Foreign Trade Chamber Of Commerce, Meghalaya v. State of Meghalaya
2017-07-21
DINESH MAHESHWARI, VED PRAKASH VAISH
body2017
DigiLaw.ai
JUDGMENT : Dinesh Maheshwari, J. These two intra-court appeals, involving similar facts and directed against similar nature orders dated 03.07.2017, as passed by the learned Single Judge of this Court in the respective writ petitions filed by the appellants, have been considered together; and are taken up for disposal by this common judgment. 2. In brief, the relevant factual and background aspects are as follows: The appellants, said to be the societies registered under the Meghalaya Society Registration Act, 1983 and their functionaries [hereinafter also collectively referred to as 'the association's'], preferred the respective writ petitions [No. 392 of 2016 and No. 393 of 2016] seeking the following reliefs: "In the premises as aforesaid, it is humbly prayed that Your Lordships may be pleased to issue notice, call for the record and admit this petition and be pleased to issue a writ of mandamus to direct the State respondent: 1. to transport/weightment challan in favour of the members of the writ petitioner's association whose limestone had already assessed and duly quantified so as to enable them to export to the Import-Group, Bangladesh with payment of the requisite reclamation fees amongst others. 2. to make an assessment of the limestone lying on the surface of the quarries belonging to the members of the writ petitioner's association extracted prior to the pronouncement of the Judgment and Order dated 30-06-2015 passed in WP(C) No. 140 of 2014 by the Learned Division Bench of this Hon'ble Court within a time frame and 3. to issue transport challan/weighment challan to the members of the writ petitioner's association within a reasonable time so as to enable them to export the above extracted limestone to the Import-Group, Bangladesh as per law. 4. to enforce the Meghalaya Minor Concession Rules, 2016 immediately so as to enable the interested members of the writ petitioner's association to apply for necessary permission for mining/quarrying the limestone with such terms and conditions as required thereof and pass such order/orders as Your Lordships may deem fit." 3. The reliefs aforementioned were claimed in the writ petitions leading to these appeals with the averments, inter alia, that appellant-associations have been formed by the persons engaged in extraction and exporting of the limestone in the State of Meghalaya since long.
The reliefs aforementioned were claimed in the writ petitions leading to these appeals with the averments, inter alia, that appellant-associations have been formed by the persons engaged in extraction and exporting of the limestone in the State of Meghalaya since long. The petitioners/appellants asserted in the petitions that the mineral limestone extracted by their members was being normally carried by trucks and supplied to Bangladesh after payments of fees including royalty to the respondent-State at the designated weighbridges/check-gates. As regards the capacity and status of the members of the appellant-associations the appellants averred in the petitions as follows: "5. That it is placed on records here that some of the members of the writ petitioner's association themselves are miners and other members are involving/engaging in supplying and exporting of extracting limestone to 1 Being reproduced from the record of WA No. 38 of 2017 relating to WP(C) No. 392 of 2016 Bangladesh. They have been engaged in this business for the last many years as their profession to sustain their livelihood." 4. The petitioners/appellants referred to the fact that the Division Bench of this Court in its order dated 30.06.2015 as passed in WP(C) No. 140 of 2014, held that mining of coal and limestone in the State of Meghalaya had caused environmental damage and regulation of mining activities by the State was essential to safeguard the environment and ecological balance; and, therefore, directed that except in the cases where license for extraction of mineral had already been granted or lease deed for that purpose had been entered into as per the directions of the Hon'ble Supreme Court in the referred judgments, all other mining activities shall have to stop and the State shall not be granting any lease or license for extraction of minerals without: (i) consultation with CEC; (ii) drawing a comprehensive scheme; and (iii) creating a fund for reclamation. The petitioners/appellants further pointed out that a review petition bearing No. 10 of 2015 was also considered by this Court and by the order dated 26.11.2015, the directions for seeking clearance were modified in view of the fact that the State Level Environment Impact Assessment Authority [SLEIAA] had already been constituted.
