HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON’BLE SHRI DHIRENDRA MISHRA & HON’BLE SHRI R.N. CHANDRAKAR, JJ. Writ Petition (c) No.6019l2009 Writ Petition (c) No.6020l09 Writ Petition (_c) No.6028l09 Writ Petition (c) No 6029/09 Writ Petition (c) No.6033/09 Writ Petition (c) No.6032l09 Writ Petition (c) NO 6030/09 Writ Petition (c) No.6031109 Sd/— Dhtrendra Mishrar - Judge dl HON’BLE SHRI JUSTICE R.N. CHANDRAK <7 -zgwv vv AR 1 S— RN CHANDRAKAR Judge ~\r.\‘\\ POST FOR ORDERs ON 11/03/2010 S/. JUDGE ll/O3/2010 3 cLW x d PETITIONER l M/s Vinod Kumar Jain. Vs RESPONDENTS Chhattisgarh Rural Road Development Agency & others. i PETITIONER M/s Vinod Kumar Jain. l Vs l RESPONDENTS Chhattisgarh Rural Road Development Age-my & others. PETITIONER M/s Neo Built CoLporation. ‘Vs RESPONDENTS Chhattisgarh Rural Road Development Agency & others PETITIONER M/s Cab Engineers Pvt. Ltd. Vs i RESPONDENTS Chhattisgarh Rural Road Development AgencL& others. PETITIONER M/s Vinod Kumar Jain Vs RESPONDENTS . Chh'attisgarh Rural Road Development Agency & others. ’ PETmONER M/s Vinod Kumar Jain Vs RESPONDENTS \ Chhattisgarh Rural Road Development Agency & others PETITIONER M/s Vinod Kumar Jain Vs RESPONDENTS State of C.G. & others PETITIONER M/s Vinod Kumar Jain Vs RESPONDENTS State of C.GI & others ‘ I HIGH COURT OF CHHATTISGARH AT BILASPUR 1M DIVISION BENCH: HON'BLE SHRI DHIRENDRA MISHRA & HON'BLE SHRI R.N. CHANDRAKAR, J'J'. Wrif Pefi'h'on (c2 No.6019/2009 ‘M/s Vinod Kumar' Jain, A partnership Firm, College Road, Jashpu} Nagar, Disfr‘icf Jashpur, Chhaffisgarh, Through its Partner Vinod Kumar Jain, Son of Shri Hanuman Pr'asad Jain, Aged abou'r 44 years, Pefifl'oner' Vs L7 esgondenfs 1. STaTe Petitioner Occupafion— Com‘r'acfor, Residence of College Road, Jashpur‘ Nagar‘, Districf Jashpur, Chhaffisgarh. h Of Chhaf‘risgarh, Through Secretary, Govf. Of P.W.D., D.K.S. Bhawan, Raipur, ChhaHisgarh 2. Chief Engineer, P.W.D. N.H. Zone, Raipur, Chhah‘isgarh. 3. Execufive Engineer, P.W.D. N.H.'Division, Ambikapur, Dis‘rric‘r Surguja, Chhaffisgarh. ‘I 4. ColIecTor/Disfricf Mining Officer, (Minerals Branch) Jashpur, ChhaHisgarh. M/s Vinod Kumar Jain, A parfnershipfirm, College Road, Jashpur Nagar, ’b‘isfricf Jashpur, Chhaflisgarh, Through its Partner Vinod Kumar Jain,HSon of Shri Hanuman Prasad Jain, Aged abouf 44 eyears, OccupaTion- Conlraclor, Residence‘ of College Road, Jashpur Nagar, Dis‘fricf Jashpur, ChhaHisgarh. l Wm Peti'ilon c No.6ozo/2oo9 a R Responden'l’s Vs 1. SToTe Of ChhafTisgar-h, Through SecreTar‘y, Gov’r. Of P.W.D., ?.K.S. Bhawcn, Raipur, Chhaf’risgarh 2.Engineer—in-Chief, P.W.D. N.H. Zone, Raipur‘ ChhaHisgarh. 3, Executive Engineer, P.W‘D. Nor’rh Basfer Division No.1, DisTr‘icT ‘Jagdolpur‘, Chhah‘isgarh. Super‘infendem‘ Engineer, P.W.D. Basfar Circle, Jagdalpur, Chha’rfisgarh. 5. Collector/District Mining Officer, (Minerals Branch) Jagdaipur, ChhaT’risgar-h. Wri1’ Petition (c) No.6028/2009 M/s Vinod Kumar Jain, A par‘rnership Firm, College Road, Jashpur Nagar, Diélric‘r Jashpur, Chha’rfisgarh, Through ifs Parfner Vinod Kumar Jain, Son of Shri Hanuman Prasad Jain, Aged about 44 years, Occupation— Con’rrac’ror, Residence" of College Road, Jashpur Nagar, District Jashpur, Chhattisgarh. Vs 1. Chhattisgarh Rural Road Development Agency, Through Chief Engineer, Chhattisgarh Rural Road Development Agency, Raipur, Chhattisgarh, 2. Executive Engineer cum member Secretary, Project Implementation‘ ‘Unit Pradhan Mantri Gram Sadak Yojna No.3 Bagicha, District Jashpur, Chhattisgarh. 