A. ROY, J.

A short yet interesting question has posed itself to be answered in the instant proceeding. Whether 'earth' is a minor mineral and hence a forest produce under the Assam Forest Regulation, 1891? The answer, if in the affirmative would survive the challenge made herein, if no, the petition has to succeed.

2. I have heard Mr B. Chakraborty, learned counsel for the petitioner and Mr B. Bhattacharjee, learned State council for the respondents.

3. The relevant facts in short to provide the factual background in which the above question has arisen for consideration have to be narrated at the outset.

4. The petitioner before this Court is a registered association of owners of trucks who collect and transport earth from private land in Meghalaya. To be specific, they collect earth from Boridua, Khanapara, District-Ribhoi under the Administrative and Revenue Control of the Divisional Forest Officer, Khasi Hills Division, Shillong. According to the petitioner, initially royalty at the rate of Rs: 2/-per cm was levied on the earth so collected which was enhanced to Rs. 16/- per cm. from the year 1994. In the same year, export charge of Rs. 200/- per truck was also imposed. In addition thereto, the truck owners had to pay Rs.30/- per day to the concerned District Council and Rs.20/- to the Mylliem Syiemship. Further they had to pay Rs.10/-per truck to the Forest Department, Govt. of Assam on entering the limits of Guwahati, in addition to Rs.50/- per truck as toll to the authorities of the Guwahati Municipal Corporation, Guwahati. By a notification dated 12.11.98 the rate of royalty of earth was enhanced from Rs. 167- to Rs.32/- per cm. Being aggrieved by the enhancement of the rate of royalty and other levies the petitioners' Association submitted representations before the authorities. While the same were pending by the impugned notification dated 21.10.99 (Annexure E) to the writ petition a levy of Rs.300/- per truck was made for issuance of transit pass therefore.

5. The grievance of the petitioner inter alia, is that with the imposition of the levy of Rs.300/- per truck for the transit pass, the price of earth per truck was raised to Rs.559/ - in comparison to the prevailing price of earth per tuck at Guwahati at Rs.250/-. Therefore, the impugned notification has the effect of imposing an unreasonable restriction of their fundamental right to carry on business and of depriving the members thereof of their means of livelihood, in violation of their fundamental rights under Article 19 and 21 of the Constitution. The impugned action of the respondents has also been assailed as illegal, arbitrary and whimsical.

6. The respondent No. 1 in its affidavit has inter alia contended that the members of the petitioner's Association are only-transporters of the earth in question and, therefore, have no locus standi to question the revision of royalty and the imposition of export transit fees. According to the answering respondent, the impugned notification is by way of amendment of Rule 6(ii) of the Transit Rules framed in exercise of power under Section 40(1) of the Assam Forest Regulation, 1891 (hereinafter referred to as the 'regulation') as applicable in Meghalaya whereby the exemption earlier granted in the matter of payment of transit pass fee under the unamended provision of the rules has been withdrawn and a sum of Rs.300/-only per truck was leviable for issuance of such transit pass in respect of the forest produce mentioned in the said notification. The respondent maintained that the provision for imposition of royalty and transit pass fees were made under the authority of law and, therefore the challenge made by the petitioner was not sustainable in law and on facts.

7. Though several contentions were raised in the writ petition assailing the enhancement of royalty and imposition of the transit fee, Mr B. Chakraborty, learned counsel for the petitioner in course of his arguments, however, confined the challenge only to the notification dated 21.10.99 (Annexure E) to the writ petition. He argued that "earth" was not a forest produce as defined under Section 3(4) of the Regulation and, therefore, the impugned notification could not be made applicable in respect of earth collected by the members of the petitioner's association. Without questioning the legislative competence of affecting the amendment vide the impugned notification, the learned counsel contended that on a bare reading thereof it was clear that the respondent-authorities construed earth to be a "minor mineral" mentioned therein and therefore insisted upon realisation a sum of Rs.300/-per truck of earth for issuance of transit pass. Mr Chakraborty maintained that earth was not a "minor mineral" and therefore the levy as contemplated by the impugned notification was not impossible on the earth and consequently the action of the official respondents in realising Rs.300/- per truck carrying earth for issuance of transit pass was illegal and without any authority of law.

