JUDGMENT : 1. Heard Mr. Suraj Narain Yadav, learned counsel for the petitioner, Mr. G.P. Ojha learned GA-7 for the State and Mr. Naresh Dixit, learned counsel for the Mines Department. 2. The petitioner has moved the Court for the following reliefs: “That this is an application for issuance of a writ in the nature of certiorari to quash the clause 19(Kha) and (Ga) of the general condition for businessmen of ordinary earth as incorporated in Memo No. 7655 dated 22.12.2017 issued under Rule 27 read with Rule 28 and 29 of 1972 Bihar Minor Mineral Concession Rules, 1972 (hereinafter called as BMMC Rules, 1972 and further for issuance of a writ in the nature of Mandamus and/ or any other appropriate writ, order or direction restraining the respondents to interfere in any manner the raiyats of the land for earth filing works in his own land by taking earth from his another land.” 3. It is unfortunate, that despite the Court on 23.03.2018 after hearing the matter in detail had recorded a detailed order and time given on prayer made by learned counsel for the Mines Department for filing counter affidavit and the matter directed to be listed after four weeks, the same has not been done. 4. No counter affidavit has also been filed on behalf of the State. 5. In such circumstances, the matter has been finally heard. 6. Learned counsel for the petitioner submitted that the impugned conditions imposed by the authorities, especially with regard to the requirement for the soil extracted from a person’s private land for his private use at another place is restricted to be transported through bullock cart or general cart (Thela) etc., is both unreasonable as well as impractical and also not permissible and beyond jurisdiction in view of the power conferred on the authorities under Rules 27, 28 and 29 of the Bihar Minor Mineral Concession Rules, 1972 (hereinafter referred to as the ‘Rules’). Learned counsel submitted that further, the requirement that if the transportation is through truck/tractor/vehicle, either within the same Panchayat or outside, the same would require an echallan after obtaining permit, is equally misconceived and impermissible. Learned counsel submitted that further, the requirement that if the transportation is through truck/tractor/vehicle, either within the same Panchayat or outside, the same would require an echallan after obtaining permit, is equally misconceived and impermissible. Learned counsel submitted that once the soil is excluded from charge of any royalty, if it is for non commercial purposes, especially with regard to the self use of the land owner, there cannot be any question of putting restrictions, much less, in the manner it has been done. Learned counsel submitted that the authorities cannot on the one hand, exempt the restriction of ordinary soil from the private land of a person from charge of any royalty but on the other hand, also put restrictions with regard to how the extracted soil is to be taken to the place required and further create two classes within that category. 7. Learned counsel for the State submitted that the authorities have power to issue such directions in view of the provisions of Rules 27, 28 and 29 of the Rules, where such conditions can be imposed by the Competent Officer for grant of quarring permits. It was submitted that the same has been done with a view to prevent misuse of such provision by which the State has taken a decision not to charge royalty only in cases where the soil is extracted for use by the person for himself and for non commercial purpose. 8. Learned counsel for the Mines Department adopted the arguments of learned counsel for the petitioner and further submitted that the conditions with regard to transportation is also permissible to be imposed by the authorities. However, on a direct query as to whether such provisions and power which the authority possessed has been invoked in the present case before issuing such directions, learned counsel was not able to show any such provision, under any Act/Rules/Regulations, which have been resorted to by the authorities while coming out with the provision, especially the ones under challenge. 9. Having considered the facts and circumstances of the case, and moreso in the absence of a formal response, either from the State or the Department of Mines, the Court finds that a case for interference has been made out. 9. Having considered the facts and circumstances of the case, and moreso in the absence of a formal response, either from the State or the Department of Mines, the Court finds that a case for interference has been made out. It is well settled law that the authorities can act within the power conferred on them either by the Act or the Statute or the Regulations and Rules promulgated thereunder. In the preset case, once specific Rules have been quoted under which it is purported that the conditions are being imposed i.e., Rules 27, 28 and 29 of the Rules, the test under judicial review has necessarily to be restricted to the extent of power available with the authorities under the said Rules. The said Rules are quoted hereinbelow for ready reference: “27. Grant of quarring permits in areas other than those in reserved or protected forests.