The petitioners/appellants further pointed out that a review petition bearing No. 10 of 2015 was also considered by this Court and by the order dated 26.11.2015, the directions for seeking clearance were modified in view of the fact that the State Level Environment Impact Assessment Authority [SLEIAA] had already been constituted. The petitioners/appellants further averred that after noticing the mandamus so issued by this Court, their members immediately stopped the extraction of mineral and asked the respondent-State to make assessment of the extracted limestone so as to enable them to export the same. It was averred that the respondents, accordingly, assessed the extracted limestone belonging to some of the members of the petitioners/appellants but then, a large number of other members were left unaware for want of proper notice. 5. With these averments and while asserting that some of the persons had been permitted to transport/export the extracted mineral, but the others were not, it was also averred that though the Forest Department of the Government of Meghalaya deployed its second assessment team to carry out further assessment of the extracted limestone but again, several members of the associations were left out for want of publicity. The appellants also asserted that their members submitted a declaration on the quantum of extracted limestone with affidavit as required by the respondents but then, the respondents neither carried out the assessment of left over cases nor allowed their members to export the extracted limestone. The appellants further referred to a joint representation made by them and other corresponding associations on 04.10.2016 and stated the grievance that despite such representation, the respondents did not issue transport challan to any of their members, even on the basis of the second assessment of extracted limestone. 6. After the averments aforesaid, the petitioners/appellants also referred to the fact of promulgation of Meghalaya Minor Mineral Concession Rules, 2016 [hereinafter referred to as 'the Rules'/'the Rules of 2016'] as notified on 12.09.2016 and submitted that in view of such Rules, now their members were in a position to apply for quarrying limestone in the area permissible; and that they were "ready to apply for permission under the above Rules of 2016 as and when the respondent is ready to consider such application for mining activities" so that they may continue with their business as permissible by law.
The petitioners/appellants further averred that their members had been making payments of 10% of the total proceeds towards reclamation fees and apart from royalty, they were also making payment of Value Added Tax @ 5% of royalty and thus, they had been complying with all the statutory requirements and were further ready to fulfil the other statutory requirements and hence, directions were being sought that the respondents should assess the extracted limestone lying on the surface of quarries and issue transport challans so as to enable their members to export the minerals after paying reclamation fees, royalty, etc. 7. The learned Single Judge of this Court took note of the submissions of the parties and concluded on the writ petitions by way of the impugned orders dated 03.07.2017 with the following observations and directions: "3. Learned counsel for the petitioner, Mr. H.L. Shangreiso submits that initially when mining was started, it was started without any license or permission from the government due to absence of Mining Rules, but now as per the Mining Rules, they can do mining only after obtaining proper license or permit from the government and in that regard, the members of the petitioner's association have filed an application but the government has not given any importance, so he prayed for necessary direction. 4. On the other hand, Ms. P. Agarwal, learned State counsel for the respondents submits that there is a criminal case pending against two members of this association. 5. After hearing the submissions advanced by the learned counsels for the parties, I feel that this Court has nothing to do with the criminal case which has been charge-sheeted. Concerned Court to take its own course and decide the matter. 6. But in the case of the other members against whom there is no criminal case or any other proceeding pending and there is no bar by the Mining rules, assessment should be done within one month from the date of this judgment and order and issue permission/permit as well as transport challan to those applicants who deserve as per the rules of law. Government should also see to the limestone which has already been extracted may be allow to transport if rule permits. Petitioner's association are also directed not to indulge in any illegal mining or any kind of manipulation therein. 7.
