PAL ENTERPRISE, THROUGH PROPRIETOR, SABYASACHI PAL, vs STATE OF WEST BENGAL AND ORS.

IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE





BEFORE:
THE HON’BLE JUSTICE HIRANMAY BHATTACHARYYA

WPA 28376 OF 2025

Pal Enterprise
Versus
The State of West Bengal and others


For the Petitioners : Mr. Ashoke Banerjee, Sr. Advocate
Mr. Mir Anowar
….. Advocates



For the State : Mr. Arka Kumar Nag
Mr. Manish Biswas

…. Advocates


For the respondent nos. 8 : Mr. Sanjay Saha
Mr. Raju Mondal ….. Advocates


Reserved on : 02.02.2026


Judgment on : 30.04.2026



Hiranmay Bhattacharyya, J.:-

1. Petitioner has challenged the order of the Commissioner, Burdwan Division
dated 31.07.2025 passed in Appeal Case no. 53 of 2023 and the order of the
Additional District Magistrate and District Land and Land Reforms Officer,
Purba Bardhaman dated 10.05.2023.
2. Petitioner participated in an e-auction conducted on November 18, 2017 for
grant of a sand mining lease in respect of a sand block situated at Mouza
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Shikarpur under Police Station Galsi in the district of Purba Bardhaman.
Petitioner was declared as the highest bidder. A Letter of Intent (for short
“LOI”) was issued in favour of the petitioner directing the petitioner to
comply with all statutory formalities including Environmental clearances
and approval of mining plan for the purpose of execution and registration of
the long term mining lease. A long term mining lease dated February 27,
2018 was executed in favour of a petitioner for a period of five years and the
lease deed was registered on March 6, 2018. Petitioner took possession of
the sand block on March 7, 2018 and claims to have commenced mining
operations after making payment of the requisite charges.
st
3. Petitioner states that an unprecedented road accident occurred on 1
January 2020 at Simultala under Galsi Police Station which resulted in law
and order problem and extraction of sand from the sand block in question
had been unilaterally suspended by an order 02.01.2020. Thereafter, by
order dated March 23, 2020 issued by the Block Land and Land Reforms
Officer Galsi II, sand mining activities was suspended and such suspension
was withdrawn with effect from 13.05.2020. In the meantime due to Covid
19 Pandemic, Lock down was imposed and the sand mining activities of the
petitioner was totally stopped.
4. Petitioner states that for the reasons as aforesaid, the sand mining activities
were totally stopped for nearly five months from 01.01.2020 to 13.05.2020.
Petitioner further stated that the respondent authorities again directed
stoppage of movement of sand loaded trucks through the road on account of
construction of the road and for such reason the sand mining activities of
the petitioner were stopped for a period of about 12 months on and from
st
February, 2021 to 31 January 2022. The petitioner states that the said
th
restriction was further extended for a period of two more months till 7 April
2022. Petitioner thereafter, submitted a representation dated 10.06.2022
before the respondent authorities praying for extension of the lease period.
As the petitioner could not carry on the sand mining activities for reasons
beyond the control of the petitioner lessee, a writ petition being WPA 14512
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of 2022 was filed by the petitioner which was disposed of by a co-ordinate
rd
bench by an order dated 14.04.2023 by directing the 3 respondent therein
to consider and dispose of the representation of the petitioner by passing a
reasoned order after affording an opportunity of hearing to all the affected
parties including the petitioner. Pursuant to the aforesaid order passed by
the co-ordinate bench, the Additional District Magistrate and District Land
and Land Reforms Officer, Purba Bardhaman passed an order dated
10.05.2023 rejecting the prayer of the petitioner for extension of the lease
period.
5. Challenging the order dated 10.05.2023, petitioner preferred an appeal
under Rule 51 of the West Bengal Minor Minerals Concession Rules 2016,
before the Commissioner, Burdwan Division being the appellate authority,
which was registered as Appeal Case no. 53 of 2023. The appellate authority
dismissed the said appeal on merit. Being aggrieved by the order of the
appellate authority refusing to interfere with the order of the original
authority, petitioner has approached this Court.
6. Mr. Banerjee, learned Senior Advocate appearing for the petitioner
contended that the petitioner had to stop the mining activities on account of
restrictions imposed in movement of vehicles carrying sand for substantial
period of the tenure of the lease. In support of such contention he drew the
attention of the Court to several letters issued by various authorities. Mr.
Banerjee further contended that the petitioner also could not carry on the
mining activities on account of the Lock down imposed on account of Covid
19 Pandemic. He thus contended that the petitioner could not carry out the
mining activities for the entire period of five years for no fault on the part of
the petitioner lessee. By referring to Clause 5 under part IX of the lease
deed, Mr. Banerjee contended that the lease deed provides for extension of
the period of lease if the fulfilment by the lessee of any of the terms and
conditions of the lese is delayed for reasons beyond the control of the lessee.
7. Mr. Banerjee placed reliance upon a decision of the co-ordinate bench in the
case of Radharaman Constructions and Marketing Private Limited and
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Another vs. State of West Bengal and ors. reported at 2023 SCC Online
Cal 4791 and an order dated 15.07.2025 passed by a co-ordinate bench in

