High Court of Meghalaya

Smti. M.M. Sangma & 10 Ors. vs . State Of Meghalaya & 7 Ors. on 8 September, 2022

     Serial No. 01
     Supplementary
     List

                        HIGH COURT OF MEGHALAYA
                            AT SHILLONG

WP(C) No. 324 of 2014

                                                Date of Decision: 08.09.2022
Smti. M.M. Sangma & 10 Ors.            Vs.      State of Meghalaya & 7 Ors.
Coram:
               Hon'ble Mr. Justice W. Diengdoh, Judge

Appearance:
For the Petitioner/Appellant(s)   :     Mr. S.P. Mahanta, Sr. Adv. with
                                        Mr. M. Lyngdoh, Adv.
For the Respondent(s)             :     Mr. S. Sengupta, Addl. Sr.GA. for R 1-5

Mr. S. Dey, Adv. for R 6-8.

i)       Whether approved for reporting in                  Yes/No
         Law journals etc.

ii)      Whether approved for publication
         in press:                                          Yes/No


                         JUDGMENT AND ORDER

1. The petitioners have stated that they are the Nokmas of 11(eleven)

different Akhinglands all situated in the South Garo Hills District of

Meghalaya. Due to various difficulties, the petitioners have jointly nominated

Shri Santosh R. Marak as their duly appointed Attorney to file this writ

petition and to appear on their behalf before this Court.

2. Heard Mr. S.P. Mahanta, learned Sr. counsel along with Mr. M.

Lyngdoh, learned counsel for the petitioners who have submitted that the

Government has enacted the 'Garo Hills District (Awil fees) Act, 1960' to

provide for levy of certain fees, including royalty on forest produce extracted

from the Akhingland. Forest produce according to the petitioners also

includes coal, which fact was clarified by the Chief Forest Officer, Garo Hills

Autonomous District Council, Tura on 02.08.2013 in reply to an RTI query

made by the Attorney of the petitioners herein (Annexure-2 of the writ

petition).

3. It is also submitted that as per the provision of the said Garo Hills

District (Awil) Fees Act, Section 5(a) entitles the Nokma/petitioners to get

25 % of the total Awil fees collected by the Garo Hills Autonomous District

Council (GHADC). This situation was prevalent till the year 1995, as the

petitioners were receiving 12.5% that is, half of 25 % of the Awil fees from

the GHADC in cash as part of their share.

4. However, after the year 1995, the petitioners did not receive their

share of the Awil fees from the respondent GHADC and even after they have

approached the authority concerned, nothing was forthcoming. It is later

reliably learnt that there was issued a Governor's Order dated 14.02.1995

which is essentially an order of allocation of the share of royalty on coal

between the State Government and the three Autonomous District Councils

in the State, which was calculated in the ratio of 3:1.

5. The learned Sr. counsel has again submitted that the petitioners

through their Attorney have submitted a representation to the respondent

Secretary of the Executive Committee of the GHADC on 05.12.2013 with a

prayer for release of their share of the Awil fees of the eleven petitioners

calculated from the year 1995 till 2013, which amounted to ₹ 4,11,02,974/-

(Rupees four crores, eleven lakhs, two thousand nine hundred and seventy

four) only. This amount was ascertained from the respondent No. 5 who has

responded to an RTI query dated 24.06.2013 made by the Attorney of the

petitioners vide letter dated 11.07.2013.

6. In response to the said representation dated 05.12.2013, the

Secretary, Executive Committee, GHADC vide letter under Memo No.

CF.720/OC/Genl/2011/67-70 dated Tura the 24th April 2014 has informed

the petitioners that since the State Government has taken over the collection

of revenue/tax from (Coal) major mineral from the hands of the GHADC

since the year 1995 and that the GHADC has been receiving only an adhoc

advance of 25% of the same, it is therefore not in a position to pay the 12.5%

share of the Nokmas in cash as prayed for by the petitioners.

7. The petitioners then filed another representation dated 09.06.2014

before the respondent Director of Mineral Resources, Government of

Meghalaya, Shillong praying for release of the 12.5% share of the Awil fees

and on no reply received, had filed a reminder dated 01.07.2014 and here too,

no reply was received even after two and a half months and being aggrieved

by the attitude of the respondent authority, the petitioners through their

Attorney has then approached this Court with this instant petition.