Government should also see to the limestone which has already been extracted may be allow to transport if rule permits. Petitioner's association are also directed not to indulge in any illegal mining or any kind of manipulation therein. 7. With this observation and direction, the instant writ petition is allowed and stands disposed of." 8. Seeking to question the orders aforesaid - particularly where the desired relief, of directions against the respondents to issue them transport challans for removing the extracted limestone, has not been granted - the appellants have preferred these appeals with the submissions that their core grievance is against the delay in assessment and issuance of transport challan in regard to the limestone already extracted prior to the order dated 30.06.2015 in WP(C) No. 140 of 2014 but, the learned Single Judge has proceeded on a rather wrong understanding of the case as reflected in the orders impugned. 9. The learned counsel for the appellants has strenuously argued that though the State Government could have made the Rules in respect of minor minerals as per section 15 of the Mines And Minerals (Development And Regulation) Act, 1957 but earlier, no such rules were in place and the mining of limestone was being carried out as per the customary norms; and the excavated minerals were being transported after making due payments. This remains a fact, according to the learned counsel, that the extraction and removal of mineral did take place continuously and uninterrupted until prohibition by this Court in the order dated 30.06.2015; and the State-respondents were very much aware of the ongoing activities in the absence of the Rules but yet they did not prevent such activities and continued with the same and hence, shall be deemed to have acquiesced in continuation of extraction. This being the position, according to the learned counsel, transportation of the mineral that had been extracted prior to the decision of this Court deserves to be allowed without subjecting the miners concerned to go through the rigour of applying for permits and transport challans as per the Rules of 2016. 10.
This being the position, according to the learned counsel, transportation of the mineral that had been extracted prior to the decision of this Court deserves to be allowed without subjecting the miners concerned to go through the rigour of applying for permits and transport challans as per the Rules of 2016. 10. According to the learned counsel, substantial quantity of the extracted mineral had been laying on surface at the time prohibition was imposed by this Court; and in that regard, though the respondents initially did allow some of the extracted minerals to be transported but have later on stopped permitting such transportation, even after assessment of the extracted minerals; and this act of the respondents is causing serious prejudice to the members of the appellant-associations. 11. Learned counsel has further attempted to argue that the earlier activities, of minerals excavation and transportation after payment of royalty reclamation fees etc., were not inconsistent with the provisions of the Meghalaya Minor Mineral Concession Rules, 2016 now promulgated; and all such acts shall be deemed to have been carried out under the corresponding provisions as per Clause 39 of the Rules of 2016; and hence, transportation of mineral extracted prior to the prohibition by this Court deserves to be allowed. The learned counsel has also referred to the decision of the Hon'ble Supreme Court in Afcons Infrastructure Limited and Another v. Cherian Varkey Construction Company Private Limited and others : (2010) 8 SCC 24 to submit that even if the language employed in Clause 39 of the Rules of 2016 is somewhat ambiguous, a purposive interpretation need to be put in departure of the rule of literal interpretation, so as to advance the cause of justice and the purpose for which the Rules have been promulgated. 12. Learned counsel for the appellants has further referred to the decision of the Hon'ble Supreme Court in the case of Thressiamma Jacob and others v. Geologist, Department of Mining and Geology and others: (2013) 9 SCC 725 to submit that as per the land tenure system applicable to the concerned areas in the State of Meghalaya and as per the interpretation of the Hon'ble Supreme Court, the ownership of excavated minerals cannot be claimed by the State as such; and the ownership of the minerals would normally follow the ownership of the land unless the owner is deprived of the same by some valid process.