-(1) On an application made to him, the Competent Officer may grant a quarrying permit in Form “E” to any person to extract and remove from any specified land within the limits of his jurisdiction any mineral [“excluding stone and murrum”] not exceeding [three thousand cubic metres] in quantity under any one permit, on pre-payment of royalty at the rates specified in Schedule II. Before granting such permit, the Competent Officer shall satisfy himself that the requirement of the permit is genuine and that it does not obviate the necessity of obtaining a mining lease in the area in respect of which the permit for extraction of the mineral has been applied for. (2) The Competent Officer may refuse the issue of such permits for reasons to be recorded by him in writing.” 28. Application for quarrying permit.-(1) An application for quarrying permit shall be submitted to the Competent Officer in Form ‘1’ (2) Every application for quarrying permit shall be accompanied by a fee of [Rs. 2000/]. (but for Bangla Brick Kiln the fee for quarring permit shall remain Rs. 200/-) only. (3) Every application for quarrying permit shall be accompanied by a valid and up-to-date clearance certificate of payment of mining dues, if any. 2000/]. (but for Bangla Brick Kiln the fee for quarring permit shall remain Rs. 200/-) only. (3) Every application for quarrying permit shall be accompanied by a valid and up-to-date clearance certificate of payment of mining dues, if any. (4) Every application of a quarrying permit shall, if the lands from which the minor mineral is to be extracted are raiyati lands, be accompanied by a written consent letter from the occupant of such lands to the effect that he has no objection to the extraction of the mineral by the applicant. (5) The application fee and royalty shall not be refunded if the raiyat subsequently refuses permission to the permit holder to work in the raiyati area. (6) Every application for the extension of the period of the permit shall be accompanied by a fee Rs. 200. (7) The area applied for grant of quarrying permit shall be in a compact block covering not more than 10 acres (4 hectares). 28A. Disposal of application for quarrying permit.-An application for the grant of quarrying permit shall be disposed of by the Competent Officer within 30 days from the date of its receipt. (2) If any application is not disposed of within the period specified in sub-rule (1), it shall be deemed to have been rejected [xxx] and disposed of after the said period of 30 days but not exceeding 60 days from the date of the receipt of the application. 29. Conditions on which the quarrying permit shall be granted.- (1) Every quarrying permit granted under rule 27 (1), shall contain a condition that the depth of the pit below the surface shall not ordinarily exceed [3 meters] and that for digging pits beyond [3 meters] the permit holder shall obtain the permission of the Competent Officer. (2) Any quarrying permit granted under rule 27 (1) may contain such other conditions as the Competent Officer may deem necessary in regard to the following matters, namely:- (a) Time limit, mode and place of payment of rents and royalties; (b) Compensation for damage to the land covered by permit; (c) Feeling of trees in consultation with Divisional Forest Officers in case of forest areas and in consultation with Divisional Forest Officers in case of forest areas and in consultation with the Additional Collector in other areas. (d) Restriction on surface operation in any area prohibited by any authority; (e) Reporting of accidents; (f) Indemnity of Government against claims of third parties; (g) Period within which the minor mineral shall be extracted and removed and delivery of possession over lands on the expiry of such period or on the removal of the quantity of the minor mineral for which the permit is valid; (h) Forfeiture of property left after cancellation of the permit; and (i) Disposal of Minerals in stock at site after expiry of the permit. (3) In case of breach of any of the conditions subject to which the permit is granted, the Competent Officer may cancel the permit issued by him. On cancellation of the permit, the quarried material lying on the land from which they are extracted shall become the absolute property of the Government and may be sole by public auction by the Competent Officer. (4) The Competent Officer after such enquiry and verification, as they may deem necessary, shall assess amount of royalty and penalty for the excess quantity at the end of the prescribed period. “(5) Every permit holder shall obtain a prior environmental clearance as specified in Rule 21A (2). (6) Every permit holder shall also abide by the following conditions- (i) The activity associated with mining/excavation of brick earth and ordinary clay/earth for purpose of brick manufacturing, construction of roads, embankments etc. shall not involve blasting. (ii) The mining/excavation activity shall be restricted to a maximum depth of 3m below normal ground level at the site. (iii) The mining/excavation activity shall be kept above the ground water table at the site. (iv) The mining/excavation activity should not after the natural drainage pattern of the area. (v) The mined/excavated pit shall be restored by the project proponent for useful purposes. (vi) Appropriate fencing all around