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2013 DIGILAW 776 (GAU)

Paramananda Choudhury v. State of Assam & Ors.

2013-11-05

NISHITENDU CHAUDHURY

body2013
N. Chaudhury, J.:- 1. By this application under Article 226 of the Constitution of India, petitioner who is proprietor of a Stone Crusher Unit named as M/s. Laxmi Enterprise at Baghmari, Biswanath Chariali, Sonitpur has challenged the legality of Office Memorandum dated 22.09.2005 issued by the Commissioner and Secretary of the Government of Assam Environment and Forest Department laying down certain guidelines for implementation in regard to issuance of license to Stone Crusher Unit. 2. Petitioner runs a Stone Crusher Unit under the name and style of M/s. Laxmi Enterprise, permission for which was granted by the SDO (Civil), Biswanath Chariali on 04.11.2003. He was permitted to set up and run the stone crushing machines under certain terms and conditions mentioned in the permission order for a period up to 31.12.2003. According to the petitioner the said permission has been subsequently extended from time to time and even as on the date the petitioner has valid permission in his favour for running the Stone Crusher Unit. It is further pleaded that while the petitioner was running the stone crushing unit without any hindrance from the authority, all of a sudden the Government in the Department of Environment and Forest issued an Office Memorandum on 22.09.2005 laying down certain guidelines for issuance of license of Stone Crushing Unit. The said office memorandum is quoted below: “It has been observed that most of the Stone Crusher Units on the State have been taking stone materials from other sources depriving the Government of Revenue. To prevent the practice of collecting stone materials from illegal sources and to enhance the Government Revenue substantially, Government after careful consideration has formulated the following guidelines from implementation by all concerned. (a) All the Stone Crusher Units should be given permit under Assam Mine Mineral Concession Rules, 1994 for collecting a minimum quantity of 3000 cum of stone per year on payment of 1.5 times more of Government Royalty plus other Taxes. However, the stone crusher units may apply for more quantity of materials depending on the plant capacity of crusher units. (b) Stone Crusher Units must lift the minimum stipulated quantity of materials every year, failing which their licenses are liable to be cancelled. The permits will be issued and monitoring may be done by respective Conservators of Territorial Circles. However, the stone crusher units may apply for more quantity of materials depending on the plant capacity of crusher units. (b) Stone Crusher Units must lift the minimum stipulated quantity of materials every year, failing which their licenses are liable to be cancelled. The permits will be issued and monitoring may be done by respective Conservators of Territorial Circles. (c) Renewal of crusher licence would depend on verification of collecting and crushing of permitted stipulated minimum quantity of materials and payment of royalty as mentioned at (a) above. (d) The Environment and Forest Department would preserve the right to cancel the licence of any crusher unit for failure to implement the above guidelines at any time. This may be brought to the notice of all concerned for immediate implementation. This will come into force with immediate effect.” 3. It would appear from the said office memorandum that minimum stipulated quantity of material has been fixed at 3,000 cum per year as a pre condition of granting licence and in Clause-b thereof the default clause has been inserted saying that if Stone Crusher Units fails to lift less than the aforesaid amount of 3,000 cum of materials then his license would be cancelled. Clause-(C) further highlights that the requirement of minimum extraction has to be scrupulously followed by the authority. 4. It is the case of the petitioner that the said guidelines are contrary to the proviso of Rule 31 of the Assam Minor Mineral Concessions Rules, 1994 and that the same has resulted in unreasonable restriction on the lawful trade of the petitioner by way of putting up an embargo under Clause (a) & (b) of the said office Memorandum. Rule 31 of the Assam Minor Mineral Concessions Rules, 1994, (herein further refers the Rules) provides that on an application made to the competent authority, a mining permit may be granted in Form L to any person to extract and remove from any specific land in any specific quantity under any one permit on prepayment of royalty. Rule 34 of the Rules provides the conditions under which Mining permission should be granted. Rule 34 of the Rules provides the conditions under which Mining permission should be granted. The said conditions require the time-limit, mode and place of payment of rents and royalties and compensation for damage to the land covered by the permit of the felling of trees in consultation with Divisional Forest Officer in case of forest areas with restriction on surface operation of any area etc. Nowhere in Form L or in Rule 31 is it mentioned that there is any requirement lower limit for extraction. Rather in Rule 31 there is a prohibition of extracting mineral exceeding 3,000 cum of stone per year. An upper limit is prescribed by the rules where as under the office memorandum the same has been provided as the lower limit, failing which his licence would be cancelled. Clause (a) and (b) of the office memorandum dated 22.09.2005, therefore, contradicts Rule 31 (1) as well as 34 of the Assam Minor Mineral Concessions Rules, 1994 and as such the office memorandum is liable to be adjudged as illegal. 