PARAMANANDA CHOUDHURY Vs. STATE OF ASSAM

JUDGEMENT

(1.) By this application under Article 226 of the Constitution of India, petitioner who is proprietor of a Stone Crusher Unit named as M/s. Laxmi Enterprise at Baghmari, Biswanath Chariali, Sonitpur has challenged the legality of Office Memorandum dated 22.09.2005 issued by the Commissioner and Secretary of the Government of Assam Environment and Forest Department laying down certain guidelines for implementation in regard to issuance of license to Stone Crusher Unit. Petitioner runs a Stone Crusher Unit under the name and style of M/s. Laxmi Enterprise, permission for which was granted by the SDO (Civil), Biswanath Chariali on 04.11.2003. He was permitted to set up and run the stone crushing machines under certain terms and conditions mentioned in the permission order for a period up to 31.12.2003. According to the petitioner the said permission has been subsequently extended from time to time and even as on the date the petitioner has valid permission in his favour for running the Stone Crusher Unit. It is further pleaded that while the petitioner was running the stone crushing unit without any hindrance from the authority, all of a sudden the Government in the Department of Environment and Forest issued an Office Memorandum on 22.09.2005 laying down certain guidelines for issuance of license of Stone Crushing Unit. The said office memorandum is quoted below:

(2.) It would appear from the said office memorandum that minimum stipulated quantity of material has been fixed at 3,000 cum per year as a pre condition of granting licence and in Clause-b thereof the default clause has been inserted saying that if Stone Crusher Units fails to lift less than the aforesaid amount of 3,000 cum of materials then his license would be cancelled. Clause-(C) further highlights that the requirement of minimum extraction has to be scrupulously followed by the authority.

(3.) It is the case of the petitioner that the said guidelines are contrary to the proviso of Rule 31 of the Assam Minor Mineral Concessions Rules, 1994 and that the same has resulted in unreasonable restriction on the lawful trade of the petitioner by way of putting up an embargo under Clause (a) & (b) of the said office Memorandum. Rule 31 of the Assam Minor Mineral Concessions Rules, 1994, (herein further refers the Rules) provides that on an application made to the competent authority, a mining permit may be granted in Form L to any person to extract and remove from any specific land in any specific quantity under any one permit on prepayment of royalty. Rule 34 of the Rules provides the conditions under which Mining per-mission should be granted. The said conditions require the time-limit, mode and place of payment of rents and royalties and compensation for damage to the land covered by the permit of the felling of trees in consultation with Divisional Forest Officer in case of forest areas with restriction on surface operation of any area etc. Nowhere in Form L or in Rule 31 is it mentioned that there is any requirement lower limit for extraction. Rather in Rule 31 there is a prohibition of extracting mineral exceeding 3,000 cum of stone per year. An upper limit is prescribed by the rules where as under the office memorandum the same has been provided as the lower limit, failing which his licence would be cancelled. Clause (a) and (b) of the office memorandum dated 22.09.2005, therefore, contradicts Rule 31(1) as well as 34 of the Assam Minor Mineral Concessions Rules, 1994 and as such the office memorandum is liable to be adjudged as illegal.