the mined/excavated pit shall be made to prevent any mishap. (vii) Measures shall be taken to prevent dust emission by covering of mined/excavated earth during transportation. (viii) Safeguard shall be adopted against health risks on account of breeding of vectors in the water bodies created due to mining/excavation of earth. (ix) Workers/labourers shall be provided with facilities for drinking water and sanitation. (x) A berm shall be left from the boundary of adjoining field having a width equal to at least half the depth of proposed excavation. (ix) Workers/labourers shall be provided with facilities for drinking water and sanitation. (x) A berm shall be left from the boundary of adjoining field having a width equal to at least half the depth of proposed excavation. (xi) A minimum distance of 15m from any civil structure shall be kept from the periphery of any excavation area. (xii) No mining of earth/excavation of ‘brick earth’ or ordinary earth shall be permitted in case the area of mining excavation is within 1km of boundary of national parks and wild life sanctuaries: Provided that the permit holder shall abide by any other condition imposed or any instruction issued by the central Government/State Government in this regard.” 10. The impugned portion of Memo No. 7655 dated 22.12.2017 reads as under:- HINDI 11. From the aforesaid, it is clear that the Rules apply only where the Competent Authority has to grant quarring permit. Once the requirement of permit is there, obviously under Rule 29 of the Rules, conditions can be imposed. The Court would pause here and indicate that it has not gone into the reasonableness of the condition since the same is not required, inasmuch as, the Court is not considering such aspect and in the present case, the basic question is whether such restrictions can be imposed in view of the facts and circumstances of the present case where on the one hand, the authorities under Clause 19(Kha) of the impugned provisions have declared that the private land owners for non commercial use of their soil would not be required to pay royalty and further, even with regard to grant of permit, in Clause 19(Kha), the same is not required if it is certified by the Mukhiya and transported either by bullock cart, ordinary cart etc. and only in Clause 19(Ga), the restriction of obtaining a permit and e-challan is there when the person transports such soil by truck/tractor/vehicle. and only in Clause 19(Ga), the restriction of obtaining a permit and e-challan is there when the person transports such soil by truck/tractor/vehicle. The Court finds such sub-classification does not satisfy the test of reasonableness as once the soil of the land owner which belongs to him and is derived from his private land is to be utilized somewhere else on his land only without there being any commercial deal involved, being not subjected to any royalty, the mode and transportation cannot be controlled by the authorities under the garb of Rules 27, 28 and 29 of the Rules which come into play only where quarring permit is to be issued. Even here, the requirement of quarring permit only where there is transportation through truck/tractor/vehicle, is inexplicable as the said conditions are not there if the transportation is by way of bullock cart, ordinary cart etc. and in the same Panchayat. The basic principle for exemption from royalty being that a person is using his own earth from one portion of his property to another portion of his property and, thus, neither the ownership changes nor there is any commercial transaction is very sound and just. But in the considered opinion of the Court, putting restriction as have been put and making two categories i.e. requirement of quarring permit and e-challan only being restricted to the mode of transport of such earth by a person for his personal use from his personal land appears to be beyond jurisdiction and does not satisfy the test of reasonableness. The authorities may have power under various other statutory provisions of restricting movement/transportation of Mines and Minerals but the power has to be exercised only to the extent conferred under the concerned/relevant Statutes. In the present case, at the cost of repetition, the Court finds that once there is exclusion from levying of royalty and requirement of quarring permit, the requirement for such permit and also e-challan solely confined on the basis of mode of transportation of such extracted soil by a person from his personal land for his own use in another personal land of his, cannot be sustained. 12. Accordingly, the writ petition stands allowed. 13. 12. Accordingly, the writ petition stands allowed. 13. The conditions imposed for obtaining necessary permit and e-challan for transportation of soil by a person only if it is through truck/tractor/vehicle from his personal land for use at his any other personal property is set aside. However, it shall be open to the authorities to come up with necessary directions making uniformity with regard to the requirement of taking quarring permit and once the same is done, obviously, the authorities shall be within their jurisdiction to invoke the powers vested under Rules 27, 28 and 29 of the Rules for imposing reasonable conditions with regard to transportation etc.