Page No.# 1/ vs The State Of Assam And 6 Ors
2023 Latest Caselaw 2221 Gua

                                                              Page No.# 1/11

GAHC010102982023




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

                         Case No. : WP(C)/2714/2023

         G. D. INDUSTRIES AND 5 ORS.
         HAVING OFFICE AT BADARPURGHAT PS- PANCHGRAM, DIST-
         HAILAKANDI, ASSAM REPRESENTED BY ITS PARTNER ASHISH TUSNIAL,
         AGED ABOUT 47 YEARS S/O . SHYAM LAL TUSNIAL RESIDENT OF
         BADARPURGHAT PS- PANCHGRAM, DIST- HAILAKANDI, ASSAM.

         2: ANNAPURNA GRANULATOR HAVING OFFICE AT DEVENDRANAGAR

          P.O - BADARPURGHAT
          PS- BADARPUR
          DIST- KARIMGANJ
         ASSAM REPRESENTED BY ITS PARTNER ASHIM KUMAR ROY
         AGED ABOUT 53 YEARS S/O- LATE AMALENDY ROY I RESIDENT OF ROY
         PATTY
         KARIMGANJ P.O
         PS AND DIST- KARIMGANJ
         ASSAM

         3: M/S ASSOCIATED ENTERPRISE HAVING OFFICE AT DEVENDRANAGAR

         P.O- BADARPURGHAT
         PS- BADARPUR
         DIST- KARIMGANJ
         ASSAM REPRESENTED BY ITS PROPRIETOR SALEHA BEGUM
         AGED ABOUT 53 YEARS W/O. LATE KHALILUR RAHMAN RESIDENT OF
         MISSION
         ROAD BADARPUR
         P.S BADARPUR
         DIST- KARIMGANJ
         ASSAM.

         4: M/S S.S. ENTERPRISE
          HAVING OFFICE AT KATIRAIL
          P.O AND P.S- KATIGORAH
          DIST- CACHAR
                                                       Page No.# 2/11

ASSAM REPRESENTED BY ITS PROPRIETOR AHMED SAHIL
AGED ABOUT 38 YEARS S/O. LATE KHALILUR RAHMAN RESIDENT OF
MISSION
ROAD BADARPUR
P.S BADARPUR
DIST- KARIMGANJ
ASSAM.

5: M/S REALITY STONE CRUSHER
 HAVING OFFICE AT MEDOL AT MEDOL PART II
 KANISHAIL
 KARIMGANJ
ASSAM REPRESENTED BYITS PROPRIETOR GULAM AHMED MALIK
AGED ABOUT 42 YEARS S/O .ABDUL AZIZ RESIDENT OF SHERPUR PART I
 P.O BAROGRAM
 PS. PATHERKANDI
 DIST- KARIMGANJ
ASSAM

6: ASCENT STONE CRUSHER
 HAVING OFFICE AT MOHANPUR PART I P.O AND PS. KATIGORAH
 DIST-CACHAR
ASSAM REPRESENTED BY ITS PROPRIETOR JAINAL ABDIN CHOUDHURY
AGED ABOUT 47 YEARS S/O. LATE SIRAJUL HOQUE CHOUDHURY
RESIDENT OF WARD NO. 2
 BSF CAMP ROAD
1STBYE LANE
 P.O
 PS AND DIST- KARIMGANJ
ASSAM

VERSUS

THE STATE OF ASSAM AND 6 ORS.
REPRESENTED BY COMMISSIONER SECRETARY , TO THE GOVERNMENT
OF ASSAM, ENVIRONMENT AND FOREST DEPARTMENT, DISPUR,
GUWAHATI- 6

2:THE PRINCIPAL CHIEF CONSERVATOR OF FOREST AND HEAD OF
FOREST FORCE

PANJABARI
GUWAHATI- 7810037

3:THE CHIEF CONSERVATOR OF FOREST

SOUTHERN ASSAM CIRCLE
SILCHAR
DIST- CACHAR
                                                                        Page No.# 3/11

             PIN- 78801

            4:THE DIVISIONAL FOREST OFFICER
             HAILAKANDI DIVISION
             HAILAKANDI PIN- 788151.

