Page No.# 1/6 GAHC010098642023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2647/2023 PRAKASH PHUKAN SON OF MR. MULANATH PHUKAN, RESIDENT OF VILLAGE- GOHAIN TEKELA, P.O.- AZAD, DISTRICT- LAKHIMPUR, ASSAM, PIN- 787031. VERSUS THE STATE OF ASSAM AND 4 ORS. REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM, ENVIRONMENT AND FOREST DEPARTMENT, ASSAM SECRETARIAT, DISPUR, GUWAHATI- 781006, ASSAM. 2:THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS AND HEAD OF FOREST FORCE ASSAM PANJABARI GUWAHATI-37. 3:THE DIVISIONAL FOREST OFFICER LAKHIMPUR DIVISION NORTH LAKHIMPUR. 4:CERTIFICATE OFFICER OFFICE OF THE DEPUTY COMMISSIONER LAKHIMPUR DIVISION. 5:THE OFFICER-IN-CHARGE PANIGAON POLICE STATION LAKHIMPUR Page No.# 2/6 ASSAM Advocate for the Petitioner : MR. T J MAHANTA, MR. J SARMAH Advocate for the Respondent : SC, FOREST, GA, ASSAM BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI ORDER 17.07.2026 The instant writ petition instituted under Article 226 of the Constitution of India is for the following relief: “In the premises aforesaid, it is thereby humbly prayed that Your Lordships would be pleased to admit this petition, call for the record, issue a Rule calling upon the respondents to show cause as to why a writ in the nature of certiorari shall not be issued setting aside and quashing the Letter No.9 FLKT/ B/ Bakijai/Bhimpara MCA/2022/1330-32 dated 22.03.2022 (Annexure-15) issued by the Divisional Forests Officer, Lakhimpur Forest Division directing the Bakijai Officer, Lakhimpur to recover an amount of Rs.58,90,985/-(Rupees Fifty Eight Thousand Ninety Thousand Nine Hundred Eighty Five) from the petitioner being the kist money from 24th to 29thkist andother taxes etc. and also to set aside and quash Order of warrant of arrest issued vide memo No. Bakijai Case No. DCNLP / AL/1/2022 dated 09.03.2023 issued by the Certificate Officer, Lakhimpur (Annexure -16) and / or after cause or causes shown, hearing the parties, perusal of record be pleased to make the rule absolute and / or pass such further order or orders as Your Lordships may deem fit and proper. -AND- Pending disposal of the writ petition the Letter No.9 FLKT/ B/Bakijai/Bhimpara MCA/2022/1330-32 dated 22.03.2022 (Annexure-15) issued by the Divisional Forests Officer, Lakhimpur Forest Division and the Page No.# 3/6 Warrant of arrest vide Memo No. Bakijai Case No. DCNLP/AL/1/2022 dated 09.03.2023 issued by the Certificate Officer North Lakhimpur (Annexure -16) may be stayed. And for this act of kindness, the petitioner as in duty bound shall ever pray.” 2. As per the facts projected, pursuant to a tender process, the BhimparaSand and Gravel Mining Contract Area was settled with the petitioner for a period of 7 (seven) years. The said period was to expire on 20.07.2021.It is, however, the case of the petitioner that Environmental clearance, which is a mandatory requirement for such settlement was given on 20.05.2014, which was for a period of 5(five) years. Accordingly, the agreement was entered into between the parties and the operation had started. As the Environmental clearance after expiry of the period of 5 (five) years was not renewed, the mining operation had come to a standstill and the petitioner had issued representations on 10.01.2020 and 21.01.2021 for such Environmental clearance. 3. The Forest Department had also issued a communication dated 22.01.2021 to the StateEnvironment Impact Assessment Authority for such renewal. Ultimately, the renewal was issued by a communication dated 10.03.2021 by the Environmental Assessment Authority, which was for a period of 4 (four) months 10 (ten) days corresponding to the date of expiry, i.e., 20.07.2021. 4. It is a specific case of the petitioner that for the period 19.05.2019 to 10.03.2021, due to absence of Environmental clearance, no mining operation could be conducted and accordingly, no kist money could be deposited after the Page No.# 4/6 22ndkist money was deposited. 5. Vide the impugned order dated 08.04.2021, the petitioner was directed to deposit the 23rdkist money and there was also a stipulation of a recovery as well as warrant of arrest against him in a Bakijaiproceeding. This Court vide order dated 24.05.2023, while issuing notice of motion had passed an interim order suspending the recovery as well as the warrant of arrest against the petitioner. 