Gauhati High Court
WA/258/2022 on 16 October, 2023
GAHC010151522022
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
1. WRIT APPEAL NO.258 OF 2022
N.C. Das - Allied Infra (JV), a Joint Venture Firm having
its Head Office at P-16, Bentrick Street, 3rd Floor, A.C.
Mansion, Kolkata - 700001, represented by one of its
partners Shri Naba Das.
........Appellant
-Versus-
1. The Union of India, represented by the General
Manager (CON), N.F. Railway, Maligaon, Guwahati -
781011, District: Kamrup (M), Assam.
2. The Chief Engineer, Construction-I, N.F. Railway,
Maligaon, Guwahati - 781011, District: Kamrup (M),
Assam.
3. The Deputy Chief Engineer, Construction, Lumding,
N.F. Railway, Maligaon, Guwahati - 781011, District:
Kamrup (M), Assam.
4. The Deputy Chief Engineer, Construction-II, N.F.
Railway, Maligaon, Guwahati - 781011, District:
Kamrup (M), Assam.
5. The Principal Chief Conservator of Forest (HOF),
Government of Assam, Aranya Bhawan, Panjabari,
Guwahati, District: Kamrup (M), PIN - 781037.
........Respondents
2. WRIT APPEAL NO.259 OF 2022
N.C. Das & Co., a Firm having its Head Office at R.D.
Road, Ward No.5, Rangia, PO & PS: Rangia, District:
Kamrup (R), Assam, PIN - 781354, represented by one
of its partners Shri Naba Das.
........Appellant
Writ Appeal Nos.258, 259 & 262/2022 1|Page
-Versus-
1. The Union of India, represented by the General
Manager (CON), N.F. Railway, Maligaon, Guwahati -
781011, District: Kamrup (M), Assam.
2. The Chief Engineer, Construction-IX, N.F. Railway,
Maligaon, Guwahati - 781011, District: Kamrup (M),
Assam.
3. The Deputy Chief Engineer, Construction-IX, N.F.
Railway, Maligaon, Guwahati - 781011, District:
Kamrup (M), Assam.
4. The Principal Chief Conservator of Forest (HOF),
Government of Assam, Aranya Bhawan, Panjabari,
Guwahati, District: Kamrup (Metro), PIN - 781037.
........Respondents
3. WRIT APPEAL NO.262 OF 2022
NCDC - GPT (JV), a Joint Venture Firm having its Head
Office at R.D. Road, Ward No.5, Rangia, PO & PS:
Rangia, District: Kamrup (R), Assam, PIN - 781354,
represented by one of its partners Shri Naba Das.
........Appellant
-Versus-
1. The Union of India, represented by the General
Manager (CON), N.F. Railway, Maligaon, Guwahati -
781011, District: Kamrup (M), Assam.
2. The Chief Engineer, Construction-I, N.F. Railway,
Maligaon, Guwahati - 781011, District: Kamrup (M),
Assam.
3. The Deputy Chief Engineer, Construction, Lumding,
N.F. Railway, Maligaon, Guwahati - 781011, District:
Kamrup (M), Assam.
4. The Executive Engineer, Construction, CGON, N.F.
Railway, Maligaon, Guwahati - 781011, District:
Kamrup (M), Assam.
5. The Principal Chief Conservator of Forest (HOF),
Government of Assam, Aranya Bhawan, Panjabari,
Guwahati, District: Kamrup (M), PIN - 781037.
........Respondents
Writ Appeal Nos.258, 259 & 262/2022 2|Page
-BEFORE-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE KARDAK ETE
For the Appellants : Mr. U.K. Goswami, Advocate.
Mr. R.K. Bothra, Advocate.
For the Respondents : Mr. K. Gogoi, Standing Counsel, Railways.
: Mr. D. Gogoi, Standing Counsel, Forest
Department.
Date of Hearing : 03.10.2023.
Date of Judgment & Order : 16.10.2023.
JUDGMENT & ORDER
[Sandeep Mehta, C.J.]
Heard Mr. U.K. Goswami and Mr. R.K. Bothra, learned
counsel for the appellants. Also heard Mr. K. Gogoi, learned standing
counsel, N.F. Railway and Mr. D. Gogoi, learned standing counsel,
Forest Department, representing the respective respondents.
2. These 3(three) intra-Court writ appeals involve identical,
factual and legal issues and arise out of a common judgment & order
dated 30.06.2022 rendered by the learned Single Bench in a bunch of
writ petitions led by WP(C) No.9227/2019. Hence, all the appeals have
been heard and would be decided together by this common judgment.
