Dhananjay Sarkar vs The State Of Assam And 5 Ors
2021 Latest Caselaw 2605 Gua

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GAHC010012932021




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/746/2021

         DHANANJAY SARKAR
         S/O HARI MOHAN SARKAR, R/O VILL. RAGUNANDANPUR, P.O.
         BOITAMARI, DIST. BONGAIGAON, ASSAM.



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REPRESENTED BY THE COMMISSIONER AND SECY., DEPTT. OF FOREST
         AND ENVIRONMENT, DISPUR, GUWAHATI 6

         2:THE PRINCIPAL CHIEF CONSERVATOR OF FOREST AND HEAD OF FORES
         FORCE
         ASSAM
          REHABARI
          GUWAHATI 8

         3:THE ADDITIONAL CHIEF CONSERVATOR OF FOREST (T)
          LOWER ASSAM ZONE
          KACHARIGHAT
          GUWAHATI 1

         4:THE CONSERVATOR OF FORESTS

          LOWER ASSAM SOCIAL FORESTRY CIRCLE
          BONGAIGAON
          PIN 783380

         5:THE DEPUTY COMMISSIONER

          BONGAIGAON
          ASSAM
          PIN 783380
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            6:THE DIVISIONAL FOREST OFFICER

             AIE VALLEY DIVISION
             BONGAIGAON
             ASSAM
             PIN 78338

Advocate for the Petitioner    : MS. R CHOUDHURY

Advocate for the Respondent : MR. P N GOSWAMI




                                    BEFORE
                     HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                         ORDER

Date : 29.10.2021

Heard Ms. R. Choudhury, learned counsel for the petitioner and Mr. K. P. Pathak, learned Standing counsel for the Forest Department.

2. This writ petition has been filed by the petitioner seeking directions from the Court for setting aside the impugned orders dated: 29.06.2020 and 20.07.2020 issued by the respondents directing the petitioner to make payment of the outstanding dues and suspending the mining operation which was settled with the petitioner respectively.

3. In response to a Sale Notice No.AVD/MAHAL/1 dated

Bongaigaon, the 6th September, 2013 issued by the Office of the Divisional Forest Officer, AIE Valley Division, Government of Assam, sealed tenders were invited for grant of mining Page No.# 3/7

contract for collection of Stone/Gravel on tender sale basis in the areas prescribed under the Division as mentioned in the Schedule "A" appended to the Sale Notice. The Sale Notice was invited under the provisions of Rule 33(1) of the Assam Minor Concession Rules, 2013. In response to the said Sale Notice, petitioner submitted its bid and was settled with the Shilghagri Hill Stone Quarry No.2 at (serial No.2 of schedule 'A' of the Tender Notice). The petitioner was issued the Letter of Intent on 18.01.2014. The petitioner deposited the requisite

security amount and first (1st) installment alongwith 10% MMDRF of Rs.61,788/- as well as VAT/GST and Income Tax etc. Operation of the Mahal/quarry commenced w.e.f 23.04.2014 for a period of 7 years. The petitioner was allowed to operate the stone quarry vide order dated 29.10.2014 in terms of the condition mentioned therein. The contract was for a period of 7 years operative from 01.04.2013 till 31.03.2021. The petitioner proceeded with the contract and was also accorded orders by the District Magistrate for use of explosive to carry out the blasting work for extraction of stones and gravels. During the period of settlement of the contract with the petitioner, a PIL was filed before the High Court being PIL No. 129/2015 and during the pendency of the PIL, the stone quarry remained inoperative. PIL was subsequently disposed of on 06.01.2017, thereafter, the petitioner started operating with quarry. The petitioner paid all the quarterly installments in time except the installments which became due during the Page No.# 4/7

period which the quarry remaining operative because of the aforesaid PIL. Thereafter, the quarry was again remains inoperative because of lockdown imposed due to COVID-19 pandemic and because of which the petitioner was unable to execute his work. Consequently, the petitioner could not pay his installments for those periods.

