Jayanta Kalita Vs the State of Assam and 6 Ors.

OFFICE OF THE DEPUTY COMMISSIONER KAMRUP RURAL AMINGAON GUWAHATI-31. -----------Advocate for : MS.H DEKA Advocate for : appearing for THE STATE OF ASSAM AND 6 ORS

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BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

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ORDER

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Date : 11.09.2025

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Heard Mr. B. D. Goswmai, learned counsel for the petitioner in the above noted writ petitions. Also heard Mr. J. Handique, learned Government Advocate, appearing for the respondent nos.1 and 7 and Mr. I. Borthakur, learned Standing Counsel, Forest Department, appearing for the respondent nos.2, 3, 4, 5 and 6.

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2. The petitioners in the above noted writ petitions have assailed the Bakijai proceedings instituted against them by the Divisional Forest Officer, Kamrup(East) Division, inter alia, assailing the Bakijai proceedings.

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WP(C).No.6139/2016

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The petitioner in pursuance to a sale notice dated 29.08.2013, had submitted his bid for settlement of Rajapara mahal of ordinary clay from Brahmaputra river bed for a period of 2(two) years under Palasbari Range. The petitioner bid was found to be valid and the value quoted was found to be the highest. Accordingly, the petitioner was settled with the said mahal and he had deposited the amounts so required from him to be deposited. The petitioner thereafter executed an agreement on 26.02.2014. The amount deposited by the petitioner is as follows ;

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i. 1. Security Deposit Money --- Rs. 2,68,750.00

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ii. 2. Additional amount equal to --- Rs. 89,589.00

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iii. One month's Dead Rent

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iv. 3. 10% Dead Rent --- Rs. 2,15,000.00 v. 4. 1^st Qtr. 1st year Govt. Due --- Rs. 2,68,750.00 vi. 5. Vat 13.5% on royalty --- Rs. 36,282.00 vii. 6. I. Tax 2.55% on royalty --- Rs. 6,854.00

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However it is contended that the petitioner, herein, even after deposit of the government dues, could not take possession of the mahal in view of the obstruction presented by the persons carrying on illegal mining of ordinary clay in the mahal area. The petitioner submits that the authorities of the Forest Department, took up the matter with the District Administration, however, inspite of the steps taken in the matter by the District Administration and the police, the petitioner could not take possession and extract the ordinary clay from the said Mahal in terms of the settlement made with him. The petitioner in the meanwhile had also approached the authorities in view of the facts and circumstances existing in the case for recasting the period of settlement of the mahal with him.

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3. The petitioner further projects that in pursuance to a proposal routed by the authorities of the Department regarding use of a private road for carrying river silt so as to avoid obstructions put by the villagers against the operation of the mahal. The petitioner, herein, at his own cost has constructed the said road. However, inspite of the said developments, the petitioner could not proceed to

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extract the ordinary clay from the said mahal and his period of settlement came to an end on 06.03.2016.

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The petitioner contends that inspite of the said developments taking place in the matter which was also to the knowledge of the authorities, the petitioner continued to be prevented from taking possession of the said mahal. The dues payable by the petitioner not having been cleared for the whole period of settlement of the Mahal, a Bakijai proceedings came to be instituted against the petitioner, herein, vide issuance of a communication dated 01.08.2016, by the Divisional Forest Officer, Kamrup (East) Division, Basistha. Accordingly, presenting a challenge to the said institution of Bakijai Proceedings in the matter, the petitioner has instituted the present proceeding.

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WP(C).No.6138/2016

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4. The petitioner, in pursuance to a sale notice dated 29.08.2013,

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had submitted his bid for settlement of Baruapara Mahal of ordinary clay from Brahmaputra river bed for a period of 2(two) years under Palasbari Range. The petitioners bid was found to be valid and the value quoted was found to be the highest. Accordingly, the petitioner was settled with the said Mahal and he had deposited the amounts so required of him to be deposited. The petitioner thereafter executed an agreement on 26.02.2014. The amount deposited by the petitioner is as follows ;

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i. Security Deposit Money --- Rs. 1,27,500.00

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ii. Additional amount equal to one month's ---- Rs. 42,500.00

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Dead Rent

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iii. 10% Dead Rent ---- Rs. 1,02,000.00 iv. 1st Qtr. 1st year Govt. Due ---- Rs. 1,27,500.00 v. Vat 13.5% on royalty ---- Rs. 17,213.00

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vi. I. Tax 2.55% on royalty ---- Rs. 3,188.00

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However it is contended that the petitioner, herein, even after deposit of the government dues could not take possession of the Mahal in view of the obstruction presented by the persons carrying on illegal mining of ordinary clay in the Mahal area. The petitioner submits that the authorities of the Forest Department, took up the matter with the District Administration, however inspite of the steps taken in the matter by the District Administration and the police, the petitioner could not take possession and extract the ordinary clay from the said Mahal, in terms of the settlement made with him. The petitioner in the meanwhile, had also approached the authorities in view of the facts and circumstances existing in the case for recasting the period of settlement of the Mahal with him.