3. Collector/District Mining Officer, (Minerals Branch) Jashpur, Chhattisgarh. \N ’Pefi‘rioner' Respondenfs \ . P e‘l’i‘l‘ioner Wr‘l'f Pe‘l'ifion §cl No.6022/2009 M/s Vinod Kumar Jain, A parfnershipfirm, College Road, Jashpur' Nagar, Disfr'icf Jashp’ur, Chhaffisgarh, Through ifs Parfner Vinod Kumor‘ Jain, Son of Shri ‘Aged Confrocfor‘, Road, Re sgondenfs 1. Chhof’risgar‘h Rural Through Agency, Engineer, ChhoTHsgar‘h Rural Hanuman Prasod Jain, abou’r 44 years, Occupation— Residence, of College Jushpur‘ Nagar', Dis‘rr‘icT Joshpur, Chhoffisgarh. Vs Road Develogmenf Chief Road Development Agency, Raipur, Chhaf’risgarh. 2. Execufive member Secrefary, Project Implemem‘a’rion ‘Unif No.2, Pradhan Manfrl Gram Sodak Yojna Po‘rhalgaon now office a1“ Bagicha, Disfricf Jashpur, ChhaHisgarh. 3. CollecTor/Dis‘rricf Mining Officer, (Minerals Branch) Jashpur, ChhaffiSgarh. WriT Petifion lc) No.6033/2009 M/s Cab Engineers Pvf. Lfd. Through I‘Ts Projecf Manager Vinod Kumar Jain, Son of Shri KHanuman‘Prasad Jain, Aged about 44 yeare, Occupafion— ConTracTor, Residence of Road, Jashpur, Chhah‘isgarh. Vs 1, Chha’r‘riSgarh Rural Road Developmem‘ Chief Engineer cum PeTiiioner Resgondenfs College Jashpur Nagar‘,‘3, Dis‘rricf 1 1 Agency, ' Through Engineer, Chhoh‘isgarh ’Rural Road Developmenf Agency, Raipur, ChhaTTisgarh. 2. Execu‘rive Engineer cum Member " P efi‘rioner R espondenfs l? Wri‘l‘ Pefi‘l‘ion (c) No.6030/2009 Pefitioner Secre'rar‘y, Project Imp!emem‘a1‘ion"UniT Pradhan McnTri Gram Sadak Yojna Janjgir Chama, Disfric‘r Janjgir—Champa, Chhaf‘risgar‘h. 3. Collecfor‘ and Chairman/Dis’rricf Mining Officer, Projecf Implemenfcfion Uni’r, PMGSY, Dis’rricf Janjgir-Champa, Chha‘Hisgar‘h. Wri‘l’ Pefifion (c) No.6032/2009 M/s Neo Buih‘ Corporafion, IB Everes’r HouSe 1“ floor 46C Chowranghee Road, Kolka‘ra, Through ifs Projec‘r Manager Vinod Kumar‘ Jain, Son of Shr‘i Honuman Prasad Jain, Aged about 44 year's, Occupafion- Con’rr‘acfor‘, Residence of College Road, Jashpur Nagar, Disfr'ic’r Jashpur, ChhaT’risgar'h. Vs 1. Chha‘r’risgar‘h Rural Road DeveIopmenT Agency, Through Chief Engineer, ‘Chha‘Hisgarh Rural Road Development Agency, Raipur, Chha‘rfisgarh. 2. Execu’rive Engineer cum Member S‘ecrefary, Projec’r Implemenfa’rion Unif No.1 Pradhan ManTri Gram Sadak Yojna Raigarh, Dis’rric’r Raigarh, Chha’rfisgarh. 3. Collector and Chairman/Disfri’cf Mining Officer, Project Implemenfafion Uni’r, PMGSY, Dis’rric‘r, Raigarh, Chhah‘isgarh. M/s Vinod Kumar Jain, A parfnership Firm, College Road, Jashpur Nagar, Disa‘ric‘r Jashpur, ChhaT’risgarh, Through i’rs Par’rner Vinod Kumar Jain, Son of Shri Hanuman p @ Prasad Jain, Aged) about 44 year‘s, Occupa’rion— Contrac‘ror, Residence of College Road, Jashpur Nagar, Dis’rr-icf Jashpur, Chha’rfisgar'h. IVs‘ , i 1. Chha’r‘risgarh Rural Road Developmem‘ Agency, ' Through Chief Engineer, Chha‘rfisgarh' Rural' Road DeveIopmenT Agency, Raipur, ChhaT’risgarh. 2. Execu’rive Engineer cum Member Secrefary, ProjecT Implemen‘fu’rion Uni'r No.1 Pradhan Manfri Gram Sadak Yojna Jagdalpur, District Jagdalpur, Chhaifisgarh. 3. ColIecTor and Chairman/Disfric’r Mining Officer (Minerals Branch) Jashpur, Chha‘rfisgarh. Wri1' Pefi‘h’on (c) No.6031/2‘009 Pefitioner M/s Vinod Kumar Jain, A parfnership Firm, Coliege Road, Jashpur Nagar', Dis’rric‘r Jashpur, Chha’rtisgarh, Through i’rs Pariner Vinod Kumar Jain, Son gof Shri HanUman Prasad Jain, Aged abou‘r 44 year's, Occupa‘rion- Con’rrac‘ror, Residence of Coiie’ge Road, Jashpur Nagar, Disfricf Jashpur, Chhaffisgar‘h. ‘ , Responden'rs a i Vs Respondents 1. Chhah‘isgar‘h Rural Road Developmen‘r Agency, Through Chief Engineer, Chha’rfisgarh Rural Road Developmenf Agency, Raipur, Chhaffisgarh. 