The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 5418 of 2021 ----- M/s Royal Infraconstru Ltd. having its registered office at 18, R.N. Mukherjee Road, Kolkata-700 001, West Bengal, through its Legal Manager SudipBhowmick. …. Petitioner(s) Versus. The State of Jharkhand through Secretary, Mines, Govt. of 1. Jharkhand, Ranchi. 2. its Administrative Office at 14, Strand Road, Kolkata-700001. 3. Asansol-713301. 4. The Deputy Chief Engineer/Con/1, Eastern Railway, Asansol, Eastern Railway under the Ministry of Railway, Govt. of India, having The District Mining Officer, Dumka, Jharkhand. … Respondent(s). With W.P.(C) No. 5408 of 2021 ----- M/s Royal Infraconstru Ltd. having its registered office at 18, R.N. Mukherjee Road, Kolkata-700 001, West Bengal, through its Legal Manager SudipBhowmick. …. Petitioner(s) Versus. The State of Jharkhand through Secretary, Mines, Govt. of 1. Jharkhand, Ranchi. 2. its Administrative Office at 14, Strand Road, Kolkata-700001. 3. Asansol-713301. 4. The Deputy Chief Engineer/Con/1, Eastern Railway, Asansol, Eastern Railway under the Ministry of Railway, Govt. of India, having The District Mining Officer, Dumka, Jharkhand. … Respondent(s). With W.P.(C) No. 5411 of 2021 ----- M/s Royal Infraconstru Ltd. having its registered office at 18, R.N. Mukherjee Road, Kolkata-700 001, West Bengal, through its Legal Manager SudipBhowmick. …. Petitioner(s) Versus. The State of Jharkhand through Secretary, Mines, Govt. of 1. Jharkhand, Ranchi. 2. its Administrative Office at 14, Strand Road, Kolkata-700001. 3. Asansol-713301. 4. The Deputy Chief Engineer/Con/1, Eastern Railway, Asansol, Eastern Railway under the Ministry of Railway, Govt. of India, having The District Mining Officer, Dumka, Jharkhand. … Respondent(s). ----
Legal Reasoning
CORAM: SRI SANJAYA KUMAR MISHRA, C.J. SRI ANANDA SEN, J. For the petitioner(s): For the Respondent(s): ----- Mr. Soumitra Sen, Sr. Advocate. Mr. Vikas Pandey, Advocate. Mr. AshutoshAnand, AAG Mr. SharadKaushal, AC to AAG. ------- 05/18.10.2023: Upon hearing the learned counsel for the parties, this Court 2. passed the following: (Per, Ananda Sen, J)
Decision
O R D E R As the issue and question involved in all these writ petitions are same and similar, thus all these petitions are being disposed of by common order. 2. In these writ petitions, the petitioner has prayed for quashing Memo No. 118 dated 25.1.2021, whereby the respondent-State has demanded penalty double the rate of royalty in terms of Rule 56 of the Jharkhand Minor Mineral Concession Rules, 2004 (herein after to be referred as Rules 2004). Further, a prayer has been made to declare that the petitioner is not liable to make payment of any additional royalty and/or royalty by way of penalty in terms of Rule 56 of the Jharkhand Minor Mineral Concession Rules, 2004. A prayer has also been made to direct the respondents to forthwith issue no claim certificate to the petitioner so that the dues of the petitioner, withheld by the respondent- Railways, be disbursed to them. 3. Learned senior counsel appearing on behalf of the petitioner submits that the petitioner is a contractor and is engaged by the Eastern Railway. Petitioner was awarded with contracts for undertaking some earth work/providing earth/soil for Dumka-Rampurhat Railways, for which, three separate agreements were entered into between them. He submits that the petitioner has executed the work for which, royalty has been paid by the petitioner against the specified quantum of earth/soil used by the petitioner. Though the respondent has paid the running bills against each of the contracts but huge amount has been withheld. He further states that the petitioner requested the mining department to issue ‘No Claim Certificate’ in relation to royalty, so that the petitioner can claim the balance amount, but the Mining Department raised demands directing the petitioner to pay an amount which is double the royalty by way of penalty in terms of Rule 56 of the Jharkhand Minor Mineral Concession Rules, 2004. The said demand, as per the petitioner, has been raised by the respondents considering the mineral, which has been used by the petitioner i.e. earth/soil has been obtained illegally. Learned senior counsel further argues that admittedly the petitioner has paid royalty for the minerals used and/or for the earth/soil 3. work undertaken. Since the entire royalty has been paid, no further amount can be levied as penalty. It is his contention that the soil was obtained from the nearby raiyats. Since the raiyats did not possess any lease/permit/licence, they could not furnish royalty payment challan and for the laches of the raiyats, the petitioner cannot be directed to pay any amount as penalty. He also submits that Rule 56 of the Rules 2004 is applicable only in the cases where private companies purchase minerals from the lease holder or licencee and the same is not applicable in respect of the earth/soil obtained/purchased from the raiyats. It is his further contention that the action of the respondents imposing penalty is absolutely bad, thus the same is liable to be quashed and set aside. 