Gauhati High Court

Page No.# 1/13 vs The State Of Assam And 5 Ors on 22 July, 2025

Author: Sanjay Kumar Medhi

Bench: Sanjay Kumar Medhi

Page No.# 1/13

GAHC010009972015

2025:GAU-AS:9353

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

Case No. : WP(C)/1259/2015

M/S TINGRAI CHARIALI BRICKS and 3 ORS
REP. BY ITS PARTNER SRI BINOY BHUSAN BHADRA, S/O- LT. NIBARAN
CHANDRA BHADRA, R/O- TINGRAI CHARIALI, P.O. and P.S.- DULIAJAN,
DIST.- DIBRUGARH, ASSAM.

2: PRADIP KUMAR DEY
S/O- LT. HARIA NANDA DEY
PROPRIETOR OF M/S H.N. DEY and SONS ENTERPRISE
BRICK FIELD R/O- TINGRAI CHARIALI
P.O. and P.S.- DULIAJAN
DIST.- DIBRUGARH
ASSAM.

3: SUJIT SEN
S/O- LT. SUDHAR RANJAN DEY
PROPRIETOR OF M/S STAR BRICKS
R/O- BALIJAN GAON
P.O.- BALIJAN
P.S.- DULIAJAN
DIST.- DIBRUGARH
ASSAM.

4: M/S AGNI ENTERPRISE BRICK FIELD
REP. BY ITS PARTNER SRI JUBARAJ SHARMA
S/O- LT. BHABANI SHARMA
R/O VILL. and P.O.- GAJPURIA
P.S.- NAHARKATIA
DIST.- DIBRUGARH
ASSAM

VERSUS

THE STATE OF ASSAM AND 5 ORS
REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM,
Page No.# 2/13

FOREST AND ENVIRONMENT DEPTT.

2:THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM
DEPTT. OF INDUSTRIES
DISPUR
GHY- 6.

3:THE DY. COMMISSIONER
DIBRUGARH
DIST.- DIBRUGARH
ASSAM.

4:THE ADDL. DY. COMMISSIONER
REVENUE DIBRUGARH
DIST.- DIBRUGARH
ASSAM.

5:THE CIRCLE OFFICER
TENGAKHAT REVENUE CIRCLE
TENGAKHAT.

6:THE DIVISIONAL FOREST OFFICER
DIBRUGARH FOREST DIVISION
DIBRUGARH
DIST.- DIBRUGARH
ASSAM

Advocate for the Petitioner : MR.P J SAIKIA , MR.R S MISHRA

Advocate for the Respondent : GA, ASSAMR3-5, MR. A. BHATTACHARJEE, SC, REVENUE
AND DISASTER MANAGEMENT DEPT,MR.S CHAMARIA,SC, INDUSTRIES(R2),SC,
FOREST(R1,6)

Linked Case : WP(C)/5824/2014

M/S TINGRAI CHARIALI BRICKS and 3 ORS
REP. BY ITS PARTNER SRI BINOY BHUSAN BHADRA
S/O LT. NIBARAN CHANDRA BHADRA
R/O TINGARI CHARIALI
P.O. and P.S. DULIAJAN
DIST- DIBRUGARH
ASSAM

2: PRADIP KUMAR DEY
S/O LT. HARIA NANDA DEY
PROPRIETOR OF M/S H.N. DEY and SONS ENTERPRISE
BRICK FIELD
Page No.# 3/13

R/O TINGARI CHARIALI
P.O. and P.S. DULIAJAN
DIST- DIBRUGARH
ASSAM

3: SUJIT SEN
S/O LT. SUDHAR RANJAN DEY
PROPRIETOR OF M/S STAR BRICKS
R/O BALIJAN GAON
P.O. BALIJAN
P.S. DULIAJAN
DIST- DIBRUGARH
ASSAM

4: M/S AGNI ENTERPRISE BRICK FIELD
REP. BY ITS PARTNER SRI JUBARAJ SHARMA
S/O LT. BHABANI SHARMA
R/O GAJPURIA
P.O. GAJPURIA
P.S. NAHARKATIA
DIST- DIBRUGARH
ASSAM
VERSUS

THE STATE OF ASSAM AND 5 ORS
REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
FOREST AND ENVIRONMENT DEPTT.

2:THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM
DEPTT. OF INDUSTRIES
DISPUR
GHY-6

3:THE DY. COMMISSIONER
DIBRUGARH
DIST- DIBRUGARH
ASSAM

4:THE ADDL. DY. COMMISSIONER
REVENUE
DIBRUGARH
DIST- DIBRUGARH
ASSAM

5:THE CIRCLE OFFICER
TENGAKHAT REVENUE CIRCLE
TENGAKHAT
Page No.# 4/13

6:THE DIVISIONAL FOREST OFFICER
DIBRUGARH FOREST DIVISION
DIBRUGARH
DIST- DIBRUGARH
ASSAM
------------

Advocate for : MR.P J SAIKIA Advocate for : MR.S CHAMARIA appearing for THE STATE OF ASSAM AND 5 ORS

BEFORE

Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI

Advocate for the petitioner : Shri P. J. Saikia, Sr. Advocate.

Shri R. S. Mishra, Advocate.

Advocates for respondents : Shri A. Bhattacharjee, SC, Revenue Department, Shri D. Gogoi, SC, Forest Department, Shri N. Das, GA, Assam.

Date of hearing                  : 17.07.2025
Date of judgment                 : 22.07.2025


                             JUDGMENT & ORDER (CAV)

The decision to collect royalty from brick kiln by the Revenue Department @ Rs.10,000/- per year is the subject matter of challenge in the first writ petition being WP(C)/1259/2015. The second writ petition being WP(C)/5824/2014 has been instituted challenging the requirement of a No Objection Certificate by the concerned Deputy Commissioner (presently District Commissioner) every year for continuation and running of brick kiln.

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2. As per the facts projected in the petition which has been instituted by four numbers of petitioners, they are the owners of brick kiln which according to them are situated in their patta land. As there were no Rules existing in the business of brick kiln, a notification dated 31.03.1984 was holding the field on the aspect of leasing out of land by the Government for a period of three years. It is submitted that though the said notification per se would not have an application to the brick kilns of the petitioners which are located in their patta land, it is also the case of the petitioners that royalty @ Rs.10,000/- per year of brick kiln was collected which was to be done as per the Assam Minor Minerals Rules of 2013 which however was not collected by the Forest Department and was realized by the Revenue Department. The petitioners were under the bona fide consideration that whoever was the accepting authority as the amount of royalty was to be paid, they were nonetheless paying the same to the Revenue Department. However, the royalty was increased to Rs.25,000/- which was the subject matter of challenge in WP(C)/3536/2002. The aforesaid writ petition was however disposed of vide an order dated 07.09.2010 by the Hon'ble Division Bench as there was a consensus that the amount would be reduced to the original amount of Rs.10,000/-. Subsequently, the 2013 Rules came into effect. In accordance thereto, the petitioners had obtained Environmental Clearance Certificate from the concerned Department and there was a requirement to pay forest royalty as per cubic meter in accordance with the aforesaid Rules. It is the contention of the petitioners that the demand of royalty by the Revenue Department is not authorized by law, more so, when they are already paying royalty to the Forest Department.

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3. I have heard Shri P. J. Saika, learned Senior Counsel assisted by Shri R. S. Mishra, learned counsel for the petitioners. I have also heard Shri A. Bhattachrjee, learned Standing Counsel, Revenue Department, Shri D. Gogoi, learned Standing Counsel, Forest Department and Shri N. Das, learned State Counsel.

4. Shri Saikia, learned Senior Counsel for the petitioners has submitted that in absence of any statute, the demand for payment by the Revenue Department is wholly without jurisdiction. He has submitted that though the petitioners were paying royalty @ Rs. 10,000/- per year earlier, the same was in lieu of the royalty to be paid to the Forest Department and the collection was merely done by the Revenue Department. He submits that double royalty cannot be charged from the petitioners for the same activity. He has submitted that the present action of demand by the Revenue Department is without any authority of law and liable to be interfered with.

