Page No.# 1/5
GAHC010236172022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7495/2022
M/S RANA CONSTRUCTION AND ENGINEERS PVT LTD
SURAJ COMPLEX, ULUBARI CHARIALI, KAMRUP (M), GUWAHATI-781007,
ASSAM REP. BY ONE OF ITS DIRECTORS RANA ZAMAN, S/O. ALHAZ
RAHMAN ALI, R/O. HOUSE NO.62, RAHMAN MANSION, SOUTH SARANIA,
P.O. ULUBARI, DIST. KAMRUP (M), ASSAM, GUWAHATI-781007.
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM,
PUBLIC WORKS DEPTT. (ROADS), DISPUR, GUWAHATI-781006.
2:THE CHIEF ENGINEER
PUBLIC WORKS DEPTT. (ROADS)
ASSAM
CHANDMARI
GUWAHATI-781003.
3:THE EXECUTIVE ENGINEER
PWD
JALUKBARI AND HAJO TERRITORIAL ROAD DIVISION
AMINGAON
GUWAHATI-781031
Advocate for the Petitioner : MR. K N CHOUDHURY
Advocate for the Respondent : SC, PWD
Page No.# 2/5
Linked Case : WP(C)/7617/2022
M/S RANA CONSTRUCTION AND ENGINEERS PVT LTD
SURAJ COMPLEX
ULUBARI CHARIALI
KAMRUP (M)
GHY-07
ASSAM
REP. BY ONE OF ITS DIRECTORS RANA ZAMAN
AGED ABOUT 50 YEARS
S/O- ALHAZ RAHMAN ALI
R/O- H.NO. 62
RAHMAN MANSION
SOUTH SARANIA
P.O. ULUBARI
DIST.- KAMRUP (M)
ASSAM
GHY-07
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
PUBLIC WORKS DEPTT. (ROADS)
DISPUR
GHY-6
2:THE CHIEF ENGINEER
PUBLIC WORKS DEPTT.
ASSAM
(NH WORKS)
CHANDMARI
GHY-03
3:THE EXECUTIVE ENGINEER
PWD
RANGIA NH DIVISION
RANGIA
------------
Advocate for : MR. K N CHOUDHURY
Advocate for : SC
PWD ROAD appearing for THE STATE OF ASSAM AND 2 ORS
Linked Case : WP(C)/7506/2022
Page No.# 3/5
M/S RANA CONSTRUCTION AND ENGINEERS PVT LTD
SURAJ COMPLEX
ULUBARI CHARIALI
KAMRUP (M)
GUWAHATI-781007
ASSAM
REP. BY ONE OF ITS DIRECTORS RANA ZAMAN
S/O. ALHAZ RAHMAN ALI
R/O. HOUSE NO.62
RAHMAN MANSION
SOUTH SARANIA
P.O. ULUBARI
DIST. KAMRUP (M)
ASSAM
GUWAHATI-781007.
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
PUBLIC WORKS DEPTT. (ROADS)
DISPUR
GUWAHATI-781006.
2:THE CHIEF ENGINEER
PUBLIC WORKS DEPTT. (ROADS)
ASSAM
CHANDMARI
GUWAHATI-781003.
3:THE EXECUTIVE ENGINEER
PWRD
SIPAJHAR AND KALAIGAON TERRITORIAL ROAD DIVISION
SIPAJHAR.
------------
Advocate for : MR. K N CHOUDHURY
Advocate for : SC
PWD appearing for THE STATE OF ASSAM AND 2 ORS
Page No.# 4/5
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
ORDER
01-12-2022 Heard Shri K. N. Choudhury, learned Senior Counsel appearing for the petitioner in these cases assisted by Shri R. M. Deka. Also heard Shri B. Gogoi, learned Standing Counsel, PWD. The parties have arrived at a broad consensus that the issue involved has already been decided by this Court in a number of cases and in the same lines, the present cases can also be disposed of, however, the facts of the present case is required to be stated in brief.
The grievance of the petitioners is regarding deduction of forest royalty from the bills with regard to different works which are the subject matter of these three writ petitions. The contention of the petitioner is that in the contract agreement, there was no condition for requiring the petitioner to submit document in support of the payment of forest royalty against the aforesaid work.
As indicated above, a number of judgments have been referred by this Court on the aforesaid issue and by a recent judgment of 30.06.2022 passed in WP(C) No. 9227/2019, the following has been laid down:-
"18. Conclusion:
In view of the aforesaid discussion and reason, this court concludes as follows: I. That ordinary earth is a minor mineral and royalty is leviable upon the same as held in Rohit Newar (supra) and Som Datt Builders (supra).
II. The notification dated 01.09.2009 shall be applicable only when a permit is applied under clause 20B(1) and (2) by the employer department/ undertakings and granted by the forest department under clause 20 B (4) of the Notification, which is not the case in the present batch of writ petitions.
III. In absence of any contract condition, when a contractor is unable to produce a certificate showing the use of forest produce on which royalty has been collected, the recovery from the bill against forest royalty cannot be made.
IV. Without certainty of the fact that royalty is payable on the materials used by the contractors, the same cannot be recovered without giving any opportunity to the contractors before deduction / recovery from their bills.
V. In those contracts where such conditions are incorporated, the employer shall be within its competence and jurisdiction to recover the forest royalty from the bills of the contractors/ from the security deposits/ earnest money etc. as per OM 17.06.2000 and the principle laid down in Page No.# 5/5 Durga Krishna Stores (supra) shall be applicable.
VI. Those contractors, where the Office Memorandum dated 17.06.2000 is a part of contract and the same has been signed by the contractors and the employer, the contractors shall be bound by the Office Memorandum dated 17.06.2000, only when a specific clause is incorporated in the contract that the materials required, should be collected either through permits etc. under MMC Rules, 2013 and/ or through permits issued under Assam Forest Regulations, 1891 and the Rules and Notifications issued thereunder.
Shri B. Gogoi, learned Standing Counsel, PWD, however submits that while verifying two aspects of the matter are liable to be examined, firstly as to whether the OM dated 17.06.2020 is a part of the contract and was signed by both the parties and secondly, whether there is any clause in the contract to make a part. After the said verification, the directions continued with the aforesaid judgment which is produced below and would also be applicable in the present case.
For ready reference, the directions in the aforesaid judgment is extracted herein below:-
"19. Directions:
For the forgoing reasons, conclusion and findings, this court directs the followings: i. The employer shall verify the contract of the petitioner(s) herein and if it is found that forest royalty is recoverable in terms of the determinations/ conclusions made in the present lis, a reasonable opportunity to produce the proof of payment of forest royalty be granted to them and if the contractor(s) satisfy the authority that forest royalty has already been paid, no recovery shall be made and the pending bills / security deposits / earnest money etc. shall be released within six weeks from submission of such materials, if the same is not recoverable for any other contractual liabilities. And If such proof is not available, the authority shall be at liberty to recover the forest royalty ii. In the other cases, the employer shall forthwith release the pending bills/ security deposit/ earnest money etc., if those are withheld against forest royalty. And In those cases, where the recovery has already been made against forest royalty, the same be released forthwith."
In view of the aforesaid facts and circumstances and the observations made therein, the writ petition stands disposed of.
JUDGE Comparing Assistant