Jharkhand High Court
Rohit Brics Through Its Properietor ... vs The State Of Jharkhand And Others on 16 September, 2014
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 5921 of 2013
M/s Kushwaha Clay Products, East Singhbhum..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
With
W.P. (C) No. 5936 of 2013
M/s King Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 5969 of 2013
M/s Jharkhand Clay Products, East Singhbhum..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 5973 of 2013
Jain Clay Products, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6014 of 2013
Binay Chowdhury, East Singhbhum..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6017 of 2013
Rohit Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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With
W.P. (C) No. 6021 of 2013
Ajay Kumar Singh, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6022 of 2013
Rohit Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6023 of 2013
Bankim Chowdhury, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6025 of 2013
M/s Jain Brothers, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6026 of 2013
Rohit Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6028 of 2013
Rohit Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6037 of 2013
M/s A.K. Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6040 of 2013
M/s G.S. Enterprises, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6041 of 2013
Pritpal Singh, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6045 of 2013
Jain Clay Products, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6047 of 2013
Zubair Ahmad, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6057 of 2013
M/s Bharat Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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With
W.P. (C) No. 6058 of 2013
Ram Awtar Singh, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6061 of 2013
Prantik Dixit, Seraikella Kharsawan ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6062 of 2013
M/s H.M. Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6063 of 2013
Bala Prasad Agarwal, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6064 of 2013
Kamaljeet Singh, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6065 of 2013
Bijay Kumar Singh, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6067 of 2013
Maa Rankini Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6079 of 2013
S.H.M. Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6095 of 2013
Siv Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6099 of 2013
M/s Om Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6100 of 2013
Om Bricks Products, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6101 of 2013
M/s Om Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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With
W.P. (C) No. 6106 of 2013
Anand Bricks Products, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6161 of 2013
Bijay Biswas, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6162 of 2013
Pawan Kumar Singh, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6165 of 2013
Prantik Dixit, Seraikella Kharsawan ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6166 of 2013
Jain Clay Works, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6169 of 2013
Om Bricks Product, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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With
W.P. (C) No. 6170 of 2013
Shan Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6172 of 2013
Abdul Sattar, Seraikella Kharsawan ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6173 of 2013
Shri Narayan Singh, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6175 of 2013
Priya Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6176 of 2013
Prantik Dixit, Seraikella Kharsawan ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6184 of 2013
Atikur Rahman, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6189 of 2013
Rajendra Prasad Choudhary, Saraikella Kharsawan..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6192 of 2013
Bihar Bricks Products, East Singhbhum..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6196 of 2013
Bhartiya Bricks Centre, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6198 of 2013
M/s Radha Krishna Bricks, East Singhbhum..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6199 of 2013
Rajendra Kumar Singh, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6202 of 2013
Maruti Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6207 of 2013
Arun Kumar, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6215 of 2013
Baba Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6216 of 2013
Sona Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6217 of 2013
P.K.S. Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6227 of 2013
Om Bricks Products, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6228 of 2013
Amitava Sen, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6278 of 2013
M/s Shyam Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6285 of 2013
Shyam Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6287 of 2013
Atikur Rahman, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6301 of 2013
M/s Dinkar Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6303 of 2013
M/s R.D.S. Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6310 of 2013
Super Bricks, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6390 of 2013
Chandra Bhansh Yadav, Seraikella Kharsawan..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6404 of 2013
Chandra Bhansh Yadav, Seraikella Kharsawan..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6473 of 2013
Keshav Prasad Yadav, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6477 of 2013
Bhairo Prasad, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6616 of 2013
Dilip Kumar Jaluka, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6687 of 2013
Ashwani Gour, East Singhbhum ..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 6729 of 2013
M/s Hardev Singh Yadav, Seraikella Kharsawan..... Petitioner
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The State of Jharkhand & Ors. .... Respondents
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W.P. (C) No. 7195 of 2013
Joba Hembrom, Seraikella Kharsawan ..... Petitioner
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Union of India & Ors. .... Respondents
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W.P. (C) No. 7198 of 2013
Hare Lal Mahato, Seraikella Kharsawan ..... Petitioner
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Union of India & Ors. .... Respondents
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioner (s) : Mr. Shankar Lal Agarwal, Advocate
For Respondents : Mr. Ajit Kumar, AAG
Mr. Rajesh Kumar, G.P.V
Mr. A.K. Pandey, Advocate
For the U.O.I. : Mr. Anurag Kumar, CGCcumASGI
(In W.P. (C) Nos. 7195 of 2013 & 7198 of 2013)
06 /16.09.2014Seeking quashing of Notification dated 03.04.2013 issued by the Department of Environment and Forests, fixing "scrutiny fee" for granting environmental clearance by the State Level Environment Impact Assessment Authority (SEIAA) and quashing of Minutes of Meeting dated 07.05.2013 whereby SEIAA has fixed its own guidelines, the petitioners have approached this Court by filing the present Batch of writ petitions. A further prayer 13 for directing the respondents to issue permit under Rule 31 of the Jharkhand minor mineral concession Rules, 2004 to the brick kiln owners has also been made in the writ petitions.