            5:THE DIRECTOR OF GEOLOGY AND MINING

             ASSAM DAKHIN GAON
             KAHILIPARA
             PIN- 781034

            6:THE PRINCIPAL CHIEF CONSERVATOR OF FOREST AND HEAD OF FORCE

             SYLVAN HOUSE
             LOWER LACHUMIERE
             SHILLONG
             MEGHALAYA PIN- 793001

            7:THE DIVISIONAL FOREST OFFICER (T)
             JAINTIA HILLS DIVISION
             JOWAI
             MEGHALAYA PIN-79315

Advocate for the Petitioner   : MR B D DAS

Advocate for the Respondent : GA, ASSAM




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 29.05.2023

Heard Mr. B.D. Das, learned senior counsel, assisted by Mrs. R. Deka, learned counsel for the petitioners. Also heard Mr. D. Gogoi, learned standing counsel for the Environment and Forest Department ("E&F Deptt." for short), representing the respondent nos. 1 to 4 and 6.

2. By an office order no. 113 dated 06.03.2023, issued by the Principal Chief Conservator of Forest and Head of Forest Force, Assam Page No.# 4/11

(respondent no. 2), inter alia, prohibited all stone crushers in the State of Assam to crush any material (including limestone of any grade) other than stone, in the crusher units. Pursuant to the said order, the Divisional Forest Officer (DFO for short), Hailakandi Forest Division (respondent no. 4), vide letter no. HKD/DFO(T)/Forest Royalty/N.F. Railway/1499-1502 dated 16.03.2023, requested the Area Manager, Northeast Frontier Railway, Badarpur not to allow loading or broking of any grade of limestone chips from Panchgram or nearby areas through railway wagon. Accordingly, by filing this writ petition under Article 226 of the Constitution of India, the petitioners, who are doing business in form of processing, storing, selling and trading in limestone, have prayed for setting aside and quashing the herein before referred order dated 06.03.2003 and letter dated 16.03.2003.

3. Issue notice of motion, returnable on 19.06.2023.

4. As the learned standing counsel for the E&F Deptt. has accepted notice on behalf of respondent nos. 1 to 4 and 6, and Ms. M. Barman, learned Govt. Advocate accepts notice on behalf of the respondent no. 5. Requisite extra copies of the writ petition be served on them within 2 days.

5. The petitioners shall take steps within 2 (two) days for service of notice on the respondent no. 7 by registered post with A/D. The learned counsel for the petitioners shall collect the postal receipt number and submit postal track report to the Registry prior to the next date of listing.

6. Heard the learned senior counsel for the petitioner and learned standing counsel for the E&F Deptt. on the prayer for interim relief.

7. The learned senior counsel for the petitioners has submitted that the respondent nos.2 and 4 have put illegal fetters in right of barrier-free inter-state trade and commerce. It is submitted that the authorities of the E&F Page No.# 5/11

Deptt. had cancelled the licence of the petitioners to operate stone crushing machine and therefore, the petitioners have given up their business to crush stones and they are operating business in the State of Assam, Nagaland and Tripura in "limestone" by obtaining Mineral Dealer Licence from the Directorate of Geology of Mining, Assam, which amongst others, permit processing, storing, selling and trading in limestone, which was issued after observing all requisite formalities and it is projected that the said licence is valid upto 31.03.2023 and that the petitioners have all submitted their respective applications for renewal for a further term. It is submitted that for the period upto 31.03.2026, the Pollution Control Board, Assam had issued their Consent to operate in respect of the crushing unit installed by the petitioners. It is also submitted that the stone crushing units are operating in their own land of the petitioners.