In relation to these arguments, when we queried the learned counsel for the appellants, if the claim in the writ petitions was at all founded on ownership rights and if the members of the appellants are the owners, the learned counsel submitted that may be, some of them are the owners of the land in question. 13. Learned counsel also made repeated submissions that the appellants and their members were ready to submit undertaking/s with affidavit/s that they will not carry out any further exploitation of mineral without compliance of the Rules of 2016 and will pay all the requisite taxes and fees; and with such undertaking/s and affidavit/s, the members of the appellant-associations deserve to be permitted to transport the extracted mineral. 14. During the course of submissions, when we expressed tentative reservations on the reliefs as claimed in these matters so as to allow transportation of the alleged extracted mineral despite promulgation of the Rules of 2016, the learned counsel for the appellants, in the last, made reference to an order dated 27.01.2016, as passed by the learned Single Judge of this Court in WP(C) No. 3 of 2016, to suggest that the learned Single Judge has upheld the rights of the persons carrying on traditional excavation and transportation of limestone and the said decision having become final, the members of the appellant-associations are entitled to the claimed reliefs. 15. Per contra, learned Additional Senior Government Advocate appearing for the respondents has submitted that all the contentions on the part of the appellants remain baseless in the face of the Rules of 2016 because now the grant of mining lease, quarrying permit as also issuance of challan for transport of minor minerals are governed and regulated by the Rules of 2016. Learned counsel has argued that the challan for transport of minerals can now be issued only as per Clause 26 of the said Rules and the appellants or other members cannot be permitted to bypass the requirements of law.
Learned counsel has argued that the challan for transport of minerals can now be issued only as per Clause 26 of the said Rules and the appellants or other members cannot be permitted to bypass the requirements of law. The learned Additional Senior GA has also argued that the reliefs as being sought, for transportation of alleged extracted mineral without complying with all the requirements of the Rules of 2016, rather stand at conflict with relief No. (4) as sought in the petitions where the appellants themselves prayed for enforcement of the Rules of 2016 so as to enable their members to apply for necessary permission for mining. 16. Having given thoughtful consideration to the rival submissions and having examined the record, we find no reason to consider any interference in this matter. Looking to the nature of relief as being sought, the only fault in the order of the learned Single Judge, in our view, had been that the writ petitions filed by the appellants were not dismissed outright, which we propose to do now. 17. A few relevant background aspects could at once be commented upon. When a questionable state of affairs, of limestone mining without any regulatory mechanism, had been prevalent in the State of Meghalaya; and in view of the law applicable and dictum of Supreme Court, such mechanism was required to be put in place and the unregulated activities were required to be curbed, the Division Bench of this Court took cognisance of the issue, may be in a case [WP(C) No. 140 of 2014] where the writ petitioner had been claiming his alleged right to maintain a forest check gate for collection of compensatory fees from the vehicles transporting mineral, and also took note of the directions of the Supreme Court in several cases including those in Goa Foundation v. Union of India & Others: (2014) 6 SCC 590 and ultimately directed in its order dated 30.06.2015 as under:- "29. We have already noticed hereinabove, that the Central Empowered Committee has been constituted by the Hon'ble Supreme Court with all India jurisdiction and for extraction of mines from the forest land of any kind, it is mandatory to take clearance under Forest (Conservation) Act. The State is only the guardian and trustee of natural resources and the people of the country are the owner.
The State is only the guardian and trustee of natural resources and the people of the country are the owner. Thus, the State Government cannot grant lease for extracting minerals in the State of Meghalaya without meeting the aforesaid requirements, and the Autonomous District Councils have no power to collect compensatory fee thereon which may encourage illegal mining activities and which can also be investigated into by the Central Bureau of Investigation as directed by the Supreme Court in T.N.Godavarman's case. It thus follows from the aforesaid discussions that the State Government, in order to reclaim the damage caused to the forest and the environment, as a result of mining activities, even if permitted under the rules, shall have to draw a comprehensive scheme and create a fund for reclamation wherefor an amount to the extent of not less than 10% of the sale proceeds of the minerals extracted under the licence or lease deed as provided in the judgment of Hon'ble the Supreme Court in Goa Foundation's case and being in accordance with the principle that a "polluter shall pay" can be validly charged. 30. For the reasons foregoing, we dismiss the writ petition with direction that, except in cases where licence for extraction of minerals has already been granted or lease deed for that purpose has already been entered into in accordance with the directions of Hon'ble the Supreme Court in the judgments referred to hereinabove, all other mining activities shall have to stop and in future the State shall not grant any licence or enter into a lease deed for extraction of minerals without (i) consultation with the CEC; (ii) drawing a comprehensive scheme and; (iii) creating a Fund for reclamation in the interest of sustainable development and intergenerational equity, and for the purpose of rectifying the damage caused to the forest and environment. 31. Let a copy of this judgment be issued to the Chief Secretary; the Principal Secretary (Forest), and the Principal Chief Conservator of Forests, Government of Meghalaya, for compliance." (underlining supplied for emphasis) 18. Two review petitions bearing Nos.10 and 11 of 2015 were filed in this Court in relation to the aforesaid order dated 30.06.2015 and interestingly, the said review petitions were examined by the Full Bench of this Court comprising of three Judges.