8. To buttress, his arguments, the learned counsel invited the attention of this Court to the definition of 'minor mineral' as provided in Section 3(e) of the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to as "the Act 1957"). He contended therefrom that according to the definition so provided, minor mineral means building stones, grayel, ordinary clay, ordinary sand other than sand used for prescribed purposes and any offer mineral to be declared as a minor mineral by the Central Government by a notification in the Official Gazette. He argued that it was)clear from the definition of minor minerals as above, that it did not contemplate earth and therefore the impugned notification had no application at all for the purpose of realising the transit pass fees for earth. In support of his submission the learned counsel has placed reliance on a decision of the Orissa High Court in Union of India and another, petitioners- Vs-State of Orissa and Ors., respondents, AIR 1995 Orissa 190.

9. Controverting the above submissions, Mr Bhattacharjee, learned State counsel has argued that in terms of the definition of "forest produce" as available in Section 3(4) of the Regulation, it can be safely concluded that earth is a forest produce. He too referred to the definition of minor minerals as furnished in Section 3(e) of the Act, 1957 and urged that earth is included in ordinary clay and therefore was a minor mineral. He also placed reliance on definition of 'mineral' as available in Section 2(l)(ii) of the Mines Act, 1952 (hereinafter referred to as "the Act, 1952") to contend that earth was a mineral and therefore was squarely covered by the definition of forest produce provided under Section 3(4) of the Regulation. According to him, the impugned notification introducing the amendment had been issued in exercise of power u/s. 40 of the regulation and that in the instant case, it was unassailable. He further argued that the members of the petitioner's association being only transporters of earth and not the owner thereof they have no locus standi to question the validity of the impugned notification.

10. It would be proper to deal with the objection raised regarding the standing of the petitioner's association at the outset. The learned State counsel had built up his argument on this score mainly on the basis of the transit passes (Annexure B) to the writ petition and the list of the members of the petitioner's association furnished (Annexure A) thereto. According to the State counsel as the names in the two sets of documents do not tally it could not be said that the members of the petitioner's association were adversely affected by the impugned notification and therefore had no grievance for the same. In reply, Mr Chakraborty has clarified that the names of the pass holders appearing in the transit passes are those of the owners of the private land from whom the earth is collected but the levy imposed by the impugned notification is being realised from the truck owners who are the members of the petitioner's Association. According to him, therefore the members of the petitioner's Association as the truck owners carrying the earth are the persons who are directly affected by the impugned notification and therefore the writ petition filed by them is maintainable in law.

11. As the instant writ petition has been filed by a registered association of truck owners and in terms of the impugned notification, the transit pass fee has been levied on the truck carrying the forest mentioned therein, I am not inclined having regard to the state of minerals on record to non-suit the petitioner on the ground of want of locus standi. Prima facie it would be owners of the trucks carrying the forest produce referred to in the impugned notification who would be liable to pay the transit pass fee imposed by the notification and therefore it cannot be conclusively said that the petitioner's Association has no locus standi to maintain the instant writ petition.

12. Turning to the more important issue in hand it would be proper to begin by noticing the definition of forest produce as provided under the regulation. For ready reference Section 3(4) of the Regulation is extracted hereinbelow:-

"Forest produce" includes -

(a) the following whether found in, or brought from a forest or not, that is to say - timber, charcoal, caoutecouc, catechu, wood oil, resin, natural varnish, bark, lac, myrabolams, and rhinoceros horns, and

(b) the following when found in or brought from a forest that is to say

(i) trees and leaves, and fruits and all other parts or produce, not hereinbefore mentioned, of trees,

(ii) plants not being trees, including gross creepers, reeds and moss, and all parts of produce of such plants,

(iii) wild animals and skins (tusks and horns, other than rhino horns) bobes, silk,

cocoons, honey and wax and all other parts or produce of animals, and

(iv) peat, surface soil, rock and minerals (including limestone, laterite, mineral oils and all products of mines or quarries):"

13. A bare reading of the definition so provided reveals that it is an inclusive one. Further- there are two categories of such produce. One in Clause (a) which are forest produce whether found in, or brought from a forest or not and the other in Clause(b) which would be forest produce when found in or brought from a forest. Considering the fact that the present controversy resolves round the substance earth it would be permissible to confine our attention to the forest produce referred to in sub-clause (iv) of Clause (b) of Section 3(4). As is evident therefrom forest produce contemplated therein are peat, surface soil, rock and minerals (including limestone, laterite, mineral oils and all produces of mines or quarries.

14. Section 40 of the regulation empowers the State Government to frame rules to regulate-inter alia, the transit of any forest produce and as formulated U/s. 40(ii) (d), the rules so framed may provide for prescription of fees payable for transit pass.

