications being the policy guidelines in respect of certain matters concerning the business of the Government and were issued only to bring efficiency in the administration those do not create any legal right in favour of any person and moreover it is only after the petitioners signed the Angikarnama, agreements of leases were executed containing clauses 1 and 9 thereby agreeing to abide by the subsequent amendments of the above Act 1992 and Rules 1968 and so now the petitioners can not claim the renewal of leases as a matter of right and so no legal right of the petitioners were violated by the order of refusal to renew the leases and further after the expiry of the leases there were also no scope to renew those due to the above amendments as made and further the petitioners, at best, may apply for lease afresh which may be dealt with in accordance with the existing rules and regulations.
7. We are of the view that the High Court Division on proper consideration of the materials on record arrived at a correct decision and there is no illegality or infirmity in the above decision so as to call for any interference.
All the petitions are dismissed.