4. The counsel appearing for the State submits that admittedly the earth/soil is minor mineral, which is evident from Schedule-II, Table-KA of the Rules, 2004 and when such mineral is used by the petitioner, royalty has to be paid. He further submits that any mineral, which is used by excavating from an area, which is not covered by any lease, licence or permit, the same becomes a mineral illegally obtained on excavation of the said mineral i.e. earth/soil will come within the definition of illegal mining. He also submits that admittedly the petitioner had purchased/obtained the earth/soil from the persons who did not possess valid mining lease/licence/permit to excavate the same. Thus the said soil will be treated to be illegal mined soil, which would attract penalty in terms of Rule 56 of the Rules 2004, thus there is no illegality in demanding the amount double the royalty, by way of penalty. 5. The facts are admitted in these cases. The petitioner is a contractor under the Eastern Railways. Three agreements were executed by the petitioner and the Railways. Work was covered under the agreement of Tender Nos. 31 of 2009-10, 41 of 2006-07 and 124 of 2006-07. The agreement covers earth work for which, it was necessary to provide earth/soil. Earth/soil of approved quality was obtained by the petitioner from outside the railway area. It is admitted by the petitioner that they obtained the said earth/soil from the raiyats of the land from which the soil/earth was excavated. It is also admitted that those raiyats did not possess any lease, licence or permit to excavate the soil for commercial use, to be used as a minor mineral. It is also an admitted fact that the soil/earth, which has been used is a “minor mineral”, and is covered under the Mines and Minerals 4. Development and Regulation) Act, 1957 and the Jharkhand Minor Mineral Concession Rules, 2004, thus the earth/soil is a “minor mineral”. These facts are admitted by all the parties. 6. Rule 56 of the Jharkhand Minor Mineral Concession Rules, 2004 reads as under; The English translation of the said Rule- 56 reads as under; 56. Offenses committed by private companies - [All contractors or private companies engaged in construction work shall ensure that the minor minerals used are purchased through valid challan from the lease holders or license holders or permit holders and by doing so If they fail, they will have to deposit the royalty alongwith the amount equal to the royalty. Along with this, other statutory fees like DMF, Management Fee, Environmental Fee etc. will have to be deposited. 7. As per the said rules, the company has to ensure that the Mineral which is used, is obtained from a valid lease hold area, which is covered under a lease, licence or permit. The company must ensure that the same has been purchased/procured after obtaining valid mining challan. The mineral obtained under the valid mining challan means royalty for the said mineral has been paid and deposited with the authorities. As the legal prospect is clear that no mineral can be removed from the lease hold area without payment of royalty. Any mineral used, which is not backed by mining challan would mean that the said mineral is illegally mined, for which no royalty has been paid. In absence of the proof that mineral has been obtained from valid lease hold area, after payment of royalty, penalty is imposed in terms of Rule 56 of Rules 2004. 8. In these cases, it is the admission of the petitioner that they did not obtained the earth/soil form any lease hold area nor the persons from whom they have obtained the minerals had paid royalty. The defence of the petitioner is that since they have obtained the earth/soil directly from the raiyats, no penalty can be levied. This submission has got no value in the eye of law. A raiyats has right only over the surface of the land but they do not have any mining right. Mining right is only obtained when State 5. grants a mining lease/permit under the MMDR Act read with the rules framed thereunder. A raiyat can use the surface of the land but they cannot excavate minerals. If they intend to do so, they must obtain a mining lease/permit under the MMDR Act read with the rules framed thereunder. 9. In these cases, admittedly the raiyats did not possess any mining lease/permit. It is also admitted that there was no royalty clearance certificate. As per Rule 56 of the Rules 2004, the petitioner has to produce the royalty payment/royalty clearance certificate, which has been paid by the lessee, but the petitioner failed to produce the same, meaning thereby, the petitioner has obtained the soil/earth from a person who did not have a valid mining lease or permit, which means the earth/soil used by the petitioner is a mineral illegally mined excavated from an area which is not covered by any lease/licence/permit. 10. When the minerals illegal mined has been used in a contract by the contractor, the provision of Rule 56 of the Rules, 2004 gets automatically attract. The respondents thus have correctly directed the petitioner to deposit the amount of royalty and the penalty, so prescribed under Rule 56 of the Jharkhand Minor Mineral Concession Rules, 2004. There is no illegality in raising the said demand by the respondent-State by the impugned order. The petitioner has to pay the amount as demanded for ‘no dues certificate’, on the basis of which, the dues of the petitioner can be released. 11. We find no merit in these petitions. Accordingly these writ petitions are dismissed being devoid of any merit. 12. 13. There shall be no orders as to costs. Urgent certified copy as per rules. Anu/-CP-2 (Ananda Sen, J.) (Sanjay Kumar Mishra, C.J.)