15. In exercise of power U/s. 40 of the Regulation, Transit Rules have been framed laying down in details the manner in which a forest produce can be removed and transported. Having regard to the issue involved, a detailed reference to the other provisions of the rules is not considered necessary. However, Rule 6 of the transit rules has to be attended to. Under the said rule in the original form, no fee was leviable for transit pass granted in respect of forest produce from private land covered by a certificate of origin or in respect of forest produce covered by a Gurkati Per., it or in respect of forest produce on which full royalty has been paid.

16. It is not in dispute that the regulation and the Transit Rules have been adopted for their application in the State of Meghalaya. By the impugned notification an amendment has been introduced to Rule 6 referred to above and the amendment to Rule 6(ii) is to the following effect:

"All trucks carrying the forest produce, viz. dhupwood, cane, bamboo firewood, bark and any minor mineral from any forest area or non-forest area for removal outside the State shall be levied a sum of Rs.300/- per truck for issuing of transit pass."

17. A cursory glance at the said notification establishes that the amendment to Rule 6 of the transit rules made by the impugned notification is in exercise of power of the State Government u/s. 40(1) of the regulation. Indeed, the legislative competence for effecting the amendment as above has not at any point of time been challenged on behalf of the petitioner. Consequently, for the purpose of the case in hand, Rule 6(ii) of the Transit Rules is to be taken to exist as above.

18. By the amendment, all trucks carrying the forest produce viz. dhupwood, cane, bamboo firewood, bark and any minor mineral from any forest area or non-forest area for removal outside the State shall have to pay a sum of Rs.300/- per truck for issuing transit pass. What is incidentally noticeable is that the amended provision of the Rule 6 specifies the forest produce, which if carried in a truck, a sum of Rs.300/- per truck would be payable for the transit pass. In other words, the rule makers did not intend to impose the levy on all items of forest produce that could have been contemplated u/s 3(4) of the regulation. What has therefore to be ascertained is whether earth would come within the sweep of the expression minor mineral used in the amended provision of the rules. ' .

19. Before proceeding further, one has to, at this stage revert to the definition of forest produce u/s 3(4) of the regulation. Considering the fact that the controversy relates to the material 'earth', suffice it would be, to confine to Clause(b) (iv) of Section 3(4) of the Regulation. Thereunder peat, surface soil, rock and minerals are construed to be forest produce. None of these expressions has been defined in the regulation or (he rules framed thereunder. It would be advisable to look into their meaning to prima facie ascertain as to whether one or more of them includes 'earth'. In Oxford Advanced Learner's Dictionary 'Peat' has been defined as follows:

"Plant material partly decomposed by the action of water, esp in marshy places (peat bogs) and used in horticulture or as a fuel." Encyclopedia Britannica defines "soil" as hereunder:

"Soil may be defined as the fine earth covering land surfaces that has the important function of serving as a substratum of plant, animal, and human life. Soil acts as a reservoir of nutrients and water, and absorbs and oxidizes the injurious waste substances that plant growth accumulates in the rhizosphere (i.e. the root zone)."

In Words and Phrases, Vo. 37A "rock" is defined as:

"The term 'rock' in geology, is applied not only to the solid or bed rock, but also to the mantle rock, the fragments which have been detached from the solid rock and overlie it, such as clay, sand, graval and broken rock, and such unconsolidated materials as sand, gravel, and clay are justly included among 'rock' as being mineral masses... 'Rock' is a large concreted mass of stoney material; a large fixed stone; also, broken pieces of such masses."

* Black's Law Dictionary defines the expression 'mineral' as:

"Any valuable inert or lifeless substance formed or deposited in its present position though natural agencies alone, and which is found either in or upon the soil of the earth or in the rocks beneath the soil.

Any natural constituent of the crust of the earth, inorganic or fossil, homogeneous in structure, having a definite chemical composition and known crystallisation. The term includes all fossil bodies or matters dug out of mines or quarries, whence anything may be dug, such as beds of stone which may be quarried....."

"Standing alone it might by itself embrace the soil, hence include sand and gravel, or, under a strict definition, it might be limited to metallic substances."

The same expression has also been dealt with in Words and Phrases, Vol. 27. It has been provided therein that:-

"Term 'minerals', in most enlarged sense, comprises all substances which once formed part of solid body of earth, both external and internal....

The term 'mineral', as used in its technical sense, as distinguished from use in ordinary trading transactions, is broad as to embrace not only metallic minerals, oil, gas, stone, sand, gravel, and many other substances, but even the soil itself......"