8. It was submitted that previously, limestone was included at serial no. 7 in Schedule-X of the Assam Minor Mineral Concession Rules, 2013 (hereinafter referred to as the "2013 Rules"). Thus, it is submitted that limestone of any grade, being a minor mineral, is also categorized as a building material. However, by a notification dated 03.03.2022, the 2013 Rules was amended and the entry of "any grade of limestone" was omitted from Schedule- X. Accordingly, it is submitted that "limestone" is listed in the First and Fourth Schedule of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as the "1957 Act") as "major mineral" and therefore, as per the provision of Sections 22, 23A and 23B of the said 1957 Act. It is submitted that the State of Meghalaya permits sale of limestone on the basis of challans issued by the jurisdictional DFO at Jowai, but the limestone is transported on the strength of e-way bills as per the provisions of the Assam Minerals Regulation and Dealers Rules, 2020 (hereinafter referred to as the "2020 Rules" for short) to various destinations.

Page No.# 6/11

9. It has been submitted that the respondent no. 2 had issued the impugned office order no. 113 dated 06.03.2023, not only prohibited crushing of limestone by crushers, but also prohibited its transportation without authorised challans, and also opined that limestone cannot be used for construction activity as it was Schedule-X item and was authorised only to use for industrial purpose. It was also proposed to cancel the licence of the crusher unit if found crushing limestone. As already stated herein before by another impugned order dated 16.03.2023, the respondent no. 4 had asked the NF Railway authorities not to transport limestone. It is submitted that earlier in point of time, the respondent no. 2 had issued a communication no. FG.39/Genl/Stone Crusher/2010 dated 04.10.2021, whereby permission was granted to allow low grade limestone (less than 40% CaO) to be crushed in stone crushing unit because as per Geology and Mining communication, limestone having less than 40% CaO can be used as building/road metal after crushing it.

10. It is submitted that the officials of E&F Department have started to harass the petitioners by lodging FIRs against the petitioners on false pretext of loss of forest royalty, although the lease holders have paid all government dues such as licence fees, forest royalty, MMMRF, cess, GST and DMF.

11. It was also submitted that by order dated 24.11.2022, passed by the High Court of Meghalaya in PIL No. 18/2019, had directed the State of Meghalaya not to allow export of limestone by persons holding Minor Mineral Licence, which was assailed before the Supreme Court of India and that the Supreme Court of India, by order dated 12.12.2022, passed in Special Leave to Appeal (Civil) No.22690/2022, stayed the operation of the order dated 24.11.2022, passed by the High Court of Meghalaya and allowed export of limestone by exporters, subject to deposit of bank guarantee.

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12. It is submitted that as limestone carrying vehicle was seized by the police, on an application made by the petitioner no.1, the learned Chief Judicial Magistrate, Karimganj took note of the report dated 04.03.2023, of the Director of Geology and Mining, Assam (respondent no.5), wherein it was mentioned that his office was the competent authority for administration of Minor/ Major Minerals in the State of Assam.

13. It was submitted that the respondent nos. 2 and 4 have proceeded without taking note of omission/ deletion of limestone from Schedule-X and entry of limestone in First and Fourth Schedule of 1957 Act.

14. Per contra, the learned standing counsel for the E&F Deptt. has submitted that "limestone" is a forest produce which would be evident from definition given in Rule 3(4)(b)(iv) of the Assam Forest Regulation, 1891. It was also submitted that in the case of State of Uttarakhand & Ors. v. Kumaon Stone Crusher, (2018) 14 SCC 537, the Supreme Court of India has held that limestone is a forest product and that the Environment and Forest Department had the competency to issue the impugned order.

15. For the purpose of the prayer for interim relief, examined the materials on record and considered the submissions made by both sides.

