Allahabad High Court
Virendra Giri Son Of Late Shanker Giri vs State Of U.P. Through Its Secretary, ... on 25 October, 2007
Equivalent citations: AIR2008ALL75, 2008(1)AWC369, AIR 2008 ALLAHABAD 75, 2008 (1) ALJ 669, 2008 (3) AKAR (NOC) 491 (ALL.) = AIR 2008 ALLAHABAD 75, 2008 A I H C 1295, (2008) 1 ALL WC 369, (2008) 104 REVDEC 18
Bench: V.M. Sahai, R.N. Misra
JUDGMENT
1. This writ petition has been filed by the petitioner against the respondents for issuing a writ, order or direction in the nature of certiorari quashing the impugned order dated 25.8.2007, passed by respondent no.3 which is filed as Annexure-3 to the writ petition, by which the respondents have demanded royalty from the petitioner for the supply of Stones and similar relief in the nature of mandamus directing the respondents not to with-hold payment of the petitioner in pursuance of letter dated 25.8.2007, issued by respondent No. 3.
2. We have heard Sri I.P. Singh, learned Counsel for the petitioner and Shri Vishnu Pratap, learned Standing Counsel appearing for respondents. From the writ petition, it appears that the petitioner is a registered Contractor in District Budaun. The Executive Engineer (Flood Division), Budaun made an advertisement for construction of work known as "Ganga Mahawa Tatband" in Budaun Division. In response to said advertisement, the petitioner also filed tender, which was accepted. The work order was issued to the petitioner to supply Stone Bolders to Irrigation Department. He purchased the holders from Rajasthan through M/s Pachauri Stone Supplier, Tatpur, Agra. When he submitted bills for payment, a notice was given to him to pay royalty, though he had already filed Rawannas along with bills. Since the petitioner was not a license holder of mining, therefore, he was not obliged to pay royalty and respondents had no right to with held his payment for the work done by him. Aggrieved by the order and notice referred to above, the petitioner filed this petition.
3. Learned Counsel for the respondents opposed the relief sought for by the petitioner. This fact is not disputed that the petitioner being registered contractor was given work order by respondent No. 3 for supply of stone bolders to irrigation department for construction of "Ganga Mahawa Tatband" and he supplied same in accordance with the terms and conditions of the work order. This fact is also not disputed that the petitioner has completed the work and submitted bills to the irrigation department but his payment has not been made so far. A very substantial question of law has been raised by the petitioner in this writ petition, regarding liability to pay royalty on the stones taken out from the mines.
4. Section 9 of Mines and Mineral (Regulation and Development) Act 1957 lays down provisions for payment of royalty. For ready reference, Section 9 is quoted below:
Section 9: Royalties in respect of mining lease-(1) The holder of a mining lease granted before the commencement of this Act shall, notwithstanding anything contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of (any mineral removed by or consumed by him or by his agent, manager employee, contractor or sub-lease) from the leased area after such commencement, at the rate for the time being specified in the Second Schedule in respect of that mineral.
(2) The holder of a mining lease granted on or after commencement of this Act shall pay royalty in respect of (any mineral removed by or consumed by him or by his agent, manager, employee, contractor or sub-lessee) from the leased area t the rate for the time being specified in the second schedule in respect of that mineral.
(2A). The holder of a mining lease, whether granted before or after the commencement of the Mines and Minerals (Regulations and Development) Amendment act, 1972 shall not be liable to pay any royalty in respect of any coal consumed by a workman engaged in a colliery provided that such consumption by the workman does not exceed one third of a tonne per month).
(3) The Central Government may, by notification in Official Gazette amend the Second Schedule so as to enhance or reduce the rate at which royalty shall be payable in respect of any mineral with effect from such date as may be specified in the notification:
Provided that the central Government shall not enhance the rate of royalty in respect of any mineral more than once during any period of (three Years).
5. Rule 21 of U.P. Minor Minerals (Concessions) Rules, 1963 also lays down provision for royalty which is quoted below:
21. Royalty-(1) The holder of a mining lease granted on or after the commencement of these rules shall pay royalty in respect of any mineral removed by him from the leased area at the rates for the time being specified in the First schedule to these rules.
(2) The State Government may, by notification, in the Gazette amend the First Schedule so as to include therein or exclude therefrom or enhance or reduce the rate of royalty in respect of any mineral with effect from such date as may be specified in the notification:
Provided that the State Government shall not enhance the rate of royalty in respect of any mineral for more than once during any period of three years and shall not fix the royalty at the rate of more than 20 per cent of the pit's mouth values.
(3) Where the royalty is to be charged on the pit's mouth value of the mineral the State Government may assess such value at the time of the grant of the lease and the rate of royalty will be mentioned in the lease deed. It shall be open to the State Government to re-assess not more than once in a year the pit's mouth value, if it considers that an enhancement is necessary.
6. As is evident from the contents of writ petition and the affidavit filed in Support thereto, it is clear that the petitioner is not a lease holder of mining in Rajasthan from where, he purchased the stone holders, through agent M/s Pachauri Stone Supplier, Tatpur, Agra. There is no provision in the aforesaid Act and Rules regarding payment of royalty by the purchaser of stones from the lease holder of mines. This is for the lease holder to pay royalty to the government. Nowhere, it has come that any lease was granted in favour of the petitioner. The purchaser of products of mines is not obliged to pay royalty. The petitioner annexed Rawannas along with the bills submitted to respondent no.3 for payment of stone holders supplied under the work order. The respondent no.3 was duty bound to scrutinize the Rawannas submitted by the petitioner and if the work was done in accordance with work order, the respondent no.3 was bound to make payments to the petitioner. If there was any lacuna in the bills, the petitioner should have been asked to remove it. The stone holders which were Purchased by the petitioner from lease holder of mining through agent were Supplied to him after payment of royalty by the lease-holder. During the arguments, learned Standing Counsel conceded this legal position that the holder of lease of mining was obliged to pay royalty and not purchaser of the mines products. The Rawannas ( MM-form 11) in the State of Uttar Pradesh, which is equallent to (MM form-12) in the State of Rajasthan is sufficient to prove payment of royalty by the lease-holder.
7. In view of above legal position, we are of the considered opinion that the notice given by respondent No. 3 to the petitioner for payment of royalty was against the provisions of law and on that basis, payment of the petitioner should not have been with-held.
8. Accordingly, the writ petition is finally disposed of with the direction to the respondent No. 3 to consider case of the petitioner in view of bills submitted by him along with Rawannas and make his payment without delay. It is made clear that the petitioner is not obliged to pay royalty on the Stone holders supplied to respondent No. 3. If the Rawannas are not complete, the petitioner can be asked to fulfil the lacuna, if any, in the bills. The petitioner shall file details of bills and Rawannas before respondent No. 3 within fifteen days from today and respondent No. 3 will decide his payment within a further period of six weeks by giving detailed reasons.