4. Being thus situated the respondent no.6 vide impugned communication dated 29.06.2020 (Annexure:17) directed the petitioner to pay the outstanding installment amount including rent, contract money, GST etc within a period of 10 (ten) days. Subsequently, by another communication dated 20.07.2020 (Annexure:18) mining contract was suspended. It is submission of the petitioner that although the settlement was for a period of 7 (seven) years because of the factors mentioned, the settlement remain inoperative for almost a period of 3 years. Referring to the communication dated 20.07.2020 (Annexure: 18) to the writ petition, learned counsel for the petitioner submitted that there were only 2

(two) installments namely 24th and 25th quarterly installments which could not be paid by the petitioner as is evident from the impugned order of suspension. The petitioner in response to the show cause notice replied vide his detailed reply dated 12.08.2020. He also made a prayer for exemption from payment of royalty for the period of Lockdown during which the quarry remained inoperative. Referring to the order dated 21.11.2020 (Annexure:21) of the writ petition the learned Page No.# 5/7

counsel for the petitioner submits that the District Magistrate, Bongaigaon, however continued to accord permission to the petitioner for use of explosives for blasting in the quarry.

5. Being aggrieved, the present writ petition has been filed seeking interference of this Court for setting aside and quashing the impugned communication dated 29.06.2020 (Annexure:17) directing the petitioner to pay the outstanding dues as well as communication dated 20.07.2020 (Annexure:18) whereby the mining operation in respect of Shilghagri Hill Stone quarry No.2, Bongaigaon has been suspended as well as a further direction to permit the petitioner to operate the contract for another period of 4 years.

6. The respondent/department has filed their counter affidavit contesting the claims of the petitioner. The department contended that the petitioner did not deposit 6

(six) quarterly kist installments i.e. 6th, 7th, 8th, 9th, 10th and

11th during the period of 2014-2021. The department further contended that although there was Lockdown due to pandemic situation of COVID-19, day-to-day activities of the Government of India including mining operations were exempted. It is

further contended that although the petitioner deposited 25 th kist installment against the stone quarry, interest payable on such installments as per Assam Minor Mineral Concession Rules, 2013 had still not been deposited. It is submitted that in Page No.# 6/7

case of default the department is required to deal with such cases as per Rule 38 (7) of Assam Minor Mineral Concession Rules, 2013. The learned counsel for the petitioner submits that under the provisions of the said Rules in case of default of, deposit of installment the settlement holder is liable to have its contract suspended. The learned Standing counsel for the department however, submits that a similar issue was considered by a Coordinate Bench of this Court and vide order dated 27.07.2021 passed in WP(C)/3270/2021, the writ petition was dismissed holding that there was no provision for extension of contract under the Assam Minor Mineral Concession Rules, 2013. The period of contract in this case expired on 31.03.2021, and as such under the Assam Minor Mineral Concession Rules, 2013, there is no scope for extension. According to the learned Standing counsel, the present writ petition can also be disposed of in terms of the said order passed.

7. The learned counsels for the parties have been heard and the materials on record have also been perused. We have also carefully perused the provisions of Assam Minor Mineral Concession Rules, 2013 as well as the Judgment dated 27.07.2021 passed in WP(C)/3270/2021 by the Co-Ordinate Bench. The Rules reveals that there is no provision for extension. However, under Rule 19, there is a provision for renewal of the contract. The said renewal however is to be sought for prior to 18 (eighteen) months prior to the date of Page No.# 7/7

completion of the contract period. From the pleadings on record, we find that there is no specific application preferred by the petitioner for renewal. Even if the application dated 22.10.2020 seeking exemption for payment of royalty and extension for the period lost, sought for by the petitioner, is to be liberally interpreted and construed to be an application seeking renewal under the Assam Minor Mineral Concession Rules, 2013, the same however, fails to fulfill the preconditions mentioned under Rule 19 namely that such application for renewal is to be preferred prior to 18 (eighteen) months. Accordingly, we find there is no scope under the Rules permitting extension. Further since no application for renewal having been made by the petitioner, the applicability of Rule 19 is also not called for in the present facts and circumstances of the case. Accordingly, we find no merit in this petition and the same is dismissed as being devoid of any merit. However, considering the facts and circumstances of the case no costs are imposed. However, in view of the submissions of the learned counsel for the Department that Fresh Sale Notices are likely to be issued by the Department in the near future, it is directed that the petitioner shall not be debarred from participating in such Sale Notices called for by the Department.

JUDGE

Comparing Assistant