WP(C) 6126/2010 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY Heard Mr. G.N. Sahewalla, learned senior counsel for the petitioner, Mrs. H.M. P hukan, learned State counsel appearing for the respondent Nos.1 to 4 and Mr. S. Chamaria, learned counsel appearing for the respondent No.5. The petitioner, by the present petition, has challenged the order dated 18th Sep tember, 2010 passed by the Divisional Forest Officer, Digboi Division settling t he Stone Mahal No.DIG/7 for the period 2009-2011 under the provisions of Assam S ale of Forest Produce, Coups and Mahal Rules, 1977 (in short, 1977 Rules ), as amended by the amendment Rules of 2000. Though the said period of settlement wa s upto 31st March, 2011, the same, however, was extended to 18th September, 2012 . The grounds on which the said order of settlement has been challenge is that des pite the order dated 4th November, 2009 passed by a Division Bench of this Court in WA No.327/2009 directing the State respondents not to make any settlement of sand/stone mahal until the Assam Minor Minerals Concessions Rules, 1994 (in sho rt, 1994 Rules ) is amended, however, giving concession that the ad-hoc settlem ent for a period of 2 (two) months can be made by the respondent authorities by issuing necessary executive instruction, the settlement has been made in favour of the respondent No.5 in gross violation of the said order. The Notice Inviting Tender (NIT) dated 28th April, 2010 was issued by the Divisi onal Forest Officer, Digboi putting the said mahal to sale under the provisions of 1977 Rules. The said NIT had to be issued as the earlier settlement holder f ailed to carry out the order of settlement and consequently the said sale notice was issued at the risk and cost of the earlier settlement holder. The responden t No.5 submitted the tender and accordingly the order of settlement dated 18th S eptember, 2010 was issued by the Divisional Forest Officer. Mr. Sahewalla, learned senior counsel for the petitioner referring to the order dated 4th November, 2009 passed by a Division Bench of this Court in WA No.327/2 009 has contended that since pursuant to the affidavit filed by the Chief Secret ary to the Government of Assam, the Court had directed the respondent authoritie s not to issue any fresh settlement of sand/stone mahal until the 1944 Rules is amended, the respondent authorities could not have issue the tender notice, as h as been done and settle the said mahal in favour of anyone including the respond ent No.5. It has also been submitted that by the said order, only the temporary arrangement for a period of 2 (two) months was allowed to be made subject, of c ourse issuance of the executive instruction for that purpose. Referring to the a ffidavit-in-opposition filed on behalf of the respondent No.2 by the Deputy Cons ervator of Forest, it has also been submitted that the Principal Chief Conservat or of Forest, who is the respondent No.2 has admitted that the order of settleme nt made by the Divisional Forest Officer is in violation of the order dated 4th November, 2009 passed in WA No.327/2009 and hence cannot be sustained in law and void ab initio. Mrs. Phukan, learned State counsel appearing for the respondent Nos.1 to 4 placi ng reliance on the averments made in the affidavit-in-opposition filed on behalf of the respondent No.2 and also the order dated 4th November, 2009 passed by th e Division Bench of this Court in the aforesaid WA No.327/2009 has also submitte d that the Divisional Forest Officer ought not to have issued the order of settl ement in favour of the respondent No.5, the same being contrary to the direction s issued vide order dated 4th November, 2009 in the aforesaid writ appeal. Mr. Chamaria, learned counsel appearing for the respondent No.5, however, has su bmitted that the order dated 4th November, 2009 passed by a Division Bench of th is Court in WA No.327/2009 being an interim order, the same merges with the fina l order passed on 4th March, 2011, whereby and whereunder WA No.327/2009 has bee n dismissed. Mr. Chamaria, therefore, submits that after the order of dismissal of the said writ appeal, the order dated 4th November, 2009 does not survive and hence, as on date, it cannot be said that the order of settlement made on 18th September, 2010 in favour of the respondent No.5 is contrary to the directions c ontained in the order dated 4th November, 2009. I have considered the submissions of the learned counsel for the appearing parti es and also perused the pleadings. In WA No.327/2009, apart from others, the question also arose for consideration by a Division Bench of this Court was as to whether the sand/ stone mahal can be settled by invoking the provisions of 1977 Rules. The Principal Chief Conservat or of Forest, Government of Assam was asked to file an affidavit and accordingly an affidavit was filed, wherein it has been admitted that taking recourse to 19 77 Rules may not be legally valid. The Division Bench passed an order on 4th No vember, 2009 directing the respondent authorities not to settle any sand/stone m ahal until the adequate amendment of 1994 Rules is made, by holding that no sett lement can be made under the 1977 Rules. It has also been indicated in the said order that the order of settlement already made prior to passing of the said ord er, however, has not been interfered with. A concession, however, was granted, giving liberty to the State to make settlement for a period of 2 (two) months su bject to issuance of necessary executive instruction in that regard. The writ appeal being WA No.327/2009 arose out of an order of settlement made, n aturally prior to 4th May, 2009. Therefore, the final decision given in the sai d writ appeal, passed on the facts of that case would not take away the effect o f the order dated 4th November, 2009 passed by a Division Bench of this Court in the said appeal. The said order would continue to hold the field despite dismis sal of the aforesaid WA No.327/2009 on facts. It is also evident that the Principal Chief Conservator of Forest vide order dat ed 7th December, 2009 also directed all the Divisional Forest Officers not to pu t any mahal or stone quarry to sale under the provisions of 1977 Rules. The Principal Chief Conservator of Forests in the affidavit-in-opposition filed has also taken the stand that the order of settlement dated 18th September, 2010 is illegal being contrary to the directions contained in the order dated 4th No vember, 2009 passed in WA No.327/2009. The contention of the learned counsel for the respondent No.5 that the order of settlement cannot be treated to be a fresh order of settlement, since the same w as issued at the risk and sale of the earlier settlement holder, cannot be accep ted on the ground that a fresh order of settlement has been issued by the Divisi onal Forest Officer, may be at the risk and sale of the earlier settlement holde r and that too for a period beyond 2 (two) months. In view of the above, the order of settlement dated 18th September, 2009 passed by the Divisional Forest Officer and the subsequent order extending the period o f such settlement are set aside. The writ petition is allowed to the extent as indicated above. No costs.