WPA 13654 of 2024 in the case of Pradip Arora vs. The State of West
Bengal and ors. in support of the prayer for extension of the lease deed.
8. Mr. Saha learned advocate appearing for the WBMDTCL seriously disputed
the submissions of Mr. Banerjee. He contended that the “Force Majeure”
clause appearing in clause 5 under part IX of the lease deed cannot apply to
a case where the Government has not raised any claim against the lessee on
account of failure by the lessee of any terms and conditions of the lease
deed. He contended that in the meantime the West Bengal Sand Mining
Policy 2021 had come into effect and Clause 6(iii) of the said policy clearly
provides that upon expiry of the existing sand mining leases, such leases
shall not be renewed and shall automatically revert to the State
Government. He submitted that the petitioner is not entitled to extension of
lease by taking the aid of the “Force Majeure” clause. In support of such
contention, Mr. Saha placed reliance upon the decision of the Hon’ble
Division Bench in the case of Dilip Mondal vs. The State of West Bengal
and ors. passed in MAT 1304 of 2025 with CAN 2 of 2025.
9. Heard the learned advocates for the parties and perused the materials
placed.
10. The long term mining lease deed dated February 27, 2018 was executed and
registered on 06.03.2018 in favour of the petitioner for a period of five years.
Petitioner took possession of the sand block in question on March 7, 2018.
The lease deed was valid till March 5, 2023.

11. The grievance of the petitioner is that due to an accident that occurred on
01.01.2020 at Simultala under Galsi Police Station, work of extraction of
sand had been suspended. Due to outbreak of Covid 19 pandemic which
resulted in imposition of nationwide lock down, the petitioner claims that he
could not continue with the mining works. Petitioner further alleges that
due to construction of road from Shikarpur to Galsi, sand loaded trucks
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were not allowed to ply along the said road for which the petitioner could not
carry on the mining activities. Petitioner claims that he suffered huge losses
as he could not carry out the mining activities during the entire period of the
lease.
12. The petitioner has prayed for extension of the period of lease by submitting a
representation dated 10.06.2022. In support of the prayer for extension of
the lease period petitioner placed strong reliance upon the “Force Majeure”
clause contained in the said lease. For the purpose of effective adjudication
of the dispute involved in this matter clause 5 under Part IX of the lease
deed is extracted hereinafter-
“5. Failure on the part of the Lessee/Lessees to fulfill any of the terms
and conditions of this lease shall not give the State Government any
claim against the Lessee/Lessees 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 fulfillment by the
Lessee/Lessees 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/Lessees could not reasonably prevent or control.”