8. The learned Sr. counsel for the petitioners has also submitted that

prior to the year 1995, the respondent GHADC has been issuing 'Transit

Pass' to all the vehicles carrying forest produce, including coal from the

respective Akhingland belonging to the eleven petitioners herein and has also

been paying the 12.5% share of the Awil fees to the petitioners after

acknowledging due receipts thereof. However, since 15.01.1995, no Awil

fees have been paid to the petitioners, to which they are legally entitled as

per the Garo Hills District (Awil fees) Act, 1960.

9. To counter the stand taken by the State respondents No. 1-5 which

was also a similar stand taken by the respondents-GHADC that coal is not a

forest produce under the relevant provisions of Garo Hills District (Awil fees)

Act, 1960, the learned Sr. counsel for the petitioners has submitted that by its

own admission, the respondent-GHADC through its Chief Forest Officer in

response to the RTI query made by the petitioner has vide letter dated

02.08.2013 (Annexure-3) admitted that "...1. Paragraph (12) of chapter I of

the Garo Hills District (Forest) Act, 1958 excludes certain minerals which

are known as 'Minor Minerals' in which minerals like coal is not mentioned,

hence, coal can be considered as Forest Produce for the purpose of the Garo

Hills Autonomous District Council. Further, chapter-III of the same Act has

incorporated the chapters iv, vi, vii, viii, x and xi of the Assam Forest

Regulation, 1891. Therefore, under chapter vi of the Assam Forest

Regulation, 1891, Garo Hills Autonomous District Council is authorized to

control all forest produce including minerals like coal in transit by land or

water from Garo Hills to Assam."

10. Referring to the provisions of the Indian Forest Act, 1927 the

learned Sr. counsel has submitted that Section 2(iv), Forest produce includes

peat, surface soil, rock and minerals (including lime-stone, laterite, mineral

oils, and all products of mines or quarries) which definition was also followed

under the Assam Forest Produce, 1891.

11. Finally, the learned Sr. counsel has submitted that the Apex Court

in its decision rendered on 15.09.2017 in the case of State of Uttarakhand &

Ors v. Kumaon Stone Crusher: (2018) 14 SCC 537 at paras 71, 72, 73 and

74 has held that coal is clearly a forest produce and as such, the share of 25%

received by the respondent-GHADC of the royalty from coal, 12.5% of the

same should be allocated as the share due and payable to the petitioners as

provided under Section 5(a) of the Garo Hills District (Awil fees) Act, 1960.

12. It is prayed that this petition may be allowed and the concerned

respondents may be directed to release the 12.5% share of the Awil fees to

the eleven petitioners herein along with interest calculated for delayed

payment.

13. Per contra Mr. S. Sengupta, learned Addl. Sr. GA on behalf of the

State respondents No. 1-5 has submitted that the petitioners have made a

belated attempt in approaching this Court at this stage since the petition seeks

to unsettle matters which have attained finality decades ago. In this regard, it

is a well settled principle of law that the law will assist only those who are

vigilant and not those who sleep over their rights. The maxim of

'Vigilantibus Non Dormientibus Jura Subveniunt' (The law assists the

vigilant, not those who sleep) will be applicable in this case. On the ground

of delay and laches alone, this petition is liable to be dismissed at the

threshold.

14. In this regard, the case of State of Maharashtra v. Digambar:

(1995) 4 SCC 683 was referred to by the learned Addl. Sr. GA to say that the

Hon'ble Supreme Court in this case has held that petition brought almost

twenty years after the alleged wrongful action is liable to be rejected on the

ground of laches alone. Another case cited is the case of Maharashtra State

Road Transport Corporation v. Balwant Regular Motor Service, Amravati

& Ors: AIR (1969) SC 329.

15. It is also submitted that coal is a major mineral and minerals like

coal etc., are not under the control of the GHADC since such minerals are

under the control and supervision of the State Government. The notification

dated 14.07.1995 issued by the Governor of Meghalaya under paragraph 9(2)

of the 6th Schedule of the Constitution of India has determine that royalty

collected on coal produced from an autonomous district council area shall be

shared between the Government and the concerned autonomous district

council in the ratio of 3:1 with effect from 15.01.1995.