3. The core question, which this Court is required to adjudicate
in this batch of writ appeals, is regarding the legality and validity of the
notice dated 08.02.2021 issued by the Northeast Frontier Railway
requiring the appellants to provide the Forest Royalty Clearance
Certificate (FRCC) regarding 5(five) components of the work order in
question, i.e. (i) earth work; (ii) total sand; (iii) quarry dust; (iv)
stone chips, and (v) boulder. The letter mentions that the Forest
Writ Appeal Nos.258, 259 & 262/2022 3|Page
Royalty Clearance Certificate of the quantities of material utilized by
the contractor would have to be submitted before clearing the next bill
submitted towards the construction works awarded by the Northeast
Frontier Railway to the contractor(s), viz. B.G. standard formation;
minor bridges including retaining wall; side drains; catch water drains;
ground improvement works and all other connected ancillary works in
between km 44.13 (including Digaru Station yard) to km 98.00 in
connection with Digaru-Hojai Double Line Project of N.F. Railway.
4. The appellants questioned the legality and validity of the
aforesaid order by filing the captioned bunch of writ petitions, which
came to be disposed of by the learned Single Judge vide judgment &
order dated 30.06.2022, with the following observations and
directions:-
"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 20B(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
Writ Appeal Nos.258, 259 & 262/2022 4|Page
deposits/earnest money etc. as per OM 17.06.2000 and the
principle laid down in 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.
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."
5. Mr. U.K. Goswami, learned counsel representing the
appellants, vehemently and fervently urged that the contract, more
particularly, Condition No.13.2 thereof, which reads as - "Whenever
forest produces like sand, stone, timber, etc. are used in the work, the
contractor(s) will have to furnish documentary proof that requisite
Writ Appeal Nos.258, 259 & 262/2022 5|Page
royalty on such produces has been paid to the concerned
departments", covers within its ambit forest produce like sand, stone
and timber qua which only the contractor is required to furnish
documentary proof of royalty payment to the concerned Department.
He urged that by dint of the impugned notice dated 08.02.2021, the
authorities have travelled beyond the conditions of the contract by
requiring the appellants herein to produce the royalty certificates for
items which were not covered under the contract, i.e. earth work and
boulders. He vehemently and fervently contended that the view taken
by the learned Single Judge runs contrary to the judgment of this
Court in the case of State of Assam & Ors. -Vs- Muslim Ali (Md.),
reported in 2013 (2) GLT 945. Mr. Goswami has also placed reliance
on a judgment passed by the learned Single Bench of this Court in the
case of M/s Raitani Engineering Works Private Limited -Vs-
Union of India & 5 Ors. [WP(C) No.1463/2021]. He thus, urged that
the view taken by the learned Single Judge, whereby the grossly illegal
notice issued to the appellants was not interfered with and rather,
directions beyond the scope of the writ petition were issued, does not
stand to scrutiny and the impugned judgment & order dated
30.06.2022 deserves to be reversed.
On these grounds, Mr. Goswami implored the Court to
accept the appeals and reversed the impugned judgment & order
passed by the learned Single Judge and so also the notice dated
08.02.2021 impugned in these writ petitions.
6. Per contra, Mr. K. Gogoi, learned standing counsel, N.F.
Railway and Mr. D. Gogoi, learned standing counsel, Forest
Department, representing the respondents, vehemently and fervently
Writ Appeal Nos.258, 259 & 262/2022 6|Page
opposed the submissions advanced by the learned counsel for the
appellants.
7. Mr. D. Gogoi referred to the Assam Minor Mineral
Concession Rules and pointed out that ordinary earth is a minor
mineral and royalty is leviable thereupon. He urged that the only
purpose behind issuance of the notice dated 08.02.2021 was to ensure
that the raw material being minerals covered under the statutes had
been procured by the contractor from valid sources.
8. Mr. K. Gogoi, learned standing counsel, Railway submitted
that the judgment in the case of Muslim Ali (Md.) (supra) is based on
a totally different fact scenario because therein, the Division Bench
came to a conclusion that the Office Memorandum dated 17.06.2000
issued by the Finance Department was not incorporated as one of the
contract conditions and thus, the Public Works Department was held to
be disentitled from realizing royalty on forest produces. Mr. Gogoi has
placed reliance on a subsequent Division Bench judgment of this Court
in the case of State of Assam & Ors. -Vs- G.H. Vijapura & Co.