16. Whether in light of 1957 Act and deletion of limestone from Schedule-X in the 2013 Rules, it can be held that the provision of Rule 3(4)(b)

(iv) of the Assam Forest Regulation, 1891 is impliedly overruled. The provision of Assam Forest Regulation, 1891 is a pre-constitutional legislation. We may now refer to the provisions of Article 372(1) of the Constitution of India, which reads as follows:-

"372. Continuance in force of existing laws and their adaptation.- (1) Notwithstanding the repeal by this Constitution of the enactments referred to in Page No.# 8/11

Article 395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority."

17. Thus, as the said Assam Forest Regulation, 1891, being a law which is in force, has not been repealed, stands saved by operation of Article 372 of the Constitution of India. In this regard, we find support from the decision of the Supreme Court of India in the case of Kumaon Stone Crusher (supra), by which the Supreme Court of India, in the context of the Forest Act, 1927 and the 1957 Act had held that:-

"116. We, thus, conclude that the submission of learned counsel for the writ petitioners that in view of the 1957 Act especially as amended by Act 38 of 1999, the provisions of 1927 Act & 1978 Rules have become void, inoperative and stand repealed, cannot be accepted."

18. On the point as to whether or not "limestone" is a forest produce, it would be relevant to refer to the case of Kumaon Stone Crusher (supra), where the Supreme Court of India, in the contest of limestone, had held as follows:-

74. Limestone is expressly mentioned in definition of forest produce, slake lime/quick line/hydrated lime are all produce of limestone. Further, produce known quicklime is produced by heating of limestone, upon which limestone breaks down into Calcium oxide (quicklime) and carbon dioxide. That upon adding water to the same, the quicklime is converted into slaked lime and thereafter, upon being carbonated, the produce will revert to its natural state of being limestone. Hence, the said process does not change the nature of the product, as the basic ingredient is essentially limestone, and merely upon heating and addition of water, the nature of the produce i.e. limestone, does not change. Hence, limestone is a forest produce.

* * *

101. When the minerals are forest-produce by definition under the 1927 Act under Section 2(4), validity of which is not challenged, forest-produce and its transit is altogether a different subject matter than the subject matter governed by 1957 Act. The object of the two legislations is different. The regulation is different. The Forest Act comprehensively deals with forest and forest wealth with a different object and the 1957 Act deals with mines and mineral wealth.

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                      *                      *                     *

110. The subjects of 1927 Act and 1957 Act are thus distinct and separate. The 1957 Act was on development and regulation of mines and minerals. Mines and minerals are also found in forests. The definition of forest-produce as contained in Section 2 subsection (4) of the Act includes peat, surface oil, rock and minerals(including limestone, laterite, mineral oils, and all products of mines or quarries).

111. The State has been empowered to regulate transit of forest-produce under Section 41 of the Act. Regulation of transit of forest-produce is a larger activity covering transit of different kinds of forest-produce including minerals. Both the legislations being on different subject matters the provisions relating to transportation of minerals as contained in 1957 Act can at best be said to be incidentally affecting the 1927 Act, incidental encroachment of one legislation with another is not forbidden in the constitutional scheme of distribution of legislative powers.

* * *

115. Thus, even it is assumed that, in working of two legislations which pertain to different subject matters, there is an incidental encroachment in respect of small area of operation of two legislations. Legislation cannot be struck down as being beyond legislative competence nor it can be held that one legislation repeals the other. Thus, when we look into the pith and substance of both the legislations, it is clear that they operate in different field and the submission cannot be accepted that 1957 Act impliedly repeals the 1927 Act in so far as Section 41 and 1978 Rules are concerned.

* * * XII. Interpretation of Section 2(4)(b) of 1927 Act

117. The meaning of words 'brought from' as used in Section 2 subsection (4) sub- clause (b) has become very significant in the present case since it is a case of large number writ petitioners that the goods which they are transiting did not originate from any forest area rather they have been taken from non-forest area, hence, there is no liability to pay transit fee. Whether forest produce as defined in Section 2 subsection (4) sub-clause (b) should be forest produce which originated from forest or even the forest produces which are merely passing through a forest area shall attract the liability of transit fee is the question to be answered.