Two review petitions bearing Nos.10 and 11 of 2015 were filed in this Court in relation to the aforesaid order dated 30.06.2015 and interestingly, the said review petitions were examined by the Full Bench of this Court comprising of three Judges. It was, inter alia, submitted in MC No.13 of 2015 (relating to the Review Petition No.11 of 2015) by some individuals that they had been carrying on the quarrying of limestone since generations and their entire life, culture and economy revolved around such mining. It was also submitted that the land tenure system of the State of Meghalaya was entirely different and the decisions in Thressiamma Jacob (supra) and Lafarge Umiam Mining Pvt. Ltd. v. Union of India: (2011) 7 SCC 338 were referred. The Full Bench of this Court did not accept such contentions of the private parties but only granted the review petition of the State to the extent of altering its directions regarding CEC to those for SLEIAA. The Full Bench took note of the decision in Lafarge Umiam Mining Pvt. Ltd. case (supra) also and concluded on the review petitions and the miscellaneous applications in its order dated 26.11.2015 as follows: "15. In view of the above discussions, we are not required to exercise the review jurisdiction even though the aforesaid notifications were not available, for whatever reason, before the Court during the hearing of the writ petition. As such, the impugned judgment is modified only to a limited extent that since the statutory agency namely, State Level Environment Impact Assessment Authority (SLEIAA), Meghalaya has been constituted, now State shall seek clearance from the SLEIAA for grant of any license or lease for extraction of minerals which shall act in accordance with law instead of CEC.
As such, the impugned judgment is modified only to a limited extent that since the statutory agency namely, State Level Environment Impact Assessment Authority (SLEIAA), Meghalaya has been constituted, now State shall seek clearance from the SLEIAA for grant of any license or lease for extraction of minerals which shall act in accordance with law instead of CEC. As regards second and third directions, namely, (ii) drawing a comprehensive scheme and (iii) creating a fund for reclamation in the interest of sustainable development and intergenerational equity and for the purpose of rectifying the damage caused to the forest and environment, we do not find a valid ground to interfere for the simple reason that the private writ petitioners have heavily relied upon the mandate of judgment in Lafarge Umiam Mining Pvt Ltd v. Union of India and Others, reported in (2011) 7 SCC 338 in their review petition which has dealt with the issues behind the directions No.(ii) and (iii) of the impugned judgment passed in writ petition. The judgment in Lafarge Umiam Mining has been discussed and relied in Goa Foundation's case (supra). Our directions No. (ii) and (iii) of the impugned judgment are only based on the ratio of the Goa Foundation's case. Thus, we decline to consider the prayer for review of the said directions No.(ii) and (iii). 16. Thus, both the review petitions, namely, Review Petn. with Misc. Case No.10 of 2015 and Review Petn. with Misc. Case No.13 of 2015 stand disposed of with the aforesaid limited indulgence. Further, in view of grant of indulgence in the Review Petitions, both the Misc. Cases for condonation of delay are allowed." (underlining supplied for emphasis) 19. It appears that the very same person, who was applicant No.1 in Review Petition No.11 of 2015 that was rejected by the aforesaid Full Bench order dated 26.11.2015, later on preferred a writ petition [WP(C) No. 3 of 2016] in this Court on the same subject-matter; and the same was decided by the referred order dated 27.01.2016, wherein the learned Single Judge proceeded to carve out an exception from the aforesaid orders dated 30.06.2015 and 26.11.2015 as passed by the Division Bench and Full Bench of this Court so as to hold that excavation and transportation of limestone and sandstone may be carried on by the persons who are continuing with their so-called traditional excavation while observing as under: "10.
