Gauhati High Court
N C Das Allied Infra (Jv) vs The Union Of India And 3 Ors on 2 September, 2021
Equivalent citations: AIRONLINE 2021 GAU 783
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/4
GAHC010130162021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4244/2021
N C DAS ALLIED INFRA (JV)
A JOINT VENTURE FIRM HAVING ITS HEADOFFICE AT P 16, BENTRICK
STREET, 3RD FLOOR, A.C MANSION KOLKATA, 700001
VERSUS
THE UNION OF INDIA AND 3 ORS
REPRESENTATIVE BY THE GENERAL MANAGER (CON), N.F RAILWAY,
MALIGAON, GUWAHATI 781011, KAMRUP (M), ASSAM
2:THE CHIEF ENGINEER
CONSTRUCTION I
N
F RAILWAY
MALIGAON
GUWAHATI 781011
DIST KAMRUP (M) ASSAM
3:THE DEPUTY CHIEF ENGINEER
CONSTRUCTION II
N
F RAILWAY
MALIGAON
GUWAHATI 781011
DIST KAMRUP (M) ASSAM
4:THE PRINCIPAL CHIEF CONSERVATOR OF FOREST (HOF)
GOVT. OF ASSAM
ARANNYA BHAWAN
PANJABARI
GUWAHATI
Page No.# 2/4
KAMRUP (M) ASSAM
78103
Advocate for the Petitioner : MR. U K GOSWAMI
Advocate for the Respondent : SC, RAILWAY
BEFORE
HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA
ORDER
Date : 02-09-2021 Heard Mr. U.K. Goswami, the learned Counsel for the petitioner. Also heard Mr. B. Sharma, the learned Standing Counsel for Railways and Mr. D. Gogoi, the learned Standing Counsel for Forest Department.
The petitioner was awarded a contract under Agreement No. CON/D-H/2403 dated 20.02.2018 by the Chief Engineer/Construction-1, N.F. Railway, Maligaon. The work includes construction of B.G. standard formation, minor bridges including retaining wall and all other connected ancillary works in between kilometre 44.13 to kilometre 98.00 in connection with Digaru - Hojai Double Line Project of N.F. Railway. The petitioner while carrying out the works had to use forest produce like stone chips etc. The respondent Railways at the time of processing bills against the works completed, vide letter dated 21.07.2021 asked the petitioner to submit Forest Royalty Clearance Certificate (FRCC) in respect of the consumption of forest produce utilised for execution of the work. The petitioner vide letter dated 09.08.2021 requested the Railways to release the bill amount against the said work. However, the N.F. Railway Authority insisted for FRCC in respect of the said minor minerals utilised in the said work with further information that non- submission of the FRCC would otherwise cause delay in releasing the bill of the petitioner. It is also apprehended by the petitioner that the Railway authority may take coercive measure for non-furnishing the FRCC against the item nos. 2 to 8 indicated in the letter dated 21.07.2021 and being apprehensive of such actions the petitioner filed this writ petition for an appropriate direction.
Page No.# 3/4 Mr. Goswami submits that the petitioner has submitted the source of purchase of the said materials covering item nos. 2 to 8 of the letter dated 21.07.2021 and it is the duty on the part of the respondent-Railways to verify with the forest department before putting a hold in releasing the amount covered by the bills raised by the petitioner and to that effect Mr. Goswami relied a Division Bench order of this Court passed in W.A. 168 of 2017 disposed on 04.05.2018.
Both Mr. Sharma and Mr. Gogoi agreed to the law holding the field in respect of the claim made by the Railways and as such both the learned counsel sought for disposal of the writ petition as per the terms of the Division Bench decision.
I have perused the order passed on 04.05.2018 in W.A. 168 of 2017 in the case of M/s Durga Krishna Stores Private Ltd. v. The Union of India and Others wherein a similar issue was raised and the Hon'ble Division Bench came to the following conclusion:
"Considered the submissions of the learned counsel. Mr. Bhati wants to project the case of the petitioner/ appellant that he purchased the said stone ballast from the open market on direct payment and under such circumstances, it is the duty cast upon the Railway to verify the source from which the petitioner/ appellant procured the said item inasmuch as the petitioner/ appellant is not bound to trace out whether the vendor of the petitioner/ appellant had paid the forest royalty or not. On the other hand, if the notification dated 01.09.2009 of the Government of Assam is considered we can conclude that stone ballast is a forest produce and the Notification dated 17.06.2000 binds the respondents Railway and for the said reason Clause 2.13 was stipulated in the contract agreement which the petitioner/ appellant is very much aware. The respondents Railway is bound to abide by the Notification dated17.06.2000 and keeping in view the said notification, the security of the petitioner/appellant as not been released. In order to get it released, a duty is cast upon the petitioner/appellant at least to inform the source from whom it purchased the said materials in order the Railway can verify if the materials so purchased by the petitioner/ appellant was purchased from a source which paid requisite forest royalty as per the notification dated 01.09.2009.Considering the same, we are of the opinion that the findings of the learned Single Judge is proper inasmuch as until and unless, the petitioner/ appellant informs the source from whom it purchased the said materials, the respondents Railway is unable to verify from the concerned Divisional Forest Officers whether the materials used in the said Page No.# 4/4 construction work were duly subjected to the necessary forest royalty as per the said Notification dated17.06.2000. Accordingly, we find no merit in this writ appeal and the same is dismissed"
From the aforesaid decision it is seen that the contractor was required to disclose the source from which the forest produce were purchased and thereafter the respondent-railway is required to verify from the source of purchase regarding deposit of forest royalty. In the present case in hand it is submitted by the learned counsel for the petitioner that the requisite purchase document showing the source of purchase of the said materials covering item nos. 2 to 8 of the letter dated 21.07.2021 had already been submitted and under such circumstances in my considered opinion, there should not be any hold-up in respect of the release of the amount under the bill/bills raised by the petitioner in respect of the work covered by the contract dated 20.02.2018. Accordingly, the petitioner is directed to inform the source from whom he purchased the said materials where after the respondent-Railways shall verify as to whether the forest royalty against the said materials were duly paid. For the said reason the respondent-Railways shall not insist for submission of FRCC in respect of item nos. 2 to 8 in the letter dated 21.07.2021 and shall release the amount without further delay. In the event the respondent-Railways takes some time in such verification, 90 percent of the total amount of the bill shall be released immediately and the rest 10 percent shall be released in due course after completion of the verification by the Railways.
With the said observation and direction, this writ petition accordingly stands disposed of.
JUDGE Comparing Assistant