16. On the contention of the petitioners that coal is a forest produce, the

learned Addl. Sr. GA has submitted that the definition of 'Forest Produce'

under the Garo Hills District (Forest) Act 1958 is found at sub-Section 12 of

Section 2 reading as follows:

"2. (12) A "Forest produce" means anything excluding stones, boulders, shingle, gravel, limestone, canker and all other materials which are defined as Minor Minerals under Rule 3

(iii) of the Mineral Concession rules, 1949, when found in, or brought from, any forest under the jurisdiction of the District Council and shall include:-

a) Trees, leaves and fruits and all other parts and produce of trees;

b) Plants not being trees including grass, creepers, seeds, moss, orchids and all parts and produce of such plants;

c) Skins, tusks, horns, bones, silk-cocoons, honey and wax and all other parts or produce of animals."

17. It is admitted that before 1995, the GHADC was collecting royalty

from coal directly and as provided under Section 5(a) of the Garo Hills

District (Awil fees) Act, 1960 the share of the Nokmas who are in-charge of

the Akhingland used to be disbursed. However, as pointed out since the State

Government has taken over the exercise of collecting royalty from coal,

therefore the GHADC no longer has jurisdiction over this subject and the

provisions of the Acts and Rules enacted by the GHADC would not be

applicable to the parties as far as collection of royalty of coal is concerned.

18. Mr. S. Dey, learned standing counsel for the respondents-GHADC

has at the outset questioned the locus of the General Power Attorney Holder

who has filed this petition on behalf of the petitioners by submitting that the

General Power of Attorney dated 25.06.2013 executed in favour of Shri.

Santosh R. Marak was without the permission of the Chras and Maharis of

the respective Akhing since the same is alien to the principle of Garo

Customary Law where the ownership of the property of the Akhing lies with

the clan/mahari with the female Nokma as the custodian.

19. Mr. Dey has also submitted that the contention of the petitioners

that coal is a forest produce cannot be accepted since the definition of coal as

could be found from Black's law dictionary is that it is "a combustible

mineral substance found in large deposits. It is considered to be a fossil fuel,

being formed from plants that have been fossilized through oxidation. The

end result is a black, hard substance capable of burning."

20. On the other aspects of whether coal is a forest produce or not, the

learned standing counsel has also submitted that coal has been defined as a

major mineral particularly under the Mines and Minerals (Development and

Regulation) 1957 and the rules made thereunder, it is therefore not a forest

produce. The reliance of the petitioner in the case of Kumaon Stone Crusher

(supra) is untenable as the same relates to the Forest Act of 1957 whereas,

the case of the petitioners is in connection with the Garo Hills District (Forest

Act), 1958 read with the Garo Hills District (Awil Fees) Act, 1960 and if read

with the provisions of the Mines and Minerals (Development and Regulation)

1957 and the Mineral Concession Rules, 1960, it is clear that the definition

of Forest Produce does not include coal. The case of State of Meghalaya v.

All Dimasa Students Union, Dima Hasao District Committee & Ors: (2019)

8 SCC 178 paras 142, 146 and 147 have been cited in support of this

contention.

21. Here too, the respondents-GHADC has asserted that the case of the

petitioners is devoid of merit and the same may be dismissed accordingly.

22. In the lis between the parties herein, there is no denial of the fact

that the petitioners are the Nokmas of their respective Akhingland. There is

also no dispute that under the provisions of the Garo Hills District (Awil fees)

Act, 1960, the petitioners are entitled to 25% of the Awil fees, Awil fees

being such fees as was assessed on timbers and all forest produces falling

within the area of an Akhing in the District.

23. What could be understood is that the GHADC would collect the

Awil fees assessed on timbers and all other forest produce as defined in

Section 2 of the Garo Hills District (Forest) Act, 1958. As provided under

Section 5 of the Awil Fees Act, the Nokma of the Akhing shall be entitled to

a share of 25% of the total Awil fees collected from within his Akhing.

24. In the notification dated 14.02.1995 the Governor of Meghalaya

has notified that on royalty from coal found in the areas of the three District

Councils in the State, the Garo Hills Autonomous District Council being one

of the three, the share from such royalty would be in the ratio of 3:1, that is,

75% to the State and 25% to the District Council. This notification

specifically relates to royalty on coal, which royalty was also collected by the

State Government. Therefore, one cannot relate this process with the process

of collection of Awil fees which is done by the District Council. The claim

of the petitioners that the share of royalty on coal allocated to the GHADC

can be construed as Awil fees, for which the respective share to the Nokmas

has to be given is not well founded as no correlation could be seen between

the collection of royalty on coal and the collection of Awil fees. The

petitioners are however entitled to the share of the Awil fees collected by the

GHADC under the said Awil Fees Act of 1960.

