M/s.A.V.Pandhe vs. State of Rajasthan & Ors. (S.B.C.Writ Petition No.4426/06) Dated:- 10.12.2007. HON'BLE MR.JUSTICE SANGEET LODHA Mrs.Nupur Bhati, for the petitoiner. Mrs. R.R.Kanwar, Dy.Government Advocate. Mr.S.G.Ojha, for the resopondents. BY THE COURT:- The petitioner , a registered government contractor, was awarded a contract by the Urban Improvement Trust, Jodhpur ( in short “UIT” hereinafter )for construction of dwelling units for poor strata of the society under a scheme known as 'Apna Ghar Yojna'. As per clause 36-C of the contract conditions, the royalty or any other tax payable was to be borne by the contractor. The grievance of the petitioner is that the amount of royalty was being paid by it to the government agency at the time of lifting the stones from the quarry and sand from the river, therefore, the UIT, Jodhpur, an awarder of the contract, could not have deducted any amount from the bills of the petitioner at source towards the payment of royalty. The details of the amount deducted at source towards payment of the royalty by the respondent U.I.T. are given in the communication dated 11.3.05 sent by the Executive Engineer, U.I.T., Jodhpur to the Mining Engineer, Department of Mining, Jodhpur, a copy whereof has been placed on record as Annexure-5. The petitioner served a notice for demand of justice to the Secretary, U.I.T., Jodhpur and requested for the refund of the amount of Rs.7,21,429/- deducted from its bill at source against the payment of royalty . The notice for demand of justice was not responded, hence, this petition. A reply to the writ petition has been filed on behalf of respondent nos. 4 and 5 i.e. Secretary,Mining Department and Executive Engineer, Mining Department,Jodhpur. It is stated therein that vide communication dated 15.4.06, the petitioner was informed that the deduction of royalty @ 2% has been done away with by the State Government vide circular dated 13.11.2000, and further that as per the said circular, the petitioner is required to submit complete details of the mineral consumed in completion of the work under the contract, with the verification of the U.I.T.,Jodhpur. It is stated that the said communication was also endorsed to the Executive Engineer, U.I.T.,Jodhpur with the direction that the final bill of the petitioner may not be cleared till the petitioner fulfills the above condition. It is stated that the petitioner had produced the receipts issued by the RCC contractor, wherein the name of the petitioner firm is not mentioned . It is stated that in terms of clause 2 and 4 of circular dated 13.11.2000(Annex.R/4/3) as amended vide circular dated 3.10.01(Annex.R/4/4), it has been made mandatory for the contractor to obtain 'short term permit' (in short 'STP' hereinafter) from the Mining Department before the commencement of the construction work and the awarder of contract is required to deduct the royalty from running bill as per the mineral used and the same is required to be deposited in the budget head of the Mining Department. Further, as per clause 4, after completion of the work, the contractor is required to give the complete description of the mineral used i.e. quantity of mineral, the source of the mineral, the amount of royalty deducted from the bills etc. along with a certificate issued by the Awarder of contract certifying the quantity of mineral used. It is averred that the petitioner firm has not obtained the STP before the commencement of the construction and has also not produced the duly verified receipts. It is averred that the receipts issued by the mine owners, from whom the petitioner had purchased the mineral have not been produced and in the receipts produced , the name of the petitioner is not mentioned. Further, the documents produced do not fulfill the requirements set out in clause 5 of circular dated 13.11.2000, which provides that if the contractor has purchased the minerals from the mining lease holder after payment of royalty then, he will produce the “Ravanna” issued by the mining lease holder in favour of the contractor showing the name of the contractor of the concerned department. It has been specifically provided therein that the “Ravanna” wherein the name of the contractor has not been mentioned shall not be considered valid for the construction work in question. It is contended by the learned counsel for the petitioner that the petitioner having paid the royalty while purchasing the mineral, the deduction of any amount towards the royalty at source by the awarder of the contract, amounts to double taxation. Therefore, the petitioner is entitled for the refund of the amount deducted by the U.I.T., Jodhpur at source from the petitioner's bills. From the material on record, it appears that the petitioner has not produced the requisite documents before the Mining Department so as to facilitate the determination of the royalty payable and for this reason, the matter with regard to the petitioner's entitlement for refund of the amount , if any, could not be finalised. Obviously, after determination of the royalty payable, if the amount deducted at source towards the royalty is found to be in excess of the royalty amount due, the same has to be refunded to the petitioner by the awarder of the contract i.e. U.I.T., Jodhpur. However, it cannot be said to be a case of double taxation, as alleged by the petitioner. But, the Department of Mines cannot defer the determination of the royalty payable by the petitioner for an indefinite period. If the petitioner is not in position to produce the requisite documents in terms of the circular dated 13.11.2000 as amended vide circular dated 3.10.2001 or avoids to produce the requisite documents, then too, the competent authority is under obligation to assess the amount of royalty payable on the basis of material available on record, after giving a reasonable opportunity of hearing to the petitioner in accordance with law. Thus, in the facts and in the circumstances of the case, the petitioner is directed to appear before the Mining Engineer, Jodhpur on 24.12.2007 and produce the requisite documents for assessment of the royalty payable. The Mining Engineer is directed to pass the assessment order after giving an opportunity of hearing to the petitioner latest by 15th of January, 2008. The petitioner shall be entitled for the adjustment of the amount of royalty already paid on furnishing the requisite proof. After the assessment of the royalty as aforesaid, if the amount deducted at source by the awarder of the contract is found to be in excess to the amount of royalty assessed then, the said amount shall be refunded to the petitioner forthwith. The petitioner shall be at liberty to assail the validity of the assessment order passed by the Mining Engineer in accordance with law. The writ petition stands disposed of accordingly. No order as to costs. (SANGEET LODHA),J.