On conjoint reading of the judgment of Hon'ble the Apex Court in Lafarge Umiam Mining Private Limited and TN Godavarman Thirumulpad (supra), and the judgment and order of this Court dated 30.06.2015, it is crystal clear that the traditional excavation and transportation of limestone and sandstone under relevant Act, Rules and By-laws in the State of Meghalaya by the local inhabitants from a place which is not a forest as held by Hon'ble the Apex Court in Lafarge Umiam's case is not stopped by the Apex Court and this Court. But in future, the State Government shall not grant any new mining licence/lease or enter into a lease deed for extraction of minerals without (i) consultation with the CEC; (ii) drawing a comprehensive scheme and; (iii) creating a Fund for reclamation in the interest of sustainable development and intergenerational equity, and for the purpose of rectifying the damage caused to the forest and environment. 20. The learned Single Judge further observed that the directions of the Court in the order dated 30.06.2015 were prospective in nature and directed as under:- "13. For the aforesaid reasons, the respondents, more particularly respondents No.2 and 3, shall allow the petitioner and other similar situated persons, who were continuing on traditional excavation and transportation of limestone and sandstone at the time of passing of the judgment and order dated 30.06.2015 in WP(C) No. 140 of 2014, to continue the traditional excavation and transportation of limestone and sandstone under the Acts, Rules and By-laws in the State of Meghalaya. However, for grant of any new mining lease (excluding traditional excavation and transportation of limestone and sandstone), the State authority should seek clearance from the State Level Environment Impact Assessment Authority (SLEIAA) instead of CEC as directed in the said judgment and order of the court dated 26.11.2015. 14. This writ petition is allowed with the above directions." 21. In our view, in the face of clear, unambiguous and emphatic pronouncements of the Division Bench and Full Bench of this Court, in the aforesaid two orders dated 30.06.2015 and 26.11.2015, as passed in WP (C) No.140 of 2014 and then, in Review Petitions No.10 and 11 of 2015 [with Misc.
In our view, in the face of clear, unambiguous and emphatic pronouncements of the Division Bench and Full Bench of this Court, in the aforesaid two orders dated 30.06.2015 and 26.11.2015, as passed in WP (C) No.140 of 2014 and then, in Review Petitions No.10 and 11 of 2015 [with Misc. Case No.13 of 2015] respectively, the very maintainability of a writ petition by the same person, who was applicant in review petition No.11 of 2015 on the same subject-matter was questionable; and in any case, the said petitioner was not entitled to any relief by way of an exception out of the orders of Division Bench and Full Bench. In fact, the exception as claimed was not provided by the Division Bench and was rather declined by necessary implication by the Full Bench in the order dated 26.11.2015. We find it difficult to accept the contentions urged on behalf of the appellants with reference to the order of the learned Single Judge dated 27.01.2016 in WP (C) No.3 of 2016 in the face of the clear orders to the contrary by the Division Bench and Full Bench of this Court. Even the orders of the Supreme Court, as referred by the learned Single Judge in the order dated 27.01.2016 had, in fact, been considered in the Full Bench order dated 26.11.2015; and it had not been the case that the ratio of decisions in the aforesaid two orders dated 30.06.2015 and 26.11.2015 stood annulled or even modified by any subsequent decision of the Hon'ble Supreme Court. We do not wish to make any other comment in the matter but in the given set of circumstances, with respect, deem it proper to observe that the order dated 27.01.2016 as passed by the learned Single Judge in WP (C) No.3 of 2016 is not a good law and cannot be relied upon as a precedent. This is apart from the fact that the said decision by the learned Single Judge, even otherwise, now stands totally eclipsed with promulgation of the Rules of 2016. 22.
