High Court
Case Details
WP(C) 1991/2006 BEFORE THE HON’BLE MR. JUSTICE N.CHAUDHURY
Legal Reasoning
By this application under Article 226 of the Constitution of India, petitioner w ho is proprietor of a Stone Crusher Unit named as M/s. Laxmi Enterprise at Bagh mari, Biswanath Chariali, Sonitpur has challenged the legality of office memoran dum dated 22.09.2005 issued by the Commissioner and Secretary of the Government of Assam Environment and Forest Department laying down certain guidelines for im plementation 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. La xmi Enterprise, permission for which was granted by the SDO (Civil), Biswanath C hariali on 04.11.2003. He was permitted to set up and run the stone crushing mac hines 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 be en subsequently extended from time to time and even as on the date the petitione r has valid permission in his favour for running the Stone Crusher Unit. It is f urther pleaded that while the petitioner was running the stone crushing unit wit hout any hindrance from the authority, all of a sudden the Government in the Dep artment of Environment and Forest issued an office memorandum on 22.09.2005 layi ng down certain guidelines for issuance of license of Stone Crushing Unit. The s aid office memorandum is quoted bellow: (cid:28) 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 sou rces and to enhance the Government Revenue substantially, Government after caref ul 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 cu m of stone per year on payment of 1.5 times more of Government Royalty plus othe r Taxes. However, the stone crusher units may apply for more quantity of materia ls 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 Conservato rs of Territorial Circles. (c) Renewal of crusher licence would depend on verification of c ollecting 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 ri ght 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. (cid:29) [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 sa ying 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 fol lowed by the authority. [4] It is the case of the petitioner that the said guidelines are contrary t o 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 th e 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 com petent authority, a mining permit may be granted in Form L to any person to extr act and remove from any specific land in any specific quantity under any one per mit on pre-payment of royalty. Rule 34 of the Rules provides the conditions unde r which Mining permission should be granted. The said conditions require the tim e-limit, mode and place of payment of rents and royalties and compensation for d amage 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 surfa ce operation of any area etc. Nowhere in Form L or in Rule 31 it is mentioned th at 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 c ancelled. Clause (a) and (b) of the office memorandum dated 22.09.2005, therefor e, contradicts Rule 31(1) as well as 34 of the Assam Minor Mineral Concessions R ules, 1994and 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 me morandum dated 22.09.2005, was stayed by this Court on 31.03.2006 but in the las t 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 submis sion has been put forward from the side of the Government advocate so as to defe nd the impugned office memorandum. [6]
Legal Reasoning
I have heard Mr. D.C. Kath Hazarika, learned counsel for the petitioner and Ms. M. Goswami, learned Government Advocate.
Decision
[7] Annexure-B of the writ petition is the impugned office memorandum. It co ntains the objects and reasons for issuance of the office memorandum and the sam e is to prevent of collecting stone materials from illegal sources and to enhanc e the government revenue. Stone Crushing Unit collect stones from various quarri es and then grind the same to manufacture various sizes of stone chips for the p urpose of building, roads and houses etc. Under Section 3 (e) of the Mines and M inerals (Regulation and Development) Act, 1957, such stones and garvels have bee n named as Mining minerals. The definition of mining minerals under Section 3 (e ) is as follow: (cid:28) & & & &. (e) minor minerals means building stones, gravel, ordinary clay, ordinary sa nd 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; & & & &. (cid:29) [8] The impugned office memorandum shows that the proposed permit is to be i ssued under Assam Minor Mineral Concessions Rules, 1994. The said rules have bee n 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 (Devel opment and Regulation) Act, 1957 has been adopted in the Assam Rules. Except Rul e 31 no other Rule is available in the said Section or Rules for grinding permit s 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 criteri a has been laid down under the rules. Rule 34 lays down the condition on which m ining 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 surfac e 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 s ame is meant for granting extraction and removal of specific quantity of any min ing minerals from a specific area. It is pleaded case of the petitioner that he runs the crushing unit by c [9] ollecting 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 c ase 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 a bove does not appear to contain any provision for removing permit to the Stone C rusher 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 Mine s and Minerals (Development and Regulation) Act, 1957. On the other hand in Anne xure-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 a nd 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 Annexu re-A has been extended from time to time is correct then the same terms and cond ition 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 22.09.2005 referred to above speaks 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 crushin g unit. Even if it is presumed that Rule 31 of the Rules would Govern granting o f permission to the stone crusher units then apparently the office memorandum da ted 22.09.2005 shall be hit by Rule 31 (1) of the Rules inasmuch as the said rul es does not contain any lower limit as its eligibility criteria for granting per mit to stone crusher units. 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 allowe d. The office memorandum dated 22.09.2005 is hereby quashed. [11] This writ petition is closed. No order as to cost.