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The petitioner contends that inspite of the said developments taking place in the matter which were also to the knowledge of the authorities, the petitioner could not take possession of the said Mahal. On account of non-payment of his dues, a Bakijai Proceedings came to be instituted against the petitioner, herein, vide issuance of a communication dated 01.08.2016, by the Divisional Forest Officer, Kamrup East Division, Basistha. Accordingly, presenting a challenge to the said institution of Bakijai Proceedings in the matter, the petitioner

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has instituted the present proceeding.

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5. The learned counsel for the petitioner in the above noted writ petitions, taking this Court to the communication issued in the matter by the respondent authorities and also reiterating the facts noticed hereinabove, has submitted that the petitioner, herein, was prevented from taking possession of the Mahal in question and accordingly he was prevented from extracting the minor mineral, only on account of the obstruction given by the local people who were involved in illegal mining in the Mahal areas.

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6. The learned counsel further submits that the matter was taken up by the Forest Department, with the District Administration, however the same also did not redress the grievance of the petitioners and they were continued to be kept away from the Mahals, in question. The learned counsel for the petitioner has submitted that although in the writ petitions the petitioners had made prayers for allowing them to extract the minor mineral in terms of the settlement made with them earlier, he at present in view of the long lapse of time occasioning in the matter would, not press the said prayer in the above noted 2(two) writ petitions, but would pray for an interference with the Bakijai proceedings along with the refund of the amount deposited by the petitioner with the government.

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7. The learned counsel for the petitioner had also prayed for a direction upon the respondent authorities to reimburse to the petitioner, in WP(C).No.6139/2016, the cost of the private road developed by the petitioner in the matter, with the approval of the authorities of the Forest Department.

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8. Per Contra, Mr. I. Borthakur, learned Standing Counsel, for the respondents, has submitted that the mining activity involved in the matter is governed by the provisions of the Assam Minor Mineral Concession Rules, 2013, and in terms of Rule 38(20) of the said Rules, it is mandated that in case the mineral concession holder does not commence mining operations in the period of 180 days, counted from the date of commencement of the mineral concession, notwithstanding the payment of dead rent/contract money by him, the mineral concession shall be liable to be terminated, unless specifically permitted by the competent authority on application, for reasons to be recorded in writing.

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9. The learned Standing Counsel, Forest Department, submits that the petitioners, after making the initial deposits had failed to deposit necessary kist/instalment of the royalty and accordingly, the Bakijai case was instituted against them. The proceeding is contended to be carried out by the respondent no.7.

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10. The learned counsel for the respondents further submitted that the petitioners had an option for surrendering the Mahals, in the event, it was found that the Mahals were not feasible to operate. However, he submits that the petitioners, in the above noted writ petitions, had neither surrendered their individual mining permits nor had initiated any process in this connection. He further submits that the respondent authorities on their own volition could not have initiated the process of surrender of the mining permit of the petitioners in this connection.

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11. I have heard the learned counsel for the parties and have also

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perused the materials available on record.

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12. On the respective Mahals, involved being settled with the petitioners, in the above noted writ petitions, and they having deposited the government dues, an agreement was entered into with the petitioners individually by the authorities of the Forest Department. It is seen that the agreement having been entered into, the petitioners tried to extract minor minerals from the Mahals as settled with them, however they were prevented from extracting the minor mineral, therefrom, by the people of the locality, who it is submitted were carrying illegal mining, therein.

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13. The communications of the authorities of the Forest Department brought on record in the above noted writ petitions reveals that they were in a know how of the fact that the petitioners, herein, were not in a position to operate their respective Mahals and illegal mining of the minor mineral was going on therein, and the same was also causing loss of revenue to the Government. The said position is not disputed by the respondents in the Forest Department. It is also noticed that the District Administration had required assistance of police for a raid proposed to be conducted by the Forest Officials to drive away the illegal operatives from the permit area within the jurisdiction of Azara Revenue Circle. However it is seen that the said steps taken also did not mitigate the grievances of the petitioner and the position remained as before.

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14. As noticed hereinabove, on lapse of 2(two) years from the date of award of settlement of the Mahal in favour of the petitioners, such settlement stood expired. The respondent authorities had thereafter

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not extended the same.

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15. In view of the above position, the respondent authorities in the Forest Department, having settled the Mahal in favour of the petitioners in the above noted writ petitions, could not have sat idle and it ought to have been ensured by them, that the petitioners, herein, are in a position to extract the minor mineral involved from the mahals, in question, and there was no hindrance created for the purpose from any quarter. The said aspect of the matter is seen to have not been complied with by the authorities in the Forest Department.

