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2022 DIGILAW 242 (MEG)

M. M. Sangma v. State of Meghalaya

2022-09-08

W.DIENGDOH

body2022
JUDGMENT 1. The petitioners have stated that they are the Nokmas of 11(eleven) different Akhinglands all situated in the South Garo Hills District of Meghalaya. Due to various difficulties, the petitioners have jointly nominated Shri Santosh R. Marak as their duly appointed Attorney to file this writ petition and to appear on their behalf before this Court. 2. Heard Mr. S.P. Mahanta, learned Sr. counsel along with Mr. M. Lyngdoh, learned counsel for the petitioners who have submitted that the Government has enacted the 'Garo Hills District (Awil fees) Act, 1960' to provide for levy of certain fees, including royalty on forest produce extracted from the Akhingland. Forest produce according to the petitioners also includes coal, which fact was clarified by the Chief Forest Officer, Garo Hills Autonomous District Council, Tura on 02.08.2013 in reply to an RTI query made by the Attorney of the petitioners herein (Annexure-2 of the writ petition). 3. It is also submitted that as per the provision of the said Garo Hills District (Awil) Fees Act, Section 5(a) entitles the Nokma/petitioners to get 25 % of the total Awil fees collected by the Garo Hills Autonomous District Council (GHADC). This situation was prevalent till the year 1995, as the petitioners were receiving 12.5% that is, half of 25 % of the Awil fees from the GHADC in cash as part of their share. 4. However, after the year 1995, the petitioners did not receive their share of the Awil fees from the respondent GHADC and even after they have approached the authority concerned, nothing was forthcoming. It is later reliably learnt that there was issued a Governor's Order dated 14.02.1995 which is essentially an order of allocation of the share of royalty on coal between the State Government and the three Autonomous District Councils in the State, which was calculated in the ratio of 3:1. 5. The learned Sr. counsel has again submitted that the petitioners through their Attorney have submitted a representation to the respondent Secretary of the Executive Committee of the GHADC on 05.12.2013 with a prayer for release of their share of the Awil fees of the eleven petitioners calculated from the year 1995 till 2013, which amounted to ? 4,11,02,974/- (Rupees four crores, eleven lakhs, two thousand nine hundred and seventy four) only. 4,11,02,974/- (Rupees four crores, eleven lakhs, two thousand nine hundred and seventy four) only. This amount was ascertained from the respondent No. 5 who has responded to an RTI query dated 24.06.2013 made by the Attorney of the petitioners vide letter dated 11.07.2013. 6. In response to the said representation dated 05.12.2013, the Secretary, Executive Committee, GHADC vide letter under Memo No. CF.720/OC/Genl/2011/67-70 dated Tura the 24th April 2014 has informed the petitioners that since the State Government has taken over the collection of revenue/tax from (Coal) major mineral from the hands of the GHADC since the year 1995 and that the GHADC has been receiving only an adhoc advance of 25% of the same, it is therefore not in a position to pay the 12.5% share of the Nokmas in cash as prayed for by the petitioners. 7. The petitioners then filed another representation dated 09.06.2014 before the respondent Director of Mineral Resources, Government of Meghalaya, Shillong praying for release of the 12.5% share of the Awil fees and on no reply received, had filed a reminder dated 01.07.2014 and here too, no reply was received even after two and a half months and being aggrieved by the attitude of the respondent authority, the petitioners through their Attorney has then approached this Court with this instant petition. 8. The learned Sr. counsel for the petitioners has also submitted that prior to the year 1995, the respondent GHADC has been issuing 'Transit Pass' to all the vehicles carrying forest produce, including coal from the respective Akhingland belonging to the eleven petitioners herein and has also been paying the 12.5% share of the Awil fees to the petitioners after acknowledging due receipts thereof. However, since 15.01.1995, no Awil fees have been paid to the petitioners, to which they are legally entitled as per the Garo Hills District (Awil fees) Act, 1960. 9. To counter the stand taken by the State respondents No. 1-5 which was also a similar stand taken by the respondents-GHADC that coal is not a forest produce under the relevant provisions of Garo Hills District (Awil fees) Act, 1960, the learned Sr. counsel for the petitioners has submitted that by its own admission, the respondent-GHADC through its Chief Forest Officer in response to the RTI query made by the petitioner has vide letter dated 02.08.2013 (Annexure-3) admitted that '...1. counsel for the petitioners has submitted that by its own admission, the respondent-GHADC through its Chief Forest Officer in response to the RTI query made by the petitioner has vide letter dated 02.08.2013 (Annexure-3) admitted that '...1. Paragraph (12) of chapter I of the Garo Hills District (Forest) Act, 1958 excludes certain minerals which are known as 'Minor Minerals' in which minerals like coal is not mentioned, hence, coal can be considered as Forest Produce for the purpose of the Garo Hills Autonomous District Council. Further, chapter-III of the same Act has incorporated the chapters iv, vi, vii, viii, x and xi of the Assam Forest Regulation, 1891. Therefore, under chapter vi of the Assam Forest Regulation, 1891, Garo Hills Autonomous District Council is authorized to control all forest produce including minerals like coal in transit by land or water from Garo Hills to Assam.' 