* * *

126. Thus, forest shall include all statutorily recognised forests, whether designated as reserve, protected or otherwise. The term "forest land", occurring in Section 2, will not only include "forest" as understood in the dictionary sense, but also any area recorded as forest in the Government records irrespective of the ownership. The restrictive meaning of forest as given by the Uttarakhand High Court in M/s Gupta Builders cannot be approved.

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                     *                  *                    *

215. In view of the foregoing discussion, we arrived at following conclusions:

215(a) The crushing of stones, stone boulders into stone grits, stone chips and stone dust does not result into a new commodity different from forest produce. The crushed materials continue to be stone and retain their nature of forest produce.

215(b) Coal with its various varieties, limestone, hydrated line, quick limestone, slake line, veneer and plywood waste are all forest produce. 215(c) Marble blogs, marble slabs, marble chips are all forest produce.

215(d) Fly ash, clinker, synthetic gypsum are not forest produce. Gypsum, however, is a forest produce.

215.2 The Indian Forest Act, 1927 and the Rules framed under Section 41 are neither overridden nor impliedly repealed, altered or amended by Mines and Minerals (Development and Regulation) Act, 1957 and the Rules framed thereunder. Both the above legislations operate in different spheres and fields.

215.3 The words "brought from" as occurring in Section 2(4)(b) of 1927 Act means brought from forest from where forest produce has originated. The words 'brought from forest' cannot be read as "brought through forest". We, however, clarify that for an item to be treated as forest produce, its origin may be in any forest within the State of U.P. or in a forest outside the State of U.P.

215.4 The forest has to be understood according to its dictionary meaning which covers the statutory recognised forest and also shall include any area regarded as forest in the Government record irrespective of the ownership. The meaning of forest cannot be restricted only to reserve forests, protected forests and village forests.

215.5 The roads notified by notification dated 10-2-1960 under Section 80A of 1927 Act cannot be read to mean that such roads have been declared as protected forest. The notification dated 10-2-1960 can only be read to mean that both sides of the road have been declared as protected forest on which Chapter IV of the 1927 Act shall be applicable. 215.6 Rule 3 of 1978 Rules is not independent of Rule 5 of 1978 Rules. Transit fee is payable on all kinds of transit passes and cannot be confined only to transit passes as referred to in Rule 4(1)(b) only. 215.7 After issuance of notification under Section 4 of 1927 Act, removal of forest produce therefrom shall be governed by the Rules framed by the State in view of U.P. Act 23 of 1965 by which original Section 5 has been substituted in its application in the State of U.P. The fact that no notification Page No.# 11/11

under Section 20 has been issued does not mean that restriction put by the State Government by Rules are not applicable.

215.8 The Division Bench of the Allahabad High Court by its judgment dated 11-11-2011 has rightly struck down Fourth and Fifth Amendment Rules to 1978 Rules as being excessive and confiscatory in nature.

215.9 The notification dated 28-5-2001 issued by the State of Madhya Pradesh in exercise of power under Rule 5 of 2000 Rules cannot be said to be beyond the scope of Rule 5 of 2000 Rules and Section 41 of 1927 Act. The State of Madhya Pradesh was fully justified in fixing rate of transit fee at the rate of Rs.7 and Rs.4 per tonne which was well within the power of the State under Rule 5 of 2000 Rules framed under the 1927 Act.

19. Therefore, in view of the law settled by the Supreme Court of India, as referred to herein before, it is no longer res integra that limestone is a forest produce.

20. Therefore, the prayer for interim relief is refused at this stage.

21. It is made clear that the observations made in this writ petition, not being a conclusive finding on merit, shall not prejudice either side when this matter is heard on merit.

22. List on 19.06.2023.

JUDGE

Comparing Assistant