5. In support of his submission, the learned Senior Counsel for the petitioners has relied upon the case of Mathura Prasad Bajoo Jaiswal & Ors. Vs. Dossibai N. B. Jeejeebhoy reported in AIR 1971 SC 2355 wherein it has been laid down that when law is altered, res judicata will not operate. The said case law has been cited in view of the fact that the earlier litigation instituted by the petitioners on the subject had culminated in an order dated 07.09.2010 whereafter the Rules of 2013 had come into operation. He has also cited the case law of Canara Bank Vs. N.G. Subbaraya Setty reported in AIR 2018 SC 3395 wherein it has been laid down that when the issue is different, there would be no application of the doctrine of res judicata. He accordingly submits Page No.# 7/13

that the impugned action should be interfered with and the writ petition be allowed.

6. Per contra, Shri Bhattacharjee, the learned Standing Counsel, Revenue Department has submitted that the entire premise on which the writ petition has been structured on the alleged ground of lack of powers is misconceived. By drawing the attention of this Court to Entry 24, List 2 of Schedule 7 of the Constitution of India, the learned Standing Counsel has submitted that the State has the power to enact laws on the subject which is 'Industry'. He has drawn the attention of this Court to the two enactments, namely, Assam Land Revenue Reassessment (Amendment) Act of 1997 and the Assam Agricultural Land (Regulation of Reclassification and Transfer for Non- Agricultural Purpose) Act, 2015.

7. Specific reference has been made to Section 25B of the Act of 1997 and has submitted that the subsequent notifications dated 31.03.1984, 07.01.1986 and 26.05.1986 have been issued by the Department supplementing the Enactments. He has submitted that by the aforesaid notifications, the Act in question has been made workable and there is no conflict with the parent Enactment. He has also referred to Rule 26 of the Rules of 2013, as per which the power has been granted for levy of royalty on excavation of brick earth. He has submitted that the said royalty which is payable under the Rules of 2013 is separate and distinct from the levy which has been raised by the Revenue Department. It is submitted that the royalty which is paid to the Forest Department is for the use of the earth for production of brick whereas the amount paid to the Revenue Department is for utilization of the land to set up the industry whereby there is damage to the agricultural aspect and potential of Page No.# 8/13

the land in question.

8. In support of his submission, Shri Bhattacharya, the learned Standing Counsel, Revenue Department has relied upon the case of Sant Ram Sharma vs. State of Rajasthan and Ors reported in AIR 1967 SC 1910. It is submitted that the Hon'ble Supreme Court has explained the power of the State under Article 162. For ready reference, the relevant observations are extracted herein below:

"7. We proceed to consider the next contention of Mr. N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed."

9. He has also referred to the case of Indsil Hydro Power and Manganese Limited Vs State of Kerala and Ors. reported in (2021) 10 SCC 165 wherein it has been laid down that royalty is not a tax.

10. Shri Bhattacharya has however raised a very pertinent question on the Page No.# 9/13

aspect of maintainability of the writ petition itself. It is submitted that the issue was raised before this Court in which a Division Bench has passed an order dated 07.09.2010 in WP(C)/3536/2002 whereby the writ petition was closed upon a consensus arrived between the parties regarding the rates. It is submitted that pursuant to the said direction, the rates was reduced to Rs. 10,000/- and the said payment has got nothing to do with the royalty paid to the Forest Department under the Rules of 2013.

11. Shri D. Gogoi, learned Standing Counsel, Forest Department, while endorsing the submission of the Department of Revenue has submitted that the present challenge is not maintainable and is barred by the doctrine of constructive res judicata. He has, in support of his submission relied upon the case of Central Bank of India & Ors. vs Dragendra Singh Jadon reported in (2022) 8 SCC 378.

12. The learned Counsel for the other respondents have endorsed the submissions made on behalf of the Revenue Department and has prayed for dismissal of the writ petition.

13. Shri Saikia, the learned Senior Counsel in his rejoinder has submitted that the aspect of res judicata would not be applicable inasmuch as the law has changed and new laws have come into operation.

14. The rival submissions have been duly considered and the materials placed before this Court have been duly examined.

15. The present challenge in so far as WP(C)/1259/2015 is concerned is with regard to the royalty paid to the Revenue Department and the principal ground Page No.# 10/13

is that such royalty is already paid to the Forest Department under the Rules of 2013.