2. Execufive Engineer cum Member Secrefary, Projec’r Implemenfafion Uni’r n . ‘ . No.1 Pradhan Manjri Gram Sadak Yojna Jagdalpur', Disfr‘ic’r ‘ Mahasamund, Chha’r’risgarh. 3. Collecfor and Chairman/Dis’rr'icf Mining Officer (Minerals Branch) Mahasamund, ChhaTTisgar‘h. Presem‘: Mr. J.K.$axena & Mr. C.J.K. Rao, For' The pefifioner‘ in Advoca’res all wri‘r peTiTions Mr. Vinay Hari‘r, Dy. Advoca’re For ‘rhe responden’r— General wi’rh Mr.S.K. Mishra, P.L. STaTe in all wr‘i’r peTiTions ORDER (Passed on IETM‘ar-ch, 2010) Dhirendra Mishra J 1. In ’rhis ba’rch of wrif pe’ri‘rions fhe pefifioners are aggrieved by fhe acfion of The responden’rs in nof finalizing fheir bills againsf The works execufed by fhem in connecfion wifh eighf agreemen’rs befween ’rhe pefifioners and The respondenTs on Their failure To submiT ‘RoyaHy Clearance CerTificaTe' Towards minerals consumed in The conTracT works. Since The common quesTion of law and facT is involved in These peTiTions, They are being disposed of by This common order. However, for The purpose of This order, reference is made To The facTs of W.P. No.6019/O9' (M/s Vinod Kumar Jain Vs. ST‘a’Te of / ChhaTTisgarh 6i oThers). 2. Briefly sTaTed, grievance of The peTiTioner is ThaT The peTiTioner—firm was awarded conTracT for The works under The agreemenT by The responde‘nT. Minerals used in conTracT work were purchased by The peTiTioner from The suppliers of such minerals. RoyalTy is payable by The mining Iease holder who exTracTs minerals from The mines. Since no mining lease has been granTed in favour ofLThe , pe‘ri’rioner‘, The question of paymem‘pf any royalfy for ’rhe minerals used by ’rhe pe'ri‘rioner‘ does noT arise and Therefore, The peiifioner is unable To furnish royal‘ry clearance cerfifica‘re 1‘0 ’rhe depar‘rmenf concerned and insisfence of The responden’rs for producfion of royalfy clearance cer’rifica’re is confrar‘y To law as according To Section 9 of ‘rhe Mines &'N\inerals Acf, 1957 (for shorf "rhe Ac‘r of 1957') liabili’ry of paying royal’ry is on The holder of mining lease granTed under The AcT of 1957. . Learned counsel for The peTiTioner argued ThaT“ The conTracTor is liableTo pay royalTy only if he has exTracTed The minor minerals from The quarries wiThouT paymenT of royalTy. However, where he purchases The minor minerals from The open markeT, he is noT required To pay any ro‘yalTy and There is no presumpTion ThaT he broughT The minor minerals wiThouT paymenT of royalTy and he cannoT be compelled To produce royalTy clearance cerTificaTe before his bills are cleared for paymenT. Reliance is placed on The judgmenT in The maTTer of KeTi ConsTrucTion LimiTed Vs. STaTe of M.P. 5i oThers reporTed in 2007 (3) M.P.H.T. 433 (DB). . On The oTher hand, learned DepuTy AdvocaTe General for The STaTe would argue ThaT ClaUSe—35 of The agreemenT (Annexure R—1) beTween The parTies clearly sTipuIaTes ThaT if TheconTracTor fails To produce royalTy clearance cerTificaTe from The concerned deparTmenT, Then The ExecuTive Engineer shall deducT The royalTy charges‘from his bills and keep iT in deposiT head and The same can be refunded To The conTracTor' on producTion of royalTy clearance cerTificaTe from The’co’ncerned