Gauhati High Court
Abdul Munim Barbhuiya vs The State Of Assam And 5 Ors on 15 December, 2021
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GAHC010200442021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6285/2021
ABDUL MUNIM BARBHUIYA
CONTRACT HOLDER OF ARANG MINOR MINERAL UNIT NO.1, S/O. T.
ABDUL KAYUM BARBHUIYA, VILL. BHANGARPAR PT-I, P.O.
BHANGARPAR, PIN-788817, DIST. CACHAR, ASSAM.
VERSUS
THE STATE OF ASSAM AND 5 ORS
TO BE REP. BY COMM. AND SECY., DEPTT. OF FORESTS, DISPUR,
GUWAHATI-781006.
2:PRINCIPAL CHIEF CONSERVATOR OF FOREST AND HEAD OF THE
FOREST FORCE
ASSAM
ARANYA BHAWAN
PANJABARI
GUWAHATI-781037.
3:ADDL. PRINCIPAL CHIEF CONSERVATOR OF FOREST (SIO)
O/O THE PCCF AND HEAD OF THE FOREST FORCE
ASSAM
ARANYA BHAWAN
PANJABARI
GUWAHATI-781037.
4:MEMBER SECRETARY
STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (SEIAA)
BAMUNIMAIDAN
GUWAHATI-21.
5:THE CHIEF CONSERVATOR OF FOREST
SOUTHERN ASSAM CIRCLE
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SILCHAR
PIN-788001.
6:DIVISIONAL FOREST OFFICER
KARIMGANJ DIVISION
KARIMGANJ
PIN-788710
Advocate for the Petitioner : MR S N SARMA SENIOR ADVOCATE
Advocate for the Respondent : SC, FOREST
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
15.12.2021
Heard Mr. S. N. Sarma, learned senior counsel assisted by Mr. M. H. Rajbarbhuiyan,
learned counsel for the petitioner and Mr. K. P. Pathak, learned Standing Counsel, Forest for
the respondent Nos. 1, 2, 3, 5 and 6. Also heard Mr. B. Deuri, learned Government Advocate,
Assam for the respondent No. 4.
2) The Divisional Forest Officer (DFO, in short), Karimganj Division, Karimganj,
respondent No. 6 on 05.09.2013 issued Sale Notice inviting sealed tender for grant of mining
contract under the provision of Rules 32 (1) and 33 (1) of the Assam Minor Mineral
Concession Rules, 2013 for collection of Boulder/ Stone/Gravel/Sand Gravel on tender sale
basis in the specified area under the said Division, including Arang Stone Minor Mineral Unit
No.1 specifying amongst others that the successful bidder shall have to get the mining plan
prepared and approved by the Competent Authority (Director, Geology and Mining) as per
provision of Rules and bear all costs and further that the successful bidder shall have to
obtain within a period of 45 days or within the extended time an Environment Impact
Assessment (EIA) clearance from the Competent authority of EIA and bear all costs of
account of such studies as may be required in assessing the Environmental Impact and that
the Department (Forest) shall not be responsible for delay in such process and shall not be
liable to compensate for any loss on his account. It shall be on receipt of a positive EIA report
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that the settlement shall be undertaken by the Department and on execution of an
agreement between Government and User Agency to abide by all conditions as only
prescribed in the EIA report.
3) Considering his bid price of Rs. 1,11,00,500/-, the DFO, Karimganj Forest (T),
Division, Karimganj, Dharakuna by its Letter of Intent under No. KZ(T)/18/ AMMCR/Stone
Mining/Settlement dated 01.01.2014 granted the Minor Mineral Concession of Arang Stone
Minor Mineral Unit No.1 comprising of 12.10 hectares with the petitioner for extraction of
Minor Minerals (Stone) against his said bid of offer for a period of 7 (seven) years as per the
letter of the Principal Chief Conservator of Forests and Head of Forests Force (PCCF & HFF, in
short), Assam under No.FG.24/Mahal/Arang Stone M.M.U. No.1 dated 16.12.2013 with effect
from the date fixed in the Mining Lease Deed.