2. Since a common question of law is involved in all the writ petitions and Mr. Shankar Lal Agarwal, the learned counsel appearing for the petitioner(s) in all the writ petitions advanced common argument, with the consent of the parties, all the writ petitions are being disposed of by this common order. For the sake of convenience, the facts stated in W.P. (C) No. 5921 of 2013 are stated thus;
The petitioner is manufacturing brick kiln in its unit situated in the district of East Singhbhum. For establishing a brick kiln unit, permission under Rule 31 of the Jharkhand Minor Mineral Concession Rules is required. Before 1999, brick manufacturers were permitted to install mobile chimneys however, vide notification dated 05.10.1999 the Central Government prohibited the mobile chimney and made provision for installing fixed chimneys. The petitioner was granted permission under Rule 31 of the Jharkhand Mineral Concession Rules, 2004. After the direction of the Hon'ble Supreme Court whereunder requirement of environmental clearance was made mandatory even for minor minerals, though the State Government was required to frame Rules however, without framing any Rule, the Government of Jharkhand issued Notification dated 03.04.2013 whereunder the 14 industries are required to apply for grant of environmental clearance in a prescribed format along with "scrutiny fee".
3. A counter affidavit on behalf of the State Level Environment Impact Assessment Authority, Ranchi (respondent no.2) has been filed stating that vide order dated 27.12.2012 of the Ministry of Environment and Forest, the State Level Environment Impact Assessment Authority (SEIAA) and State Expert Appraisal Committee (SEAC) have been constituted. Order dated 27.12.2012 was issued in view of order dated 27.12.2012 in I.A. No. 1213 of 2011 in SLP (C) No. 1962829 of 2009 passed by the Hon'ble Supreme Court. The Department of Environment and Forests, Government of Jharkhand also issued Notification Dated 03.04.2013 to facilitate the functioning of SEIAA and SEAC. The Ministry of Environment and Forest vide letter dated 18.05.2012 directed that all Mining projects and Minor Minerals including their renewals, required prior environmental clearance. The Jharkhand Pradesh Brick Manufactures Association and Jharkhand "Iit" Nirmata Sangh had given representations for lowering of the scrutiny fee which was discussed in the joint meeting of SEAC and SEIAA on 24.09.2013. The scrutiny fee has been levied for meeting the expenses incurred in sitting fees, TA/DA expenses for the members of SEIAA and SEAC, etc. In other States like, M.P., U.P., Maharashtra also guidelines have been framed and scrutiny fee has been levied for processing the application.
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4. Mr. Shankar Lal Agarwal, the learned counsel appearing for the petitioner(s) submitted that the decision taken by SEIAA in its meeting held on 07.05.2013 and Notification dated 03.04.2013 by the respondent State are in the teeth of Section 15 of the MMDR Act and also in contravention to Section 3(2)(v) of the Environmental (Protection) Rules, 1986. It is submitted that the Environmental (Protection) Act, 1986 has been enacted by the Parliament under Article 253 read with Entry 14 of List I of Seventh Schedule of the Constitution of India and since SEIAA is the implementing authority, it cannot frame a guideline and the respondent State cannot require deposit of "scrutiny fee". It is further submitted that the power conferred upon the State Government under Section 15 of the MMDR Act is only confined to fixing and calculating royalty in respect of minor minerals and under Section 15 of the MMDR Act, even the State Government cannot frame any Rule relating to the environmental issue or requiring from the applicants to deposit "scrutiny fee". Lastly, it is submitted that a tax or fee can be imposed only under an authority of law and by a notification, tax or fee cannot be imposed by the State Government/ Authority. He relies on a decision in "Attorney General Vs. Built United Durg Limited", reported in (1922) 127 LT
822. It is further submitted that though in the neighbouring State of Orissa, the scrutiny fee of Rs. 5,000/ is being charged from the applicants, in the State of Jharkhand vide Notification dated 16 03.04.2013 scrutiny fee for projects upto Rs. 5 crores has been fixed at Rs. 1 Lac which is exorbitant, arbitrary and liable to be quashed.
