Orissa High Court
Unknown vs Hon'Ble The Chief Justice Mr. Mohammad ... on 17 November, 2020
Bench: Mohammad Rafiq, B.R. Sarangi
W.P.(C) No. 7620 of 2018
HON'BLE THE CHIEF JUSTICE MR. MOHAMMAD RAFIQ
HON'BLE DR. JUSTICE B.R. SARANGI
05. 17.11.2020 Mr. D.P. Panda : For the Petitioner
Mr. A.R. Dash, A.G.A. : For State-Opp. Parties
Mr. N.C. Nayak : For opposite party no.5
ORDER
Heard learned counsel for the parties by video conferencing mode.
The petitioner, which is a joint venture of two entities consisting of M/s ARSS Infrastructure Pvt. Ltd. and M/s BMS Projects and is engaged in the business of civil construction, has filed this writ petition seeking direction to the opposite parties for reimbursement of excess royalty amount which has been deducted from its bill after coming into force Odisha Minor Mineral Concession Rules, 2016, and further seeks direction to the opposite parties not to deduct the enhanced royalty amount as per Odisha Minor Mineral Concession Rules, 2016 and to deduct the royalty as per office memorandum dated 01.12.2016.
The factual matrix of the case, in hand, is that the petitioner company is executing the contract work "Jagdalpur- Koraput doubling project: execution of earthwork in formation, minor bridge, protection work and other allied works from K.M. 263.00 to K.M. 223.500 of Kaotpar Road excluding-Charamula Kusumi (including) Kkadapada, (including) Dhanpur, (including)-Jaipur, (including)-Chhataripur (including) section in connection with KK line doubling of WAT Division, East Coast Railway" awarded by opposite party no.5 pursuant to -2- tender invited for the purpose and accordingly, agreement dated 11.11.2016 was executed. During course of execution, opposite party no.7 had been making periodic payments in the form of interim payments certificate to the petitioner. The work executed by the petitioner involves use of several minor minerals like sand, earth, morum, boulder, metal, chips, bajri etc. for which royalty is leviable under schedule-II of Orissa Minor Mineral Concession Rules, 2004. The stipulations contained in the general conditions of contract obligates opposite party no.7 to deduct royalty from the payment made to the petitioner in the form of 'IPC' as per the scheduled rate upon the exact quantity of minor minerals utilized in execution of the project. After entering into agreement, the petitioner- company went on executing the work and accordingly opposite party no.7 prepared the running account bill. From the said bill, the petitioner noticed that opposite party no.7 deducted royalty on minor mineral at a much higher rate than what has been prescribed under OMMC Rules, which was brought to the notice of opposite party no.7 by the petitioner and also objected such deduction of royalty at enhanced rate. But opposite party no.7, while justifying the deduction, stated that there was revision of rate of royalty and, therefore, as per the aforesaid clause, the petitioner-company is required to pay royalty at the revised rate.
Mr. D.P. Panda, learned counsel appearing for the petitioner contended that such deduction of royalty at higher rate is contrary to the provisions of law though the Second Proviso to Rule-28(2) of the OMMC Rules, 2004 empowers deduction of such royalty. It is contended that the claim of the petitioner is covered by the judgment of this Court in the case of Akuli Charan Das v. State of Orissa, AIR 2007 Ori. 97.
-3-Mr. A.R. Dash, learned Addl. Government Advocate appearing for the State-opposite parties contended that deduction of royalty has been done in accordance with law and, as such, as per the counter affidavit filed by opposite party no.2, the petitioner-company is not entitled to get such benefit.
Mr. N.C. Nayak, learned counsel appearing for opposite party no.5-East Coast Railway contended that the petitioner has rendered service for opposite party no.5, but deduction from the running bill of the petitioner has been done to enhance the revenue in accordance with law. Therefore, the claim of the petitioner cannot sustain in the eye of law.
In course of hearing, learned counsel for the petitioner contended that since the question for payment of royalty has already been considered by this Court in Akuli Charan Das mentioned supra, the claim of the petitioner may be considered in the light of the said judgment.
In view of the above, the writ petition is disposed of in terms of the judgment passed in Akuli Charan Das, (supra), and accordingly we direct that in the event the petitioner, with regard to the grievance made in this petition, files a comprehensive representation before appropriate authority attaching running account bills along with copy of this order annexing therewith the judgment of this Court in the case of Akuli Charan Das (supra) within four weeks hence, the same shall be considered and decided by the authority concerned by a reasoned and speaking order as expeditiously as possible preferably within a period of four months from the date of filing of such representation.
It is further directed that in case the petitioner is found to be entitled for refund of any amount, the same shall -4- be refunded to the petitioner within six weeks from the date of passing of the order or adjust the refundable amount against any ongoing/completed projects that they may be undertaking if the petitioner may opt for.
As COVID-19 pandemic situation is continuing, learned counsel for the petitioner may utilize the soft copy of this order available in the High Court's website or print out thereof at par with certified copies in the manner prescribed, vide Court's Notice No.4587, dated 25.03.2020.
Alok/Ashok
(Dr. B.R. Sarangi) (Mohammad Rafiq)
Judge Chief Justice