4) The State Level Environment Impact Assessment Authority (SEIAA), Government of
Assam on 30.07.2014 issued Environmental Clearance in favour of the petitioner for collection
of Stone from Arang River Mining Contract Area Unit No.1 located in the Arang River bed,
near Village Arang, P.O.-Bihara, P.S.-Katigorah under Karimganj Forest (T) Division, Karimganj
indicating that the said Environmental Clearance is valid of a period of 5 (five) years from the
date of issue of the order i.e., 30.07.2014.
5) After obtaining the requisite EIA Clearance Certificate from the Competent Authority,
i.e. SEIAA, Assam for the said Arang Stone M.M.U. No.1 on 30.07.2014, the DFO, Karimganj
Forest (T), Division, Karimganj, by its communication dated 01.09.2014 finally settled the said
Stone Mahal with the petitioner for a period of 7 (seven) years at Rs.1,11,00,500/- for the
quantity of 21,000 m3 Stone specifying the due amounts as per said 2013 Rules to be
deposited by the petitioner as Kist Money indicating that the working period of the contract is
from 01.09.2014 to 31.08.2021 with the further intimation that for the said Stone Mahal the
petitioner is also required to furnish a solvent surety for a sum of Rs.15,85,786/-.
6) In terms of the aforesaid communication dated 01.09.2014 of the DFO, Karimganj
Forest (T), Division, Karimganj, the petitioner deposited the requisite installments of dead
rent/Kist Money including the 21st to 28th Kist inclusive of all taxes as the petitioner was
bound to deposit those Kist money from 21 st to 28th Kist for the remaining 2 years period of
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contract of settlement even without any operation of the Stone Minor Mineral Unit as
required.
7) Petitioner smoothly operated the said Arang Stone M.M.U. No.1 during his contract
period for the first 5 years out of 7 years of his contract since 01.09.2014 and upto August,
2019 extracting the stones from the said stone mahal from 1 st to 22nd Kist but thereafter he
could not continue with the operation of extracting stones from the said Arang Stone M.M.U.
No.1 for non receipt of requisite EIA Clearance Certificate for the period from 31.07.2019.
Later, during the existing contract period upto 31.08.2021, the SEIAA, Assam on 06.11.2020
again issued Environmental Clearance for collection of Stone from the Arang River Mining
Contract Area Unit No.1 located in the Arang River bed, near Village Arang, under Karimganj
Forest (T) Division, Karimganj, noted above, for another period of 2 years with effect from
the date of issuance of said order i.e., 06.11.2020.
8) Though the petitioner obtained the valid Environmental Clearance for the said Arang
M.M.U. No.1 upto 05.11.2022 and already deposited the requisite Kist Money from 21 st to
28th Kists but as the period of contract was about to be over on 31.08.2021, he on
16.07.2021 approached the DFO, Karimganj Forest (T) Division, Karimganj praying to extend
his working period for some more time so that he can extract balance quantity of Stone from
the said Arang M.M.U No.1 towards the full value that he had already paid, which he could
not extract earlier due to non-receipt of the requisite Environmental Clearance Certificate for
the period from 31.08.2019 to 06.11.2020. Considering his said representation and finding
that the petitioner could not extract/remove the quantity of Stone materials due to non-
receipt of the Environmental Clearance in time from the Competent Authority though he had
already paid the value for it; the DFO, Karimganj Division, Karimganj on 22.07.2021 wrote to
the Chief Conservator of Forests, Southern Assam Circle, Silchar, Cachar seeking his
instructions regarding disposal of petitioner's said representation dated 16.07.2021. In turn,
the said Chief Conservator of Forests, Southern Assam Circle, Silchar, Cachar on 30.07.2021
informed the PCCF and HFF, Assam regarding extension of the balance 2 (two) years working
period of the contract agreement done during 2014 for 7 (seven) years pertaining to Arang
Stone M.M.U. No.1 with the petitioner as the SEIAA failed to issue the Environmental
Clearance Certificate for the said Stone Mahal for the relevant period within time, though
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almost 1½ years of validity period of 2 (two) years was already over, where the concerned
contract holder, i.e. the petitioner herein had already deposited the Kist money from 21 st to
28th Kist for the balance period of 2 (two) years and that the said contract holder could not
extract/remove the value paid quantity of Stone materials as allotted for the balance 2 (two)
years due to no-receipt of Environmental Clearance in time from the Competent Authority. By
the said communication dated 30.07.2021, the Chief Conservator of Forests, Silchar sought
for his valued instructions from the PCCF & HOFF, Assam.