(M/s) & Ors., reported in 2017 (3) GLT 478, wherein the judgment in
the case of Muslim Ali (Md.) (supra) was also considered and the
view taken by the learned Single Judge to the effect that no royalty is
required to be paid for extracting earth from private patta land as well
as from non-forest area was reversed. Referring to Rules 46, 48 and
31 of the Assam Minor Mineral Concession Rules, 1994, it was further
held that earth being a minor mineral is subject to payment of royalty
even on being extracted from private patta land and other lands
located in non-forest areas.
Writ Appeal Nos.258, 259 & 262/2022 7|Page
9. Mr. Gogoi thus, urged that the view taken by the learned
Single Judge in Paragraphs 18 & 19 of the impugned judgment is
beyond the scope of interference. It was contended that the notice
dated 08.02.2021 only requires the appellants to submit the Forest
Royalty Clearance Certificates, which is the requirement of law and
hence, the legality of the said notice is irrefutable. He further urged
that the learned Single Judge has directed the employer to verify the
contract/contracts of the writ petitioners and thereafter, if it is found
that forest royalty is recoverable in terms of the observations made in
the impugned judgment, a reasonable opportunity to produce the
proof of payment of forest royalty shall be allowed to the contractor
concerned and upon proof of payment of royalty being produced, no
recovery would be made and the pending bills/security
deposits/earnest money would be released within 6(six) weeks. In the
alternative, the authority concerned has been given liberty to recover
the forest royalty and in other cases, the employer has been directed
to release the pending bills/ security deposits/ earnest money, etc.
Mr. Gogoi thus, urged that no prejudice has been caused to
the appellants herein because the learned Single Judge has just
directed a verification exercise to be carried out in view of the
prevailing legal and factual position and hence, no grievance can be
raised against such a direction.
10. We have given our thoughtful consideration to the
submissions advanced at the Bar and have gone through the material
placed on record.
11. The main submission of the learned counsel for the
appellants in reference to the Condition No.13.2 (supra) of the
Writ Appeal Nos.258, 259 & 262/2022 8|Page
contract, was that as ordinary earth was not covered under Clause
13.2 of the tender document, the employer Railways was not at liberty
to demand the Forest Royalty Clearance Certificates from the
appellants regarding the said mineral used in the construction works.
However, we are not in the least impressed by the said submission for
the simple reason that Clause 13.2, referred to supra, is not
exhaustive in its operation because it only refers to sand, stone and
timber in a generic sense as covered under forest produces. The
governing phrase of the said clause is forest produces. Examples in the
form of sand, stone, timber are given but thereafter, the word "etc.",
is used which means that whichever forest produce/ mineral is used in
the construction works, the contractor would have to furnish
documentary proof that requisite royalty on such produces has been
paid to the concerned Department. It has been clearly held by Division
Bench of this Court in the case of G.H. Vijapura & Co. (supra) that
ordinary earth even if extracted from patta land and/or non-forest area
is liable to levy of royalty. As undeniably, ordinary earth has been used
by the contractors for carrying out the works in question, proof of
royalty being paid would have to be provided by the contractor to the
employer before the bills can be paid.
12. In this background, the notice dated 08.02.2021 issued by
the employer to the appellants herein requiring them to present the
Forest Royalty Clearance Certificates cannot be termed to be illegal or
unjustified in any manner. Thus, requiring the appellants herein to
present the Forest Royalty Clearance Certificates for the components
of ordinary earth and boulders cannot be considered to be beyond the
scope of the tender document/contract so as to warrant interference.
The learned Single Judge has already directed the employer to conduct
Writ Appeal Nos.258, 259 & 262/2022 9|Page
a verification of the contracts and to determine whether forest royalty
is recoverable and only thereafter, the follow up action has been
permitted. Thus, the writ appellants cannot claim to be prejudiced by
the aforesaid directions, which otherwise also, stand the scrutiny of
law.
13. In view of the discussion made herein above, we are of the
firm opinion that the impugned judgment & order dated 30.06.2022
rendered by the learned Single Judge does not suffer from any
infirmity warranting interference. Hence, the writ appeals fail and are
being dismissed as being devoid of merit.
JUDGE CHIEF JUSTICE
Comparing Assistant
Writ Appeal Nos.258, 259 & 262/2022 10 | P a g e