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16. As noticed hereinabove, the petitioner has deposited the security deposit, dead rent, first kist etc, and a substantial amount was so paid to the governmental authorities for operation of the Mahal, in question. However, on account of the illegal activities being carried out, therein, and the same being not controlled by the departmental authorities, the petitioners in the above noted writ petitions were prevented from operating the Mahal, in question.

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17. In view of the admitted position as emanating in the matter, with regard to the operation of the Mahals, this Court is of the considered view that penal action in the matter was not called upon to be taken against the petitioners, in the above noted writ petitions, by the authorities in the Forest Department.

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18. Accordingly, this Court is of the considered view that, in the peculiar facts and circumstances as existing in the matter, the Bakijai proceedings instituted against the petitioners for realization of the dues payable by it, for the whole period of the settlement of the

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Mahals, in question, with them, would not be maintainable.

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As noticed hereinabove, the petitioners, in the above noted writ petitions, had deposit the following amounts with the Government ;

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(A). WP(C).No.6139/2016 i. 1. Security Deposit Money --- Rs. 2,68,750.00 ii. 2. Additional amount equal to --- Rs. 89,589.00 iii. One month's Dead Rent iv. 3. 10% Dead Rent --- Rs. 2,15,000.00 v. 4. 1^st Qtr. 1st year Govt. Due --- Rs. 2,68,750.00 vi. 5. Vat 13.5% on royalty --- Rs. 36,282.00 vii. 6. I. Tax 2.55% on royalty --- Rs. 6,854.00 (B). WP(C).No.6138/2016 i. Security Deposit Money --- Rs. 1,27,500.00 ii. Additional amount equal to one month's ---- Rs. 42,500.00 Dead Rent iii. 10% Dead Rent ---- Rs. 1,02,000.00 iv. 1st Qtr. 1st year Govt. Due ---- Rs. 1,27,500.00 v. Vat 13.5% on royalty ---- Rs. 17,213.00 vi. I. Tax 2.55% on royalty ---- Rs. 3,188.00

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19. The said amount on being deposited by the petitioner and they being not facilitated to operate the Mahals, in question, for reasons noted above, this Court is of the considered view that the petitioners, herein, are entitled to be refunded the said amount by the Forest

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Department.

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20. Having drawn the said conclusions, this Court would now examine the claim of the petitioner in WP(C).No.6139/2016, that he had developed a private road by executing agreements with the landlords of the land involved of Rajapara village in terms of the permissions granted by the Chief Conservator of Forest(T) Assam, for transportation of minor mineral from the Mahal, in question. The petitioner in the writ petition has made categorical statements to the effect that the amount involved for development of the private road was expended by him and the same was so done after requisite permission from the authorities of the District Administration, was received.

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Having noticed the said position, this Court also notices that the Divisional Forest Officer, Kamrup East Division, in the affidavit filed by him in the matter, had disputed the said position and had stated that the private road, in question, was made by the Forest Authorities.

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21. In view of the said position, and a dispute having been arisen, this Court refrains from issuing a mandamus to the respondent authorities for reimbursing to the petitioner, in WP(C).No.6139/2016, the cost expended by him for development of the private road in question.

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22. In view of the above conclusions, this Court interferes with the Bakijai proceedings instituted, in respect of the petitioners in the above noted 2(two) writ petitions in pursuance to the communication dated 01.08.2016 issued by the Divisional Forest Officer Kamrup East

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Division.

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23. Further, the respondent authorities of the Forest Department are directed to reimburse to the petitioners the amount deposited by them and noticed, hereinabove, for the purpose of operation of the said Mahal. The said refund be made within a period of 2(two) months from the date of receipt of a certified copy of this order.

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24. With regard to the claim made by the petitioner in WP(C).No.6139/2016, of having developed a private road for facilitating the operation of the Mahal, in question, as noticed, hereinabove, the said contention being disputed, this Court directs the petitioner in WP(C).No.6139/2016, to submit a representation before the Principal Chief Conservator of Forest and Head of Forest Force, Assam(Respondent no.3), within a period of 2(two) month from today, and therein, stake a claim for re-imbursement of the cost incurred by him in development of the private road, in question, after bringing on record, all due particulars/documents etc, requisite for adjudication of the said claim by the respondent no.4.

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25. The respondent no.4, on receipt of such representation from the petitioner, herein, shall dispose of the same by passing speaking order, after providing a due opportunity of hearing to the petitioner in WP(C).No.6139/2016. The said representation be disposed of within a period of 2(two) months from the date of submission of the same by the said petitioner.

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26. With the above observations and directions, the above noted writ petitions being WP(C).No.6138/2016 and WP(C).No.6139/2016, stands disposed of.

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JUDGE

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Jayanta Kalita v. the State of Assam and 6 Ors.

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Jayanta Kalita v. the State of Assam and 6 Ors.

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