"In the most general sense of the term, 'minerals' are those parts of the earth which are capable of being got from underneath the surface for the purpose of profit. The term, therefore, includes coal, metal, ores of all kind, clay, stone, slate, and coprolites."

20. On a plain consideration of the definitions of the aforementioned expressions it can be concluded that those are mutually exclusive of each other in the strict sense of the terms. In other words, going by the definitions thereof, peat, surface soil and rock would not comprehend plain earth in the sense in which it is understood generally.

21. The notification impugned in the instant proceeding does not mention either peat or surface soil or rock for carrying which the transit pass is sought to be levied thereby. 'Minor mineral' is one of the articles which if ^ carried from any forest area or non-forest area outside the State would attract a levy of Rs.300/- per truck for issuing the transit pass. What is, therefore, more important to scrutinise is the true purport of the words 'mineral' as used in Regulation 3(4)(b)(iv) of the Regulation. Needless to say that minerals if, is the genus, minor minerals would be its specie. Word 'minerals' find place in the Mines Act, 1952 and is defined as follows:-

(ii) 'minerals' means all substances which can be obtained from the earth by mining, digging drilling, dredging, hydraulicing, quarrying or by any other operation and includes mineral oils (which in turn include natural gas and petroleum."

22. The word 'minor minerals' has been defined in Sec. 3(e) of the Mines and Minerals (Regulation and Development) Act, 1957 as hereunder.

"Minor minerals" means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the: Central Government may, by notification in the official gazette, declare to be a minor mineral." In Words and Phrases Vol. 14: "earth" has been defined as :-

"Earth" is defined as soil of all kinds including gravel, clay, loam, and the like, in distinction from firm rock. The term also includes, hardpan, which is a hard stratum of earth."

23. A survey of the definitions of the expressions as above suggests that the word 'minerals' in the most general sense of the term are those parts of the earth which are formed or deposited through natural agencies and are found either in or upon the soil or earth or beneath the soil. In the popular sense it means any natural constituent of the earth's crash which is commonly obtained by mining or other processes for bringing out the same from underneath the surface for profit. Taken in isolation, it may by itself embrace the soil and hence include sand and gravel or under a strict definition might be limited to metallic substances only.

24. In M/s. Banarsi Doss Chadha and Brothers, appellant-Vs-Lt. Governor, Delhi Administration and others, respondents, reported in (1978)4 SCC 11 the true meaning of the word 'minerals' came up for consideration before the Apex Court. It was held that 'mineral' was not a term of art and it is one of common parlance, capable of a multiplicity of meanings depending upon the context. In the wider sense, it may denote a substance that is neither animal nor vegetable, but in the narrow sense it would mean no more than precious metals like gold and silver. It was further observed that the expression is often used to indicate substances obtained from underneath the surface of the earth by digging or quarrying. The Apex Court, however, underlined that the word 'minerals' has no fixed but a contextual connotation and its meaning depends upon the setting in which it is used. In the facts of that case, the Apex Court while holding that thick earth was a mineral, discarded the view of the Calcutta High Court in State of West Bengal and others, appellant-Vs-Jagadamba Prasad Singh and others, respondents, reported in AIR 1969 Calcutta 281 (V56 C 49) that as nobody speaks of ordinary earth as a mineral, it is not a minor mineral as defined in the Mines and Minerals (Regulation and Development) Act, 1957.

25. The Calcutta High Court in the aforementioned case was seized with the question as to whether, having regard to the definition of 'minor minerals' as provided in Section 3(e) of the 1957 Act, ordinary earth or ordinary clay could be construed as a minor mineral.

26. A similar question as to whether clay can be identified with earth came up for consideration in Union of India & another, petitioners-Vs-State of Orissa & others, respondents, reported in AIR 1995 Orissa 190. It was also a case of the Mines and Minerals (Regulation and Development) 1957 Act above mentioned. His Lordship of the said High Court after referring to the decision of the Calcutta High Court referred to above, held that 'ordinary earth' could not be equated with 'ordinary clay' and consequently, ordinary earth/ordinary clay is not a minor mineral. There is no reference of the decision of the Apex Court in M/s. Banarsi Dass Chadha and Brothers-Vs-Lt. Governor, Delhi Administration and others (supra), in this decision and presumably the same was not brought to the notice of his Lordship of the Orissa High Court.

