WP(C) 188/2008 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. J. Sarma, learned counsel appearing for the petitioner. Also h eard Ms. H.M. Phukan, learned govt. Advocate, who represent the respondents. The petitioner, who was granted permit on 8.2.05 by the Conservator of F orest to extract 1000 cubic meters sand and stone from the Khagrabari Sand and S tone Mahal under the provisions of Assam Minor Mineral Concession Rules, 1994, i s before this Court to seek appropriate direction to enable the petitioner to re move the stipulated quantities of materials as per the permit granted to him. Th e petitioner also makes an alternate prayer for refund of the proportionate amou nt of royalty deposited amounting to Rs.4,49,845/- for the inability to extract the major portion of the minerals (Sand and Stone) because of the difficulties i n extraction of the minerals through the acts of the respondent authorities. The minerals were to be extracted from the Khagrabari Sand and Stone Mah al falling within the North Kamrup Forest Dvn. and it is not in dispute that a p ortion of the said Mahal falls within the Bodoland Territorial Council (BTC) are a. It is also not in dispute that the BTC portion of the Khagrabari Sand and Sto ne Mahal was settled with one Bishnu Ram Boro by an order dated 10.12.04 for the period from 2004-2006, and the settlement of the Mahal was granted with the app roval of the authorities of the BTC. It is the case of the petitioner that because of obstruction of the settlement h older Bishnu Ram Boro who occupied the entire Mahal area including the non-BTC p ortion, he was unable to extract the permitted quantity. It is also submitted th at as the authorities did not ensure that Shri Boro does not transgress into the non-BTC areas of the Mahal, the petitioner ought to be permitted to lift the ba lance quantity of the materials as per the permit issued to him. It appears that on a writ proceeding being WP(C) No. 707/06 initiated by Bishnu Ram Boro, this Court passed an order on 13.6.06 whereby it was ordered b y the Court that the present petitioner (arrayed as respondent No.7 in WP(C) No. 707/06) cannot be restrained from operating in that part of the Mahal which fal ls in the non-BTC area and Bishnu Ram Boro is entitled to operate in only in the BTC portion of the Mahal areas. Although direction was issued to the Forest Off icials for bifurcation of the Mahal and modification of the settlement order gra nted in favour of Bishnu Ram Boro to confine his area of operation within the BT C portion of the Mahal, appropriate steps were not taken and accordingly the pet itioner could extract only 55 cubic meters of Sand and Stone, although permit wa s granted and royalty was paid by the petitioner for extraction of 1000 cubic me ters of Mahal minerals. In the counter affidavit filed by the respondent No. 5 it is clearly adm itted that the petitioner had extracted only 55 cubic meters of stone from the n on-BTC portionof the Mahal from 9.2.06 to 27.4.07 and it is averred that as the petitioner failed to extract the minerals within the stipulated period, his righ t in the remaining minerals would be forfeited and the petitioner cannot be perm itted to claim any refund of royalty for the unextracted quantity of minerals, f or which royalty was deposited. It is seen from the communication dated 11.1.07 of the Chief Conservator of Forest (T) that although the Head of the Forest Department, BTC is authorize d to make settlement only in respect of those portions areas of the Mahal fallin g within the BTC, the settlement in fact was granted in favour of Bishnu Ram Bor o for the entire areas of the Mahal falling covering both the BTC and non- BTC areas, although the sale notice was issued for sale of only the BTC portion of t he Mahal was issued. This act of the Conservator of Forest, Western Assam Circle , Kokrajhar and the Head of the Forest Department, BTC has been described as an unauthorized act by the Chief Conservator of Forest (T) in his communication d ated 11.1.07. From the above communication and also from the materials on record, it i s apparent that settlement in favour of Bishnu Ram Boro was granted to cover are as falling outside the BTC territory and this enabled the said settlement holde r to obstruct the writ petitioner from extraction of the materials from non-BTC area of the Mahal. Admittedly, the petitioner could extract only 55 cubic meters of minerals although he paid royalty for 1000 cubic meters of materials and the writ petitioner could make the extraction only from 9.2.06 to 27.4.06. In the perception of the Court, the failure of the petitioner to extract the ent ire quantity of permitted materials, cannot be attributed to any laches of the p etitioner. Obviously such failure was occasioned because of the unauthorized set tlement granted in favour of Bishnu Ram Boro, who was given settlement of the en tire unbifurcated area, of the Mahal - covering also the area outside the BTC au thority’s area of operation. Under such circumstances, it cannot be considered reasonable that the ba lance quantity of the unextracted minerals would automatically forfeit to the Go vernment, without the petitioner having any claim over the remaining portion of the unextracted materials, or the royalty deposited for the said materials. As the period for which the permit was to operate has already expired, i t may not now be justified to give direction to allow the petitioner to extract the balance quantity of the minerals, as the Mahal in the meantime must have bee n allowed to be operated by some subsequent lessee or permit holder. Therefore, the only reasonable direction that can be given by the Court is for considering his alternate prayer, for refund of the proportionate part of the royalty deposi ted by him, for the unextracted quantity of the minerals. I am of the opinion that the respondent authorities are largely responsi ble for the inability of the petitioner to extract the permitted quanitity of th e minerals and as such the petitioner cannot be deprived of his right to claim a refund of the proportionate royalty, for the quantity of minerals, which he fai led to extract, in terms of the permit. Accordingly, this writ petition is disposed of by permitting the petitio ner to make an appropriate representation for refund of the balance amount of ro yalty for the minerals which could not be extracted. On receipt of such represen tation the respondent authorities would consider the same and take appropriate a ction for refund of the proportionate royalty for the quantity of minerals, whic h remained unextracted by the petitioner. As the royalty has remained deposited with the authorities since the yea r 2006, the authorities would expeditiously deal with the matter and take necess ary steps in this regard within four months from the date of receipt of a copy o f the representation from the petitioner along with a copy of this Court’s order . With the aforesaid direction, this writ petition stands disposed of.