16. It however transpires that the petitioners were paying royalty at the rate of Rs. 10,000/- to the Revenue Department from the inception of the brick kiln and the said aspect was also the subject matter of a dispute raised in WP(C)/3536/2002 wherein the challenge was with regard to the enhancement @ Rs. 25,000/-. The said writ petition was however disposed of by a Division Bench of this Court vide order dated 07.09.2010 whereby the following observations have been made:

" The only grievance of the petitioner is that the demand of Rs.25,000/- per annum by way of royalty is not justified.

The respondents have filed an affidavit dated 4.9.2010. In the affidavit the respondents have stated that the Association of which the petitioner is a member has agreed to pay Rs.10,000/- per year as royalty instead of Rs.25,000/- per year.

Learned Addl. Advocate General says that the matter is being considered and hope fully it will be decided in favour of the petitioner and their Association.

In the circumstances, learned counsel for the petitioner does not press this writ petition and the same is accordingly dismissed as not pressed."

17. This Court has also noted that the demand by the Forest Department of royalty is under a separate set of Rules of 2013 whereas the present payment of Rs. 10,000/- is in accordance with the notifications of the Revenue Department. This Court is unable to accept the submissions made on behalf of the petitioner regarding the competency. In fact, this Court finds that the notifications dated 31.03.1984, 07.01.1986 and 26.05.1986 issued by the Revenue Department are in consonance of the Acts holding the field which have been enacted by the State Government.

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18. This Court has noted that under Entry 24 of List 2 in the Schedule 7 of the Constitution of India, the subject is entrusted to the State Government to make laws. In the considered opinion of this Court, the aforesaid three notifications are not only in consonance with the Acts holding the field but also is supplementing the Acts and to make the same workable.

19. Be that as it may, this Court has observed that the issue presently raised was exactly the issue before the Court in which a Division Bench has passed the aforesaid order dated 07.09.2010. It clearly appears that the aforesaid order was passed on a consensus whereafter the enhancement to Rs. 25,000/- of fee payable to the revenue was reduced to Rs. 10,000/-.

20. That being the position, the petitioners would be precluded from raising the same issue in another writ petition filed.

21. Even on the merits of the case projected, this Court has noticed that under Rule 26 of the Rules of 2013, there is a requirement to pay Rs. 10,000/- as royalty to the Forest Department. For ready reference, the relevant part of Rule 26 is extracted herein below which pertains to the brick earth excavated by the brick kiln owners:

"26. (1) A permit for excavation of brick earth may be granted by the competent authority in favour of Brick Kiln Owner only for the purposes of manufacturing of bricks.

...

(6) The royalty on account of excavation of the brick earth shall be charged as per rates prescribed in the First Schedule appended to these rules. The payment Page No.# 12/13

in this cases shall be made in advance for the complete financial year or part thereof."

In the First Schedule of the Rules of 2013, the rates of royalty have been prescribed for various minor minerals including 'brick earth' against Sl. No. 12.

22. It clearly appears that even on merits, the petitioner may not have a case for interference inasmuch as the demand of royalty by the Forest Department is distinct from the present demand made by the Revenue Department.

23. As regards the issue of constructive res judicata, the Hon'ble Supreme Court in the case of Dragendra Jadon (supra) has made the following observations:

"13. Where an objection to the maintainability of any application/suit on an issue of law is not expressly dealt with, but the application/suit is entertained and disposed of on merits, the objection is deemed to have been rejected. The mere fact that an issue may not specifically have been dealt with, or reasons not specifically disclosed for decision on that issue, would not vitiate a judgment and order, that is otherwise correct."

24. It is clear from the principles laid down that the issue presently raised is considered to be answered by the order dated 07.10.2010, that too passed by a Division Bench of this Court which is binding on this Court.

25. In view of the aforesaid discussion, this Court is of the opinion that no case for interference is made out and accordingly, the WP(C)/1259/2015 is dismissed.

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26. Interim order, if any, stands vacated.

27. As regards WP(C)/5824/2014 is concerned, the learned counsel for the respondents could not show any source of power under which the District Commissioner would have jurisdiction to issue an NOC. That being the position under the existing scheme, the requirement of NOC by the District Commissioner is interfered with. However, all other legal requirements, including clearance/renewal by Statutory Bodies are to be scrupulously met.

28. Both the writ petitions accordingly stand disposed of.

JUDGE

Comparing Assistant