10. Referring to the provisions of the Indian Forest Act, 1927 the learned Sr. counsel has submitted that Section 2(iv), Forest produce includes peat, surface soil, rock and minerals (including lime-stone, laterite, mineral oils, and all products of mines or quarries) which definition was also followed under the Assam Forest Produce, 1891. 11. Finally, the learned Sr. counsel has submitted that the Apex Court in its decision rendered on 15.09.2017 in the case of State of Uttarakhand & Ors v. Kumaon Stone Crusher: (2018) 14 SCC 537 at paras 71, 72, 73 and 74 has held that coal is clearly a forest produce and as such, the share of 25% received by the respondent-GHADC of the royalty from coal, 12.5% of the same should be allocated as the share due and payable to the petitioners as provided under Section 5(a) of the Garo Hills District (Awil fees) Act, 1960. 12. It is prayed that this petition may be allowed and the concerned respondents may be directed to release the 12.5% share of the Awil fees to the eleven petitioners herein along with interest calculated for delayed payment. 13. Per contra Mr. S. Sengupta, learned Addl. Sr. GA on behalf of the State respondents No. 1-5 has submitted that the petitioners have made a belated attempt in approaching this Court at this stage since the petition seeks to unsettle matters which have attained finality decades ago. 13. Per contra Mr. S. Sengupta, learned Addl. Sr. GA on behalf of the State respondents No. 1-5 has submitted that the petitioners have made a belated attempt in approaching this Court at this stage since the petition seeks to unsettle matters which have attained finality decades ago. In this regard, it is a well settled principle of law that the law will assist only those who are vigilant and not those who sleep over their rights. The maxim of 'Vigilantibus Non Dormientibus Jura Subveniunt' (The law assists the vigilant, not those who sleep) will be applicable in this case. On the ground of delay and laches alone, this petition is liable to be dismissed at the threshold. 14. In this regard, the case of State of Maharashtra v. Digambar: (1995) 4 SCC 683 was referred to by the learned Addl. Sr. GA to say that the Hon'ble Supreme Court in this case has held that petition brought almost twenty years after the alleged wrongful action is liable to be rejected on the ground of laches alone. Another case cited is the case of Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati & Ors: AIR (1969) SC 329. 15. It is also submitted that coal is a major mineral and minerals like coal etc., are not under the control of the GHADC since such minerals are under the control and supervision of the State Government. The notification dated 14.07.1995 issued by the Governor of Meghalaya under paragraph 9(2) of the 6th Schedule of the Constitution of India has determine that royalty collected on coal produced from an autonomous district council area shall be shared between the Government and the concerned autonomous district council in the ratio of 3:1 with effect from 15.01.1995. 16. On the contention of the petitioners that coal is a forest produce, the learned Addl. Sr. GA has submitted that the definition of 'Forest Produce' under the Garo Hills District (Forest) Act 1958 is found at sub-Section 12 of Section 2 reading as follows: '2. 16. On the contention of the petitioners that coal is a forest produce, the learned Addl. Sr. GA has submitted that the definition of 'Forest Produce' under the Garo Hills District (Forest) Act 1958 is found at sub-Section 12 of Section 2 reading as follows: '2. (12) A 'Forest produce' means anything excluding stones, boulders, shingle, gravel, limestone, canker and all other materials which are defined as Minor Minerals under Rule 3(iii) of the Mineral Concession Rules, 1949, when found in, or brought from, any forest under the jurisdiction of the District Council and shall include:- a) Trees, leaves and fruits and all other parts and produce of trees; b) Plants not being trees including grass, creepers, seeds, moss, orchids and all parts and produce of such plants; c) Skins, tusks, horns, bones, silk-cocoons, honey and wax and all other parts or produce of animals.' 17. It is admitted that before 1995, the GHADC was collecting royalty from coal directly and as provided under Section 5(a) of the Garo Hills District (Awil fees) Act, 1960 the share of the Nokmas who are in-charge of the Akhingland used to be disbursed. However, as pointed out since the State Government has taken over the exercise of collecting royalty from coal, therefore the GHADC no longer has jurisdiction over this subject and the provisions of the Acts and Rules enacted by the GHADC would not be applicable to the parties as far as collection of royalty of coal is concerned. 