6. I have heard Shri J. Sarmah, learned counsel for the petitioner.I have also heard Shri R. R. Gogoi, learned Standing Counsel,Forest Department and Shri M. Chetia, learned State Counsel. 7. Shri Sarmah, the learned counsel for the petitioner has submitted that though the settlement was for a period of 7 (seven) years which was to expire on 20.07.2021, the Environmental clearance was admittedly for a period of 5 (five) years given by communication dated 20.05.2014. He has submitted that grant of such clearance was not within the control of the petitioner and he was under a legitimate expectation that the clearance for the remaining 2 (two) years would be renewed/ granted in course of time.As such renewal was not made on time, the petitioner had made representations including a communication dated 21.01.2021by the Forest Department itself. He has submitted that the renewal was ultimately made on 10.03.2021 upto 20.07.2021 which corresponds with the date of expiry of the lease. He has submitted that during the pendency of the writ petitioner, the petitioner had also deposited the 23rdkist money. 8. It is submitted that due to absence of Environmental clearance for the period 19.05.2019 to 10.03.2021, the petitioner was not able to operate the Page No.# 5/6 Mahal. 9. On the other hand, Sri Gogoi, the learned counsel for the Forest Department has submitted that in absence of Environmental clearance, if the petitioner was not able to operate the Mahal, the same should have surrendered and the same would not be a reason not to pay the kist money. He has also submitted that the Rules contains provision as per which a lessee can apply for renewal of the lease in certain circumstances which was also not done. 10. From the facts and circumstances, it is clear that for the period 19.05.2019 to 10.03.2021, there was no Environmental clearance and it cannot be in dispute that in absence of such Environmental clearance, a lessee cannot operate a Mahal. The said bar is a legal bar which cannot be disputed. This Court has also taken into consideration that while the lease period was for 7 (seven) years as stipulated in the settlement order dated 25.09.2014, the Environmental clearance which was taken prior in point of time vide order dated 20.05.2014 was for a period of 5 (five) years.It clearly appears that the further clearance for 2 (two) years would be obtained in due course of time. However, there was a delay in the renewal of such clearance in spite of reminders by the petitioner and even by the Forest Department and such renewal was ultimately done on 10.03.2021 upto a period of 20.07.2021. 11. Since the petitioner was legally barred from operating the Mahal from the period of 19.05.2019 to 10.03.2021 due to absence of Environmental clearance in which the petitioner would not have any effective control, the demand of kist money for the aforesaid period in question does not appear to be reasonable.The initiation of Bakijaiproceedings for recovery of the amount for the said period also would not be reasonable in the considered opinion of this Page No.# 6/6 Court.There is however an agreement in the Bar that the petitioner has paid kist money up till the 23rdinstallment. 12. Upon consideration of the facts and circumstances and by balancing the equities, it is directed that while the petitioner would be liable to pay the kist money for the tenure in question in which he could operate the Mahal after grant of Environmental clearance, the Department would not insist upon payment of the kist amount for the period 19.05.2019 to 10.03.2021.The balance amount which would be required to be paid by the petitioner be deposited within a period of 3 (three) months from today, if not already deposited. Upon deposit of the balance, the Department shall not proceed further with the Bakijai proceedings and the parties may apply for dropping of the Bakijaiproceedings in accordance with law. 13. Writ petition accordingly stands allowed in the manner indicated above. The interim order passed earlier is made absolute and gets merged with the observations made in the present order. JUDGE Comparing Assistant