deparTmenT. If The conTracTor fails To produce The royalTy‘clearance cerTificaTe wiThin ThirTy days of submission of final bills, ‘ y t Then royalTy charges, which was kep’r under deposi‘r head, may be deposiTed To The concerned departmen’r and ’rhe final bills payment may be released. Thus, if is bounden du‘lyxof The pe’ri’rioner To produce royal’ry clearance cerTifica‘re from fhe concerned deparTmenT. Since‘dhe peTiTioner has em‘ered inTo an agreemem‘ wi’rh The STaTe, he is bound by Clause—35 of The agreemenT and he cannoT be permiTTed To say ThaT The sTipulaTion regarding furnishing of royalTy clearance cerTificaTe is unjusTified. Relying upon The decision of Division Bench of M.P. High CourT in The maTTer of M.P. ConTracTors Sangh, Indore & oThers Vs STaTe of M.P. & oThers reporTed in 1987 JLJ' 743 iT was argued ThaT The STaTe GovernmenT was compeTenT To insisT for producTion of royalTy clearance cerTificaTe, parTicuIarly when The provision in This regard is available in The conTracT documem‘. IT was furTher argued ThaT The peTiTioner could very well produce The royalTy clearance cerTificaTe afTer' obTaining The same from The suppliers from whom he has purchased The minor minerals for being used for execuTion of The work. ProducTion of vouchers issued by The supplier conTaining declaraTion ThaT The royalTy has been paid on The said minor minerals Would be sufficienT compliance of The Terms of The conTracT. However, There is/no avermenT in The peTiTion and no such vouchers conTaining declaraTion regarding royalTy paymenT has been filed along wiTh This peTiTion and Therefore.“ The judgmenT of M.P. High CourT in The maTTer of KeTi ConsTrucTion (supra) is of no help To The peTiTioner. . We have heard learned counsel for The parTies. We have perused The pleadings of respecTi,ve parTies and documenTs available on record. . Before adver’ring To The fac’rs of the presen’r case, we propose ‘ro consider The judgmem‘s ci’red by The learned counsel for ’rhe respecfive par’ries. a . ‘ In The maTTer of KeTi ConsfrucTion (supra) The peTiTioner was a governmen’r contracTor and he had enTered info an agreemenT wiTh The Public Works DeparTmenT. AT The Time of paymenT, The Engineer-in-chief issued a leTTer requiring The peTiTioner To obTain royulTy clearance cerTificaTe‘from The CollecTor againsT The purchase of minor minerals like sand, murum (3T meTal, which were used in The consTrucTion of road and on failure To obTain The cerTificaTe, explain as To why royalTy amounT should noT be deposiTed from-The deposiTs of 15% of performance securiTy. On failure of The peTiTioner To produce royalTy clearance cerTificaTe, The Mining Officer direcTed The respondenTs To recover a sum of Rs.89,23,000/—' from The amounT lying in deposiT as securiTy performance Towards The amounT of royalTy payable by‘The peTiTioner. WriT peTiTion was dismissed by The learned Single Judge. The Division ‘Bench afTer dealing wiTh iTs earlier “V judgmenT in The maTTer of M.P. ConTracTors Sangh (supra) and M.P. Audhyogik Kendra Vikas Nigam Vs. Abrar ConsTrucTion Company and oThers reporTed in 2005 Arb. w.L.J. 379 (MP) and referring Para 7, 1o, 11 & 13 of the judgmenT in The maTTer of PresTige 6.5. Sole Vs. ‘M.P. Rural DevelopmenT reporTed in 2004 (4) MP.L.