Gauhati High Court
M/S Bk Sons Infrastructure Pvt. Ltd vs The Union Of India And 7 Ors on 9 June, 2023
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/4
GAHC010121472023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3264/2023
M/S BK SONS INFRASTRUCTURE PVT. LTD.
HAVING ITS REGISTERED OFFICE AT 5TH FLOOR BEEKAY TOWER R.P
ROAD GANESGURI DISPUR GUWAHATI 781006 ASSAM REP. BY ITS
DIRECTOR SRI BHAGYA KALITA S/O LT. BHARAT KALITA AGED ABOUT 70
YEARS WORKING FOR GAIN AT BK SONS INFRASTRUCTURE PVT LTD.
5TH FLOOR BEEKAY TOWER R.P. ROAD GANESHGURI DISPUR GUWAHATI
781006 ASSAM
VERSUS
THE UNION OF INDIA AND 7 ORS.
REP. BY THE PRESIDENT OF INDIA, MINISTRY OF ROAD TRANSPORT AND
HIGHWAY TRANSPORT BHAWAN PARLIAMENT STREET NEW DELHI-
110001
2:THE MANAGING DIRECTOR
NATIONAL HIGHWAYS AND INFRASTRUCTURE DEVELOPMENT
CORPORATION LTD. HEREINAFTER REFERRED TO AS NHIDCL 3RD FLOOR
PTI BUILDING 4 PARLIAMENT STREET NEW DELHI-110001
3:THE GENERAL MANAGER (P)
PMU DIPHU NHIDCL PWD ROADS IB PWD COLONY LUMDING ROAD
DIPHU KARBI ANGLONG ASSAM 782460
4:THE KARBI ANGLONG AUTONOMOUS COUNCIL
REP BY THE PRINCIPAL SECRETARY KARBI ANGLONG AUTONOMOUS
COUNCIL DIPHU ASSAM 782460
5:THE PRINCIPAL SECRETARY
DEPTT. OF ENVIRONMENT AND FOREST KARBI ANGLONG
AUTONOMOUS COUNCIL DIPHU ASSAM 782460
Page No.# 2/4
6:THE JOINT SECRETARY
DEPTT. OF ENVIRONMENT AND FOREST KARBI ANGLONG
AUTONOMOUS COUNCIL DIPHU ASSAM 782460
7:THE SPECIAL PRINCIPAL CHIEF CONSERVATOR OF FOREST
PHE COLONY DIPHU ASSAM 782460
8:THE DIVISIONAL FOREST OFFICER
KARBI ANGLONG AUTONOMOUS COUNCIL KARBI ANGLONG EAST
DIVISION RONGNIHANG DIPHU NEAR HANDLOOM TEXTILE OFFICE
NEAR KARBI ANGLONG DIPHU ASSAM 78246
Advocate for the Petitioner : MR. K GOSWAMI
Advocate for the Respondent : DY.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 09.06.2023 Heard Mr. K. Goswami, learned senior counsel, assisted by Mr. A. Sandilya, learned counsel for the petitioner, Mr. K. Gogoi, learned CGC appearing for respondent no.1, Mr. C. Baruah, learned standing counsel for respondent nos. 2 and 3 and Mr. J. Chutia, learned standing counsel for KAAC, respondent nos. 4 to 8.
Challenging the retrospective effect of enhancement of royalty by the impugned communication dated 31.03.2023, the present writ petition has been filed under Article 226 of the Constitution of India, claiming that the enhancement of forest royalty vide notification dated 07.10.2021 published in the official gazette on 11.10.2021 excluded the existing contract by virtue of clause (v) of Rule 4 of the Assam Minor Minerals Concession (Amendment) Rules, 2021.
Page No.# 3/4 Issue notice returnable in 4(four) weeks.
Requisite extra copy of the writ petition be served on the learned CGC, State and Departmental counsel in course of the day.
Heard all sides on the prayer for interim relief.
Opposing the prayer for interim relief, the learned standing counsel for the KAAC has submitted that the notification was issued on 07.10.2021, which was published in the official gazette on 11.10.2021 and the notification under Section 3D of the National Highways Act by virtue of land concerning the national highway was vested with the Central Government on 15.12.2021. Accordingly, it is submitted that the amendment to the rates of royalty would become applicable to the petitioner as because the land was vested on the Central Govt. after the amendment has come into effect. It is also submitted that the interest of the petitioner is well protected by virtue of the clause relating to change in law contained in the contract agreement at internal page no. 17 read with clause contained in internal page no. 106 of the contract agreement, which provides for price adjustment for the works, which can be adjusted for increase and decrease of the rates and price of other materials inputs which includes cost on account of forest royalty paid. Hence, it was submitted that the petitioner can move the NHIDCL for corresponding increase in tender price.
Be that as it may, as the learned senior counsel for the petitioner has been able to demonstrate from clause (v) of Rule 4 of the Assam Minor Minerals Concession (Amendment) Rules, 2021 that the rates as appended in the 3 rd Schedule and process as prescribed in the said amended rules shall be applicable to fresh tenders only, the Court is inclined to provide that the Page No.# 4/4 respondents in the KAAC shall not enforce the amended rates provided in the 3rd Schedule of the Assam Minor Minerals Concession (Amendment) Rules, 2021, which stands incorporated in the Assam Minor Mineral Concession Rules, 2013.
Nonetheless, it would be open to the petitioner to move the NHIDCL for settling the issue with regards to the enhanced royalty taking into account the clause contained in the contract agreement for adjustment on account of increase and decrease of inputs. The enforcement of the amended royalty would be subject to further adjudication that may be made in this matter.
List after 4(four) weeks.
JUDGE Comparing Assistant