5. This writ petition was filed way back in the year 2006 and the Office Memorandum dated 22.09.2005, was stayed by this Court on 31.03.2006 but in the last 7 years the Government has not filed any affidavit and even today when matter was called up for hearing no records have been produced to this Court. No submission has been put forward from the side of the Government advocate so as to defend the impugned office memorandum. 6. I have heard Mr. D.C. Kath Hazarika, learned counsel for the petitioner and Ms. M. Goswami, learned Government Advocate. 7. Annexure-B of the writ petition is the impugned office memorandum. It contains the objects and reasons for issuance of the office memorandum and the same is to prevent of collecting stone materials from illegal sources and to enhance the government revenue. Stone Crushing Unit collects stones from various quarries and then grinds the same to manufacture various sizes of stone chips for the purpose of building, roads and houses etc. Under Section 3 (e) of the Mines and Minerals (Regulation and Development) Act, 1957, such stones and gravels have been named as Mining minerals. Stone Crushing Unit collects stones from various quarries and then grinds the same to manufacture various sizes of stone chips for the purpose of building, roads and houses etc. Under Section 3 (e) of the Mines and Minerals (Regulation and Development) Act, 1957, such stones and gravels have been named as Mining minerals. The definition of mining minerals under Section 3 (e) is as follow: (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; 8. The impugned office memorandum shows that the proposed permit is to be issued under Assam Minor Mineral Concessions Rules, 1994. The said rules have been framed under the Mines and Minerals (Regulation and Development) Act 1957 (Sic). Mines and minerals have been defined under Rule 2 (e) of the said rules which shows that the definition under Section 3 (e) of the Mining and Minerals (Development and Regulation) Act, 1957 has been adopted in the Assam Rules. Except Rule 31 no other Rule is available in the said Section or Rules for grinding permits to any unit involving minor minerals engaged in collecting stone materials. It is true that under Rule 31 of the Rules there is no minimum quantity prescribed to obtain permission under Form L of the Rules for Rule 31(1), rather there is a prohibition against granting of permit exceeding 3,000 cum in quantity under any one permit. This is an upper limit and no lower limit or eligibility criteria have been laid down under the rules. Rule 34 lays down the condition on which mining permits should be granted. Mining on the other hand has been defined under Rule 2 (f) of the Rules as an activity to extract the mining minerals by surface quarrying or by underground methods of scraping, digging, picking or boring or by any other means. 'Mining permit' has also been defined under Rules and the same is meant for granting extraction and removal of specific quantity of any mining minerals from a specific area. 9. It is pleaded case of the petitioner that he runs the crushing unit by collecting and purchasing stones from various lessees of mohals who are licensed under the relevant law for such extraction and removal. 9. It is pleaded case of the petitioner that he runs the crushing unit by collecting and purchasing stones from various lessees of mohals who are licensed under the relevant law for such extraction and removal. A Stone Crusher Unit if itself is engaged in removal and extraction of the mining minerals in that event a permit under Rule 31 of the Rules may be necessary for him but in any other case when a stone crusher unit is not extracting or removing any mining minerals would not come under purview of Rule 31 of the Rules. The rules as referred to above do not appear to contain any provision for removing permit to the Stone Crusher Units. There is no provision for regulating the business of Stone Crusher Units in the Rules. Rules only contain provision for the purpose of extraction and removal of mines and minerals within the mining of Section 3 (e) of the Mines and Minerals (Development and Regulation) Act, 1957. On the other hand in Annexure-A, the permit has been issued to the petitioner for the purpose of running the stone crusher units which was issued under the permission of the SDO (Civil) and not under any authority under the Mining department. Annexure-A, therefore, cannot be construed to be one under the Assam Mines and Minerals (Development and Regulation) Act, 1957. Moreover the terms and conditions are also mentioned in the said Annexure-A. If the contention of the petitioner that the said Annexure-A has been extended from time to time is correct then the same terms and condition may also be applicable to the petitioner and as such there is no question of incorporation of any fresh terms and conditions therein. 10. Office Memorandum dated 22.9.2005 referred to above speak of issuance of permit under Assam Minor Mineral Concessions Rules, 1994, which on the other hand does not contain any provision for granting of permits to the stone crushing unit. Even if it is presumed that Rule 31 of the Rules would Govern granting of permission to the stone crusher units then apparently the office memorandum dated 22.09.2005 shall be hit by Rule 31(1) of the Rules inasmuch as the said rules does not contain any lower limit as its eligibility criteria for granting permit to stone crusher units. Rather the said rule provides for 3,000 cum per year as the upper limit. Rather the said rule provides for 3,000 cum per year as the upper limit. Under such circumstances, apparently the office memorandum dated 22.09.2005, appears to be in contravention of the Rule 31(1) of the Assam Minor Mineral Concessions Rules, 1994 and as such the said office memorandum is adjudged, ultra vires and illegal and accordingly, this writ petition is allowed. The office memorandum dated 22.09.2005 is hereby quashed. 11. This writ petition is closed. No order as to cost.