$l’.bi75 and considering The facTs of ThaT case ThaT There was no clause in The conTracT ThaT royalTy clearance cerTificaTe shall be produced by The conTr'acTor and furTher ThaT cerTificaTe was demanded afTer expiry of Two years, allowed The appeal and held ThaT wiThholding of amounT for non-producTion of royalTy clearance cerTificaTe cannoT be susTained. l l 10 8. In fhe mah‘er‘ of M.P. Confracfor‘s Sqngh, Indore (supra) on The basis of communiccn‘ion of The AddiTional Collecfor, fhe Execu‘rive Engineer notified The governmen’r conTraAc‘Tor's fhqf They have To furnish royaHy clearance cerfifica’re and only fhereaffer ‘rhe paymenf under The bills would be made and if They failed To produce The royalTy clearance recovered fromhThe The cerTificaTe, The royalTy shall be conTracTors aT The raTe fixed by The CollecTor. peTiTioner challenged The communicaTion of The AddiTional CollecTor and memo of The ExecuTive Engineer issued on The basis of communicaTion of The CollecTor on The groundAThaT The same is illegal and wiThouT jurisdicTion. Allowing The peTiTion iT was held ThaT building conTracTors supplying minor minerals To The governmenT Through peTTy conTracTors and merchanTs cannoT be asked To produce royalTy paymenT receipTs before his bills are cleared. IT has been furTher obserVed aT The end of Para-13 of The judgmenT ThaT if The governmenT wanTs To adopT such a measure so far as such building. conTracTors are concerned, Then The STaTe GovernmenT oughT To make such a provision in The conT-racT enTered inTo wiTh such building conTracTors or They should make rules To ThaT effecT under The provisions of The said AcT so ThaT a building conTracTor who is given such building conTracT will be duTy, bound To obTain royalTy paid re‘ceipT and submiT The same or in such a case They will have To p purchase such minor minerals from The quarrywholders Themselves, direcTly. 9. IndispuTably, Clause 35 of The agreemenT provides.ThaT quarry royalTy charges e.Tc. ‘shali-be payable by The conTracTor and if The conTracTor: fails To produce royalTy clearance cerTificaTe from The concerned deparTmenT, Then royalTy charges shall be deducTed from his bills and kepT in deposiT head which may be refunded To The conTracTor on //"\ /V \ l l 11 produc‘rion of royal’ry cleurance cgr‘fifica’re from ’rhe concerned depar’rmenf. The respondenfs in cafegékical Terms sTaTed in Para-20 of Their coun’rer affidavi'r ’rhoi’ ’rhe pe’ri’rioner can ob’roin royal’ry clearonce cer'fifica‘re from The suppliers from whom he had purchased ’rhe minor minerals for being used for execu‘rion of The work. Production of vouchers issued by ’rhe supplier com‘aining a declara’rion Thaf The royalTy has been paid on The said minor minerals wiil be sufficienT compliance of The Terms of The conTracT. 10. In The insTanT case, The peTiTioner did noT produce ro,yalTy clearance cerTificaTe, as per specific provisions of Clause 35 of The agreemenT, from The concerned deparTmenT. The peTiTioner>also did noT obTain royalTy clearance cerTificoTe from The supplier from whom he had purchased The minor minerals. The peTiTioner also did noT produce The vouchers issued by The suppliers conTaining a declaraTion ThaT The royalTy has been paid on The said minor minerals sold To The peTiTioner. In These circumsTances, no direcTion To The respondenTs To finalize The bills of The peTiTioner wiThouT insisTing for producing royalTy receipTs can be issued in The facTs of The presenT case. 11.In The resulT, we find no subsTance in These peTiTions, The same deserve To be dismissed and are hereby dismissed. No order as To cosTs. '/ \x Sd/— Sd/- R.N. CHANDRAKAK ‘ Dhirendra Mishra ff Judge Judge Rosham—