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.
Page No.# 5/13
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.
Page No.# 6/13
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.
Page No.# 11/13
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.# 12/13in 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.
Page No.# 13/13
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
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