5. Mr. Ajit Kumar, learned AAG assisted by Mr. Rajesh Kumar, G.P.V submitted that the SEIAA, Jharkhand in its meeting dated 07.05.2013 deliberated upon the simplification of procedure for environmental clearance and pursuant thereof necessary guideline was formulated. SEIAA has framed separate guidelines of scrutiny of Category AB proposals and the decision dated 07.05.2013 is only temporary in nature. In the meeting held on 07.05.2013, no decision was taken with respect to mining of brick earth and the MoEF issued office memorandum dated 24.06.2013 which was adopted by the SEIAA in its meeting held on 24.09.2013. The Department of Environment and Forests, Government of Jharkhand also notified on 03.04.2013 the decisions taken for facilitating the functioning of SEAC and SEIAA. In these facts, it is submitted that the guidelines framed by SEIAA under in its meeting held on 07.05.2013 is valid and does not require any interference by this Court. It is further submitted that since the applicants are required to borne expenses for processing their applications, the applicants cannot challenge charging of scrutiny fee for processing their applications.
6. I have carefully considered the submission of the learned counsel for the parties and perused the documents on record.
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7. From the materials on record, it is apparent that vide Notification dated 27.12.2012 of MoEF, SEIAA in the State of Jharkhand was constituted. The Department of Environment and Forests, Government of Jharkhand issued Notification dated 03.04.2013 for facilitating the working of SEIAA. The guidelines contained in Minutes of Meeting dated 07.05.2013 is only temporary in nature. It has been brought on record that such guidelines have been formulated after considering the guidelines framed by the State of M.P., U.P. and Maharashtra. I am of the opinion that the guidelines contained in Minutes of Meeting dated 07.05.2013 do not suffer from any illegality or jurisdictional error.
8. Charging of scrutiny fee has been challenged on the ground that in absence of a law enacted in this regard, the scrutiny fee cannot be charged by the State Government. It is common ground that in different departments and even in the educational institutions application fee is charged from the applicants. In the present case, the charge collected from the applicants has been termed "scrutiny fee", which is in lieu of the expenses incurred for processing the applications of the petitioners. I am of the opinion that the petitioners cannot contend that no application fee should be charged from them for processing their application by SEIAA.
9. In "Bangalore Development Authority Vs. Aircraft Employees' Cooperative Society Limited & Ors.", reported in (2012) 3 SCC 442, the power of the Bangalore Development Authority in 18 levying charges for sanctioning new private layout and for expenditure incurred towards execution of schemes/ works for augmentation of amenities within Bangalore metropolitan area, was challenged. The Hon'ble Supreme Court observed that, due to unprecedented increase in the population of Bangalore city and the policy decision taken by the State Government to encourage housing building societies, BDA was obliged to take effective measures to improve the civic amenities like water supply, electricity, roads, transportation, etc. and for this it became necessary to augment the resources by BDA itself or through other State Agencies/ Instrumentalities by making suitable contribution.
10. In "Jantia Hill Truck Owners Assn. Vs. Shailang Area Coal Dealer & Truck Owner Assn.", reported in (2009) 8 SCC 492, the question whether levy/ calculation of fee by issuing executive order was permissible, came up for consideration before the Hon'ble Supreme Court. The provisions of the Motor Vehicle Act, 1988 mandate that the unladen weight and laden weight must be determined and for that purpose Rules are required to be framed. The Hon'ble Supreme Court held that, Article 162 of the Constitution of India in unequivocal terms provides that the executive power of a State shall extend to the matters with respect to which the legislature of the State has power to make law. It was further observed that, "it is well settled principle of law that even in a case where the statute provides for certain things to be done 19 subject to Rules, any action taken without framing the Rules would not render that action invalid". The Hon'ble Supreme Court held that the State for giving effect to the provisions of the Motor Vehicle Act, 1988 may take upon itself the burden of providing for weighbridges and collection of fees, etc.
11. In view of the aforesaid discussion, I am of the view that even though the specific rule has not been framed for charging scrutiny fee from the petitioners, the scrutiny fee can be validly levied for processing the applications of the petitioners. Referring to the contention that charging of Rs. 1 Lac as scrutiny fee from the petitioners is arbitrary and exorbitant, I find that no material has been produced by the petitioners on record, to reach to a conclusion that the scrutiny fee charged by the State of Jharkhand is exorbitant and arbitrary. Moreover, vide Notification dated 21.12.2013, the scrutiny fee has been reduced to Rs. 50,000/ from Rs. 1 Lac. However, if the petitioners feel that charging of Rs. 50,000/ as scrutiny fee is exorbitant, it is open to the petitioners to approach the State Government by making representation in this regard.
12. In the result, I find no merit in these writ petitions and according all the writ petitions are dismissed.
(Shree Chandrashekhar, J.) R.K.