13. In Pradip Arora (supra) the mining operations of the writ petitioner therein
were directed to be suspended by the respondent authorities for alleged
violation on the part of the writ petitioner regarding excavation of sand
beyond the leasehold area for which the petitioner could not carry on his
business from April 2019 to September 2021. The co-ordinate bench after
arriving at a finding that the respondent authorities could not justify their
action for suspending the petitioner from carrying out the mining operation
for 29 months, directed the respondent authorities to extend the period of
lease for a period of 29 months. The decision being distinguishable on facts
cannot come to the aid of the petitioner.
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14. The appellate authority recorded that the petitioner did not apply for
renewal or extension during the currency of the lease nor was the formal
invocation of the “Force Majeure” clause made before the lease expired. The
appellate authority further recorded that the belated representation of the
petitioner made after the expiry of the lease cannot revive a leasehold
interest which has been lawfully terminated. The appellate authority further
recorded that Clause 6(iii) of the West Bengal Sand Mining Policy, 2021
clearly provides that upon expiry of the existing sand lease the lease shall
not be renewed and shall automatically revert to the State Government.
15. From the materials disclosed in the writ petition it is evident that the
petitioner submitted a representation dated June 10, 2022 which was
th
received by the office of the respondent authorities on 13 June, 2022
praying for extending the lease period which was lost due to Covid 19 lock
down and other disturbances that occurred during the stipulated time
period of the long time mining lease.

16. Thus, the finding of the appellate authority that the representation
submitted by the petitioner was after the expiry of the lease period suffers
from perversity.
17. The petitioner has prayed for excluding the period of the lock down due to
Covid 19 Pandemic as well as other disturbances from the lease period. In
other words the petitioner has prayed for extension of the period of lease for
the aforesaid reasons.
18. The distinction between “extension” and “renewal” of a lease deed has been
succinctly stated by the Hon’ble Supreme Court in the case of State of
Gujarat and others. vs. Nirmalaben S. Mehta and Anr. reported at
(2016) 9 SCC 240 . The Hon’ble Supreme Court held that in case of
“renewal”, new lease is required while in the case of “extension”, the same
lease continues in force during additional period by performance of
stipulated act. The word “extension” when used in its proper and usual
sense in connection with a lease means prolongation of the lease.
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19. It, therefore, follows that extension of lease is not a fresh grant but it is only
a prolongation of the original lease.
20. In the case on hand, petitioner has prayed for extension of the lease and not
renewal of the same.
21. Clause 6(iii) of the West Bengal Sand Mining Policy 2021 deals with the
transfer of existing mining lease. It states that in existing leases, the lease
shall not be renewed and shall automatically be resumed and vested with
the State Government upon expiry of such lease. The State Government
shall then lease the sand mines to WBSTDCL or any agency recommended
by it. Thus, Clause 6 (iii) of the 2021 policy restricts transfer of existing
mining lease by way of renewal. That apart the right to seek extension of the
lease period under Clause 5 of Part IX of the lease deed could not be
nullified by the coming into force of the 2021 Policy.
22. As observed hereinbefore there is a fundamental difference between
extension of lease and renewal of lease and the petitioner has prayed for
extension of the period of lease by invoking Clause 5 under Part IX of the
lease deed and not renewal thereof. Therefore, Clause 6(iii) of the Sand
Mining Policy cannot apply to the case on hand.
23. The question that now falls for consideration is whether the petitioner is
entitled to extension of the lease period on account of the lock down
imposed due to outbreak of Covid 19 Pandemic as well as other restrictions
imposed by the authorities in movement of trucks carrying sand.
24. At this stage it would be relevant to take note of the Office Memorandum
(O.M.) dated May 13, 2020 on the invocation of Force Majeure Clause (FMC)
issued by the Government of Ministry of Finance Department of Expenditure
Procurement Policy Division. The said O.M. is extracted hereinafter.

