1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ---------------------------------------------------------------------------- J U D G M E N T 1. SPL. APPL. WRIT No. 153 of 2008 VIJAY SINGH CHUNDAWAT V/S STATE & ORS. 2. SPL. APPL. WRIT No. 145 of 2008 STATE & ORS. V/S RANJEET TARMAT,JV & ANR. 3. SPL. APPL. WRIT No. 144 of 2008 STATE & ORS V/S SOMA-BSCPL,JV & ANR. 4. SPL. APPL. WRIT No. 154 of 2008 VIJAY SINGH CHUNDAWAT V/S STATE & ORS. Date of Judgment : 9.9.2008 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. Mr. DINESH MEHTA and Mr. Vikas Balia for appellant Vijay Singh Mr. VK MATHUR for the State appellants Mr. TARUN JOSHI, for the respondent (Writ Petitioners). Mr. RISHI VAISHNAV, DY.G.C. BY THE COURT : (PER HON'BLE GUPTA,J.) These four appeals are closely connected with each other, and are, therefore, being decided by this common order. 2 Two writ petitions were filed before learned Single Judge, being S.B. Civil Writ Petitions No.8473/2007 and 27/2008. Writ Petition No. 8473/2007 was filed by M/s SOMA-BSCPL, JV, while writ petition No. 27/2008 was filed by M/s Ranjit Tormat JV. Both the writ petitions raised identical controversy, and have been decided on the same day by the learned Single Judge, while rendering a detailed judgment in writ petition No.8473/2007, and deciding writ petition No.27/2008 as being covered by the judgment rendered in writ petition No.8473/2007. Thus, two writ petitions are interconnected. Against that judgment, two appeals have been filed by the State, being respondents No.1 to 4 in the writ petition, while two appeals have been filed by the private respondent, in the writ petition, being respondent No.5. This is how, four appeals arise, which are interconnected. Since the leading judgment has been rendered in writ petition No.8473/2007, for the sake of convenience, we take the facts from writ petition No.8473/2007. Appellant Vijay Singh, in Appeals No. 153/2008 and 154/2008, shall be hereinafter referred to as 'the private respondent', while State-appellants shall be referred to as 'the appellants', and the respondents SOMA-BSCPL,JV and M/S RANJEET TARMAT,JV, shall hereinafter be referred to 'as the writ petitioners' In very brief the allegations of the writ petition are, that the writ petitioners are joint ventures, and undertake the construction work of roads etc. and were awarded work of construction of 4 lane Highway, by National Highway Authority of India. The writ petitioners are ‘registered dealers’ within the meaning of Central Sales Tax Act, 3 Rajasthan Sales Tax Act, Rajasthan Entry Tax Act etc. The writ petitioners, in accordance with the provisions of Rajasthan Value Added Tax Act, 2003, hereinafter referred to as `the VAT Act', were granted Exemption Certificate, which has the effect of the writ petitioners being liable to pay the exemption fees, in lieu of tax on the sale of inputs in performing the work contract, and in continuation thereof, the contractor cannot claim input credit. This aspect has no material appearing on the controversy involved; however, it is being mentioned as sequence of facts. The petitioners were awarded Short Term Permits for excavating minerals, from different areas, for different period of time. The controversy involved in the present cases is, that in accordance with the provisions of section 77 of the VAT Act, check posts were established on contract basis, for collection of tax, and the private respondent was granted contract for collection of tax on certain items, specified therein. However, according to condition No.17 of the contract, the private respondent was prohibited from collecting any tax from any registered dealer. It is these facts, that the controversy arises, in a manner, that when the vehicles of the writ petitioners, carrying certain minerals pass through the check post, the private respondent/his representatives started detaining the vehicles, for ascertaining the genuineness of the entitlement, not to pay tax, and it is from this point of time, that the dispute started. Subsequently, order was issued by Commercial Taxes Officer to the private respondent, being dated 1.12.2007, and communication dt. 4.12.2007 was issued by 4 the Assistant Commissioner, Works Contract and Leasing Tax, Udaipur to the writ petitioners. Cumulative effect of the two communications is, that the writ petitioners were required to give a copy of the VAT invoice/invoice to the private respondent at the check post, and the private respondent was obliged to collect all such VAT invoice/invoices, and positively deposit them in the office, accompanied with a list of dealer wise invoices. The writ petitioners filed the writ petitions, precisely to challenge two communications. We may gainfully quote the relief clause of the writ petitions, which reads as under:- “i. The order/directions dated 04.12.2007 (Annexure-P13, P/14) and dated 01.12.2007 (Annexure-P/15) as issued by the respondents No.3 and 4 may please be quashed, ii. the actions, conducts and the functionings of the respondent No.5 Contractor may please be held to be illegal, unjust and unconstitutional in collection of tax from the registered dealer (like the petitioner) and also in insistence of submission of any copy of VAT Invoice/invoice, iii. the collected tax illegally so far by the respondent No.5 Contractor from the petitioner may please be ordered to be deposited immediately with the respondent Department of Commercial Taxes and it may please be directed that the same should be ordered to be adjusted from the ultimate tax liability of the petitioner, iv. any other appropriate relief which the Hon'ble High Court deems just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.” The writ was opposed by filing reply, then rejoinder was filed, then additional affidavits were filed, to which we need not refer 5 in the moment, for the simple reason, that the learned Single Judge, in the order impugned has upheld these two communications dt. 1.12.2007 and 4.12.2007, and admittedly, the writ petitioners have not challenged that part of the order. Thus so far the writ petitioners are concerned, the controversy no more survives. It may also be observed here, that the parties before us are ad-idem to the effect that on the face of clause 17 of the contract given to the private respondent, the private respondent is not entitled to collect tax from the writ petitioners, being the ‘registered dealers’ Then the learned Single Judge, while passing the impugned order, noticed, that the learned counsel for the State respondent submitted, that in the matter of revenue collection, the Government cannot allow