18. Mr. S. Dey, learned standing counsel for the respondents-GHADC has at the outset questioned the locus of the General Power Attorney Holder who has filed this petition on behalf of the petitioners by submitting that the General Power of Attorney dated 25.06.2013 executed in favour of Shri. Santosh R. Marak was without the permission of the Chras and Maharis of the respective Akhing since the same is alien to the principle of Garo Customary Law where the ownership of the property of the Akhing lies with the clan/mahari with the female Nokma as the custodian. 19. Mr. Dey has also submitted that the contention of the petitioners that coal is a forest produce cannot be accepted since the definition of coal as could be found from Black's law dictionary is that it is 'a combustible mineral substance found in large deposits. 19. Mr. Dey has also submitted that the contention of the petitioners that coal is a forest produce cannot be accepted since the definition of coal as could be found from Black's law dictionary is that it is 'a combustible mineral substance found in large deposits. It is considered to be a fossil fuel, being formed from plants that have been fossilized through oxidation. The end result is a black, hard substance capable of burning.' 20. On the other aspects of whether coal is a forest produce or not, the learned standing counsel has also submitted that coal has been defined as a major mineral particularly under the Mines and Minerals (Development and Regulation) 1957 and the rules made thereunder, it is therefore not a forest produce. The reliance of the petitioner in the case of Kumaon Stone Crusher (supra) is untenable as the same relates to the Forest Act of 1957 whereas, the case of the petitioners is in connection with the Garo Hills District (Forest Act), 1958 read with the Garo Hills District (Awil Fees) Act, 1960 and if read with the provisions of the Mines and Minerals (Development and Regulation) 1957 and the Mineral Concession Rules, 1960, it is clear that the definition of Forest Produce does not include coal. The case of State of Meghalaya v. All Dimasa Students Union, Dima Hasao District Committee & Ors: (2019) 8 SCC 178 paras 142, 146 and 147 have been cited in support of this contention. 21. Here too, the respondents-GHADC has asserted that the case of the petitioners is devoid of merit and the same may be dismissed accordingly. 22. In the lis between the parties herein, there is no denial of the fact that the petitioners are the Nokmas of their respective Akhingland. There is also no dispute that under the provisions of the Garo Hills District (Awil fees) Act, 1960, the petitioners are entitled to 25% of the Awil fees, Awil fees being such fees as was assessed on timbers and all forest produces falling within the area of an Akhing in the District. 23. What could be understood is that the GHADC would collect the Awil fees assessed on timbers and all other forest produce as defined in Section 2 of the Garo Hills District (Forest) Act, 1958. 23. What could be understood is that the GHADC would collect the Awil fees assessed on timbers and all other forest produce as defined in Section 2 of the Garo Hills District (Forest) Act, 1958. As provided under Section 5 of the Awil Fees Act, the Nokma of the Akhing shall be entitled to a share of 25% of the total Awil fees collected from within his Akhing. 24. In the notification dated 14.02.1995 the Governor of Meghalaya has notified that on royalty from coal found in the areas of the three District Councils in the State, the Garo Hills Autonomous District Council being one of the three, the share from such royalty would be in the ratio of 3:1, that is, 75% to the State and 25% to the District Council. This notification specifically relates to royalty on coal, which royalty was also collected by the State Government. Therefore, one cannot relate this process with the process of collection of Awil fees which is done by the District Council. The claim of the petitioners that the share of royalty on coal allocated to the GHADC can be construed as Awil fees, for which the respective share to the Nokmas has to be given is not well founded as no correlation could be seen between the collection of royalty on coal and the collection of Awil fees. The petitioners are however entitled to the share of the Awil fees collected by the GHADC under the said Awil Fees Act of 1960. 25. The reliance of the petitioners in the case of Kumaon Stone Crusher (supra) at para 72 of the same wherein the Hon'ble Supreme Court has come to a conclusion that coal is a forest produce is found to be valid as far as the definition of coal is concerned, however as observed above, in the context of this case, the same would not help the petitioners since the GHADC has ceased to collect Awil fees on coal on the same being taken over by the State Government on the strength of the said notification dated 14.02.1995. 26. A pertinent issue brought forth by the State respondents which requires consideration by this Court is the issue of delay and laches. 