No. F. 18/4/2020-PPD
Government of India
Ministry of Finance
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Department of Expenditure
Procurement Policy Division
North Block, New Delhi
New Delhi dated the 13th May, 2020
OFFICE MEMORANDUM

Subject: Force majeure Clause (FMC)
Attention is invited to Department of Expenditure's O.M. No 18/4/2020-
PPD dated 19th February, 2020 on the invocation of Force Majeure
Clause (FMC). Vide the O.M., it was clarified that disruption of supply
chains due to spread of Coronavirus will be covered under FMC which
could be invoked, wherever considered appropriate, following the due
procedure as stated in para 9.7.7. of the Manual on Procurement of
Goods.
2. Subsequent to issuance of the above referred O.M., further disruptions
have affected transportation, manufacturing and distribution of goods
and services in the country. Limitations placed on the movement of men
and material as per the guidelines issued by the Ministry of Home Affairs
(MHA) under the Disaster Management Act, 2005 (DM Act 2005) and the
respective State and UT governments from time to time have severely
impaired the fulfilment of contractual obligations for supply of goods,
works and consultancy services (including other services), and affected
the volume of vehicular traffic.
3. Attention in this regard is invited to para 9.7.7 of the "Manual for
Procurement of Goods 2017", Para 6.4.2 of the "Manual for Procurement
of Works 2019" and para 8.14.1 of the "Manual for Procurement of
Consultancy and other Services 2017" issued by the Department of
Expenditure. The above referred three Manuals recognize extraordinary
events or circumstances beyond human control leading to delays in or
non-fulfilment of contractual obligations. In a situation of such events
happening, and after following due procedure, parties to the contract are
allowed flexibility to invoke FMC following prescribed due procedure.
4. It is recognised that in view of the restrictions placed on the movement
of goods, services and manpower on account of the lockdown situation
prevailing overseas and in the country in terms of the guidelines issued
by the MHA under the DM Act 2005 and the respective State and UT
Governments, it may not be possible for the parties to the contract to fulfil
contractual obligations. In respect of Public-private Partnership (PPP)
concession contracts, a period of the contract may have become
unremunerative. Therefore, after fulfilling due procedure and wherever
applicable, parties to the contract may invoke FMC for all
construction/works contracts, goods and services contracts and PPP
contracts with Government Agencies and in such event, date for
completion of contractual obligations which had to be completed on or
after 20th February 2020 shall stand extended for a period not less than
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three months and not more than six months without imposition of any
cost or penalty on the contractor/concessionaire. Concession period in
PPP contracts ending on or after 20th February 2020 shall be extended
by not less than three and not more than six months. The period of
extension (between three and six months) may be decided based on the
specific circumstances of the case and the period for which performance
was affected by the force majeure events.
5. It is clarified that invocation of FMC would be held valid only in a
situation where the parties to the contract were not in default of the
contractual obligations as on 19th February, 2020. It is further clarified
that invocation of FMC does not absolve all non-performances of a party
to the contract, but only in respect of such non-performance as is
attributable to a lockdown situation or restrictions imposed under any
Act or executive order of the Government/s on account of COVID-19
global pandemic. It may be noted that, subject to above stated, all
contractual obligations shall revive on completion of the period.
(Kotluru Narayana Reddy)
Deputy Secretary to the Govt. of India
Tel.No.: 24621305
Email: [email protected]
To,
Secretaries of all Central Government Ministries/Departments”

