High Court
Case Details
WP(C) 2234/2011 BEFORE HON’BLE MRS JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER (ORAL)
Legal Reasoning
Heard Mr. DP Chaliha, learned Senior counsel, assisted by Mr. UP Chaliha , Advocate, appearing for the petitioner. Also heard Mr. RK Bora, learned Addl. Senior Govt. Advocate, appearing for the respondents.
Decision
By filing the instant writ petition, a writ of mandamus has been sought 2. for directing the respondent authorities particularly, the respondent No.4 i.e. the Divisional Forest Officer, Cachar, Silchar to issue permit for extracting 50 00cm of stones/boulders from Nagadung @ Nagadum Nala under Udharbond Forest Rang e in accordance with the Rules in force considering the reports of the concerned authorities (Annexures-8, 9 and 10 to the writ petition) with a further prayer for a direction to the respondent authorities to dispose of the applications su bmitted by the petitioner for the same. The petitioner’s case in brief is that the petitioner is a resident of U 3. dharbond in Cachar District. There are series of Nalas (Cannels) surrounding the greater area of Udharbond Range in Cachar District. Stones/boulders are found a vailable lying in those Nalas (Cannels) namely Natki Nala, Nagadung @ Nagadum Na la and Tikal Nala etc. The authority of Forest Department allowed/issued permit from time to time to the interested persons for extracting fixed quantities of s tones/boulders from the aforesaid Nalas (Cannels) as provided under the Assam Mi nor Mineral Concession Rule, 1994 (Rules 1994 for short), because due to heavy c urrent water of the Nalas, round the year a huge amount of boulders/stones accum ulated from upper reaches of the Borail Hill’s ranges. As a result, during monso on season water level increased and thus the neighboring areas are affected by f lood water. Therefore, the Department of Forest from time to time allowed intere sted local people to lift the excess stones/boulders by issuing permit under the Rules, 1994 to maintain balance of the water level. The petitioner being an educated unemployed youth submitted an applicati on before the authority in the year 2007 for issuing permit for extraction of 50 00cum of stones/boulders from Nagadung @ Nagadum Nala under Udharbond Forest Ran ge in the district of Cachar. After waiting for a considerable period of time wh en his prayer was not considered, finding no other alternative, the petitioner f iled the instant writ petition with the aforesaid prayer. An affidavit-in-opposition has been filed in the instant case by respond 4. ent No.4 i.e. Divisional Forest Officer, Cachar Division, Silchar denying the av erments made in the writ petition, contending inter alia, that the Range Forest Officer, Udharbond Range has been asked to report regarding present position of the stone materials in the Nala in question, for consideration of the case of th e petitioner. However, report has not been received till date. Therefore, keepin g the application submitted by the petitioner pending is not correct. The learned State counsel has also brought to the notice of the Court th e prohibitory order dated 22.06.2010 passed by a Division Bench of this Court in PIL No.18/2008, whereby this Court had restrained extracting of stones from Mad hura Stone Mahal in the district of Cachar. 5. An additional affidavit has also been filed by the Deputy Conservator of Forest, Assam, taking the stand that the permission to collect stone/boulder fr om the Nagadum Nala cannot be granted, the same being Nagadum Unclass State Fore st (USF for short) as it will amount to non-forestry activity which is prohibite d under the Forest (Conservation) Act, 1980. That apart as per the Apex Court or der passed in IA No.12-13 of 2011 in SLP (C) No.19628-19629 of 2009 (Deepak Kuma r Vs. State of Haryana), the Environmental Impact Assessment (EIA) has to be con sidered before stone is lifted/quarrying from the concerned areas. Countering the statements so made by the learned State counsel, Mr. Chal 6. iha, learned Senior counsel has submitted that in the PIL petition, the State Go vernment filed a review petition seeking modification of the order dated 22.06.2 010 and the Division Bench of this Court vide order dated 08.01.2013 passed in R eview Petition No.115/2010 in PIL No.18/2008 modified the order dated 22.06.2010 and in the interim allowed to remove the stones departmentally with certain ter ms and conditions. The Government accordingly extracted the stones without using excavators or by blasting i.e. complying with the terms and conditions as set o ut by the Court. The said PIL petition No.18/2008 is pending for disposal. 7. Mr. Chaliha has further submitted that while the petitioner’s case was n ot considered and his case was pending since long, in the meantime, another perm it has been issued on 28.09.2011 vide DFOS No.6/7(ii)/AMMC/6179-80 to one Shri R ama Ranjan Barman under the Rules 1994. The said permit has been issued for coll ection/removal of 1000 m3 stones from the Nagadum Nala, which falls in the same area for which the petitioner has prayed for allowing him to extract 5000 cum of stones/boulders. 8. Mr. Chaliha, therefore, submits that the stand of the authority is discr iminatory and violative of Article 14 of the Constitution of India, inasmuch as, there is discrimination per se between the petitioner and Shri Barman to whom t he authority allowed to extract stones, that too in the same area. In the above background, petitioner’s main grievance is that he has been singled out and not treated similarly with the person similarly situated. 9. I have heard learned counsel appearing for the parties. Also perused the materials on record. Considering the inherent contradiction in the stand of the authority and also considering the fact that from the said area (i.e., Nagadum Nala) one Shri Barman was allowed to extract stones/boulder, in my considered op inion, the writ petition may be disposed of with some direction to the appropria te authority. 10. Accordingly, respondent No.2 i.e. the Principal Chief Conservator of For est, Guwahati is directed to consider the case of the petitioner taking into acc ount the above facts. Such order after consideration of the petitioner’s case wo uld be passed within a period of 4(four) weeks from the date of receipt of the c ertified copy of this order. 11. The writ petition, accordingly, stands disposed of. However, there shall be no order as to costs.