Indian Kanoon - Search engine for Indian Law

Dr. ARIJIT PASAYAT, J.

1. Since common points are involved in these appeals, they are disposed of by this common judgment.

2. Writ Petitions were filed by the appellants before the Andhra Pradesh High Court praying for quashing the order passed by the State Government in Memorandum No.8817/M.II(1)/2001-6, dated 4.2.2002 and the consequent demand notice issued by the Director of Mines and Geology and the proceedings of the Deputy Director, Mines and Geology. The appellant in each case is engaged in the business of construction, engineering and civil works. In each case the appellant had participated in the tenders invited by the Bharat Heavy Electricals Ltd. (in short `BHEL') for the purpose of executing their part of the contract which is with NTPC for levelling and grading. BHEL had awarded the contract to the appellant- company for execution of the work. According to the appellant, the material required for the purpose of execution of the contract in terms of the specifications prescribed under the contract is earth, morrum gravel and mixture of these or any other material approved by the BHEL. The appellant had obtained rights for excavation of good earth from the ryots of patta lands in the vicinity as well as from the quarry lease holders. Each appellant was supplying the materials from the source in which they obtained right of excavation of materials. Huge quantity of these materials was supplied under the contract. The Assistant Director of Mines and Geology required BHEL to show cause as to why action should not be initiated to realize a sum of money towards seigniorage fee which includes five times penalty over and above the normal seigniorage fee. The Assistant Director required BHEL to produce documentary evidence, if any, with regard to the source from where the materials had been procured alongwith the permits issued by the Department. BHEL filed a detailed reply disputing the liability in the matter. It was indicated that the requisite application for allotment of quarries and other formalities were to be done directly by the sub contractors concerned. The agencies have been paying the seigniorage fee directly to the Department of Mines and Geology. In between meeting was held between the agencies and Department of Mines and Geology, BHEL and the contractors. Detailed minutes were drawn up according to which the Director of Mines and Geology expressed that type of filling materials may have to be decided by the Department of Mines and not by the contractors themselves.

3. Subsequently, demands were raised. Reference was made to certain data supplied by BHEL to the Vigilance and Enforcement Department. It was observed that filling material was partly gravel and partly ordinary clay in respect of which seigniorage fee is liable to be paid. The appellant in each case requested the authority to withdraw the demands while agreeing to pay the seigniorage fee under protest.

4. The Assistant Director, Mines and Geology again sent demand notice. The Deputy Director of Mines and Geology raised demand notice directing the appellant to pay a higher sum being the balance of seigniorage fee after giving credit to the fees already paid. At this stage the appellant submitted detailed representation to the Secretary (Mines), Industries and Commerce Department, Government of Andhra Pradesh inter-alia highlighting various contradictory notices issued by the Assistant Director and the Deputy Director. The Government of Andhra Pradesh in exercise of suo motu revisional jurisdiction under Rule 35-A of the Andhra Pradesh Minor Mineral Concession Rules, 1966 (in short the `Andhra Pradesh Rules') set aside the revised demand issued by the Deputy Director confirming the original demand and the appellant was directed to pay the balance amount. Writ Petition was filed before the High Court challenging the revisional order. The High Court by its order dated 20.7.2001 allowed the writ petition at the admission stage holding that the order of the State Government is misconceived and unsustainable on account of having been issued without any notice to the affected persons. However, leave was granted to the Government to initiate fresh proceedings if so desired and if so permitted by law after giving notice and opportunity to the appropriate parties. Notices were issued to all the sub- contractors and after hearing the parties the order impugned before the High Court was passed. Again challenge was made before the High Court.

7. The High Court came to hold that the plea of the Government that said officer had acted in collusion with the appellant was not without any basis. The High Court also observed that in reply to the show cause notice BHEL had furnished a list of five sub-contractors who were entrusted with the levelling work. In reply it was stated that the agency had paid certain amounts towards seigniorage fee for the quantities burrowed from the foot of the hills. It was further submitted that in line with the provisions of the contract the agencies are under obligation to accept and deal with the mining department directly. It was therefore the stand of BHEL that it had no mens rea and had always made conscious effort to ensure payment of seigniorage fee by the agencies.

8. It was stated that BHEL was under the impression that the matter would have been decided upon as the department had inspected the sources presumably in the presence of agencies as agreed in the meeting held on 4.9.1999.

9. In the counter-affidavit it was also submitted that the appellants had failed to produce documentary evidence. The Deputy Director had acted on the basis of information furnished by BHEL. The High Court referred to BHEL's letter dated 8.3.2000 whereby the details of total quantities of filling materials supplied by sub contractors were furnished. According to the data, various mines had been supplied as filling materials. The High Court noticed that there was no evidence to show that seigniorage fee had been paid in respect of filling material.