25. The said Office Memorandum states that the Office Memorandum dated
February 19, 2020 on the invocation of Force Majeure Clause (FMC) clarified
that disruption of supply chains due to spread of Corona Virus will be
covered under FMC which could be invoked wherever considered
appropriate. By referring to several Manuals it was stated that such
Manuals recognized extraordinary events or situations beyond human
control leading to delays in or non-fulfillment of contractual obligations and
in a situation of such events happening and after following due procedure,
parties to the contract are allowed flexibility to invoke FMC following
prescribed due procedure.
26. The said O.M. provides for invocation of “Force Majeure Clause” for all
construction/works contracts, goods and services contract and other
contracts. It speaks of extension of the period of lease for which performance
was affected by force majeure events.
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27. Upon going through the Office Memorandum dated May 13, 2020 it prima
facie appears to this Court that the lock down imposed on account of Covid
19 pandemic may fall within the expression “other happenings” used in
Clause 5 of part IX of the lease deed.
28. The petitioner has claimed extension of the period of lease on account of
stoppage of mining activities due to imposition of lock down on account of
onset of Covid 19 Pandemic as well as on other grounds.
29. This Court has to now consider whether the other grounds raised by the
petitioner apart from imposition of lock down on account of on set of Covid
19 Pandemic would also fall within the expression “ other happenings” used
in Clause 5 under part IX of the lease deed.
30. The co-ordinate bench in Radharaman Construction and Marketing
Private Limited (supra) after noting that the petitioner therein was unable
to carry on mining operation in view of a notification issued by the District
Administration restricting movement of all types of heavy loaded goods
vehicles for a certain period held that the petitioner was entitled to extension
of the period lost due to imposition of the restriction in terms of clause 5
under part IX of the deed itself.
31. At this stage it would be relevant to take note of the judgment dated
November 27, 2025 passed by the Hon’ble Division Bench in MAT 1304 of
2025 with CAN 2 of 2025 in the case of Dilip Mondal vs. The State of
West Bengal and ors. The Hon’ble Division Bench held that a Force
Majeure pertains to a natural calamity such as Act of God, war,
insurrection, riot, civil commotion, strike, earthquake, tide, storm, tidal
wave; flood, lightning, explosion, fire and other happenings, which the
Lessee/Lessees could not reasonably prevent or control. The Hon’ble
Division Bench further proceeded to observe that stoppage of mining
operation even if it was due to unlawful action on the part of the respondent
authorities which, though beyond the control of the lessee does not come
within any of the supervening impossibilities or Force Majeure as
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contemplated under the force majeure clause. It, therefore, follows that
stoppage of mining operation on account of an action of the respondent
authorities even if the same was unlawful would not fall within the
expression “other happenings” used in Clause 5 of part IX of the lease deed.
The appellate authority did not have the occasion to consider the decision of
the Hon’ble Division Bench in the case of Dilip Mondal (supra). However,
the order of the appellate authority suffers from perversity as observed
hereinbefore. Dilip Mondal (supra) is a binding precedent and, therefore,
this Court has applied the proposition of law laid down in Dilip Mondal
(supra).
32. Appellate authority as well as original authority also did not take into
consideration the effect of Office Memorandum issued from time to time by
the Government of India after the onset of Covid 19 Pandemic on the
invocation of Force Majeure Clause to the case on hand.
33. For all the reasons as aforesaid this Court is inclined to remit the matter to
the authority to take a fresh decision.
34. Since a substantial time has elapsed from the date of expiry of the lease,
this Court feels that the matter be remitted to the appellate authority.
35. Accordingly, the writ petition stands allowed and the order of the appellate
authority dated 31.07.2025 is set aside. The Appeal no. 14 of 2025 stands
restored to the file of the appellate authority and the appellate authority is
directed to hear out and decide the said appeal afresh and dispose of the
same by passing a reasoned order in the light of the observations made
hereinbefore and after affording an opportunity of hearing to the petitioner
or his authorised representative and/or any other affected party and
communicate the reasoned order to the petitioner as expeditiously as
possible but positively within a period of ten weeks from the receipt of a
server copy of this order.
36. There shall be, however, no order as to costs.
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37. Urgent photostat certified copies, if applied for, be supplied to the parties
upon compliance of all formalities.
38. Before parting, it is, however, made clear that the appellate authority shall
be free to decide on the applicability of the said O.M. dated 13.05.2020 to
the lease in question in accordance with law and upon hearing the petitioner
on such point.

(HIRANMAY BHATTACHARYYA, J.)

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