9) The Additional Principal Chief Conservator of Forests (SIO) in the Office of the PCCF
& HOFF, Assam by communication No.FG.24/Mahal/Arang Stone M.M.U. No.1 dated
09.11.2021 informed the Chief Conservator of Forests, Southern Assam Circle, Silchar, Cachar
that as the contract period of Arang Stone M.M.U No.1 had already expired on 31.08.2021,
the question of issuance of Environment Clearance for the balance period of 2 (two) years at
the said stage has no meaning, nor there is any provision under the Assam Minor Mineral
Concession Rules, 2013 to grant extra time for extraction of Minor Mineral beyond the
contract period.
10) Being aggrieved with such rejection by the respondents in the Forest Department
regarding extension of the contract period enabling the petitioner to extract/remove the value
paid quantity of Stone materials from the said Arang Stone M.M.U. No.1 in spite of depositing
the Kist money from 21st to 28th Kist for the balance period of 2 (two) years, the petitioner
has preferred this writ petition praying amongst others to withdraw/forebear from giving
effect to the impugned order dated 09.11.2021 passed by the Additional Principal Chief
Conservator of Forests (SIO) and to allow him to remove/extract the value paid quantity of
Stone materials from the said Arang Stone Mahal or otherwise to return back the Kist money
from 23rd to 28th Kist, which he had deposited with the Forest Department of the State, as he
could extract/remove the Stone materials from said Arang M.M.U. No.1 against those Kists.
11) By filing an additional affidavit on 08.12.2021, petitioner has also brought to the
notice of the Court that the DFO, Karimganj Division, Karimganj on 02.12.2021 have issued a
short E-Auction sale Notice under the provision of said 2013 Rules inviting online bid from
registered Companies/Firms/Societies/ Individuals for award of contract permit of said Arang
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Stone M.M.U. No.1 of Kalain Range.
12) Mr. Pathak, learned Standing Counsel, Forest Department submitted that though the
petitioner failed to extract the Stone materials from the Arang Stone M.M.U. No.1 in spite of
depositing Kist money from 23rd to 28th Kist during his contract period upto 31.08.2021, due
to non-receipt of the Environment Clearance Certificate from the Competent Authority within
time, but the period of contract of said Stone Mahal cannot be extended with the petitioner
for further period after the expiry of the contract on 31.08.2021 as the Assam Minor Mineral
Concession Rules, 2013 does not provide for extension of contract under it. Mr. Pathak also
stated that after the expiry of the mining period of the contract holder, the mining contract
period cannot be extended. In this regard, Mr. Pathak, learned standing Counsel, Forest
placed reliance in the judgment of the Hon'ble Apex Court in the case of Dharmendra Kumar
Singh Vs. State of Uttar Pradesh and Others, reported in (2021) 1 SCC 93. Mr. Pathak,
learned Standing Counsel, Forest also placed a decision of this Court dated 27.07.2021 passed
in WP(C) No.3270/2021 (Palashi Nath Mazumder Vs. State of Assam and 5 Others) wherein
the Court held that in terms of the ratio laid down in said Dharmendra Kumar Singh (supra)
and there being no specific provision for extension of the contract period, the prayer of the
petitioner for extension of the contract period cannot be considered and it was rejected.
13) On being enquired, Mr. Pathak learned Standing Counsel, Forest Department on
instruction stated that 24.12.2021 is the last date for submission of bid in terms of short E-
Auction sale Notice dated 02.12.2021 issued by the DFO, Karimganj Division, Karimganj with
regard to said Arang Stone M.M.U. No.1 of Kalain Range.