27. Can the view of the Calcutta and Orissa High Court propounded as above be of any relevance in resolving the present controversy? Admittedly, the instant proceeding is not one under the 1957 Act. The expressions minerals and minor minerals have not been defined under the regulation or rules framed thereunder. What, therefore, should be the beacon light?

28. The Apex Court-in Dean, Goa Medical College Bambolim, Goa and another, appellants-Vs-Dr. Sudhir Kumar Solanki and another, respondents, reported in (2001)7 SCC 645, had reiterated the off quoted principle of interpretation that when a word has many etymological meanings attributed to it, the same takes its true colour from the text and context.

29. The same view was affirmed in Jasbir Singh, appellant- Vs- Vipin Kumar Jaggi and others, respondents, reported in (2001) 8 SCC 289, wherein the Apex Court observed that words take their colour from the context in which they are used.

30. In Crates on Statute Law, the following excerpts thereof appear to be relevant for the instant case:

"But if a word in its popular sense and read in an ordinary way is capable of two constructions, it is wise to adopt such a construction as is based on the assumption that Parliament merely intended to give so much power as was necessary for carrying out the objects of the Act and not to give any unnecessary powers. In other words the construction of words is to be adopted to the fitness of the matter of the statute....

In construing a word in an Act caution is necessary in adopting the meaning ascribed to the word in other Acts. It would be a new terror in the construction of Acts of Parliament if we were required to limit a word to an unnatural sense because in some Act, which is not incorporated or referred to such an interpretation is given to it for the purpose of that Act alone." Thus having regard to the well accepted principle of interpretation of a word in a statute, I am of the considered view that the word 'minerals' in Clause (b) (iv) of Sec. 3(4) of the Regulation has to be construed having regard to the setting in which it appears, the object and purpose of regulation and the rules framed U/s. 40( 1) thereof. The preamble to the regulation proclaims that it has been framed to provide a law relating to forests, forest produce and the duty leviable on timber in Assam. The transit rules framed in exercise of Rule 40( 1) are for the purpose of regulating transit of forest produce. A purposive interpretation of the word 'minerals' is therefore called for having regard to the scheme and purpose of the regulations and rules, the object which they seek to achieve and mischief they seek to remedy. Definition of any expression used in one enactment may not be wholly decisive to be adopted while construing the same in the context of a different legislation, more particularly if the object and purpose thereof is different, from , the former. It cannot be gainsaid that indiscriminate and uncontrolled removal of forest produce is detrimental to the forests resources besides causing ecological imbalance. The avowed purpose of the regulation and the transit rules appear to be to regulate and control such removal of forest produce in public interest. In view of above, I am of the opinion that an expanded meaning of the expressions used to define forest produce must be provided. There cannot be two opinions that wanton collection and removal of earth has the potential of denuding the forest resources to prevent which the regulation has been framed. Therefore, having regard to the definition of the expression 'minerals' as can be obtained from the authoritative texts already dealt with hereinabove, the well settled principles of interpretation of a word in a statute and the underlying object of the regulation and the transit rules, I am inclined to hold that for the propose of the regulation and the transit rules, earth is within the sweep of the expression 'minerals' used in clause (b)(iv) of sec. 3(4) of the regulation. That being so, it follows that 'earth' is a minor mineral within the meaning of the amended Rule 6(ii) of the Transit Rules, it being a specie of minerals. The sitting in which the expression 'minerals' appear in the regulation, mandates 'earth' to be in its fold as otherwise the purpose of the regulation would be a great extent be rendered nugatory. Earth is an essential ingredient of a forest and the law makers must have comprehended it to be a mineral in order to advance the purpose for which the regulation was perceived and framed.

31. However, having regard to the language used in Clause (b) of Section 3(4) of the Regulation 'earth' though a minor mineral as held hereinabove cannot be subjected to the levy in terms of the notification if the same is not removed from the forest. In other words if the earth is removed from a forest, it being a minor mineral, removal therefrom would attract the levy in terms of the impugned notification otherwise not It is, therefore, held that earth if removed from the non-forest area would not come within the embrace of the impugned notification. This is so because in terms of Clause(b) of Section 3(4) forest produce includes the articles mentioned in Clauses(i), (ii), (iii) and (iv) thereunder only when found in or brought from a forest.

32. In the light of the discussion made hereinabove, it is, therefore, held that earth is a minor mineral for the purpose of the impugned notification only if the same is found in or removed from a forest area and in such a case only the levy in terms of the said notification would be permissible. The petition, therefore, is partly allowed. No costs.

Clause(b) (iv) of Section 3(4)