anybody to evade the tax liability on illegal premises, and when the contract for tax collection, under the VAT Act is given to the private respondent, then, he is required to collect tax, after satisfying that the person concerned is liable to pay tax. In this very sequence, it was also noticed, that counsel for the State respondent, during the course of arguments, submitted, that since the private respondent is required to verify each goods vehicle passing through the check post, and it is required by the petitioner to satisfy the private respondent, the goods are accompanied with proper documents, to make the position and status of such goods clear. It was also submitted, that the only requirement is, that the petitioner should satisfy the check post, that the goods, which is being transported, is belonging to the petitioner, who is registered dealer, 6 and it was submitted, that the petitioner is also required to produce the “Rawanna Slip”, which is required to be issued by the Mining Department, by way of compliance of condition No.3 of the short term permit (STP), granted to the petitioner, for excavation of minerals. We may at once notice, that the question of requirement of goods, to be accompanied with “Rawanna Slip” has not been subject- matter of pleadings of either party, at any stage, and obviously, therefore, consideration to this aspect was clearly given outside the record. And since the learned Single Judge has held, that asking the petitioner to submit “Rawanna Slip” is totally improper, the appellants have filed the four appeals seeking to challenge this part of the order. Learned counsel for the respondents submitted, that of course, the petitioners are granted STPs. but then they are not issued “Rawanna Slips. Learned counsel referred to some of the STPs. Therein. in column No.8, “X” has been put to denote that “Rawanna Slips” have not been issued, even though, condition No.3 does require the goods to be accompanied with “Rawanna Slip”. On the other hand, learned counsel for the State appellants, points out, that in some of the STPs, there is mention of issuance of “Rawanna Slip”. The question, therefore, remains for our consideration, in the appeals is, as to whether the learned Single Judge was right in directing, or observing, about non-requirement of the goods being accompanied with “Rawanna Slip”. 7 Of course, there are no pleadings of either side, on the aspect of requirement, or non-requirement of “Rawanna Slips”, as in the pleadings, this aspect was never joined issue, and it appears that during the course of arguments, a submission was made, and at pages 15 and 16 in the order impugned, the learned Single Judge has made the observations, given rise to the present appeals. Before us, the arguments were raised on behalf of either side in this regard, but then in view of certain concessions made by the writ petitioners, as noticed at page 15 of the order impugned, we need not go into all those submissions, in detail. At page 15, the learned Single Judge has noticed, that the petitioner has to satisfy at the check post of the private respondent, that the goods transported in the vehicle is not purchased by him, and for that purpose, the petitioner submitted, that the petitioner is ready to furnish delivery challan, mentioning his TIN registration number, truck number in which the goods are transported, so also the quantity of goods, and declaring in the delivery challan, that the goods have been excavated by the petitioner under the STPs, issued by the Mining Department. With noticing this concession, the learned Single Judge has held, that when the petitioner is ready to submit all these things, asking the petitioner to submit “Ravana Slip” is totally improper. We may observe that form of “Rawanna Slip” is prescribed in form No.12, in the Rajasthan Minor Mineral Concession Rules, 1986. A bare look at that form shows, that the columns required to be filed 8 by the petitioner in that form, are also to contain these very informations only, which the petitioner conceded before the learned Single Judge to be ready to give. We find, that in addition, “Rawanna Slip”, requires disclosing the place, where the mineral is being sent, name of person/party to whom the mineral is being dispatched, weight/volume of mineral, and name of the location. We have been taken through some of the delivery challans, said to have been furnished by the petitioner, and from perusal thereof, it is clear, that therein also, these very particulars have been given. In these circumstances, therefore, two options available to us. One being, to merely strike down, and/or expunge the observations made by the learned Single Judge, regarding non-requirement of goods being accompanied with “Rawanna Slip”, and resting at that only. Other option could be, that when the petitioner has conceded to furnish the details, as noticed in page 15 of the impugned order, and claims to be furnishing the same details, as given in the delivery challan, said to have been submitted, which all details, are practically the details, comprising in the “Rawanna Slip”, to direct the petitioner to see, that the goods are accompanied with the “Rawanna Slip”. Instead of exercising of other options of ourselves, we put option to the learned counsel for the petitioner, and the learned counsel for the petitioner submitted, that his clients are prepared to see that the goods will be accompanied with “Rawanna Slip”, but then, the only difficulty in his way is, that “Rawnna Slip” has not been issued by the Mining Department. We do find the difficulty to be genuine and, therefore, we called Mr. Rishi Vaishnav, the counsel, 9 who normally appears for the Mining Department in this Court. He has appeared before us, and we direct him to give forthwith, instruction to the concerned authority of the Mining Department, to forthwith issue the necessary “Rawanna Slips” to the petitioners, so as to enable them to excavate the goods, and dispatch them along with necessary “Rawanna Slips”. With exercise of this option of the learned counsel for the petitioner, the whole controversy comes to an end. In view of the option exercised, it is clarified, that the goods shall be accompanied with “Rawanna Slip”, and at the same time we direct Mr. Rishi Vaishnav, the counsel, who normally appears for the Mining Department in this Court, to forthwith give, instructions to the concerned authorities of the Mining Department, to forthwith issue the necessary “Rawanna Slips” to the petitioners. The appeals are accordingly disposed of. ( KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J. /m.asif/