26. A pertinent issue brought forth by the State respondents which requires consideration by this Court is the issue of delay and laches. The State respondents has submitted that the case of the petitioners cannot be considered since they have not shown due diligence and urgency to seek redressal of their alleged grievance, which according to them, arose soon after the year 1995 when their share of the Awil fees was stopped. 27. It is reiterated that the petitioners have stated that prior to the year 1995, they have been receiving their share of the Awil fees from the respondents/GHADC but as stated above, this was stopped soon after the order of the Governor in the year 1995 as regard the share of the royalty on coal. The petitioners have submitted that they have approached the respondents/GHADC on several occasions, but no response was forthcoming. However, the petitioners have not been able to cite instances on which they have approached the respondents/GHADC, but has only made bald averments in this regard. 28. In the year 2013, the petitioners have decided to approach the respondents/GHADC by way of a representation preferred through their duly appointed Attorney who has filed the representation on 05.12 2013. This, is the first formal approach of the petitioners before the concerned authority to demand payment of their share of the Awil fees as aforesaid. 29. Being denied their share of the Awil fees since the year 1995 onwards, the fact that the petitioners have made their first move in this regard to claim the same, after a period of about 18(eighteen) years or so, speaks volumes of the seriousness of the petitioners to assert their rights or to get the same adequately redressed. To have woken up only after 18 years or so to demand their rights or rather the Awil fees due and payable to them also demonstrates their lackadaisical attitude in this regard. The petitioners have also failed to provide adequate and plausible reasons as to why they have approached this Court very late in the day. The contention of the State respondents that the principles of delay and laches will be applicable to the case of the petitioners cannot be far from the truth. 30. The petitioners have also failed to provide adequate and plausible reasons as to why they have approached this Court very late in the day. The contention of the State respondents that the principles of delay and laches will be applicable to the case of the petitioners cannot be far from the truth. 30. This Court in the case of Deliha D. Sangma in WP(C) No. 74 of 2017 has dealt with the issue of delay and laches at para 22, 23 and 24 which is reproduced as under: '22. The maxim 'Vigilantibus Non Dormientibus Jura Subveniunt' which means that the law assists those who are vigilant with their rights and not those that sleep thereupon is very much applicable to the case of the petitioner as regard the approach to the authority with the representation for re-survey and re-measurement of the land acquired considering the fact that there is a gap of almost 27 years from the year of acquisition which is 1983 to the year 2010 when the first representation was made. 23. In the case of State of M.P & Ors v. Nandlal Jaiswal & Ors: (1986) 4 SCC 566 , para 24, the Hon'ble Supreme Court has held as follows: '24. Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent of the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction...' 24. Again, in the case of Chennai Metropolitan Water Supply and Sewerage Board & Ors. v. T.T. Murali Babu: (2014) 4 SCC 108 , para 16 the Hon'ble Supreme Court has held as follows: '16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in must circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of the litigant-a litigant who has forgotten the basic norms, namely, 'procrastination is the thief of time' and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.' 31. The maxim 'Vigilantibus Non Dormientius Aequitas Sebventil' which means that Equity aids the vigilant, not the ones who sleep over their rights can also be said to be applicable in the case of the petitioners. 32. In the case of Maharashtra State Road Transport Corporation (supra) at paragraph 11 relied upon by the State respondents, the Hon'ble Supreme Court on the doctrine of laches has observed as follows: "11...Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy...' 33. On this count too, this Court would deem that the petitioners have failed to exercise their rights, if any, at the relevant and proper period which approximately dates back to 1995 when the payment of their share of the Awil fees was stopped by the GHADC, but has instead chosen to agitate the matter only in the year 2013 and following. Therefore, the principle of delay and laches for which no reasonable explanation was given, would be applicable to convince this Court that at this point of time the grievance raised by the petitioners has lost its relevance. 34. The contention raised by the respondents-GHADC as far as the locus standi of the Attorney of the petitioners is concerned, need not be discussed as this Court has chosen to decide this case on some other consideration. 35. In view of the above, this Court finds that the petitioners have not been able to make out a case for consideration and this petition being devoid of merits, the same is accordingly dismissed. 36. Petition disposed of. No costs.