This is apart from the fact that the said decision by the learned Single Judge, even otherwise, now stands totally eclipsed with promulgation of the Rules of 2016. 22. As regards the suggestion made before us with reference to the decision of the Hon'ble Supreme Court in Thressiamma Jacob (supra), suffice it to observe that it had not been the case of the petitioners/appellants in the writ petitions that they or their members were claiming ownership rights over the alleged excavated mineral or even over the quarries in question. We have, at the outset, noticed the capacity and status of the members of the appellant-associations as suggested in the writ petitions i.e., as the alleged "miners" or alleged "suppliers/exporters". In view of the averments so taken and in the frame of the petitions where the appellants never made any such claim of ownership of their members and never claimed any relief based on alleged ownership, such a contention cannot be entertained in these appeals. 23. In sum and substance, the effort of the appellants is to seek transportation of mineral that had allegedly been extracted before passing of prohibitory order by the Division Bench of this Court. In our view, even if any such transportation had been permitted by the State in the past, now, with the promulgation of the Rules of 2016, there is no escape for any person from the operation of these Rules; and the transportation of the alleged extracted mineral could only be carried out in accordance with Clause 26 of these Rules. Being aware of this position, learned counsel for the petitioner has attempted to invoke Savings Clause (39) of the Rules of 2016. Clauses 26 and 39 of the Rules of 2016 read as follows:- "26. Challan for transport of minor minerals :- (1) The competent authority shall issue transport challans in Form H to any lessee or permit holder who intends to dispatch minor minerals from the lease or permit area. (2) No person shall transport or carry away any minor mineral from any place without a transport challan issued in accordance with sub-rule (1). (3) Any person who transports any minor mineral shall allow the competent authority or any other officer authorized in this behalf to inspect the minor mineral in transit and to examine the transport challan in possession of such person." "39. Savings.
(3) Any person who transports any minor mineral shall allow the competent authority or any other officer authorized in this behalf to inspect the minor mineral in transit and to examine the transport challan in possession of such person." "39. Savings. - Anything done or any action taken, including any order made, direction given or notice given shall in so far as it is in consistent with the provisions of these Rules be deemed to have been made, done, taken, made, given or issued as the case may be within the corresponding provisions of these Rules." 24. So far Clause 39 is concerned, we have found an obvious error in the phrase "so far as it is in consistent with the provisions of this rules". The expressions "in" and "consistent", as stated separately in the Clause aforesaid 2, do not properly convey the intended meaning of this Savings Clause occurring in the last in the Rules of 2016. If these two expressions are joined together to read the expression "inconsistent", it would practically mean that anything done inconsistent with the Rules would be deemed to have been done within the corresponding provisions of the Rules. There cannot be anything done inconsistent under any so called "corresponding" provisions of the Rules nor there appears any logic that anything inconsistent with these Rules is at all intended to be saved. Thus, the only correct intent of the said Clause could be of saving such act done or action taken which is consistent with the provisions of the Rules. In that sense, the word "in" before "consistent" appears redundant and unnecessary. Other way round, if the expression "in" is maintained in this Clause, the phrase "in consistent" is practically to mean "in conformity" so as to read thus: "so far as it is in conformity with the 2 as verified by the learned Addl.Sr.GA from the original record provisions of this rules". Viewed either way, the only correct interpretation of Clause 39 ibid. appears to be that anything done or any action taken in the past, in so far it is consistent with, or is in conformity with, the provisions of the Rules, would be deemed to have been done or taken under the corresponding provisions of the Rules and would, thus, be saved.