25. The reliance of the petitioners in the case of Kumaon Stone Crusher

(supra) at para 72 of the same wherein the Hon'ble Supreme Court has come

to a conclusion that coal is a forest produce is found to be valid as far as the

definition of coal is concerned, however as observed above, in the context of

this case, the same would not help the petitioners since the GHADC has

ceased to collect Awil fees on coal on the same being taken over by the State

Government on the strength of the said notification dated 14.02.1995.

26. A pertinent issue brought forth by the State respondents which

requires consideration by this Court is the issue of delay and laches. The State

respondents has submitted that the case of the petitioners cannot be

considered since they have not shown due diligence and urgency to seek

redressal of their alleged grievance, which according to them, arose soon

after the year 1995 when their share of the Awil fees was stopped.

27. It is reiterated that the petitioners have stated that prior to the year

1995, they have been receiving their share of the Awil fees from the

respondents/GHADC but as stated above, this was stopped soon after the

order of the Governor in the year 1995 as regard the share of the royalty on

coal. The petitioners have submitted that they have approached the

respondents/GHADC on several occasions, but no response was

forthcoming. However, the petitioners have not been able to cite instances on

which they have approached the respondents/GHADC, but has only made

bald averments in this regard.

28. In the year 2013, the petitioners have decided to approach the

respondents/GHADC by way of a representation preferred through their duly

appointed Attorney who has filed the representation on 05.12 2013. This, is

the first formal approach of the petitioners before the concerned authority to

demand payment of their share of the Awil fees as aforesaid.

29. Being denied their share of the Awil fees since the year 1995

onwards, the fact that the petitioners have made their first move in this regard

to claim the same, after a period of about 18(eighteen) years or so, speaks

volumes of the seriousness of the petitioners to assert their rights or to get the

same adequately redressed. To have woken up only after 18 years or so to

demand their rights or rather the Awil fees due and payable to them also

demonstrates their lackadaisical attitude in this regard. The petitioners have

also failed to provide adequate and plausible reasons as to why they have

approached this Court very late in the day. The contention of the State

respondents that the principles of delay and laches will be applicable to the

case of the petitioners cannot be far from the truth.

30. This Court in the case of Deliha D. Sangma in WP(C) No. 74 of

2017 has dealt with the issue of delay and laches at para 22, 23 and 24 which

is reproduced as under:

"22. The maxim "Vigilantibus Non Dormientibus Jura Subveniunt" which means that the law assists those who are vigilant with their rights and not those that sleep thereupon is very much applicable to the case of the petitioner as regard the approach to the authority with the representation for re-survey and re-measurement of the land acquired considering the fact that there is a gap of almost 27 years from the year of acquisition which is 1983 to the year 2010 when the first representation was made.

23. In the case of State of M.P & Ors v. Nandlal Jaiswal & Ors: (1986) 4 SCC 566, para 24, the Hon'ble Supreme Court has held as follows:

"24. Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent of the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction..."

24. Again, in the case of Chennai Metropolitan Water Supply and Sewerage Board & Ors. v. T.T. Murali Babu: (2014) 4 SCC 108, para 16 the Hon'ble Supreme Court has held as follows:

"16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in must circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of the litigant-a litigant who has forgotten the basic norms, namely, "procrastination is the thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis."

31. The maxim "Vigilantibus Non Dormientius Aequitas Sebventil"

which means that Equity aids the vigilant, not the ones who sleep over their

rights can also be said to be applicable in the case of the petitioners.

32. In the case of Maharashtra State Road Transport Corporation

(supra) at paragraph 11 relied upon by the State respondents, the Hon'ble

Supreme Court on the doctrine of laches has observed as follows:

"11...Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has,

though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy..."

33. On this count too, this Court would deem that the petitioners have

failed to exercise their rights, if any, at the relevant and proper period which

approximately dates back to 1995 when the payment of their share of the

Awil fees was stopped by the GHADC, but has instead chosen to agitate the

matter only in the year 2013 and following. Therefore, the principle of delay

and laches for which no reasonable explanation was given, would be

applicable to convince this Court that at this point of time the grievance raised

by the petitioners has lost its relevance.

34. The contention raised by the respondents-GHADC as far as the

locus standi of the Attorney of the petitioners is concerned, need not be

discussed as this Court has chosen to decide this case on some other

consideration.