The executive cannot extend the applicability of statutory rules to private entities through administrative communications; imposing forest royalty on private constructions as a condition for building permission is ultra vires the parent statute and unconstitutional.

ORDER

Heard Mr. P. K. Roychoudhury, learned Senior Counsel assisted by Mr. S. Ahmed, learned counsel appearing for the petitioner. Also heard Mr. R. R. Gogoi, learned Standing Counsel, Forest Department and Ms. A. Borthakur, learned counsel appearing on behalf of Mr. P. Nayak, learned Standing Counsel, GMC, and Mr. S. S. Roy, learned State counsel appearing for the respondent No. 3.

2. By way of the present petition under Article 226 of the Constitution of India, the petitioner calls in question the legality and validity of the impugned communication dated 02.03.2023 issued by respondent No. 5, whereby the scope and operation of the Assam Minor Minerals Concessions (Amendment) Rules, 2021, published in the Assam Gazette (Extraordinary) on 07.10.2021, have been impermissibly expanded.

3. The core grievance of the petitioner is that the amendments carried out to the Assam Minor Minerals Concessions Rules, 2013 prescribe norms for payment of “Forest Royalty” by government departments, their agencies, and urban local bodies in respect of consumption of forest produce in contractual works executed through contractors. However, while implementing the said amendments, the respondent authorities, by way of the impugned communication, have sought to include private individuals and private agencies within the sweep of the said provisions.

4. According to the petitioner, such inclusion is wholly dehors the statutory framework and travels beyond the scope of the parent Rules as well as the amending Rules. The effect of such executive overreach is that the petitioner has been compelled to deposit forest royalty in advance as a precondition for consideration of her application for building permission/NOC, which is ex facie without authority of law.

5. The factual matrix is not in dispute. The petitioner derives her rights pursuant to a registered Deed of Development Agreement dated 09.05.2022 executed with Smti. Kiran Kutum, the admitted owner of the subject land measuring 1 (one) bigha, covered by Dag No. 184 (old)/953 (new) of K.P. Patta No. 135 (old)/1931 (new), situated at Village Hatigaon under Mouza Beltola in the district of Kamrup (Metro), Assam. An Irrevocable General Power of Attorney was also executed in favour of the petitioner.

6. Pursuant thereto, the petitioner applied for building permission before the Guwahati Metropolitan Development Authority (hereinafter referred to as “GMDA”) on 24.05.2023. The application was forwarded to respondent No. 6 on 01.06.2023, whereupon the petitioner was informed that payment of Forest Royalty @ 2% of the estimated project cost was a mandatory precondition for processing the application.

7. Upon consideration of the pleadings, submissions advanced by learned counsel for the parties, and the materials available on record, the short but significant issue that arises for determination is whether the amended Rules can be construed to extend to private individuals and agencies, thereby authorising urban local bodies to levy and recover royalty in respect of private construction activities.

8. The said issue, in the considered opinion of this Court, is no longer res integra. A coordinate Bench of this Court, in Amar Deka and Anr. v. State of Assam and Ors , in WP(C) No. 4085/2024 has authoritatively settled the controversy. The relevant extracts are reproduced herein below:

“19. In view of the above analysis, it is therefore the opinion of this Court that the impugned communication dated 02.03.2023 issued by the Joint Secretary to t