Madhya Pradesh High Court
Prabha Exim Pvt. Ltd. Thru. Kshitij Garg vs Public Works Department on 6 May, 2015
Equivalent citations: AIR 2015 MADHYA PRADESH 90
1
Writ Petition No. 2801
/2015
06 .0
5
.2015
Shri Maqbool Ahmed Mansoori, advocate for the
petitioner.
Smt. Vinita Phaye, Government Advocate for the
respondent / State, on advance notice.
Heard on the question of admission.
2. The petitioner is a ClassB Civil Government Contractor. It is alleged that after lapse of months respondents have not finalized the final bill of the petitioner for want of Royalty Clearance Certificate as per terms and conditions of the agreement executed between the petitioner and Department.
3. According to the petitioner, in view of the law laid down by this Court as well as at Principal Seat, Jabalpur in various cases, including the cases of M.P. Contractors Sangh, Indore & Ors. v/s. State of M.P. & Ors., 1987 JLJ 743, M.P. Audhyogik Kendra Vikas Nigam v/s. Abrar Construction Company & Ors., 2005 Arb. WLJ 379 (MP), Keti Construction Ltd. v/s. State of M.P. 2007 (3) M.P.H.T. 433 (D.B.) and Tomar Construction Company v/s. State of M.P. & Ors. 2008 (2) M.P.L.J 40 and recently in Writ Appeal No.357/2012 (M/s. Arpit Heights (P) Ltd. v/s. Indore Development Authority) decided on 18.03.2013, the 2 insistence of the respondents for production of the Royalty Clearance Certificate is illegal.
4. Learned counsel for the petitioner submits that in case of M/s Arpit Heights (P) Ltd.(supra), this Court allowed the writ petition by directing the following: "11. In view of the aforesaid legal position, in our considered view, the learned Single Judge has committed error in dismissing the writ petition on the basis of the aforesaid clause which runs contrary to the statutory provisions because the Collector can issue certificate with regard to payment of royalty only, if the royalty is payable by the contractor. If the contractor has purchased the material from a supplier and the supplier has purchased the material from the mine owner, who has extracted the mineral from a place which is not known to the contractor, the contractor cannot be expected to run from pillar to post finding out of source of extraction and the mineral consumed by him and then produce the certificate. This condition seems to be impracticable and inconsistent to the statutory provision.
12. Having regard to the aforesaid, we allow this writ appeal by setting aside the order passed by the learned Single Judge and dispose of the writ appeal by issuing the following directions, akin to the directions issued in the case of Tomar Construction Company (Supra), which will safeguard and take care of the interest of the petitioner as also of the respondents: (1) The State Government / Indore Development Authority / Competent Authority of the respondent shall clear the bills of the petitioner submitted in 3 connection with execution of the contract in question without insisting upon producing no dues certificate from the Collector or any other authority with regard to payment of royalty for the minerals consumed. However, the State Government / Indore Development Authority / Competent Authority of the respondent can insist upon production of bills with regards to purchase of mineral and in case the bill is not available, an affidavit indicating the manner in which and the place or source from where the mineral is purchased. This affidavit can be used by the State Government / Indore Development Authority / Competent Authority of the respondent for verification and for taking further action for clearing the bills.
(2) Amount of royalty, if any, recovered from the bills of the petitioner, shall be refunded to the petitioner on the petitioner M.P. Contractors Sangh, Indore & Ors. v/s. State of M.P. & Ors., 1987 JLJ 743, filing the bill or the affidavit as indicated hereinabove. In case, the petitioner is unable to produce the bill or the affidavit as indicated hereinabove, liberty is granted to the petitioner to represent the matter before the State Government / Indore Development Authority / Competent Authority of the respondent pointing out the inability in producing the bills or the affidavit and it would be for the State Government / Indore Development Authority / Competent Authority of the respondent to consider the representation and take such steps as may be permissible or proper for clearing the bills in the given set of circumstances, as may be indicated by the petitioner."