14) Though petitioner submitted that even the DFO, Karimganj and the Chief Conservator
of Forest, Silchar admitted the case of the petitioner that he deposited the Kist money from
23rd to 28th Kist but could not extract the Stone material from the Arang Stone M.M.U. No.1
during his contract period upto 31.08.2021 due to non-receipt of Environment Clearance
Certificate from the SEIAA, Assam during the relevant period; but the petitioner failed to
show that in the agreement between him and the respondent Forest Department for the said
Arang Stone M.M.U. No.1 there is any such clause for extension of said contract period in the
event contract holder fails to extract Stone from the said Stone Minor Mineral Unit for any
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such reason, including non-receipt of Environmental Clearance Certificate from the Competent
Authority for the Stone Mahal concerned.
15) After hearing the learned counsel for the parties and considering the provisions of the
Assam Minor Mineral Concession Rules, 2013 the Court of the opinion that the prayer of the
petitioner for withdrawal/forebear from giving effect to the impugned order issued by the
Additional Principal Chief Conservator of Forests (SIO) under communication No.
FG.24/Mahal/Arang Stone M.M.U. No.1 dated 09.11.2021 and to allow the petitioner to
remove the value paid Stone material from Arang Stone M.M.U. No.1 against the deposited
Kist money from 23rd to 28th Kist cannot be considered being devoid of merit and are
rejected.
16) It is to be noted herein that the Assam Minor Mineral Concession Rules, 2013 have
been formulated under the provisions of the Sections 15(1) and 23 of the Mines and Minerals
(Development and Regulation) Act, 1957 and it came in to force with effect from 16.03.2013,
i.e. from the date of its publication in the Assam Gazette Extraordinary. As such it has
statutory force.
17) Chapter 13 of the 2013 Rules, consisting of the provisions of Rule 66 to 70, relate to
Delegation, Review and Appeals. Rule 67 of the said 2013 Rules relates to Review and it
stipulates that the Director/Principal Chief Conservator of Forest and Head of Forest Force,
Assam may, either on an application from an aggrieved party or on his own motion, review
the orders passed by him under these rules in any manner. As per the provisions of Rule 68
(1), an appeal against an order passed by any Sub-ordinate Officer shall lie before the
Director/Principal Chief Conservator of Forest and Head of Forest Force, Assam, as the case
may be. As per the provisions of Rule 68 (2), an appeal against the order passed by the
Director/Principal Chief Conservator of Forest and Head of Forest Force, Assam lies before the
Government in the Power (E), Mines and Minerals Department in respect of minerals under
Schedule-'X' and the Environment and Forest Department in respect of Schedule-'Y'. Rule 69
of said 2013 Rules provides the time limit for such Appeal or Review and Rule 70 of said 2013
Rules relates to fee for Review or Appeal.
18) Considering such provisions of 2013 Rules, petitioner may approach the appropriate
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forum under said 2013 Rules for redressal of his grievances regarding return of Kist money of
23rd to 28th Kist that he had already deposited for extraction of Stone from Arang Stone
M.M.U. No.1 during his contract period up to 31.08.2021, which he could not extract due to
non-receipt of Environmental Clearance Certificate from the Competent Authority of SEIAA,
Assam, if so advised.
19) In the event of his approach before the appropriate forum within the specified time
under said 2013 Rules, the said forum/authority shall considering the grievances of the
petitioner in accordance with law and the relevant Rules in force and shall dispose of the
matter with a reasoned order, giving him an opportunity of hearing, if so required.
20) Needless to say that with regard to said short E-Auction Sale Notice dated
02.12.2021 issued by the Divisional Forest Officer, Karimganj Division, Karimganj with regard
to said Arang Stone M.M.U. No.1 of Kalain Range, the petitioner may participate in the same,
if so wishes, as the respondents in the Forest department has not passed any such order
restraining him from participating in the said bid process.
21) With the above observation and direction this writ petition stands disposed of.
JUDGE
Comparing Assistant