appears to be that anything done or any action taken in the past, in so far it is consistent with, or is in conformity with, the provisions of the Rules, would be deemed to have been done or taken under the corresponding provisions of the Rules and would, thus, be saved. As a necessary corollary, anything done or action taken, which is not in conformity with these Rules, is neither saved nor protected. Thus, Clause 39 of the Rules of 2016 does not inure to the benefit of the appellants; rather it operates against them. 25. For the purpose of quarrying and removing any specified quantity of minor minerals within a specified time, quarry permit could be applied for in accordance with Clauses 23 and 24 of the Rules of 2016 while submitting, inter alia, the forest and environment clearances, approved mining plans, pollution-control consents etc.; and on an appropriate application with all necessary clearances, such a quarry permit could be granted by the competent authority under Clause 25 subject to the terms and conditions specified in Form G appended to the Rules. Thereafter, Clause 26 of the Rules specifically provides for challan for transport of minor minerals with a clear prohibition that no person shall transport or carry any minor minerals from any place without a transport challan issued in accordance with Sub-clause (1) of Clause 26 of the Rules. The appellants are not only aware of these requirements but are also aware of their obligations thereunder but appear to be intending to avoid the same. This intent and purpose of the present litigation is, in fact, succinctly stated and highlighted by the appellants themselves in the following submissions in the synopsis accompanying the memo of appeal:- "The Learned Single Bench vide impugned judgment and order dated 03.07.2017 passed in WP(C) No. 392 of 2016 was please to allow the writ petition, but at the same time allowed the state respondent to consider the extracted limestone of the writ appellants to transport if the rules of 2016 permits.
Hence, the writ appellants are partially aggrieved with the above for the simple reason that the respondent state will again take the similar plea that the transport challan, after assessment within one month as directed by the Learned Single Bench, would be denied again to the members of the writ appellant's association due to want of requisite permits/license or lease obtained by them under the rules of 2016. Even the applications submitted by some of the members has been kept pending by the respondent state for more than one year. Thus, the lengthy procedure provided therein for licences/permits/lease will take long time and awaiting the same would continue to damage the quality of the extracted limestone lying in the field. In view of the above facts and circumstances of the case, this writ appeal has been preferred before this Hon'ble Court for limited prayer to interfere with the impugned judgment and order dated 03.07.2017 partially for the ends of justice and equity." 26. The attempted avoidance of the Rules of 2016, on the specious plea that lengthy procedure of obtaining licence/permit would take long time and the alleged extracted mineral would be damaged, cannot be countenanced. In the given set of facts and circumstances, the submissions that the appellants and their members are ready to submit undertaking/s, that they will not carry out any further exploitation of mineral without compliance of the Rules of 2016 and will pay all the requisite taxes and fees, remain hollow and baseless; and we see no reason to issue any writ, order or direction on the basis of such submissions so as to allow the appellants or their members to avoid the requirements of the Rules of 2016. 27. To sum up, we are clearly of the view that the suggestions as made in these appeals remain totally baseless where the appellants? intent is only to somehow seek a mandamus against the respondents that transportation of the alleged excavated mineral be allowed without adherence to the requirements of the Rules of 2016. We are clearly of the view that the relief as sought for is not based on any existing legal right in the appellants or their members and deserves to be declined.
We are clearly of the view that the relief as sought for is not based on any existing legal right in the appellants or their members and deserves to be declined. For what has been discussed hereinabove, the contentions on behalf of the appellants stand rejected and finding no case for relief as claimed, we are inclined to, even while dismissing these appeals, to modify the order of the learned Single Judge in the manner that the writ petitions filed by the appellants be dismissed altogether. 28. Accordingly, these appeals are dismissed but with modification of the order passed by the learned Single Judge in the manner that the writ petitions filed by the appellants stand dismissed in toto. However, having regard to the circumstances, we are not passing any order as regards costs.