5. Learned counsel for the petitioner submits that the 4 amended provisions of Rule68 of M.P. Minor Mineral Rules, 1996 (in short "Rules of 1996") will be applicable to quarry permit holder/contractor as defined in the Rules of 1996. He submits that Contractor means a person or firm that undertakes a contract to provide materials or labour to perform a service or do a job. He submitted that the present petitioner is neither have quarry lease or quarry permit nor through auction any trade quarry contract has been awarded by the Collector for lifting of minor mineral and, therefore, in view of the Division Bench decision in case of M/s Arpit Heights (P) Ltd.(supra), and M.P. Contractors Sangh, Indore & Ors. v/s. State of M.P. & Ors., 1987 JLJ 743, no Royalty Clearance Certificate is required and submitted that the writ petition be allowed in terms of the order passed in M/s Arpit Heights (P) Ltd.(supra).
6. In reply, learned Govt. Advocate submits that in exercise of the powers conferred by subsection (1) of Section 15 of Mines and Minerals (Regulation and Development) Act, 1957, the State Government amended the M.P. Minor Mineral Rule, 1996 w.e.f. 23rd March, 2013 and as per 3rd proviso of subrules (1) of Rule 68, the Contractor engaged in construction work shall obtain certificate of no mining dues to ensure payment of royalty for the mineral 5 used in construction work for the mineral excavated from quarry permit area or used by purchasing from open market. Certificate of no mining dues shall be issued by Mining Officer/officer incharge of mining section, after verification of documents submitted by contractor/quarry permit holder engaged in construction work.
7. She submits that earlier there was no provision in the M.P. Minor Mineral Rules, 1996 nor any provision in the Mines and Minerals (Regulation and Development) Act, 1957 and, therefore, the respondent cannot be conferred authority to obtain the royalty clearance certificate from the mining department/officer incharge of the mining section, but after amendment dated 23/03/2013 all the contractors who are using the mineral in construction work are required to furnish Royalty Clearance Certificate before finalization of their bill as per terms of the contract and submitted that the writ petition has no merit and is liable to be dismissed.
8. Amended Rule 68 of Rules of 1996 dated 23.03.2015 reads as under:
26. In rule, 68 (1) In the heading for the words "permission for removal of minor minerals for Central and State Governments and their undertakings" the words "permission for removal of minor 6 minerals" shall be substituted.
(2) After subrule (1), the following provisos shall be inserted, namely : "Provided that information of inprinciple sanction of permit shall be given to the applicant. Applicant shall furnish permission from the District level environment committee, within one month maximum, from the date of receipt of such information :
Provided further that if inprinciple sanction is for five hectare or more area, then applicant from the date of receipt of such information, shall submit environment permission obtained under notification dated 14.09.2009 of Ministry of Environment and Forest with in period of six months. After completion of all formalities sanctioning authority shall issue sanction order of quarry permit. Sanctioning authority may permit to enhance the time period, if all formalities are not completed in prescribed time period, on the basis of satisfactory reasons:
Provided also that quarry permit holder/contractor engaged in construction work shall obtain certificate of no mining dues to ensure payment of royalty for the mineral used in construction work, for the mineral excavated from quarry permit area or used by purchasing from open market. Certificate of no mining dues shall be issued by Mining officer/officer incharge mining section, after verification of documents submitted by 7 contractor/quarry permit holder engaged in construction work."
9. The State Government, in order to check the pilferage of mineral and evasion of Royalties, amended Rule 68 M.P. Minor Mineral Rules, 1996. By virtue of these amendment, the petitioner/contractor are required to submit Royalty Clearance Certificate before passing their bills. Under Rule 68 of the M.P. Minor Mineral Rules, 1996, it is incumbent that the contractor engaged in construction work shall obtain certificate of no mining dues to ensure payment of royalty for the mineral used in construction work, for the mineral excavated from quarry permit area or used by purchasing from open market. Thus, it is incumbent to the petitioner to obtain certificate and for that they have to maintain the correct accounts showing the quantity and other particulars of all minerals obtained and purchased from the mine owner or from the open market and the same can be examined by the Mining Officer/Officer incharge of mining.
10. In order to ask for information regarding accounts showing the quantity despatched and royalty paid, the State Government can ask for such information and in order to regulate that proper accounts is maintained and proper 8 despatch register is maintained for that purpose, this power has been conferred on the State Government. Thus, we are of the view that the petitioner/contractor is required to obtain no mining certificate under Rule 68 of M.P. Minor Mineral Rules, 1996 and, thus, no direction, as prayed in this writ petition can be granted.
11. The writ petition filed by the petitioner has no merit and is accordingly dismissed.
(P.K. Jaiswal) (Jarat Kumar Jain)
Judge Judge
Pithawe RC